Pragmatism, principle, and law in ENDA:

There is no federal law prohibiting discrimination based on sexual orientation in private employment, though such protection was first introduced by Bella Abzug in 1974. Courts have consistently read Title VII’s ban on sex discrimination to leave out protection from anti-gay discrimination. Currently, in 31 states, including all of the South and most of the Midwest and West, there is no statewide protection for gays in private employment.

A controversy has been brewing among gay-rights advocates over how expansive to make a new federal law, the Employment Non-Discrimination Act (ENDA), which would protect gay people from private employment discrimination. On one side of the controversy are activists, including a large number of civil-rights and gay organizations, who want the new law to protect both gay and transgendered employees from discrimination. They fear that if trans protection is not included in ENDA, Congress will not act to protect transgendered people anytime in the near future. They argue this is a matter of principle: gay people should wait until “everybody” in the “GLBT community” can get protection – however long that might take. They vow to actively oppose any bill that does not include both groups.

On the other side are various commentators (see, for example, here and here and here and here) and Rep. Barney Frank (D-MA), who claim that ENDA cannot pass Congress if protection for transgendered employees is included. They support a new version of the bill that would protect gay employees, but leave protection for the transgendered for another day. They argue this is a matter of pragmatism: civil rights legislation proceeds incrementally, through a process of education and adjustment, and has never protected “everybody” and everything all at once.

Enter Lambda Legal, the national legal outfit representing gay people in everything from immigration to marriage to employment. Lambda claims that, aside from the cruelty of leaving transgendered people out of ENDA, there is self-interest for gay people at stake in including protection for “gender identity” as well as “sexual orientation” in the bill. In an open letter to Frank, Lambda argues:

We have no doubt that, were the weaker version of ENDA to pass, some employers will claim they have nothing against lesbians, gay men and bisexuals per se, but that they do not want men whom they see as unmanly or women who they believe are not feminine enough, and loophole would be invoked against almost any lesbian, gay man or bisexual who sought protection against discrimination under ENDA.

That is, according to Lambda, an employer might successfully argue that it did not object to gay people as such, but it didn't want any employee (gay or straight) who appeared to the employer to be gender nonconforming. So, under this hypothesis, an employer could get around the gay-only version of ENDA by claiming that it fired a lesbian for being “too mannish” rather than lesbian. Or it could claim that it fired a gay man for his effeminacy rather than his homosexuality.

As a factual matter, it would be passing strange to see such a case, since almost every instance of discrimination for gender nonconformity is accompanied by direct and explicit evidence of anti-gay discrimination (e.g., calling an effeminate man a "fag"). It would not be hard for a court or jury, and certainly would not be hard for Lambda's skilled lawyers, to pierce the pretext that the employer was not really engaged in anti-gay discrimination and thus violating the "weak" version of ENDA.

Indeed, we now have decades of experience with state laws that protect gay people from discrimination based on sexual orientation but not gender identity. If the inadequacy of sexual-orientation protections were a real problem — as opposed to a hypothetical or theoretical one — we should expect to see many such cases. But neither Lambda nor any other organization has yet produced a single instance in which an employer successfully argued around a gay-only employment protection law by claiming that it really fired the person for gender non-conformity.

Lambda points to one such case in its letter to Frank:

For example, just two years ago, a federal court of appeal ruled that a lesbian who claimed that she was discriminated against because she did not conform to stereotypical expectations of femininity did not to have a viable claim under New York state's Sexual Orientation Non-Discrimination Act (SONDA), which fails to include an express prohibition on discrimination based on gender identity and expression.

Curious about this example, I looked it up. The case Lambda refers to is Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2005). Sure enough, it does not support Lambda's argument and, if it's relevant at all, shows the opposite of what Lambda suggests. A "weak" version of ENDA would have helped the plaintiff's case.

Related Posts (on one page):

  1. Barney Frank's ENDA:
  2. Bush to veto ENDA?
  3. Lambda's ENDA:
  4. Pragmatism, principle, and law in ENDA: