Today, on a 27-21 vote, the House Labor Committee approved the Employment Non-Discrimination Act (ENDA), H.R. 3685, which would ban discrimination in private employment based on "actual or perceived sexual orientation." Many gay-rights groups, including most notably the national gay legal organization Lambda Legal, oppose the bill because it does not include "gender identity," a phrase that would protect transsexuals and other gender nonconformists from discrimination.
In a recent blog post, I criticized the view taken by Lambda Legal that the “weak” ENDA just passed by the Labor Committee – the version excluding “gender identity” – would provide insufficient employment protection to gay people. That critique was shared by lawyers and commentators in the blogosphere (for especially well-reasoned critiques, see Chris Crain's analysis here and John Aravosis' analysis here). Rep. Barney Frank, who introduced H.R. 3685 after he and other House leaders determined on a vote count that a broader bill could not pass, criticized Lambda by name in a lengthy and passionate speech on the floor of the House. I also heard privately from attorneys and supporters associated with Lambda, including experienced gay-rights litigators, who opposed Lambda’s legal critique of a limited ENDA on purported gay-rights grounds.
Lambda has now offered a detailed and substantive response to these critiques. Lambda’s concerns have to be taken seriously, coming as they do from an organization with experienced lawyers and a rich history of doing important work for the legal rights of gay Americans. As I’ll explain below, while Lambda has offered a clearer and more reasonable explanation of its views, its concerns remain exaggerated. The House should not reject H.R. 3685 out of misplaced concern for gay employees.
Given its institutional role and mission, Lambda’s strong desire for an expansive ENDA including both sexual orientation and gender identity is perfectly understandable. If I were a plaintiff's lawyer or headed an organization of civil-rights legal advocates, I would want as broad a set of civil-rights laws as I could get so that I would have instances of discrimination covered in every possible way, whether based on sexual orientation, gender identity, some combination or overlap of these, or something else. I would especially want the broadest possible coverage in an era when courts do indeed seem increasingly to read the liability and remedial provisions of civil-rights statutes quite narrowly. If the choice were, then, between an ENDA that included both gender identity and sexual orientation and an ENDA that included only sexual orientation, that would be an easy call. But if Barney Frank is right that the votes aren't there right now for a trans-inclusive ENDA, and I certainly don't have the political acumen or inside knowledge of Congress to say that he's wrong, the real choice is between passing out of the House a "gay-only" ENDA or no ENDA.
Given that choice, I think a good litigator or civil-rights advocate would want to maintain the political momentum created by House passage of a gay-only ENDA unless he thought it would do more damage than good or would accomplish so little good that other considerations (of fairness to trans people or justice or something else) would override.
Lambda's Legal Concerns
Lambda’s legal worry is that a limited ENDA might accomplish very little good and might even backfire, eliminating existing protections in federal law. It comes down to a concern that effeminate gay men and masculine lesbians might effectively have no legal protection from discrimination for their gender nonconformity under federal law if a limited ENDA passes. Right now, gender nonconforming gays have better arguments for legal protection than do gender conforming gays under federal law. After a limited ENDA passes, worries Lambda, an employer might successfully argue that it discriminated against the plaintiff based on her gender nonconformity (her being a masculine woman) and not her sexual orientation (her being a lesbian).
I have previously written on this blog that, as a practical and factual matter, it would be rare to see a case in which comments and actions based on a person’s gender nonconformity (“hey man, you walk like a girl”) were not accompanied by comments directed explicitly at a person’s actual or perceived sexual orientation (“hey faggot”). I base this observation on the many reported Title VII cases in which employees were subjected both to anti-gay abuse and to sex stereotypes. The two kinds of discrimination tend to go together, which is why federal courts keen on excluding sexual orientation protection from Title VII have thrown out what would otherwise be perfectly good sex stereotyping cases that involve gay plaintiffs or any whiff of anti-gay discrimination: they think gay plaintiffs are trying to make sexual-orientation claims disguised as sex-stereotyping claims.
If, as I predict, the large run of cases in which an employee suffers sex-stereotyping or gender-nonconformity discrimination are accompanied by direct evidence of anti-gay discrimination then the employee should have a cognizable claim under even a limited ENDA prohibiting only sexual-orientation discrimination. Federal courts that have previously withheld Title VII protections from gay plaintiffs claiming sex stereotyping should also have some of their policy concerns alleviated once gay people are actually protected in federal law under a limited ENDA.
Lambda makes no response to these arguments about the factual patterns in anti-gay discrimination cases or to the possibility that protecting gays from discrimination in federal law might reduce the pressure courts feel to disaggregate sexual orientation from gender nonconformity under Title VII.
In this connection, Lambda has all but abandoned its reliance on Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), which it originally claimed in an open letter to Rep. Frank was an instance where an employer successfully argued that it fired a lesbian for being too masculine under a state law that prohibited only sexual-orientation discrimination. Neither the facts in the case nor the court’s discussion of the relevant law supported that view, as I discussed at length in my previous post. Lambda now calls that case a "sideshow." I agree.
