Discriminating Against Transgendered People

by hilzoy

From the SF Chronicle:

"Leading gay rights organizations, with the pointed exception of the Human Rights Campaign, withdrew their support Monday from a landmark gay civil rights bill after House Speaker Nancy Pelosi of San Francisco and Rep. Barney Frank, D-Mass., pulled transgender people from the legislation that would protect gays and lesbians from workplace discrimination.

The intense backlash by the gay community surprised House Democratic leaders, forcing them to postpone what had been intended as a big House vote this week to include gays and lesbians in the nation's job discrimination laws for the first time in American history.

The debate playing out between gay rights activists and two of their biggest supporters in Congress raises a classic political question: Are activists better off compromising and accepting progress or continuing to fight for everything they want?

Gay rights groups have been waiting for a decade for the bill to pass, and many say a few more months to try to build support for including gender identity would be worth the wait. They say transgender people will have little chance of winning protection from discrimination if they aren't included in this bill.

Pelosi and Frank, however, fear the inclusion of gender identity will kill the overall bill - again denying gays and lesbians protection against job discrimination.

Pelosi, D-San Francisco, issued conflicting statements Monday in reaction to the turmoil. The first declared her personal support for including transgender people in the Employment Non-Discrimination Act but asserted she would stick by her decision to drop them from the bill to give it a greater chance of passage.

About three hours later, the speaker issued a new statement saying, "After discussions with congressional leaders and organizations supporting passage" of the bill, committee and floor votes on the bill had been postponed to "allow proponents of the legislation to continue their discussions with members in the interest of passing the broadest possible bill.""

If I were a Congressperson, I would be genuinely torn about what to do. On the one hand, according to Barney Frank, whom I trust, whip counts show that the bill will fail if it includes a ban on employment discrimination against transgendered people, but will pass otherwise. If that's right, then there's a serious case to be made for banning discrimination against gay men and lesbians now, rather than leaving the entire LGBT community exposed to legal workplace discrimination. On the other hand, I loathe the idea of not banning discrimination against transgendered people, especially if that would mean that no such ban would be passed for the foreseeable future.

Luckily, however, I am a blogger and a citizen, not a Congressperson. And that means that my duty, as I see it, is clear. First, I should write my Representative, urging (in the case of my Representative) him to support the version of the Employment Non-Discrimination Act that secures the rights of transgendered people. And second, I should use my blog to argue my case. That argument, which is aimed at those of our readers who don't know much about this topic, is below the fold. People who do know about it should feel free to add further information in comments. (Note: for the sake of simplicity, I'm going to stick to people who think that their biological gender is flatly wrong, and leave aside people with more muted gender issues.)

Here's an excerpt from She's Not There, a wonderful memoir by a thoughtful and deeply sane writer, which is worth reading even if you don't want to understand more about this topic:

"I was born in 1958, on June 22nd, the second day of summer. It was also the birthday of Kris Kristofferson and Meryl Streep, both of whom I later resembled, although not at the same time. One day when I was about three, I was sitting in a pool of sunlight cast onto the wooden floor beneath my mother’s ironing board. She was watching Art Linkletter’s House Party on TV. I saw her ironing my father’s white shirt—a sprinkle of water from her blue plastic bottle, a short spurt of steam as it sizzled beneath the iron. “Some day you’ll wear shirts like this,” said Mom.

I just listened to her strange words, as if they were a language other than English. I didn’t understand what she was getting at. She never wore shirts like that. Why would I ever be wearing shirts like my father's?

Since then, the awareness that I was in the wrong body, living the wrong life, was never out of my conscious mind—never, although my understanding of what it meant to be a boy, or a girl, was something that changed over time. Still, this conviction was present during my piano lesson with Mr. Hockenberry and it was there when my father and I shot off model rockets and it was there years later when I took the SAT and it was there in the middle of the night when I woke in my dormitory at Wesleyan. And at every moment as I lived my life I countered this awareness with an exasperated companion-thought, namely, Don’t be an idiot. You’re NOT a girl. Get over it.

But I never got over it. (...)

After I grew up and became female, people would often ask me—how did you know, when you were a child? How is it possible that you could believe, with such heartbroken conviction, something which, on the surface of it, seems so stupid? This question always baffled me, as I could hardly imagine what it was like not to know what your gender was. It seemed obvious to me that this was something you understood intuitively, not on the basis of what was between your legs, but because of what you felt in your heart. Remember when you woke up this morning--I’d say to my female friends—and you knew you were female? That’s how I felt. That’s how I knew.

Of course knowing with such absolute certainty something that appeared to be both absurd and untrue made me, as we said in Pennsylvania, kind of mental. It was an absurdity I carried everywhere, a crushing burden, which was, simultaneously, invisible. Trying to make the best of things, trying to snap out of it, didn’t help either. As time went on, that burden only grew heavier, and heavier, and heavier."

Interestingly, there seems to be a neurological basis for this (see also here and here):

"Zhou et al found that the biological structure in the brains of male to female transsexual people had a totally female pattern that was not attributable to sex hormone therapy. Kruijver et al later found that regardless of sexual orientation, men had almost twice as many somatostatin neurones as women. These inhibit thyroid stimulating hormone and growth hormones in the hypothalamus. The number of neurones in male to female transsexual people was similar to that in women, whereas the number of neurones in female to male transsexual people was similar to that in men. This seems to support a neurobiological basis for gender identity disorder."

Whatever the reason, transgendered people feel that their biological gender does not match the way they identify themselves. Jenny Boylan (nee James), the author of She's Not There, seems to have believed that she was really a girl forever. But I imagine it's not always that simple: a boy in Jenny's position might not have any idea at all how to formulate the thought that he was really a girl, since, after all, boys are the ones with penises, and he has one, and therefore, obviously, he must be a boy. What would you think, under those circumstances? I mean, isn't it obvious that you're a boy? So what is this weird thought doing lodged in your head? What's wrong with you?

Now think about what would happen if you tried to talk about this with your friends or your parents.

Not being transgendered myself, I don't think I can begin to imagine what this is like, but I imagine it must be beyond awful.

Jenny Boylan tried to make it go away. Maybe she would outgrow it, or maybe once she found the absolutely right woman and fell truly in love, she would stop imagining that she was a girl. I imagine that this is a common reaction, except in those rare corners of the world in which transgendered people are out and familiar. In Jenny's case, she did fall in love, got married, and for a short time did stop thinking that she was a girl. She had two children. She wrote several novels, and taught at Colby College. But except for that brief time around her marriage, she spent her life thinking, with increasing urgency, that she was really a woman.

Try to imagine that: getting married to a woman you truly love, truly believing that surely this will make those thoughts go away, and then slowly realizing that they won't. And try to imagine keeping something that cuts as deep as your gender a secret from everyone you know and everyone you love.

Eventually, Jenny Boylan decided that she ought to consider gender reassignment. Gender reassignment sounds like a pretty daunting prospect in itself: some pretty serious surgery, hormone therapy, electrolysis, voice training, etc., etc., etc. Moreover, in order to get gender reassignment surgery, you normally have to meet the Harry Benjamin Standards of Care, which require several letters from psychiatrists or psychologists, hormone therapy, and a year of living continuously as a member of your target gender. But in addition to all of this, there's the whole business of coming out. Imagine telling your parents, your friends, your co-workers that you have a condition that many of them might regard as either ludicrous or insane. That's pretty terrifying. Now imagine that, like Jenny Boylan, you're married, and have children. How on earth will you tell them? Will your marriage survive? What on earth will your kids think? Will they be stigmatized or traumatized or some even worse kind of ized? Or will they just flee in horror?

