A Pro-Trans Argument for a Transexclusive Employment Non-Discrimination Act

Abstract

Commentators supportive of transgender rights have called for legislation prohibiting employment discrimination on the basis of gender identity. These scholars would include gender identity protections in the Employment Non-Discrimination Act (“ENDA”), a bill which has historically sought to prohibit only sexual orientation-based employment discrimination. This strategy has resulted in employment protections for lesbian, gay, and bisexual persons being postponed indefinitely as significant numbers of lawmakers in both parties ostensibly are not comfortable with the notion of a gender identity inclusive ENDA even if they otherwise support a ban on sexual orientation discrimination.

This article contends that the LGBT community should actively oppose Congress’s efforts to enact a gender identity inclusive ENDA and instead lobby in favor of a sexual orientation-only version of the bill. Within the last few years, transgender persons have had considerable success stating cognizable sex discrimination claims such that the enactment of an inclusive ENDA threatens to undermine their progress by foreclosing transgender persons from obtaining relief under the more robust provisions of Title VII. LGB persons, meanwhile, have been largely unsuccessful in raising sex-based discrimination claims under Title VII such that stand-alone legislation in the form of an exclusive ENDA represents lesbian, gay, and bisexual persons best hope for securing meaningful employment protections.

Keywords: employment discrimination, employment non-discrimination act, ENDA, LGBT, sexual orientation, gender identity