Putting the ‘T’ In ENDA: I’m A Transgender Woman And I Deserve Employment Protection

November 8, 2013 1:00 a.m.

On Thursday afternoon, the Senate made history when it passed a bill that would ban discrimination against an employee based on sexual orientation or gender identity. It is, perhaps that latter part of the legislation that is most surprising, since as recently as 2007 some Democrats thought including transgender individuals under these protections would amount to its death sentence.

But first, a little context: At the federal level, there are a number of laws that prevent an employer from discriminating against members of certain marginalized groups. For instance, as an employer, you cannot discriminate against someone on the basis of their race, color, religion, national origin, age, sex, citizenship, familial status, disability, veteran status, whether or not they are pregnant or may become pregnant in the future or their genetic information.

But those protections don’t extend to gay, lesbian, bisexual or transgender people. This means that if a man in Arkansas posts a picture on a social media site with his partner, his employer can fire him for no reason other than the presumed knowledge of his sex life outside of work. This means that a future employer can look to this very article to decide whether or not they want to hire me, a transgender woman.

This isn’t right. I didn’t choose to be transgender any more than you, the reader, chose what gender you are. I wish I could have felt comfortable presenting as a man, but I couldn’t. Believe me, I tried. My situation is just such that I am a woman who happened to be assigned male at birth. A gay man doesn’t choose to be attracted to men any more than a straight man chooses to be attracted to women. Discriminating against someone for something wholly out of their control is both heartless and inconsistent with existing anti-discrimination laws concerning other conditions outside of one’s personal control. Race, age, color, national origin, sex, disability; none of those attributes are within their owner’s control, and so legal employment protections in place to prevent unfair discrimination.

Does my status as a transgender woman hinder my ability to perform my job? Absolutely not. Why, then, should an employer be able to fire me or refuse to hire me on this basis? The loudest argument I’ve heard against establishing a law that would extend employment protections to people like me has been a claim that by doing this, the religious freedom of a business would be violated. I ask, where in your particular religious text does it say you must have the ability to discriminate against others? I was raised Catholic, I’ve read the Bible cover to cover on multiple occasions, and I am fairly certain that such a passage doesn’t exist. What I did read were general sentiments imploring people to love thy neighbor and care for one another. I was taught that even if someone sins, we should love that sinner, even if we hate the sin. There’s no true religious basis for turning us away.

Even if I were to accept that your particular religion teaches you to shun those who are different, your right to religious freedom ends where my right to life, liberty and pursuit of happiness begins. We do not live in a theocracy, and our laws shouldn’t be based on the religious views of one particular spiritual sect. For this reason, for the protection of all citizens, it is time to stop treating LGBT people as second-class citizens. It is time for legislative action that echoes Thomas Jefferson’s belief that all men are created equal.

The Employment Non-Discrimination Act (ENDA), which passed the Senate Thursday in a final vote of 64-32, would extend employment protections to LGBT individuals. Under the protections outlined in this bill, employers wouldn’t be able to fire someone for being gay, just the same way they can’t fire someone for being Catholic. Employers would be prohibited from firing me for being a transgender woman, the same as they’re prohibited from terminating an employee for being African-American. This law would provide all U.S. workers with the same rights when it comes to employment protections.

Earlier this week, when Senate Majority Leader Harry Reid (D-NV) introduced ENDA in the Senate for a key test vote, all 54 Democrats and seven Republicans joined to say yes to banning this kind of discrimination. But this victory is bound to be a short-lived one. House as Speaker John Boehner has already indicated that he has no plans to take up the legislation in the House.

It’s worth looking at the history of this bill to see how remarkable the inclusion of trans people in the bill really is.

The last time ENDA was seriously considered was 2007, when the vote on ENDA was largely symbolic despite Democratic control of both chambers of Congress at the time. Then-President George W. Bush had indicated that he would veto the legislation should it make it to his desk, ending any hope of the bill becoming law.

