In April 2007, Rep. Barney Frank of Massachusetts, Rep. Tammy Baldwin of Wisconsin, and others introduced the Employment Non-Discrimination Act (ENDA) that was transgender inclusive, in that it would provide protections for not just gays and lesbians but for people whose gender identity and expression didn't match their sex assigned at birth.
Lesbian, gay, bisexual, and transgender (LGBT) advocacy groups drummed up support for ENDA over the summer; the list of co-sponsors grew to over 170. But when the bill was introduced for a vote in September, legislators ditched protections for gender identity and expression, citing concerns that the inclusive bill lacked the votes. Over 30,000 LGBT people and their allies contacted their representatives to oppose a non-inclusive ENDA, but in the end, the House passed the bill by a vote of 235 to 184; seven legislators voted against the bill because it did not include gender-identity protections.
The sole LGBT organization that did not oppose the non-inclusive ENDA when the vote was taken, the Human Rights Campaign (HRC), claims to have been speaking for its constituency, too. The organization conducted a poll on Oct. 26 that found that 70 percent of respondents supported a gay-only bill if a trans-inclusive bill couldn't pass. "For 30 years ENDA has never once passed any house of Congress in any form," says HRC spokesperson Brad Luna, "and only in the last few years does it become fully inclusive. For the first time last year, although it was not the bill that we wanted, a piece of that goal to provide employment protections for the entire community was passed through Congress. We certainly see that as a significant step forward."
The 2007 fight over ENDA was certainly not the first moment at which the LGBT grass roots had the opportunity to announce, loudly and unmistakably, that protection for transgender people (and for gender identity and expression) was central to its concerns as a movement. Conversations over the place of transgender people in the lesbian and gay community have been going on for as long as the movement has been around. And the debate over whether to include protection against discrimination based on gender identity and expression -- often framed as whether to include transgender people in nondiscrimination bills or not--has been going on since the earliest gay-rights bills were drafted in the 1970s. Yet the notion that homosexuality is solely defined by sexual choices is fairly recent; early sexologists' accounts of homosexuality explained the phenomenon as one of "gender inversion," and gender nonconformity flourished in early gay communities. Anti-gay legislation of the 1800s actually policed gender expression; for instance, laws required patrons of bars to wear a minimum of three articles of gender-appropriate clothing. But as the gay-rights movement developed into a self-conscious political project, its gender nonconforming members were pressed to the margins.
"The question that calls for explanation is not whether transgender people can justify their claims to gay rights," Shannon Minter writes in his groundbreaking essay, Do Transsexuals Dream of Gay Rights? "but rather how did a movement launched by bull daggers, drag queens and transsexuals in 1969 end up viewing transgender people as outsiders less than 30 years later?"
Many of the first proponents of city and state laws banning discrimination based on sexual orientation didn't intend only to protect gay and lesbian people. Matt Coles, then still a law student and now the director of the ACLU's LGBT Project, was part of the legal team that drafted San Francisco's nondiscrimination ordinance in 1977. They left the term "sexual orientation" undefined in the measure, intending to provide protection for everyone from transgender people to "butch women and sissy guys." But when opponents of the ordinance charged that the language would also shield such "sexual orientations" as pedophilia, the drafting team realized it needed a stricter definition. "And although we really didn't want to do this, we defined the term," Coles says. "It was the easiest thing to do." The legislation now defined sexual orientation solely in terms of sexual-partner choice.
It was also, Coles acknowledges now, probably "the wrong thing to do." (The smarter approach, he says, would have been to amend existing civil-rights laws to include sexual orientation and gender expression in the definition of sex discrimination.) This approach spread to other cities and states, and by the time gay-rights leaders thought that Congress and the president were ready to pass and sign federal-employment protections in 1992, "sexual orientation" meant gays and lesbians only.
The first gay civil-rights legislation had hit the national stage in 1974, when representatives Bella Abzug and Ed Koch of New York introduced a federal gay civil-rights bill that would have offered sexual orientation protections based not only in employment, as ENDA would, but also in housing, credit, and public accommodations. In 1992, when a Democratic president took office, the comprehensive bill was stripped down to include only employment protections in order to help it pass--but it still failed. By then, the definition of sexual orientation excluding gender identity and expression was "just irresistible," says Coles, because it was reflected in almost all local laws. (Minneapolis stands out as an exception that proves the rule: In 1975, the city passed a nondiscrimination ordinance that included in its definition of sexual orientation "having or projecting a self-image not associated with one's biological maleness or femaleness." A Minnesota state law, passed in 1993, echoes the city's sexual orientation definition.)
