Editor's Note: Today we have two essays about the most hotly debated issue in the GLBT community right now: the Employment Non-Discrimination Act, aka ENDA. The details are somewhat complex (they're explained further below), but boil down to whether to pass a stripped-down version of ENDA that could probably pass in the House now but would not include transgendered people, or holding out for a bill that includes everyone, meaning the "T" in GLBT, even if it means that the bill might be dead out of the gate due to a lack of Congressional support.

That's a simplified description of the situation, but each of these positions is argued more thoroughly and eloquently on QueerSighted today for your consideration.

Chai FelblumFirst, guest blogger Chai Feldblum shares her views on why ENDA should keep the "T" in GLBT. Feldblum is a professor at Georgetown University Law Center, and a well-respected strategist within GLBT activism. She was one of the primary attorneys who drafted and negotiated the provisions of ENDA from 1992 until 2002, and we're lucky to have her voice on QueerSighted today.

QueerSighted writer Richard Rothstein writes in favor of a bill that can be passed in the House now, even if it means that transgendered protection will have to be excluded and revisited separately in the future. His essay is posted below this one, or you can click here to read 'Barney Frank Lives in America, Not Oz.'

After you've heard the arguments, tell us in the comments: What strategy do you support?

LET'S STOP THE TRAIN WRECK

By Professor Chai Feldblum

QueerSighted Guest Blogger

About two weeks ago, Congressman Barney Frank took a unilateral action that set into motion a potential train wreck for the LGBT community and for the Democratic party. Let's hope cooler heads can still prevail; that we will all take a collective deep breath; and perhaps we can still head off this train wreck.



A vote count of Democrats in the House of Representatives several weeks ago indicated that anywhere from 60 to 70 Democrats might vote for an amendment (were it to be offered) stripping transgender people out of the protections offered by the Employment Non-Discrimination Act (ENDA). Given that political reality, Congressman Frank and others chose to introduce two new bills in Congress: one prohibiting discrimination just on the basis of sexual orientation and one prohibiting discrimination just on the basis of gender identity. Frank and others recommended that Congress move forward just with the sexual orientation-only bill.

I do not question Barney Frank's commitment to advancing LGB and T equality. He has been in this fight for a very long time. But that unilateral decision set off a chain of events, resulting in extensive lobbying efforts by national, state and local LGBT groups to convince the House of Representatives that it should move forward only on a transgender inclusive ENDA. To get a sense of some of the incredibly impressive efforts on that front, as well as the rationales for that position, check out http://www.unitedenda.org/.

I am not impervious to the reasons for moving forward with a weaker bill. I cannot tell you the number of times, over the past 20 years of my political career in Washington, that coalitions I have been involved with have faced the news of a bad vote count. Sometimes the coalition's strategy is to drop the offending provision and move forward. Other times, the coalition's strategy is to pause on the bill until it figures out if and how it can change the vote count. These decisions always take into account both the substance of the bill and the political needs of the Members of Congress supporting the bill.

But always, always, always – the decision is made with the coalition that has been involved in pushing the bill. That is how public train wrecks are avoided.

Had a serious conversation happened two weeks ago with a broad and representative group of LGBT leaders, maybe we could have worked something out more quietly. I believe everyone in such a meeting would have agreed that those who support the bill could get political punch on the campaign trail in 2008 by passing a sexual orientation only bill that President Bush would veto. But the serious and deep opposition to that type of bill would also have surfaced in such a meeting. And we might then have figured out how supporters could still get political punch by continuing to work on a bill that included LGB & T – and arguing on the campaign trail that we need a supportive President to sign such a bill.

Let's be real about a few things:

One: A gay rights bill (in whatever form) will not become law until we have a new President. Passing a sexual orientation only ENDA out of the House is not equivalent to enacting a law.

Two: It will be easier to cover transgender people if they are included together with gay people in one bill. We've managed through a lot of hard work to mainstream gay rights for a host of Members of Congress over the past 20 years. There's no ethical reason why we should not try to leverage that achievement in a way that helps transgender people.

Obviously, we may have to face the tough question at some point about whether we want to take a law that protects only gay people. But with President Bush in the White House, a veto of any ENDA bill is inevitable and therefore we simply do not need to make that hard decision now.

So let's stop the train wreck set in motion two weeks ago. Here is how we should do that.

Speaker Nancy Pelosi should hit "pause" on the sexual-orientation-only ENDA that some people seem hell-bent on bringing to the House floor. She should tell the committees that they should go back to work on an ENDA that includes protection for transgender people. And then we should all jointly craft a political message for the bill's supporters that explains this move in a way that reinforces the credibility and energy those Members will need on the campaign trail in 2008.

Btw, as Barney Frank correctly notes, it's a relatively new thing for the ENDA bill to protect transgender people. Since its inception in 1992, and until its reintroduction in this Congress in 2006, ENDA bills prohibited discrimination in employment based on sexual orientation only and not on gender identity.

I was one of the main lawyers responsible for drafting and negotiating the provisions of ENDA from 1992 until 2002, first as a consultant to the Human Rights Campaign and then as a consultant to the National Gay & Lesbian Task Force. I believed, for many years, that it was fine for ENDA to protect only LGB people and for transgender people to be protected under a separate law.

I changed my mind in 2002. It was not that I suddenly believed that civil rights are not achieved through incremental gains if that's what the political realities of the time require. (God, my whole political career has been based on that truism!) But I came to believe that protecting LGB people, but not T people, in ENDA, was akin to having the Americans with Disabilities Act cover all people with disabilities, but not some with HIV and AIDS, or like having a hate crimes bill cover crimes based on race and religion, but not those on sexual orientation or gender identity. It became different for me from other forms of incrementalism that I have endorsed – such as covering only employment in ENDA and then moving to housing and public accommodations in a later bill, or covering people with disabilities in housing first and then moving to greater coverage in the ADA.

In Washington, here is what makes the difference between these different forms of incrementalism: Will the coalition that is pushing for the underlying bill feel that if the bill is enacted, with the exclusion, it is still worth celebrating?

Congressman Frank believes (and he has explained quite eloquently why – check out the Congressional Record on October 10th) that an ENDA that protects only LGB people is worth celebrating. I am not going to contest him on that belief. I shared that belief for many years and I know many people in the LGB community who share that same belief today quite sincerely. But there are many other people in the LGB community (including me, at this point) who do not share that belief and who have no desire to be celebrating a sexual orientation-only law. And the reality is that we do have to face that choice now because no bill will be enacted into law as long as this President remains in office

I believe we can pass a bill that covers both sexual orientation and gender identity, and that we have the time to make that happen before a new President takes office. It will take work; it will take education; it will take perseverance. But let's not short-circuit our efforts by moving precipitously to limit our efforts to a bill that gives up the battle before we have even begun to fight – a bill that will not become law, whatever its scope.

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Now the other side of the coin: 'Barney Frank Lives in America, Not Oz.'