The Gender Identity Divide

U.S. senator Jeff Merkley, an Oregon Democrat who became lead sponsor of the Senate version of the bill at the request of the late senator Edward Kennedy, tells The Advocate he was still “very confident” that the bill will remain a cohesive whole. “That’s based on the fact that I’m going to fight to make sure it stays that way,” he says. “You have to bring the facts to bear. Folks will try to say the sky is falling, that there will be a tremendous number of lawsuits, but the states that have implemented ENDA protection have gone smoothly. The sky hasn’t fallen.” States with antidiscrimination laws haven’t seen a torrent of lawsuits clog their courts, he says, and the federal ENDA carves out the same religious exemptions as Title VII of the Civil Rights Act, which prohibits workplace discrimination on the basis of race, religion, sex, and other personal traits.

Yet this month’s Senate committee hearing on the bill did not include testimony from transgender individuals, which elicited measured concern from National Center for Transgender Equality executive director Mara Kiesling and dismay from Diego Sanchez, senior legislative adviser to Frank. “This was a wake-up call for me that we’re not done educating people,” Sanchez told The Advocate last week. “If the biggest piece of discussion about this bill is gender identity, then it’s only logical that you would want to cast the light on the one part that people understand the least.”

Whether ENDA stalls, or whether other LGBT-related legislation leapfrogs over it as Congress nears mid-term election season, is an open question. “In the end, we’ll get there. But to be too confident would be foolhardy,” says Jillian T. Weiss, an associate law professor at Ramapo College of New Jersey and author of Transgender Workplace Diversity: Policy Tools, Training Issues, and Communication Strategies for HR and Legal Professionals. “Politicians’ jobs are to say the right thing. But when crunch time came in 2007, they folded like a cheap suit, and that could absolutely happen again.”

The legislation also doesn’t address many entrenched problems for transgender individuals, such as housing discrimination, which may require further congressional action. When he was speaker of the Oregon state house, Merkley helped pass the 2007 Oregon Equality Act, which prohibited gender identity discrimination in housing, public accommodations, and other areas in addition to employment. “One question I raised at the federal level is whether it makes sense to broaden the legislation to include [housing], but I felt this was the right piece of the battle to undertake right now,” he says.

The battle, as Merkley sees it, is fueled by data illustrating ENDA’s raison d’etre. A first-of-its-kind report on state employees issued this year by the University of California, Los Angeles, School of Law’s Williams Institute found evidence of long-standing, widespread workplace discrimination that went beyond anecdotes — a firefighter whose colleagues put urine in her mouthwash, for example, or a transgender college librarian in Oklahoma who was subjected to a flier that said God wanted her to die. “The severity of workplace harassment is much greater” for transgender individuals, says Williams Institute executive director Brad Sears. “Twelve months ago my underlying assumption was that government employment has been good for other minorities and weeds out discrimination more than private employment. But the opposite appears to be true — primarily in education and law enforcement.”