By Dipal Shah
Originally published on Advocate.com November 15 2013 6:00 AM ET
This past weekend I made the short trip to Virginia from my home in Washington, D.C. I was visiting one of my favorite couples, two women who live the enviable life of a modern all-American family. Just to get to their house, I had to drive through a street lined with American flags and pass through a white picket fence. As soon as I entered, I was greeted by their 3-year-old son and their chocolate Labrador retriever. Within minutes I had their 10-month-old daughter in one arm. Admittedly, despite this wholesome visage, they did provide my free hand with a spectacular mimosa.
When I ask the two what inspires them to work so hard to create this idyllic lifestyle for their family, their answer is, not surprisingly, their children. Their home state, however, does not make this security a foregone conclusion – Virginia provides no protections for its citizens against employment discrimination based on sexual orientation or gender identity. My friends explain that although they are eternal optimists, they are reluctant to look for work in Virginia when many positions lack coverage of protective laws by the state, especially when laws exist elsewhere. As a result, both work beyond Virginia’s borders, in Maryland and D.C., respectively.
Nonetheless, many LGBT mothers and fathers in Virginia might not have the ability, the time, or infrastructure to commute long distances to avail themselves of these laws. So, is it fair that a Washington, D.C., family, similar in every way to its counterparts across a river, can sleep easier because of these protections? I asked my friend Allyson, a transgender activist who lives with her family in Maryland’s Montgomery County, to ponder this question. She explains, “This question is really important. There is a reason [my family] chose not to consider living in Virginia. We live in Montgomery County, Md., and part of reason we chose to move to Montgomery County is because of robust protections.”
The most obvious potential solution to this patchwork of laws is the passage and enactment of a comprehensive, nationwide LGBT nondiscrimination employment law. Although not perfect (there is a great deal of debate over the extensiveness of the legislation’s religious exemptions), the Employment Non-Discrimination Act could provide this national framework of employment protections for these families.
There are clear, overarching arguments for how a comprehensive law such as ENDA could benefit LGBT families. The Family Equality Council notes, in providing a case for ENDA, that many LGBT families live in Southern and Midwestern states where they have limited or no protections from workplace discrimination based on sexual orientation and gender identity. The council also suggests that the symbolic value of passage would dramatically benefit the children of LGBT parents as well as provide economic stability for the entire household.
ENDA passed the Senate this month, and with bipartisan support. Passage in the House, however, with leadership as it stands, is highly improbable. John Boehner, speaker of the House and its most notable roadblock, has articulated that ENDA would “cost American jobs.” In the past Boehner has stated that “ample laws” existed to “deal with this.”
Boehner might consider discussing these elusive “ample” laws with Allyson, who explains that despite her uniquely strong credentials, she had difficulty finding employment just after her transition. “Had the transition not been a part of the story, my experience would have been different … it put a tremendous financial strain on my family. This had a very real impact on my children.”
As for the argument that ENDA would cost American jobs, well, this contention is also specious. Business leaders note that through a law like ENDA, people could more easily be themselves in the workforce — resulting in enhanced productivity and better workplace culture. Moreover, the lack of a comprehensive national scheme is arguably to the detriment of states with lagging protections, driving otherwise smart and hardworking members of the workforce, such as my friends in Virginia, out of the state’s economy. A report released earlier this year out of Michigan outlined these very tangible outcomes, with many LGBT college graduates leaving that state to seek employment in friendlier environments. In line with these realties, Allyson stresses, “Virginia missed out on having the economic boost of our family and families like ours living there. Not having those protections makes it a very easy choice.” This loss of economic activity and brainpower certainly can’t be good even for the straight families in these lagging states.
LGBT-led households should not, in this modern era, be without full and comprehensive antidiscrimination protections in the American workplace. And, more important, an address should not be determinative of a family’s security. It’s just not consistent with the values the American flags adorning the houses in a Virginia neighborhood are meant to reflect.
DIPAL SHAH is an attorney working in the progressive legal policy arena in Washington, D.C. He was recently selected as one of the "40 Best Lawyers Under 40" by the National LGBT Bar Association.