Center for American Progress’ ENDA FAQ Misinterprets Critical Provision

UPDATED: see below.

Recently, the Center for American Progress published an FAQ on ENDA (the Employment Non-Discrimination Act). Although generally accurate and informative, this article provides a misleading impression of the scope of ENDA’s provisions concerning access to restrooms and other sex-segregated facilities.

In the hopes of correcting this error, I have emailed CAP. I will update this post when I receive a response.  Here’s what I told them:

As I’m sure you know, the most contentious issue surrounding anti-discrimination protections for trans people is access to restrooms and other sex-segregated facilities. Therefore, I was disturbed to see that CAP’s FAQ misinterprets ENDA’s provisions on that issue. In response to the question, “What does ENDA require of employers in terms of restroom facilities and access?,” the article states:

“Under ENDA, employees would only be required to provide employees with ‘reasonable access’ to adequate restroom, shower, and dressing facilities consistent with an employee’s gender identity. Employers who deny employees access to a shared facility would not be in violation of ENDA as long as they provide a viable alternative. Nothing in the proposed bill requires employers to construct new or additional facilities.”

There are two primary problems with this response. First, ENDA never mention restrooms. Consequently, ENDA’s gender identity non-discrimination requirements apply to access to restroom facilities in the same way they do to all other “terms and conditions” of employment. Thus, there is no exemption for employers who, for whatever reason, decide to bar a trans woman from the same restrooms that other women use, or vice versa for trans men.

Second, section 8(a)(3) of ENDA, from which the “reasonable access” language in the above quote is taken, applies only to “shared shower or dressing facilities in which being seen unclothed is unavoidable.” (Emphasis added.) That section allows employers to bar trans employees from such facilities (but not facilities where being seen unclothed is avoidable), provided that the employer provides separate shower or dressing facilities that are consistent with the employee’s gender identity at the time of being hired or as specified in a later notice to the employer.

By implying that ENDA provides some sort of exemption regarding access to restrooms, and failing to note the very limited nature of the exemption for shower and dressing  facilities, the response in the FAQ misleads employers, trans people and the public in ways that I believe can unnecessarily complicate the debate on non-discrimination protections for trans people. Accuracy in describing what ENDA does and doesn’t do is essential in informing the public debate on these issues. Therefore, I hope you agree that a revision of the portion of FAQ dealing with these issues is necessary.

For my interpretation of how ENDA would apply to sex-segregated facilities, see Why the “Transsexual” vs. “Transgender” Debate Is Irrelevant to the Fight for Equal Rights.

UPDATE: Apparently, in response to my email, CAP has edited the section on facility access.  It now reads:

Q. What does ENDA require of employers in terms of facilities and access?

Under ENDA, employees would only be required to provide employees with “reasonable access” to adequate shower and dressing facilities consistent with an employee’s gender identity. Employers who deny employees access to a shared facility would not be in violation of ENDA as long as they provide a viable alternative. Nothing in the proposed bill requires employers to construct new or additional facilities.

As you can see, all they’ve done is delete the word “restroom.” The second error, and the resulting misimpression that employers can exclude trans people from all shared showers & dressing rooms with impunity, remains. Nice try, CAP, but you still didn’t get it right.

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Why the “Transsexual” vs. “Transgender” Debate is Irrelevant to the Fight for Equal Rights

I hesitate to jump into these shark-infested waters, but here goes.

I certainly have my own opinion on the “transsexual” vs. “transgender” debate that has ignited many a flame war on the internet over the last few months between those who want to separate our community based on those who have had or, at least, want to have, SRS, from everyone else, but I’m not going to express that here. Instead, I’m going to take a position that I’ve never seen expressed by anyone else, although some have come close. My position comes from my background as an attorney and my understanding of how anti-discrimination laws are written and are intended to operate.

Here’s what I know to be true: the dispute about who is transsexual and who isn’t is irrelevant to the fight for protections for transsexual, transgender, genderqueer and every other gender variant or gender nonconforming person in this country. Why? Because of how anti-discrimination laws are written for both practical and constitutional reasons.

