What’s happened to ENDA?

Many had surmised that a Democratic president, Senate and House would mean much of the legislation, so long unaccomplished, would finally be a no brainer. We do have hate crimes legislation (rather toothless), but a “Don’t Ask, Don’t Tell” (DADT) repeal appears to be succumbing to incrementalism. Repeal of DOMA is unsure and ENDA has been relegated to 2011 or later. Many over at Bilerico.com and Pam’s House Blend have addressed this apparent anomaly. So, what’s happened?

Thoughts and theories abound. Most I’ve read have significant validity. Bilerico.com’s Rebecca Juro cited faltering media support, specifically MSNBC, and it’s obvious this network hasn’t been at the forefront of a call for change. Much of the “political capital” the Obama administration had was spent in the effort to pass health reform, resulting in a bill which became politically expedient with limited benefits. It wasn’t a single payer system and there’s been no positive effect on trans health. Removal of pre-existing condition limitations means nothing when insurance companies refuse coverage. It can be conjectured that MSNBC, too, was so invested in health care it lost sight of other important issues, but I won’t concede this because MSNBC has had, with rare exception, a history of avoiding ENDA and similar issues.

Also at Bilerico.com, Joe Mirabella cited lack of leadership and poor messaging for ENDA’s demise in this congressional session and there’s no doubt that our leadership has been fractured and confused. The influence the Human Rights Campaign (HRC) has wielded for so long now seems to be ebbing and, even if we are (much) better off without HRC leading the way, there is still disarray at the top. The National Gay and Lesbian Task Force (NGLTF) has always provided strong and thoughtful leadership, but appears to lack enough clout to effect significant congressional action. At the very least, it seems we have neither consistency nor solidarity as a political movement.

Dr. Jillian Weiss, whose determined efforts to make ENDA a reality have not flagged once in the past year, sees poor strategy as a root cause for ENDA’s failure, and to a large extent, she is correct. The desire to put marriage equality at the top of the list of legislative goals has been viewed as a mistake by most trans activists. It was seen as an issue which would quickly alienate so-called fence sitters and one which could have been (and should have been) quickly discharged with the realization that marriage belongs under the jurisdiction of the church and that the government’s sole interest should be in the consummation of civil unions.

There are those who have argued that marriage equality cost Democrats the 2004 election. This might or might not be true — I’d go a step further, however, and posit that we should have made ENDA the primary piece of legislation before hate crimes, DADT, DOMA and marriage equality, as a good friend suggested to me several years ago. ENDA was first proposed in 1994 and, since then, has suffered at the hands of both foes and alleged allies. Who can forget the 2007 debacle with Barney Frank and HRC essentially throwing trans equality “under the bus?” Well, as the expression goes: same sh!t, different day.

There has also been speculation that ENDA is no longer quite as critical for gay and lesbian communities as it is for trans individuals — companies seem to be more accommodating for the former and joblessness for them appears to be declining. This is definitely not the case for trans people. All evidence seems to show that under- and unemployment is soaring.

These are four perspectives, and all make sense, but it’s my opinion that the bathroom issue always lurks as the subterfuge underpinning trans discrimination and is always a root cause for trans exclusion.

Last month’s column focused on the “ick factor” and how its effects are intrinsic to legislative non-action. As we worked for ENDA 2010, the politics of gut and dogma have been fully displayed.

The Traditional Value Coalition’s (TVC) Andrea Lafferty gave cultural bigots a platform to spread their fear and loathing in her May Roll Call column. Again and again we are confronted with bigotry of this ilk from those who hate us and, sadly, from those who allegedly support us. Lafferty falls in the former category, Barney Frank in the latter and North Carolina Democrat Heath Shuler somewhere in between.

In her column, Lafferty failed to directly address the bathroom issue. Instead, she went for the “trans teachers in schools” tact.

“Most importantly, every public school in America will not be able to discriminate in hiring transgender teachers and it will be illegal to reassign them from the classroom,” she wrote.

