Trannies & lezzies & gays, oh my
Sorry about the headline, which I couldn’t resist. It’s a toned-down version of an old gay pride chant that I’ve always loved. (The original uses nastier terms, usually offset with an adorable kickline.)
Our topic today: Are LGBT (lesbian, gay, bisexual, and transgender) groups being unreasonable when they insist that ENDA—the proposed federal Employment Non-Discrimination Act—must cover not just sexual orientation but also gender identity? Is Barney Frank simply being a political pragmatist when he insists that he can only pass a bill to cover lesbians and gay men, the group that America has grown to know and love, and not also transgendered folks, which lesbian Congresswoman Tammy Baldwin insists is necessary as well? (I’ll explain the terms later in this post.)
No. ENDA “lite” isn’t more “pragmatic”; it’s scarcely better than no ENDA at all.
Many Americans already believe it’s illegal to fire lesbians and gay men just because we’re lesbian or gay. But there is no such federal law, and only 13 states have their own such laws. Fifty-eight percent of Americans think it should be illegal to fire based on either sexual orientation or gender identity. ENDA is the long-awaited federal bill that would make that so.
The latest news on this front: ENDA, which had been scheduled for a House floor vote this week, has been taken off the table.
The official reason that ENDA won’t come up for vote: it’s been pushed aside by other business. The generally accepted reason is the split between the Barney Frank faction and the Tammy Baldwin faction. Shailagh Murray, in The Washington Post, expounds the Barney Frank argument. From this perspective, it’s simply practical to admit that, although there are enough Congressional lawmakers willing to stand up for gay folks, not enough Congressmembers are educated enough on trans issues to vote for the larger bill—and it’s better to work forward incrementally. But Baldwin and all the LGBT groups refuse the partial-ENDA compromise, and would rather see no bill at all.
Is this simply childishness, a refusal to have any cake if you can’t have it all? No. This is a topic that’s been debated ferociously within the community for fifteen years. The conclusion: lesbians and gay men won’t be protected unless the bill also includes gender identity. That’s the reason LGBT groups can’t knuckle under and accept the mini-bill.
Here's the idea. When there is discrimination against, or recoil from, lesbians and gay men, it’s not just because we fall in love with others of the same sex. It’s because we don’t neatly fit our gender identities; we’re often “genderqueer” as well. Our girls tend to be boyish; our boys tend to be girly. Not always, and not all of us. But gay men and lesbians who “pass”— who are “straight-acting,” in the terminology, who more closely fit sex stereotypes (like me, despite my short hair)—run into the least trouble on the job. It’s the fey men (and, depending on the situation, the butch women) who run into trouble. And that’s the ground on which they need the most protection: gender identity.
After all, when grade school and middle school kids taunt or beat up some boy for acting “gay,” it’s not because he’s been kissing other boys; it’s because he hasn’t been masculine enough for their taste. The same is true in adulthood. Even in tolerant Massachusetts, where folks are proud to be the first state where same-sex couples can marry, some gay men are still taunted—not for having boyfriends, but for having high voices or feminine mannerisms, even though those Truman Capote voices or hand gestures come just as naturally as falling in love with other boys, and are just as resistant to change.
That’s even more true on the job. Consider what happened to Darlene Jespersen, who lost her bartending job at Harrah’s Casino after 21 years—when her employer instituted a policy that said all women had to wear makeup. She couldn’t do it; her whole being revolted against that mask. (And yes, the 9th circuit decided that this was legal) Now, I don’t know if Jespersen was a lesbian. But if an employer demands that women dress and behave according to a feminine stereotype, that rule is especially likely to hurt many of the lesbians I know and love. They too would vomit if they had to dress girly and paint their faces. Put these butch women in dresses and they look like cross-dressing men. A women-must-wear-makeup policy would drive them out—based not on sexual orientation but on gender presentation.
ENDA “lite” would do them no good.
