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The Employment Non-Discrimination Act and the Age of identity Politics

By Jonathan Simon

The struggle around the Employment Non-Discrimination Act in Congress is fascinating. The Act, sponsored by Rep. Barney Frank and Speaker Nancy Pelosi (among others), the bill would create workplace protection against discrimination for the first time ever for gay men and lesbian women. Nobody expects the bill to become law under President Bush. But there is a clear majority in Congress to pass the bill so long as it does not contain language designed to include protection for transsexual and transgender people.

The politics is discussed in a "congressional memo" by David Herszenhorn in today's NYT. Herszenhorn emphasizes the way in which the Democratic Party's liberal base is causing them problems (funny it didn't seem to hurt the Republican Party to appease their base in 1998 by impeaching President Clinton). Be that as it may, for socio-legal scholars the struggle is laden with significance. Here are a few vectors that come to mind:

This is one of those moments, think 1964 or 1965 for the African American civil rights movement, when a social movement on behalf of a much reviled minority finally gathers enough force to seek relief from the most thoroughly majoritarian branches of our government.

Congress, of course, is not an alternative to courts. If a second President Clinton (or Obama, or Edwards) signs the Employment Non-Discrimination Act of 2009, it will create new possibilities for individuals to name, blame, and claim their way into court.

The fact that some conservatives who would vote for the bill to protect gay men and lesbian women but drop off if you add in transsexual and transgender people is a nice piece of comparative data in the arbitrariness of cultural value (consider that the religiously zealous Iranian regime welcomes transsexuals while hanging gays).

Equally fascinating is the loyalty of gay and lesbian activists and their major organizations are to transsexual and transgender people. They clearly share a history of discrimination but they also differ in their positive identities. Gay men and lesbian women, to the extent that this becomes a dominant feature of their political identity, are gathered on the basis of their sexual orientation toward members of the same sex. Transsexual and transgender people do not "violate" the cultural norms about the gender of the people they should "love" and "desire", but rather norms about the public presentation of people by gender. We can describe members of all four subgroups as deviating from "gender" norms, but this seems to capture only a narrow band of their group identity.

If the victories of the civil rights movement in 64 and 65 signaled the age of identity politics, the activists pressuring Barney Frank may be harbingers of a new age of post-identity politics.

Full post as published by Berkeley Jurisprude on October 12, 2007 (boomark / email).