How Will Cory Booker's Election Affect ENDA?

Tags: Cory Booker, employment non-discrimination, ENDA, transgender civil rights

Elections have consequences and the election of Cory Booker in New Jersey to fill the unexpired term of the late Senator Frank Lautenberg brings us a loud and definitive vote in favor of the fully inclusive LGBT Employment Non-Discrimination Act, popularly known as ENDA. Right now in 29 states a person can be fired for being (or being perceived) as gay - and in 33 states for being or being perceived as transgender. That's it... goodbye!

In Pennsylvania, Ohio and Florida, there are no statewide protections for gay and trans people. In New York State, you are covered if you are gay or lesbian, but if you are trans.... Sayonara!

Some activists have argued that transgender people now have federal employment protections. Indeed, last month, Cori McCreery, a 29-year-old transgender woman, reached a $50,000 settlement in an employment discrimination suit against her former employer. Cori was fired in 2010 after informing her employer in Rapid City, South Dakota, of her intention to transition from male to female. A complaint was filed on her behalf asserting that discrimination on the basis of gender identity is a violation of Title VII of the Civil Rights Act of 1964, which forbids sex discrimination.

There have been a handful of discrimination suit victories that have gone in favor of transgender workers since the April, 2012 landmark case Macy v. Holder, which established that gender identity is, in fact, protected under Title VII. However, reliance on Title VII doesn't offer transgender individuals the protection necessary to close most of the employment and wage gaps they so often face.

Nearly 90 percent of transgender individuals note some sort of employment harassment [pdf]. As a result, transgender individuals experience significantly elevated rates of unemployment, poverty and homelessness. While Cori McCreery may have found justice, thousands of others still haven't found theirs.

Non-Discrimination Needs to Be Explicit

The paucity of these cases speaks clearly and broadly just how difficult it is to establish that discrimination has taken place. The effort necessary to file a civil rights lawsuit is extraordinary and cases are drawn out for months, if not years, at a time.

When a handful of transgender activists and allies attempted to amend New Jersey's powerful Law Against Discrimination (LAD) in 2005, we were told by progressive establishment political and legal allies that we were already covered because of a little known 2001 Appellate Court decision, Enriquez v. West Jersey Health Systems; it stated that transsexuals were included in "sex" and also stated that being transsexual was a disability.

That was all fine and good, but the employment posters I had to show in my business would not be changed, the housing posters in hotels and rental apartments would not be changed, nor would the public accommodations posters that are normally prominently displayed in all shops. None of them would be changed to include "gender identity or expression", leaving most trans people and employers and business owners unaware that there are protections under the existing law. Although ENDA is not as all encompassing as our NJ state law, it is explicit for employment. 

In 2010, when I was disgusted with a Democratic majority Congress, I advocated we kill ENDA and move on to something different. In 2013, things have changed. 

Can ENDA Pass in 2013?

With the retirement of former Congressman Barney Frank we now have a new prime sponsor of ENDA in the House, Representative Jared Polis of Colorado. While Rep. Frank had a history of mixed messaging about transgender inclusion in ENDA, Congressman Polis has only spoken "full inclusion" language. He also comes to Congress as a successful business person who can relate to talking about "employment." I've also noticed that Leader Pelosi is talking more consistently about an inclusive ENDA than Speaker Pelosi did in 2009 and 2010.

Without passage of a federal bill like ENDA that clearly outlines the illegality of discrimination against transgender individuals, public perception of transgender workplace rights will, at best, move slowly.

So, where are we now? This summer, the Senate HELP Committee passed a bipartisan ENDA by 15-7 with all Democratic Senators plus three Republicans - Hatch, Kirk and Murkowski - voting in favor. My Republican grapevine tells me there are several more Republicans who will vote in favor and with the election of Booker to the Senate, we now have replaced a maybe or a quiet "yes" for a big bold "YES!"

A reasonable person would assume that today's LGBT Community is united for an "inclusive" ENDA. I actually thought that was the case until I attended a panel/symposium at NYU Law School organized by the folks at Freedom to Work. To my dismay, suddenly there was a lively discussion among academic and other LGBT activist lawyers who obviously have comfortable jobs, that the religious exemption in ENDA is not good enough. 

