Guest Commentary on ENDA from Corinna Cohn
GOProud does not have an official position on the Employment Non-Discrimination Act (ENDA), but we thought you all would find this thoughtful commentary interesting. This from Corinna Cohn -
Neither Discrimination nor ENDA Are Necessary
A Washington Times editorial published April 23, 2010 argues that discrimination against transgender men and women is necessary in order to protect children against the dangers of being taught by someone who was born one sex and lives as or has become the other sex. The editorial called transgender people ‘weirdos,’ and that is probably true in certain circles. But in others they are called doctors, lawyers, engineers, entrepreneurs, entertainers, artists, and yes, even teachers.
Proponents of the Employment Non-discrimination Act (ENDA) say the bill is necessary to protect vulnerable people from being judged on personal traits. However, the biggest gains in workplace protections have come from businesses, not government. The 2010 Corporate Equality Index (CEI), published by the Human Rights Campaign (HRC), reported that 72 percent of businesses surveyed have gender identity protections, and the number grows each year. Businesses have done this for two reasons, neither involving the government.
The first, and most important reason is that businesses compete with each other to attract the brightest, most productive workers they can, and businesses understand that workers will choose to take jobs with employers who make principled choices to protect workers against discrimination based on their personal traits. The cost of implementing such a policy is now, the benefit is high, and so adding gender identity protections for most businesses is a no-brainer. The second reason is because society in general expects it. When groups like HRC let businesses know that they are going to be measured and scored based on their corporate policies, the businesses evaluate themselves for changes based on community expectations and on the practices of their competitors.
This is the most logical way to advance workplace protections, because discrimination is a phenomenon of human attitudes, and attitudes are changed through experience and personal growth, not through the imposition of federal law. Discrimination based on personal characteristics is an affront to human dignity, but creating federal penalties for discrimination will only spray perfume on one of the symptoms of discrimination without addressing the underlying cause.
Twelve states so far have passed laws protecting an individual from workplace discrimination based on gender identity. The legislatures of the other 38 states always have the option to follow suit. Supporters of ENDA say that it’s not fair to make transgender individuals wait for protection, but they don’t acknowledge that since transgender people are such a small share of the population, that it would be difficult or impossible to prove in court that a business engaged in discrimination. It is more effective to convince businesses that they have a competitive incentive not to discriminate than it is to bludgeon them with regulatory clubs.
On the other hand, opponents of EDNA, as epitomized by the Traditional Values Coalition (TVC), could not care less about the efficacy of federal policy to reduce discrimination. They support discrimination for reasons that are difficult to fathom without invoking hackneyed stereotypes. They raise the specter that a “she-he” (to pick just one of their descriptions intended to dehumanize transgender persons) could teach a music class at your child’s school with no warning whatsoever. TVC never quite articulates the consequences of this horror, but probably the worst one is that a child could be exposed to a person who is different, and of course, different is bad.
In fact, groups like TVC, whose opinions and attitudes shock the conscience of the vast majority of Americans, do more to hasten the passage of bills like ENDA because those who would otherwise oppose the expansion of federal meddling in the affairs of private citizens feel pressure to do anything they can to separate themselves from the hateful ideas that emanate from the fringe.
There is little that ENDA can do to end discrimination, but the prospects of ENDA turning into another instrument for the abuse of government authority loom large. Businesses have already taken the lead on the issue, and twelve state legislatures have passed legislation on the issue. Individuals who believe that that change happens from the ground up have no reason to support ENDA except to avoid being counted under the banner carried by shrill opponents of human dignity.
Corinna Cohn - student at George Mason University Law School, vice-president of GMU Gay and Lesbian Law Association, secretary GMU Law Students for the Second Amendment