(This piece, originally published on In Our Words, reflects some main arguments made in my dissertation).
It is currently legal in 29 US states to fire someone because they are lesbian, gay, or bisexual; in 34 states, it is legal to fire someone based on gender identity. [i] Because of this, there has been a push by LGBT rights groups to get ENDA, the Employment Non-Discrimination Act, passed under federal law. ENDA would prohibit employment discrimination on the basis of sexual orientation and gender identity, although the latter is only a recent inclusion. Although prominent LGBT leaders like former Senator Barney Frank and the HRC have supported proposing an ENDA bill that would remove gender identity and expression from the list in order to make it easier to pass, the current ENDA now includes gender identity. Neither version of ENDA, however, has ever been signed, and the current bill is sitting idle in the 111th congress.
Freedom at Work, an organization “committed to banning workplace harassment and career discrimination against lesbians, gay men, bisexuals, and transgender Americans through public education, policy analysis, and legal work,” is currently leading the fight to get President Obama to sign an inclusive ENDA Executive Order. [ii] Their efforts have re-energized the struggle for LGBT workplace rights, and have made it their goal to succeed in getting an inclusive ENDA passed in the new 2013 Congress.
I too support the signing of a fully-inclusive ENDA, but I fear that framing ENDA as the solution to ending workplace discrimination is both deceptive and dangerous. At the same time that Freedom at Work, the mainstream gay press, and a slew of dedicated gay and allied advocates promote ENDA as the most pressing issues for LGBT workers, insidious anti-union legislation like “Right to Work” [iii] is being passed without a stir from most of the LGBT community. And attacks on unions, in my opinion, are far worse for LGBT workers than a continued stall of ENDA.
Relying on federal law to protect marginalized people is historically ineffective without the complement of organized struggle. For example, not only did the Civil Rights movement enable the end of Jim Crow laws, but it also empowered black Americans to fight against the discrimination that would inevitably continue, even after it was legally prohibited. Similarly, while ENDA may provide someone legal ground to file a charge against an employer, the ability to find the strength to file a charge would be enormously more difficult without the help of an organized body of workers and a contract.
As a PhD candidate whose dissertation is focused on the importance of a strong LGBT/organized labor relationship, I could give countless examples of workers who say the union has been more help to them than anti-discrimination laws. In an interview I did with a transgender boycott coordinator from UNITE HERE in Chicago, he explained that although Illinois has a state-wide policy prohibiting employment discrimination of LGBT-identified people, he has more than one friend that has been fired for transitioning. “Very few laws that get passed really change a whole lot if you don’t fight to enforce them [at work],” he said, and then pointed to the union as the best platform from which to have that fight.
Several other queer scholars and activists have been publically skeptical about the value of putting energy towards passing ENDA. In Out at Work: Building a Gay/Labor Alliance (2001), Patrick McCreery offers the example of a gay middle school teacher who was fired after someone revealed that he used to be an actor in gay pornography. The school was able to fire him, not because he was gay, but because he had “deviant” sexual practices, something ENDA would never protect. He continues, “ENDA clearly seeks not to subvert heteronormative culture but rather to assimilate gay workers into it. As written, ENDA attempts to categorize and organize sexuality, not to acknowledge its fluidity or instability.” Riki Anne Wilchins (2001), an activist and executive director of GenderPAC [iv], makes similar arguments, suggesting that ENDA would be unlikely to give any protection to the gender non-conforming, even if it was explicitly written in the bill.
Unions, unlike federal law, provide the opportunity for self-determination and power. In a union, an LGBT worker is able to set the standards for a safe environment in a contract, and instead of having to take a boss to court as an individual, they can go through the union to fight against contract violation. If they get push back, the union is there to rally on their behalf.
Of course, not all unions are sensitive or supportive of LGBT-related issues, but in my years of research on this topic, I’ve read overwhelming numbers of stories about queer unionized workers—from waitresses, to auto workers, to nurses—that have found support from straight co-workers when they faced discrimination on the job. A transgender grocery store worker who was made uncomfortable using the bathroom at work during his transition explained that he was able to rally the support of his co-workers to get gender discrimination prohibited in their contract through a combination of “union pride” and “putting a human face on the issue.” [v] In addition, organizations like Pride at Work [vi], a contingent of the AFL-CIO, have had great success in their mission to make unions safer spaces for queer workers, illustrated by things like major union’s public support of gay-marriage, and the existence of at least two lesbian presidents of international unions (Mary Kay Henry, president of SEIU; and Randi Weingarten, president of the AFT).
Focusing only on ENDA as the key to protecting LGBT workers correspondingly increases the lack of awareness about the detrimental Right to Work legislation, as well as numerous anti-collective bargaining bills that are becoming more and more common throughout the country. Again, I’m not arguing that ENDA isn’t necessary, important, and long overdue, but I am arguing that it is likely not the best answer for LGBT workers who need protection from discrimination on the job…Unions are. And to dismiss these pervasive attacks on organized labor as a non-queer issue is to risk the livelihoods of working and middle class queers across the nation.
[iii] A “right-to-work” law is a statute that prohibits union security agreements, or agreements between labor unions and employers that govern the extent to which an established union can require employees’ membership, payment of union dues, or fees as a condition of employment, either before or after hiring. Right-to-work laws exist in twenty-three U.S. states, mostly in the southern and western United States. Such laws are allowed under the 1947 federal Taft–Hartley Act. (Wikipedia.org)
[iv] GenderPAC is a national nonprofit organization devoted to pursuing gender, affectional, and racial equality.
[v] From The Trouble Maker’s Handbook.