70% Say Pass ENDA

According to a recent poll conducted by the HRC, that’s how many LGBT Americans think we should pass the non-trans-inclusive ENDA. 

Pertinent snips from the Advocate article:

  • According to a new poll, 70% of LGBT Americans prefer passing an Employment Non-Discrimination Act that does not cover transgender people over not passing the bill at all. The poll, commissioned by the Human Rights Campaign and conducted on October 26, surveyed 500 members of the LGBT community across the country.
  • The poll also asked people if they agreed that “national gay, lesbian, bisexual, and transgender organizations should oppose this proposal because it excludes transgender people.” Only about 20% of the people agreed with that statement.
  • However, about 70% of people polled still believe that protections for transgender people should be included in the ENDA proposal, as they did in a poll conducted in 2004 — but they also favor passing a noninclusive ENDA as a path to gaining those protections for transgender workers. This shows a shift from 2004, when 70% of LGB respondents indicated trans inclusion was important even if it caused delay. 

Two things:

One, HRC could’ve saved all of that polling money by just taking my word for it in the first damned place, and two, the poll certainly indicates that wanting to pass the current version of ENDA does not make one a “traitor,” “backstabber,” “exclusivist,” “coward,” or “transphobic.” 

UPDATE:  This topic is getting really heated on the Blend!  That’s some hot coffee!

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20 thoughts on “70% Say Pass ENDA

  1. This just in: Most average gay Americans believe precisely what we’ve been saying they do all along.

    People like us, the contrarians who speak out against the gay establishment, take an awful lot of shit for our views. The JoeMyGods and Pam Spauldings of the world truly do think they’re mainstream gay and speak on behalf of us all.

    When I see something like this, I want to hug myself in the warm, fuzzy glow of utter vindication.

    The “mainstream” gay activist community wouldn’t know what the average gay citizen wants if it hit them while tied to the front of a mac truck.

  2. Yeah, the hostile comments coming from some of Pam’s diarists and commenters are replete with bile and one on JMG was from a transperson who talked about “privileged white gay males.”

    Yeah, that attitude’s real “inclusive.”

  3. I’m still not sure where I stand on this and I’m not even sure there is a right answer. While I can see the validity in passing a Minus T ENDA (at least in as much as I can see the validity in passing any set of laws that in effect institutionalizes ghettoizing gays and lesbians), I have to admit I’m seeing that advantage from the perspective of not being the person left out and it would be dishonest to say that doesn’t color my perspective, at least somewhat.

    Of course, there’s also the notion that, if ENDA passes, then the next day, almost as if by magic, gays and lesbians will suddenly be accepted and welcomed at workplaces where they currently aren’t.

  4. Of course, there’s also the notion that, if ENDA passes, then the next day, almost as if by magic, gays and lesbians will suddenly be accepted and welcomed at workplaces where they currently aren’t.

    I don’t see it that way. I see it as being about enabling gays and lesbians to have a legal means of recourse for individual, provable instances that occur at those workplaces you mention.

  5. There’s a libertarian commenter on Chris Crain’s site who does a good job echoing my views on ENDA. There is something . . . off about legally codifying sexual orientation with a variety of bureaucratic wrangling and federal enforcement that I think actually harms tolerance and equality. Not to mention I think the focus on ENDA has taken away from much more important matters like DADT and immigration rights – matters that are much more clear cut, IMO.

    However, I know when I’m in the minority view. I don’t think most gays are with me on my ENDA attitudes. I recognize that and don’t think anyone who doesn’t agree with me is a positively awful gay person full of bigotries and biases that must be silenced and stamped out.

    Unlike every gay organization out there and most of the biggest gay bloggers.

    Of all the times for my blog to go through a meltdown. I’ve been dying to post about this stuff. The discrediting of the gay establishment as the voice of gay Americans. It’s like my wet dream storyline. It’s what I’ve been blogging about for years.

    Ah well. The schadenfreude of watching Matt Foreman rant and rail as he melts in front of his pack of flying gay monkeys is delicious, and who can’t take pleasure in watching the HRC go into deep seizure.

    They are what we said they were.

  6. “I see it as being about enabling gays and lesbians to have a legal means of recourse for individual, provable instances that occur at those workplaces you mention.”

    Or as a means of filing innumerable lawsuits harassing businesses for “sexual orientation discrimination” when their performance was the issue.

    Honestly, given that state ENDAs protect from firing lesbians, i.e. Bonnie Bleskachek, who openly sexually harass coworkers, discriminate against non-gays, and take retaliatory action against people who refuse to sleep with them, I fail to see why we would want anything of the sort at the national level.

  7. Robbie: There is something . . . off about legally codifying sexual orientation with a variety of bureaucratic wrangling and federal enforcement that I think actually harms tolerance and equality.

    Well, Robbie, the problem is that it shouldn’t be necessary to say “You can’t fire people for non-performance related reasons,” but it is. And part of me thinks that an ENDA without “gender expression” vagueries is the better way to go, but I don’t think that’s the same as “trans-inclusion.”