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I’m a Dreamer

Over on Bilerico, Karen Ocamp shared her take on President Barack Obama’s speech at HRC’s annual dinner last night.  I don’t go for name calling (Karen says Obama is a “sissy”), but I share her disppaontment at Obama’s failure to use the power of his office to put action to his words, to demonstrate there is more to him than rousing speeches and inspiring words.  Here’s my dream of what Obama could have said to show that “Yes, We Can!” is more than just a slogan to win votes and volunteers, which I left as a comment on Karen’s essay:

I was very disappointed in Obama’s speech. I don’t think it would have been much more of a risk, politically, for him to have said, “Tonight, I call on Congress, on Speaker Nancy Pelosi and Majority Leader Harry Reid, to start making my vision for America a reality by passing ENDA and delivering it to my desk to be signed into law.” Or to say, “Today, I signed an executive order telling the United States military to stop spending your tax dollars on investigating and discharging dedicated Americans who have volunteered to serve our Nation simply because of who they are. Our county cannot afford to lose those soldiers, sailors, air men and women and others. But, more importantly, I signed that Order because it is the right thing to do. And, now, it is time for Congress and the rest of America to do the right thing too. We can no longer stand on the sidelines and watch as Americans are denied the promise of equality that this great Nation has stood for for more than 200 years simply because of who they are, and who they love.”

But, then, I’ve always been a dreamer. It’s hard to maintain that hope, however, in the face of continued disappointment.

As Rep. John Lewis, who marched with Martin Luther King, Jr., said on the floor of the House during the debate over a trans inclusive ENDA in November 2007, “It is always the right time to do the right thing.”  Mr. President, the time is NOW!

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eQualityGiving’s Omnibus Equality Bill Proposal

eQualityGiving is proposing a bill to correct the unequal treatment of LGBT people in all areas of federal law – employment, housing and public accommodations discrimination, the American with Disabilities Act, DOMA, DADT, etc. Read about (and download) it here. Whether or not a comprehensive bill like this is ever introduced or enacted, I think it serves a useful purpose in uniting the debate on the many ways in which we are treated unequally and helping to ensure that the changes we seek are consistent.

What do you think?

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FYI, here is eQualityGiving’s email announcing its proposal:

INTRODUCING THE EQUALITY & RELIGIOUS FREEDOM ACT

Dear Abigail,

What if we asked for legal equality all at once in one comprehensive omnibus bill?

THE BLUEPRINT FOR LGBT EQUALITY

What would a bill for total legal equality look like? We asked attorney Karen Doering, a very experienced and savvy civil rights attorney, to prepare such a bill. It was presented and discussed on our listserv, which includes many of the major donors to the movement and the executive directors of all the major LGBTQ organizations.

We believe now is the time to introduce an omnibus bill.

We have prepared a section of our website with all the information about the proposed bill:
www.eQualityGiving.org/Blueprint-for-LGBT-Equality

There you can read the actual text of the bill and read the answers to the frequently asked questions. There is also a section reviewing the status of the incremental bills currently proposed. You can also post your comments directly on the site.

WHAT THE OMNIBUS BILL COVERS

1. Employment
2. Housing
3. Public accommodation
4. Public facilities
5. Credit
6. Federally funded programs and activities
7. Education
8. Disability
9. Civil marriage
10. Hate crimes
11. Armed forces
12. Immigration

INCREMENTALISM vs. OMNIBUS BILL

Some people think that an omnibus bill is too unrealistic to pursue because Congress functions in a very complex way. But the country voted for a new leader who promised major changes to the way our government functions.

We have tried incrementalism at the federal level for LGBT equality for 35 years without any results. Now is the best time to capitalize on the energy of new leadership and propose what we think change looks like.

As the Rev. Dr. Martin Luther King said:

“A right delayed is a right denied.”

Asking for an omnibus equality bill does not mean that we need to pursue it at the expense of incremental bills. Both approaches can be used simultaneously, and we encourage this strategy.

An Omnibus bill has two major benefits:

> It points out in clear legal terms all the areas in which we are not treated equally under the law. If we ask for less, we will certainly get less.

> An Omnibus bill provides a standard to which incremental victories can be compared. We may discover, for example, that even the trans-inclusive ENDA introduced in March 2007 still did not provide the same level of protections in employment that other groups receive.

SAY WHAT YOU THINK

If you believe that, in addition to incremental bills, we should also push for an Omnibus Equality Bill, tell your member of Congress, talk to your friends, and write about it on the site. All the info about the bill is here:

www.eQualityGiving.org/Blueprint-for-LGBT-Equality

For many months we have been preparing this Omnibus Equality Bill. Join us to push for it, so that we can achieve LGBT legal equality faster.

