Kia Franklin

Protecting (Some) Americans Against Employment Discrimination

I hate to be a party pooper. And really, I don't mean to be one. It's just that I'm conflicted over this new anti-discrimination bill.

Yesterday the House passed what some are calling a momentous bill, which was to a degree bi-partisan in its support, that expands anti-discrimination law to protect people against employment discrimination based on actual or perceived sexual orientation. The New York Times has a good article on the bill and the back story of who's happy about it, who isn't, and why. You'll see that in separating the supporters from the opponents of the bill, the lines aren't clearly demarcated between those who are against discrimination and those who are in favor of or apathetic about it.

On face value, the bill sounds great. But then you read about the various concessions and compromises that were made in order to pass it, including a blanket exemption for religious groups (translation: so basically protecting religious groups' ability to discriminate without it being illegal) and the exclusion of transsexual and transgender people from the law's protection (translation: too bad so sad for you if you're discriminated against based upon your gender identity).

And to me that sounds like an anti-discrimination law that discriminates against some people in order to protect others against discrimination. Was that as confusing for you as it was for me? Okay, just checking.

And now for my two cents:

ONE CENT: First, speaking from the perspective of someone with a deep religious background and a profound respect for religion and spirituality, let me borrow upon the axiom that hit wristbands and key-chains by storm in the 90's, and ask: WWJD? Who Would Jesus Discriminate (…um, Against)? Religion should be a reason to fight against and not an excuse for sanctioning bigotry and hatred. Our public laws should not protect groups that want to discriminate--it should protect people against discrimination. As pointed out in the NYT article: “Church-run hospitals, for instance, should not be permitted to discriminate against gay employees.” A blanket exemption against anti-discrimination law is illogical and immoral.

TWO CENTS: Second, excluding transgender and transsexual people from the law's protection is, to me, akin to saying that very light-skinned blacks and Latinos don't get protection against race-based discrimination. Or, it's like placing an annual cap on the number of women who can be protected against sex-based discrimination. In other words, it's divisive and unnecessarily narrow for its purported purpose. And it’s insulting that in this day and age we should have to “compromise” to get an anti-discrimination law passed.

To this concern, House Speaker Nancy Pelosi offers a little history lesson: "History teaches us that progress on civil rights is never easy... It is often marked by small and difficult steps."

What else does history teach us? In the fight for statutory racial equality Charles Hamilton Houston, Thurgood Marshall, and others fought incrementally through the courts, first to get the “equal” prong of "separate but equal" enforced, then to show that equality can't be enforced as long as the “separate” prong remains intact, then to turn "separate isn't equal" into a legal mandate for integration. Next came the legislative fight to expand desegregation beyond the educational context. These very noble and heroic efforts took decades and the right political timing. But you fast forward to 2007, almost 2008, and we are in a mess of confusion over what to do with vast inequities in racially segregated schools because we have yet to modernize our legal approach to anti-discrimination efforts. Constrained in our debate by concerns about making steps that are too far-reaching, we end up doing not nearly enough instead. We are afraid of protecting too many people from discrimination... that’s where we are now.

But we don't have to be stuck in the past in our approach to anti-discrimination--if the baby steps approach doesn't work any more, we can fix it. We can evolve with the changing times. The incremental approach may no longer be necessary, effective, or helpful in advancing our country's norms so that we understand discrimination to be the poison, the societal stumbling block that it is.

And that's why I have to be the party pooper on this legislation that may mean well, but is of the “day late dollar short” variety.

At any rate, the bill didn't pass with a large enough majority to avoid a veto by Bush. So maybe all this ranting’s all for naught.

Kia Franklin: Author Bio | Other Posts
Posted at 2:40 PM, Nov 08, 2007 in Civil Rights | Employment Discrimination | In the News | Legislation
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Meanwhile, Republican Representative Doc Hastings had this to say about the bill: “I do not think it is the place of the federal government to legislate how each and every place of business operates.” This is code for “I’m against federal legislation prohibiting businesses from discriminating.”

Are you a corporate supremacist, Mr. Hastings? We already have plenty of laws that do that, don’t we? I suppose you also think it’s not the federal government’s place to keep businesses from employing and exploiting children?

Posted by: Kia | November 8, 2007 3:01 PM

I share your belief that it's time to end incremental civil rights protections. In fact, I think we need to revamp our approach entirely, and move away from the "suspect category" concept and toward an "equal access for all" concept.

My personal belief is that an ENDA that removes gender expression/identity does not fully protect gays and lesbians from employment discrimination, since most such discrimination is targeted more toward those who violate cultural gender imperatives than whom they actually like to sleep with. Rather than repeat the entire argument, if you don't mind I'll just reference a more in-depth discussion I penned here:

Your point about what religion ought to be doing vs. what it tends to actually do is insightful. If only religion were not used as justification for hatred and discrimination, and instead was used in the way that Jesus lived his life, what a much more pleasant world this would be!

Great post. Insightful, elegant and to the point. Bravo!

Posted by: Dana Runs | November 8, 2007 6:43 PM

Homosexuals have lower unemployment rates. Their salaries are a full standard deviation above the mean, according to the Census. This remedy is one to no harm.

It is a lawyer employment law. Now, when an employer sees a homosexual applying for a job, he will no longer see an above average employee. He will see a lawsuit on wheels, and move on.

Posted by: Supremacy Claus | November 8, 2007 10:02 PM

Supremacy Claus;

Transgender have higher unemployment rates -- much higher.

Transgenders have a mean annual income of less than $15,000 -- how many standard deviations is that below the mean?

Transgenders have a suicide rate of 18%, untreated schizo-affective-disorder sufferers' suicide rate is 10%

I'm a male-to-female transgender. If I am sexually oriented to women, am I a lesbian? If to men, am I gay? Is there a choice where I can not be 'homosexual'?

Why was I and my trans brothers and sisters kicked to the curb?

I await your veiled bigotry...

Posted by: Hazumu | November 9, 2007 1:22 AM

Transgender people in the general population do not have mental illness above the rate of age matched peers. Their suicide rate is average. Please, let me have the study from which you got your assertions. The infrequent ones with serious mental illness generally do not qualify for sex change treatment, based on poor outcome experience.

If employers read this, transgender people are not disturbed, as claimed above. Nor are they dangerous to themselves nor to anyone else, any more frequently than anyone else.

Let's assume, some study with an ascertainment or ideological bias supports these claims. Litigation stress may worsen mental symptoms, just to generate lawyer enrichment.

Posted by: Supremacy Claus | November 9, 2007 6:04 AM

The above statistics on transgender people came from this report:

From the report:


These are self-dealing, rent seeking, land pirates. That ends credibility at the cover page.

If one chooses to read on:

"It is not a random sampling and should not be understood to be scientific in nature."

Posted by: Supremacy Claus | November 11, 2007 10:31 AM