The Employment Non-Discrimination Act (ENDA) has been introduced to Congress numerous times, and is up for a Senate vote again, but has thus far failed to be enshrined in law.

Currently, there is no federal employment protection for gay, lesbian, and trans-identified people: we can be fired simply for being homosexual or gender non-compliant. These kinds of discrimination go unpunished unless local jurisdiction provides recourse. I consider it the most critical legal vulnerability for gays and lesbians in the United States. Even more important that the right to marriage, the right to work is fundamental to our individual and collective survival.

Possibly the biggest obstacle to ENDA’s successful passage has been political controversy around the inclusion of “gender identity” protections. Barney Frank discusses this very real problem in a 2007 guest post at Bilerico:

To take the position that if we are now able to enact legislation that will protect millions of Americans now and in the future from discrimination based on sexual orientation we should decline to do so because we are not able to include transgender people as well is to fly in the face of every successful strategy ever used in expanding antidiscrimination laws. Even from the standpoint of ultimately including transgender people, it makes far more sense to go forward in a partial way if that is all we can do. Part of the objection to any antidiscrimination legislation is fear of consequences, which fears are always proven to be incorrect.

Six years later, the political climate is very different and Frank has retired, but ENDA still hasn’t passed and we have the same old problems.

First, the definition of “gender identity” is typical of the vague and overbroad “stereotyping” definitions supported by mainstream LGBT organizations. If you do not have pre-existing knowledge of gender stereotypes, the definition of “gender identity” is self-referential and meaningless.

ENDA 2013 (proposed):

(7) GENDER IDENTITY.—The term ‘‘gender identity’’ means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.

There is no objective or otherwise measurable criteria here. No consistency requirement. No duration. No documentation. No medical treatment. Nothing. Just appearance or identity. Or mannerisims. Or some other “related” characteristic.

Appearance and identity are positioned as direct overrides to legal sex: “without regard to the individual’s designated sex at birth.” These words instruct us to act without regard for sex.

Usually, this is no problem because making judgements based on legal sex is almost always inappropriate. But in a few very limited contexts, sex-segregation is required for reasons of privacy. In terms of employment, we are talking about shared employee bathrooms and locker rooms. In the past, a very carefully worded compromise had been made. The proposed Employment Non-Discrimination Act (ENDA) of 2011 contained an exception that would allow an employer to offer similar but different accommodations without being in violation of the law.

From ENDA 2011, Section 8 of the proposed legislation (my red added):

(3) CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.

I think this is fairly reasonable, especially because it was drafted before the Colleen Francis fiasco at Evergreen State College (an intact adult male exposed his penis to underage girls using “gender identity” as justification for his naked presence in the pool locker room).

I am very unhappy to report that CERTAIN SHARED FACILITIES protections for female-only private spaces has been removed from the current version of the bill under consideration in the Senate. This is a major concern for me in terms of supporting the legislation. At the same time, as a lesbian, the job protections themselves are critically important and we need them yesterday.

Mara Keisling explains the omission of CERTAIN SHARED FACILITIES at HuffPo in April:

The most significant change for transgender people is that we fought for and won removal of language that clarified use of showers and locker rooms “where being seen unclothed would be unavoidable.” None of the states that have passed and successfully implemented a gender identity anti-discrimination law includes such a provision, and neither should ENDA.

This is not exactly true. Eleven of seventeen states with “gender identity” anti-discrimination laws have separate provisions protecting sex-segregated spaces. I covered this in my sweet GI CHART (tab 3). Here are the first 2 entries, in alphabetical order. So sorry about the formatting but WordPress has issues with charts; you’d better go download the whole spreadsheet and see for yourself.

STATE Year EXCEPTION LANGUAGE for SEX “gender identity” definition ( overriding sex ) Colorado 2007 (3) Notwithstanding any other provisions of this section, it is not a discriminatory practice for a person to restrict admission to a place of public accommodation to individuals of one sex if such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation. “Sexual orientation” means a person’s actual or perceived orientation toward heterosexuality, homosexuality, bisexuality, or transgender status Connecticut 2011 The provisions of this section with respect to the prohibition of sex discrimination shall not apply to (A) the rental of sleeping accommodations provided by associations and organizations which rent all such sleeping accommodations on a temporary or permanent basis for the exclusive use of persons of the same sex or (B) separate bathrooms or locker rooms based on sex. “Gender identity or expression” means a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth , which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.

As you can see, it’s not quite as simple as Keisling makes it out to be. In fact, none of this as simple as trans activists pretend that it is.

I have always argued– and will always argue– in favor of balance. We must undertake an analysis that balances the interests of ALL the parties affected. This is a primary function of law as social mediator (see scales of justice). The certain-shared-facilities sex-override problem is no exception.

I do not believe in offering no alternatives to transsexuals. I also don’t believe it is fair to females or that it is responsible public policy to completely disregard legal sex either. I support reasonable accommodations that consider the hardship required of the individual, the community, and the building owner/manager. There is legal precedent for this under the Americans with Disabilities Act. It is is not rocket science, it simply requires political negotiation rather than political stranglehold.

As an excellent example of such BALANCING, I will leave you with the soberingly reasonable language used by the City of San Francisco’s Unified School District policy, courtesy of Just_Jennifer.* I suggest that we use this as the model for “CERTAIN SHARED FACILITIES” protections in all contexts.

Bold not in original.

Locker Room Accessibility

Transgender students shall not be forced to use the locker room corresponding to their gender assigned at birth. In locker rooms that involve undressing in front of others, transgender students who want to use the locker room corresponding to their gender identity exclusively and consistently asserted at school will be provided with the available accommodation that best meets the needs and privacy concerns of all students involved. Based on availability and appropriateness to address privacy concerns, such accommodations could include, but are not limited to: Use of a private area in the public area (i.e., a bathroom stall with a door, an area separated by a curtain, a PE instructor’s office in the locker room); A separate changing schedule (either utilizing the locker room before or after the other students); or Use of a nearby private area (i.e., a nearby restroom, a nurse’s office)

*Jennifer shares this source: http://www.transgenderlaw.org/college/sfusdpolicy.htm but I cannot locate the primary source. This is blank in my browser: http://gamutonline.net/district/sanfrancisco/PolicyCategoryList/2415/5