Personally, I can't imagine the kind of courage it must take to do this.

Which is why I think: honestly, the least we, as a society, can do is to try to make sure that in addition to all the things I've mentioned, transgendered people don't have to worry about losing their jobs. As things stand, they do. For instance (pdf):

"Kathleen was a research assistant doing chemical and biological analysis in an orthopedic surgeon's lab at a state university in Iowa. She had been working in the university for three years when she told her supervisor and her co-workers that she was transgender and would be transitioning from male to female. After this conversation, the surgeon stopped coming into the lab, and within weeks Kathleen was told she was being fired. The department administrator told Kathleen that they were firing her because they thought she could no longer give sufficient effort to the department because of her "condition.""

And:

"Starting a new life and searching for a new career isn't easy, but Diane Schroer (bio), a highly-decorated veteran, is no stranger to a challenge. Schroer was an Airborne Ranger qualified Special Forces officer who completed over 450 parachute jumps, received numerous decorations including the Defense Superior Service Medal, and was hand-picked to head up a classified national security operation. She began taking steps to transition from male to female shortly after retiring as a Colonel after 25 years of distinguished service in the Army.

When she interviewed for a job as a terrorism research analyst at the Library of Congress, she thought she'd found the perfect fit, given her background and 16,000-volume home library collection on military history, the art of war, international relations, and political philosophy. Schroer accepted the position, but when she told her future supervisor that she was in the process of gender transition, they rescinded the job offer. The ACLU is now representing her in a Title VII sex discrimination lawsuit against the Library of Congress."

That's all perfectly legal. Moreover:

"Transsexuals are not a separate protected group of workers under a law that bans employment discrimination based on a worker's sex, a federal appeals court has ruled.

The 10th U.S. Circuit Court of Appeals upheld a federal judge's ruling in favor of Utah Transit Authority, which fired bus driver Krystal Etsitty because she planned to use the women's restroom despite having male genitalia.

[Note from hilzoy: imagine going into a men's bathroom dressed convincingly as a woman. Much better to use the women's bathroom, which at least has stalls with doors that close.]

The Denver-based appeals court agreed with the judge that Title VII, a federal discrimination act, does not protect Etsitty solely on the basis of her transsexuality. In ruling for the first time on the issue, the court said it is reluctant to expand the traditional definition of "sex" in Title VII beyond the two starkly defined categories of male and female.

"Rather, like all other employees, such protection extends to transsexual employees only if they are discriminated against because they are male or because they are female," Judge Michael Murphy wrote in the 10th Circuit opinion, handed down Thursday. (...)

The 10th Circuit opinion, in upholding that decision, said it is aware of the difficulties transsexuals can face in the workplace.

"The conclusion that transsexuals are not protected under Title VII as transsexuals should not be read to allow employers to deny transsexual employees the legal protection other employees enjoy merely by labeling them as transsexuals," the ruling said. "If transsexuals are to receive legal protection apart from their status as male or female, however, such protection must come from Congress.""

Ah, yes: Congress. If you think that people should not be fired because they seek gender reassignment surgery, or have some other sort of gender misalignment -- if the very idea of choosing one of the toughest parts of a person's already tough life to take away his or her livelihood for no good reason makes you as mad as it makes me -- then now would be a good time to write your Representative and ask him or her to support the extension of the Employment Non-Discrimination Act to transgendered people. And if you're still on the fence, I recommend reading She's Not There to get a clearer picture of what's involved.

The only reason anyone is so much as thinking about stripping protection for transgendered people from this bill is because they are a lot less visible than gay men and lesbians. If we want to block not just this particular injustice, but all of them, then we need to change that. And I can't think of any good reason why those of us who are not transgendered should wait for transgendered people to bring their situation to our attention. Between paying for surgery, telling the people they know, dealing with hormones and therapy and electrolysis and so on, and navigating what I'm sure are the absolute delights of a workplace transition, I imagine they have enough on their plates already.

Comments

[Bruce Baugh]

I really don't take the step of disagreeing with Rep. Frank about gender issues and the law lightly. But it seems to me that in the prevailing legal environment, if a bill passes now that excludes transgendered people, the chances of adding them in later any time in the next however many years are very small indeed.

[G'Kar]

This is a very difficult subject. I understand and sympathize with the concern that this may be a now or never moment for transgendered persons; as hard as it is for some people to accept homosexuality, the idea of dealing with someone who would voluntarily alter (or mutilate, some would doubtless say) their body to assume the appearance of the opposite gender is another order of magnitude away. So I suspect that Bruce is correct that, if this bill passes without transgender protection, it may be a very long time, if ever, before transgenders don't face legal discrimination in the workplace. Which is very sad.

But looking at this from the other side, what do you tell all the gays and lesbians who have waited so long to get legal protections just for being who they are? Now they've got to hold on even longer, because transgendered persons won't be able to get their on their own? We're going to perpetrate a bigger injustice to avoid a smaller one? Who is this helping? Currently, the entire LGBT community can be discriminated against legally. Whether or not the bill fails with transgender support, or passes without it, the status for transgendered persons will not change. I have a hard time justifying forcing gays and lesbians to continue to endure that wrong simply because we can't fix the whole problem at once.

This is a sad issue. It is unfortunate that some people have to live their lives with this kind of problem. But, in the end, I cannot justify keeping them in the bill if it will mean gays and lesbians continue to face this kind of discrimination. I hate to say that, because I realize what I'm asking of transgendered people, but I think they also have to consider what they would be asking of gays and lesbians to do otherwise.

[rea]

How on earth did they draft this biil that this is a problem? It seems to me that a ban on discrimination based on sexual orientation would, for example, be broad enough to include transgendered people without explicitly mentioning them . . .

[liberal japonicus]

I'm not trying to equate the opinion of gay rights groups with all gay people, but the fact that the majority of the gay rights organizations have withdrawn support of the bill suggests that gay people have decided to stand with the transgendered, so putting the bill up as is and letting the chips fall where they may should be the default option.

[G'Kar]

rea,

While I am prepared to be corrected, I don't believe that the sets of transgendered and homosexual orientation overlap completely. Transgendered persons, once they change their bodies to their mental gender, may end up gay or straight, or at least that seems to be the case, given Jenny Boylan remaining married to her wife after her transition. I think the bill has to be explicit to protect against issues like those hilzoy linked to.

[G'Kar]

liberal japonicus,

I'm not prepared to agree. While I suppose you can use gay rights groups as a proxy for gay opinion, I think that people ought to come to their own conclusions on what the right thing to do is. And if the options are protect some people or protect no people, I have a hard time selecting the second option, even if the people who stand to lose are ok with it.

[Ugh]

Along the lines of what G'Kar says, I am constantly amazed at groups on the left who seem to so often let the perfect be the enemy of the good. This is just the latest example, environmental groups seem immune to compromising in lots of instances too. I assume groups on the right do this too but for some reason I don't seem to notice it.

[hilzoy]

To follow up on what G'Kar said, my understanding is that gender identity and sexual orientation are two completely different things. A lot of transgendered people (though not all) are attracted to the sex opposite to their biological one, and I gather it creates no end of confusion when people who are wondering whether they might be transgendered assume that if they were, they'd have to be gay (wrt their biological sex.)

