Legislation to protect gay and lesbian Americans that passed the House last week fell short for transgender people and their advocates, who wanted "gender identity" protections that got cut from the original version.

Mara Keisling

(WOMENSENEWS)–While many of her political allies were celebrating last week’s passage of a congressional bill to end workplace discrimination against lesbians and gays, Mara Keisling, executive director of the National Center for Transgender Equality in Washington, D.C., was distraught by the "watered-down, anemic bill."

While a Nov. 6 poll by Human Rights Campaign found that 70 percent of lesbian-gay-bisexual-transgender, or LGBT, people expressed support for the Employment Non-Discrimination Act of 2007, a significant faction say transgender people were singled out and left behind when the initial version of the bill was derailed in Congress.

In addition to banning discrimination against people based on homosexuality, bisexuality or heterosexuality–as the bill passed by the House of Representatives states–the initial version also protected "gender identity."

A less familiar idea than sexual orientation, gender identity is crucial for transgender people because it recognizes that while much of the population may be "cisgender"–possessing a sense of gender identity in sync with their sex organs at birth–not everyone is.

Providing gender identity protection would mean such things as not being fired for making a gender transition while employed or not having to worry about being denied employment when birth certificates or drivers’ licenses don’t reflect a person’s gender presentation. It would also help people who live androgynously and are not easily identified as male or female.

The original version of the bill–introduced in late April by Reps. Barney Frank, D-Mass.; Deborah Pryce, R-Ohio; Tammy Baldwin, D-Wis.; and Christopher Shays, R-Conn.–would have prevented discrimination based on "appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth."

The original bill was expected to pass out of the House and the Senate relatively easily. Supporters believed that even if President Bush vetoed the bill, the next administration might be more favorably disposed.

Pre-Election Damage Control

But in late September, Frank, who is openly gay and the bill’s lead sponsor, told advocates that ENDA–the Employment Non-Discrimination Act–did not have the votes to pass the House if it included gender identity. Frank said that, particularly for Democrats in vulnerable districts, having to vote on a bill with protections for transgender people so soon before the election would be damaging.

When Frank replaced the bill with one that only discussed protection based on sexual orientation, advocates of gender identity inclusion organized a coalition–United ENDA–to lobby to restore the reference to gender identity. Spearheaded by the National Gay and Lesbian Task Force, the ultimately unsuccessful effort drew 400 allied organizations into a national grassroots outreach and lobbying effort focused on Congress, media and citizens.

Eight-five percent of the Democrats voted in favor of the compromise, sexual orientation-only bill; 80 percent of Republicans voted against the bill. It still must be approved by the Senate, and Bush has threatened to veto it, in any form.

Matt Foreman, executive director of the National Gay and Lesbian Task Force, based in Washington and New York, expressed dismay at the loss of the gender identity provision. "We are deeply disappointed," Forman said the day after the vote. "The past six weeks have been among the most difficult and challenging our community has ever faced."

The inclusion of transgender people in the lobbying activities of the Washington-based Human Rights Campaign has been a source of controversy for the civil rights organization dating back to the mid-1990s; it was not until 2004 when the group agreed to add gender identity to their lobbying efforts for the bill.

Deeply Rooted Dialogue

The dialogue about transgender people and the gay and lesbian community has been long and is rooted in early bar raids of the 1940s and 1950s when gay and lesbian people were cited under statutes that prohibited cross-dressing. Many of the protesters at the Stonewall Inn in New York, which marks the beginning of the modern-day gay rights movement in 1969, were transgender, identified then as cross-dressers or transvestites.

Recent activism has resulted in transgender being added to the name, mission and mandates of many organizations, and most gay rights groups work on issues that affect all LGBT communities.

But the battle of the past six weeks about the inclusion of gender identity in ENDA has raised questions about the efficacy of that alliance: some are more committed than ever to the nexus of sexual orientation and gender identity, and others are convinced they should be separated.

Many LGBT advocates see employment non-discrimination legislation as a fundamental part of equality, and the final part of the civil rights legacy. As passed, ENDA would prevent discrimination on the basis of sexual orientation. While the bill is significant to advocates, the corporate workplace already has been transformed to have progressive policies for gay, lesbian, bisexual and transgender employees.

According to the Human Rights Campaign, 195 major U.S. companies of the 519 surveyed scored a perfect rating on their Corporate Equality Index, a survey of policies about sexual orientation and gender identity in the workplace. This is up 41 percent from last year’s report. In 2007, for the first time, the majority of companies–58 percent–provided gender identity protection.

Corporations and local governments such as San Francisco have implemented policies that protect and respect transgender employees, and they say the expense has been negligible.

Targets of Hate Violence

In spite of these advances, advocates note that transgender people continue to be vulnerable in the workplace and in society. Surveys of transgender people report than 60 percent have been targets of hate violence and many are still fired from their jobs when they transition.

It is not known how many transgender people there are in the United States today.

The Washington-based American Psychiatric Association sets the prevalence of people who seek sex-reassignment surgery at roughly 1 per 30,000 adult males and 1 per 100,000 adult females. This is only one end of the spectrum of the transgender experience, of course, with many people expressing gender in other ways.

For the United ENDA coalition the loss of language about an individual’s sex at birth amounted to forsaking those who are the most vulnerable to workplace discrimination.

Some worry the internal struggle over the competing versions of the bill will damage the community.

"What would the gay and lesbian community have looked like in the 1980s if lesbians had reacted the same way to AIDS as gay male activists have acted to transgender people?" says longtime activist Gloria Nieto of San Jose, Calif. "I think it will be hard for us to come back together when the next battle comes."

Discrimination against transgender people has a long history in the United States, says Susan Stryker, a historian and transgender activist in Vancouver, Canada, who notes local ordinances against cross-dressing that date to the 1840s.

Meanwhile, many state and local laws that criminalized gender-transgressive behavior, such as cross-dressing, have been overturned in recent years.

In the past two decades, dozens of municipalities and a few states, including California, Minnesota and Maine, have passed laws preventing discrimination based on gender identity and activists had looked to ENDA to codify this into federal law.

Julie R. Enszer is a writer based in University Park, Md. You can see more of her work at http://www.JulieREnszer.com.

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For more information:

United ENDA:

Human Rights Campaign:

National Center for Transgender Equality:

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