Having found no reported decisions to support its fears, now Lambda says that we should be unsurprised since there are few reported cases dealing with sexual-orientation statutes. There aren’t a lot of such cases, but we do have experience with state, local, and county laws stretching back some three decades. The fact that inventive employers with high-priced lawyers haven’t successfully defeated even a single claim in a reported decision on grounds suggested by Lambda undercuts the reasonableness of Lambda’s fear that a limited ENDA will be insufficient. The further fact that, as Lambda puts it, many cases do not make it to a stage where there’s a reported decision (either because of settlement, or because the claim is weak, or because a plaintiff’s lawyer won’t take the case, or is inexperienced) neither supports nor undermines the view that a gay-only law doesn’t adequately protect gays. The fact that many cases settle, for example, may simply be evidence that employers are not confident about the success of the contorted we-like-gays-but-not-gender-benders legal theory Lambda hypothesizes. In short, the absence of published evidence for Lambda’s view is not evidence for Lambda’s view.
But let’s assume, contrary to what we should expect as a factual matter based on past decisions, that an employer manages to persuade a court that the real basis for its discrimination was the lesbian’s gender nonconformity rather than her sexual orientation. Such a plaintiff, Lambda hypothesizes, might then be put in a double-bind. (1) On the one hand, she would not have protection for her gender nonconformity under a limited ENDA because it would omit protection for “gender identity,” defined in an earlier version of ENDA (H.R. 2015) to mean “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual.” (2) On the other hand, Lambda fears that she might not have protection for her gender nonconformity under Title VII because federal courts might abandon the current interpretation of that law, under which “sex stereotyping” is considered a form of prohibited sex discrimination.
Protection for Gender Nonconformity in a Limited ENDA
First, is it true that there will be no protection for gender nonconforming homosexuals under a limited ENDA? Lambda undersells the potential of a limited ENDA for its macho lesbian. Gay people are often associated with certain gender-nonconforming traits. Recall that H.R. 3685 actually prohibits discrimination “because of [an] individual’s actual or perceived sexual orientation.” (emphasis added) Under this language, if the employer “perceives” the employee is a lesbian based on her gender nonconforming behavior or appearance, and discriminates against her for this reason, the employer has violated even the limited ENDA.
A possible problem with this view is that it doesn’t seem to reach the presumably rare case where the employer successfully argues that the perceived lesbianism of the plaintiff had nothing to do with the discrimination; it was her mannishness that got her into trouble. Another potential problem is that, having introduced an expansive ENDA with “gender identity” included before adequately counting votes for the bill in the House, overly optimistic gay- and trans-rights activists have now handed opponents a weak but plausible argument that the elimination of “gender identity” from the bill means there should be no protection for even gender nonconformity associated with homosexual orientation under the limited ENDA. There will be a debate about all of this in litigation and I expect that Lambda, having argued now that a limited ENDA is inadequate, will argue after it passes that it does cover discrimination against homosexuals arising from their gender nonconformity. Whether and to what extent gender-nonconforming gay plaintiffs might be successful with these claims we can’t know.
Protection for Gender Nonconformity in Title VII
More importantly for our purposes, how reasonable is the second fear, that there might be no protection for gender nonconformity under Title VII if a limited ENDA passes? Lambda worries that increasingly conservative courts “profoundly unsympathetic toward plaintiffs in employment discrimination cases generally” and hostile to gay-rights litigants in particular, might latch on to the elimination of “gender identity” from ENDA as evidence that Congress intended to eliminate protection from gender-nonconformity discrimination under Title VII. Lambda cites, as examples of courts’ hostility to civil-rights plaintiffs, cases involving race and other forms of discrimination in which Lambda believes the courts took unduly restricted views of civil-rights laws.
Lambda exaggerates the aggressiveness of conservative federal courts. These same courts have, for example, now interpreted Title VII to prohibit same-sex sexual harassment. Oncale v. Sundowners Offshore Services, Inc., 523 U.S. 75 (1998). Of course, if you really believe that conservative judges are incapable of reaching principled (as opposed to result-oriented) decisions, and will throw out every rule of statutory construction and precedent to reach a preferred policy result, then you must despair that the addition of any words to ENDA will save you from their evil grip.
To assess whether this fear of wild and aggressive conservative courts is very plausible
The sex-stereotyping theory of Price Waterhouse has been followed by every circuit court to consider the issue, even the more conservative courts. Moreover, while the facts of Price Waterhouse involved a woman deemed too “macho” for a job, the same gender-nonconformity protection has been extended to effeminate men in cases like Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir.2001).
