Be sure to read John Culhane’s superb response to Jonathan Rauch’s anti-ENDA Time piece. There’s a lot that Culhane wrote that I’m kicking myself for not thinking of in my post, especially this observation:
It’s telling, too, that Rauch uses the old-school term gay rights to describe the movement, rather than the generally accepted LGBT (or LGBTQ). This choice isn’t just rhetorical. Doing so allows him to efface the transgendered community completely. (In fact, the piece contains not one instance of the terms transgendered or gender identity.) But these are often the people in greatest need of workplace protection, in order for them to be able to live openly and with respect. He can’t identify with gays and lesbians who might actually be fired, and he can’t even name transgendered people who might be.
The guy isn’t anti-ENDA. He just has a different emphasis to you and doesn’t support it as vigorously.
Alex, you didn’t quote Rauch’s very next two sentences:
Rauch is explicitly opposing introducing ENDA into law. That is being anti-ENDA.
I won’t argue, but it surprised me he had wrote that when I clicked through. There’s anti “I would vote against it”, he’s more “I wouldn’t oppose anyone who wants it, but I don’t think it’s worth the effort”.
The effect of ENDA on transfolk will be difficult to predict.
Take the ADA, for example. It was–obviously–set up to benefit disabled people, not to hurt them. But as applied the ADA has actually lowered employment for some classes disabled people, because it (a) makes it more expensive for employers to accommodate them, and (b) MUCH more expensive for employers to fire them. Because disabled people are therefore quite a bit more expensive in the aggregate, it creates a large disincentive to hire them.
The ADA is good for disabled people who ALREADY HAVE jobs. And it’s surprisingly good for disabled people who don’t have a “visible” disability which is evident prior to employment, although IMO it stretches too far w/r/t some types of coverage. But ironically, the class of people that the ADA was originally designed to help, i.e. “people who are treated worse because they are in a wheelchair or have another visible disability” is arguably worse off in the long run since they are subjected to increased costs of entry.
I can see a similar issue with ENDA and transfolk, and perhaps a worse one. Like all antidiscrimination law, ENDA significantly raises the comparative costs, especially w/r/t firing. (If you fire Joe 40 year old white dude, well… Joe’s an at will employee and he will have no real counterclaims. Generally, you can fire Joe for any reason. OTOH, if you fire a 65 year old female genderqueer disabled POC, then you cannot practically fire them without engaging in a very complex and expensive pre-firing process, and/or without risking a very complex and expensive employment discrimination suit. Assuming you account for those costs, that makes them cost more–often MUCH more–as an employee.)
Now, normally employers do that sort of discrimination at the time of hiring, mostly because it is much, much, harder to win a “failure to hire” case. It is (relatively) much easier to win a discrimination or wrongful termination case. But even the employers who discriminate in hiring are always aware of the risk of bad statistics: there are enough people who are in the protected classes that it would be very difficult to explain why you “just so happen” to NEVER hire a single POC, woman, disabled person, etc.
But transfolk are (comparatively speaking) a very small protected class. They’re, what, ~ 1% of the population? (Some say less, some say more.) As such it is much easier for employers to discriminate against transfolk without being caught: “You don’t have a single POC or female employee out of these 75 employees” would be evidence of discriminiation; “you don’t have a single trans employee out of these 75 employees” would not. With that in mind, it’s not entirely clear whether ENDA’s “disincentive effect” will–as applied to transfolk–outweigh the benefits in the long run.
Are most transfolk visibly trans? I honestly dunno, but I assumed the majority were closeted or could pass very well.
I’d say the main issue is “sexual orientation” and “gender expression” draw particular lines. The phrase sexual orientation is an 80s invention, which plays to the gay rights narrative that people have an unfixed orientation at birth which people have some sort or epiphany about. It’s debatable whether that’s true. You can think of cases regarding things like rape and gay s&m which are questionably actionable under sexual orientation, and interpreted literally transvestisism isn’t gender expression. The alternative is for some sort of broader term which incorporates sexual behavior, but I think the chance for that has passed.
Oregon, thankfully, has protections for transfolk in the law. I say thankfully because we had a situation at my workplace where the owner – after several months – realized that *Male name here* was not cis-male and fired him. He would’ve gotten away with it, too, if he’d kept his story straight (ha! straight!). Fortunately, he couldn’t. Once I made it clear to him that he couldn’t do what he did (by dropping a print out of the relevant law on his desk on my way out the door after a full day of trying to convince him he was breaking the law), we were able to rehire *Male name here* and *Male name here* continued to work for us for another two years.