    Some behavior is simply inappropriate to certain business settings. But behavior is not the same as orientation. And that’s were the problem lies.

    Levels upon levels. *sigh*

    NDT, the examples you mention, I think, speak not so much to the effects of an ENDA policy itself, but really to the abuse thereof. And many Just Laws have the potential for abuse–that doesn’t negate the unfortunate need for those laws. And one would think that any prosecutor worth his merit could construct a case, using state ENDAs themselves, to prosecute those who abuse the policy by basing their inappropriate behavior on a difference in sexual orientation with those she’s allegedly harassing. (I say alleged because I’m not all that familiar with the case and don’t have that much time right now. )

  8. “Well, Robbie, the problem is that it shouldn’t be necessary to say “You can’t fire people for non-performance related reasons,” but it is.”

    The basic employment law in this country is the concept of at-will, which basically says two things:

    1) You may go to work for whomever you choose and leave whenever you like, for whatever reason, without penalty or restriction

    2) Employers may hire and fire whomever they choose whenever they like, for whatever reason, without penalty or restriction

    The logic here is that you hurt no one but yourself when you make employment decisions based on business-irrelevant reasons. But it is perfectly reasonable for you to fire a high-performing salesperson because s/he irritates you and keep a lower-performing one because you like him/her better.

    If a business owner genuinely does not like gay people, I fail to see the value in requiring him or her to employ them — and I see innumerable pitfalls. And right now, the law is as equal in treatment as you can get; neither straight, gay, normal-gendered, or whatnot people are shielded in any way from being fired or hired based on their sexual orientation or gender identity.

    “And one would think that any prosecutor worth his merit could construct a case, using state ENDAs themselves, to prosecute those who abuse the policy by basing their inappropriate behavior on a difference in sexual orientation with those she’s allegedly harassing.”

    Problem was, Bleskachek’s propositioning for sex and retaliation against those who refused her was directed towards other females and lesbians.

    That’s not discrimination on the basis of sexual orientation OR gender.

  9. ENDA isn’t some sort of radical idea either. It’s actually a fairly widespread phenomenon. As with any evolving legal instrument, there have been some abuses and oddities. However, those will be phased out as judges lay down concise precedents and ground rules for this kind of lawsuit.

    Thus far, national ENDAs have been enacted in all 27 European Union states, Israel, South Africa, Taiwan (Republic of China), Japan, New Zealand, Canada, Ecuador, Venezuela, and Uraguay.

    In Australia, Argentina, and Brazil…there are some regional ENDAs like in the U.S.

    Regarding commerce within these nations/regions, I think the concerns of libertarians are somewhat overstated. The affect on big business has been minimal. Since large companies are accustomed to working within bureaucracy any way, one more rule isn’t going to change anything. It might have more of an affect on small businesses, but most do not find it difficult to comply with such regulations.

    As in cases of gender and racial discrimination, you’d have to prove quite a lot of workplace harassment to generate the amount of damning evidence needed to prevail. I don’t think one or two random comments would convince a jury of anything. You can file as many lawsuits as you want. But it’s not worth the paper it’s printed on, if you have no proof.

  10. I see it as being about enabling gays and lesbians to have a legal means of recourse for individual, provable instances that occur at those workplaces you mention.

    Which, ideally, is what it would be and all it would be. I can’t help but be concerned over the litigious nature of people in general (gay or straight, everyone wants to dance with a boy named sue) and over the notion that this is again an attempt to legislate morality.

    Given the nature of the workplace, if an employer decides they want someone gone, for whatever reason, then that person is gone. It’s a bit harder to come about in some states and, sometimes, the reasons become public and there is fallout, but the end result is largely the same: the employer gets their way and the fired employee is put in the precarious position of having to litigate for a job in a place that doesn’t want them there, even more so now.

    The sense I get from a section of the gay community is that they want this law to pass so they can start immediately going after employers, that sections are chaffing at the bit to start bringing lawsuits and that strikes me as wrong. I can’t really say why, but there’s something unwholesome in it.

    This is largely academic, as Bush will veto ENDA (at which point I’ll be all for it because I’m not above the occasional reactionary response) and it doesn’t have override support. Part of me is actually glad of that veto, though, because it’s obvious this is not a slam dunk issue and needs more examination, both for the motivations of its supporters, its actual effect on gays and lesbians in society and the notion that equality (or whatever this is) can come piecemeal.

  11. “Thus far, national ENDAs have been enacted in all 27 European Union states, Israel, South Africa, Taiwan (Republic of China), Japan, New Zealand, Canada, Ecuador, Venezuela, and Uraguay. ”

    And the interesting thing about these countries is that they tend to have two features in their legal system:

    1) Contingency fees, or lawyers taking a percentage of the settlement for litigating the case, are outlawed as champerty or severely restricted; you must pay your lawyer in most cases on a fee-for-service basis

    2) The losing party in a lawsuit pays all legal expenses.

    The United States has neither.

  12. Problem was, Bleskachek’s propositioning for sex and retaliation against those who refused her was directed towards other females.

