Open letter to Barney Frank (only constituents can send via the webmail, so this is here), as a reply to his ongoing effort to reach out to Community.
Dear Barney:
First, your sustained and sizable effort to be a public advocate on behalf of community concerns, on television, on the House floor, and in person to many, should not be diminished by those who have been stung enough by recent events to wantonly pillory, out of frustration or anxiety. Few turn a phrase on behalf of the community more consistently and better than you have. Likewise, there is little cause to doubt Speaker Pelosi’s abiding commitment to shared values.
To be brief, a much needed element, let’s start with where we agree. You said:
“we have the votes to pass a bill today in the House that would ban discrimination in employment based on sexual orientation, but sadly, we don't yet have it on gender identity. And I differ with some as to what we do about that. “
- 1. Getting the decision process right
The great hope of presenting problems, rather than solutions, is that a vetting process yields a greater chance at getting a solution right (or workable), even if it doesn’t always create consensus.
The dilemma you describe is not uncommon, either in ‘ethical theory’ or in practice. What is also quite common is that those in this dilemma often wrongly conclude that they have to make a decision on their own. However, the better workout is to ask the interested parties to address the problem, to define themselves the compromises that might form a give-get. If one is truly unbiased, they feed the decision process with facts and information, and swat those spreading rumor and emphasizing prejudice. They might also signal willingness to accommodate, pledge future action, spend money, or engage in activities that might expand the perceived opportunity set, either presently or over an agreed period of time.
To simply tell people that they are not going to take part is to ensure a hardening of positions from the outset.
Hopefully, it is not yet too late to un-ring that bell. - 2. Getting the environment right
While it may be grossly unfair to single out yourself or our friend, Nancy Pelosi, we most certainly can level criticism at the Democratic party. Of course, we do not have a Presidential leader of the party in the White House to set policy, but why doesn’t the Democratic party have workplace non-discrimination in its platform? Is that too idealistic to ask? I don’t think so. Why not extension of hate crimes, as well? One might make a ‘special case’ out of ‘marriage equality’, but probably not the others. Such a leadership stance from the Party might make a “whipped” vote less controversial among colleagues, who have to get along with each other, afterall. It would do, also, to take the party away from strongly held personal opinions and make the case for supported public policies, if only for the fact that continuing to make statements about personal beliefs on such matters plays into mean-spirited attack-ads from our opponents who deceptively try to play these issues as ‘matters of conscience’.
Also in the broader picture, the environment in which Congress takes a decision in 2007 has been rapidly changing, since the last Federal legislative go at ENDA, that was very nearly successful. The public’s support for hate crimes legislation continues to breach 60%. The same is true for strengthening laws on employment non-discrimination, including some polls that include transgender that breach 60% support nationwide. Gay marriage, nationwide, is slowly edging up to the levels where it was when it passed in Canada (just below 50%). There seems to be little evidence that voters punish people for voting strengthened workplace non-discrimination. Flip-flopping on workplace non-discrimination is not nearly as critical as 'war policy' or abortion rights', the key litmus tests of our recent times, it doesn't seem.
The conversations that you are having with your colleagues come off sounding as they are occurring too much in the echo chamber that Washington becomes, sometimes, even if that may not be the case. Corporations, with the help of advocacy groups, have been rapidly adopting anti-discrimination policies, with rates of adoption among large companies of “gender identity and gender expression” reported over 40% year-to-year. At this pace, we are not talking about “20 years” to full equality, solely from a corporate acceptance point of view, which is what is the main thrust of the ENDA legislation.
What’s more, the push for corporations to amend their policies, one might argue, has been spurred by the continual, real threat of remedies that “bite”, i.e. federal or state anti-discrimination laws. (Some would say it is because Corporations have lofty goals of inclusion; but, you know …). To lessen that threat by conceding the ground on gender identity seems a mistake, especially as that threat has additional force when backed with a broad coalition of support.
Favorable trends in other parts of the English speaking world accompany these trends in Corporate America, and that should at least inform Congress that America is slipping behind the rest of the world. Last year, if I have my facts right, the U.N. moved its Human Rights instruments decisively to watch and press for 'gender identity'. I believe that, in England, gender identity was dealt with nearly three years ago, while the Republicans were … doing nothing. This suggests, not that the time is ripe to accept less, but that the time is ripe to expect more. - 3. Defining the tradeoffs
No one would doubt that it is important to get a clear picture of what the tradeoffs are, when making a decision, although it gets harder to do that as the ‘heat’ and ‘drama’ of the debate get ratcheted up, from all sides.
Some people reach for “majority rule” and “incrementalism” as short-hand descriptions of how they are weighing tradeoffs. These are useful, to an extent, but cannot describe a solution justification on their own. One thing is clear. Trying to define the movement as “gay only” is worse than not helpful, in my view. If anything, that’s a description of a mistaken past, not a justification for a current strategy.
Fear-based descriptions, like “20-years of holding things up” probably are specualtive, not accurate. The fact of the matter is that rates of adoption of gender identity policies have been greatly enhanced by the processes put in place to adopt other non-discrimination. Two to three years might make a big difference in the balance of how much resistance there is from corporate America. Is that “too much” to wait? Put another way, one other solution might be to keep trying for a period, at least as long as the general outlook for Democratic politics is favorable or improving.
If there are elements of gender identity and expression that are unworkable for some employers, then those cases need to be weighed into the general picture. It doesn’t seem as though these cases are ‘show stoppers’, if many companies are already moving toward inclusion – with high-paid legal departments, wouldn’t they have uncovered any undue liabilities to such policies or any unworkable managerial situations?
If there are procedural considerations in the House (or Senate) that are key, those are important to outline in order to anticipate the worst from our enemies, just as you suggest. I’m no parliamentarian, but I believe that even if a motion to recommit, the last gasp to kill a bill, has the votes to pass, that an objection to a voice vote would result in a roll call vote. Such might seem like an unseemly way to treat colleagues, but it might give some the satisfaction of having seen their issues get a trial by the legislative process, IF that is the kind of commitment they would like to see.
I know less about the House’s amendment process; but, if it is a wildcard, then no ENDA is certain, which keeps it from being a key decision factor, it would seem.
There are probably more issue details to consider in this section than can be contained in this brief.
In summary, there are strategic internal (support), external (opposition), and legislative (commitment/signalling) disadvantages to hiving off gender identity as a matter of tactics to get a bill passed the House, that may not become law. There is some case to be made for regrouping and redoubling efforts, against a environmental backdrop that seems favorable, perhaps even increasingly favorable, and a support that doesn’t seem to be eroding. We might catch two birds with one stone, if we all agree to pull in one direction for a while longer.
Anyway, I hope that you find something useful in this, as you try faithfully to execute your multiple roles as sage, Congressman, citizen, and all-around good guy.