With ENDA conspicuously in existence, this never would have happened at all.
“With ENDA conspicuously in existence, this never would have happened at all.”
True…instead sie would have a manager who seethed with bigotry against hir but knew that it was forbidden to express that bigotry in a straightforward way, and so instead conspired and plotted to screw hir over without it seeming like it was trans-related. “Billie Joe is trans? I had no idea. I just know that the dumb sonofabitch can’t get his TPS reports right no matter how many times I give him the training.”
Not saying that open ‘hey, fuck you’ bigotry is better – just echoing G&W a bit that the intention of these laws (help-help-help) doesn’t always pan out, and in practice the impact is a bit more mixed (help-harm-help). Laws don’t change attitudes (though they push in that direction); laws alone can’t make people safe and respected.
Sure. And that bigotry went on for two years. However *Male name here* had a job for two years that he otherwise wouldn’t have had. This gave *Male name here* the luxury of time to find another, better job.
From the text of ENDA, and specifically the “definitions” section:
Isn’t that backwards?
The gay rights movement has been pushing sexual orientation (gay/straight) as a fixed trait, for obvious reasons: it’s much more defensible to discriminate against a choice, and it’s much less defensible to discriminate against an immutable trait. If “being gay” were like “being a Patriots fan” then you can make a perfectly moral argument for the right to discriminate at will, but if it were like “having brown skin” then you could not.
I generally think ENDA is a good idea, but I don’t really trust the left wing to reach an appropriate stopping point. What with the various protected classes that various groups are seriously arguing for (fat, appearance, language ability being a few;) and the various rules that agencies have tried to enact (e.g., forbidding companies from doing criminal background checks of all employees, on the theory that those checks are inherently racist;) and the expansion of existing laws like the ADA to encompass both more disabilities and more required accommodations… we’re starting to change to a society where the basic employer/employee relationship is starting to go sour. And where the job is one of an entitlement rather than an exchange.
That level of government intervention sure as hell hasn’t worked out in Europe: the laws are so protective that almost nobody gets hired any more.
Cite?
Cite?
I assume from g&w’s comment, Eytan, that unemployment among those under 30 (perhaps under 40 or 50, but definitely under 30) is somewhere around 90%. Personally, I think of “almost nobody gets hired” as closer to 100% than that but I’m willing to grant some leeway.
ADA on employment of the disabled:
It killed everyone: http://economics.mit.edu/files/17
Not EVERYONE, but some people: http://www.ncbi.nlm.nih.gov/books/NBK11439/
Those people were zombies and furthermore many people were healed of leprosy: http://dsq-sds.org/article/view/405/557
So that was helpful.
Unemployment in Europe:
http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Unemployment_statistics
About 4 points worse than here, which is substantial but not crushingly indicative.
G&W you are absolutely right I got that backwards. Sorry.
The big difference with Europe is At Will employment, not anti-discrimination law. Given the EU is deliberately causing mass unemployment as policy through austerity, I’m not sure you can just compare the rates.
Robert – unemployment in the EU as a whole is certainly high right now; of course, that averages in countries with failed economies like Greece and Spain. But the question is not whether there is an unemployment problem in (some parts of) Europe. The question is whether there is any evidence that this is in any way correlated to anti-discrimination laws, as opposed, say, to austerity policies or economies that collapsed because of the credit crisis.
Alex asks:
“Are most transfolk visibly trans?”
When we’re talking about employment and housing discrimination, the question of “visibly” trans sometimes isn’t “can they see you’re trans by looking at you?” Employers check out job histories and academic credentials. A name change can make a person “visibly trans,” and the alternative is to just abandon whatever credentials and work experience you had before transitioning.
Housing discrimination is even more problematic. Landlords and mortgage brokers routinely do credit checks that force disclosure of all the different names a person has used in the last several years.
Adrian:
True. Also, someone who passes very effectively during a single interaction with a store clerk may not pass so well in the apartment complex the tenth time you see them taking out the garbage before work, or once you’ve had a chance to examine them from all angles at work, and especially after you walk away from the clerk and the next person up says, “You know, that’s actually a dude.”
People who pass flawlessly in all circumstances almost don’t exist anymore, in this age of Internet history. That’s a thing of the past. If you’re trans, sooner or later your gender assignment at birth will tap you on the shoulder, smirking.
Grace
So, Jake posts about a man who is trans, and uses male pronouns to refer to him, which is presumably his preference, since Jake knows him.
