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A Defining Moment in Civil Rights History? The Employment Non-Discrimination Act, Trans-Inclusion, and Homonormativity

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Abstract

This article traces the history of the struggle for trans-inclusion in the federal Employment Non-Discrimination Act (ENDA), focusing in on the decision to take gender identity protections out of the 2007 ENDA. It situates this struggle in the larger histories of the national mainstream gay and lesbian movement and the emergence of visible trans activism in the 1990s. The author argues that the decision to take gender identity protections out of the 2007 ENDA should be understood as part of the wider record of compromises and alterations made to the bill, which must be contextualized alongside the move within the national mainstream gay and lesbian movement toward homonormative politics and strategies.

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Notes

  1. We currently lack language to adequately describe and name complex gender and sexual performances and identities. For example, some communities who are understood as trans by service providers and others outside the community internally identify as gay or as something else entirely. The language of “transsexuality” and “transgender” has been mostly constructed in the privileged, mainly white spaces of the medical-psychological establishment, academia, and certain kinds of activism and can exclude or render invisible gendered communities of color and low-income gendered communities (Valentine 2007). I have chosen to use “trans” because it reflects the language used by mainstream LG(BT) organizations and because I believe it is the most inclusive language available at the moment. In this article, “trans” includes a wide range of gendered experiences, including everyone from transsexual people who have physically transitioned; to pre- or non-operative trans people; to genderqueer or other people who do not identify as one of the two socially recognized genders; to cross-dressers, drag kings, and drag queens; to masculine women and feminine men.

  2. The parentheses signify the ongoing question of who actually is included in these different formulations of gay, lesbian, bisexual, transgender, and queer movements and communities. There are multiple conceptions of LGBT movements in the US, many of which are not always inclusive of the different kinds of LGBT identities. I have chosen to use “LG(BT)” in this essay both to reflect the most widely used label “LGBT” and to mark this movement’s historical and ongoing exclusions of trans and bisexual people as well as its frequent privileging of (white) gay male interests.

  3. I have found numerous accounts of Frank’s transphobia around “the shower issue”. For example, in a 1999 Advocate article, he claimed, “Transgendered people want a law that mandates a person with a penis be allowed to shower with women. They can’t get that in ENDA” (quoted in Currah 2008b, p. 333). See also Miranda Stevens-Miller’s (n.d.) description of an encounter she had with Frank.

  4. Feldblum (2000b) explains that this work on the bill was backseated in 1983 because of AIDS and that serious efforts did not begin again until 1991. Throughout these 8 years, the national mainstream gay and lesbian political establishment matured a great deal and was integrated into the mainstream civil rights community.

  5. See Feldblum (2000b) for an excellent, detailed history of the gay rights bill from 1974 to 1999.

  6. Feldblum has been integrally involved with ENDA since before its introduction in 1994. She served as the lead lawyer, as a consultant for HRC, for the drafting and negotiation of ENDA of 1994 and 1995 and has been involved with its subsequent redrafting and political advocacy in various ways up to the present.

  7. This marked the first endorsement by a sitting president involving a major piece of gay rights legislation (Holmes 1995).

  8. It should be noted that Feldblum (personal communication, June 15, 2009) explains that this was done because any legislation that seeks to revise and expand existing civil rights laws also opens them up to revisions designed to repeal or weaken them. Therefore, the mainstream civil rights community will not support this type of legislation, which is one reason that the ADA is a free-standing bill. However, this points to the continued tenuous position of civil rights legislation, even though it has been law for over 40 years.

  9. As the largest and most well resourced national LG(BT) organization and most influential on Capital H ill, many politicians see them as the representative of all LGBTQ people. Until recently, they were the only LGBT organization with professional federal lobbyists and still employ the most. They are the only LGBT organization with a Congressional scorecard on LGBT issues and the only one with a political action committee, which allows them to give money to politicians.

  10. In her discussion of this presentation, Keisling (personal communication, May 1, 2008) emphasized that HRC made it clear that they were only talking about federal anti-discrimination legislation. Following this presentation and their change in policy on trans-inclusion in ENDA they continued to “weasel for years” about trans-inclusion in the federal hate crimes legislation they were trying to pass. She explained that a main reason for the differing policies on these legislations was that they believed that they had a chance of passing the hate crimes bill but not ENDA.

  11. Reps. Dennis Kucinich from Ohio, Rush Holt from New Jersey, Linda Sanchez from California, and Yvette Clarke from New York (“Bill to Protect GLB Workers Advances Without the T”, 2007).

  12. Reps. Clarke, Jerrold Nadler, Edolphus Towns, Nydia Velasquez, and Anthony Weiner, all from New York City; Holt from New Jersey; and Michael Michaud from Maine.

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Acknowledgments

This article came out of research I did on ENDA while a Vaid Fellow at the Policy Institute at the National Gay and Lesbian Task Force. I want to thank Nick Ray and Jamie Grant for the opportunity and their support. I also would like to thank Carolyn Dinshaw, Jack Skelton, Lara Kelland, and the two blind reviewers provided by SRSP for comments and edits on various versions of this essay. Finally, thank you to Chai Feldblum, Phyllis Frye, Mara Keisling, and Lisa Mottet for lending me their time, memories, and knowledge.

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  1. American Studies, University of Minnesota, 104 Scott Hall, 72 Pleasant St SE, Minneapolis, MN, 55455, USA

    Elias Vitulli

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Vitulli, E. A Defining Moment in Civil Rights History? The Employment Non-Discrimination Act, Trans-Inclusion, and Homonormativity. Sex Res Soc Policy 7, 155–167 (2010). https://doi.org/10.1007/s13178-010-0015-0

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