As its only example of right-wing judges undermining sex-stereotyping claims, Lambda says that Judge Richard Posner “disagreed” with Price Waterhouse in a concurring opinion in Hamm v. Weyauwega Milk Product, Inc., 332 F.3d 1058, 1067-68 (7th Cir. 2003) (Posner concurring). That’s an oversimplification. Actually, Posner supported the idea that discrimination for gender nonconformity may be evidence of sex discrimination in a case where both men and women are eligible for a job. But he was critical of the artificial distinction between homosexual plaintiffs and heterosexual plaintiffs claiming gender nonconformity discrimination that has arisen in the federal courts since Price Waterhouse. I assume Lambda also bemoans this distinction.
ENDA Does Not Limit or Amend Title VII
Do we have any good reason to believe that even conservative judges will be bold enough to hold that Congress has silently or impliedly overruled Price Waterhouse by passing ENDA without “gender identity” protection? There are several reasons to believe this concern is very far-fetched.
Start with the pedestrian point that ENDA is not an amendment of Title VII, so there’s no obvious reason ENDA should have a dramatic effect on it. Nothing in ENDA states that it is overruling part of Title VII. Nothing in the legislative history will say that Congress passed this expansion of civil rights law as a way to limit civil rights under Title VII.
In fact, the decisive response to Lambda’s fear about the effect on Title VII is contained in ENDA’s Section 15, entitled “Relationship to Other Laws”:
This Act shall not invalidate or limit the rights, remedies, or procedures available to an individual claiming discrimination prohibited under any other Federal law or regulation or regulation of a state or political subdivision of a state.
Any argument that Congress silently overruled part of Title VII in ENDA would be an argument that it “limit[s] the right [to be free of sex stereotyping] . . . available to an individual claiming discrimination prohibited under [Title VII].” That argument would fail under Section 15. Lambda does not even mention this section of ENDA in its analysis.
Second, when Congress wants to overrule federal court rulings it is quite capable of doing so explicitly. It did so when it overruled restrictive federal court decisions in 1991 amendments to the Civil Rights Act of 1964. It did so again recently when the House voted to overrule the Court’s recent Title VII statute of limitations decision. Congress does not have to resort to subterfuge to overrule the Court and it would be surprising to have a court find that it uncharacteristically did so by merely excluding a phrase from ENDA.
Third, consider how some basic principles of statutory construction would apply in a post-ENDA world. It would not be unusual for a court to claim that the failure to include something in Statute A (e.g., Title VII) should influence how we interpret Statute A (Title VII). It would be very unusual to suggest that (1) simple failure to include a phrase ("gender identity") (2) in the passage of Statute B (a limited ENDA) should be interpreted (3) to impliedly overrule two decades of consistent federal court interpretation (sex stereotyping) (4) under Statute A (Title VII). There is no precedent I have seen for that extremely dubious style of statutory interpretation. That is why Lambda, long a respected voice for its legal acumen and honesty, is on such thin ice.
It would also not be unusual for a court to consider the words used in one statute in its interpretation of words used in another statute involving the same subject matter in an effort to harmonize the public policy objectives embodied in the laws. But that, too, would not be a principle at issue here. There is no disharmony in having a Title VII that protects gender nonconformity and an ENDA that protects sexual orientation. They are complementary.
Besides, there are many other and more plausible understandings about why Congress took “gender identity” out of ENDA. The correct one would be simply that there weren’t enough votes to include it and hence that Congress wasn’t doing anything substantive by striking it from the bill. Another interpretation would be that Congress thought most of what would be protected by the definition of “gender identity” was already protected under Title VII (excepting transsexuality). Indeed, gender nonconformity is in some ways more generously protected under existing Title VII case law than it would be under an expanded ENDA, given the broad exemptions for “religious organizations” and other limitations on the scope of liability contained in both versions of ENDA.
A Hypothetical Gay Plaintiff's Options Under a Limited ENDA
Finally, Lambda posits that a plaintiff might be caught between the gender- nonconformity "rock" of a limited ENDA and the sexual-orientation "hard place" of Title VII. “Thus,” Lambda concludes, “a non-inclusive version of ENDA risks having a court decide that an employee cannot pursue a claim for sexual orientation discrimination because it concludes that what was going on was discrimination based on gender nonconformity, but then not allow a Title VII claim by reading the Price Waterhouse case overly narrowly.”
Contrary to Lambda’s assertion, it is the defendant employer that’s placed between the rock of the gay protections of a limited ENDA and the hard place of the gender-nonconformity protection of Title VII.
To see why, imagine you have a butch lesbian fired by a school in which she works. She argues that the school fired her either for her sexual orientation or her gender nonconformity or for some combination of these.
On the one hand, if the school fired her for being a lesbian she has a claim under the newly passed, gay-only ENDA. Her lawyers would point to the times she was called a "dyke" and was told to find a man to make her a real woman. Her lawyers would observe that the fact that the school employs other lesbians is no more a defense to the claim than the fact that an employer hires some black people is a defense to a claim of race discrimination. On the other hand, if the employer tries to weasel its way out of ENDA liability by saying that it fired her for being too butch, her lawyers would say that it was then liable for sex stereotyping under Title VII.
