Getting What You Can Get

It seems that a trans-inclusive ENDA is not so easy. As it happens, Barney Frank has apparently been right and the leadership can't muster the votes for a fully inclusive bill. From The Hill:

Reps. Tim Walz (Minn.) and Ron Klein (Fla.), leaders of the class of freshman Democrats, carried a message to Speaker Nancy Pelosi (D-Calif.) on Tuesday that their fellow first-term lawmakers did not want to vote on an amendment extending civil rights to transgender employees.

House Education and Labor panel Chairman George Miller (D-Calif.), whose committee passed the Employment Non-Discrimination Act, said he told the freshman lawmakers at their Wednesday breakfast with Pelosi that the amendment did not have the votes to pass and would not be brought to the House floor.

In addition, Miller told the freshmen he recognized that the amendment exposed the first-term lawmakers to political attacks from conservatives and liberals alike, said two sources who attended the breakfast.

I'm not sure how that amendment would expose anyone to attacks from the left, but then I can't figure out how Congress sees anything anyway. Apparently Tammy Baldwin is now considering withdrawing her amendment.

I actually have gone over Jillian Todd Weiss' response to Dale Carpenter's comments on Lambda Legal's analysis of the legal protections for transgenders, which I touched on in this post. Carpenter's comments are here; Weiss' are here. Lambda's original letter to Barney Frank is here (pdf).

To a certain extent, with this latest wrinkle, this is all moot -- Lambda had earlier rethought its position and backed off somewhat, Baldwin's trans-inclusive amendment is probably not going to see the light of day, and it may have endangered the entire bill, which Bush will veto anyway because it's "unconstitutional and abridges religious freedom" (another crock of merda from the White House -- that's an outright lie).

Summary version: Lambda built its case largely on Dawson v. Bumble & Bumble, which was not the best tactic -- the plaintiff in that proceeding didn't really have much of a case, and the court's decision did not hinge on gender-identity discrimination at all.

Back to the Carpenter/Weiss bit: Carpenter's comments are tightly argued and quite clear. Weiss, not so much. For example, Weiss notes this:

2) federal courts, particularly in conservative areas of the country, have made sharp and absurd distinctions between sex, gender stereotyping and sexual orientation and would continue to do so because of the anti-gay shape of federal law, whereas state courts in liberal states with sexual-orientation-only laws do not have the same problem.

But Carpenter has already answered that issue, with his Title VII argument: the courts have been very leery in their approach to this argument because of the "danger" of using it to sneak in protections based on sexual orientation, but there is now a body of case law based on Title VII that does protect gender expression. ENDA would most likely lessen the hesitancy on the part of the courts appreciably, according to Carpenter. Weiss disputes that, but winds with a quote from an ABA paper that supports Carpenter's interpretation, as far as I can see. Weiss sums it up by saying:

In other words, gender expression is a notion related to, but not the same as, sexual orientation, and one does not justify the other. Thus, by the same token, sexual-orientation-only ENDA would not have helped her with the gender expression claim. This would have been a major problem for Dawson, whom the court said had no evidence pointing to sexual orientation discrimination. This cuts against the sexual-orientation-only ENDA, not in favor of it.

This seems to wander off in some direction of its own. I honestly don't see how you can say that a mortally weak case in a sexual-orientation/gender expression lawsuit illustrates anything regarding the probable effects of ENDA, with or without trans protections. Dawson is largely irrelevant to this whole discussion, as far as I can see, and Lambda has recognized that.

That's only one example of what I think is a series of misreadings and misinterpretations of Carpenter's arguments by Weiss. Granted, I'm not an attorney, nor do I play one on TV (sorry -- I couldn't resist that). I only used to write their documents for them, because the ones I worked for couldn't express themselves very well, but you don't have to be a rocket scientist to employ a little logic. The bottom line is that I didn't find Weiss' comments persuasive, either in substance or in tone. She doesn't really seem to have met Carpenter's arguments very effectively.

As I say, this is all pretty much moot at this point, since events don't wait for us to find time to read and think very often (not to mention trying to fit our lives into whatever space is left over), Lambda has revised its position, and the politics of getting this bill passed has changed radically. It would be nice if we could count on the Democrats to march in step on this, but then, I've never tried to herd cats, either.

I do think that the House leadership has it right on one or two points: if we tack the trans-protection language back onto ENDA (which a number of sources keep calling the "original" language, which it is not), it will go down. And, it looks fairly certain that a trans-inclusive amendment will fail. Either scenario is pretty damaging to the long-term interests of trans people, and in the first, they manage to take gays and lesbians down with them.

So let's get what we can get, and not put our trans fellows at risk of having to wait even longer for what should be a no-brainer but in this country, regrettably, is not.