Of the many arguments against the Employment Non-Discrimination Act (ENDA) - the version that doesn't protect "gender identity" - the most puzzling and counterintuitive one is that it doesn't even protect gay people. This appeal to gays' self-interest is unpersuasive. Not only does a gay-only ENDA protect gays, it offers limited protection to transgendered people as well.
Congressional vote-counters have argued that ENDA cannot pass Congress this session if it includes protection for both "sexual orientation" and "gender identity." Thus, in an effort to pass the first-ever federal gay civil rights bill, they restored ENDA to the sexual-orientation-only version that characterized gay civil rights bills pending in Congress for more than 30 years until last April, when "gender identity" was first inserted in the bill.
The restored version of ENDA prohibits employers from discriminating against employees on the basis of "actual or perceived sexual orientation," which is defined to include homosexuality, heterosexuality, or bisexuality.
In 31 states, covering about half of all gay Americans, there is currently no such job protection. Most of these states, in the South, Midwest, and West, are unlikely to protect gay employees anytime soon. Nobody knows how long it might take to persuade Congress to protect gender identity, so insisting on its inclusion means that about five million gay Americans will have to wait indefinitely for some job security.
In an effort to defeat ENDA, a number of gay legal advocacy groups, most notably Lambda Legal, have argued that a gay-only ENDA doesn't adequately protect homosexuals. Gays, they say, need the supplemental protection provided by adding gender identity.
Lambda explains this by noting that gay people often face discrimination because of their gender nonconformity. Effeminate gay men face discrimination because they are feminine in appearance or manner. Butch lesbians similarly face discrimination because they are masculine.
Unless protection for gender nonconformity is included in ENDA, Lambda asserts, effeminate gay men and butch lesbians would not be adequately protected. For example, an employer could argue that it fired the butch lesbian because she's butch, not because she's lesbian.
This argument is flawed as a matter of experience, logic, and law.
As a matter of common experience, discrimination based on gender nonconformity and sexual orientation almost always go together. It would be rare to see an employer fire a man for being effeminate without also seeing evidence of anti-gay discrimination. Common statements like, "that fag walks like a girl," indicate that these two forms of discrimination significantly overlap.
As a matter of logic, if there is evidence of both forms of discrimination, then even if ENDA doesn't include gender identity the evidence of sexual-orientation discrimination alone will sustain the employee's lawsuit.
Lambda and other opponents of ENDA have been challenged to come up with cases in which a law covering only sexual orientation was used successfully by an employer to defeat a gay employee's legal claims because the law did not include gender identity as well.
We have three decades of experience with sexual-orientation-only laws. If such laws were inadequate on the grounds Lambda claims, there should be many cases demonstrating this fact. So far, the gay and trans opponents of ENDA have come up with nothing.
Thus, as a matter of experience and logic, the employer who loves gays but hates gender nonconformists is a legal Unicorn: you can imagine it, you can describe it, and nobody can absolutely prove it doesn't exist. But nobody has actually seen one.
The legal argument against ENDA is even worse. Gender nonconformity is already protected under existing federal law because it is considered a form of sex discrimination. Thus, the macho woman and the effeminate man already have legal claims if fired for their gender nonconformity.
ENDA closes a loophole under which gay men and lesbians have been forbidden by some courts to make these gender-nonconformity claims because of their sexual orientation. And it adds protection for masculine gay men and feminine lesbians who so far have no protection under federal law.
Further, even a gay-only ENDA offers some limited protection to transgendered people. Because it prohibits discrimination based on actual "or perceived" sexual orientation ENDA protects the cross-dresser or transsexual whose gender nonconformity leads her employer to "perceive" that she's homosexual and then fires her for her perceived homosexuality. It doesn't protect transsexuals from discrimination based on their transsexuality, as adding "gender identity" to the bill would, but it moves in that direction.
Lambda and the other groups spending gay donors' money to fight ENDA acknowledge that their main reason for doing so is that, as a matter of principle, they believe gay civil-rights bills must explicitly protect transgendered people as well. They don't care how long five million gays are made to wait for this idea to be accepted by Congress.
I think this principle overstates the relationship between sexual orientation and gender identity. It is also oblivious to the history of incremental progress in civil rights. However, it's at least a coherent and consistent principle to stand on.
But ENDA's gay and trans opponents should stop trying to claim that laws protecting gay people from discrimination don't really protect gay people from discrimination. That's a makeweight argument. ENDA, if enacted, will be a historic victory for the basic civil rights of gay Americans and will presage broader protection in the future.