I don’t know what you think about girly boys or boyish girls. Personally, I love them: these are my dearest friends, the people I rely on in times of crisis. But surely they shouldn’t lose their jobs just because they do or don’t wear dresses or speak in soft voices.
The bottom line: When lesbians and gay men get trashed, it’s often because of our gender identities, not our sexual orientation. Protect one without protecting the other, and the most vulnerable gay folks are still screwed. A trans-free ENDA is just a little better than useless.
And on top of that, it leaves out our sistren and brethren, the transgendered (whose gender presentation differs still more profoundly from their biological sex) and the transsexuals (who’ve made some bodily alteration so that their internal sense of identity and their body are more in synch).
Worse, gutting ENDA wins nothing. According to polling, the majority of Americans who support ENDA would do so with or without the inclusion of gender identity. Sure, lawmakers are fearful. But aren’t they always? They just need more education. (Matt Foreman, head of the Task Force, believes that the only way to go is to insist that Congress must pass the right bill.)
Okay, that's all I've got today. If there’s any demand, I can come back and write more about this some other time. But note: follow-up writing won’t be immediate. I’m soon to leave town and will be without web access. I’ll try to weigh in whenever I can but, coffeehouse regulars, please excuse me if I can’t!
Comments (25)
Convincing argument; I'm on your side, and Tammy's.
October 31, 2007 2:04 PM | Reply | Permalink
Here's the question every gay activist should ask themselves before pushing something: "Is it likely to lead to a constitutional amendment banning it?"
I believe time is very quickly on the side of full-fledged gay rights in every sphere. A generation is growing up who will have no problem with full human rights for all adult sexualities.
BUT... they're not the dominant voting bloc yet. In black civil rights terms, it's 1956. If you push the other side to the point where they feel they have to pass a constitutional amendment to stop you, they will pass one. And then you will have an infinitely harder job, of getting majorities in 37 states to undo that someday.
Think how much of LBJ's civil rights agenda would have been impossible if the South had pushed through a constitutional amendment enunciating white rights in 1956. There might not be a voting rights act today.
The huge failure of the gay marriage movement was in trying to get it pushed through in the courts. (That is, of course, the great failing of the abortion movement as well.) By not working through the legislative process, they missed a great opportunity to change minds before changing laws. And gave the other side an opportunity to harden minds in the process of overruling the courts.
Try not to make the same mistake twice. You may have to settle for rights for unthreatening gay men and lesbians, and work from there once people are comfortable with that. That is not an entirely bad thing-- at least not nearly so bad as losing the whole ball game and having it enshrined in the Constitution.
October 31, 2007 2:29 PM | Reply | Permalink
ENDA is a legislative effort. The same-sex marriage fight: well, you can't imagine the internal rancor about the legal groups getting out in front of the political groups on the issue. It's all been endlessly debated among the various activist groups. But the truth is, the legal groups never filed a marriage lawsuit in a state without also building up a political effort too. Look at Massachusetts: we not only won in the courts, we also held our win in the legislature. These have been *local* efforts. No organization has sued for marriage rights in the federal courts. (Sometimes individuals do, despite the advocates' efforts to smother those lawsuits.) For more on this, see my article a few years ago about organizing on marriage after the 2004 elections, Marital Blitz, in the Prospect.
October 31, 2007 2:40 PM | Reply | Permalink
I wanted to agree with you (2nd para). But then you referred to "The huge failure of the gay marriage movement." Had the civil rights movement failed in 1956? Obviously they had simply not yet achieved main success. So if the gay-rights movement is in 1956, it is not a failure, it is a work in progress.
October 31, 2007 3:02 PM | Reply | Permalink
Great piece, EJ. I'm not a black garbed Hassidic Jew but I certainly would not support civil rights protections only for Jews who dress "regular", are beardless and don't wear yarmulkes. In other words --my kind of Jew.
You and Tammy are right.
October 31, 2007 3:33 PM | Reply | Permalink
I don't disagree but my point is, it's one thing to lose a battle, it's another to lose in a way that creates an enormous obstacle to the next phase of the battle. That's what the FMA would be.
