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ENDA and “Passing Privilege”
Much of the debate over whether to move forward with
compromise workplace protection based on sexual orientation and not gender
identity has seemed to pit the GLBs versus the Ts.
Either transgender Americans are protected by including
“gender identity” as a protected category in the Employment
Non-Discrimination Act, or some 150 GLBT groups have vowed to oppose
employment protection based solely on “sexual orientation.”
In reality, that Sophie’s Choice hasn’t really set the
GLBs against the Ts. It has instead split the GLBs wide open. And there is
an undercurrent to the debate that hasn’t been dealt with out in the
open; a long-simmering tension between “straight-acting” gay men and
lesbians and those GLBs who are gender non-conforming.
Just the term “straight-acting” raises the hackles of
many gays, and for understandable reason. Call it what you will, but there
has always been an uneasy coexistence among masculine and effeminate gay
men; and to a lesser extent, between “lipstick lesbians” and their
“butch” counterparts.
Spend five minutes in a gay bar, online chatroom, or even
perusing personal ads, and the cleavage couldn’t be clearer.
Transgender folks have a better name for it; they call it
“passing privilege.” Some gay men and lesbians can “pass” as
heterosexual, choosing when and with whom to come out.
Many of these “straight-acting” gays, and I count myself in
their number although I completely reject the term, are often
enthusiastically embraced by heterosexuals because we seem “normal”
except for being gay.
For many femme gay guys and more masculine lesbians, there is
less choice about whether people know because “passing” isn’t really
an option, or requires living in another type of closet that they refuse
to accept. Acceptance can be a much tougher road because they must deal
not only with homosexuality as an issue, but the discomfort many have with
gender non-conformity, or with non-conformity in general.
That’s why it’s called passing “privilege.” And to
hear those who oppose a gay-only ENDA compromise, a central purpose of the
legislation even before “gender identity” was added has always been to
protect gender non-conformity in the workplace, rather than simply prevent
sexual orientation from being a basis for firings or demotions.
They point out that to your average bigot, a male coworker
can be a “faggot” based entirely on mannerism, without any intel about
his actual sexual orientation. The same applies to butch women, of course.
You can hear that refrain in the more passionate commentary
from those who object to removing transgender protection from ENDA. We are
all gender non-conformists, they say, because men are supposed to be
attracted to women, and vice versa. If you defy those roles, then you also
defy the expectation of your gender.
Lambda Legal has even converted that emotional connection
into a legal one, arguing that without “gender identity” in ENDA,
employers will have a huge loophole to claim a worker was fired or demoted
because he was effeminate or she was masculine—not because he or she is
gay.
The good news about the “gay-only” ENDA compromise, if
you’re willing to hear it, is that there is no such loophole. Perhaps
those of us with “passing privilege” can see that more clearly because
we aren’t bound up in some emotional way with trans folk as fellow
gender transgressors. (This is a sentiment, by the way, shared by most
transsexuals and cross-dressers, many of whom adamantly identify as
heterosexual and are actually offended by the suggestion that they are
part of some “GLBT community.”)
Like many other GLBs, I reject completely the idea that being
gay makes me a gender non-conformist. For us, the hardest part about
accepting our sexual orientation can be shedding the misconception that
being gay makes us less of a man or a woman.
Many transsexuals and cross-dressers, on the other hand, have
been diagnosed with Gender Identity Disorder, a mental illness that
involves a complete disconnect between their biological and intellectual
genders. Other trans folk reject the notion of gender and express
themselves in a way that defies the male-female dichotomy.
That is certainly their right, but having integrated my
sexual orientation into my personality, I don’t feel one bit of
inconsistency between being gay and being a man. I know many lesbians who
feel the same way about their gender. For us, the entire notion of sexual
orientation revolves around maintaining the male-female distinction. How
else can I have same-sex attraction, unless I am a man attracted to other
men?
I can already hear the accusations to the contrary, but none
of this means those of us with “passing privilege” don’t oppose
transphobia. I strongly favor employment protection for the Ts, just not
if it means waiting even more years to protect GLB workers.
But maybe because I don’t self-identify as a gender
transgressor, I can see the very clear legal and practical difference
between sexual orientation and gender identity.
I can see clearly, for example, that gender non-conforming
workers are already protected by Title VII, which the Supreme Court ruled
way back in 1989 prohibits employers from relying on gender stereotypes.
The real “loophole” since then has been for GLB workers, not the Ts,
since courts have uniformly refused to apply that Supreme Court precedent
when the gender non-conforming employee is gay.
Barney’s compromise “gay-only” ENDA, imperfect as it
is, would close that loophole once and for all, protecting workers based
on their “actual or perceived” sexual orientation. The effeminate male
demeaned in the factory as a “faggot” could sue, even if his bigoted
boss has no idea whether he’s actually gay.
A “gay-only” ENDA should not divide the GLBs, at least
not on the question of whether it would protect all of us, “passing
privilege” or otherwise. That’s why Lambda Legal lobbied for a
gay-only ENDA for more than a decade, and that’s why there’s not a
single reported case of a GLB worker losing a discrimination suit under a
state or local “gay-only” discrimination law because he or she was
gender non-conforming.
Gay Americans have fought for basic federal civil rights
protections for more than 30 years, and have lobbied for a “gay-only”
ENDA for more than a decade. The unfortunate political reality is that
only a “gay-only” ENDA has a chance of passing right now, and it is
this “trans or bust” strategy adopted by the gender non-conforming
GLBs who run our civil rights groups that is responsible for reopening
old, old wounds.
Rallying around a Barney’s ENDA compromise offers an
opportunity to reunite us and pass historic legislation.
Chris Crain is former editor of the Washington Blade, Southern
Voice, and gay publications in three other cities. He can be reached via
his blog at www.citizencrain.com.
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