Passage by the United States Senate (60-39) of the Matthew Shepard Act last week was a significant advance. For the first time in history, the United States Congress has voted to include gender identity, the term used to protect the transgender and gender-variant part of the LGBT community. More importantly, the Senate attached this Hate Crime legislation to the Defense Appropriations Bill, using two clever reasons that are driving the talibangelists wild: first, Hate Crimes are domestic terrorism and, second, military members need protection from these Hate Crimes as well, as history as shown.

So, three cheers for Congress passing a Hate Crimes Bill. Nancy Pelosi, for your hard work for many years to ensure that our LGBT citizens are provided civil rights, you may now attend the Human Rights Campaign gala banquet next weekend to pick up your National Equality Award, the highest honor bestowed by the nation’s premier LGBT lobbyists.

Or maybe not….

The same day LGBT activists were rightly celebrating the Senate’s passage of the Matthew Shepard Act, ominous rumblings emerged regarding the Speaker’s other signature piece of gay rights legislation, the Employment Non-Discrimination Act:

House Democratic leaders are strongly considering dropping anti-discrimination protections for transgender persons from the Employment Non-Discrimination Act, or ENDA, after an internal Democratic head count on Wednesday found that the bill would likely be defeated if it included the trans provision, multiple sources familiar with the bill said.

The current version of the bill calls for banning employment discrimination based on sexual orientation and gender identity, terms that are defined in the measure to include gay men, lesbians, bisexuals and transgender persons.

As of late Wednesday, it appeared likely that the trans provision would be removed, setting up a potentially divisive fight within gay activist circles over whether or not to support an ENDA bill that excludes trans people.

Immediately, the LGBT community fractured: would we accept rights conveyed on some of us, but not all? Suddenly, gays and lesbians were being told that we could win, but our friends would be left behind. The most vulnerable among us weren’t to be included in this legislation, because the Speaker wanted to pass the bill. And she and her team hadn’t done their homework to bring along their caucus. Congressman Barney Frank, one of the floor managers for the bill, wrote:

The Democratic leadership, which is in complete sympathy with a fully inclusive bill, did a special official Whip count – a poll of the Members. There had been earlier informal counts that had showed significant support for a bill that included transgender, although even these informal checks never showed that we had a majority. But Members will sometimes be inclined to give people the answers they think the people who are asking the questions want until the crunch comes. In the crunch – the official Whip count taken in contemplation of the bill – it became very clear that while we would retain a significant majority of Democrats, we would lose enough so that a bill that included transgender protection would lose if not amended, and that an anti-transgender amendment would pass.

Having been told all along by the Democratic leadership that the Employment Non-Discrimation Act would include protections for gender expression, suddenly LGBT national organizations found themselves having to choose. Would they choose incremental success? Would they tell their -T membership, “We’ll pick you up later?” How could the LGB- community possibly celebrate ENDA’s passage, if it passed without protecting our -T?

Some national organizations responded swiftly.

“If the question is shoring up support for the bill as it stands, the answer is to give us more time, not to leave a part of our community behind.”
— Matt Foreman, Executive Director, National Gay and Lesbian Task Force, Inc.

Our collective position remains clear and consistent regarding the status of the Employment Nondiscrimination Act. Our organizations oppose the removal of protections for transgender people from ENDA. We would also oppose any bill that did not protect transgender people. — Stonewall Democrats

While we don’t doubt the sincerity of congressional leadership’s intent to take action and be helpful to the LGBT community, we cannot disagree more with this strategy. We will continue to work with LGBT-supportive members of Congress to urge their colleagues to immediately drop this strategy.

Jody Huckaby, Parents, Families and Friends of Lesbians and Gays
Matt Foreman, National Gay and Lesbian Task Force, Inc.
Mara Keisling, National Center for Transgender Equality
Kate Kendell, National Center for Lesbian Rights
Jon Hoadley, National Stonewall Democrats
Rebecca Fox, National Coalition for LGBT Health
Jeremy Bishop, Pride At Work, AFL-CIO
Clarence Patton, National Coalition of Anti-Violence Projects
Andrea Densham, Mautner Project

One point made by many activists is that the “We’ll Pick You Up Later” strategy doesn’t always work. Specifically, in 1989 Massachusetts passed legislation barring discrimination based on sexual orientation. Despite many attempts to include transgender in the eighteen years that have passed, it is still legal to discriminate against people for their gender expression in Barney Frank’s home state. Work goes on there to “Pick You Up Later.”

New York State’s anti-discrimination laws, passed with a promise to transgenders to “Pick You Up Later,” do not yet cover gender expression. In 1988, Michigan’s legislators deleted “sexual orientation” in order to pass a Hate Crimes bill there; still waiting on inclusion.

John Aravosis at AmericaBlog summarizes the choices facing the LGB- community:

Kill ENDA if gender identity is not included
The main argument here is that we shouldn’t leave a portion of our community behind. We’d never pass ENDA if it only included lesbians but left behind gay men, so why pass it if it doesn’t include transgendered people? The underlying assumption here is that gender identity is the same thing as, or close enough to, sexual orientation as to make gays, lesbians, and transgendered people all one family.

