The Gender Identity Divide

Lawsuits filed by trans men and women under existing federal laws prohibiting sex discrimination have faced mixed outcomes in court. As a result, Mottet and other legal experts assert that any law forbidding discrimination based on sexual orientation must also include gender identity provisions and that anything less is simply nonnegotiable.

Political history highlights a reality in sharp contrast to Mottet’s hopes, however. Most states that originally passed workplace antidiscrimination statutes that covered only sexual orientation have taken years to add gender identity to those laws — if there’s enough political will to add it at all. Wisconsin, which in 1982 passed the nation’s first law protecting gay employees in the public and private sectors from discrimination, has foundered in expanding the law to include transgender workers. Attempts to broaden New York’s 2002 antidiscrimination law to include gender identity protections in employment, housing, and public accommodations have stalled in a state senate still grappling over a marriage equality bill that was shelved earlier this year (lawmakers expect a vote by year’s end). Some observers have already deemed the comparatively low-profile state-level transgender legislation to be “dead in the water.”

On the federal level, the T of LGBT has long been an inessential element in the Employment Non-Discrimination Act, which would prohibit antigay discrimination nationwide, bolstering the current patchwork of laws in liberal-leaning states. ENDA was first introduced in Congress in 1994, though a precursor to the bill was originally written 20 years earlier.

Since 1994, ENDA has been reintroduced in every congressional term except one. None of the versions included gender identity until 2007, with Democrats in control of both houses of Congress. But when a preliminary vote in the House of Representatives reportedly failed to muster adequate support, Massachusetts representative Barney Frank split ENDA into two separate bills, one with gender identity protections, one without. The former died in committee; the latter passed the House, only to die in the Senate. While any version of ENDA was subject to a near-certain veto by then-President George W. Bush, many national gay organizations denounced Frank’s move as unacceptable. The nation’s largest gay rights lobbying group, the Human Rights Campaign, which supported passage of the non–transgender-inclusive bill, became the subject of controversy, with transgender activists and their allies protesting HRC fund-raising dinners nationwide.

Some ideological fences may remain unmended, but two years later the rhetoric appears to have cooled. Indeed, many ENDA proponents, while not forgetting the divide that marked previous attempts at passage, are confident that the bill will not only pass — President Barack Obama has said he will sign it — but will pass with transgender inclusion. HRC legislative director Allison Herwitt says the organization now “only wants to see a fully inclusive bill move,” and her organization has recently attempted to galvanize members and grassroots activists through its “No Excuses” campaign in support of a fully inclusive bill.

In September the House Education and Labor committee heard testimony from Vandy Beth Glenn, a former Navy lieutenant who was fired from her staff position in the Georgia state legislature when she told her boss that she was in the process of gender transition. If passed out of committee — as is expected to happen, though it is unclear what amendments may be made to the legislation — ENDA would go to the floor for a full House vote.