Open Letter Regarding ENDA

Michael Long has been pretty much the only direct personal contact with the HRC I’ve had.  He also happens to be on the HRC Board of Governors.  I wrote this to him to describe the frustrations and concerns I have with how the HRC is handling the issue and I tried to highlight the many pieces of the puzzle that appear as if they are being ignored.  I realized this was an effective outline of what those concerns are and decided to make it an open letter.

Dear Michael Long,

First, I want to tell you that I appreciate your work as an activist.  Over the past six years since I canceled my HRC membership, I built up a skepticism of the HRC because of their hesitancy to support the more marginal members of our community.  Talking with you in the past few years, though, you’ve helped me see the HRC as an ally—an organization that might screw up now or then (such as the mishandling of trans issues on the Corporate Equality Index), but it is trying to help my community.

Unfortunately, my slowly returning trust just made it hurt all that much worse when the HRC went rogue last fall and fought against the collective effort of hundreds of LGBT organizations.  When I heard you talking about what happened at the Basic Rights Oregon leadership summit that we both attended, I couldn’t help but feel like you were just repeating the same talking points I’ve heard a dozen times already from HRC press communications and all the while completely ignoring the concerns and frustrations of the trans community.  Hearing those talking points it feels like the HRC and the trans community are talking about two completely different things.  If it was just about differences in strategy, I could sit down and talk with you about it, but it’s also about the way in which those decisions were made and acted upon.  Before we can have that conversation, that is what needs to be addressed.

I was in Washington DC in August of 2004 when the HRC pledged not to support ENDA if it didn’t include gender identity.  I saw the video when the current executive director reiterated that pledge to the trans community in September 2007.  And I was glued to my computer for news when I heard the HRC broke that pledge that October.  This brings up a huge issue of trust.  How can I trust an organization that goes back on its word like that?  This was a motion voted on by the board.  This was a part of HRC rhetoric for years.  How can I trust anything the HRC says now?

The decision to do exactly what the HRC had pledged not to do was made in a way that appears quite secretive.  I can’t even tell when the decision was made.  Was it made before or after the HRC said that they would neither support nor oppose the bill?  Was that half-way stance all just posturing in those important few weeks to mislead the LGBT community?  I still can’t figure out who was involved in making the decision either.  Donna Rose explained to me that the board gave Solmonese the authority to do what he felt was necessary.  Does that mean that he made the decision later?  Without discussion? Without recorded minutes? Without community input?  As far as I can tell there were no trans people involved in the decision.  I asked a communications person from the HRC and they told me they weren’t sure, and I never heard any more.  The LGBT and activist communities never had a chance to weigh in on the issue.  We were never even informed that such an option was being considered—in fact, we were being told that such an option was never going to be considered.

While the community’s discontent with the HRC is about the strategy being taken, it’s not just about that.  It’s about having been lied to.  It’s about not being able to trust if the 2004 pledge was ever made in good faith.  It’s the sense that the HRC doesn’t listen to input from the trans community.  It’s about being spoken down to as if we don’t really understand the issues.  It’s about how the one trans member of the HRC board was kept out of the loop in this decision making process, and there is little reason to assume it was not deliberate.  It’s about the history of the HRC putting LGB rights as a higher priority than trans rights: LGB issues take up more points than trans issues on the Corporate Equality Index, LGB legislative issues get more resources than trans legislative issues, and LGB issues got more questions than trans issues in the presidential debate.  It’s this context of the consistent devaluing of trans rights that makes these actions on ENDA look very different.  And this is about the fact that I’ve never seen an HRC representative address any of these issues.

The one thing that I keep hearing from the HRC that this is just a difference of opinion on strategy.  However, the representatives who voted with United ENDA on this issue are being scored down on the HRC Congressional Scorecard.  It feels like I’m being told that it’s unfair to hold the HRC accountable for “making a different strategic decision” but at the same time the HRC is punishing those who made a different strategic decision from them.