The language and exemption in the current legislation is the same as in the last Congress when Democrats had control and progressives seemed happy with the wording. Is it possible that my cynical mind wondered if this could be an excuse for elitists to derail legislation that might help level the playing field for transgender people?

Over the weekend I attended a rally for a Democratic gubernatorial candidate Barbara Buono that featured our new Senator Elect. He makes no bones about championing ENDA and once he is sworn into the exclusive Club of 100, I believe that will be the signal to Harry Reid, to start moving ENDA toward passage. We need that win. We can discuss the significance, in spite of a hostile House at a future time, but a win in the Senate will at least give us options for progress.

Read more at http://www.bilerico.com/2013/10/how_will_cory_bookers_election_affect_enda.php#rTjHi6JRqLz1fUai.99

Women’s Education – Women’s Empowerment

Women’s Education – Women’s Empowerment

Posted by Barbra Casbar Siperstein, 

 

Education is the natural pathway to women’s empowerment. If America promises its citizens the freedom of life, liberty and the pursuit of happiness, the right of women to take responsibility for the health of their own bodies is absolutely necessary. We cannot expect to be mistresses of our own lives if we are subject to the burden of unwanted pregnancies which leads to all manner of ills, including financial dependence, losing the opportunity for higher education followed by fewer job opportunities, and ensuring second class roles and citizenship. The freedom to choose when it comes to our own health is now overtly under attack by the likes of Rush Limbaugh and the thunderous silence of the mainstream Republican Party and its politicians and leaders.
 “At present, our country needs women's idealism and determination, perhaps more in politics than anywhere else.” Today, more than ever, those words of Shirley Chisolm, the first woman to run for the Democratic presidential nomination, the first black woman to be elected to Congress and the first major party black candidate for President, ring loud and true. We need more women to stand up and step up, and more staunch allies like President Obama to stand fast. The Obama administration’s protections against discrimination in medical care promote the liberty, that which is necessary to complement women’s opportunity in education, in the workforce, and at home. An educated woman adds stability and balance to the family, our communities, and our country.

ENDA has died, time to bury it and move on!

Attending the signing of the Legislation that would enable the repeal of Don’t Ask Don’t Tell was incredibly joyful and exciting! As I watched the signing of the DADT repeal legislation I was ecstatic with emotion on this historic occasion, but it was bittersweet as I thought about a friend, a decorated very senior NCO who after 2 stints in Iraq had only 2 weeks earlier been sent to Afghanistan, AFTER she had secretly begun her "gender" transition. Think of the anxiety and fear!

I also thought about another friend in Northern Arizona, Jennifer, a Viet Nam vet, who was just elected as Commander of her VFW Post, perhaps the first transperson to be so honored. When given a reasonable chance, most people "get it"! It should be a "no-brainer".

ENDA should have been a “no-brainer”! It was with 200 sponsors and apparent momentum after the Committee hearings in 2009 considered low hanging fruit and ready to move after the historic passage and signing of the Matthew Sheppard, James Byrd Jr Hate Crimes Act! It was generally acknowledged as must less controversial than DADT! I still remember one of the first things I was told in “boot camp” by my drill sargent  was never to drop my soap in the shower! 

A no-brainer with almost 200 of the Fortune 500 companies having fully inclusive policies and about 40% of America’s population living in areas covered by state, county or local legislation covering the inclusive LGBT community in employment protections. Many state and local laws cover additional areas such as housing, public accommodations and some cover credit! Right here in America! No problems! It’s not as if we have to compare to laws and policies in Australia, Great Britain or Israel!

So what happened, after all ENDA is about jobs! Was not the whole nation concerned about our high unemployment rate… were we not talking about jobs? Yes, JOBS! ENDA appeared to be the low hanging fruit of Equality legislation.  Low hanging fruit, indeed only this fruit was left to wither and rot on the vine… and unlike the “rot” of d’Yquem this was not noble!

Honestly, I'm angry as Hell and frustrated as well at the either inability and/or unwillingness to pass ENDA. I chatted with Speaker Pelosi in November 2009 where she spoke quite definitively and confidently of passing Domestic partnership, ENDA, DADT and DOMA repeal in that order. A week later, ENDA went in to Committee for what I thought was a mild tuneup and action!

