Should gays wait for civil rights until transgendered people can
be included? That's the question in the recent controversy over the
Employment Non-Discrimination Act (ENDA). The answer depends on how
much weight one gives the concept of a single "GLBT community"
against the practical need to make incremental progress in civil
rights.
Rep. Barney Frank (D-MA) and leaders in the House of
Representatives maintain that ENDA will pass if it is limited to
protecting gay people from employment discrimination. But, they
say, it cannot pass if it also includes protection for "gender
identity," a term that refers in part to the transgendered. Frank
and House leaders might be wrong about this, or they might be too
cautious, but nobody has yet offered a more reliable vote count.
What I have to say here assumes the correctness of their political
calculation.
Passage of ENDA is possible only because gay people have
organized politically to educate Americans about homosexuality and
to elect sympathetic representatives. When similar federal
legislation was first proposed in 1974, it was an exotic cause.
After more than three decades of hard work, the votes are finally
there.
There has been no comparable effort - in terms of duration,
intensity, or effectiveness - to educate or to organize for trans
rights. This is partly because the idea is relatively new for most
people. ENDA itself did not include "gender identity" until very
recently. Trans protections have passed in a few (mostly) liberal
states, but we don't have a liberal congressional majority.
Nevertheless, lots of activists and organizations are vowing to
work to defeat ENDA unless it includes gender identity. They
believe gay people should wait until "everybody" in the "GLBT
community" is included.
On principle, they argue that all GLBTs transgress traditional
ideas about men and women. Gays do so by being attracted to the
same sex; the transgendered, by acting and appearing as the
opposite sex. Gays and transgendered people also have the same
enemies: those who believe in traditional and strict gender roles.
It thus makes no more sense to pass ENDA without trans protection
than it would be to pass ENDA without lesbian protection.
But this view is too simplistic. The differences between gays
and the transgendered, in terms of daily living, are profound. Gays
do not reject the sex into which they are born. They also don't
necessarily reject many traditional gender expectations. It's true
that there is some rejection of gender norms in both groups, but
there are huge differences of degree. So saying that gays and
transgenders have "gender nonconformity" in common is like saying
Miami and Minneapolis have winter in common.
Yes, there are some common enemies. But unfortunately even many
gay-friendly people still find the idea of, say, a male-to-female
transsexual very unnerving. That's slowly changing.
As a matter of principle, then, it makes sense to deal with
trans legal rights separately from gay rights far more than it
would make sense to deal with the rights of gay men separately from
the rights of lesbians. The idea of an indivisible "GLBT community"
is thus more a philosophical aspiration than a practical
reality.
That brings us to pragmatic considerations. The relevant choice,
if Barney Frank is right about the temperature of Congress on this
issue, is not between a limited ENDA and a comprehensive ENDA. It's
a choice between a limited ENDA and no ENDA. It's hard to see how
it serves any principle at all if it can't be enacted.
In other words, ENDA doesn't "include" anybody if it
can't pass. Nobody knows how long it might take to educate Congress
about trans issues. In the meantime, in 31 states there will be no
job protection for gay people. After working so hard for this
moment, shall we make them wait another year? Five years?
Forever?
Just how much are activists' uncompromising principles worth in
terms of the lives of gay Americans in 31 states?
Some observers have noted that even if a gay-only ENDA overcomes
a filibuster in the Senate, President Bush might veto it. That's
certainly possible and maybe probable, but a trans-inclusive ENDA
would make both Senate passage and presidential approval less
likely. Even if Bush vetoed ENDA, simply winning in the House would
be a historic victory. It would build political momentum for more
advances later, including eventual coverage for gender
identity.
Progress in civil rights has never been an all-or-nothing
proposition. If it were, we'd still be waiting to pass the Civil
Rights Act of 1964, which protected blacks from job discrimination,
but left out the aged and disabled people. When the law was
expanded in 1991, but still excluded sexual orientation, gay people
didn't picket the NAACP.
Even an "inclusive" ENDA won't include lots of groups subject to
systematic discrimination, like homely, short, or overweight
people. Other nonconformists often thought part of the GLBT
community, like leather fetishists and sadomasochists, won't be
protected. Why shouldn't we wait for them too?
Ironically, many of the activists demanding trans inclusion live
in states where an incremental approach to gay and trans rights is
well understood. California adopted gay civil rights laws long
before trans protections. One of the groups opposed to a gay-only
ENDA is the Empire State Pride Agenda, the New York gay-rights
group, which just four years ago lobbied successfully for a
gay-only state antidiscrimination law because a trans-inclusive one
couldn't pass.
The opposition to ENDA is coming mostly from a cadre of
articulate, politically aware, and protected gay activists living
in cocoons on the coasts and in large cities. They are imposing
gender and queer theory on the lives of millions of gay Americans
throughout the South, Midwest, and West. They charge that a
gay-only ENDA manifests a selfish willingness to throw transgenders
out of the boat.
Instead, the all-or-nothing ENDA manifests a self-satisfied
willingness to sell the fly-over gays down the river. Hearts pure
and integrity intact, elite activists who already have their rights
will defend their high-minded principles right down to the last gay
Alabaman.