Best regards,

Juan Ahonen-Jover, Ph.D.
Ken Ahonen-Jover, M.D.
Founders, eQualityGiving

P.S. Please forward this alert to others who could be interested.

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UPDATE – 3/24/09

Recently, there has been some discussion in the blogosphere about the impact of what some believe to be a narrower definition of “gender identity” in the federal Hate Crimes Bill (HR1592) from 2007, when compared to the definition of that term in the gender-inclusive ENDA (HR2015) from that same year.  (The Hate Crimes Bill defined “gender identity” as “actual or perceived gender-related characteristics,” while the inclusive version of ENDA defines it to mean “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.  To learn about this discussion, read Kathy Padilla’s recent posts on The Bilerico Project here and here.)  In a comment I left on eQualityGiving’s website, I pointed out this difference and the risk of unnecessary litigation over whether the definitions are intended to have different meanings.  In response, eQualityGiving has amended their Omnibus Bill to include the same definition in all its provisions, including hate crimes.  The revised version of the bill, dated March 21, 2009, is available for download on eQualityGiving’s website.

In my original post, I failed to note one huge advantage eQualityGiving’s Omnibus Bill has over even the inclusive version of ENDA.  Rather than enacting a separate statute with a broader exemption for religious organizations and other provisions that differ from existing civil rights law, eQualityGiving’s bill would simply amend Title VII of the Civil Rights Act of 1964 (the federal law banning sex, race and other discrimination in employment) by adding “sexual orientation” and “gender identity” to its terms.  As Karen Doering, the drafter of the Omnibus Bill, explains on the FAQ page for the bill, this approach has substantial advantages over ENDA.  Having worked as an investigator of discrimination claims under Title VII and being familiar with its terms and, especially, how it has been interpreted by the courts, I see this as a major improvement over current proposals.

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The Sadness I Feel

Last night as I went to bed and this morning when I awoke, my primary emotion in the wake of yesterday’s election is one of overwhelming sadness. The sadness I feel is complex but comes largely from two sources, one political, one personal.

On the political side, I was elated by the election of Barack Obama and the promise of fundamental change it brings. I shared that elation with a restaurant and bar full of fellow Democrats. It was an intoxicating moment. I spent more than a dozen hours over the last four days in the local Democratic headquarters and the headquarters of our local candidate’s campaign for Congress, making phone calls to encourage Democratic and Independent voters to get to the polls and support Obama and the local Democrats. The election of a Democrat to the House of Representatives from historically conservative Northern Arizona is a wonderful victory, and part of the hope that Democratic gains in the House and Senate portend for passage of an all-inclusive ENDA and the Matthew Shepard hate crimes bill, and the repeal of DOMA and DADT.

But I realized last night that my hopes and dreams for change from this election really rested on the fate of Florida’s Amendment 2, Arizona’s Proposition 102 and California’s Proposition 8, all of which proposed to amend their respective state constitutions to prohibit equal rights to marriage for same sex and same gender couples. I also realized that I hadn’t acknowledged to myself how important the defeat of those measures had become to me, presumably in a misguided attempt to protect myself from the disappointment that I feel this morning. I had told myself that, although the passage of the Florida and Arizona measures was probable, there was a chance that California’s Prop. 8 would be defeated, thus preserving the California Supreme Court’s historic decision that prohibiting same-sex marriage violated the California constitution; and that, as long as Prop. 8 was defeated, we had a chance to maintain the momentum of change in the treatment of LGBT people that seemed to be building with the California court decision, the elimination of the ballot initiative to overturn Montgomery County, Maryland’s ban on gender identity discrimination, and what had seemed to be a sea change in the attitudes of Americans toward LGBT people and our community’s willingness to fight to continue those changes.

This morning, however, there is no doubt that both the Florida and Arizona measures have passed. Although there are still a substantial number of provisional and late absentee ballots yet to be counted in California, which theoretically could shift the outcome there, the passage of Prop. 8 also seems certain. The inability of our community and our allies to defeat even one of these attacks on our rights by those who hate us and believe that we are undeserving of all that this nation offers to everyone else is so incredibly sad and depressing. I find it impossible to express the hopelessness that I feel. All I can say is that that hopelessness, that feeling that nothing can or will ever change for the better, that it will never be OK to be who I am, that there will never be a chance that I am loved and respected for who I am, has been the source of the depression I have experienced since I was a young boy wanting to be a girl. Although I have learned many ways to remind myself that all those beliefs are lies that my ego tells me to keep me trapped and separated from the knowledge of the Love that I am, this morning all I feel is the darkness.