[cleek]

my understanding is that gender identity and sexual orientation are two completely different things

then why the demand that they need to be covered in the same bill ?

[hilzoy]

cleek: I dunno. Why demand that gay men and lesbians be covered by the same bill, if it comes to that? They were originally covered in the same bill. Then one was stripped out. I would like it to be put back in. More to the point, I'd like it to be put back in, without those who support it having to pay a political price for doing so, and being the naive small-d democrat that I am, I want to work towards this end by doing my best to change people's minds, and/or raise the profile of the issue.

[G'Kar]

cleek,

I believe it is because, while the two situations are different in a vast number of specifics, because they both have certain sexual issues, homosexuals and transgendered persons alike have had to deal with a great deal of prejudice and have therefore come to find one another natural allies.

And I think it is to the great credit of the gay rights groups that they're willing to stand on principle here, even while I disagree with them. I have no idea where the numbers stand, but I have to believe there are more homosexuals than transgendered persons out there, so it seems rather likely LGBT groups could please a majority of their membership even if they chose to accept the lesser bill.

[cleek]

Why demand that gay men and lesbians be covered by the same bill, if it comes to that?

that seems like a more artificial division than the other one.

[farmgirl]

As a bit of an aside, to learn from G'Kar's comment that Jenny and her wife were able to stay together is AWESOME. That's love.

[Edward_]

Why demand that gay men and lesbians be covered by the same bill? Because it's the only way transgendered Americans have any chance of seeing these protections in our life time.

As a gay man, I don't mind saying, I have no interest at all in becoming a "first-class citizen" if it comes at the expense of someone else's status. I'll happily take my chances with the current law before I'll passively support the hideous assertion that gays and lesbians are kind of ok now, but transgendered Americans are still very much not ok. That folks can't see why that's so offensive to many gay folks suggests to my mind they don't see why the current lack of protection is offensive to us either. It's not about us. It's about what's right.

What this boils down to, quite frankly (no pun intended), is that I trust the motives of the transgendered community in this battle much, much, much more than I trust the motives of those among general public who are coming around and now ready to condescend to suggest I might be worthy of some of the same civil liberties they take for granted. In other words, if the sh*t hits the fan again, I'd rather stay aligned with the folks who've shown me constant, genuine support, regardless of how small a minority they may be, than be worried my new allies are still harboring bigotry and might turn against me again.

It's so crystal clear to me why this move is wrong, regardless of how pratical it seems to Frank. I think he's forgetting what it feels like to be gay in America.

[G'Kar]

Edward_,

You make some excellent points, but I take issue with the idea that legal acceptance of gays and lesbians would in any way come at the expense of transgendered persons. While you're probably right that this linkage is probably the only way to get these protections for transgendered persons, it seems equally clear that nobody will get these protections if the bill remains as it is. Transgendered people aren't going to be any worse off than they are right now, and while I think you're wise to be concerned about the loyalty of some of those who would vote for one but not the other bill, the fact remains that gaining these legal protections would be very important to a lot of gays and lesbians.

[Edward_]

G'Kar. What's missing from looking at it that way, though, is an understanding of how the GLTB community functions more like a tribe (or extended family) than merely a grouping of similarly discriminated against individuals. We march together, party together, support each other when our real families shun us, and generally watch each others' backs in an often highly hostile country. Leaving them behind via support of this legislation feels like a betrayal.

No. It would be a betrayal.

[cleek]

It's not about us. It's about what's right.

i'm all for "what's right". but i'm also not opposed to taking what i can get when i can get it.

also, what G'Kar said at 9:30.

but, since i'm not GLBT, this isn't my fight; and i expect you'll weigh my opinion accordingly.

[G'Kar]

Edward_.

Fair enough. You are certainly correct that I have very little understanding of what occurs inside the LGBT community. Still...for those of us standing outside that community, can't we still push to get at least a part of it into the right place? Because it makes me sick that anyone has to endure that kind of discrimination, and lifting that spectre from some people seems like an awfully good idea to me.

[liberal japonicus]

G'kar,
that's a good point, and I'm having trouble explaining why I disagree. The closest example that I can come up with was Gandhi pleading guilty and demanding that he be punished to the full extent of the law and the judge finding him guilty. An imperfect example, I know, but I'm not feeling able to say (again assuming that the organizations stand as a sufficient proxy for gay opinion) that I know better than they do what sacrifice should or shouldn't be made, though I'm not completely convinced by that. I'm hoping someone with a bit more information can explain the landscape of gay rights organizations. The article talks about the 'the pointed exception of the Human Rights Campaign', so I'm wondering what that represents, or it is just the fact that it is only one organization.

[Edward_]

I certainly don't mean to sound ungrateful or suggest anyone who's supporting this legislation is anything less than a real mensch in my book (sincerely...thank you!).

Still, and I'm not sure if this is the right way to phrase this, but by accepting "what I can get when I can get it" would in some (small, granted, but still) way turn me into what I dislike about those who would deny me my rights. It's actually not the case that transgendered Americans won't be "any worse off than they are right now"...they'll be much worse off in that their hope for equal protection will become even less likely than it is now.

So this bill fails.

If the country's heading in the right direction, it will pass the next time around, or the next. At least I won't have to live with the knowledge that by taking what was best for me when it was offered I condemned my transgendered brothers and sisters to a much tougher fight.

[matttbastard]

What hilzoy and Edward_ (especially Edward_)said. "Wait your turn" is not the answer; what incentive is there to include transmen/women in future legislation if transfolk AND the greater US LGBT community allow this bill to pass?

Same argument holds re: SSM and 'civil unions'. Compromise is essentially giving up the fight, with transfolk tossed under the rainbow bus.

YMMV, of course. To me, the 'something is better than nothing' argument doesn't do sh*t for those who get nothing.

When I get home, I'll link to some of the reactions from the trans community.
(Also, f*ck the HRC).

[Edward_]

(Also, f*ck the HRC).

Indeed.

[G'Kar]

Edward_,

Your willingness to stand up for your transgendered sisters and brothers is a mark of your quality. I am sometimes terribly sad that you don't live in a country where you don't have to consider such an awful choice, although on the flip side I think that transgendered persons are so unusual that it is not overly surprising they're not being embraced even to the degree gays and lesbians have been to date (which is certainly damning with faint praise).

It is, as a wise man once observed, an imperfect universe. It is fortunate that there are some people out there willing to make it a bit better, and I am quite grateful to them for it.

[matttbastard]

LJ: Do a site search on Pam's House Blend for HRC - she has done a number of posts on the organization (which is very much about diluting and mainstreaming queer culture to make it more palatable for popular consumption. Flipping the bird to the trans community is par for the course.)

[matttbastard]

(Oh, and thank you for posting on this, Hil. <3)

[G'Kar]

matt,

No, the transgender community would definitely lose out if the modified bill passed. But the gay and lesbian community would gain a great deal. I am not a utilitarian per se, but it seems to me you can't discount all the pain and suffering gays and lesbians endure because of discrimination right now. Fixing that problem isn't nothing in the grand scheme of things.

[Edward_]

Fixing that problem isn't nothing in the grand scheme of things.

And that's probably what Frank is focused on, to be more fair to him. I can imagine after working as hard as he has for such legislation that it tears him up inside to see it derailed this close to passing.

