One of the things that is so perpelexing about the people who are in favor of the "gay-only" ENDA like Aravosis and Crain is their simultaneous lack of ackowledgement of the salience of gender and complicated parsing of gender-stereotype jurisprudence. They make the argument that transgender people don't need to be included in pending federal legislation because "a man who wants to cut off his penis and install a vagina in its place" has nothing in common with a gay man. This completely ignores the umbrella nature of gender discrimination on LGBT individuals which has not been acknowledged by the Courts. It is to fill THIS lack that federal legislation is needed and the original ENDA (HR 2015) addressed.
Clearly what animates sexual orientation discrimination is the fact that (mostly, but not only, straight) men and women are offended by the presence of men (and women) who do not conform to their gender's "mandate" to 1) sleep with people of the opposite sex and 2) maintain distinct gender roles. (This is known as the Koppelman-Law theory of sexual orientation discrimination as sex discrimination.) Gay men and lesbians violate these two main precepts in various levels of obviousness (c.f. the very attractive gay man who is the crush of all the straight girls, the "lipstick lesbian" and the prissy, effeminate gay or the butch lesbian).
Transgender individuals violate precept (2) with their various presence, and this is so frightening to legislators and the general public that they can't even wrap their minds around the notion that most transgender people do not violate precept (1).
The jurisprudence in this area is NOT very well settled and anyone who claims that gender-noncorming individuals are protected under either Titlle VII or the Supreme Court's now hoary decision in Price Waterhouse hasn't reviewed the latest conflicting decisions.
And what's the big deal about bathrooms anyway? Why can't there be some percentage of bathrooms that are gender non-specific? Doesn't everyone have gender-non-specific bathrooms at home??
Monday, October 08, 2007
Neverending ENDA Debate (Bring In the Lawyers)
The debate about what the new ENDA will do continues. I made this comment on The Volokh Conspiracy a legal blog which had a guest post by conservative gay law professor Dale Carpenter this weekend:
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2 comments:
"a man who wants to cut off his penis and install a vagina in its place"
This is hate speech. I can't believe that you failed to call him on it. Is it because you agree on some level?
We all lose when the debate becomes about whether to include or leave behind the transgender community. The debate should never have been thusly characterized. Either we get legislation that will help us meaningfully and effectively assert civil rights claims where employment discrimination occurs against those perceived to be GLB or T, or we will get anemic legislation that does less than that. Passing into law anemic, toothless, poorly worded legislation that will leave us with scant protection is not a win. The poorly worded compromise does not, as advertised, cover the gays and lesbians but leave the transgender out in the cold. Everyone who started down that distracting, rhetorical road did us all a massive disservice. That includes activists and bloggers on all sides of the issue. It is a red herring. The language that omits "gender expression" is insufficient because it fails to adequately protect all people who are perceived to be G,L,B or T. The gay organizations, Barney Frank and the blogosphere inadvertantly framed the issue in an unhelpful way when they launched into this "us" or "them" debate. It's plain silly to talk about winning protection for gays and lesbians at the expense of transgender people when that's not what slimmed down ENDA was about. It's just as ridiculous to say we can't pass legislation with the broader language because we can't get the votes to protect transgender people... as if "gender expression" language is simply about transgender people. Passing a narrowly worded ENDA would have meant winning a pyrrhic victory: it would have provided weak protection that is not as strong as it can and should be, and thus would have been a bill passed too soon. We know that getting that bill revised in a later amendment would be next to impossible. It had to be done right now. Transgender people are discriminated against because of their perceived sexual orientation and gays/lesbians because of their perceived gender non-conforming expression/identity all the time. This should never have been about bifurcating along "group" lines. This is legalistic, to be sure, and there may be scant precedent to prove that "gender expression" language is necessary to achieve protection for us all, but as legalistic as it is, it is common sense. There is rarely ever such a phenomenon as pure sexual orienation based discrimination. Why would we want a bill that requires the outlawed discrimination to be that narrow?
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