Trans-specific advocacy emerged in the 1990s, when the LGBT policy agenda--whether on nondiscrimination, relationship recognition, or the military--was still very much the gay policy agenda. As both transgender and gender nonconforming lesbian and gay people became more visible, the pressure mounted to incorporate issues facing transgender people, and trans advocates requested a series of meetings with lesbian and gay advocacy groups to encourage those groups to expand their mission. Early converts included the National Gay and Lesbian Task Force, Parents, Families, & Friends of Lesbians & Gays, and Gay & Lesbian Advocates & Defenders. By the mid-1990s, the national groups reached consensus: Everyone, including the Human Rights Campaign, had made commitments to include transgender and gender nonconforming people in their work.
The shift hasn't been confined to the organizational level. Generationally, grass-roots gay and lesbian activists are far more likely today than at any point in history to see trans concerns as central to their organizing and activism--and to understand the importance of gender identity. "I don't hear any objection from people 40 and under," says Jennifer Levi, director of Gay & Lesbian Advocates & Defenders' Transgender Law Project. "It's just the way things are moving. It's no longer that easy to separate off trans identities from gay identities."
E.J. Graff, a Boston-based journalist who wrote a series of articles on trans inclusion for the gay and progressive press in the early 2000s, says she began her intellectual exploration because "what I thought and I what I felt" on the issue "were not lined up. Like every generation of young idealists, many of us [lesbian feminists] felt like we were inventing a brave new world of perfection," she says. "We were reinventing gender. The feeling was these sex roles are evil social constructions! We don't have to do it! We are free!"
But as she learned more about transgender people and trans advocacy, Graff realized that another way to understand gender was unfolding. "I grasped that it's not an intellectual thing, that it's far more visceral and necessary than that. That sense--like who you desire--comes preconsciousness. And whether that is shaped by nature, nurture, or culture at that point no longer matters, and you have to honor it. I just don't want to live in a society that doesn't respect people's profound emotional needs--as long as they are not actively harming someone else." The "uprising," as Minter calls the resistance to a non-inclusive ENDA, has for many provided incontrovertible evidence of the full embrace of transgender people by the lesbian, gay, and bisexual grass-roots organizations.
Still, some gay talking heads continue to wonder aloud whether trans people deserve a place in the gay-rights movement. Salon blogger Jon Aravosis suggested that the "uprising" over ENDA was anything but directed by the grass roots: "Sure, many of the rest of us accepted de facto that transgendered people were members of the community, but only because our leaders kept telling us it was so. A lot of gays have been scratching their heads for 10 years trying to figure out what they have in common with transsexuals, or at the very least why transgendered people qualify as our siblings rather than our cousins. It's a fair question, but one we know we dare not ask."
That premise is mistaken, say many transgender activists. "It's not that we just were sitting around one day and said, hmm, which movement should we attach to? We share culture, we share friends and enemies," explains Mara Keisling, a longtime trans activist who for the past five years has led the National Center for Transgender Equality. As Gunner Scott, a transgender-rights activist in Massachusetts, puts it, "As much as people want to deny it, we've been here all along."
Plans are in place to introduce a trans-inclusive ENDA in the next Congress. This has been one of the most violent years on record for assaults against transgender people; in 2007, LGBT advocates and legislators attached trans-inclusive hate-crimes legislation to the military-spending bill, which was voted on favorably in both the House and the Senate (although amid threats of a veto and concerns over Iraq War funding, legislative support in the House evaporated, and the provision was stripped from the bill).
Advocates are also taking on both private insurers' and Medicaid's refusal to cover sex-reassignment surgery. Levi cites this as a critical hurdle to overcome before other gains can be realized. "A lot of the misunderstandings about trans identities grow out of the misperceptions about the legitimacy of the physical condition related to trans identity for many people," she explains. "Unless and until people understand the legitimacy of trans identities, there will continue to be pervasive discrimination in employment, family law, health care, public accommodations, and everywhere else."
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