ENDA, or the Employment Non-Discrimination Act, was recently reintroduced in both the US Senate and the House of Representatives. The legislation, which would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity, has been for years a contentious matter.
In 2007, the Human Rights Campaign (HRC) refused to support a transgender-inclusive ENDA and the resulting fall-out may well go down as the organization’s biggest public relations debacle.
The current version of ENDA has the full support of several trans-led organizations, including the National Center for Transgender Equality.
It’s widely held that this bill is both necessary and long overdue. On the face of it, ENDA would provide a way for people to fight back against discrimination, if they feel they were unfairly treated in the job selection process or unjustly fired.
But while ENDA seems like a good idea, there’s a danger of it being seen as the catch-all solution to discrimination against LGBTQ people. Indeed, with every passing year, ENDA becomes more of a Holy Grail, inducing more people to believe that the simple passage of this long-simmering bill will bring an end to discrimination against queer and trans people.
The fact, though, is that the support for ENDA will only mean a victory of sorts for people whom look for employment in workplaces of a certain size, those which hire at least 15 employers. ENDA doesn’t apply to religious organizations, and that clause has drawn criticism from many, including the ACLU and Lambda Legal.
Like other “progressive LGBT” endeavors, ENDA’s support also comes at the cost of re-affirming views about homosexuality as innate and beyond one’s control. For example, the American Psychological Association supports ENDA and notes that “psychologists do not consider sexual orientation for most people to be a conscious choice that can be voluntarily changed.”
But as I’ve written elsewhere, this kind of adherence to the idea that sexuality is beyond our control and immutable is dangerous because, for one thing, it invites discrimination against those who believe otherwise and act accordingly.
While it’s true that gender identity has been included, we ought to be concerned that the bill still allows employers to dictate “dress or grooming standards.” In effect, those transitioning need to conform to the expectations of their “intended gender.”
Where does that leave gender non-conforming people? And what does ENDA really do for people who may not even be hired in the first place simply because they don’t conform or pass according to our still outmoded ideas of gender?
As it is, transgender people who don’t pass - because they lack the funds for expensive and multiple medical procedures or because they simply don’t want to - are easily discriminated against in matters like employment.
That discrimination can happen in ways that are completely indiscernible or difficult to prove. The fact that the legislation effectively writes in requirements to pass means that gender-non-conforming people are effectively written out of a public conversation about what it means to be LGBTQ. The fact that ENDA doesn't even apply to places that employ fewer than 15 employees removes oversight over smaller businesses.
ENDA is not entirely toothless. After all, we do have legislation in place to prohibit discrimination against women and other minorities, and there have been several instances of people gaining redress. But, as Liza Featherstone has pointed out in her reporting on the massive Walmart gender discrimination lawsuit, “ Change cannot come from the courtroom alone.”
At best, ENDA has symbolic value, and I fully understand the value of symbols. But my concern here is that the passage of ENDA will allow too many to forget that LGBTQ people aren’t just fragile creatures "born this way" whose rights are limited to outmoded and dangerous ideas of what counts as acceptable behaviour and presentation. In addition, ENDA does nothing to address the systemic forms of economic discrimination which, in the long run, do more harm to larger populations. It may even help to hide all that poverty and structural inequality by whitewashing labor relations in the US with a “LGBT victory”.
ENDA advocates are fond of repeating the same fact, that, “Yes, it's completely legal to fire or not hire someone for being gay in 29 states. If you're transgender, the number spikes to 34.” The implication here, of course, is that we should be horrified. Can you imagine! It’s legal to fire people for being gay or trans!
This conveniently ignores an issue that ENDA simply cannot address: in the US, employment is “at-will” in all states except Montana. This means that you can be fired for, well, no reason at all.
In other words, it’s completely legal to fire someone for any reason in more states than those where it’s legal to fire someone for being gay.
The fact that the mainstream gay and lesbian movement has been able to use and reuse the first statistic without anyone really questioning them on the second fact speaks volumes about labor laws in the US. In the long run, ENDA will do little more than provide cover for larger companies and corporations who already espouse “gay-friendly” policies, while doing nothing at all to improve labor relations and ensure stable and well-paid employment for all.
Yasmin Nair lives and works in Chicago. Visit her website here.