I do think there's another latent danger in this, however, which is that our opponents for other such progress will unquestionably also benefit by diluting our combined strength. The divide and conquer method is not unknown to them.

[G'Kar]

Edward_,

But will the strategy work in this case? If they split the transgender piece off, it's still a major victory for gays and lesbians, and the strong stand of gay rights groups against the bill should demonstrate to transgendered persons that, while they may have ended up with the short end of the stick, they certainly have no reason to decry the actions of their gay and lesbians sisters and brothers. Do you really think this issue could split the LBGT community?

[CharleyCarp]

The good thing about the Sausage Factory is that binary choices of this kind don't really exist in reality. There's nothing wrong with going to the floor with two bills -- one with transgendered, the other not -- and seeing if you can get the votes on the better bill. If not, pass the lesser.

(Or have one as an amendment/substitution for the other.)

Forcing a binary situation, when you know it will fail, is grossly unfair, and, ime, rarely proven an effective legislative strategy, especially on a left-of-center issue.

[Incertus (Brian)]

The thing is, this bill, no matter which form of it passes, is likely to be vetoed by the bigot-in-chief, and won't have the votes to overturn said veto. Given that, Congress might as well pass the broadest one it can, since it'll be symbolic until there's a Democrat in office anyway--it sets the precedent that Congress wants to include transgendered people in the bill from the start.

[Turbulence]

As I understand it, LGBT groups expect that even if the bill passes congress, Bush will veto it and that's true regardless of whether or not it covers trans folk. Given that this bill is largely symbolic, I can see why a lot of people are unwilling to abandon their trans friends in exchange for...nothing.

I shouldn't use the word nothing. Abandoning the trans folk would allow congressional democrats to avoid hearing some awkward and embarassing claims during debate, and, really, if we can't all rally for the principle that congressional democrats should always be comfortable, what's the point of democracy?

[Edward_]

Do you really think this issue could split the LBGT community?

It's one of those mutable acronyms, isn't it? I generally put "G" first (go figure), but in most instances the T is last, and because of their numbers, as noted above, they're really not visible enough to effect much change on their own.

I'm not as worried that the GLBT community will rip itself apart as I am that opponents will cite this as a precedent for not including transgenered folks in other legislation moving forward and will not hesitate to call the GL community hypocritical in other fights for equality because it took what it could get when it could get it for itself in this instance.

If your central message is one of inclusion and equality, you definitely lose something if seen to be mainly looking out for number 1.

Forcing a binary situation, when you know it will fail, is grossly unfair,

Unfair to whom? The legislators? That's their job. If the primary opponents of taking out Transgenered folks are the beneficiaries of the revised legislation, it can't be seen as unfair to gays and lesbians, can it?

This is not a simple matter of gaining rights one-by-one, IMO. There is a crucial principle at stake here. One that will be watered down to the point of meaninglessness if it's worked toward in such an a la carte method that rather than first and second class citizens we have first, second, third, and fourth.

[matttbastard]

"To me, the 'something is better than nothing' argument doesn't do sh*t for those who get nothing" s/b "To me, the 'something is better than nothing' argument doesn't do sh*t for those who still get nothing."

G'Kar: I am not a utilitarian per se, but it seems to me you can't discount all the pain and suffering gays and lesbians endure because of discrimination right now.

Yet you're making a utilitarian argument. Consider this: it's a lot easier for lesbians/gays to 'pass' than transfolk. With that in mind, which group is most at risk of being subject to discrimination in the work place, especially if someone transitioned during their employment? There are numerous real world examples of transmen/women who have been subject to workplace discrimination; a quick google search might do you some good.

By removing transpeople from the legislation, the Dems have given the shaft to the group most in need of protection against workplace discrimination.

Do you really think this issue could split the LBGT community?

Yes.

Very much so.

As a straight person, this may be hard for you to grasp, but the relationship between the trans and great queer community can be at times rather contentious, if not vicious (especially between transwomen and lesbians).

The bill as now written could quite easily lead to a permanent schism.

[matttbastard]

Apologies to G'Kar if my last comment came across as snippy - did not mean to be so brusk(am writing @ work and just about to meet the new ops mgr, thus am rushed ;-)).

[Shinobi]

So... essentially, you can't discriminate against THESE people, but if you're really feeling the urge to be a bigot go ahead and fire THOSE people just because they make you mildly uncomfortable.

Why even bother with anti discrimination legislation at all when that legislation itself is discriminatory? It violates the very purpose of the bill IMHO.

Why not instead of legislating who you can't discriminate against, we legislate exactly what characteristics one can legally take into account when hiring and firing. Namely: Qualification, Ability, and Preformance.

[matttbastard]

"great queer community " s/b "greater queer community". Sigh. Last from me till hometime.

[Sebastian Holsclaw]

I'm torn.

First thought: of course transgendered people should be included, they are more at risk of worse discrimination than your average gay person.

Second thought: Is it really going to sink the bill?

Third thought: Is it wise to let the bill sink?

Fourth thought: All progress comes in steps, being unable to realize that can mean that you miss out even on the early steps.

Fifth thought: It T's aren't included when it passes they almost certainly don't have the strength of numbers to pass it later.

Sixth thought: So we should wait until they can be included.

Seventh thought: How long will that be?

Ultimately that last bit makes the difference. Should we throw away the chance to pass anti-discrimination laws for gay people for a generation in order to include transgendered people? I would say no. But how long will the delay actually be? My guess a couple of years. (2-5)? I don't think this is a historic, last chance for gay rights. So there isn't any need to give up on the principle right this second. But we should check back in 2009 (with different President and new Congress). If it still can't get passed then with transgendered protections, I would say that we shouldn't keep waiting.

So in summary, yes it is a matter of principle, but yes we should take what we can get if it would mean a delay of the biggest part for a generation, but we don't know that yet so no need to give in now.

[Andrew]

Hilzoy, thanks for the detailed and compassionate post.

Over at Pam's House Blend, they are pointing out that the Trans-exclusive ENDA has many other flaws. It is not a simple case of stripping out protections for transfolks.

http://www.pamshouseblend.com/showDiary.do?diaryId=3142

I don't think that legislators will return to this issue and extend rights to transpeople if the modified bill passes. Transpeople are incredibly vulnerable to discrimination and violence. It is difficult to move society forward without a solid legal framework.

[rilkefan]

Question about the development of gender - I don't understand how a three-year-old can know if they feel like a boy or a girl. I take it this is discomfort with the roles pushed by society (esp. in 1958), but it's a long way from the science of brain differences to there. Might Boylan have not felt she was in the wrong body if there was an acknowledgment by society that it's normal for people of body type A to have type B neuron development?

Incidentally, hilzoy, do you know if this guy is a crank? Several years ago I read an article by him in the Atlantic about people who wish e.g. to amputate a healthy limb ('Baz remembers first seeing an amputee when he was a 4-year old boy in Liverpool. By the time he was 7 he had begun to think, "This is the way I should be."') and I wondered about how to think about the two issues if his description was reasonable. There's also an essay in Oliver Sachs where he tries to throw his leg away - it makes it seem likely that our feelings about our bodies are more complicated and maybe plastic than is comforting.

[rilkefan]

Somebody better informed than me about the civil rights movement might chime in with historical perspective from Dr. King et al.

[Ampersand]

Whether or not the bill fails with transgender support, or passes without it, the status for transgendered persons will not change.

