IGF CultureWatch

On November 7, the House of Representatives passed the Employment Non-Discrimination Act (ENDA). The vote was 235-184, with 35 Republicans in favor and 25 Democrats against. It's the first time either house of Congress has ever passed a gay civil-rights bill. There are many people to thank for this accomplishment.

Some Senate Republicans are predicting ENDA has a good chance of passing early in the new year, assuming it's not expanded. The bill would then go to President Bush, whose spokesperson told the New York Times that the White House will examine changes made to the bill before a final decision is made about whether to sign it.

Only seven Democrats voted "no" because the bill did not include "gender identity," a provision that would have protected transsexuals and cross-dressers from employment discrimination. Six of those seven came from the New York City area. The vote thus exposed the political irrelevance of the United ENDA coalition of activist groups that tried to defeat the bill. They don't represent most gay people and don't have any sway in Congress.

The 35 Republicans supporting ENDA -- almost 20 percent of the Republican caucus -- more than made up for the Democratic defections and were critical to House passage. These Republicans mostly came from districts outside the traditionally conservative South.

However it comes out this session, the fact that the bill has passed even a single house of Congress is a sign of tremendous political progress for gay Americans. ENDA is the product of decades of work by gay advocates whose efforts once seemed quixotic. In 1974, Bella Abzug's original gay civil rights bill had only four co-sponsors and was completely ignored. Painfully slow political progress was then made in each session of Congress.

Now a strong majority of the House is on record in an actual recorded vote supporting the bill. This record can be used to reinforce their resolve should ENDA need to be reintroduced after the next election in 2009. The vote creates political momentum for eventual enactment.

Little noticed in the run-up to the House vote was the Labor Committee report that accompanied the bill. The report was prepared by attorneys who work for the committee.

In the committee report, there are a couple of passages relevant to the recent controversy over adding gender identity to the bill. The report notes that ENDA forbids discrimination based on "actual or perceived sexual orientation." Thus, says the report, "ENDA creates a cause of action for any individual - whether actually homosexual or heterosexual - who is discriminated against because that individual is 'perceived' as homosexual due to the fact that the individual does not conform to the sex or gender stereotypes associated with the individual's sex."

This interpretation of ENDA offers some protection to those employees -- including transgendered people -- whose gender nonconformity leads others to assume they're gay or lesbian and then suffer discrimination on that basis.

Additionally, the report puts to rest any fears that stripping gender identity from the bill would lead federal courts to conclude that Congress meant to reverse or weaken the protection already given to effeminate men and masculine women under Price Waterhouse v. Hopkins, a 1989 case in which the Supreme Court held that sex stereotyping violates federal law.

The report concludes that Section 15 of ENDA "[p]reserves provisions in other Federal, state, or local laws that currently provide protection from discrimination. For example, Congress does not intend to overrule, displace, or in any other way affect any U.S. Supreme Court or other federal court opinion that has interpreted Title VII in such a way that protects individuals who are discriminated against because they do not conform to sex or gender stereotypes."

This sort of legislative report does not dispose of controversies over the meaning of legislation. But it does offer a reasonable and persuasive interpretation of the bill that will likely play a role in future litigation. The committee legal counsel who worked on this report anticipated many of the objections to ENDA from President Bush's advisors and from transgender and gay activists. They did an extraordinary job walking the fine line between an interpretation of ENDA that is unduly crabbed and one that is objectionably expansive.

Lots of other people deserve credit for passing ENDA, including gay activists (many long dead) and their heterosexual allies, law professors, lawyers, members of Congress and their staffs, and bloggers and commentators who refused to be cowed by the falsehood that "the community" opposed the bill. But one person in recent history, more than anyone else, is responsible for this historic and precedent-setting vote.

That person is Barney Frank. I disagree with Frank about many things. But without his work over the years, without his determination, without his eloquence and parliamentary skill, without his willingness to stand up to critics on his left and his right, and without his pragmatic understanding of the nature of incremental progress in civil rights, there would be no ENDA in any form. Period.

Thanks to Barney Frank we have taken one huge step closer to the day when all gay Americans -- especially the millions of them in the South, Midwest, and Mountain West who currently have no employment protection -- can live their lives without the debilitating fear and devastating consequences of losing their jobs because of whom they love.

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.