The personal side of what I’m feeling comes from this: I know what love feels like. I know what it’s like to have someone with whom I can share my deepest self, someone with whom I feel safe enough to share all of my thoughts, all of my feelings, and who feels safe enough to do the same with me, both of us secure in the knowledge that all that we share will be accepted and honored without judgment, without the need to question or change or suggest, someone who recognizes and is able to live the knowledge that we are not our thoughts and our feelings, and that our love for each other lies so far beyond those things as to be unassailable. That safety, that absolute acceptance, that connection at the level of heart, the heart that knows no fear, only love, is what I seek. Today, I long for that, sad in the recognition that is not part of my life today.

The knowledge that this is what I seek has been building slowly over the last few weeks. It came full blown into my consciousness last Thursday when I saw Byron, my friend and therapist who, over the 13 years that we have known each other, has come to know me more intimately than anyone else in my life. Byron helped me to recognize that this is what I seek, what I long for at the core of my being, and he helped me to honor and cherish that desire as an important and valued part of who I am, and who I wish to be.

That desire to connect expresses itself in many ways and isn’t limited only to the desire to have a partner to share my life with. I felt it over the last several days as I joined with other volunteers making phone calls to get out the vote here in Arizona and as I became part of the hope and enthusiasm that became palpable in this country as McCain continued to shoot himself in the foot and Obama demonstrated his integrity and commitment to change and the promise of finding a better way for all of us to live and connect. Sitting in those crowded rooms, all of us talking, dialing and sharing the moments of triumphs and connection with voters who supported Obama and the desire for change, and the disappointment from encounters with those who, seemingly beyond reason, opposed Obama and the need for change in this country, I felt connected, a sense of belonging, of doing something concrete and positive to change this country, to restore hope, to me and to other LGBT Americans who, like me, feel so marginalized and disconnected.

When I went to the local Democratic election party after the polls closed, I hoped that sense of belonging and connection would continue and that, hope against hope, I might even make a new friend, someone who might want to meet again and see if we could connect on a deeper level. It didn’t happen. I didn’t spend my time there alone in a crowd of people, as I have many times in the past. Instead, I talked with other volunteers that I had met through the weekend, and with other friends that I had met elsewhere. After the short moment of elation at the news that Obama had won the presidency, however, my sense of isolation, my disappointment at the reality that no heart connection was to be found there, and my fears about the outcome of Prop. 8 and the other same-sex marriage bans, combined to send me home to my laptop, the internet and the news. The reality of the passage of those measures quickly became apparent and my sadness became palpable, as I realized that Obama’s election hadn’t really changed anything for me, personally or politically, and that, yet again, the hope for the things that I want in my life – love, connection, community, acceptance and respect – lies in the distant future, if at all. Unable to connect at the level I needed from friends on the internet, I signed off Yahoo Messenger and Facebook, turned off my cell phone and cried. I cried at the seemingly insurmountable barriers that separate me from those things and from even my closest friends.

I sit here this morning trying to understand and express what I feel, and the tears still come. Where is hope? Where is love? Why do I feel so apart, so “other” from the rest of the world? Soon after I embarked on this road of seeking knowledge of who I am at the deepest levels and finding a way to move beyond the loneliness and isolation that I have always felt at the core of my being, I knew that I had chosen a difficult path, one that not many are willing to venture down. But I also knew without doubt that no other path offered any hope of finding my heart’s desire. Today I get yet another opportunity to experience those challenges and to remind myself why I continue to seek for love and connection. Right now, however, all I feel is pain, disappointment and near exhaustion at all that this path requires of me.

