Thursday, October 11, 2007

ENDA loopholes

Today two more legal groups that are in the trenches fighting discriminatory firings added their critiques of ENDA-lite, being the latest to say it's only likely to protect those who are straight-acting. "[It's] a bill no competent attorney representing the lesbian, gay, bisexual and transgender community would ever support" said the National Center for Lesbian Rights.

The Gay & Lesbian Advocates & Defenders said: "As GLAD knows from the calls we get on our InfoLine, the discrimination experienced by many gay men, lesbians and bisexuals is based not directly on their sexual orientation, but on their presentation — their gender identity or expression. They are "too feminine" or "too masculine" and they make employers uncomfortable — and they're fired."

The butch who was thrown out of the Caliente Cab Co. restaurant in NYC (on Pride Day no less) because a bouncer thought she was too butch to pee in the women's restroom is an example of how gender expression affects gays and lesbians without "passing privilege." BTW, it's notable that the main thrust of the lawsuit she filed is that the restaurant violated NYC's protections on gender expression. While the lawsuit also alleged violations of sexual orientation, want to bet the restaurants lawyers will argue they didn't because (and admittedly I'm assuming here) there were other lesbians in the bar. Which is, as GLAD noted, the same argument employers can and do make today.

Employment law professor Jillian Todd Weiss has a detailed look on her blog at the case law on this issue, as do the ACLU, GLAD (PDF link), NCLR and Lambda Legal (PDF link) on their sites. If you don't want the legalese, this post illustrates how ENDA vs. ENDA-lite would play out in real-life scenarios.

To those critics who've challenged these legal groups to point to case law that's problematic is states that only have sexual orientation protections, NCLR points out that: "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."

Bottom line, gender identity/expression protections protect everyone, not just trans people.

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