The real question is, which is more likely to lead to getting trans- rights down the road-- a partial ENDA passage or a total ENDA defeat that burns the political capital and goodwill of important supporters like Barney Frank? Surely all political logic says the former is more beneficial in the long run.
October 31, 2007 5:22 PM | Reply | Permalink
I like your analysis here. Whenever I see female politicians (or whatever) wearing heels, part of me just can't believe they've knuckled under! There are many ways that even straight people feel forced into straight-jackets. And no matter who you are or how you identify yourself, our laws should find ways to ensure that all citizens of whatever stripe have equal access and equal pay, equal social benefits and so on.
Since young people endorse this kind of thing at much higher percentages than older ones, as someone said above, it's just a matter of time till these things come to pass. But apparently some people are really, really scared by this, as if the alternative ways of being and acting would be foisted upon them - which, of course, is not the intent at all.
October 31, 2007 5:33 PM | Reply | Permalink
Hard to say, of course, but my instinct on this is that it's better to push for the bill that is not self-contradictory. I think E. J.'s point is very strong. People passing as straight are not the people getting harassed.
October 31, 2007 5:42 PM | Reply | Permalink
Interesting point, EJ. Thanks.
(On the subject of follow-up, I've been wondering what came of that Working Mothers panel...)
October 31, 2007 5:57 PM | Reply | Permalink
This post is incorrect as a matter of legal analysis. Girly boys and boyish girls, if they are gay or lesbian, will almost certainly be protected by ENDA's prohibition on sexual-orientation discrimination. Under current law, an employer cannot defend a race discrimination claim by saying that they only discriminate against those African Americans who are "too black." Similarly, under ENDA, it will be no defense to say that a gay or lesbian plaintiff was too "effeminate" or "butch." That is not the way that state sexual orientation discrimination laws are interpreted, and it would make no sense. For a fuller analysis, see this post: http://volokh.com/posts/1191697324.shtml
October 31, 2007 6:09 PM | Reply | Permalink
Quite some years ago, I was working for a high-tech firm, and we happened to be having our regular all-hands meeting. The big boss said that someone had a special announcement, and one of our engineers, previously male identified, came into (came out?) the room in a dress, explained transsexuality, and asked us to support her.
There was a pause for bit, and then our graphics artist, very heterosexual, said "you want support? You've got it. First thing I have to tell you is that you look terrible in pink." Heading for the door, he asked who else was coming on the shopping expedition, and most of the engineering department had a fascinating afternoon at ... trying to think of the name of the place, in Silicon Valley -- Fashion City Mall, something like that?
I was damned proud of our bunch that day. For whatever reason, I've usually worked at places that valued people for who they were as individuals. This was especially true of the several Canadian owned companies, even relatively staid Nortel.
I was brought up by a single woman at a time that was unheard of -- if she hadn't been a social worker, she wouldn't have been able to pull the strings for legal adoption. Strange situation of blended families, but it made sense. There was a time when I looked blankly at a classmate in junior high, who said "your mother wears army boots." I inquired what she was supposed to wear when in uniform, on field maneuvers. We were amused that only after she made major, did her commission not call her an officer and a gentleman.
