Will Trans Folk Become an ENDA Bargaining Chip?

Now that the Employment Non-Discrimination Act has passed the U.S. Senate, it's up to the Republican-controlled House of Representatives to get the long-languishing legislation to President Obama's desk intact.

BY Sunnivie Brydum

November 08 2013 7:00 AM ET

When the U.S. Senate passed the Employment Non-Discrimination Act Thursday, the chamber made history. Not only because of the sweeping bipartisan support for the legislation — the final tally was 64-32, with 10 Republican senators casting "aye" votes — but also because for the first time in U.S. history, the Senate approved a bill that protected transgender Americans from discrimination in the workplace.

The last time the Senate debated ENDA was back in 1996, when the bill narrowly failed. That same month, the Senate approved the now-defunct Defense of Marriage Act.

And in 2007, when Democrats controlled the House but not the Senate or the White House, out legislator Barney Frank ignited a firestorm when he announced that he was removing gender identity protections from that year's version of ENDA, because he didn't think the bill could pass while including these provisions. Frank suggested proposing a second bill that would outlaw discrimination on the basis of gender identity.

In early October of that year, leaders from 282 national, state, and local equality groups signed on to a letter drafted by the National Gay and Lesbian Task Force demanding that Congress reject any version of ENDA that did not explicitly protect transgender Americans.

"We ask and hope that in this moment of truth, you will stand for the courage real leadership sometimes demands," reads the letter, addressed to then-speaker Nancy Pelosi and the entire House. "The correct course in this case and on this legislation is strikingly clear. We oppose legislation that leaves part of our community without protections and basic security that the rest of us are provided." [Emphasis original.]

Notably absent from that list of signatories was the Human Rights Campaign, which proudly proclaims itself the nation's largest LGBT advocacy organization. After fierce backlash from activists across the ideological spectrum, HRC signed on to a letter asking the chairman of the House Committee on Education and Labor to cancel the trans-exclusive bill's scheduled markup, calling Frank's two-bill strategy a "mistake." But on October 18, the committee passed an ENDA that would have outlawed discrimination based on sexual orientation only.

That same day, then-Rep. Tammy Baldwin introduced an amendment to restore the bill's gender identity protections, but she was ultimately forced to withdraw the amendment without a vote.

On November 7, 2007, Frank, the bill's chief sponsor, addressed his colleagues in the House.

"I am struck by the eagerness of some people, frankly, to use that group as a weapon with which to defeat the whole bill," said the Massachusetts Democrat. "If we do not have the votes to go forward with as much as we would like to do, do we then abandon any effort? And do we allow those who are opposed to any progress at all in the antidiscrimination fight, in this area, to use a particular group as a way to prevent progress? I hope we will go forward today and do as much as we can."

That day, the House passed a noninclusive ENDA 235-184. But with no scheduled date to consider the legislation in the Senate, the bill was rendered effectively dead. 

But this year everything's different. Longtime activists and lobbyists contend that the fervent backlash regarding a trans-exclusive ENDA taught the lobbying groups of Gay Inc. a lesson. When asked what would stop this year's legislation from suffering a similar dissection, Mara Keisling, executive director of the National Center for Transgender Equality, chuckles.

"Well, one thing that happened is 2007," she says. "I think people saw how much it meant. … I think there were some people involved who did not understand how the LGBT community has evolved — had evolved up to that point — and is evolving further still."

Indeed, HRC officials tell The Advocate there's no way their group today would back an ENDA that didn't include transgender protections.

"We are preparing for a number of anticipated poison-pill amendments that anti-LGBT lawmakers may try to use to derail the bill," says HRC director of communications Michael Cole-Schwartz. "We are fully committed to defeating them, and even the idea of a noninclusive workplace protections bill is completely unacceptable to HRC."

Transgender activist, author, and former Navy SEAL Kristin Beck agrees. Trans inclusion "may become a bargaining tool for the people who oppose the bill as it did in 2007," speculates Beck, "but the supporters of the bill have come to understand how important it is to keep the community together, and get freedom and equality for all people."

And this year, those supporters mobilized in a novel way that seems to have had a sizable impact on the legislation's success — at least in the Senate.

Americans for Workplace Opportunity is a first-of-its-kind bipartisan coalition aiming to advance ENDA through Congress. The campaign's steering committee is made up of 11 organizations: the American Civil Liberties Union, the American Federation of State, County, and Municipal Employees, the American Federation of Teachers, the American Unity Fund, Communications Workers of America, Gill Action, the Human Rights Campaign, the Leadership Conference on Civil and Human Rights, the National Center for Transgender Equality, the National Gay and Lesbian Task Force, and the Service Employees International Union.

Keisling, whose organization, NCTE, is on the steering committee, commends the broad partnership as "the first of its kind in the movement around anything other than marriage."

"It was an on-the-ground and an on-the-hill effort to really professionally and aggressively win over votes," explains Keisling. "And it really paid off."

The centralized coalition allowed ENDA supporters to present a unified front when it came to the specifics of the legislation. Calling a trans-exclusive ENDA a "nonstarter" for Americans for Workplace Opportunity, campaign manager Matt McTighe says his team is still bracing for amendments from conservative lawmakers aimed at gutting the bill.

"Anything is possible," McTighe tells The Advocate, "but senators only have to look at what small and large businesses are already doing when it comes to protecting their LGBT employees to see such amendments for what they are: scare tactics."

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