Pass ENDA even if gender identity is not included
Depending who you speak to, there are various arguments here. The first is that it’s better to take half a loaf than nothing. The second is that the gender identity issue is new to the game – gays and lesbians have been lobbying for decades to pass this legislation, gender identity advocates have not been lobbying, have not been a serious movement, nearly as long. Thus, their time will come, but it’s not time yet. And a third argument is that gender identity has nothing to do with sexual orientation, so what is it doing in the bill at all.

And the Human Rights Campaign? What position have they taken? They did not join the other groups, but did issue their own statement. From president Joe Solmonese:

We know that everyone has been waiting to hear from HRC about the status of ENDA. A lot has changed since Wednesday.

Besides trying to ensure that the Senate beat the filibuster on Hate Crimes—an achievement which can not get lost in this controversy—we’ve spent the last 48 hours gathering information and using all of our resources to stay on top of very fast-moving developments on ENDA. Rather than issue public statements and alerts while there was still a chance to make the situation better, HRC chose instead to engage directly with allies on Capitol Hill in an effort to save an inclusive ENDA.

During this entire campaign to win an inclusive ENDA, we have been guided by the principle of trying to achieve the end result the fastest way possible. Without question, that result has been—and continues to be—an inclusive ENDA that covers the entire GLBT community. We will continue to use that as our benchmark as we move forward in this process.

Unfortunately, we now know what we’re facing. The decision has been made, according to statements from Speaker Nancy Pelosi and Congressman Frank issued this afternoon—the House will consider a version of ENDA that does not include gender identity.

[snip]

Passing an inclusive ENDA is the right thing to do for our community, our economy and our country. However, we’re facing a stark reality.
House leadership and the bill’s sponsors very firmly believe that if the House votes on an employment non-discrimination bill without gender identity, that legislation will pass—again, it will pass even without the support of the GLBT organizations.

After trying everything at our disposal to change this outcome, we are just beginning to come to terms with what that means.

Since 2004, the Human Rights Campaign’s policy has been to only support civil rights legislation that is inclusive of gender identity. That’s why we fought tirelessly for and won Congressional approval for a fully inclusive hate crimes bill. We’ve been fighting to pass the Employment Non-Discrimination Act for more than a decade. The breaking news that the House has decided to move forward on a non-discrimination bill that is not inclusive of gender identity is devastating. The Human Rights Campaign remains dedicated to the fight for full equality for our entire community and, in light of this new reality, continues to consult with members of Congress and our lobbyists to determine how we can achieve that goal.

This has been a long battle. HRC first started the quest for ENDA in 1994. We’ve been pushing for an inclusive bill since 2004. Within two weeks, ENDA could pass the House for the first time in history, but not as an inclusive bill.

Can you tell if the HRC will support the trans-exclusive ENDA? Can you tell if the HRC will work to defeat a non-inclusive bill? Can you tell if the HRC will actively oppose any bill that excludes transgender Americans?

Neither can I.

Congressman Barney Frank, again (my bold):

For these reasons I have proposed along with the Democratic leadership the following strategy. First, we have introduced two bills. One will be ENDA as it has historically existed, banning discrimination on sexual orientation. A second will add transgender protections to that basic scheme. We will move forward with the ban on sexual orientation for which we finally – after thirty-plus years – have the votes.

After we are successful in winning that vote, I will urge the Committee on Education and Labor to proceed with our next step, which will be to continue the educational process that I believe will ultimately lead to our being able to add transgender protections. This will mean within a month or two a hearing in the Committee on Education and Labor which, unlike the hearings we previously had on this bill, will focus exclusively on transgender issues, and will give Members a chance to meet transgender people, to understand who they really are, and to deal with the fears that exist. The other options are either to bring a bill to the floor in which the transgender provision will be defeated by a significant majority, making it less likely that we will be able to succeed in this area in the future, or ask the Speaker of the House to in effect put aside her lifelong political commitment to fairness and be the one who announces that we will not pass a bill banning discrimination based on sexual orientation even though we have the votes to do it. Passing ENDA in part and then moving on to add transgender provisions when we can is clearly preferable to either of these approaches.

All in all, it sounds to me like the schedule has become more important than the legislation. Last time this happened, Democrats in the House of Representatives got played on FISA, as Jane Harman has explained. Now, though, I wonder: does Nancy Pelosi want ENDA now because celebrating its passage is a central part of her Keynote Address to the Human Rights Campaign at the end of this week?

That National Equality Award might have a little dent in it, though — from throwing the most vulnerable among us under the bus in her rush to get the bill passed in time for the banquet.

(YouTube of HRC President Joe Solmonese speaking at the Southern Comfort transgender conference on September 14, 2007: “We will not support and in fact we oppose any legislation that is not absolutely inclusive.”)

UPDATE: Why do transgenders need ENDA protection? Gwen Smith tells why.

UPDATE TWO: Tonight is the last opportunity to make a third-quarter contribution to any Blue America candidate. A dollar now is worth many times a dollar contributed one year from now, as candidates prove themselves capable of broad-based early support from many donors. If you plan to donate and can donate tonight before midnight in your time zone, please do. Since our Sunday Late Nite efforts jump-started a Blue America donation spurt one week ago, the till has increased over $16,000. Thanks for all you do!