ENDA’s Game

November 13, 2013

Before I realized that I would be spending my life married to another woman, I considered a variety of possible futures for myself. I wanted to travel, and so I attended career info sessions during my senior year of college about the Peace Corps, the Foreign Service, the CIA, and the Navy. Coming from a Navy family, my aunt encouraged me to teach in the Department of Defense Schools if I wanted to be a teacher. I could live all over the world, all or part of my salary would be tax-free, and my salary would be higher than in most state systems or private schools. I thought about working in the National Parks or for the Library of Congress or the Smithsonian. But I fell in love right after college, and all of the above options were U.S. Federal Government jobs in a world still a decade away from the repeal of DOMA. At the very least, in any of those jobs, my partner wouldn’t be eligible for my health benefits or Social Security. At the most, I would be either fired for my job if I asked or told the wrong thing, and/or posted somewhere thousands of miles away, possibly a different somewhere every 2-4 years, facing the catch-22 of the government being unwilling to sponsor my unmarried partner for a visa for the same country (not to mention for a visa for my own country, a hard-won battle in itself) but also not willing to let me marry that partner. So instead of letting the government discriminate against me, I discriminated against them, and I abandoned my notions of civil service in favor of waitressing and babysitting for people who didn’t care whether I was gay in a city where you could walk around holding hands with whomever you wanted and no one would bat an eye. We spent a nomadic few years until I decided I should really “do something” with myself, so I pursued a Master of Education degree so that people would stop asking me why I had been an English major if I wasn’t going to teach.

When I became a public school teacher in North Carolina (one of the 29 states that does not prohibit employment discrimination based on sexuality and, now, one of the 36 states that has banned same-sex marriage), conventional wisdom was that you “should not come out to your students.” It might sound easy enough, even reasonable enough, at first—why should a teacher talk to her students about personal, or, God forbid, sexual things? That would just be inappropriate. For too many parents in this Bible Belt state, identity could equate to advocacy. You shouldn’t bring your gay agenda into the classroom. End of story.

But the first action I had to do upon taking over my first class was to write my name on the board, and as a woman, this could be preceded by a Miss, Mrs., or Ms. Students are used to getting to learn their female teachers’ marital statuses on the first day of school, and when confronted by a Ms., they either A) don’t pay attention to or understand the distinction between it and “Miss,” B) assume you are unmarried but don’t want them to know, or C) ask you whether you are married. I don’t have the statistics to back me up, but I would bet money that most female teachers who identify themselves as “Ms.” will be asked multiple times each year whether they are married. If they say yes, they will then be asked about their husband or their wedding. If they say no, they will then be asked if they have a boyfriend. If they say it is none of their students’ business, the students will talk about her amongst themselves outside of class, speculating on her position on the spectrum from slut to old maid, or more innocently just wondering about her personal life. This is just something that children and teenagers do—they want to see the adults in their life as whole people and use any information they can to paint that picture.

In general, when my students asked me, I would say it was none of their business. I would have loved to be an out role model for my closeted gay students (I didn’t have any openly gay students), but I was young and overwhelmed and afraid of getting in trouble. I was afraid of any conversation that would lead into the realm of my personal life, because what conventional wisdom doesn’t realize is the difficulty of hiding all the details of one’s mundane personal life that involve a partner, and the inability, in the English language, to mask that person’s gender if you do have to talk about them. Other teachers would laugh with their students on a Friday and mention the picnic they were going to with their husband on the weekend, or let their students admire their engagement rings, or bring their spouses or unmarried opposite-sex partners to school concerts. They might tell an innocuous anecdote about their new puppy chewing up their husband’s favorite shoes. When my students asked me what I was going to do on the weekend, I’d say I wasn’t sure, or that it was none of their business, or that I would be grading their papers. If I wasn’t supposed to come out to my students, the best way was to not share anything with them at all. One time on a Saturday, I ran into one of them at the mall. I was with my partner, and the student noticed me a split second after I noticed him and let go of her hand. After that, I was afraid to hold hands with her in public anywhere—maybe a good survival skill in North Carolina, but not one we had practiced prior to that point.

