Optimism Grows for National Trans Discrimination Bill

by Jason St. Amand

National News Editor

Friday July 20, 2012

The contestants on "RuPaul's Drag Race" are doing drag. There's a difference between female impersonators and someone who is transgendered.

One of the show's contestants, Carmen Carrera, found out the discrimination that comes with being transgendered after she announced her status on a May 1 episode of ABC's "What Would You Do?" When the reality star appeared on an episode of TLC's "Cake Boss" on June 11, Carrera was tricked into flirting with a man who didn't know she had transitioned.

After the "joke" went on for some time, the man was finally told that he had been flirting "with a man, baby!"

"Calling me a 'man' promotes ignorance and makes it OK to call transgender women men," Carrera wrote in Facebook after the incident, which was criticized by groups such as the Gay & Lesbian Alliance Against Discrimination. "People get bullied, beat up and killed for being trans because of this ignorance," Carrera wrote.

We only know of Carrera's humiliation because it occurred on national television. But too many transgendered face harassment in the workplace - 50 percent, according to Lisa Mottet, a transgendered attorney with the National Gay and Lesbian Task Force. She also told EDGE that one-quarter have lost a job because they were transgender; 44 percent never even got that chance, because their employers wouldn't even hire them in the first place because they were transgender.

A national bill to add the transgender to the classification of discrimination has been introduced in nearly every Congress since 1994, but it has never even gotten a hearing in committee. The Employment Non-Discrimination Act would prohibit discrimination in hiring and employment on the basis of sexual orientation and gender identity by civilian, and nonreligious employers with at least 15 employees.

Quiet Momentum Building

Even so, there has been a quiet momentum building.

In early June the Senate Health, Education, Labor and Pensions Committee held a hearing on ENDA. For the first time in the Senate's history, a transgender witness testified on behalf of the legislation.

Founder of the Trans People of Color Coalition Kylar Broadus told the committee his story of coming out as transgender and how he has been mistreated by police and has experienced workplace harassment and employment discrimination.

Human Rights Campaign spokesperson Michael Cole-Schwartz called the hearing and Broadus' testimony "a big milestone," a sentiment echoed by the Task Force's Mottest.

"Having a transgender person testify in the Senate was incredibly important both for ENDA and for transgender rights," she told EDGE. "As the senators heard Kylar Broadus talk about his life and his experience of discrimination, they were clearly paying attention and they really seemed to be moved by his testimony. It was an important milestone for ENDA in the Senate.

"With Kylar's testimony, they clearly addressed the issue of discrimination against transgender people and seemed very comfortable asking him about his experiences and the gender identity provisions in the bill. He really put a face on the disastrous consequences that employment discrimination has for transgender people," she continued.

Gay lesbian members of Congress have been strong supporters of ENDA over the years, including Rep Tammy Baldwin (D-Wis.) and retiring Rep. Barney Frank (D-Mass.) who introduced the first version of ENDA to include trans (not just gay and lesbian) protections last year; Sen. Jeff Merkley (D-Ore.) introduced it in the Senate.

Considering its past failures, most observers, like Mara Keisling, executive director of National Center for Transgender Equality, are hopeful it will pass, just not this year.

"ENDA will eventually pass," Keisling told EDGE. "It has zero chance of passing this year." What will make the difference is a generational change in the entire congressional membership, she added.

GOP House Speaker John Boehner "has indicated that he has not looked at ENDA nor thought much about it," Mottet pointed out. "He said that if changes were necessary in employment law, he was sure the House committee would look at it. Therefore, it seems incredibly unlikely that ENDA would be considered in the House given the current leadership."

Change in the House Essential

Cole-Schwartz also believes ENDA's eventual passage will only take place when the present "anti-gay House leadership" is replaced. "Not only do they show zero willingness for LGBT rights but they also undermine our community," he said. "The biggest hurdle is the leadership."

Currently, only 19 states and the District of Columbia have passed laws that protect members of the LGBT community against workplace discrimination, Truth-Out.org reported. There are 29 states where a gay or transgender person can be fired or denied a job because of who they are.

Those who oppose ENDA argue that being gay or transgender is not something innate in one's nature, but rather a sickness.

