The decision by GLBT leaders to stand up for inclusion of the transgender community in the federal Employment Non-Discrimination Act ( ENDA ) is the triumph of principle over practicality. It was abetted by the fact that the practical effect of ENDA will be minimal.
The reality is that the majority of GLBT people already have protection from discrimination on the job, whether through state or local ordinance, or more immediately, through personnel practices voluntarily adopted and implemented by private companies.
This buy-in by companies and supervisors at the working level—who realize that discrimination is not only wrong, it is inefficient and costs money—is much more important that the crude stick of a law that often takes great time and energy to enforce. As the old adage goes, an ounce of prevention is worth a pound of cure.
Yes, ENDA will help to bring recalcitrant laggards into the fold in both private and government situations where anti-gay bigotry still flourishes. But those patches of remaining discrimination have become relatively small and they continue to shrink. There will be no great tidal wave of change in the workplace when ENDA passes, regardless of the final language of the bill.
The greater value of ENDA lays in its symbolism; it is the capstone, not the foundation, of ending workplace discrimination against GLBT persons.
Ironically, the fact that the day-to-day impact of passing ENDA will be so small has been liberating to GLBT leaders. There are no thronging gay masses crying for passage of ENDA to save them from daily workplace discrimination. This lack of pressure has helped them stand on the greater principle of non-discrimination for all.
Rep. Barney Frank and congressional Democratic leaders naturally viewed the issue from a political perspective—how to minimize the political cost of rewarding a loyal constituency. This is not to say they are devoid of principle, only that the job of politicians is to make political calculations.
The transgender community had long been a thorn in Frank's side, and he understood them to be a relatively recent and junior partner within the community. He also sought to minimize the political risk for Democratic moderates who might be tarred in the next election with the specter of teachers transitioning in fourth grade classrooms, should they vote for the bill.
He probably reasoned that half a loaf, ENDA without the T, would be sufficient to count as delivering on the promise to the gay community of the value of electing Democrats to Congress, while minimizing the political risk to his colleagues.
That might have worked, if the hunger for ENDA within the gay community was so strong that half a loaf had looked mighty tempting. But most of the community already was at the buffet table of equality for seconds, so a crust of bread had no great appeal. The community leaders faced no huge cry to just pass something, so they were able to stand on the principle of full inclusion.
Frank had misjudged the situation; he had seen it primarily through his partisan political eyes, not from the perspective of the community.
He had pulled a similar unilateral move before, in 1993 when his political calculations led Frank to embrace the 'compromise' known as 'Don't Ask, Don't Tell,' despite pleas from national gay leaders to hold off, at least for a while, as they tried to build the votes to sustain a possible Clinton veto strategy.
Frank had seized the initiative to speak for the community on the military issue, despite the fact that his openly gay colleague Gerry Studds, D-Mass., had been the leader on gay military issue. Studds chaired a congressional subcommittee with responsibility for the Coast Guard, which becomes a branch of the military in time of war. Studds acquiesced to Frank's usurping that role.
This time around Frank's fiat didn't work, in part because Tammy Baldwin, D-Wis., the only open lesbian in the House, quietly refused to go along as a cosponsor of Frank's alternative measures.
This crack in the united front led the House Democratic leadership to reconsider their tactics and postpone immediate consideration of ENDA. It is not clear whether it will change the final outcome.
Majority Whip James Clyburn, D-S.C., said a formal vote count 'made clear that we simply lack the necessary votes to pass a gender identity-inclusive version of the bill at this time,' in an October 5 news release from his office.
What he did not explain was whether that count was based upon a 'free' vote where members may vote their conscience, or whether it was a 'whipped' count where the leadership imposes party discipline to push through a piece of legislation.
The Human Rights Campaign has claimed for years that they had the votes to pass ENDA, if only the conservative House Republican leadership would allow such a vote. They told the community that would change if the Democrats gained control of the chamber.
So now the Democrats are in control and it is time for the political payoff. Does that mean that the leadership will simply allow a vote to take place? Or does it mean that Nancy Pelosi, Barney Frank, and the others will actually work to ensure that victory? Are they willing to make voting for an inclusive version of ENDA a litmus test issue for Democrats?
The GLBT community will be watching closely.
