The ACLU does not support an employment discrimination law that covers sexual orientation but not gender identity, for two reasons. First, the sexual orientation only bill may well not even do what its sponsors want. Because it currently defines sexual orientation as "homosexuality, heterosexuality and bisexuality," there is still a serious risk that employers may get away with claiming they fired women because they are too masculine and men because they are too feminine. There is a serious risk courts will say the definition only covers who you have a relationship with, and not stereotypes that only apply to some gay people. If that sounds far fetched, we've been watching courts do just this in disability and marital status discrimination cases. And courts have already said that harassing someone over perceived masculinity or femininity is not sex discrimination if the prejudice stems from sexual orientation. We have been warning members of Congress about this problem for over four years.
But the more important reason to oppose excluding gender identity and expression is this: We truly do believe that discrimination based on sex, sexual orientation, and gender identity and expression are not mutually exclusive. They are all based on beliefs about what is or is not appropriate for men and women; what jobs are appropriate, what relationships are appropriate, what kind of personal and public identity is appropriate. It makes no sense to split them apart.
No one is more aware than the ACLU that compromise is a critical part of the legislative process, and that change in a large republic is almost always incremental. But a compromise that cuts out some of the community, as a group, as opposed to one that cuts out some employers or some situations, is wrong. It would create the belief that this is a less worthy group of LGBT people, something that doesn't happen when you leave people who work for small employers uncovered (something most civil rights laws do). There has been plenty of compromise in ENDA. It allows employers to keep same-sex partners out of health plans. It doesn't apply to the military. But some bargains are just not worth it. Cutting out people who have been on the front lines of the LGBT movement is not a concession we should make.
Matt Coles
Director, ACLU Lesbian Gay Bisexual Transgender & AIDS Project