Try as I might, I could get no information about what was happening with ENDA ... hearing that it was all about heath care legislation ... but there "was" something more and no one was talking to me!!

In February 2010, I questioned the Speaker at a breakfast  after she had mentioned DADT as the only "gay" legislation. She expressed surprise at my question and implied that everything else was on track.

It was clear after that we only heard about DADT.

 As far as organized DC lobbying with transgender inclusion, there was a NCTE event where we in NJ synergized with Garden State Equality and had a caravan of LGBT people and straight supporters come down to DC and meet with the Congressman and Senators in a united front.

We saw that a new LGBT advocacy group had a half dozen or so people sit in at Speaker Pelosi's office to protest on behalf of ENDA! Wow was that impressive!  NOT! To my mind that was counter-productive.... now if they had 200 people, including families of LGBT people, parents, partners, spouses, siblings and children … THAT would have been a statement!

So, what did we hear from ENDA’s prime sponsor?

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'There were issues with the motion to recommit.''

Explaining the''issues,'' he said, ''Everyone thought we had the votes on the underlying measure, but it depended on what language the GOP [brought up] on the motion to recommit.

''Many felt it would bea troublesome sign to take it to the floor and not to be able to overcome the motion to recommit.''

Frank expanded upon that, adding some specificity to the fears, saying, ''What they were worried about was a motion to recommit, like saying that an elementary school teacher can't transition in the middle of the year.''

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I think that a reasonably well versed person on the ENDA chronicles might brand this as,“bullshit”! It appears to be a redux of 2007, when there was supposedly a problem with transgender language that everyone knew about, but neither the bill’s sponsor, the legislative leadership, nor the big beltway advocacy organization did anything to address it in any DIRECT manner! If there was some real attempt to address the "problem" in an effective, direct and businesslike manner, I am certainly unaware!!

I thought this time it would be different, we have a bill that the President WILL sign, we have momentum, we have a Democratic Party that had gender identity in their Convention Platform, and a Democratic Party that had “gender identity” nondiscrimination inclusion in their Charter and by-laws.

There were also people available to address any Congressperson’s concerns, available to educate on a one on one basis if given the opportunity. Those people had a track record of reaching across the aisle and bringing in votes for transgender inclusion in legislation. There was also a former well respected Republican Congressperson who expressed an interest to help, one who actually had a personal friend who is transgender.

The great fear was a motion to recommit regarding transgender language? With senior Republican Congresswoman  Ros Lehtinen supporting the bill, how far would they go to demonize her transgender son? You don’t try, you don’t get anything!

So, what did ENDA's prime sponsor do? Did he pick up the phone and make a call to his former colleague? Did he make any attempt to facilitate the use of people that had a track record of success?

I recall visiting a “blue dog” Democrat from the South, getting direct access thanks to a Democratic LGBT activist from his state … you know, we hit it off because I could relate to things as we were both vets .. He said that I was the first transperson he ever met and had several pointed yet relevant questions, which I answered. I had his vote. The same day I visited an uncommitted Senator and met with his senior staff. We had a productive conversation, where they had some good questions. Ironically the one question that required a detailed answer I relayed to them after downloading from the HRC website.  Did HRC ever speak to them?

If there was a problem with teachers, why not address it directly… there are teachers who have transitioned successfully across the country… bring them on!!

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 More from ENDA’s sponsor:

 “As to that education, Frank had a message for LGBT advocates, saying, ''In the interim what the community needs to do is educate on the transgender issue.''

The point was echoed by the Democratic leadership aide, who said ''there has not been the work done bythe community in the Senate'' to ensure the passage of an inclusive ENDA.”

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Barney Frank has said this before and he is saying it again after he has said that advocates have been doing a job of educating…. A bit of mixed messaging here! As far as the Senate is concerned … it has been very quiet, a lack of activity. In April of 2010, I met with Senator Merkley’s staff as well as Senator Reid's people and they were both on message that the House needed to pass it first and that it would be very helpful if there were some “blue dogs”  and genuine moderates to have voted for it.

