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Monday, October 08, 2007

About ENDA

I've been asked to do some politicking for myself and my peers in the matter of trans exclusion from Barney Frank's proposed last-minute rewrite of the Employment Non-Discrimination Act. I will be participating -- reluctantly. This is because I think that ENDA, in any form, should not have been necessary and in a way is a kind of wrongheaded thing to attempt to do. My reason is that we ought, as a nation, to have understood the Constitution all along as providing the protections enumerated. And it's a great mystery to me that we don't seem to be able as a people to see that and act accordingly.

Politics being "the art of the possible," politicians must strike deals, and the questions with which they are often faced are frequently questions of how much blood on the floor is too much blood. ENDA without transpeople would be an achievement (if achieved) -- of sorts. Democrats are saying "millions of people would benefit." Speaking as one of those who would perhaps be left behind, with a promise (frequently broken before in similar circumstances, including in my home town) of "we'll be back for you," I have to ask: Okay, how much injustice should we tolerate? And is that even measurable? Nearly all LGBT organizations have stood with transpeople against the idea of their exclusion, so the pain threshold on this is, for me, relatively survivable. But it's definitely out there.

Unlike many, though, I'm not upset with the Democrats in Congress on this. Some of them made promises, but many did not, and negotiation on the matter can be held to be in good faith. Sort of....

I do reserve some ire for the Human Rights Campaign, who did make unequivocal promises and who did -- just long enough to let the demon of exclusion out of the box -- renege. I'm not, I hope, a hopeless idealist, but there's a reason why I'm not in politics and the HRC has just forcibly reminded me. But, on to my intent in writing this post.

Dear ones, each addition of a protected class of citizens (the Americans with Disabilities Act, preparing to add "people with disabilities," mentions race, color, sex, national origin, religion, or age) to our assorted codes and regulations should have been sufficiently rendered redundant by the use of the class "citizen." With a fillip of inclusion for those under our protection, such as green card carriers.

Unfortunately, those who argue against inclusion of gays, lesbians, and bisexuals, and those who, including some gays, lesbians, and bisexuals, argue against the inclusion of transpeople often seize upon this argument ("right; it's already there, so insisting on this is insisting on special rights" -- huh?) without much consideration of our long, often bloody and always, where found, unjust history of non-inclusion of individuals by race, color, sex, national origin, religion, age, or disability.

Why was anyone's citizenship and economic participation ever at issue on the basis of category? I say "on the basis of category" as an avoidance of what the ADA calls "based on characteristics that are beyond the control of such individuals" since "religion" does not always seem to fit that description. But just try telling a Southern Baptist that they shouldn't have this "special right" of non-discrimination on the basis of religious affiliation.

If it has been deemed necessary to redundantly protect people who have been excluded from justice by race, color, sex, national origin, religion, age, or disability, then it follows that ENDA is necessary.


Another missed opportunity to just be a just society from the get-go.

So if ENDA is necessary, why not include transpeople?

I'm married to Beloved. That makes us, according to some, lesbians. If she divorces me and I marry a man, that makes me, according to, in most cases the same people, gay. Since I'm able to contemplate either fate, I'm presumably bi. In what way would an ENDA that mentions only gays, lesbians and bi people exclude me?

In this matter we transpeople are, perhaps, victims of our own effort not to be tarred with a sexual-deviancy brush.

We claim that we are about gender, not sex, thus effectively creating a new social category and inadvertently helping to define an excludable category. Since gays and lesbians are on the road to some kind of acceptability as different-from-but-not-less-than, transpeople (and perhaps intersexuals -- but the framers of the ADA have included them without realizing it, because their medical condition is less deniably evident) are left high and dry on the shrinking island labeled FREAKS. And the injustices, and they are quite real, to which transpeople are subject continue unabated.

But I remember Tod Browning's seminal, and at the time deemed too-shocking-to-be-shown movie, Freaks. It was about people with disabilities. How times change!


What if the ADA had been written simply to eliminate all forms of gratuitous discrimination? Now that would have been an Act of a Congress with something on the ball! It might have read (deletions struck through; additions within square brackets; notes within parentheses; emphasis in bold):



Sec. 12101. Findings and purpose

(a) Findings

The Congress finds that

(1) some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;

(2) historically, society has tended to isolate and segregate individuals with disabilities [categorically] and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;

(3) discrimination against individuals with disabilities [by category] persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;

(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination; (note that these enumerated discriminations do continue to occur)

(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies have documented that people with disabilities, as a group, [specific populations] occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;

(7) individuals with disabilities are a discrete and insular minority who [specific populations] have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;

(8) the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and

(9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.

(b) Purpose

It is the purpose of this chapter

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities [in these United States].

I would, if necessary, lay down my life for a nation that has passed, and would be willing to enforce, such a law. Many people, I suspect have so done with their lives, thinking that they had done just that. Would it were so.



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