In 1994, when I was a freshly out transgender woman still laying the groundwork for living full time in my preferred gender, I heard of a bill that was heading to the 103rd Congress. That bill was the Employment Non-Discrimination Act of 1994. It never made it out of committee. That year, as the battle over ENDA started in earnest, I found myself in Houston, Texas on a hot, sweaty summer's day, attending the Transgender Law Conference.
In one particularly contentious panel, a representative from an organization then known as the Human Rights Campaign Fund tried to quell rising anger about the lack of transgender protections in ENDA. Those assembled were told not to worry, that this was all a first step, and HRCF would not leave us behind. We were informed that Congress was simply not ready to deal with transgender issues, and the bill would not be able to muster enough votes if transgender rights were included. Indeed, this HRCF wonk suggested that if this non-inclusive ENDA was passed, they would come right behind to start work on an ENDA that would specifically protect transgender people – oh, and can they have a donation?
Like the old "Peanuts" comic strip, we would be told by the Human Rights Campaign – which shed the "Fund" at the end of its name between 1994 and now – that it would hold the football while we come up and kick it. Then, every year, something would happen to get the football swiped away, and those of us in the transgender community would find ourselves flat on our back.
In the last few years, HRC officials have made it clear that they were absolutely, positively never going to give us up or let us down, only to turn around and claim that their hands were tied and, gosh, they simply had to desert us. The best-known example was in 2007, when two different versions of ENDA were introduced in the House. The first included gender identity, but included some limitations due to employee dress codes and locker rooms. The second, introduced by Representative Barney Frank (D-Massachusetts), did not include gender identity at all.
For what it's worth, Frank hasn't been a fan of gender identity language in ENDA, often citing concerns about pre-operative transgender women in public restroom facilities. To quote Frank asking if he would include transgender people in ENDA back in 2000 – by way of transgender activist Miranda Stevens-Miller – "He got red in the face and started shouting, 'Never.' His problem was that until we could answer the question of 'people with penises in [women's] showers,' there is no way that he would support it. The conversation got rather heated to say the least. And with Barney speaking very loudly and repeatedly about 'penises in showers,' we attracted a lot of attention in the restaurant."
Other activists, including Katrina C. Rose, have pointed all the way back to 1975, when Frank was still in local Boston politics fighting against transgender people in some of the area nightclubs. That was largely about prostitution, supposedly, not shared bathroom facilities.
Frank's views may not have wholly evolved in the decade since Stevens-Miller spoke to him. He was quoted this month saying that the current ENDA would require "consistent gender presentation" in order to allow people to sue under ENDA – specifically, "They can't sit there with a full beard and a dress."
Likewise, he has indicated that transgender people with "one set of genitals" would not be able to go to a bathroom for people with another sex of genitals. Because, apparently, there will be someone at the door who will check what's in your pants.
In the interest of fairness, Diego Sanchez – Frank's legislative assistant and an out transgender man – has sought to clarify Frank's statements, claiming they were paraphrased. In some carefully chosen words, Sanchez has let the community know that ENDA would not mean transgender people could not use the restroom at work, and that employers would need to make "reasonable accommodations for transgender/transitioning employees." Further, employers could not force people to use the "wrong" bathroom, but that people in transition would not have the right to sue over the use of the "right" bathroom when it is occupied.
While no one has actually made public any of ENDA's current language, it's clear that transgender people are once again en route to possibly being disappointed. We may well be included, but the language is vague enough to leave a lot to be desired. What is a "reasonable accommodation?" Who defines "right" and "wrong," and is someone going to stand at the restroom door, checking what's in a person's pants? Likewise, why is a restroom being occupied an issue? Have these lawmakers never seen a stall with a door on it before?
It's been 16 years since ENDA's first introduction – and we're now in the 111th Congress. We've been through the presidencies of Bill Clinton and George W. Bush in that time, let alone the entire recording careers of Weezer and Usher. Yet we've not overcome this single hurdle. HRC is saying that it will only support a transgender inclusive ENDA – just like it did when it supported the non-transgender inclusive version in 2007. Frank has only managed to make it to some partial, lukewarm support of transgender people and that they have the right to go to the bathroom when it's not occupied – or something, as we've not seen the language yet.
Lucy Van Pelt is holding the football, and the Charlie Browns of the transgender community have been told to trust Frank and HRC yet again. This time, they claim, they will not pull the ball away. What do you think?
Gwen Smith is never gonna give you up. You can find her online at http://www.gwensmith.com.