Robert, referring to the same specific person, you used one of the many gender-neutral pronoun sets.
I’m curious to know what your thought process was.
Grace
Another way of looking at this might be to say that the relationship has ALWAYS been sour for the most vulnerable (e.g. marginalized) people, and now some of that burden is shifting back to the people in power.
Also, AFAIK no one is trying to “forbid background checks for all employees.” “Ban the Box” legislation is aimed at shifting inquiries about criminal history to later in the interview and hiring process, to stop employers from round-filing everyone who has to “check the box” from the very first (which is illegal, but people do it anyway). And even that makes an exception for public safety jobs and others which by nature might have a zero-tolerance policy for those with criminal histories.
gin-and-whiskey: You’re an intelligent person, and an attorney, and so I am pretty gobsmacked that you would make the arguments you did above. Are you practicing for a writing sample to submit for a lateral move to a BigLaw labor/employment group?
Re the ADA: As you are perfectly aware, the ADA also protects against discrimination in hiring. So an employer that decides ‘fuck it, I’m just going to hire able-bodied people’ is STILL in violation of the ADA. Of course, if we ditch the ADA, then the guy in a wheelchair STILL is going to face discrimination in hiring – just as you claim he would under the ADA – only there’s absolutely no remedy for it, because it’s perfectly legal. And isn’t that one of the many complaints made by Privilege Denying Dudes, anyway – that antidiscrimination laws force them to hire those people in the first place?
Perhaps you’re not old enough to recall when the ADA was implemented, and when critics predicted that its major flaws were going to be that it was a brand-new law, without a significant body of case law and which couldn’t be seamlessly analogized to existing civil rights laws, because of the requirements for reasonable accommodations. They turned out, to a degree, to be right. But not because the hiring of the disabled took a nose-dive.
I’m also a little baffled at the idea that it is the worst of things that a law might protect disabled people who already have jobs from unfairly being fired, demoted, etc. Er….yes? This is bad? If what you’re trying to argue is that the net balance of “disabled people who illegally don’t get jobs” vs. “disabled people who get to keep their jobs” is badly skewed towards the former, then make that argument instead of waving your hands like this.
Re ENDA: I am sure that you know antidiscrimination law does not hinge on whether a characteristic is or is not voluntary. If it did, then it would be totally illegal to fire left-handed people, but perfectly legal to refuse to hire Catholics, or to fire people who get married; or, for that matter, it would be legal to refuse to promote women, because they could just choose to get gender-reassignment surgery and therefore their gender is “chosen”, QED. In fact the opposite is true; unless you are in a solely religious occupation working for a religious group, your employer cannot, for example insist that you either convert to Islam or clean out your desk, or require you to get married because that makes you a more stable employee.
I am also pretty confident that you are aware antidiscrimination laws also protect classes. Race, not “being African-American”, for example. If an employer fires you because he thinks cis people are boring assholes, then ENDA would give you a cause of action.
Finally, if you get that job at Littler Mendelson or MoFo, do keep in mind that in the US, Joe Whitedude is perfectly within his rights to sue your client for age discrimination, since in your hypothetical he’s 40. Also, he could claim your client treats white dudes unfairly what with all its diversity ya-ya and so he has a claim for racial and gender discrimination. I suppose if your client’s HR was doing its job then Joe’s lawsuit isn’t going to be much more than a nuisance, but, well, you know.
One final shout-out to a particularly egregious piece of malarkey though:
we’re starting to change to a society where the basic employer/employee relationship is starting to go sour. And where the job is one of an entitlement rather than an exchange.
When was the halcyon era of employer-employee harmony? Back when the police openly busted strikers’ heads? Did you mean somewhat later, when the social ideal was of a company that kept its employees on for a lifetime instead of treating them as at-will assets to be ‘downsized’? Perhaps you meant the era when it was perfectly legal to pay women less than men because ‘he has a family’, or to refuse to promote black workers because, duh, they’re black?
If you’re going to thunder about how those selfish fucking employees ought to just shut up and be goddamn grateful they have jobs at all, well, hey, just say so. The sad head-shaking is, as we say, unpersuasive.
Elusis:
I’ve done background investigations for police officers and dispatchers. It would be foolish to reject everyone who has any amount of criminal history. It certainly matters what the nature of the offense is, and when it happened. If you’re applying to be a police officer at the age of twenty-five and you had a pot pinch at age 19 and you have a clean record ever since and no sign that you continued to use, most law enforcement agencies won’t care. My department is very choosy about hires, and I know that we have extended an employment offer to someone who had a single DWI, about fifteen years prior. We wanted to know details, and we wanted to be sure that weren’t seeing the tip of a substance abuse iceberg, but ultimately we decided it was a one-time screwup from an otherwise good candidate.
