IGF CultureWatch

Rep. Barney Frank's voice cracked with rare emotion. He was the final speaker in the House floor debate on H.R. 3685, the Employment Non-Discrimination Act of 2007. He was speaking against a Republican motion to recommit, which would have killed the bill.

"I used to be someone subject to [anti-gay] prejudice, and, through luck, circumstance, I got to be a big shot.... But I feel an obligation to 15-year-olds dreading to go to school because of the torments, to people afraid that they will lose their job in a gas station if someone finds out who they love. I feel an obligation to use the status I have been lucky enough to get to help them.... Yes, this is personal. There are people who are your fellow citizens being discriminated against. We have a simple bill that says you can go to work and be judged on how you work and not be penalized. Please don't turn your back on them."

Thank God for C-SPAN, because it showed something that the Congressional Record does not: the cheers that erupted when Barney finished. This was not a rally on the steps of the Capitol. This was the United States in Congress Assembled, as the historical documents say. It showed that the American commitment to equality is gradually winning out over hate.

Earlier in the debate, Rep. John Lewis (D-Georgia), a civil-rights-era veteran of the Freedom Rides and Selma, put his personal authority behind the bill: "Madam Chairman, I for one fought too long and too hard to end discrimination based on race and color not to stand up against discrimination against our gay and lesbian brothers and sisters.... Today, we must take this important step after more than 30 long years and pass the Employment Non-Discrimination Act. It is the right thing to do. It is the moral thing to do."

Rep. Keith Ellison (D-Minn.) said, "I am proud to be an American today because when this ENDA bill passes, what we will be doing is affirming traditional values, traditional values like tolerance, traditional values like minding your own business, traditional values like allowing fellow Americans to rise to the full measure of their ability...."

After the bill passed by a vote of 235 to 184, some people on "our side" inevitably rained on the parade. The National Gay and Lesbian Task Force, a leading group in the United ENDA coalition, brazenly called H.R. 3685 "a bill not supported by most in the LGBT community," as if that community (which is a convenient fiction in the first place) consisted entirely of a few hundred executive directors.

The Human Rights Campaign, which had the sense not to ask representatives to vote against a gay rights bill, was slammed by the left for doing its best to navigate an impossible situation. HRC's every tactical adjustment was treated as treachery by zealots who regard any change of mind as evidence of a lie.

The leftists' repeated insistence that House passage is worthless because the bill has little chance of becoming law this term ignores the entire legislative process, as if all that mattered were the end result. But passage into law would never happen without arduous intermediate efforts. Refusing to take Congress' yes for an answer because it is insufficiently comprehensive would do nothing but relegate LGBT advocates to the sidelines.

The ENDA that passed on November 7 is a good bill. I am sorry that we lacked the votes to make it better; but passage of this bill, even if only in the House, is a step forward that improves the chances for further victories including eventual transgender coverage. The all-or-nothing approach, by contrast, is as empowering as not feeding any hungry people because one cannot feed all hungry people.

Bismarck said, "Laws are like sausages; it is better not to see them being made." That is life in an imperfect world. Opposing gay protections until we can win transgender protections is not collaboration but hostage-taking. The more the radicals attack incrementalists, the more they undermine the very idea of an LGBT movement. Killing the bill would merely have highlighted the left's proclivity for building losing coalitions. As it was, only seven House members voted against the bill for being insufficiently inclusive; all were from east coast states that already enjoy ENDA-type protections.

The endlessly repeated rhetoric about "throwing trannies under the bus" is not only unfair, it is particularly tasteless as we approach the Transgender Day of Remembrance commemorating victims of actual, savage, murderous attacks. To associate an honest disagreement over strategy with anti-trans violence is obscene.

Few of the self-righteous leftists will face up to the harm they are doing with their dogmatism; but the rest of us can limit the damage by refusing to pander to them. Working for the best bill we can achieve, while continuing to work toward a more comprehensive one, is not betrayal but the very definition of legislative effectiveness.

The House's passage of H.R. 3685 is an historic victory, albeit not the final victory. Those who refuse to celebrate it were never tossed from any train, but deliberately left the train and tried to derail it. The fact that they failed shows the unpopularity of their approach even among liberals. The African American civil rights movement was also plagued by disunity, but persevered. As our predecessors did before us, we shall overcome.

Opponents of marriage equality for gays often claim that the people most vulnerable in this debate are the children. They're right.

No, it's not because gays are snatching children out of good heterosexual homes and subjecting them to the "untested social experiment" of same-sex parenting, which "deprives" them of a mother or father. I've observed enough actual lesbian or gay parents to know how vacuous and insulting a description this is.

It's because in every walk of life, in every religious denomination, in every political party, and in every part of the country (and the world), some children grow up gay or lesbian. These kids deserve the hope of marriage, just like every other citizen.

And these kids are the main reason I continue to travel the country, debating same-sex marriage with Glenn Stanton of Focus on the Family, a man some readers-who think they know him much better than I do, despite the fact that they've never met him-have variously labeled a "bigot," a "hater," and an "idiot" (and those are the nicer letters I receive).

Me, they call na�ve, an "Uncle Tom," and a "self-loathing homophobe" for my "complicity" with "the enemy."

I understand their anger and frustration. I understand the desire to tell one's opponents to go f*ck themselves. I've gotten close to it myself, some days.

And yet, some days, I want to tell the same thing to my letter-writers. Mainly, because of what they do to the children.

You see, even if you don't give a damn about Glenn Stanton, Focus on the Family, or any other arm of the religious right, please remember: these people have children, and some of those children grow up to be gay or lesbian.

You are not helping such children by telling their parents to screw themselves every time they raise an objection to homosexuality, no matter how sincere the objection.

Sure, it feels good to vent. Sure, it's satisfying to mount a moral high horse and shout, "I'm right and you're wrong!!!" But how much does it usually accomplish?

I'm not suggesting that we be timid in pursuing our goals. I'm not denying that anger has its place. And I'm certainly not saying that we should pretend that our opponents' arguments are reasonable when they're not. Anyone who knows my work knows that I don't pull punches in the face of fallacies.

I am saying that everyone ought to shut up and listen every once in a while. When we do, we learn that (surprise!) our opponents love their kids, too. Their opposition to homosexuality is partly motivated by that love, no matter how misguided it might otherwise be.

That doesn't make their position "okay," but it does make it more comprehensible, and ultimately a bit more tractable.

Recently in this column I've lamented the fact that my opponents are either not showing up or not speaking up at my public forums. I'm not sure how to fix this problem-or even if it can be fixed-but I continue to regret it, since it robs us all of the opportunity for dialogue. Their absence or silence does not mean their acceptance. (You may not give a damn about their acceptance, but their kids do.)

My critics might worry that I've proven too much here. After all, white supremacists have kids, too. So do the Phelpses. Would I engage in dialogue with them?

It's a good question. A few thoughts:

First, anyone who can honestly look at the current political and social landscape and think we're at the same place in fighting homophobia as we are in fighting white supremacy (or the Phelpses) needs to get a reality check. I wish our opponents' errors were obvious to virtually everyone, but apparently, they're not. Just check the polls.

Second, I have never observed a productive dialogue with a white supremacist or the Phelpses. Maybe more talented and patient people than I could achieve one. By contrast, I have both observed and engaged in productive dialogues on same-sex marriage-dialogues that move audience members, some of whom write to me. (Many of those audience members are students, who appreciate the fact that I challenge their parents without demonizing them.)

But to tackle the question directly: yes, white supremacists and the Phelpses have kids, too. And if I thought that I could save just one of those kids by patiently engaging his or her parents, I would. You may call me whatever names you'd like.

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.