In April 2007, Rep. Barney Frank of Massachusetts, Rep. Tammy Baldwin of Wisconsin, and others introduced the Employment Non-Discrimination Act (ENDA) that was transgender inclusive, in that it would provide protections for not just gays and lesbians but for people whose gender identity and expression didn't match their sex assigned at birth.
Lesbian, gay, bisexual, and transgender (LGBT) advocacy groups drummed up support for ENDA over the summer; the list of co-sponsors grew to over 170. But when the bill was introduced for a vote in September, legislators ditched protections for gender identity and expression, citing concerns that the inclusive bill lacked the votes. Over 30,000 LGBT people and their allies contacted their representatives to oppose a non-inclusive ENDA, but in the end, the House passed the bill by a vote of 235 to 184; seven legislators voted against the bill because it did not include gender-identity protections.
The sole LGBT organization that did not oppose the non-inclusive ENDA when the vote was taken, the Human Rights Campaign (HRC), claims to have been speaking for its constituency, too. The organization conducted a poll on Oct. 26 that found that 70 percent of respondents supported a gay-only bill if a trans-inclusive bill couldn't pass. "For 30 years ENDA has never once passed any house of Congress in any form," says HRC spokesperson Brad Luna, "and only in the last few years does it become fully inclusive. For the first time last year, although it was not the bill that we wanted, a piece of that goal to provide employment protections for the entire community was passed through Congress. We certainly see that as a significant step forward."
The 2007 fight over ENDA was certainly not the first moment at which the LGBT grass roots had the opportunity to announce, loudly and unmistakably, that protection for transgender people (and for gender identity and expression) was central to its concerns as a movement. Conversations over the place of transgender people in the lesbian and gay community have been going on for as long as the movement has been around. And the debate over whether to include protection against discrimination based on gender identity and expression--often framed as whether to include transgender people in nondiscrimination bills or not--has been going on since the earliest gay-rights bills were drafted in the 1970s. Yet the notion that homosexuality is solely defined by sexual choices is fairly recent; early sexologists' accounts of homosexuality explained the phenomenon as one of "gender inversion," and gender nonconformity flourished in early gay communities. Anti-gay legislation of the 1800s actually policed gender expression; for instance, laws required patrons of bars to wear a minimum of three articles of gender-appropriate clothing. But as the gay-rights movement developed into a self-conscious political project, its gender nonconforming members were pressed to the margins.
"The question that calls for explanation is not whether transgender people can jus tify their claims to gay rights," Shannon Minter writes in his groundbreaking essay, Do Transsexuals Dream of Gay Rights? "but rather how did a movement launched by bull daggers, drag queens and transsexuals in 1969 end up viewing transgender people as outsiders less than 30 years later?"
MANY OF THE FIRST proponents of city and state laws banning discrimination based on sexual orientation didn't intend only to protect gay and lesbian people. Matt Coles, then still a law student and now the director of the ACLU's LGBT Project, was part of the legal team that drafted San Francisco's nondiscrimination ordinance in 1977. They left the term "sexual orientation" undefined in the measure, intending to provide protection for everyone from transgender people to "butch women and sissy guys." But when opponents of the ordinance charged that the language would also shield such "sexual orientations" as pedophilia, the drafting team realized it needed a stricter definition. …