Therefore, if the employer tries to get out of Title VII liability by saying she’s a lesbian claiming sexual-orientation discrimination, it has walked right into ENDA. If it tries to get out of ENDA liability by saying she’s a gender bender claiming sex stereotyping, it has walked right into Title VII. Depending on the facts, if the employer's motives include hostility both to gender nonconformity and to sexual orientation the plaintiff can still say the discrimination was "because of" actual or perceived sexual orientation. Any way you slice it, the employer is stuck.
And if the employer, citing Lambda's letter to Barney Frank and its recent elaboration of the same concerns, tries to make the argument that Congress silently repealed two decades' worth of Title VII precedent on sex stereotyping by enacting an entirely separate federal law, her lawyers would make the excellent argument that this was not even a plausible interpretation of ENDA’s effect.
Since gender nonconformity already enjoys a large measure of protection under settled Title VII precedents, what's really at stake in the debate over whether to include "gender identity" in ENDA is protecting transsexuals from discrimination based on their transsexuality. This is a very small group of people and, short of being protected from discrimination in a larger bill like ENDA, they are not likely to get federal legislation protecting their employment interests unless a concerted effort is made on their behalf by political allies. That work has evidently not yet been done in sufficient measure by the groups who now oppose a limited ENDA out of solidarity with transsexuals.
The upshot is that it seems Lambda and many other gay organizations really oppose ENDA because they think it is simply wrong to exclude protection for transsexuality from a gay civil-rights law, even if that means waiting a significant additional time to pass any protection at all. I don’t share the view that protection for gays must await protection for transsexuals, but I understand and respect it. The appeal to gays’ legal self-interest, by contrast, is a diversion from the real issue.
UPDATE: Jon Davidson, Lambda's Legal Director, replies to me in the comments here. Chris Crain comments and gets to the heart of the issue here.
Related Posts (on one page):
In other words, if I choose to wear a skirt or dress to work, is my employer legally permitted to stop me and/or take action against me?
EI
On another note, regardless of whether wanting to alter one's sex is an illness, the obvious libertarian position would be, why does the State have the right to force one set of people (say employers) to work with another set (say gays)?
Policy considerations aside, Machiavelli would endorse Barney's position. Incrementalism, baby.
Good question, Happylee. Perhaps for the same reason that the State has the right to force one set of people (say whites) to work with another set (say blacks. Or women. Or jews.)
And not to worry -- you can't catch gay. So employers are safe from turning into crazed sexoholics.
Basically, Jesperson (9th Circuit) allows an employer to fire a woman for not complying with female appropriate grooming standards (in that case, I believe it was a minimum hair length and basic makeup minimums). Other case law allows employers to have maximum hair length standards for men but not for women, and to prohibit men from wearing earrings while allowing women to do so. Courts allow all this by saying that requiring conformity to societally normative standards is not sex discrimination. If things that (1) a court considers minor (like lipstick, earrings, and hair length) are (2) societally normative for a person of a particular sex (ie, gender normative) then an employer can require them without violating sex discrimination law.
Adding different types of sexuality won't end this form of discrimination. Adding protection to gender expression most likely will -- almost by definition my decision to wear earrings or not is an expression of my gender identity (not my sexuality and not my sex). In the face of an explicit statute preventing gender expression discrimination, I don't see how a court could continue to allow this type of discrimination.
Better to not hire a gay at the outset for whatever stated reason than to hire one and take on the risk of being sued if he or she turns out to be a dud who must be discharged. Once again the unintended consequences of stupid laws -- not to mention unconstitutional -- will hurt those they are supposedly designed to help.
The analysis of the legislative history is a good example why it is a difficult guide to the meaning of the law. However, what I'm really curious about is the part of the constitution which authorizes Congress to regulate private employment. I have just carefully gone over the Constitution (as amended) and can't seem to find the article discussing such laws. I'm sure the authority does not derive from Article I or the 14th amendment. Does this law then "regulate commerce among the several states" ?
Dale: To erase all doubt, why not include a provision that explicitly says the law shall not be construed to be reverse or otherwise limit Price Waterhouse.
On the politics: How many votes short is the inclusive version of ENDA? Assuming the non-inclusive ENDA passes, how many votes short is a stand-alone statute protecting the transgendered?
Actually, if as you say being a homosexual were a mental illness, it would be covered under the ADA and discriminating against persons "suffering" from homosexuality would be illegal. In fact employers would be required to provide reasonable accommodation for homosexuals (say lots of plaid office furniture for lesbians and show tunes instead of Muzak for gay men).
Good point. You'd better go explain that to blacks, Jews, and women, too. When will these foolish minorities learn?
So the Catholic church will now be required to hire gay priests. That's been working out well so far, but will it be a defense in civil suits that they had to hire them?
