Congressman Barney Frank has made clear that even with a significant Democratic majority in the House of Representatives, Congress will not pass an Employment Non-Discrimination Act that includes transgender protection.  Even if an inclusive ENDA were to pass the House, it is unlikely that it would both pass the Senate and not be vetoed by President Bush.

There has been significant lamentation about and criticism of the current ENDA bill.  Donna Rose, the first and only transgender member of the Human Rights Campaign’s board of directors, has resigned in protest.  Lambda Legal has pointed out other flaws in the bill.   The National Transgender Advocacy Coalition demonstrated at the HRC national dinner.

With a Democratic majority in the House and Senate, why are we still unable to pass an inclusive ENDA bill that meets our aspirations?

Is the problem a lack of funding?  The community has provided HRC with hundreds of millions of dollars.  According to the Movement Advancement Project (MAP), of all GLBT organizations, HRC had by far the largest annual budget in 2006, at $35.9 million.  The next highest funded GLBT organization was Lambda Legal, with $10.5 million.  The issue appears not to be money nor staffing.

The New York Times exit poll for the 2006 federal election reported that 3% of voters self-identified as gay, lesbian or bisexual.  Even if one assumes that all voters candidly disclosed their sexual orientation to exit pollsters, 3% is a significant voting block.  We are motivated voters and continue to garner straight allies.

Over the past ten years, polling on all gay issues demonstrates a surge in public acceptance.  This is especially true among the younger mainstream generations.  According to a May 10, 2007, Gallup poll, 89% of Americans support providing workplace protections to gays and lesbians.

Why then are we not doing better politically in Washington?  Our modus operandi is based on a top down movement, one that fallaciously assumes that Washington drives the results, not grassroots activism.  This year the Local Law Enforcement Hate Crimes Act (also known as the Matthew Shepard Act), which would include both sexual orientation and gender identity in the federal hate crimes statute, easily passed both the House and Senate.  What can we learn from the passage of the Matthew Shepard Act to help guide passage of ENDA?

The Matthew Shepard Act was passed in large part because 31 states had previously passed similar hate crimes laws.  These states included not just Massachusetts, but Texas, Florida, Iowa, Kansas, Kentucky, Louisiana, Nebraska, Nevada and Tennessee, among others.  According to MAP, with the exception of Equality California, New York’s Empire State Pride Agenda and Mass Equality, the other 28 statewide organizations involved in passing their state’s hate crimes laws had annual budgets well under $1 million, and for many their budget was under $250,000.

25 of the 31 states passed hate crimes legislation with bi-partisan support by a Republican-controlled state house, senate and/or Republican governor.  In Pennsylvania, the hate crimes legislation providing criminal sanctions based on sexual orientation and gender identity passed with a Republican controlled house and senate, and was signed into law by a Republican governor.

These 31 states are represented by 62 (62%) of the U.S. Senators and 310 (71%) of the 435 members of the House of Representatives.  The legislative enactment in these 31 states represents neither judicial nor liberal legislative activism.

These facts were compelling for the U.S. Senators and House members, many of whom were not inclined to support hate crimes.  To oppose the Matthew Shepard Act would have meant for the elected official to defy the legislation enacted by their state legislature and the overwhelming opinion of their constituents.  It is activists at the statewide level who have helped pass federal hate crimes legislation.

How can we apply our experience with hate crimes to federal ENDA?  Currently, 20 states have passed ENDA protection.  Most of these state statutes include gender identity and protections in the workplace, housing and public accommodations.  In another five states, passage of ENDA is possible within the next year.  These 25 states represent 50 US Senators and a majority of the House of Representatives.  In Delaware, the bill has passed the Republican-controlled state house and has the support of the Democratic governor.  It is being held up in the Democratic-controlled state senate.

We need to focus on those states where passage is likely and help them with financial resources and other assistance.  They are the experts in their turf.  HRC has the opportunity to provide significant financial support.  The more states that pass ENDA, the more likely that we will pass a federal law that is inclusive and provides the nondiscrimination protection we seek.

There are about 14 months remaining in the Bush presidency.  As Texas Governor, he refused to support Texas hate crimes protection or ENDA.  It was after his departure that the current Republican Texas Governor signed a Texas hate crimes bill into law.  Since it is likely that President Bush would veto a federal ENDA bill, we should use the next 14 months supporting passage of as many state ENDA statutes as possible.  Those state ENDA statutes will well position the GLBT community for the passage of an inclusive federal ENDA amendment in 2009.

Malcolm Lazin
Executive Director
Equality Forum
www.equalityforum.com
(215) 732-7375
mlazin@equalityforum.com

Mr. Lazin is the recipient of the National Education Association’s 2005 Creative Leadership in Human Rights Award; the 2006 Distinguished Alumnus Award from Lebanon Valley College; and is a 2007 Prime Mover of the Hunt Alternatives Fund.

Equality Forum is a national and international GLBT civil rights organization with an educational focus.  Equality Forum undertakes high impact initiatives, produces documentary films, coordinates GLBT History Month and presents the largest annual international GLBT civil rights forum.