[Blog/Commentary] [USA] Politics of the Possi-Bull

[Stephanie Stevens]

Transadvocate, USA


May 11, 2012

Politics of the Possi-Bull

Kat Rose


From Queer Channel Media
<http://www.washingtonblade.com/2012/05/10/breaking-senate-committee-agrees-to-hold-hearing-on-enda/>
:

A Senate committee has agreed to hold a hearing on the Employment
Non-Discrimination Act following calls from advocates and senators for
lawmakers to hear testimony on LGBT workplace discrimination.

…

The hearing could be the first opportunity for a transgender
witness to testify before the Senate on LGBT workplace discrimination.

Or, it could be the beginning of St. Barney’s final screw.

As unrepentantly anti-LGBT as the christianist party caucus in
Congress is – and as psychotically delusional as Mitt the Crip
(Blood?) is in general – the christianist party’s presidential
candidate is nevertheless currently in a bit of a PR quandary, caught
in a reality vacuum created by the combination of President Obama’s
pronouncement on gay marriage and the revelation that the christianist
party’s presidential candidate is not just a greedy, job-killing
bastard but also a thug who, as a prep school putz, led an aggravated
assault by a gang of rich preppie pukes against a gay student
<http://www.huffingtonpost.com/2012/05/10/mitt-romney-bullying-lord-of-the-flies_n_1507757.html>
.

All of which may well finally constitute the perfect ENDA storm I
began warning about a dozen years ago.

Okay…

not all of which.

There is one more element – namely, the explicitly pro-trans EEOC
ruling <http://www.metroweekly.com/news/?ak=7288> .

The perfect ENDA storm I began asking about back then was rather
simple: If ENDA passes and says nothing on trans-anything, will that
silence be interpreted by federal courts as a statement against trans
coverage? <http://web.archive.org/web/20041105203900/http://www.txtriangle.com/archive/821/vpkatrose.htm>

If ENDA passes without a transgender-inclusive definition of
‘sexual orientation,’ then federal courts will only become more
likely, not less likely, to firmly hold that the intent of Congress
was, and is, to exclude transgendered people from the scope of
employment protection.

HRC’s separate-but-allegedly-equal,
courts-but-never-a-federal-statute-for-transsexuals stance on federal
employment legislation is nothing but a shell game. It is transphobia.
It is hatred of us because we dare to exist.

You know…Ulane v. Eastern Airlines, Jr.?
<http://web.archive.org/web/20041106112406/http://www.txtriangle.com/archive/827/vpkatrose.htm>

“The total lack of legislative history supporting the [inclusion
of 'sex' in Title VII] coupled with the circumstances of the
amendment’s adoption clearly indicates that Congress never considered
nor intended that this 1964 legislation apply to anything other than
the traditional concept of sex.”

Of course, this is a logic leap that courts have not been willing
to question.

“Had Congress intended more, surely the legislative history would
have at least mentioned its intended broad coverage of homosexuals,
transvestites, or transsexuals, and would no doubt have sparked an
interesting debate. There is not the slightest suggestion in the
legislative record to support an all-encompassing interpretation.”

The current version of ENDA would prohibit discrimination because
of homosexuality, bisexuality and heterosexuality. Transgendered
people have been totally excluded from the legislative process by
ENDA’s masterminds. Consequently, there is little hope that any
“all-encompassing interpretation” that will cover gender variance will
be available to be gleaned from ENDA’s legislative history, should it
pass.

TG advocates point to surveys of GLBs which indicate that a
significant number of GLBs will be subject to non-covered gender
non-conformity discrimination under a non-gender-inclusive ENDA.

But Kat, Price Waterhouse v. Hopkins took care of all of that.

Of course, we all know that it didn’t. It certainly helped, but it
wasn’t the cure (and, as those of us who live in reality can
acknowledge, it was an interpretation of federal law – not Maryland
state law <http://www.transadvocate.com/come-to-think-of-it-ive-never-seen-morgan-meneses-sheets-and-cathy-brennan-in-the-same-room-at-the-same-time.htm>
.)

But now there’s that EEOC ruling, right?

Well, back in the day I had to wonder a bit more: Given the
intransigence of the purveyors of the lies of ‘incremental progress’
(and don’t kid yourselves: St. Barney has only moved on this in the
sense of seemingly proposing bills that appear to cover trans people;
because the 2009-10 session of Congress was sacrifced to the wants of
the infinitessimal percentage of gays who desire a crareer in the
military, in his one opportunity to prove himself – in 2007 - he
proved himself to be as unapologetically transphobic as ever) and ‘the
politics of the possible’ and ‘better to get half a loaf than nothing’
and, perhaps most critically, ‘a non-trans-inclusive ENDA won’t harm
trans people, it will simply maintain the status quo,’ I began to
wonder to what extent they would make any effort to empirically adhere
to that last substanceless soundbite.

Stated differently: What would they do if the ‘compromise’ ceased
being simply leaving trans people out if ENDA but instead became the
addition of specifically anti-trans language, you know…

like a tiny little clause ‘clarifying’ that the rest of federal
anti-discriminaion law – particularly Title VII (which, a dozen years
ago, was being primed for the recent EEOC ruling via decisions –
federal, not Maryland state law – such as Schwenk v. Hartford and Rosa
v. Park West Bank) is just as formally transphobic as the ADA?

In fact, tomorrow will mark twelve years since I asked this question
<http://web.archive.org/web/20041106112340/http://www.txtriangle.com/archive/831/vpkatrose.htm>
(and a couple of others) in the pages of the Texas Triangle:

If there was an attempted amendment to Barney Frank’s ENDA bill
that would ‘clarify’ Title VII to ensure that it is never interpreted
to protect transsexuals, would Frank and the HRC expend one ounce of
political energy to kill it? Or, would it oh so lamentably be accepted
as a compromise to get a homosexual-only bill passed?

How about an attempted amendment that would prohibit the federal
government from recognizing gender transition (even though 20 states,
D.C. and Guam explicitly do so recognize)?

Or an attempted amendment that would add a provision to DOMA to
prohibit the federal government from recognizing marriages entered
into by transsexuals?

Remember, in 2000, this was what advocates for trans inclusion in ENDA
faced when we tried to ‘play nice’
<http://web.archive.org/web/20041106112018/http://www.txtriangle.com/archive/828/vpkatrose.htm>
:

On March 22 a team of spiritual, feminist, and transgender
activists, including members of the National Transgender Advocacy
Coalition (NTAC), met with HRC officials to discuss its
transgender-exclusion policies and to negotiate an end to what
transgender activists contend has been a three-year campaign by HRC to
defeat employment protections for transgendered people.

HRC’s Nancy Buermeyer stated that her organization is aware of the
importance of gender expression in discrimination against gays,
lesbians and bisexuals, blaming the non-inclusive language of ENDA on
Barney Frank. Yet, she said that much of the HRC Board and the
Congressional sponsors of ENDA are ignorant of the importance of
gender expression to anti-gay discrimination and prejudice.

Same “Congress needs more education on the issue” song, different verse.

When asked by Texas NTAC member Vanessa Edwards Foster as to what
HRC had been doing to educate those people, Buermeyer admitted that
the issue is not something she discusses with them.

In 2000, we had to deal with an unjustifiably-employed mouthpiece for
a transphobic gay organization – an organization that, long after
that, claimed that a lack of education was the problem – who couldn’t
be bothered to do any of that education herself.

The EEOC ruling – plus all of the states that have joined Minnesota by
enacting legitimate (read: trans-inclusive) civil rights laws and
those that have fully rectified ones that were initially apartheid-ish
since then – means that, in the strictest sence, trans people are in a
better position now than we were in 2000.

Yet, in 2012, we have an ostensibly trans legal organization that
hires a communications director who has (or, at the time he was hired,
had) no idea what the EEOC is
<http://www.transadvocate.com/well-that-just-about-sums-it-up-for-the-tlc.htm>
, (and, remember, that’s not even the Quisling-helmed astroturf
organization that HRC bankrolled into instantaneous existence to
smother NTAC; and I won’t mention the
allegedly-more-trans-friendly-than-HRC gay organization – no, I won’t
mention the National Gay-Lesbian Task Force by name, I really won’t -
that has, for over a decade now, had no problem employing a non-trans
person as its trans-expert), and authorizes pro-Gay Marriage, Inc.,
apologia for publication in what used to be The Advocate.

So, even if there actually is any movement on ENDA in 2012 and even if
trans issues appear to be taken seriously at this upcoming HELP
Committee hearing, don’t tell me that ‘trans stuff was taken care of
with the EEOC ruling. so we don’t need it in ENDA’ is off the table.

Moreover, don’t tell me that the true final screw is off the table either.

And what would that final screw be? The aforementioned
‘clarification’ re: federal law?

Oh, I think we all know that that is on the table as well – but I mean
the screw beyond that – the one thing that might managed to get even a
handful of House psycho-christianists to sign on and allow an ENDA to
come up for a vote and pass.

What would that be?

Federal pre-emption.

Do not tell me that in a last-ditch effort to get an ENDA passed
before he leaves Congress, St. Barney would not be willing to
‘compromise’ and sign off on an ENDA that not only is gay-only and
‘clarifies’ that no existing federal statutory law covers trans people
but one that also contains some version of the following:

Congress hereby expresses its intent to fully occupy the field of
anti-discrimination law with respect to sexual orientation and gender
identity and expression.

That would be federal pre-emption.

And that would wipe out every trans-specific state and local
anti-discrimination law (as well as any state and local
anti-discrimination laws which might happen to extend sexual
orientation protections to people working at places with fewer than 15
employees.)

Yes, there are some psycho-christianists in Congress who would never
even vote for this version of ENDA.

But don’t tell me that there aren’t any Republicans in Congress –
representing states, or districts therein, that have trans-inclusive
state gay rights laws – that might not be willing to go along with it
to be able to say, at campaign time, ‘I protected small business
owners from being forced to violate their religious beliefs by hiring
homo-sek-shuls and I protected the economy of the United States by
preventing all businesses from being forced to hire men in dresses.’

Republicans in Congress like…

Iowa’s Steve King?

Minnesota’s Michele Bachmann?

Iowa’s Chuck Grassley?

Massachusetts’ Scott Brown?

Colorado’s Mike Coffman?

Minnesota’s Chip Cravaack?

Colorado’s Scott Tipton?

California’s Dan Lungren?

Minnesota’s John Kline?

California’s Dana Rohrabacher?

Illinois’s Aaron Schock?

New Mexico’s Steve Pearce?

And, if such a ‘compromise’ emerges, don’t tell me that anyone in Gay
Marriage, Inc. – all of whom will still be gnawing on the
crystal-infused bone that President Obama tossed their way earlier
this week – will lift a finger to stop it.


http://www.transadvocate.com/politics-of-the-possi-bull.htm