Also, I have to question the HRC’s communications around ENDA.  When the new first came out the HRC diplomatically announced it would neither support nor oppose the broken ENDA.  When that turned out to be untrue, we were told that the pledge only counted for passing the bill and did not apply when the bill did not appear capable of making it passed a Bush veto.  The strategic value, so it was explained, was precisely because it wouldn’t become law it became possible to “gain momentum” without actually leaving trans and gender variant people behind.  However, there’s movement on the broken ENDA in the Senate, and Rep Frank is talking about bringing forward the broken ENDA in 2009.  At this point, it looks seriously possible that a broken ENDA might pass in 2009.  Somehow I have my doubts think the HRC is going to turn around and proclaim no-ENDA-but-full-ENDA now that passage looks possible.  While I hope that there will be follow through here, personally, I expect this to be one more assurance to the trans community that the HRC will stick to only when convenient.

It’s important to me that you hear the fear, distrust, and hurt that underlines this conversation, but as the strategic level is also quite important, I do want to address it.  We sat in the same presentation and saw one by one the outcome from each state that had moved forward with a sexual orientation only non-discrimination policy. To those of us who have been working on non-discrimination policies at the local and state level, it is pretty apparent that getting gender identity in the bill when it passes only takes a little bit extra of an effort, but getting gender identity added after an exclusive bill is passed is incredibly difficult.  We’re talking, on average, more than a decade added to the timeline.  Considering that the federal level lags behind the states we might expect this to be even longer.  This is the conventional wisdom, backed up with empirical evidence and experience.  Suddenly, the HRC decides that the opposite is true and passing sexual orientation only is a faster way to get gender identity included.  The only reason we’re given is to “build momentum” but we’ve been told that before and seen the exact opposite every time – without exception.

I’ve never heard any justification of the HRC’s strategy beyond “to build momentum,” and such simplistic reasoning that fails to engage the evidence to the contrary is no basis to make policy decisions upon.  I’ve never heard the HRC address this contrary evidence except to discount the people who bring it up for their lack of federal lobbying experience. While we are assured that the HRC is just taking a different path to obtaining an inclusive ENDA, given the HRC track record, I’ve got no reason to believe that anything more than a token gesture will be made toward a gender identity ENDA after a broken ENDA is passed.

Strategically, the vast majority of trans activists and most LGBTQ organizations see things coming down to three possible paths.

1. We come together and make a push for an inclusive ENDA which would likely pass between 2009 and 2011.  (Given what happened last fall, perhaps a year or two later).
2. The HRC pushes for a broken ENDA, which will likely pass in 2009 or 2011.  Gender identity and expression aren’t added until between 2020 and 2040.
3. The HRC pushes for a broken ENDA, the activist community and other LGBTQ organizations fight to kill it.  Infighting prevents anything from being passed until between 2015 and 2020.

Looking at these options, a broken ENDA and the decade(s) long delay of gender identity protections that it would bring is the biggest threat to trans rights on the political docket.  Nothing that the religious right has on their agenda could knock back trans rights like this.  I hope that this prediction is wrong.  But in all the time since last fall, all the HRC press releases, community forums, and the coordinated attempt to persuade the trans community dubbed “project win back,” I’ve never even heard an attempt to refute this prediction, I’ve only heard the assertion, without any supportive reasoning, that it is wrong.

We have to go with what our experience shows us to be true – what we have evidence supporting.  The effect that a broken ENDA will have on trans rights is equivalent to the effect that a constitutional amendment defining marriage between a man and a woman would have on same-sex relationship rights.  I have no choice but to respond to a broken ENDA, and the organizations supporting it, the same way I would respond to the anti-marriage amendment and its supporters.  I’ll encourage others to do the same.  Obviously, this creates a conflict between the HRC and the LGBTQ community that isn’t in anyone’s interests.  If you know of any alternatives we have to this coming conflict, if you have any evidence or reasoning that casts doubt on this interpretation of events, or if you want to simply discuss this matter beyond the standard talking points that never address these concerns, then I would love to hear from you.

–Tobi Hill-Meyer