This isn't true. If the bill passes without protection for transgender folks, then the status for the transgendered will have changed from people with a realistic prospect of gaining legal protection from employer discrimination in the foreseeable future, to people with no hope of gaining legal protection from employer discrimination for a long, long, long time.

That's actually a very significant change in status.

[Jake - but not the one]

I'm with Shinobi. Saying that you may not discriminate amongst human beings for these reasons, whatever those reasons might be, is little different from saying that you may discriminate amongst human beings for all the reasons not on the list. I say, make the list be a list of acceptable reasons, and anything not on the list is proscribed.

We have a strange definition of humanity. Terri Schiavo contiued to have inalienable rights even though the only thing human left was the physical substrate - the body. Transgendered individuals have both a body and the spark that unites all humanity, and yet their supposedly inalienable rights are routinely abridged.

Body modding is fully legal - as long as you do it to enhance or restore stereotypically appropriate gender features. And what is transgender but body modding? Somehow, that kind of change makes the changer no longer fully human.

Thata's what this is about - who is human and deserving of equal treatment, and who is not.

I think we are all human, even Dick Cheney, though it is stretching the boundaries in his case.

Jake

[hilzoy]

rilkefan: Carl Elliott is definitely not a crank.

I'm just glad that, as I said in the post, I am not faced with the difficult choice between the two bills. Luckily for the rest of us here, we aren't either. We have, it seems to me, the unambiguous duty to try to change the political facts on the ground that led to this choice having to be made in the first place, by informing ourselves and others so that insofar as we can do anything about it, no one will ever find any political payoff in excluding the LGBT community's most vulnerable members.

[Jazgar]

Please feel free to correct me if overly naive, but will most employers even know the difference between transgendered and gay? I mean to say if a transgendered person says "look at this law." You are discriminating against me as a gay man/woman, would your average employer think about it much more than "Danger, back pedal maximum speed."

In addition, once you've granted these protections based on orientation wouldn't it be easier to argue that it would be discriminatory not to grant the same protections based on identity? Just wondering.

[Anderson]

Re: Rilkefan's ref to the civil rights movement, should the Democrats have refused to vote for the Civil Rights Act because it didn't provide for gay & transgender rights?

[Ugh]

Re: Rilkefan's ref to the civil rights movement, should the Democrats have refused to vote for the Civil Rights Act because it didn't provide for gay & transgender rights?

I was wondering the same thing but didn't comment because from what I know the relationship between the civil rights movement in the 50s/60s and the LGBT community at that time bears little (if any) resemblance to the relationship between LGBs and Ts right now.

[Bruce Baugh]

Anderson: As Edward_ is saying, this is partly a matter of history. Two of my very close friends are transgendered, and they feel about the historical association of GLB and T just as Edward_ does, that these are the people who've supported them, cared about them, taken them in when families rejected them, helped out individuals adn worked for political and social change together. Suppose that the 1965 civil rights act had offered protection against discrimination to those who can prove they had slave ancestors but to nobody else, or only to those who have at least one voluntary mixed-race marriage in their family tree, or to immgrants but not members of the Indian tribes. Many of those are categories good to protect, but...it's not what the group as a whole was working for. And "matters concerning sex and gender" is as coherent a category as "matters concerning race", I think.

[Mike3550]

Hello all. I am a very infrequent poster here, but I think that I might be able to contribute to this discussion. Hilzoy commented that she is glad that she is not faced with the difficult choice of the two bills; although I am not a member of Congress, I was faced with similar decisions a couple of years back.

I was an activist (and subsequently officer) of my local union, the Graduate Employees Organization local 3550 of the American Federation of Teachers. In our last contract, we won significant protections for the transgendered community and have, subsequently, passed resolutions at both the state and national levels of the AFT in support of transgendered rights. To give some background, this was at the same time that we were fighting an anti-gay rights amendment to the state constitution in Michigan (which eventually passed). There was A LOT of discussion about whether we would be giving up wins in other areas of our contract (e.g. childcare subsidies, tuition waivers for people working less than a .5 FTE, pay raises, etc.) and we were concerned that we were going to try and win something for a few people at the cost of winning things for the majority of members.

As a union, we decided that we would fight for transgender inclusion. I, myself (as a straight man) have learned a great deal about the transgendered and TBLG (Edwards_' point on the mutability of the acronym is well-taken) community that has made me an advocate for transgendered rights. If you had asked me three years ago, I might not have said the same thing -- and I think that is true for many of my fellow members. I think that Hilzoy is perfectly on point, we need to grow an awareness because right now transgendered people seem outside of the mainstream because we don't know them (or, probably more appropriately, don't know that we know them). The fact that many of the people closest to the members of the community for whom this would affect (the non-HRC LGBT organizations) have come out against splitting the bill indicates that there is a lot of education that needs to happen. And, for starting that process here, I extend a heartfelt thank-you to Hilzoy.

Finally, I want to make one last comment about the utility of fighting this battle at our local. Not only did we win many protections that were previously not granted including adding "gender identity and expression" to our anti-discrimination clause and a non-exclusion for transgender healthcare in our healthcare coverage, but we also won on many of the other issues that we were fighting for including health care, child care, wages, etc. And, in the end, I think that almost all of our members ended up in a better position than under our previous contract.

While I agree that the perfect is always the enemy of the good -- an issue of which I have great familiarity -- I also know that sometimes we need to push our understanding of what it means to be good. The way I draw the division in my mind, and the way that I would draw it if I was a legislator, is whether something is "acceptably good" or "better than what we have now." Although it might not relieve the conundrum of deciding when one can take what is offered now, I think that there is a huge division between these two things. Simply because something is "better than what we have now" does not make it "good". G'Kar's point is obviously a good one - drawing that line for each of us might be different and negotiating where that line should fall is an important process as citizens and one for our legislators. There is a valid point to arguing that protecting the rights of non-trans gays and lesbians is "acceptably good." For me it's not, but a huge part of that has come from fighting this fight and knowing that it is not only winnable, but something that can be built on to win other victories.

[Anderson]

Sorry, but I just don't get the "birds of a feather" argument for why we're supposed to oppose legislation that protects some but not all. Why are we *perpetuating* the idea that transexuals fit into the same category as homosexuals?

Half a loaf really is better than none.

[Jesurgislac]

Ugh: Along the lines of what G'Kar says, I am constantly amazed at groups on the left who seem to so often let the perfect be the enemy of the good.

Well, no. (And addressed to G'Kar, too.)

Speaking as a lesbian: Edward_ is right when he says this is a point of principle: to agree that employers could discriminate against transgendered people so long as we're OK - the "I'm all right, Jack, sod you!" attitude - is antithetical to the principle that has carried us as a community through so many political and social victories. Gay men who could have stood aside when lesbians were discriminated against in fertility clinics have stood up for our rights: lesbians who could have shrugged off AIDS as a gay male problem have stood with gay men. (And if you think that's minor, you should listen to a wealthy and conservative gay man in the Reagan years explaining why he'll never vote Republican) We are a highly diverse community, and we have profound differencess, and this unity has been hard-won, but the vast majority of us understand: we must stand together.

But also - speaking as an LGBT activist - discrimination against transgendered people is so intimately linked with discrimination against LGB people that it would be political folly to let a law pass that would permit an employer to argue "I didn't fire her because she was a lesbian, I don't care who she has sex with! I fired her because she looks like she's trying to be a man!"