But what do we get in the way of messaging from ENDA’s leader?

;As (Barney) Frank said, ''I would point out to you that they still have not been able to get transgender protections in liberal places. If you can't do it in Massachusetts, New York and Maryland, it doesn't get easier when you add in South Dakota, Oklahoma and Utah.''

Now that is really encouraging!! Some people look at a glass and see it half full and others see it half empty. He points to“liberal” places where transgender protections have failed … indeed Massachusetts that has marriage but no state-wide trans protections. It does seem perverse, but it probably says more about the LGB political infrastructure wanting to inclusive of the “T”. Why can we not look to the success stories of Minnesota, Maine, Colorado that are not necessarily the most liberal of states?

Did those liberal (failed) states really have a desire for transgender inclusion? Did anyone reach out to folks from, say, New Jersey where we passed a transgender law that covered employment, housing and public accommodations in the shortest period of time (less that 2 years from its introduction) and passed by the widest margin (102-8)? (I’m still ticked at 2 Republicans who said they would vote Yes and instead abstained) Did anyone ask what we did, look for advice, bring our legislative advocates in to help? Did we do magic? No! Did the LGBT community work in unison? Did the transgender activists and marriage equality activists work together and actually create a synergy and a larger footprint? Guess!

When we spoke about transgender rights, did we have one set of talking points? One size fits all? No! we had one set for Republicans and one set for Democrats and could freely supplement. Were there talking points for "non-liberal" people of faith? Did we micro-target when necessary? This wasn't rocket science, it's called selling!

It appears that ENDA is dead now and it should be buried and put to rest! We need a new LGBT non discrimination bill that is more comprehensive and we need new lead sponsors without the baggage of he failures of the past which have fostered cynicism and a lack of trust that is expressed vocally and in the blogs by many of the folks who are in the most need of such protections. We do need new “blood” and “fire” from people who express a comfort  level with full inclusion.

Legislation that would be LGBT inclusive to cover multiple categories of Employment, Education, Housing, Public Accommodations have records of success in several states, and there should be a wealth of stories of discrimination, as well as a wealth of success stories where such legislation works and the sky did not fall.

We seem to be obsessed with the failures, but we should focus on the wins and learn from them and build on them! Every arena is different and has different ground rules, but the basic game is still the same, we adjust and move!

I recall in the spring of 2005 trying to get a NJ Senator to introduce and sponsor to our “transequality” legislation. We went after the most liberal Senator who refused, and we couldn’t even get the state ACLU to support it ….  Incredible?   The reasoning was that they both thought they were doing the transgender community a favor since they thought we’d fail and, in doing so, lose what few protections that some transgender people had as a result of an appellate court decision! Fail? Failure was not an option! … But the uber-liberals had decided to be our gatekeepers and already pre-judged our fate!

We just changed some tactics and had a prior political investment later reap dividends and all the Senators who originally said no, or refused to say anything … all came around!

 We cannot afford a “defeatist attitude on an inclusive ENDA, we need reality and a willingness and desire to push envelopes and sell it!

Some will say, what about amending the Civil Rights Act (CRA) or an LGBT Omnibus Equality Act? Both are worthy and noble! Certainly LGBT equality is about civil rights! An omnibus bill would address every bit of legal inequality and should be there at the very least as a reference for all to see where we are 2^nd class.

As an author of The Dallas Principles, I want full equality now! No delays, no excuses! But I am also a pragmatist and realize that we must create the conditions for now … to be NOW! Suffice it to say that neither bill appears to have support among some of our key allies. There must be a shorter and more direct way to Now, and that I believe is through a path that has worked in many states!

Well, we have 2 years to put in a new bill and “work it” anew, while we make a much better effort to elect pro equality legislators who will elect a pro-equality leader! For those who demonized the Dems, better get used to Cryin’ John Boehner … he’s got real alligator tears for “us folks”! For my Republican friends who insist that Boehner and Cantor really don’t want to demonize LGBT people and deny us the opportunity to life, liberty and property … I say, “show me” … I hope I’m wrong, but show me in action, I’ve worked with both sides and give credit where credit is due!

So, who really gives a damn about LGBT employment … jobs or housing?