The Gender Identity Divide: In 2007 the Employment Non-Discrimination Act Caused a Storm When Gender Identity Was Axed from the Bill's Language before It Went Down in Flames. Now It's Back on the Hill and Poised for Passage-But Will It Protect Those Who Need It the Most?

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TONI BEASLEY WANTED this job--badly. She was once a certified nursing assistant, and ostensibly she had the qualifications for the post she was seeking: a peer health educator for an outreach program in downtown Los Angeles, where she would be counseling on HIV/AIDS and other sexually transmitted diseases. Known by the transgender men and women in her Skid Row support group simply as Ms. Beasley, she'd lived in the neighborhood since 1998, in shelters or motels, sleeping in tents, a van, or county jail. She had struggled with drug abuse in the past, but Beasley was sober now, grateful for what she had, and sympathetic to transgender women in the area who survive on the streets.

Getting dressed for the interview, however, Beasley had a choice to make--show up in her usual dress and a short-haired wig, or wear a red button-down shirt with blue jeans, going sans wig, eye shadow, and lip gloss. "I went in as a boy," she says. "I didn't want to jeopardize it. I didn't want them to look at me and think, I don't believe you're the best person for this position. You've got to get through that door first." Beasley got the position, and then, on her first day on the job, arrived dressed as a woman. Her supervisor was shocked at first, but by then Beasley was already through the door and had the job, and she did it well.

Not all transgender Americans find themselves in such predicaments. But even in California, 12 other states, and the District of Columbia, which have laws banning workplace discrimination based on both gender identity and sexual orientation, recent studies confirm what many experts long suspected to be true: Transgender individuals--and trans people of color in particular--face disproportionate rates of unemployment and poverty, both in comparison to the general population and in comparison to gay men and lesbians.

Preliminary findings of a national survey of 6,450 transgender people, released in September by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, found that 97% of respondents experienced on-the-job harassment, ranging from colleagues repeatedly using the incorrect pronoun as a means of mocking to outright physical assaults. And the abuse takes place on all rungs of the ladder-from the minimum-wage doughnut shop employee whose boss insists her appearance makes her unsuitable to work at the front counter to the legislative aide fired for transitioning. "Gender nonconformity has always been the major reason why [LGBT] people are being harassed," says Lisa Mottet, the Task Force's transgender civil rights project director.

Lawsuits filed by trans men and women under existing federal laws prohibiting sex discrimination have faced mixed outcomes in court. As a result, Mottet and other legal experts assert that any antidiscrimination law based on sexual orientation must also include gender identity provisions. Anything less is simply nonnegotiable.

Political history highlights a reality in sharp contrast to Mottet's hopes, however. Most states that originally passed workplace antidiscrimination statutes covering sexual orientation only have taken years to add gender identity protections to their laws--if there's enough political will to add them at all. Wisconsin, which in 1982 passed the nation's first law protecting gay employees in the public and private sectors from discrimination, has foundered in expanding the law to include transgender workers. Attempts to broaden New York's 2002 antidiscrimination law to include gender identity protections in employment, housing, and public accommodations have stalled in a state senate still grappling over a marriage equality bill that was shelved earlier this year (lawmakers expect a vote by year's end). Some observers have already deemed the comparatively low-profile state-level transgender bill to be "dead in the water."

On the federal level, the T of LGBT has long been an inessential element in the Employment Non-Discrimination Act, which would prohibit antigay discrimination nationwide, bolstering the current patchwork of laws in liberal-leaning states. …