All over the country, workers in every industry make choices like this every day—do I put a picture of my partner on my desk, visible to all my colleagues or customers? Do I tell them what I really did with my weekend, and who I did it with? Do I go to the Christmas party, and do I bring a date? Do I dare invite someone from work over to my home? Do I bring my partner to a work colleague’s wedding, or invite work colleagues to my wedding, or print my wedding announcement in the paper? Workers in states with employment discrimination protections for LGBT individuals wonder these things in relation to their colleagues’ reactions and their social acceptance at work. Workers in states without such protections worry about that, and also about whether they will get fired for a single misstep—because the employer would be perfectly within their rights to do so.

Thanks to the Senate and President Obama, gay men and women can now serve openly in the military, and thanks to the Supreme Court and Edith Windsor, the Federal Government now recognizes same sex marriages, so today’s students who graduate from prestigious institutions with highest honors and who also want to spend their lives with someone of the same sex can consider all of the above career paths and many more (even the Peace Corps!). But public school teachers in 29 states must still choose their words carefully, gay Chick-Fil-A workers won’t give their names to interviewers for fear of retaliation, and transgender individuals will continue to be fired when they reveal to their employers their plans to transition to their true gender identity. Ironically, some lawsuits brought by trans people have been successful by arguing sex discrimination based on the Civil Rights Act of 1964—but still, between 20% and 57% of trans people report experiencing employment discrimination and 90% report experiencing harassment at work.

The Senate has just sided with the roughly 90% of Americans who believe in equal rights in the workplace for gays and lesbians in passing ENDA, 64-32. I applaud their work, particularly keeping language in the bill that protects gender identity as well as sexual orientation, and hope it won’t languish in the House, where all good legislation seems to go to die these days. John Boehner and his compatriots are concerned with the frivolous litigation and harm to small businesses that they seem to think this bill will do. But if you read ENDA—it doesn’t take too long—alongside Title VII of the Civil Rights Act of 1964—you will see that ENDA’s language is taken directly from the Civil Rights Act, and no one seems to think repealing that will help them win popularity and defeat Obama. Even more interesting, from the “frivolous litigation” point of view, is to take a look at the statistics of the Equal Employment Opportunity Commission, charged with handling the suits brought under Title VII. Boehner might see the fact that in 2012, almost 2/3 of sex discrimination cases and 3/4 of race discrimination cases brought before the EEOC were dismissed has having no reasonable cause, and think that the basis of equal opportunity in America is frivolous lawsuits. One could also look at the TSA, which goes to enormous effort and expense to screen 1.8 million travelers each day in order to find, on average, four guns per day in carry-on bags across America—most of them loaded. This is, effectively, 0% of searches yielding a gun. But still, most of us would hope that if it we were in the small minority of travelers on the same flight as one of the loaded gun carriers, the TSA would find it and protect us.

So I look at the remainders of the cases brought to the EEOC, and see that every year for the last ten years, between 5,000 and 6,000 people have achieved merit resolutions (settlements or cases in their favor) upon bringing forward race discrimination cases to EEOC. The average for sex discrimination cases in the same period is also around 6,000 a year—between 15-20% of the charges raised. That is 120,000 cases in the last ten years in which someone would have suffered discrimination with no recourse without Title VII. Cases brought forward regarding religious discrimination in the workplace are a much smaller percentage of the total cases handled by the EEOC, but the fastest growing subset, having nearly doubled between 2001 and 2011 as Muslim Americans have experienced growing workplace hostility. The average number of merit resolutions for religious discrimination also hovers around 20% each year, suggesting that this remains an area in which minorities in a multicultural society continue to need the protection of their government.

ENDA allows for generous exemptions for religious organizations and a blanket exemption for the military, so it will not change the outcomes of stories like Carla Hale’s, a teacher who was fired from her job at a Catholic school after her mother’s obituary listed Carla’s female spouse among her surviving relatives; or Tippi McCullough, who was fired from her Catholic school position the day she married the partner she had been with for much of her fifteen years at the school. Still, allowing religious zealots to be religious zealots has been part of what has made America great since its founding, and we wouldn’t have ENDA at all without these provisions. Although those stories pull at my heartstrings, I know that the advancement of LGBT protections in America will never happen if it is put forward as an either-or with religious freedom. John McCormack, writing for The Weekly Standard about the perils of transgender teachers, is blind to his own irony when he states that “if ENDA becomes law, it’s inevitable that parents in some communities—at least the ones without the financial means to send their children to religious schools—will lose the right to choose what’s best for their young children.” In that scenario, the State would be looking after its citizens who are most in need of protection, while the Church ignores those without “financial means.” All the more reason (as if we needed any) to keep the two separate.

Photo: Equalitync.blogspot.com