With this knowledge, the House debate could have been an opportunity for the Democratic Party and LGBT advocacy groups to join together in solidarity, creating a united front around the rights of all gender and sexual minorities. Sadly, it wasn’t. Worse, it widened a rift between the gay and trans communities.

Former Rep. Barney Frank, who represented Massachusetts from 1981 to 2013, rose to fame and became known as one of the nation’s leading advocates for LGBT causes. He founded the National Stonewall Democrats in 1998. He received a 100 percent rating from the Human Rights Campaign for his stance on gay issues in 2006. In 2009, he was given the honor or receiving the top spot on Out Magazine’s annual “Power 50” list. There’s no question that Frank was a strong advocate on gay issues during his time in Congress. “Gay issues,” however, do not always equal “LGBT issues,” especially for Barney Frank.

In April 2007, Representative Frank, along with then-Reps. Shays (R-CT), Baldwin (D-WI), and Pryce (R-OH), introduced the Employment Non-Discrimination Act of 2007. Though the bill was first introduced 13 years earlier, the proposed 2007 legislation would include protection against workplace discrimination on the basis of gender identity. Previous versions only protected based on sexual orientation. Coincidentally, the day this legislation was introduced in 2007 was also my 21st birthday; marking both the coming of age of the bill’s inclusivity as well as my journey into adulthood.

By that fall, Frank had shelved ENDA over concerns that including transgender protections in the bill would harm its chance of passage, replacing it with another version that stripped of protections for transgender individuals.

The National Gay and Lesbian Task Force, along with 113 other national LGBT organizations, penned a letter of opposition to Frank’s new version of the bill. Notably absent from the letter was the Human Rights Campaign, one of the few LGBT advocacy groups who still supported this legislation after the removal of transgender protections.

In the days leading up to the vote in the House, former Rep. Anthony Weiner (D-NY), in perhaps his only serious effort as a congressman, gave a fiery speech in support of transgender inclusion in ENDA.

“There is an active discussion going on in this Chamber and elsewhere whether or not to include gender identity in the same category we include sexual orientation,” Weiner said. “I say, unequivocally, the answer is ‘yes.'”

Later in the speech, he ponders whether, given the entirely symbolic nature of the House’s vote (as it was obvious that the bill wouldn’t move in the Senate, with or without trans inclusivity), it’s worth doing anything at all if gender identity isn’t included, concluding that they shouldn’t. “If we are going to make a symbolic stand, the symbolic stand should be… that we are sticking together, that when we say ‘GLBT,’ we mean it.”

On Nov. 7, 2007 Baldwin introduced an amendment to Frank’s bill that would expand protections to individuals on the basis of gender identity. Seeing a lack of support from Frank and House leadership, Baldwin withdrew her amendment at 5:08 p.m. before a vote could be taken. Seventy-five minutes later, the bill passed the House by a vote of 235-184.

As was expected, the bill died in the Senate, and never even made it out of committee. In the end, Representative Frank’s pragmatism did nothing to affect the final outcome of the bill, and instead only exacerbated divisions in the LGBT rights community.

Today, ironically, those chambers have flipped, with the once-immovable Senate passing an inclusive bill with not-insignificant Republican support that is sure to languish in the House. I am proud that the Senate held firm on transgender inclusion in the 2013 version of the bill, even if the bill never becomes law. This is the united front we should have seen in 2007. Now, six years later, we finally have that. It’s a relief to know that the Democratic Party no longer views my civil rights as a bargaining chip to be played.

ENDA, or a law with the same general impact, will eventually become law. It’s a matter of when, not if. This inconsistency in employment non-discrimination policies will eventually be rectified, but only if we work together, keep pressure on our elected officials and stay together in solidarity. Until then, it will remain completely legal for employers in a majority of states to fire me simply for being me.

Molloy is the founder of Park That Car and works as a freelance writer. She has contributed writing to Rolling Stone, Salon, The Huffington Post, The Advocate, Death & Taxes, and Thought Catalog. Follow her on Twitter at @MissParkerMarie.

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