ENDA

In August of 2009, my attorneys and the media relations team at Lambda Legal came to me with an opportunity. There were going to be Congressional committee hearings on the Employment NonDiscrimination Act (ENDA) the next month, and advocates for the bill were looking for an LGBT person who had suffered workplace discrimination to come give testimony. They wanted to know if I was willing to be that person.

ENDA would, if passed, outlaw employment discrimination based on sexual orientation and gender identity, just as the ADA and the Civil Rights Act outlawed discrimination based on race, religion, and disabilities. The most recent previous time ENDA had been before the house was in 2007, and a rather shameful course was charted for it then.

The original 2007 draft had included protections based on gender identity as well as sexual orientation, but there has always been a perception that gender identity protections are a tougher sell to businesses than sexual orientation, for various reasons but mainly because of restroom use. So before that version of ENDA came up for a vote, the trans protections were stripped out. This was called incrementalism, as in, “let’s get a toehold with a lesbian-gay only version of ENDA now, and we’ll bring the trans people along later.” Human Rights Campaign (HRC) and Representative Barney Frank both endorsed that version of ENDA, which passed the House, never made it to the floor of the Senate, and would have been vetoed by President Bush if it had ever shown up on his desk.

Incidentally, here’s an object lesson in whether incrementalism is a good idea. New York passed a state-level version of ENDA called SONDA. As at the federal level in 2007, trans protections were removed in order to get the bill passed. Transgender New Yorkers were assured the law would be extended to include them in short order. Ten years later, they’re still waiting.

HRC had, before the language change, claimed it would not support language that did not include trans people, and was widely seen as having sold us out when it did anyway, forming a rift that has yet to heal. Maybe consciousness of this recent history was in the minds of the people choosing the panel in 2009.

Anyway, I told Lambda Legal I would be proud to testify before the House Education and Labor Committee, and the vetting process began.

Mara Keisling of the National Center for Transgender Equality called me and conducted a lengthy interview. A good candidate for this witness would be someone who lost his or her job because of their LGBT status, and not for any other reason. Better still would be a trans person, because arguably we are the category most in need of a law like ENDA. The witness needed to be articulate, and of course it’s always good to have a military veteran when you can. And someone from a red state would be good, because it seemed unlikely a state-level version of ENDA would ever be passed in a red state.

A mark against me, ironically, was that my case was going so well. By the fall of 2009 the district court judge, Richard Story, had turned down the defendants’ motion to dismiss our case, in a 22-page ruling that hinted strongly that he was going to see things our way when the time came to issue his ruling. If it seemed likely we were going to win, it might take some of the urgency from the situation. An even better candidate would be someone who’d been fired and had no legal recourse whatsoever.

I was not privy to the process, but those involved must have decided I was a good fit, because the committee chose me to speak about my experiences. I flew up on a Monday in September 2009 with my then-attorney, Cole Thaler, and my best friend David Deriso. I spent all that afternoon prepping with folks from NCTE and the GLAAD Task Force. The next morning was the hearing. You can see my testimony here:

I was one of a panel of about seven. The other speakers included Barney Frank, Tammy Baldwin, a man from the EEOC, and other people with information or an opinion on the matter, including this asshole. After you watch my testimony, go to the right rail on YouTube and you can find everyone else’s.

I’m told I was the first transgender person ever to address a Congressional committee. I have no way to verify that, but also no reason to doubt it.

The Congressmen and Congresswomen at the hearing were warm and friendly, and were shocked and moved by my story. Every one of them was a Democrat; not one Republican on the committee bothered to show up.

But what did that matter? The Democrats were behind ENDA, and they held a broad majority in the House and Senate, and President Obama had promised to sign ENDA when it reached his desk. The committee’s chairman, George Miller of California, seemed especially determined. I left the room that day full of hope. ENDA would be passed by the House, would move on to the Senate, and by the end of 2009 it would be the law across the nation. No one else would ever have to endure what I had been through.

Nothing ever happened. The bill was never reported out of committee, never taken up by the Senate that year, and when quizzed on the issue, Congresspeople never offered up a good or even plausible reason. It had never been a better climate in which to pass ENDA, and Congress couldn’t do it.

ENDA is back in the news now; last year the Senate has finally had its own hearings, and a transman named Kylar Broadus spoke He is the first transperson to speak before the Senate; he and I should get a beer together someday.

The Senate counterpart to the House Education and Labor Committee did vote for ENDA, sending it to the full Senate, but even if it passes there, the Republican-controlled House is not going to do anything with it. Even if the polling is in favor of ENDA (and it is, by a wide margin of liberals and conservatives), the Republicans will not be willing to anger their Religious Right base, which hates equality.

I’ve since come to believe the path to full equality will not come from the legislative branches. ENDA has not passed, but in the time since I testified, my case, Glenn v. Brumby, has won twice: in federal district court, and again in the Eleventh Circuit Court. Building on our win, Macy v. Holder had a favorable outcome. O’Donnabhain v. Commissioner went the right way. Proposition 8 was struck down at the district, circuit, and Supreme Court tiers, and half of DOMA is now gone (the anti-Full Faith And Credit part still remains to be dealt with). Say what you will about “activist courts,” they’re getting the job done when it comes to our community. They’re where I look for the good news.


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