By Steve Charing
Two parallel events are occurring whereby activists are working towards lofty goals. One is an all-inclusive (gay, lesbian, transgender and gender identity protections) ENDA—the Federal Employment Non-Discrimination Act. The other is a plan to seek full marriage equality during Maryland’s 2008 General Assembly.
ENDA (exclusive of transgender protections) had been proposed since 1974. The new ENDA battle has traveled a convoluted road in Congress so far. A bill that would include transgendered persons as well as gays and lesbians was introduced in April with lead sponsor openly gay Rep. Barney Frank (D-MA) that would, if signed into law, prevent discrimination in the workplace based on sexual orientation and gender identity.
Then the crushing political reality set in: the Democrats in the House apparently did not have sufficient votes to pass an all-inclusive ENDA; that is, expanding the bill to cover gender identity would not pass. Some thirty votes were lacking. Rep. Frank, in consultation with House Speaker Nancy Pelosi, pulled the bill and pared it so that it would sexual orientation only.
The removal of gender identity from the original bill did not resonate well with many gay, lesbian and transgender rights organizations at the state and federal levels. In fact, over 300 such organizations, led by the National Gay and Lesbian Task Force, signed on to a letter to Ms. Pelosi (who favors an all-inclusive bill) that vigorously opposed the bill as it stands because it "leaves part of our community without protections and basic security."
The truncated bill passed committee and at press time a floor vote was scheduled for an amendment introduced by the other openly gay member of the House, Tammy Baldwin (D-WI) that would re-write gender identity protections back into the bill.
Equality Maryland, the state’s principal lgbt civil rights organization is among those who staunchly support an all-inclusive ENDA. At a recent gathering of local activists, executive director Dan Furmansky said, "Protections for transgendered people and gender identity are inexorably linked to lesbian and gay rights." He argued that delaying transgender legislation historically does not equate to fast action in the near term.
Indeed, Furmansky’s point is bolstered by the fact that a bill to safeguard transgendered people from discrimination failed during last year’s General Assembly despite indications that it had received broad support. While gays and lesbians earned protections as a result of Maryland’s enactment of the Non-Discrimination Act of 2001, transgendered people, who need the most protections, were omitted. They continue to lack them nearly seven years later.
Many lawmakers as well as their constituents are not familiar with transgendered individuals and are reticent about extending protections. They are fearful of the unknown, especially the political consequences. This complicates all-inclusive legislative strategies.
While these organizations seek to install transgender protections in ENDA, the rank-and-file appears divided. Bloggers and others decry the fact that if ENDA fails because of gender identity being added, the majority of the lgbt community would be left out in the cold and would lose long-sought anti-discrimination protections in the workplace.
Gay Democratic activist Peter Rosenstein, a member of the Gertrude Stein Club who opposed an "all or nothing" strategy on ENDA, was quoted in the Washington Blade that he did not believe the rank-and-file membership or constituents of the statewide and national groups support their leaders’ "all or nothing" position. "I’m not aware of a single one of these groups polling their members or taking a survey of their members," Rosenstein said.
Some gay activists don’t believe that gay and lesbian fortunes should be tied to the plight of the transgender community. "Other than sharing this minority status, I don't fully understand why transgender is part of a struggle that is being fought to specifically end discrimination based on sexual orientation," said Rob Lance of Columbia. "I see these two issues as apples and oranges: sexual orientation vs. gender identity." But Lance is opposed to discrimination against any group.
While I have always advocated full protections for transgendered people, I, too, never saw it as a matter of sexual orientation or rationalized the connection to lesbian and gay rights.
The upshot of this controversy is that ENDA, in any form, will not be enacted this year or next. Even if the bill passes the House (that would be historic to say the least) with or without gender identity, it is unlikely to pass the Senate, and if it did, President Bush will probably veto it. The Senate cannot muster enough votes to override the veto.
Therefore, the argument that lesbians and gays would be harmed if an all-inclusive ENDA went down to defeat does not wash. The best approach is to find a way to include transgender protections in the bill and begin a process of educating the public starting at the state level and hope that a Democratic victory in 2008 will translate into widening majorities in both the House and Senate and a more receptive president in 2009.
For those who are fearful that an all-inclusive bill would further delay protections based on sexual orientation, keep in mind that over 300 lgbt groups are opposed to excluding gender identity. That’s a lot of lobbying power. No bill will advance as long as there is pressure from these groups to keep the bill all-inclusive. So, it’s in everybody’s interest to get it right.
The other controversial issue confronting lesbians and gays in Maryland is the push for full marriage equality during the 2008 General Assembly. Equality Maryland will try hard to shepherd the Religious Freedom and Civil Marriage Protection Act, which promises to be an uphill struggle to say the least. They will not only be challenged to obtain sufficient votes on this hot-button issue, but will be forced to stave off a threatened constitutional amendment that would ban same-sex marriage.
Recognizing the political hurdles that are presented, gay activists as well as some local groups in Maryland are questioning the strategy of pursuing what is perceived to be an "all or nothing" approach. That is, Equality Maryland is advocating full marriage rights instead of seeking perhaps a more politically acceptable civil union type arrangement.
One activist told me that Equality Maryland is moving without the general backing of the gay and lesbian community. She urged a community-wide town hall meeting where all voices can be heard—not just from Equality Maryland’s leadership—to discuss the implications of the current strategy and what might be the best approach.
In fact, Equality Maryland is scheduling Town Halls starting off in Baltimore on November 5 at First and Franklin Church and in Takoma Park on November 8.
Of course, the concern is that if the so-called "all or nothing" effort fails, gays and lesbians would be deprived of any partnership rights that are offered to same-sex couples in Vermont, New Hampshire, New Jersey and Connecticut through civil unions.
Dan Furmansky understood these concerns and explained to groups and individuals that marriage equality must be sought but that the organization will also "do what we can to assure that protections are afforded to our community as swiftly as possible."
As Furmansky stated to me in an exclusive interview for Baltimore OUTloud, "Starting out the legislative process to win marriage by asking for [civil unions] that is intended to deliberately withhold marriage from same-sex couples does not make sense, either politically or philosophically."
Clearly the ENDA and the Maryland same-sex marriage efforts will present dicey moments for the community. As in physics, strong actions usually result in strong reactions. But no civil rights battles have been waged without controversy or second-guessing by others who are not directly leading the fight. To succeed, activists must overcome opponents of gay rights as well as opposition from those for whom the struggle will ultimately benefit.
No one ever said it would be easy.