County Fair

The False Choice: ENDA v. Marriage Equality

February 10, 2011 5:22 pm ET by Kerry Eleveld

A potentially divisive debate is emerging among some LGBT activists that sets up a false choice between pushing for employment nondiscrimination protections or marriage equality at the federal level. I roundly reject the notion that this is an either-or proposition. As a community, we can and should work on both issues over the next two years. But it's fair to say that while I personally believe these two issues are equally as important, they are not equally situated, and therefore the strategies we must employ to advance them are distinctly different.

Let's start with a brief overview of the Employment Nondiscrimination Act (ENDA) -- which would prohibit employers from firing people on the basis of their sexual orientation or gender identity -- from my perspective as a reporter who covered the issue closely over the last two years.

First, regardless of why we failed to pass ENDA in the 111th Congress, the fact is that we didn't even get a committee vote in either chamber on the bill in one of the most heavily weighted Democratic Congresses in recent memory. Many people underestimate just how devastating that looks to legislative operatives and lawmakers outside our community. They don't care about the panoply of explanations for why the vote didn't happen, they only know that it didn't and that means that either we couldn't muster the votes or the Democratic leadership did not want to see this bill debated on the floor.

Second, although I have asked a good number of questions about ENDA and its prospects for a vote, I still can't tell you why it never happened. Meanwhile, I can recall with decent clarity nearly every twist and turn of the battle to pass "don't ask, don't tell" (DADT) repeal. This is not due to a bias on my part, but is rather indicative of the fact that no one seemed willing to talk with any specificity about what was or wasn't happening with ENDA.

And here is where our community's analysis must begin -- we need to have an honest conversation about our inability to discuss ENDA and transgender issues. Last year, when I asked people in our advocacy groups, staffers on the Hill, and lawmakers about the prospects for passing ENDA, I most commonly got no information or misinformation.  As the bill continued to languish and the House committee vote was continually delayed, my questions were increasingly met with indignation and wholesale assurances that all was going according to plan. But ultimately, all I found was a brick wall when it came to identifying the hurdles.

Meanwhile, many in our activist community leveled hostility at any entity that relayed bad news about the legislation's progress. When the Washington Blade reported a story in January 2010 entitled "Filibuster Threat Makes ENDA Unlikely In 2010" in which several anonymous sources sounded the alarm bells about ENDA's chances, it immediately drew shoot-the-messenger recriminations from people who criticized the story for using unnamed sources. This illustrates just what a lighting-rod issue this has become for LGBT activists -- instead of holding the powerbrokers in charge of the legislation accountable, activists were vilifying reporters who were trying to disseminate intelligence about the bill's state of play. And this is precisely why journalists were often forced to use anonymous sources on the topic -- no one seemed willing to speak on the record with any real candor about the topic.

This has grave implications for our ability to develop a strategy around ENDA and successfully move the bill. If members of the LGBT community are incapable of having a forthright conversation about the obstacles to passing this bill, what does that mean for lawmakers and their ability to discuss the issue?

This is a problem, folks. Not just for our elected officials, not just for our groups, but for our community as a whole. We all have a stake in ENDA -- it would provide critical protections for the full breadth of the queer community -- but the battle over transgender inclusion in 2007 has left us with so many scars that people are afraid to speak up for fear of the backlash.

Of course, some discussions are beginning to happen now, but I don't believe we have really illuminated the problem yet. I have heard people suggest that we had enough votes to pass the legislation in the House but never got that vote because the clock ran out. Some have also hypothesized that DADT repeal and health care sucked up too much time in the schedule to leave room for ENDA.

From my perspective, this cannot possibly be the whole story. If we truly had the votes in the House and yet failed to move the bill through committee to the floor, then that was a serious strategic misstep even if it would have stalled in the Senate. Bills live and die by momentum. They get a chief sponsor and then more sponsors and then a committee vote and then a floor vote. And maybe they don't pass both chambers one Congress, but if they make it through one, they are better poised to pass through both next time around.

So if we did have the votes and our advocates (lawmakers and groups included) didn't press the issue, that was a critical error. And the idea that there just wasn't room in the calendar because of DADT and health care seems like a red herring as well. Health care was completed in the House in March of 2010. Attaching "don't ask, don't tell" repeal to the Defense authorization bill took place two months later in May, but that was it -- the House had the votes and was ready to go, they were mostly waiting on the Senate Armed Services Committee to line up the votes. So something doesn't add up.

Rather than pointing fingers here, I am simply pointing out that we are miles away from having the full story about ENDA's demise and I don't see how we can possibly expect to develop a strategy around an issue that we can't seem to discuss in full candor.

I said at the outset of this piece that ENDA and marriage equality were not equally situated. Though both issues are about creating safety nets for people who need to protect themselves and their families, they are not as equally ingrained in the public consciousness. Similar to the issue of DADT, same-sex marriage has been percolating as part of a national debate since the early '90s when a Hawaii court ruled that gay couples might have the right to marry. Marriage is a concept everyone understands and the American public has watched the marriage equality battle rip through nearly every state in the country -- some fights being more high-profile than others.

If you asked the vast majority of Americans right now whether same-sex couples can get married, most of them would have a frame of reference for the question, regardless of whether they answered the question correctly. But if you asked them whether LGBT people can be legally fired, my guess is that few of them would have ever even considered the question. My own personal experience of talking to reasonably well-informed straight allies is that many have no idea people can still be fired on the basis of their sexual orientation in 29 states or that transgender individuals can be fired in 38 states.

Although the marriage issue has been painted by some as an elitist concern pushed by wealthy donors, a New York Times article last month revealed new Census Bureau data showing that cities like San Antonio, TX and Jacksonville, FL have the highest concentration of gay couples raising children in the country. Demographers also found that black or Latino gay couples were twice as likely as whites to be raising children. While we cannot definitively say all those couples want to get married, it is undeniably true that they and their families could benefit significantly from the protections provided by marriage.

And they could also benefit from the protections provided by ENDA.

This is exactly why we must work on both issues simultaneously. But ENDA requires a serious two-year lobbying strategy at the very least. My sense from talking to Hill staffers and, in some cases, members of Congress is that many lawmakers still don't know how to broach transgender issues and, quite frankly, have more questions than answers on the matter. The House is undoubtedly further along than the Senate, but work is badly needed in both chambers.

Meanwhile, high profile court cases regarding both the Defense of Marriage Act and the Constitutional right of same-sex couples to marry will continue to provide opportunities for advocates to advance the conversation around equal marriage rights. It would be an absolute mistake for our community not to capitalize on stories that will already be making mainstream headlines in order to sway public opinion and push our political allies. We must strive to frame this issue to our advantage because antigay forces are already redoubling their efforts against us.

ENDA and marriage equality are simply not an either-or proposition. Fortunately, the resources required to advance each of these issues at the federal level share similarities but don't infringe on each other. And choosing between them is not an option.

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