Tuesday, October 16, 2007

Why ENDA Must Cover Sexual Orientation and Gender Identity

Posted by Jennifer Levi, GLAD Senior Staff Attorney

Ever since attending a meeting last Friday with staffers from members of Congress who have said that they are going forward with a non-inclusive ENDA, I have been thinking about 2 questions I heard from those who disagree with the nearly 300 organizations who have pushed exclusively for an inclusive ENDA. They are: (1) why can't you continue to do the educational work you started on the gender identity portion of the bill after a sexual orientation-only bill goes forward; and (2) what is the harm of the so-called incremental approach that splits off the gender identity provision and moves forward with only sexual orientation protections. My answers to these questions are related and I answer them here.

The problem with the approach is that formally dividing a bill that is intended to cover the entire lesbian, gay, bisexual, and transgender community does not reflect the experience of many of us in the community. I would argue that to be the case for most of us but certainly nothing in my answer hinges on that empirical assessment. Perhaps more importantly, what separating out the provisions does is to artificially impose a classification structure upon the community that serves to divide us in ways that we do not naturally divide ourselves.

What do I mean by this? Well, from a very personal perspective, I identify as both lesbian and transgender. How could that be? The answer is that to much of the world I appear to be a man. When I go to restaurants, servers refer to me as "sir." When I board an airplane, the people at check-in often ask why I have someone named Jennifer's identification? And, although I look like a man, my body parts are more typically associated with someone who is female. I have the name of Jennifer because it is the one my parents gave me.

Sometimes it is hard to move through the world with a masculine expression in the body of someone female. But for me, it would be harder to move through the world with a gender identity, one that is more easily read as feminine, that does not match my inner, lived sense of who I am. The difficulties I encounter stem, I believe, from having to face others' discomfort. At least I do not have to live with my own.

Certainly, there were times when I did. There were years when I tried to change the outward expression of who I am in order to get along and not have to face others' discomfort. I wore more feminine clothing, shaved my legs and removed my beard. The psychic pain of this choice was mostly unbearable. Rather than sacrifice myself, I risk and face society's discomfort with the mismatch between my gender identity/expression and my sex.

As to why I identify as lesbian, well, I nearly always have. I came out as lesbian earlier in my developmental process than I identified as transgender. My intimate relationships have mostly been with women. As someone with a mostly female physical body, identifying as lesbian has assuredly made it easier to get dates.

So, for me, and I venture to guess many in our community (pretty much all of the butch lesbians and feminine men), the characteristics of gender identity and sexual orientation are inextricably intertwined. It is nearly impossible for me to understand my identity through one lens and not the other.

The reason, I believe, there has been such an overwhelming outpouring of community support in response to Congressional efforts to strip ENDA of gender identity protections is because it is so painful, maybe indeed impossible, for the LGBT community to even understand the distinction that would be imposed upon us by a bill that advances with one and not the other.

Laws are supposed to advance protections and do no harm. Stripping ENDA of gender identity does serious harm. It forces our community to accept, and worse, advertises to the rest of society, a distinction that is artificial - one that undermines for many of us our self-identity and lived experience. Because of the inaccurate definition of community we are left with, it also makes it nearly impossible to educate because the bifurcation reflects a fundamentally flawed description of who we are.

To be sure, there was a time when the community wrestled with whether we should forge political community across the LGB and T divides. Those were hard years for many of us, personally and politically. But we as a community are completely in a different place. That different place does not reflect compromise or political correctness. Rather, I believe strongly, that it reflects growth and a development of awareness that we cannot separate sexual orientation and gender identity.

Asking us to move forward with a bill that only includes sexual orientation does a grave disservice to each of us for whom that is not a real distinction. Moreover, it does so for partisan political purposes. In the end, a "historic vote in the House" that will assuredly face a presidential veto gets us no legal protections. And, if taken on a bill that strips gender identity and leaves only sexual orientation, the vote would come at a very high cost indeed.

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