The only thing the "inclusive" ENDA would change is that it would require employers to treat transitioning transsexuals according to their destination sex. So the employer that forces women employees to wear makeup, skirts, and long hair would have to equally force male-to-female transsexuals to wear makeup, skirts, and long hair.
The butch lesbian, about whom Lambda sheds so many crocodile tears, would have no remedy under even the "inclusive" ENDA if an employer fired or refused to hire her because she would not wear makeup, insisted upon wearing pants, or had close-cropped hair. Lambda's concern about "excluding" people from ENDA, then, actually extends only to T's, not butch L's.
This underscores Dale's point that Lambda's broader claim about gender-nonconformity is a mere diversionary tactic. It is a cynical ploy to convince rank-and-file gays and lesbians that the fight over inclusion of "gender identity" is critical to their own employment opportunities, when it really isn't. Lambda's willingness to manipulate rank-and-file gays and lesbians into thinking they are working for their own interests while persuading them to defeat a gay-only bill that would adequately protect them is nothing short of contemptible. Dale is exactly right to identify the question as whether gays and lesbians should wait for transgender people. I too respect disagreement on that point. But I find Lambda's attempt at manipulative evasion of that stark question to be downright disgusting.
How many marriage-or-nothing challenges does Lambda have to lose and how many years of ENDA delay does Lambda have to exact before someone there finally realizes that the organization's stangulation on ideological purity has rendered it an ineffective and even self-destructive legal representative for lesbians and gay men? Ideological purity is for the ivory tower, not the courtroom or legislative chamber. Ask Nader 2000 supporters what ideological purity got them.
Nope. That's because about 12 states or so already have ENDA, and dozens of local municipalities also have a form of ENDA. Additionally, a majority of Fortune 500 companies provide protection of gays in their HR. Most experts estimate that about 1/3 or more of the workforce is already covered by ENDA.
Therefore, there is already a sizeable portion of the working population that is laboring under some form of ENDA, and to date, there have been no studies which support that notion that it leads to greater litigation, frivolous lawsuits, or a reduction in employment of gay people.
Houston Lawyer: "So the Catholic church will now be required to hire gay priests."
(sigh). As you are fully aware, religious institutions are completely exempt from ENDA. Got any other smears?
"but will it be a defense in civil suits that they had to hire them?" And why, pray tell, would there be a civil suit in the first place?
Oh. I get it. All gays are pedophiles. Therefore, people will bring lawsuits because of the child abuse.
But no, you're not homophobic, right?
Yes, much as they've been forced to hire female priests . . . .
Under the way federalism works in the US today, the federal government regulate pretty much anything it wants. By far the largest chunk of this authority comes from the interstate commerce clause. This was not always the case and at one time such legislation would have been considered beyond the authority of the federal government other than certain federal-specific situations, such as in federal territories or federal goverment employment. This all changed when FDR began appointing supreme court judges who took an extremely expansive view of the scope of the commerce clause. Since then the interpretation of the clause has expanded to cover nearly anything. There has been the occasional hiccup along the way (e.g. U.S. v. Lopez / Morrison) but by and large the court has never retreated from that position, nor is either political party interested in changing that state of affairs.
The way the commerce clause now works (with some minor oversimplification) is, for any economic activity you aggregate all such activity in the country and if the aggregate of that activity affects interstate commerce than the feds can regulate it. Thus, regulating even individual private hiring decisions is well within the scope of the commerce clause as it's interpreted today, as all hiring decisions in the aggregate have a huge impact on interstate commerce.
Perhaps for the same reason that the State has the right to force one set of people (say whites) to work with another set (say blacks. Or women. Or jews.)
And, other than the state having more guns, that reason would be...
The guns give them the power, not the right. The government's legal right to do so comes from the fact that the constitution (federal or state) says the federal government or the state government or both are able to do so. The moral right comes from the fact that a democratically elected government decided your right to transact business doesn't include the right to discriminate on the grounds of race or gender except in limited circumstances. Perhaps that's an erroneous judgment on their part, but you'll need more than a bare assertion to convince anyone of that.
It would be amusing to ask the Congressmen who voted for this law whether they think private companies should be allowed to implement "don't ask -- don't tell" policies. After all, don't private quasi-military companies such as blackwater face the same problems with openly gay employees that the military does?
Indeed, the definition at link above exempts the Federal Government as an employer from anti-discrimination laws, but this seems to me to get the issue exactly backwards: Congress should prohibit the Federal Government from discriminating based on sexual orientation/identity/etc, and let private people run their businesses they way they see fit.
Are you volunteering to help Larry Craig in his legal battles?
Wrong: The term “commerce” means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.
After all, don't private quasi-military companies such as blackwater face the same problems with openly gay employees that the military does?
Ah, so the gay mafia at Blackwater was behind that shootout in Iraq--makes perfect sense! What kind of "problems" are you imagining? The problem that you don't like gay people? Other people--including many in the military--are, thankfully, more mature than you.
