One of the things that is so perpelexing about the people who are in favor of the "gay-only" ENDA like Aravosis and Crain is their simultaneous lack of ackowledgement of the salience of gender and complicated parsing of gender-stereotype jurisprudence. They make the argument that transgender people don't need to be included in pending federal legislation because "a man who wants to cut off his penis and install a vagina in its place" has nothing in common with a gay man. This completely ignores the umbrella nature of gender discrimination on LGBT individuals which has not been acknowledged by the Courts. It is to fill THIS lack that federal legislation is needed and the original ENDA (HR 2015) addressed.
Clearly what animates sexual orientation discrimination is the fact that (mostly, but not only, straight) men and women are offended by the presence of men (and women) who do not conform to their gender's "mandate" to 1) sleep with people of the opposite sex and 2) maintain distinct gender roles. (This is known as the Koppelman-Law theory of sexual orientation discrimination as sex discrimination.) Gay men and lesbians violate these two main precepts in various levels of obviousness (c.f. the very attractive gay man who is the crush of all the straight girls, the "lipstick lesbian" and the prissy, effeminate gay or the butch lesbian).
Transgender individuals violate precept (2) with their various presence, and this is so frightening to legislators and the general public that they can't even wrap their minds around the notion that most transgender people do not violate precept (1).
The jurisprudence in this area is NOT very well settled and anyone who claims that gender-noncorming individuals are protected under either Titlle VII or the Supreme Court's now hoary decision in Price Waterhouse hasn't reviewed the latest conflicting decisions.
And what's the big deal about bathrooms anyway? Why can't there be some percentage of bathrooms that are gender non-specific? Doesn't everyone have gender-non-specific bathrooms at home??
Neverending ENDA Debate (Bring In the Lawyers)
The debate about what the new ENDA will do continues. I made this comment on The Volokh Conspiracy a legal blog which had a guest post by conservative gay law professor Dale Carpenter this weekend:
