The Advocate Comes Out in Support of Fully Inclusive ENDA
Since the recent EEOC ruling where transgender people were granted protection under Title VII of the 1964 Civil Rights Act, trans-exterminationists have revived with increased furor the call to remove gender identity protections from the Employment Non-Discrimation Act (ENDA).
This was of course done the last time the bill came for a vote in 2007 under the direction of Rep. Barney Frank and a Joe Solmonese-led Human Rights Campaign. The bill failed anyway but the betrayal has stuck in the minds of many in the trans community.
In an article simply credited to “Advocate Contributors”, the leading LGBT magazine laid out several reasons why the EEOC ruling should not stand as a replacement for gender identity inclusion in ENDA:
The first and most obvious reason is that the EEOC’s determination is vulnerable to being overturned by the U.S. Supreme Court. The legal battle on this question is not yet over.
But also interestingly, this case could have just as easily been a case about a lesbian, gay or bisexual person based on their sexual orientation. Many may not realize that the EEOC has issued non-precedent setting decisions in two cases recognizing the potential validity of sex discrimination claims against LGB people as sex discrimination as well.
In 2011, a gay man was physically threatened at a Connecticut post office after his wedding announcement appeared in a Hartford newspaper. The EEOC determined that the allegations are sufficient for a plausible claim of hostile work environment based on sex, because he is a man marrying a man. In a second instance, a lesbian was harassed on the basis of her sexual orientation and was found to have a “plausible sex stereotyping” case.
These rulings are less precedential than the Macy case because they were not issued by the full commission. But we can certainly hope that a sexual orientation case will reach the full commission at some point and will be decided with the same reasoning that made Mia Macy’s case a winner.
Yet, despite all of these rulings, discrimination against LGBT people will continue to persist. This is in large part because the EEOC enforcement process kicks in after an employee has been fired or an applicant has been denied a job. Conversely, ENDA would be proactive and would put in place a clear, comprehensive law banning discrimination against LGBT people.