We believe that a law that prohibits both discrimination based on sexual orientation and discrimination based on gender identity and expression will be a stronger law than one that prohbits only sexual orientation discrimination. That seems hard to dispute.
The real question right now is how best to move forward toward the next time Congress will consider protective employment discrimination legisaltion. Given that Congressman Frank has stated he does not expect the Senate even to consider any version of ENDA this year and that, even if the Senate did and passed such a bill, he doubts President Bush would sign it, we all need to look ahead. Lambda Legal does not believe the best path is the politics of division -- pitting lesbians, gay men and bisexuals against transgender people, as some have sought to do.
To be very clear about something, we are not asserting that adoption of a "sexual orientation only" bill could be found to repeal and disapprove the holding of Price Waterhouse v. Hopkins. We are asserting that, absent codification of Price Waterhouse (which H.R. 2015, the version of ENDA originally introduced this year would have done, if enacted), an employer could argue and a court might find that perceived sexual orientation ("I think you're gay, and don't like that") is not the same thing as perceived gender identity and expression ("I don't care if you're gay; I just think you're effeminate or butch, and don't like that") and might at the same time seek to distinguish (or, at the Supreme Court, reverse) Price Waterhouse. You apprently feel that's unlikely. We hope you are right.
Instead of fighting one another, however, we believe what we all should be doing is working together towards passage by the next Congress of the strongest law we can get. In the judgment of Lambda Legal, all of the other principal LGBT legal groups in the country, and 300 or so other LGBT organizations, the way of doing that is to work toward getting the best law actually enacted into law (rather than making what only is a symbolic statement now by passing some bill through only one house of Congress), and the best law is one that (1) prohlbits discrimination against transgender people and (2) fully protects lesbians, gay men, and bisexuals against sexual orientation and codifies Price Waterhouse into statutory language. That is why we are supporting Congressmember Tammy Baldwin's proposed amendment to H.R. 3685, being considered on the House floor next week.
The premise that the interests of transgender people need to be sacrified now to get a "gay rights only" bill later has not been shown to be true. If, as hoped, we have a more LGBT-friendly Congress and administration after the next election, we think we will be able to get a law passed that protects transgender people and better protects gay people if we hold together, put the necessary resources into working for it, and not act like this is a zero sum game.
Jon W. Davidson
Legal Director
Lambda Legal
DC: I appreciate your response, Jon, and the experience that both you and other lawyers at Lambda bring to the debate over the legal value of the limited ENDA, H.R. 3685. Frankly, if almost anybody else had made the sorts of arguments Lambda has made about H.R. 3685 over the past few weeks I would not have responded. But it is possible, just possible, that even very experienced litigators like Lambda's lawyers can have their usually sharp legal analysis clouded by heartfelt moral and ideological commitments.
I'm glad Lambda is now saying that it does not believe there's a plausible argument that H.R. 3685 impliedly overrules the sex-stereotyping protections in Title VII by omitting "gender identity." It had seemed to me that was the import of Lambda's concerns, but I'll take your word for it that that's not what you meant. Others in the blogosphere have continued to voice this very dubious fear and it's good to have Lambda say it's not a realistic one.
On the other hand, you continue to assert that the Supreme Court might overrule Price Waterhouse. For reasons discussed in the post, I see no reason to fear that. If that was the real concern, however, it could have been addressed in separate federal legislation (or perhaps even in ENDA) through a substantively narrower provision. Adding "gender identity" to ENDA, I think you'll agree, goes beyond simply codifying existing understandings of Price Waterhouse. For that reason, "gender identity" has drawn objections from Congress that would not have arisen under a simple codification of Title VII case law.
I am less confident than you that the Senate won't address ENDA in this session or even that a presidential veto is certain. I would think Democratic leaders in the Senate, mindful of the strong support they have been given by gay Americans, would consider a historic bill that would protect millions of gay Americans from employment discrimination. President Bush probably won't sign any version of ENDA but the outcome is less certain on this point than on the Hate Crimes bill -- so praised by Lambda and the 300 gay and trans organizations now aligned against ENDA -- which the president's advisors have all but said he will veto. Doubts about the president's signature should not factor into passage of ENDA, just as they didn't factor into passage of the Hate Crimes bill. At any rate, if the political dynamics of the House, under which "gender identity" is thought to make ENDA un-passable, apply to the Senate and to the president's consideration of the bill, then adding "gender identity" makes enactment this year even more doubtful than it would be for the gay-only ENDA. A limited ENDA has a better chance of being enacted right now than an expansive ENDA.
I wouldn't waste this opportunity by counting on the next Congress and president to be more "GLBT friendly" than this one. A lot can happen between now and November 2008 to make the Democrats' prospects dimmer than they seem now. You may look back on October 2007 as a "golden age" when a friendly Congress was on the verge of approving the first-ever gay-rights bill. This time may pass and not come again for a long while.