--
Howard
*equal opportunity offense to both extremes*
"Those who cannot remember the past are condemned to repeat it" [George Santayana]
October 31, 2007 6:11 PM | Reply | Permalink
Ask the jewish people about the whole thing
with the yellow stars and what they think of IBM...my point? As soon as you're giving people
labels, sifting and sorting through all this
data to pick the people you like, you don't
like, and the 'special' people who get an
advantage or whatever, it's the Employment
Discrimination Act, because they're discriminating, picking choosing, evaluating,
rather than actually doing any WORK. Once
again, we reach up to the top shelf, and
pull down the Webster's:
Main Entry: dis·crim·i·na·tion
Pronunciation: \dis-?kri-m?-?n?-sh?n\
Function: noun
Date: 1648
1 a: the act of discriminating b: the process by which two stimuli differing in some aspect are responded to differently
2: the quality or power of finely distinguishing
3 a: the act, practice, or an instance of discriminating categorically rather than individually b: prejudiced or prejudicial outlook, action, or treatment
Main Entry: 1work
Pronunciation: \?w?rk\
Function: noun
Etymology: Middle English werk, work, from Old English werc, weorc; akin to Old High German werc work, Greek ergon, Avestan var?zem activity
Date: before 12th century
1: activity in which one exerts strength or faculties to do or perform something: a: sustained physical or mental effort to overcome obstacles and achieve an objective or result b: the labor, task, or duty that is one's accustomed means of livelihood c: a specific task, duty, function, or assignment often being a part or phase of some larger activity
2 a: energy expended by natural phenomena b: the result of such energy c: the transference of energy that is produced by the motion of the point of application of a force and is measured by multiplying the force and the displacement of its point of application in the line of action
Moral of the story? Work more, pander less,
complain less. Imagine if you were working
by YOURSELF on something...ALL by yourself.
You wouldn't waste any time on federal this n
that, special preference/benefit/allowance
whatevers, you'd just pitch right in and
do what needs done.
I don't know what else you call it, I call
it institutionalized jobsite politics run
amok, which is why China will own the planet.
They still have a measurable work ethic,
and we don't. It's that simple.
October 31, 2007 6:14 PM | Reply | Permalink
Thanks, MJ, I appreciate that.
October 31, 2007 6:45 PM | Reply | Permalink
Ah yes!! I promised! Glad someone remembered. It's coming. The video has taken longer to deliver than I expected. And then I'm leaving town. But I WILL post it when back, and will get all the panelists chatting here.
October 31, 2007 6:47 PM | Reply | Permalink
Maybe. But it would depend on the judge. Have you watched the way employment discrimination law has developed in the past years, since the federal judiciary has gotten steadily more pro-corporate? These categories get interpreted more and more narrowly; more and more lawsuits get tossed on summary judgment. "Plain language" judges would say that effeminate isn't covered by the statute; not wearing makeup isn't essential to being a lesbian. After all, plenty of lesbians *do* wear makeup. (If you look closely at my picture, you can see the mascara.)
Just because Volokh says it's so doesn't mean every judge will think he's right.
October 31, 2007 6:51 PM | Reply | Permalink
I am aware of the pro-corporate bent of employment discrimination law in the past years -- I am an employment discrimination litigator -- and I can say with great confidence that effeminate gay men and butch lesbians will be protected by a ban on sexual orientation discrimination. Arguably, they will have to conform to well-articulated dress codes that are equally burdensome on men and women, as in Jesperson. But no employer will not be able to justify harassment or unequal treatment on the ground that the employee was too effeminate or butch, any more than they can presently justify race discrimination because an employee is too black. This has never happened in states with anti-sexual-orientation-discrimination laws, and it won't happen under ENDA.
The question really is whether half a loaf is better than none -- it distorts the debate to suggest that the half a loaf is illusory.
October 31, 2007 10:37 PM | Reply | Permalink
You know, to me the question is so simple - that you can't really make an argument that some people deserve protections while others don't - that I'm much more interested in knowing why Barney Frank believes the bill is more likely to pass without transgender people than with them.
Are there really people who are refusing to vote for it on that basis while being willing to vote for it otherwise? It doesn't make any sense.
AC
November 1, 2007 3:58 AM | Reply | Permalink
Because you can sell employment rights for drably-dressed lesbians and exceedingly-well-groomed gay men to enough of middle America; it's much harder selling them for Thai ladyboys and the Sisters of Perpetual Indulgence. Is that that hard to see?
November 1, 2007 4:59 AM | Reply | Permalink
Well, it's just that a lot of people seem to be less hostile to trannies (because at least they are giving the nod to gender roles) than they are to gays, so it evens out.
