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Linking Trans Rights to Gay Rights Wasn't an Easy Sell in the '90s

gay rights

A look at the winding road to Monday's SCOTUS ruling that codified employment protections for all LGBTQ+ Americans.

Even before GenderPAC, the original trans advocacy organization, was formed in 1995, trans activists were already fighting for workplace rights. At a 1994 meeting at the D.C. offices of the Human Rights Campaign, I got into a shouting match with both the group's CEO at the time and gay civil rights icon Chai Feldblum. The argument was about the Employment Non-Discrimination Act, or ENDA, which HRC had spent millions trying to move forward in Congress.

ENDA did not include transgender or gender identity protections and HRC saw no reason to imperil a bill which was already hitting a solid wall of Republican (and sometimes Democratic) resistance by including something even less popular than gay employment rights.

The fight over ENDA became a two-decade pitched battle. Eventually HRC mulled a trans-inclusive version dubbed GENDA, but it never came to anything. As head of the newly launched GenderPAC, I eventually had long, impassioned arguments with the then-head of Lambda Legal, but they wanted little to do with defending transgender rights either.

Even the organization representing the national civil rights movement, the Leadership Conference for Civil Rights, never let GenderPAC join, because they just couldn't "get" the issue.

So we fought back. Each year at National Gender Lobby Day in D.C., we would send 100 or so trans activists to the Hill to explain to members of Congress why trans rights had to be included in the legislation.

It was around that time Rep. Barney Frank opened a meeting in his office by yelling at us as we walked in the door, saying no one would support a bill that would allow transgender women to use the women's restroom at work, or women's showers in schools, and other facilities.

Some local organizations, more sympathetic to their transgender constituents, moved to become trans-inclusive. But mostly we heard a new argument, a kind of pseudo-compromise: "We'll pass gay rights first, then we'll come back for you." Until states like Washington and New York, which did pass gay rights laws, showed that once that had succeeded, transgender employment rights were not at the top of anyone's agenda, and nobody was coming back for anyone.

It was through a lot of patient work by trans lawyers like National Center for Lesbian Rights' Shannon Minter and GPAC's Dana Priesing that we finally saw the first real cracks in the dam. In 2000, Feldblum published an astonishing piece, breaking with both HRC and Lambda, titled, "Gay People, Trans People, Women: Is It All About Gender?"

It is hard to overstate how difficult this must have been professionally and personally. Beginning in 1993, Feldblum had drafted and negotiated key provisions of ENDA at the behest of HRC and then LCCR. She and they had already considered including trans rights and decided against it.

It is to her everlasting credit that she did so. Her piece was widely read. As she noted, "A few gay rights theorists have long pointed out that discrimination on the basis of sexual orientation can be conceived of as discrimination based on sex[emphasis mine]." She then proceeded to make the logical argument that discrimination against people transitioning genders was also "based on sex."

It turns out she was right. The Republicans' choice to replace Antonin Scalia on the Supreme Court has just agreed with her. A long, difficult, and painful battle, during which thousands or perhaps tens of thousands of trans people lost their livelihoods unnecessarily, is over.

Yes they will probably find a way to carve out religious exemptions so faith-based organizations can still discriminate in hiring or baking wedding cakes, but for the moment, it's a win.

We can all enjoy the moment. And we can exhale... and then go join a Black Lives Matter protest. Because while some of us can exhale, many of us still can't breathe.

Riki Wilchins is an author and advocate.

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Riki Wilchins