Obviously there are offenses which disqualify you without further inquiry. But if someone has to check “yes” to the question “Have you ever been arrested?”, clearly you have to inquire to find out whether the applicant is talking about a youthful disorderly conduct, or recent sales of cocaine.
Grace
I’m curious to know what your thought process was.
I don’t know the person in question and don’t know their preference of a certainty, and Jake’s phrasing was witty/sarcastic so I was not 100% sure of what he was signaling as his coworker’s preference, and I am not always 100% certain of what people indicate so I went for the safe harbor of gender-neutral language.
Was that a social miscue? I don’t THINK so – if the coworker was present in the discussion I could just ask, but they aren’t, and Jake’s an unreliable narrator (not out of malice) – but if it was, then I’m sorry and intended no disrespect.
What makes you think it’s not out of malice?
Malice requires intellect.
Nice!
Robert at 23–I’m sure you intended no disrespect, but I think your use of “sie” was disrespectful nonetheless. Do you seriously use gender-neutral pronouns every time you can’t ask a person what they prefer? Jake referred to his co-worker as *Male name here* and said, “the owner – after several months – realized that *Male name here* was not cis-male and fired him.” That seems incredibly clear to me. If someone wrote, “the owner – after several months – realized that *Male name here* was not Christian and fired him” would you have opted for gender-neutral pronouns?
As a trans man, if somebody introduced me with a male name and pronouns and mentioned I was trans, and the other person opted for neutral pronouns as a result of the last tidbit, I would be really, really, really annoyed.
Also, Jake Squid, thanks for being an awesome ally.
Do you seriously use gender-neutral pronouns every time you can’t ask a person what they prefer?
No. I use them when I can’t ask a person what they prefer, and where I am not 100% sure of which gender they are presenting as, and where I think it would hurt people’s feelings if I got it wrong. I didn’t get into it with Grace, who was asking what my thought process was, but Jake’s narrative was somewhat ambiguous at first and only dropped into clarity one time, when he used “him” once, at the tail end of a paragraph chock-full of “hims” and “hes” that weren’t referencing Jake’s coworker, who Jake referred to primarily as “*male name here*”.
And of course this is not hugely problematic, but calling someone *male name here* could plausibly refer to them being a female-bodied person who was presenting as male (including their name), or could refer to them being a male-bodied person who was presenting as female (but still using, because it’s HR, and most HR departments are not as well-versed as Jake, a male name). Either one would squick out the bigoted boss, and either one would have made sense in the story, and – to be totally frank – I didn’t catch Jake’s terminal ‘him’ and reach the correct conclusion. I thought when I originally wrote that Jake had left the person’s bodied gender ambiguous deliberately.
Obviously, in retrospect, I was wrong and Jake did make it clear; reliable narration at last! I’m sorry for showing disrespect; the irony of the situation is that I was intending to avoid that very thing, but of course intention is not a trump card. I rarely use non-gendered pronouns and one reason is that I am not fully facile in their use, so double-down on the “my bad”. Thanks for pointing it out, and for doing it in a way that didn’t put me down.
Robert–Your “my bad” is appreciated. I suspected that was your confusion. No worries; there’s always a next time. Thanks for your willingness to listen.
One more thing, Robert, if said willingness to listen persists. I suggest using the terms male assigned/female assigned (also male/female assigned at birth, abbreviated MAAB and FAAB respectively) instead of male bodied/female bodied. What we’re really talking about is the social expectation someone was raised within based on their appearance as an infant, not the current state of their body. It’s weird, inaccurate and cissexist to refer to, e.g., a post-transition woman as “male bodied” when (regardless of surgical status) she is hormonally female, appears female to people she meets, etc. Most trans people were assigned sex 1 at birth, identify & live their lives as sex 2, and are “androgynous bodied” by conventional standards.
Robert,
Thanks for the explanation. I suspected the case might be something like that, which is why I asked for clarification. I could not figure out why someone would think a gender-neutral pronoun set was appropriate there, but before I posted my question I went back and realized that Jake had only definitely gendered his co-worker once, and that it would have been easy to miss.
So, swing and a miss… but a narrow miss, and a swing in the right direction.
Grace
Rimonim, point taken, will do. Grace, thanks for hearing what I meant over the din of what I said.