An advantage of pressing forward with a limited ENDA that can pass the House now -- even if it cannot be enacted -- is that it gets moderate/conservative Democrats and moderate Republicans on record as supporting civil rights for gay Americans. (I note that four Republicans supported the limited ENDA in the Labor Committee yesterday, offsetting the four Democrats who opposed it because it did not include "gender identity.") That record of support can then be used as a buttress in a future vote in Congress on the issue when the mood of the country and of the Congress may otherwise be more conservative and less "GLBT friendly." We can, in that darker time, remind wavering moderate/conservative Democrats and moderate Republicans of their earlier support for H.R. 3685.
But pressing ahead prematurely now with a vote on a symbolic bill that includes both sexual orientation and gender identity risks drawing unnecessary "no" votes from moderate/conservative Democrats and moderate Republicans, so that we don't get their support for gay civil rights on the record in an actual vote. It also risks committing them on the record to opposition to trans rights before adequate work has been done to persuade them to support trans rights. It's hard for me to see how that approach, as a political matter, helps either gay people or transgendered people.
So I guess I agree with you that we're not playing a zero-sum game in which advancing the interests of gay Americans means sacrificing the interests of transsexuals. Advancing a gay-only ENDA in the House builds momentum for eventual passage of civil rights protections for both, while witnessing the defeat of a feel-good "inclusive" bill potentially hurts both.
I'm not persuaded that passing a GLB ENDA is merely for show. Doesn't the Senate have both the rest of this year and all of next year to act?
Given that there are not enough votes to protect the transgendered, are there at least enough votes to codify Price Waterhouse?
How many votes short is the GLBT ENDA? Assuming a GLB ENDA passes now, how many votes short is a separate statute which extends protections to the transgendered?
What I was pointing out was that Congress thinks there would be problems if openly gay men and women were allowed to serve (hence "don't ask -- don't tell"). Whatever these imagined problems are, in ENDA Congress is telling private employers to "live with the problems", while exempting themselves (as employers) from having to do so. That is not right. Discrimination by the government is much worse than by private individuals, and should be fixed first.
This is a pretty silly argument for someone defending a minority right under the premise that majoritarian rule must take cognizance of the limits to its power inherent in a regime of individual rights.
The fact that progressive and positivist rights oriented courts have said that this is what the constitution says, may make it pragmatically or temporally so, but not philosophically or truthfully thus. It certainly doesn't limit the idea in abstract debate that this proposition if flawed which was the obvious meaning of the post you criticize.
Brian
http://sports.espn.go.com/ncf/news/story?id=3070227
First minority college football coach in the state wins lawsuit, notwithstanding his team's abysmal performance on the field. Think UL-L is going to rush to hire another minority coach?
I didn't cite any court decisions in my post, nor was I relying on any particular court decision. If you think the constitution prohibits both the federal and state governments from regulating the way you transact business, feel free to identify the text that you think accomplishes this result.
(1) It will result in, say, whites and men losing jobs to under-qualified blacks and women, because employers will be afraid they will be sued for not hiring members of the latter group; and also
(2) It will result in employers not hiring (or hiring fewer) members of the groups protected because they will afraid they can't fire them because of law suits.
Of course, there is data on employment rates of groups covered by existing Title VII laws, and as Randy R. observed above, there is plenty of experience specifically with laws preventing discrimination on the basis of sexual orientation right here in the U.S. (I believe Professor Clark has estimated that now fully 1/2 of U.S. employees are covered by such laws). Anybody seriously wishing to make an argument that discrimination laws actually hurt gays and lesbians might, therefore, feel some obligation to come up with some evidence for that position based on experience.
One solution might be for Congress to pass a limited ENDA but also codify the holding of Price Waterhouse (in a nutshell, discrimination because of failure to conform to sex stereotypes is discrimination "because of sex."), much in the same way Congress codified the disparate impact theory of discrimination when it passed the 1991 Civil Rights Act.
for ex - plaintiff says "I was fired b/c I'm gay." Employer says "no, you weren't, plus we don't even know if you're gay."
what then?
There actually are cases -- not many, but more than you might think -- where the defense to "You fired me because I'm a [fill in the blank]!" is: "What? You're a [fill in the blank]?" It is a defense and it sometimes works.
1. standard libertarian argument for freedom of association, including employment
2. standard libertarian argument that bill is wrong
thanks
on the merits of incl gender identity in the bill - I understand this is a hot button issue in academia. But I don't think the avg citizen has a clue what it means, and am not sure it makes sense to create a brand new protected class of folks who most people don't think of as a class.
finally - would gay owned companies be liable for not hiring a straight person under the bill, or is there a BFOQ exception in there?
Lessee... looks like a girl, but has a big adam's apple, and sounds like Barry White?
Quoth the rabbit: "Ehh... could be."
It is an artificial precedent based distinction to suggest that your freedom of association is different when conducting business than in other spheres of life. If a police power regulation is instituted for health and safety, so be it. I do not see any traditional police power nexus for state imposition of anti-discriminatory hiring practices on private business that could be conceived of as outweighing the individual liberties enumerated and unenumerated in the constitution.
