As the US Senate gears up for a vote on the Employment Non-Discrimination Act today–which would prohibit discrimination based on sexual orientation or gender identity in the workplace–the New York Times described Senators’ nervousness about the bill:
One senator recalled having to explain to a colleague that the legislation would not require insurance companies to pay for sex-change operations. Another spoke of phone calls from constituents who were convinced that their children could be taught in school by men wearing dresses. And conservative groups like the Family Research Council are warning their supporters that the bill would force Christian bookstores to hire drag performers.
The largest group of beneficiaries of the bill would be gay, lesbian, and bisexual people who face discrimination in the workplace. While the percentage of the population who could be labelled “transgender” is classified information–those who know are sworn to secrecy, I hear–I do know that the percentage of GLB people dwarfs it. Still, all of the comments above focus on gender.
It was a thirty year project for activists to convince the Human Rights Campaign and ENDA’s legislative sponsors to keep gender identity in ENDA. For too long, the common sense wisdom was that fears like those expressed above would “kill the bill” and that, when push came to shove, it would be necessary to jettison gender identity to save sexual orientation. That’s why in the past at key legislative moments a gay realpolitik prevailed, one that pitted the Human Rights Campaign against transgender communities and allies. At one point in 2007, over 300 organizations signed a letter to press Congress (and effectively HRC) to not advance legislation that left out transgender people. That didn’t stop Representative Barney Frank from dropping gender identity from the bill that year. “Unfortunately, in 2007 we still had the ‘ick’ factor when people were confronted with transgender,” Frank told the Times yesterday. But in this legislative session it seems that HRC and ENDA’s supporters in Congress are serious about keeping gender identity* in the bill.
Of course, right now it’s all moot–while ENDA is about to pass in Senate today, it’s not expected to move at all in the dysfunctional House this session. But getting a gender identity inclusive bill through the Senate is truly a big deal.
I was motivated to write this post because reading the Times story I couldn’t help but notice how the fears of Barney Frank and earlier iterations of HRC were borne out by the comments from legislators. And, after a little poking around online, I was also struck by how easily it is to quell those fears. Staffers at the Human Rights Campaign are working round-the-clock to counter the “misinformation” circulating among Senators and some of their constituents. On HRC’s FAQ sheet, we learn that:
Nothing in ENDA prevents an employer from maintaining otherwise-lawful gender-based dress and appearance standards, so long as an employee is allowed to follow the standards consistent with his or her gender identity. Of course, requiring men and women to conform strictly to stereotypical views of male and female roles may violate Title VII as a form of sex discrimination. It would not, however, be a violation of ENDA.
Employers allow employees to use the restroom and other facilities segregated by sex that are consistent with the way an employee presents in the workplace. If a transgender employee is transitioning genders on the job, that employee and the employer work together to ensure that the employee has access to the appropriate facilities.
In other words, ENDA would not protect “cross-dressing” in the office. If it ever passes in its current form, the bill would not mandate particulars of insurance coverage, like “sex change surgery.” And while those “transitioning genders” would get to use some sort of restroom–everyone poops, according to Taro Gomi (actually, I guess there are exceptions because HRC explains that “most everyone” uses the restroom during their workday)–that restroom might not be the men’s room, or the women’s room, but another facility. The bill text doesn’t specify when “transition” is over. If the bill were to become law, that would be decided later in regulations promulgated by the Equal Employment Opportunity Commission.
Passing ENDA in the Senate is a real victory, a momentous step forward. Perhaps if (or when?) voters toss out the louts in the House who almost had the US default on its debt, they’ll be replaced by representatives who also happen to be more favorable to LGBT rights.
But it’s something of a loss as well. It’s a loss that the fears of legislators about different kinds of gender crossings could be so easily accommodated in the qualifications, caveats, and rules yet to be written. And that conformity doesn’t reflect gender conformity so much as the logics of the workplace: to use norms or rules constrict expression of any kind (headscarves, turbans, wrongly-gendered clothes), to mark difference whenever possible (manager vs. workers, men vs. women vs. “transgender” bathrooms), and to not pay for stuff whenever possible (retirement benefits, health care of any kind, “sex change surgery.”)
*Gender identity is defined in ENDA as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth”