As an attorney and the Executive Director of the National Center for Lesbian Rights, I share Lambda Legal’s concern that the deletion of express protection against discrimination based on gender identity from ENDA would result in a law that does not fully protect lesbians, gay men, and bisexual people – in addition to leaving transgender people unprotected. Over the past two decades, many federal courts—including the U.S. Supreme Court—have adopted astoundingly narrow constructions of anti-discrimination statutes. We would be foolish—and irresponsible—to ignore this body of case law as we are attempting to pass an effective statute that will protect members of our community from discrimination.

For example, although statutes prevent employers from discriminating based on national origin, courts have nevertheless interpreted those statutes to permit employers to discriminate against workers who speak with an accent associated with a particular country or region. Similarly, courts have interpreted race discrimination statutes narrowly to permit employers to discriminate against workers who wear hairstyles (such as braided hair) associated with a particular race. The basis for these decisions is that not all persons from other countries speak with an accent and that not all persons of a particular race wear a particular hairstyle. While we strongly disagree with the reasoning in these decisions, it, unfortunately, does not take a stretch of imagination to envision a court holding that a statute prohibiting only sexual orientation discrimination does not protect a butch lesbian or a feminine gay man because not all lesbians and gay men are gender non-conforming.

The U.S. Supreme Court itself adopted this kind of narrow analysis when it infamously held that discrimination based on pregnancy is not sex discrimination—since not all women are pregnant. Geduldig v. Aiello, 417 U.S. 484 (1974).

The inclusion of “actual or perceived sexual orientation” does not guarantee against an equally narrow interpretation of ENDA. For example, the Americans with Disabilities Act expressly protects those who are “regarded as” having a disability. Nonetheless, federal courts have construed this provision in an incredibly narrow way—namely, to exclude individuals who do not have a disability but are discriminated against because an employer believes they do. As a result, the “regarded as” provision in the ADA has largely been stripped of any real significance. There is little reason for confidence that federal courts will adopt a broad view of “perceived sexual orientation” to embrace gender non-conformity. Indeed, we fear that the opposite is much more likely.

This is particularly true since the question is not whether to include “gender identity” in the bill in the first place, but whether to remove it. As litigators are well aware, when Congress alters the language of a bill to make it more narrow, courts generally consider those alterations to be significant. Inevitably, some courts will seize upon the removal of “gender identity” as a reason to construe the new bill to exclude protections for those who are, or are perceived as being, gender non-conforming.

Unfortunately, Title VII—which prohibits sex discrimination by employers—cannot be guaranteed to fill the gaps left by the removal of an express prohibition on discrimination based on gender identity from ENDA. Despite decades of effort, we have not made nearly the progress we should have in getting federal courts to construe Title VII to prohibit discrimination based on an individual’s nonconformity to gender stereotypes, particularly outside of the context of harassment. While we will continue to press on this front, banking on Title VII to fill the gaps in the new ENDA is premature.

As Lambda Legal has pointed out, one recent example is Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005). In Dawson, the plaintiff had a weak factual case, but what is significant is that the Dawson court expressed skepticism that Title VII necessarily prohibits discrimination based on gender non-conformity. The court stated that whether such discrimination is actionable under Title VII is still an open question in the Second Circuit.

A few commentators criticizing Lambda Legal’s analysis have demanded a “list” of state court decisions that have narrowly construed sexual orientation-only laws. Such a demand shows a fundamental misunderstanding of employment discrimination litigation. Only eight states have laws that prohibit only sexual orientation without also including gender identity, and there are very few published LGBT employment discrimination decisions in those states. We know from our own firsthand experience that LGB employees who have experienced discrimination that might be characterized as based on gender nonconformity have a very difficult time finding a lawyer to represent them in those states because of the uncertainty as to whether the law prohibits this type of discrimination.

Moreover, even if an LGBT employee finds a lawyer to file such a case, most employment discrimination cases settle and never result in an appeal that establishes precedent. Experienced lawyers thus have to read the case law not just for what it expressly states, but for what it shows is likely to happen in other litigation. What has happened in the federal courts under other anti-discrimination laws shows why we, Lambda Legal, the ACLU, GLAD, and the Transgender Law Center are deeply concerned about the inadequacy of a sexual orientation-only bill.

LGBT legal groups are right to oppose any version of ENDA that does not include protections against discrimination based on gender identity. For all practical purposes, we have one chance to pass a law that will effectively and adequately protect our community. Omitting transgender people from that law would be unprincipled and unfair. It would also be irrational, since doing so will also leave many lesbian, gay, and bisexual people without the secure protection they need against discrimination based on gender nonconformity. We can do much better, and we must.

Kate Kendell, Esq.

Executive Director

National Center for Lesbian Rights

By far the most dismissive and insulting words have come from those rejecting Ts - knowing that Ts face the most discrimination, and hoping to win GLB protection sooner by delaying T protection indefinitely.

But some Ts have been blind to the experiences of other Ts. T identity can involve gender, sex, or intersex issues, but doesn't necessarily involve all three.

Gender is social, sex is biological. Gender involves culturally-variable masculine, feminine, and other-gender roles. Sex involves biologically-determined male, female, and intersex development and characteristics. In some societies skirts are feminine, in other societies they are not. In some societies paying dowry is masculine, in other societies it is feminine, in other societies it does not apply. All these involve gender, not sex.

For the longest time I had assumed that all people desired to become the opposite sex - when there is an opposite. Sure, they didn't mention this, but I didn't mention this either. I was surprised to discover, not only that others don't feel this, but that others don't even understand this, and many dismiss it as a mental illness. I can't help wonder what else people dismiss as mental illness - love of music? thirst for friendship?

One of my friends is a fully-transitioned T woman who chose feminine gender roles as well as female sexual characteristics (to the degree that this is possible). She sought each change. To my limited knowledge, she was never intersexual. So she has crossed for gender and sex, but not intersex, reasons.

I am uneasy with both masculine and femine gender roles in our society. I don't want to switch from one ill-fitting gender role to another ill-fitting gender role. But I dream as a woman and wake as a near-man, with disappointment on good days and disgust on bad ones. I don't want to become a proper male, I don't want to remain as I am, and I don't want to accept my condition. I believe I should cross for sex and intersex, but not gender, reasons.