When I was a kid there was this joke. “Q: Why does a fireman wear red suspenders? A: To keep his pants up.” Later I learned that suspenders were a perfectly reasonable and fashionable way to hold your pants up. But it did pose a question to me when I would see people wearing suspenders and a belt. I cannot recall ever hearing somebody say, “My suspenders broke, thank goodness I was wearing a belt as a backup.” Moreover I don’t think I ever saw a person who would refuse to go outside with only suspenders for fear of losing their pants. And those who might insist on both before leaving the house might have an issue if they had only one or the other. But this is exactly the situation we see today with employment rights for trans persons.
In 2012 the Equal Employment Opportunity Commission (EEOC) in Macy v. Holder ruled that discrimination in employment against trans persons is sex discrimination under Title VII of the 1964 Civil Rights Act. That means this is the case in the entirety of the USA—everyplace—regardless if it is in Nebraska, Nevada or New York or whether there is a state or local statute or not. This decision by the commissioners was unanimous and included GOP appointees, indicating to me that this was not a partisan decision. Since then there have been a number of cases brought before the EEOC including from Maryland with respect to this matter and to my knowledge, all have been settled in favor of the trans person. For purposes of our discussion I am calling this decision our “suspenders”.
You might think this would be the biggest news in history for trans rights. And for my money you would be right. It should be! After all, Title VII sex discrimination is settled law with the Supreme Court in Price Waterhouse v. Hopkins. And so there should be shouting from rooftops, victory parties, parades, and fireworks in celebration. With our national LGBT rights organizations crowing from every podium, from every talking head on TV, posting in social media, and any venue they can, “It is no longer OK to discriminate against trans persons in the United States in employment!!!”
Alas no. That news is relegated and buried to pages and paragraphs deep in reports, the Nth slide in presentations, three or four clicks deep in websites or qualified into oblivion. Put another way, they have buried the lede. If you were a trans person seeking guidance as to how to file a claim or even that you have the right to do so, your search might come up flat. Or worse, be told you do not have rights in your state or locality. And one has to ask, “Why are we not out educating our people, employment lawyers and human resources professionals about this?” I think I know why, and it has to do with a “belt” called ENDA.
The Employment Non Discrimination Act (ENDA) is up for consideration in the U.S. Senate. This time, unlike its stripped down 2007 predecessor, it includes not only gay and lesbian folk but trans folk too. In fact any gender non-conforming persons would be covered under Title VII. So what does ENDA add for trans persons? Little.
Here’s the problem. ENDA might indeed pass the Senate before the end of this year. And when it arrives in the house it will likely be DOA with the GOP. Meaning there is no real expectation that it will make it through the house until there is a change in management there. That would likely not happen until January 2015, or 2017, or whenever. Maybe never.
Our national leaders are not serving us in this matter. They are saying suspenders are not good enough to hold up your pants. You apparently need a belt and suspenders. They are not saying we have won a huge victory and should be enshrining it in corporate handbooks and winning case after case. In fact, they are afraid that such cases might find rulings to the contrary. If that was the mindset in Marriage Equality where would that movement stand today?
The bottom line: We do not have to wait for ENDA to exercise our rights, we can do so today. And I for one would not be satisfied with a story that says, wait your turn, with a pat on the head. Ask that organization that claims to represent you where they stand and what are they doing to promote the EEOC decision. If you get anything other than an enthusiastic “We are spreading the word and promoting it” then you should probably ask them why do we need a belt and suspenders?