Rilke: I don't understand how a three-year-old can know if they feel like a boy or a girl.

I suggest you find a three-year-old and ask them. I can almost promise you that any three-year-old will answer, if asked "Are you a boy or a girl?" with the gender they feel like they are.

[Jesurgislac]

Anderson: Sorry, but I just don't get the "birds of a feather" argument for why we're supposed to oppose legislation that protects some but not all.

For the same reason as a light-skinned black activist who could pass for white would oppose legislation that protected light-skinned black people from discrimination, but not dark-skinned black people.

[Hob]

Anderson: another way to look at it is: rather than saying transgender is in the same category as homosexual, it's saying that discrimination against one is in the same category as discrimination against the other. In my mind it is - that category being "broadly prejudiced behavior based on highly personal things that are none of your business, and that have historically been targets of violent bigotry."

The practitioners of said bigotry aren't particularly interested in distinguishing the two, either... although the smarter ones might start taking advantage of this bill to do so, if it became law. "Oh, I didn't fire him for being gay - it was just because he dressed girly."

[Hob]

Jesurgislac types faster than me.

[matttbastard]

Anderson: Half a loaf really is better than none.

I would be to differ, as would an entire community, who shouldn't be expected STFU for the greater f*cking good. (links galore to reactions from REAL LIVE TRANSPEOPLE!!1 ZOMG!!1 Also, to those on dial-up who normally avoid my site due to a preponderance of embedded flash links, don't worry - this entry is YouTube-free)

Like Jes said, the diluted ENDA should be rejected [f]or the same reason as a light-skinned black activist who could pass for white would oppose legislation that protected light-skinned black people from discrimination, but not dark-skinned black people.

[Jesurgislac]

Hob: Jesurgislac types faster than me.

And I edited out the quote from the gay man I remember, because as I was typing it I remembered the resounding climax broke the posting rules in several important ways. ;-)

[matttbastard]

"I would be to differ, as would an entire community, who shouldn't be expected STFU" SHOULD BE "I would beg to differ, as would an entire community, who shouldn't be expected [to] STFU".

Preview. My friend. etc.

[Ugh]

Do we have an idea of who the Congressional flip-floppers are w.r.t. LGB = ok but not transgandered?

And is it confirmed that Bush would veto anyway?

And Edward_, Jes, Hob and mattt, all good points, I have a much better understanding of where the LGBT community is coming from now. Thank you.

[Nell]

G'Kar: the transgender community would definitely lose out if the modified bill passed. But the gay and lesbian community would gain a great deal. I am not a utilitarian per se, but it seems to me you can't discount all the pain and suffering gays and lesbians endure because of discrimination right now. Fixing that problem isn't nothing in the grand scheme of things.

But this is not the only moment in which lesbians and gay men can end that discrimination. There's the time sixteen months from now when such a bill won't be vetoed by the president.

And yes, throwing transgendered people under the bus will split the movement, which is not acronymed LGBT for nothing.

Hilzoy, thank you for this post.

[Edward_]

Sorry, but I just don't get the "birds of a feather" argument for why we're supposed to oppose legislation that protects some but not all.

The answer is in your statement. It's an issue of fairness and ultimately justice, which is either available to all or a mockery of an ideal. Currently, I don't feel gays are treated equally in the US under the law. To me that's an injustice. If equal protections are offered to me, but not transgendered citizens, there's still not justice, just a shifting of where the injustice line gets drawn. I fought for that?

[cleek]

lemme second Ugh's Thanks.

the solidarity on display here is impressive.

[hilzoy]

On rereading the comments here, I think a lot of the differences between, say, Edward_ and I come down to differences in perspective, and specifically to the fact that I am not in the LGBT community, and he is. This means two things:

First, I wasn't aware of the fierce loyalty of various different groups within that community to one another. (I mean, it's not that I thought it didn't exist; I just had no particular view one way or another. It hadn't come up in my life.) That matters immensely.

Second, Edward_ wrote this: "As a gay man, I don't mind saying, I have no interest at all in becoming a "first-class citizen" if it comes at the expense of someone else's status." I admire Edward_ tremendously for having written this. However, it's not something I would have felt comfortable writing, since I am not a gay man (or lesbian or bisexual), and thus would be waiving not my own rights, but someone else's.

I mean, here's that sentence as I would have had to write it:

"As a straight woman, I don't mind saying, I have no interest at all in helping gay men, lesbians, and bisexuals to become "first-class citizens" if it comes at the expense of someone else's status."

That's a completely different sentence, and it's different because Edward_ has, and I do not have, the right to waive his own rights. The closest I could do would be to say that I was unwilling to fight for his rights absent certain conditions. And that's a lot harder to say.

In the end, though, I think I have to take LGB people's views on this topic as decisive. If most of them feel the kind of solidarity on display here -- which I find incredibly moving -- then I think that if I were a Congressperson, I'd vote for the more inclusive bill in a heartbeat. If not, it would be the same tough call as before.

As I said, though: we all have a much easier call: to try to inform people, to make the world an easier place for transgendered people and everyone else who faces discrimination, and to try to reach out and help anyone whose life is made needlessly difficult by hatred and bigotry. Because the fact that it is now politically expedient to leave transgendered people behind should be a source of shame to all of us.

[rea]

Should we throw away the chance to pass anti-discrimination laws for gay people for a generation in order to include transgendered people? I would say no. But how long will the delay actually be? My guess a couple of years.

Since Bush will veto either version of the bill, and since right now it looks like we have a good chance of a Democratic president and solidly Democratic congress in '09, it makes no sense to throw the transgendered out now. We don't accomplish anything other than to hurt the chances of the transgendered in '09.

Beyond tactics, though . . . no one is really free until we all are free. If it is legitimate to point to a transgendered person and say, "That person is different--that person is not to be treated as fully human," then why, exactly, is it not just as legitimate to point to a gay, or a lesbian--or a black, or a Baptist--and say the same thing?

[rilkefan]

"As a straight woman, I don't mind saying, I have no interest at all in helping gay men, lesbians, and bisexuals to become "first-class citizens" if it comes at the expense of someone else's status."

Is there in fact an expense? I can imagine it being simpler to add an extra group to a controversial list instead of getting the whole list in at once. Is the argument that it's possible to round up support for the full bill but that even a fully D-controlled WH+Congress wouldn't pass a T extension? I tend to discount my ability to make such judgments relative to experts like Frank.

Perhaps most importantly, could any of this be used either way as a wedge issue in the next election? E.g., would Bush's veto of a partial bill help produce a D majority more likely to pass a full bill?

[matttbastard]

rilke: this post by Marti Abernathey explains why a lot of us ('us' as in 'members of the LGBT community) are skeptical of "we'll get back to you later" pledges.

[Jeff]

From the outside, it seems to me that there's a lot of "the enemy of my enemy is my friend" in the LGBT "tribes". Lesbians and gays don't always get along with bi's, and the T can vary from "Transgender" to "Transvetite", which have minimal convergance. And then there's polyamory groups, which tend to support all LGBTs, but I'm not sure if LGBTs are all that welcoming of polys.

I'll have to see what the LA Poly group is doing about this bill.

[rilkefan]

Hmm, I know a few polyamorists, I should ask them where they stand on treatment by the public sphere. If there was a movement calling for plural marriages it might be interesting to see how it fit in here.

Thanks for the link, mb, I'll have to ponder that since my brain is finding the stuff about Frank confusing. BTW was it always "ttt"?

