Gay Rights Movement Divided on Legislative Strategy

The strong divisions with the organizations advocating greater rights for lesbian, gay, bisexual, and transgender people (often called LGBT by the groups but known colloquially as the "gay rights movement") have become quite public recently. Specifically, controversy has centered over whether pro-LGBT groups should support legislation which does not include transgender people.

The Human Rights Campaign, the major national lobby, has argued that Congress should pass the Employment and Non-Discrimination Act (ENDA) even if it does not include protections for transgender people:

[I]t appeared there are not the votes to pass an all inclusive version of ENDA and in an open letter to members of Congress, HRC, the NAACP, the National Education Association, the National Employment Lawyers Association, the Religious Action Center of Reform Judaism, the Leadership Conference on Civil Rights, the American Federation of State, County, Municipal Employees and a number of other groups said they would support ENDA without gender identity.

The letter says that it is "beyond dispute that transgender employees are particularly in need of those protections. They face far more pervasive and severe bias in the workplace and society as a whole."

But it goes on to say: "As civil rights organizations, however, we are no strangers to painful compromise in the quest for equal protection of the law for all Americans. From the Civil Rights Act of 1957 through the almost-passed District of Columbia House Voting Rights Act of 2007, legislative progress in the area of civil and human rights has almost always been incremental in nature. With each significant step toward progress, the civil rights community has also faced difficult and sometimes even agonizing tradeoffs. We have always recognized, however, that each legislative breakthrough has paved the way for additional progress in the future.

"With respect to ENDA, we take the same view."

"While we are greatly disappointed that the current version of ENDA is not fully inclusive, our sense of frustration in this case is directed at those who would clearly prefer to see no one from the gay, lesbian, bisexual or transgender community protected at all."

Equality Maryland, the state's largest pro-LGBT lobby, has forcefully attacked and opposed efforts to pass a version of ENDA without protections for transgender people:

In an unprecedented show of unity, more than 90 leading national and state groups, including Equality Maryland, signed onto a letter in support of one inclusive ENDA. This letter was delivered to Congress yesterday. (To view the letter, click here.) As a result, Democratic leadership has postponed mark-up of the bill, giving our community a renewed opportunity to pass an inclusive ENDA. If you have not already done so, please urge your member of Congress to support only an inclusive ENDA.

Equality Maryland will continue to work for and support only legislation that is explicitly inclusive of "gender identity" language to assure the protection of the full LGBT community. This is a core principle of our organization. There is no state law in Maryland protecting individuals from discrimination on the basis of gender identity, while discrimination based on sexual orientation has been covered under state law since 2001. Maryland's LGBT community knows firsthand the difficulties we face in "going back" for transgender anti-discrimination protections after passing a partial anti-discrimination bill. Since 2002, every state that has passed an anti-discrimination law has passed an inclusive law. Inclusive legislation is not just a moral imperative; it is politically wise.

The divisions over the issue were apparent at Equality Maryland's Jazz Brunch. While EM Executive Director Dan Furmansky reiterated the organization's commitment to passing only more inclusive legislation, this all-or-nothing approach was attacked by the recipient of the major award, Victor Basile, a former president of the Human Rights Campaign.

Equality Maryland did accept legislation excluding protections for transgender people when fighting for the state equivalent of ENDA, though it now continues to fight hard to pass new legislation which would be more inclusive. Indeed, protections for transgender people were EM's major legislative priority in the previous regular legislative session.

Rep. Barney Frank, an architect of ENDA who has fought for years to get it passed, was supposed to speak at the Equality Maryland Jazz Brunch and was listed on the program. However, he was "unable to join" the hundreds of people in attendance at the last minute. Frank also disagrees with the Equality Maryland's stance on ENDA and explained his view in a statement to House replicated on his website:

We are at a differential stage in public understanding of these issues. We've been dealing explicitly and increasingly openly with prejudice based on sexual orientation for almost 40 years, since the Stonewall Riots of 1969 and since then.

The millions of people that talk openly and to take on the prejudice against people who are transgendered is newer. It is also the case that prejudice begins with people reacting against those who are different from them in some way. People are rarely prejudiced against their clones. So we have this situation where there is more prejudice in this society today against people who are transgendered than against people who are gay and lesbian, partly because we have been working longer at dealing with the sex orientation prejudice; partly because the greater the difference, the greater the prejudice is to start, the more people fail to identify, the more they are put off by differences, especially when those differences come in matters of the greatest personal intimacy. . . .

So this is the question we now face. I am convinced that the votes are there to pass a bill that bans discrimination based on sexual orientation in employment. I am also convinced that if we were to put up a bill that included people of transgender, that part would be stricken on a vote, and, unfortunately, a fairly heavy vote. . . .

I had hoped that we would have a vote upon a transgender-inclusive bill and win. Getting a large vote in this body to say no to transgender inclusion will make it harder in the future to change that situation, partly because my junior Senator, as the Presidential candidate, was unfairly pilloried. His remark was caricatured about his vote on Iraq. He quite sensibly voted for one version of funding for Iraq and then voted against another. He phrased it inartfully. What he did was correct.

Meanwhile, at the local level, Councilwoman Duchy Trachtenberg continues to try to get Montgomery County to pass protections for transgender people in the hope that the State and the country will follow our lead. She recently issued a press release defending her bill against attacks:

Despite the efforts of a small group of ideologically motivated individuals to raise fears and continue discriminatory policies, support for the Montgomery County Council’s proposal to protect the rights of transgender individuals remains strong, Councilmember Duchy Trachtenberg, chief sponsor of the legislation, said today.

The legislation, which has been discussed in a worksession of the Council’s Health and Human Services Committee and at a legislative hearing before the full Council, is scheduled for a vote for adoption by the Council on Tuesday, Nov. 13.

I attended the press conference held by Councilwoman Trachtenberg to show support for the legislation. Councilman Marc Elrich expressed his strong support as well as his hope that the legislation would soon pass the Council unanimously. One of Councilwoman Trachtenberg's aides, Dana Beyer, who is a transgender person (and ran for delegate in District 18 in 2006), spoke eloquently on the bill, answering questions from the press with well-organized facts and aplomb.