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Diane Schroer’s Recent Title VII Win and ENDA

Jillian Weiss, an attorney and law professor who writes an excellent blog on transgender workplace issues recently posted an excellent article on The Bilerico Project with her thoughts on last week’s decision by the federal district court in Washington, D.C. in Diane Schroer’s sex discrimination lawsuit against the Library of Congress.  In a landmark decision, Judge James Robertson held that the Library violated the federal ban on sex discrimination in employment (contained in Title VII of the Civil Rights Act of 1964) when it withdrew its previous offer to hire David Schroer, an anti-terrorism expert and  former Special Forces officer, as a terrorism analyst when they learned that she intended to complete her transition and begin work as Diane.  Among the arguments that the Library made in its defense was the claim that the exclusion of gender identity and expression protections from the Employment Non-Discrimination Act (ENDA) in the House of Representatives last year proved that Congress never intended the ban on sex discrimination to protect against discrimination based on gender identity.  Fortunately for all of us, the court rejected that argument.  However, the argument that Judge Robertson used to reject that claim is weak and, as Zoe Brain pointed out in her comment on the same article, not very convincing.  There are, however, much better reasons to reject the Library’s claim, which I put into my comment on Dr. Weiss’ article:

I’m an attorney and my practice is limited to appellate work only (criminal appeals in my case, but the rules for interpreting statues are the same whether you’re talking about civil or criminal law). The argument that the exclusion of gender identity and expression from ENDA last year indicates Congress’ understanding, and intention, that sex discrimination under Title VII doesn’t cover gender identity discrimination is an obvious one. In the end, however, it’s completely bogus.

Ask yourself, how is the belief or understanding of a completely different Congress almost 45 years after Title VII was enacted relevant to what Congress intended sex discrimination to include back in 1964? It’s not the job of Congress to decide what laws they’ve already passed mean. That’s the job of the courts.

Two other important factors further undercut this argument. First, if you review the congressional record from 1964, you will see that sex discrimination was added to Title VII with the explicit intent to defeat it by convincing the majority of Congress that it was too radical to vote for. So, there’s no evidence in the record that Congress intended sex discrimination to mean anything, let alone evidence as to whether they intended “sex” to apply only to biology or to include gender identity.

Second, what happened last year was simply that a single committee of the House of Representatives sent a bill to the floor of the House that didn’t inlcude gender identity and that the House passed that bill. It was never passed by the Senate or signed into law. Consequently, while it may be proper to say that the House Labor Committee didn’t think that gender identity discrimination should be illegal, there is no evidence that the full House or the Senate agreed, since they were never given the opportunity to vote on that question. Divining legislative intent from Congress’ *failure* to do something without any explicit up or down vote on the issue is a perilous business.

Finally, I’m no conservative by any measure, but I agree with Justice Scalia that the first place we have to look in determining what Congress intended is what they actually said. It frustrates me to no end when the courts here in Arizona agree with prosecutors that, despite the explicit language in a statute, the legislative history shows that they meant something entirely different. At some point, what the legislature or Congress actually said has to mean something.

This is not an argument that, if Congress didn’t think about the problem in 1964, Title VII shouldn’t apply to it. As one person involved with the Schroer case (it may have been Sharon McGowan, the ACLU’s lead attorney) recently said to a reporter when asked if Congress intended Title VII to apply to trans women and men, the framers of the Constitution weren’t thinking about TV either when they talked about freedom of the press in the First Amendment; does that mean it shouldn’t have the same protections as newspapers?

Change is a natural process that preexisting laws must continually adapt to. It is the difficult but absolutely necessary job of courts to determine how those laws should be applied to situations that the people who adopted them never contemplated. That doesn’t make the process illegitimate; it just makes it very, very hard.

(Crossposted on TranscendGender.)

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Big Changes in Store?

Both of my fans ;-) have been clamoring for some good news, so I promised Khyri I would see what I could do about that.  (Actually, I want to thank all of my friends for their caring and concern.)

This summer has been a challenging time for me in many ways, although it has also had many rich rewards.  One thing that has been clear since last spring, however, is that I need to make some big changes in my life.

First, I want – actually, I need — to change my job.  One thing that has become clear since I went full-time last year and have become more involved in fighting for equal rights for trans, as well as, lesbian, gay and bisexual, people is that that’s where my heart lies.  I get up every morning, turn on my laptop and start reading blogs and the various Yahoo groups I belong to, posting comments, and chatting with friends, giving support where I can, receiving it when I need it.  I can quite easily and happily spend hours doing that — and often do.  But, when the thought of my need to work and actually earn a living begins to creep into to my pleasantly occupied brain, instead of joy, I feel dread.  Over the last few years, I’ve worked hard to learn to recognize when I’m having a feeling, something I had no clue about for most of my life, but you don’t have to be a rocket scientist to see that there’s something wrong with this picture.

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