If, on the federal side, a commerce clause regulation is instituted on an honest theory of why it is necessary and proper to so regulate interstate commerce this might be plausible, but such federal action oversteps its bounds in my opinion when it reaches essentially instate businesses the hiring practices of which are at best indirectly related to interstate commerce.
And for those who argue "oh, no, it just means you can't 'discriminate' between 'equally' qualified candidates." Ho, ho, ho, have lunch with a man or womyn who practices employment law someday (not teaches it but practices) and report back then.
Soon we can all live the crazy lifestyle of NipTuck characters.
(And we all know the State derives its "right" to pass laws from its might. That's how it can in one generation it can blithely pass laws forbidding blacks and whites from being together and then, in another generation, pass laws forbidding whites and black from being apart. Naive is he (or her, or it, or was-her, or was-he) who thinks the State and its actors think anything is of value but power itself. Otherwise, it would let folks be, uh, "Free to Choose.")
Re the "standard libertarian arguments," brevity is the soul of wit, so points for that. The standard response, of course, is (i) the Constitution gives Congress the power to pass employment discrimination laws under the Commerce Clause and for some groups also the 14th Amendment; (ii) that is an area of jurisprudence that, pace happylee's comment, highly unlikely to change; and (iii) even if you think the Fed government doesn't have the power to do it, state and local governments are doing it anyway.
And Happylee, I practiced labor and employment law for over a decade, and I'll ask you what I asked upthread. Your argument that you would be "forced" to hire a women, black, disabled person, etc. is inconsistent with the arguments others have made in this very thread that these laws hurt the groups they are supposed to protect because employers WON'T hire them for fear of lawsuits if the employer wants to fire them. Who is right: you, or the people making the latter argument?
Also, since each and every act of employing or not employing someone is a distinctly human action brought on by multiple unquantifiable causes, one cannot say that Billy Joe didn't hire Mary Sue because she's a woman ... indeed, even if you gave Billy Joe a truth serum you would likely get a distorted answer -- afterall, his dislike of woman PLUS something (maybe her hair) is what likely motivated him because ALL employers have to make marginal utility analysis at all times, and even the most bigoted s.o.b. will hire a gurl or black fellow if the benefits so derived exceed the costs (in terms of having to be around gurls or blacks).
That said, my understanding is that if you can get away with it, you don't hire potential "problems," such as gurls, blacks, gays, fatties, druggies, uppities, etc.
If you can't get away with it (read: you are federal gov't, large corp or Jesse Jackson is camped out on your doorstep) you hire as many gurls, blacks, etc, you need to survive. And that magic number is some goofy ratio of such protected folks in the "community."
So: The answer is both.
(9) SEXUAL ORIENTATION.—The term ‘‘sexual
22 orientation’’ means homosexuality, heterosexuality,
23 or bisexuality.
And are we going to be okay with a lawsuit every time someone on the dock or the paint line or the final assembly calls another dude a fag or a queer or says 'that's gay'?
if we know nothing else about lbgt community is that they are litigious -- all their victories practically have come from the Courts.
[deleted uncivil comments; try to be decent and not call people names]
The problem is that gay and lesbian employees should not be forced to hide who they are, never mentioning a partner or a boyfriend/girlfriend in casual conversation, or having a picture on their desk, etc., matters which straight workers take for granted. Also, should gay or lesbian employees live in fear of losing their jobs (and related benefits) if they happen to let slip any information that suggests they are not straight? "Don't ask, don't tell" doesn't work for the military, and its unrealistic to impose it on the workforce in general.
This conduct is actually already covered by current sexual harassment law. An occasional insensitive remark is not going to create liability for an employer, but where inappropriate comments are a regular event and create a hostile envrionment, then yes, a lawsuit could result. I think most gay and lesbian workers can tolerate the occasional remark or joke without resorting to litigation.
You don't. Why would you want to know? So you hire the person, and he or she does an excellent job. Then you find out, either through a newspaper article, or a rumor, that this employee is a transsexual. With ENDA, you can't fire this otherwise excellent employee just because you he is or she is now, in your view, a transsexual.
And again, why would you want to fire this person, if not for personal animous towards them.
Abu Hamza: "if we know nothing else about lbgt community is that they are litigious."
Really, Abu? Currently twenty states have their own form of ENDA (I was wrong on the number earlier). Do you have any evidence that gays are more litigious in those states?
Happylee; "Yikes, I just realized that if I were to start a private school, I'd have to hire gays and mentally ill people, even if a similarly qualified straight and healthy person was available."
Get serious. With ENDA, there is no quota that you have to fill. Plus, there is no requirement that you have to hire any mentally ill person.
Oh. I get it. All gay people are mentally ill. Oh, ha, ha, ha. Arent' you the clever one.
Has anyone here argued that?