[KCinDC]

I've always thought it meant Matt T. Bastard.

[rilkefan]

I never noticed the third "t", or rather the second one.

[cleek]

i never noticed the first one

[dr]

I realize that this has been mentioned a couple of times, but it bears repeating since so much of this discussion is flowing from a false premise. Even if ENDA passes the House, it's unlikely to pass the Senate. Even if ENDA passes both Houses of Congress, George Bush will not sign the bill.

Because this is so, there is no utilitarian calculus to be done; no choosing of the unattainable perfect at the expense of the achievable good.

The idea behind the denuded ENDA is, very simply, that the House Democrats want to be able to declare a symbolic victory. And the problem with a denuded ENDA is that something very troubling is symbolized by a willingness of Congressional Democrats to abandon a vulnerable constituency merely so that they can issue a press release.

[Sebastian Holsclaw]

"And the problem with a denuded ENDA is that something very troubling is symbolized by a willingness of Congressional Democrats to abandon a vulnerable constituency merely so that they can issue a press release."

This has been my problem with seeing Democrats as 'gay-friendly' for quite a while. [see extra-especially the 'Democrats in charge' history of "Don't Ask, Don't Tell"]. As a group, they are barely willing to rope in our votes for symbolic victories, but almost certainly not actual ones.

(Yes, I'm well aware that Republicans are worse. But so long as I'm not getting gay issue actual changes, I'll vote on other issues. Which coincidentally is exactly the discussion I had with my mother over other issues. Except on those I was saying, if the Republicans consistently won't do what I want, why should continually reward them with my votes just because they their rhetoric on those issues is sorta better than Democrats.)

[Bruce Baugh]

Oh, Rilkefan and others, a question, and I actually don't mean this with any sarcasm at all:

How many examples can you point to of significant legislation passed with recognized omissions that actually did get passed later? We - the intelligensia, broadly defined - talk about it as a methodology all the time, but how often does it happen on matters of controversy, margin pushing, and such?

[matttbastard]

rilke: BTW was it always "ttt"?

Always, ever since 1996, when I started hanging @ a twee-pop chat room called The Cutie Club (which, upon Googling, I see still exists. Wow.)

KC: I've always thought it meant Matt T. Bastard.

The third (or first ;-)) 'T' is silent.

(I'm sure I had a good reason for originally adding it, other than vain, youthful affectation - also used to write 'yr' instead of 'your'. Sigh.)

[rilkefan]

Bruce, I'm embarrassingly unable to give a good answer on gradualism, but, umm, child labor laws? environmental protections? hopefully SCHIP? in the future, single-payer health care? Sadly my side has been on the descendent for most of my politically aware life and the more recent examples that come to mind are gradual erosions of things I like - e.g. piecewise rollbacks of civil rights protections and business regulations.

[Bruce Baugh]

Rilkefan: I'm not trying to playing gotcha here so much as mapping out a change in my own assessment of strategies worth supporting and not. I'm thinking of, for instance, NAFTA and its being piched as something that could be amended later to include more support for those who might be disadvantaged by changes in trade, and of the ADA, which needs some tuning and adjustments it can't in practice get. It seems to me like in the present environment - since at least the early '90s or so - once a major topic has been in some sense addressed in legislation, it won't get revisited for updating.

But I know that my profound depression about the prospects for the republic's political health tilts me toward not-necessarily-reliable judgments. Hence wanting to check this one against others' understanding. The fact that I think of no real precedents in the last 15-20 years for "pass, and expand later" doesn't mean there are none. But on the other hand, if there aren't many or any, and there are prominent examples of such things being promised and then not happening, that strikes me as reason to oppose a weakened ENDA and push for one that's right the first time.

[rilkefan]

But the last 20 years have been in a largely R-ascendent or -controlled environment - you wouldn't expect to have next-year-on-the-hill arguments from our side. The Republicans however can I think point to legislation that they've gotten through stepwise.

[Sebastian Holsclaw]

"NAFTA and its being piched as something that could be amended later to include more support for those who might be disadvantaged by changes in trade, and of the ADA, which needs some tuning and adjustments it can't in practice get."

The ADA is already super-expansive. In my understanding the tuning it in practice can't get might be to rein it back a little from the silly side of having football players suing for their drug use.

And really almost all major legislation has been a few steps at a time. Minimum wage laws? Hiring and firing protections? Divorce restructuring? The multiple Civil Rights Acts.

The ones that haven't have typically come down as edicts from the Supreme Court, not through legislation.

That isn't to say you should give up on any particular step, but the idea that incremental change doesn't work seems odd. By far the rarer cases are sweeping changes done all at once.

[Bruce Baugh]

Sebastian, aren't those all cases where the basic foundations were laid well back when and a practice of tinkering already in place before the time period I'm talking about (last 15 years, give or take)? Maybe not - I continue to note that I'm aware of being impaired - but it seems like it to me. It's easy enough to keep doing something that has been done before. (Not always, as witness the real major change of expectations the Republicans have produced with the threat of filibuster, but in general.) Bringing up a new subject and then treating it like existing ones seems harder to me.

[Bruce Baugh]

Rilkefan: I'm really not as convinced as I was a year or two ago that there will be a Democratic-dominated Congress and Presidency, given how thoroughly they're managing to distance themselves from the wishes of both Democratic and potentially Democratic voters. If there is a Democratic gain, I'm even less convinced that it can be counted upon to mean much good when it comes to dealing with any issue I see as important to the republic. I'm not aware of any particular reason to believe that the party's leadership will suddenly become competent at responding to Republican obstruction or interested in responding to party stalwarts and/or the general public. What we've got in Congress is about what we're going to get, for the time being.

[G'Kar]

Great discussion, and very informative for those of us who really have very little clue about all this. Just a final thought: my comments were, at least in part, written predicated on the thought that, to put myself in the place of a transgendered person, it would be impossible for me to ask anyone to give up their own shot at getting included in antidiscrimination laws simply because they didn't want me to be left out. The fact gays and lesbians are willing to do so regardless is a testament to their great quality; but I'll wager that there are a number of transgendered persons who are very torn on this issue because they don't want to see their friends lose something so important simply because they refuse to leave their transgendered friends behind. It's difficult to imagine the complex feelings someone in that position might have.

[rilkefan]

Well, I think the Democrats are going to make significant progress in the Senate and do well in the House, and take the WH, and I expect that to make a clear difference in multiple reinforcing ways, so we've got pretty divergent starting points.

[GB]

I don't mean to drag the discussion away from the main topic here, but Sebastian Holsclaw could not be more wrong about the ADA. The ADA is emphatically not expensive for employers -- though it certainly is to employees with disabilities -- because employers almost never lose. I commend to your attention a fairly old but still persuasive article -- persuasive because since its publication the Sup Ct has developed even more stringent standards for ADA plaintiffs. See Ruth Colker, The Americans with Disabilities Act: A Windfall
for Defendants, 34 HARV. C.R.-C.L.L. REV. 99, 160 (1999).

[Bruce Baugh]

Rilkefan: Yeah, I knew we disagreed on the prospects. :) I'm looking here at the available evidence, on which (I think) we're both trying to base some judgments. When does incremental revision work for legislation on controversial matters, and when not? Both as a general thing, and with reference to the specific people in key positions at the moment, and likely to be influential in the next administration, whether as majority or minority leaders. I'm pessimistic but not (I hope) unpersuadable. It's just that I'm feeling let down enough by my last round of high hopes that I want to not get another up until I feel the foundation is sure. Hence the basic question, about whether this stuff now works.

[rilkefan]

Perhaps rather more important than the changes in the partisan composition of the govt or the utility of gradualism (treated outside that context or the context of societal trends) are the ongoing changes in society's views of LGBTs.

[Jesurgislac]

G'Kar: but I'll wager that there are a number of transgendered persons who are very torn on this issue because they don't want to see their friends lose something so important simply because they refuse to leave their transgendered friends behind.

On employment discrimination: in general (except in academia, and in the military, for different reasons) trans people need protection against being fired for their gender identity at only one point in their lives - though a "point" that may last for years. And of course many trans people are also LGB, either before or after transition, or both. During that "point", it's impossible (well, very difficult) for a trans person to "pass" - but after and before that "point", a trans person who is heterosexual has about as good a chance of "passing" as anyone else.

Whereas it's much easier for an LGB person to "pass" (you simply never talk about your social life at work, nor ever refer to the person you live with, if any) - but, to work, if you work at a homophobic employer, that "pass" has to be kept up your entire life. If work colleagues ever visit your home, your partner must either leave or pretend to be the lodger.

But for LGB people who cannot "pass", or for T people during the transition, the problems are identical, and indeed often overlap. To allow employers a free hand to discriminate against trans people will allow them a fairly free hand to discriminate against LGB people - a convenient loophole for those inclined to look for one.

If an employer wants to get rid of you, they will, and in fact the commonest method of an employer with a member of staff whom they don't want around the office, is to bully them into resigning - one man I talked to found rat poison in his lunch box, his car vandalized, as well as the more usual name-calling and petty harassment. When an employee has been bullied into resigning, and brings the employer to court on charges of harassment, the employer can escape if they can convincingly assert that their employee was being harassed into resigning on legal grounds - for example, "We thought he was transgender", not "We thought he was gay". A law intended to protect with a large loophole left in it to ensure that those most in need of protection are still vulnerable, is in some ways worse than no law at all.

Sebastian: This has been my problem with seeing Democrats as 'gay-friendly' for quite a while.

Oh, I agree. With Democrats and Republicans, as parties, it's fairly evident that one party is not exactly LGBT-friendly, though individual members are, while the other party is homophobic as a matter of policy. As a national level, the options for LGBT people are to support a party that wants them permanently second-class citizens and actively campaigns to make you so, or to support a party which, well, isn't as bad as the other one, and does include federal representatives who are able to say that they believe LGBT people ought to be equal citizens. There is hope for improvement in the Democratic party: the Republican party just wants you locked in the closet forever and grateful not to be dead.

[G'Kar]

Jes,

Thank you. I rather thought that the notion that it was easier for GLB persons to 'pass' was dependent on them living a lie, something nobody should be forced into doing.

Having, admittedly, zero experience with this as a practical matter, it seems to me that the entire LGBT community deserves to be able to do their job without having to worry that they will be fired because of who they are.

Which still raises the tough question, how can I then justify not passing the lesser bill when it will at least protect some people...this is a hard question.

[Phil]

matttbastard: Always, ever since 1996, when I started hanging @ a twee-pop chat room called The Cutie Club

Small World After All Alert: Not only was I a regular denizen there for some time as well, I was the bass player for The Palindromes, who released two CDs on the Twee Kitten label.

[cleek]

Well, I think the Democrats are going to make significant progress in the Senate and do well in the House, and take the WH,

hate to burst your bubble, but Rudy say otherwise, emphatically.

[CharleyCarp]

Rilkefan's got it right a 3:30 am: parties don't lead, they follow. It was ever thus, and while unicorn herders among us might wish it different, this is what parties are in our society, and how they act.

That said, there is a role for politicians to play in helping things move along. I think a bill that's passed and gets vetoed* nonetheless marks ground, just as I think that a bill (or amendment) that gets introduced and defeated marks ground.

It's my uninformed, unscientific position that the public at large has moved vastly forward on the issue of discrimination against G&L people, a movement that could not have been imagined in, say, 1994. I don't see the same movement on the T side, perhaps simply because we haven't seen the kinf of overt anti-T bigotry, on the social level. (Not to say that T folks aren't discriminated against every day, but I'm not seeing base-rallying anti-T initiatives on various ballots around the country).

I'd like to think that the social progress on the G&L side is irreversible, and so there's no downside to waiting to amend Title VII until we can get a social consensus for T as well, but I'm not sure I'm willing to bet on it. And anyway, if the President vetoes G&L protection, he can't point to T -- which has much less of a social tailwind at this point -- as a reason.

I'd be happy to be proven wrong, but I'm not seeing a T bill passed in the next Congress, even with a Dem in the WH, and small additions in both houses. I am seeing G&L. I understand about solidarity, and wouldn't ask organizations to affirmatively endorse compromise. On the other hand, a passed and signed bill gives real individuals real recourse against real discrimination. I'm not willing to give that up, while we wait for society to get around to feeling that the T community ought also be protected.

[CharleyCarp]

Oh, forgot the footnote.

* I wouldn't say that a veto is a foregone conclusion. It depends on facts not yet established. But, IMO, passing the bill with the broader social acceptance and drawing a veto is better than passing no bill, or barely passing the bill that a significant number of people think is a good idea but goes too far and drawing a veto. Better both in terms of the politics, and in terms of moving social consensus forward.

[Ugh]

OT but still somewhat related - The IRS is currently arguing that gender reassignment surgery is not a deuctible medical expense.

[Populuxe]

I have nothing to add to what Edward, Jes, and Matttbastard have already written except to point out to people who don't know that trans people were on the front lines of the fight for queer rights first. Abandoning them now is like pissing on Sylvia Rivera's grave.

[OCSteve]

Very interesting discussion and I have nothing meaningful to add to it. I’ll just repeat that I’ve obviously lived a very sheltered life. ;)

To the credit of those commenting here, you’ve convinced me to support the full bill. That’s no small accomplishment given that I am by nature reflexively against legislating any new protected classes of any kind.

I’ll drop my buddy Gilchrest a note. I’m not sure where he stands on this but he did support overturning DADT (cosponsored the Military Readiness Enhancement Act) and he voted against the Federal Marriage Amendment so I suspect you’ll have his support.

[Edward_]

Because the fact that it is now politically expedient to leave transgendered people behind should be a source of shame to all of us.

Thanks for this post, Hilzoy. You're a mensch and then some!

[Dantheman]

"Hilzoy. You're a mensch and then some!"

I am so not going there, in light of the topic.

I agree with OCSteve, that this was an interesting discussion which I have little to add.

[Edward_]

"Mensch" is gender neutral, no?

No pun intended if that's not the case. :-)

[Dantheman]

Edward_,

""Mensch" is gender neutral, no?"

Not typically in my experience.

[Edward_]

ahh...I guess my gender-ambivalence has led me astray. Is "Miss Thing" gender specific too?

[Jesurgislac]

Is "Miss Thing" gender specific too?

Hee! :-D

[rea]

To the credit of those commenting here, you’ve convinced me to support the full bill. That’s no small accomplishment given that I am by nature reflexively against legislating any new protected classes of any kind.

Well, you're a good man, and your heart's in the right place, but . . .

It's not a matter of making new protected classes--it's a matter of according GLBTs the same rights as everyone else.