Yet, the TVC has consistently cited the bathroom issue as their underlying rationale for continued discrimination. It’s difficult to believe that their hang-ups with transgender people using the restroom aren’t somehow inextricably tied to their fear of trans teachers in schools, especially given that the TVC claims bathrooms as a central tenant of the so-called “homosexual and trans agenda.”

In July 2007, Lafferty lashed out at the Transgender Law Center’s “Peeing in Peace,” an attempt to address the bathroom head-on. Her column then summarized their rationale, and the main thrust of their push against trans equality: “A San Francisco-based transgender law center is promoting a ‘bathroom revolution’ to overthrow the idea of ‘gender-segregated’ restrooms,” Lafferty wrote.

Lafferty continued, “Transgender madness and the idea of ‘gender identity disorder’ as being normal will be embedded in federal law…if ENDA is passed … (ENDA) ‘is part of the transgender/ homosexual agenda to create federally-protected class status for the behaviors of sodomy, cross-dressing and gender-confused individuals.’”

There are dozens of hatefully-minded people and organizations out there lined up right next to TVC.

Long-time activist Gwen Smith, author of the syndicated column “Transmissions,” has recapped Frank’s “support” for ENDA. Our alleged advocate has been quoted as saying “Never!” (quote supplied to Smith by Miranda Stevens-Miller) when questioned in 2000 regarding trans inclusion in ENDA.

Stevens-Miller continued, “His problem was that until we could answer the question of ‘people with penises in [women’s] showers,’ there is no way that he would support it. The conversation got rather heated to say the least. And, with Barney speaking very loudly and repeatedly about ‘penises in showers,’ we attracted a lot of attention in the restaurant.”

Smith wrote, “Likewise, he has indicated that transgender people with ‘one set of genitals’ would not be able to go to a bathroom for people with another sex of genitals. Because, apparently, there will be someone at the door who will check what’s in your pants.”

This Barney Frank gem was delivered several months back. Does any of this language sound familiar?

And, only a month ago, Heath Shuler established his position as 21st century Benedict Arnold with this perspective on ENDA. He told The Washington Post that moderates have “walked the plank a lot around here on things that never go anywhere in the Senate” and that asking them to vote on a transgender bill in this year’s political climate would be “a mistake.” Asked whether he thought the bill would ever reach the floor, he said, “I can’t imagine that it would.”

There’s been no definitive disclosure of exact language to be used had ENDA actually made it to committee, but there has been speculation that trans individuals could not be forced to use the wrong bathroom. Neither would they also be guaranteed the right to use the proper bathroom. One Bilerico.com guest columnist, Renee, elaborated on why this is a bad idea. Summarizing and paraphrasing her, these are the salient problems with this language: unnecessary humiliation; not all retail stores and places of business have unisex bathrooms; many unisex bathrooms get heavy use and infrequent cleaning; reduced mobility may encourage non-promotion; all of the above encourage “outing” and possibly dangerous repercussions; and I would add that bathroom exclusion language represents a codification of discrimination within an ENDA bill.

Furthermore, there is unequivocally no indication that trans persons using appropriate bathroom facilities lead to either harassment or violence to women and children, as the TVC and others aver.

Weiss undertook a research project (to which I contributed) searching for instances of trans predation in bathrooms and there is absolutely no evidence in this regard. My specific area of research was New York City and, again, I found zero trans predation. In four to five years of archiving trans media, I have found two instances of trans predation, and, in both cases, the victim was well acquainted with the perpetrator. I can find no cases of trans predation in which the predator knew the victim.

To date, 12 states, and the District of Columbia, as well as hundreds of local jurisdictions, have passed anti-discrimination bills, ordinances or policies with gender identity protections, and no one has come forward with complaints about trans predation. The truth is that there have been many more instances of violence against trans persons, often occurring in these very same bathrooms. Unfortunately, most of these go unreported.

We cannot let the dogma of fear win, and we cannot settle for an incremental approach which will essentially codify discrimination within ENDA by stipulating bathroom use language which separates, marginalizes and excludes. : :

Comments and corrections can be sent to editor@goqnotes.com. To contact Robbi Cohn, email robbi_cohn108@yahoo.com.