AC
November 1, 2007 6:15 AM | Reply | Permalink
I'm glad you're confident and I hope you are right. I am not as confident. Nor are the LGBT law groups.
November 1, 2007 8:11 AM | Reply | Permalink
I guess it's part of that crud that still exists... that "I don't mind them being gay as long as they don't *chortle* shove their homosexuality down my throat." (As if heterosexuality isn't constantly on display).
This one reall annoys me: you can have legal protection if you just act normal! It's kind of the "Don't Ask, Don't Tell" approach to civil rights law.
thosethingswesay.blogspot.com
November 1, 2007 12:06 PM | Reply | Permalink
In a technical field, fashion has little importance. Also, since there was no explicit dress code, a man in a dress breaks no rules.
However, that's a very different matter from this example of a bartender wearing makeup, or any job which by nature has an aspect of entertaining or relating to a public.
If the transexual employee had wanted to become the company public representative then appearance would likely have become an issue.
That is not to say his sexuality would have become an issue, only the clothes while at work. And that's reasonable.
Every company and culture has rules to get along and achieve goals, internally and externally, tailored to specific needs.
In software, meetings and such may be conducted in a certain way internally, and differently when metting with business partners, investors, and the public. It might be ok to bring a dog and wear ripped jeans in the office, but put on a jacket and slacks externally.
In other types of business, from medicine to erotic stripping, the uniform dress code may range from white smock coat to sequined jock strap.
These choices aren't objectively better or worse. It's just a practical consideration for interfacing with partners and customers. What's most important is they're shared assumptions.
November 2, 2007 2:23 AM | Reply | Permalink
??? Get real.
My problem with EJ Graf's post, and her posts in general, is the sloppy logic and failure to question her assumptions made from an entirely one sided POV. It's very hard to take her seriously because she doesn't make persuasive arguments for a better society so much as rhetorical hatchet jobs, maximally for her special interest group, which is sometimes it's own worst enemy as well.
Employers have a right to require uniforms codes so long as they are equally burdensome and perceived to have some merit, even subjective merit, to the business.
As a stage director can mandate makeup for performers, a Chippendale's mandate thongs, a retail store mandate a uniform, and a Bavarian themed brew pub mandate lederhosen and beard, an office mandate office attire like a tie and shirt/blouse, so may a bar require a uniform including makeup.
November 2, 2007 2:31 AM | Reply | Permalink
Oi vey. How about freedom of association and private clubs as principled civil rights applied to all?
Speaking about Hassidic civil rights, don't they have the right to hire other Hassidic Jews for a Hassidic themed company or function, like a company specializing in Hassidic weddings for example?
Can punk/biker bars hire tattooed and pierced bartenders to fit the crowd?
Can gay bars hire gay bartenders who naturally share gay culture, enjoy the company of gay men, and thereby help the business draw customers? Should a gay bar be forced to employ someone whose "whole being revolted against" homosexuality and made it known in aesthetic choices, such as a heterosexual religious fundamentalist who openly conveys it?
I don't see you proposing any bright line between one person's civil right to association and another's civil right against discrimination.
I don't see a principled argument behind your opinion. It's just your ad hoc rules from your subjective taste, the world according to you.
November 2, 2007 3:15 AM | Reply | Permalink
Why exactly do you think it should be illegal to mandate dress codes, sometimes including makeup, for service industry personnel? This seems like a really bad example to choose. Aren't there any cases of computer programmers being fired for not wearing makeup? Or for wearing makeup, for that matter?
And your test of whether someone's "whole being revolts" against a work requirement seems silly. My whole being may revolt against wearing a tie, but if that's the dress code, that's the dress code. This seems like exactly the kind of self-righteous and piddling issue that's likely to splinter a liberal coalition. It seems to me that being a transgendered person is about a lot more than wearing or not wearing makeup, and you ought to be able to find some significantly more convincing way to argue this case.
"All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." - I.F. Stone
November 2, 2007 3:38 AM | Reply | Permalink