On its website, the Family Research Council maintains that they "have a mental illness ('gender identity disorder') which can and should be treated using gender-affirming therapy, not self-mutilating surgery." The group accuses ENDA of being "based on false premises and is wrong in principle. Those are reasons enough to oppose it, regardless of its practical consequences."

FRC is also trotting out the argument, familiar among the religious right, that the bill would curtail free speech. According to the group's website, ENDA "could lead to a crackdown not only on speech that is truly harassing, but on any expressions of concern about the wisdom of homosexual conduct or of "changing" one's gender. Such policies have already led to unfair personnel actions, including the firing of personnel for statements made on their own time and in a private capacity."

End of ENDA Opposition in Sight

Despite fierce opposition on the far right, Keisling believes ENDA's enemies are beginning to be outnumbered by supporters.

"Everything is in our direction," she said. "People who hate us are fading away. There will be ups and downs,but LGBT people are winning across the board. There will always be bigoted businesses, people and churches. But even the number of churches that are opposed to our rights are just shriveling. More religious leaders are coming to our side, they are not our enemy. It's just a small group of people who want to hide their bigotry behind people."

As if to prove Keisling's opinion about churches, in June a group of diverse religious groups came together to defend ENDA. Members of the African American Ministers in Action, the (Jewish) Anti-Defamation League, the Episcopal Church, Hindu American Foundation, and Muslims for Progressive Values in a letter to senators explained how protecting LGBT people from discrimination would positively impact their faith.

"Our faith leaders and congregations grapple with the difficulties of lost jobs every day, particularly in these difficult economic times," the coaltion wrote. "It is indefensible that, while sharing every American's concerns about the health of our economy, LGBT workers must also fear job security because of prejudice."

Several large corporations are also voicing support for ENDA. "Businesses get it," Keisling said. "They get hiring the best people and treating them good is the right thing to do."

A Huge Step: Walmart’s In-House ’GENDA’

The most dramatic instance of corporation support came in September 2011, when Walmart added provisions to its non-discrimination policy to protect transgender employees. Based in Arkansas and with a blue-collar customer base, for the retail giant to take such an action gave proof that big business no longer looks at transgender issues as too divisive to handle.

"More and more business are embracing equality for transgender employees because it is the right thing to do and it helps them attract the most competitive workforce," said Kristina Wertz, the Transgender Law Center's director of programs and policy. "Also, the federal Equal Employment Opportunity Commission and many federal courts have held that discrimination against transgender people is illegal sex discrimination. In order to comply with federal law, business need to ensure that their transgender employees are treated equally at work."

In April, the Equal Employment Opportunity Commission, a federal law enforcement agency that enforces laws against discrimination, expanded current non-discrimination protections to cover transgender employees. The organization ruled that Title VII of the Civil Rights Acts of 1964 covers gender identity.

Although the ruling was a big step for transgender rights, Masen Davis, executive director of the Transgender Law Center, told the media that ENDA still needs to pass, the Washington Blade reported.

"We still need ENDA," said Davis. "This decision is incredibly important. It means that transgender people throughout the United States now have legal recourse ... We need to make sure that we couple that with legal protections from Congress and the courts."

But Cole-Schwartz believes that Walmart and other companies are only following their customers. "We've been able to see such great shifts," he said.

General Mills’ Executive’s Testimony an Important Step

General Mills has backed ENDA and equal rights. HRC noted that the food company has had a non-discrimination policy that includes sexual orientation and gender identity for years. In June, General Mills' vice president of global diversity and inclusion, Ken Charles, testified before the Senate and explained how "diversity and inclusion drive success at a company that has been in business for over 150 years."

"General Mills defending ENDA at the Senate hearing shows the next step businesses are taking," Cole-Schwartz noted.

The number of companies that support ENDA has expanded over the years and now includes corporate titans like Bank of America, Best Buy, Coca-Cola, Ernst & Young, Google, Goldman Sachs, and even Marriott.

So even if, as looks likely, ENDA will not pass this year, supporters are more and more confident that it will be passed sometime -- perhaps in the not-too-distant future.

"Our biggest haters are a small group," Keisling said. "It's just politics. ENDA is going to pass as soon as reasonable people get control over both chambers of Congress. I don't just mean Democrats," she says. "Every Republican president from now on will be better than the last on LGBT issues. If a friendly House and Senate gets elected, we're going to push really hard to get it done really fast."