    If they’re not lesbians then it may be based on orientation.

  13. Lawsuits based entirely on contingency fees are available in Canada, UK, Ireland, New Zealand, Australia, the Dominican Republic, Greece, France, Brazil, Japan, and the United States.

    You also neglect to mention that in nations where paying ‘normal’ fees are mandatory, contingency fees are not necessarily disallowed either. In South Africa, for example, there are limits placed on the contingency fees (it cannot amount to more than 100% of the ‘normal’ fees). However, depending on how many hours those lawyers rack up, that 100% of ‘normal’ fees might constitute a fairly handsome winner’s bonus.

    Likewise, the “loser pays” issue is much more complicated than you make it out to be. In Canada, the winner can petition the court to force the losing party to pay all legal expenses. However, the losing party can always claim that their case 1- was legitimately constituted and absolutely not frivilous, 2- served as a ‘test case’ for some wider constitutional or precedent setting principle, or 3- that the ultimate result of the lawsuit remains unclear (as is often the case in split decisions… when judges hedge their rulings by throwing a bone to the presumed loser).

    In the U.S., sometimes the loser doesn’t always get off the hook. In family law matters, breach of contract lawsuits, or cases where the law itself requires the loser to pay the other side’s legal fees … for instance. This is the case in certain civil rights laws and environmental protection laws. And, lo-and-behold, I actually took the time to read ENDA. Look what I found:

    “SEC. 12. ATTORNEYS’ FEES.

    Notwithstanding any other provision of this Act, in an action or administrative proceeding for a violation of this Act, an entity described in section 10(a) (other than paragraph (4) of such section), in the discretion of the entity, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs. The Commission and the United States shall be liable for the costs to the same extent as a private person.”

    And yeah, trial courts are included in Section 10(a).

  14. “Lawsuits based entirely on contingency fees are available in Canada, UK, Ireland, New Zealand, Australia, the Dominican Republic, Greece, France, Brazil, Japan, and the United States.”

    Available, technically, but certainly not at the unlimited level, unlimited amount, and near-ubiquity that they are in the United States. And that isn’t even a fraction of the countries you mentioned that have ENDAs.

    Meanwhile, to the language in ENDA, there are two key phrases: “in the discretion of the entity” and “MAY allow”. Those are permissive, not mandatory — which, if you are correct in claiming that most other civil rights laws REQUIRE the loser to pay the other side’s legal fees, makes ENDA different, and quite obviously a “special privilege”.

    The way to fix that is obvious; amend the language to require loser pays. But the fact that it wasn’t done when you claim it exists in numerous other civil rights laws begs the question: why?

  15. I believe in judicial discretion. If the lawsuit was truly frivolous, why wouldn’t you trust that a magistrate or district court judge will order the loser to reimburse the winner?

    If our federal judges are not corrupt, I don’t see why it needs to be mandatory. Surely, federal judges have the capability and authority (under the law as written) to formulate proper remedies to silly lawsuits. If I were them, I certainly would not appreciate anyone wasting the court’s time and resources on an unjustifiable claim.

    I guess what I’m saying is you’re protesting against a “problem” in our judiciary that exists only antedotically. A more cynical person might even suggest that overzealous lawmakers want to realign the separation of powers to favor the legislative branch.

    For every groan inducing “McDonalds’ coffee was too hot” lawsuit, there are many other legitimate ones that slip under the radar. They don’t serve to illustrate a particular political agenda, so they end up as a footnote on page B-16 of the L.A. Times instead of CNN Headline News.

  16. John, recall this argument you made above (capitalization mine):

    “In the U.S., sometimes the loser doesn’t always get off the hook. In family law matters, breach of contract lawsuits, or cases where the law itself requires the loser to pay the other side’s legal fees … for instance. This is the case in certain CIVIL RIGHTS LAWS and environmental protection laws.”

    Thus, if it was so important and necessary to write loser-pays into other civil rights laws, presumably to prevent abuse, why not into ENDA?

    And as far as the judges, this simply makes their decision easier; loser pays the winner’s legal fees. Most other countries do it, and you don’t see their systems collapsing; indeed, you see much LESS in the way of litigation, which has the net effect of saving the court’s time and resources for cases that really matter.

    Furthermore, it encourages companies to vigorously defend themselves against charges of discrimination, knowing that, if they have a legitimate case, their doing so will not cause them an unnecessary expense.

  17. It wasn’t important and necessary, in my opinion. It was what they did though.

    And if that’s what ENDA needs to maintain consistency with previous legislation, so be it. The inclusion of a mandatory reimbursement clause wouldn’t sour the deal for me. The point is to create a tool that the legal system can use to address genuine cases of unfair discrimination. Should some feel that additional safeguards are needed to ensure that such cases are indeed genuine, I think that’s negotiable.

    I feel the same way about the inclusion of transgenders. Ideally, they should be included in anti-discrimination legislation sooner rather than later. But if that’s not possible at this time, I’m willing to play with the hand I’ve been dealt.

  18. Pingback: About That 70% « I Must Be Dreaming

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