[Congressional Record Volume 153, Number 152 (Tuesday, October 9, 2007)]
[House]
[Pages H11383-H11389]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    PROTECTING PEOPLE AGAINST DISCRIMINATION BASED ON THEIR SEXUAL 
                    ORIENTATION AND GENDER IDENTITY

  The SPEAKER pro tempore (Mr. Mahoney of Florida). Under the Speaker's 
announced policy of January 18, 2007, the gentleman from Massachusetts 
(Mr. Frank) is recognized for 60 minutes as the designee of the 
majority leader.
  Mr. FRANK of Massachusetts. Mr. Speaker, let me do what I think you 
cannot do under the rules and reassure your constituents in Florida 
that you have not become a Tennesseean when they weren't looking. I 
believe the gentleman from Tennessee left the chair, and we do now have 
the gentleman from Florida in the chair.
  Mr. Speaker, I want to address today a very important issue that is 
generating an intense discussion among a fairly small segment of people 
who follow things, and it seems to us it's not healthy and that we 
ought to have a broader discussion, both of the specific issue, which 
is a question of how to protect people against discrimination based on 
their sexual orientation and at some point I would hope their gender 
and their gender identity, and also how do political parties relate to 
those in the population who are the most passionate, the most committed 
and the most legitimately zealous about their feelings, often on one 
particular issue to the exclusion of a broader set.
  Before I came to Congress in 1981, former Members, the gentlewoman 
from New York (Ms. Abzug), gentleman from Massachusetts (Mr. Tsongas) 
and others, in the House filed legislation to make it illegal to 
discriminate against people in employment based on their sexual 
orientation; that is, they would have made it illegal in the same way 
that the 1964 Civil Rights Act made it illegal based on race, but in a 
different statute for a variety of reasons, for people to be fired, for 
people to refuse to hire people, for people to be denied promotions or 
in other ways discriminated against in the job based on their being gay 
or lesbian or bisexual. That was, and has been, the number one 
legislative goal of gay and lesbian, bisexual people for more than 30 
years.
  In many States subsequent to that enactment, that introduction, laws 
were adopted to do that. Wisconsin was the first in 1982; 
Massachusetts, the State I represent, the second in 1989. Many States 
now have it.
  As we kept that fight up in the face of a good deal of opposition and 
as we began to educate people as to why the prejudice against people 
based on our being gay or lesbian or bisexual was, in fact, invalid as 
a grounds for economic discrimination, movement expanded to cover 
people who are transgendered, people who were born into one sex 
physically but who strongly identify with the other sex and who, in 
fact, choose to live as members of the sex other than the one they were 
born in, often but not always having surgery to enhance that new life.
  We are at a differential stage in public understanding of these 
issues. We've been dealing explicitly and increasingly openly with 
prejudice based on sexual orientation for almost 40 years, since the 
Stonewall Riots of 1969 and since then.
  The millions of people that talk openly and to take on the prejudice 
against people who are transgendered is newer. It is also the case that 
prejudice begins with people reacting against those who are different 
from them in some way. People are rarely prejudiced against their 
clones. So we have this situation where there is more prejudice in this 
society today against people who are transgendered than against people 
who are gay and lesbian, partly because we have been working longer at 
dealing with the sex orientation prejudice; partly because the greater 
the difference, the greater the prejudice is to start, the more people 
fail to identify, the more they are put off by differences, especially 
when those differences come in matters of the greatest personal 
intimacy.
  We should be clear that as we talk about matters of human sexuality 
or the human sexual characteristics we touch on the most sensitive 
subjects that human beings will deal with.
  So where we are today is that earlier this year, after years of our 
introducing the bill which we call ENDA, the Employment Non-
Discrimination Act, to ban discrimination in employment based on sexual 
orientation, we added this year for the first time a provision that 
would also have banned discrimination based on gender identity as we 
have designated it, i.e., against people who are transgendered.
  We began dealing with the transgender issue earlier in the context of 
the hate crimes legislation, and legislating against hate crimes, it's 
easier to do than sexual orientation. It is less intrusive, and it is 
easier to make the argument that assaulting people and destroying their 
property is wrong than it is to say that refusing to hire them is 
wrong. I think they're both wrong, but obviously, there is a 
distinction in this society. One is a serious criminal issue; one 
becomes civil.
  We originally encountered difficulty in broadening hate crimes to 
include people of transgender. I first talked about that in 1999. I 
remember having to explain to people what we were talking about.
  Recently, we were successful earlier this, under the leadership of 
the Speaker of the House, in getting legislation through the House that 
expanded the hate crime protection, not just based on sexual 
orientation, but based on people being transgender. The Senate followed 
suit; although one of the leading senators engaged in that effort noted 
that whereas, when the Senate voted on that dealing solely with the 
sexual orientation issue, there were 12 Republican supporters, this 
year there were only eight. Eight turned out to be just enough to get 
us 60 votes to break a filibuster, but there was a fourth or one-third 
of Republican support even on hate crimes which is the easier one.
  Despite that, we thought we were in a position this year, under the 
leadership of the Speaker who had committed early to myself and the 
gentlewoman from Wisconsin (Ms. Baldwin), my colleague, to bring these 
issues up, hate crimes first and then employment nondiscrimination, we 
thought we had the votes to pass it.
  In fact, on September 5 of this year, when the gentleman from New 
Jersey (Mr. Andrews), a great supporter of opposing discrimination for 
all sorts, had a hearing in his subcommittee on the issue, I personally 
spoke more about the importance of including people who were 
transgendered than any other witness.
  I know, Mr. Speaker, that there are today people who are unhappy with 
my position because I believe, to get to the central point here, that 
we have the votes to pass a bill today in the House that would ban 
discrimination in employment based on sexual orientation, but sadly, we 
don't yet have it on gender identity. And I differ with some as to what 
we do about that.
  But one of the problems we have today, both on this issue, and as I 
will discuss in a little bit in general, is people in our society, the 
most deeply committed, who believe that when a politician tells them an 
unpleasant fact, he or she must somehow be embracing that fact. Because 
I have been one of those who has felt the obligation to tell my friends 
in the transgender community that prejudice against them is greater 
than prejudice against gay men and lesbians for some of the reasons I 
talked about, I have been asked why I am so opposed to fairness for 
people of transgender.
  I will submit for the Record statements that I made officially, 
either in committee or on the floor, two in committee and one on the 
floor, in September 2004, when I said on the floor of the House: Yes, 
there are people who are transgendered in our society, and they are 
sadly often victimized.

[[Page H11384]]

They're often victims of violence. Yes, I think it is a good idea to 
come to their aid, and if the gentleman thinks it is a mistake to go to 
the aid of people who are transgendered, who are more often than others 
victimized or who were put in fear of that, then we do disagree. 
September of 2004.
  September, 2005, again in the hate crimes context: I should add, too, 
that we've recently seen more of an outbreak of this sort of violence 
against people who are transgendered, and it is important for us to 
come to people's aid.
  And on September 5 of this year, when I testified at that point in 
favor of a bill that I hope we would have the votes to pass only a 
month ago, that was fully inclusive, I said: And then we have the issue 
that my colleague so ably discussed of the transgendered, my colleague 
being the gentlewoman from Wisconsin who often talks about this.
  I said: I understand this is a new issue for people. There are people 
who were born with the physical characteristics of one sex and strongly 
identify with the other. Some of them have a physical change. Some of 
them don't. Let me make a plea to all of my colleagues. These are 
people. Think what it must be like to be born with that set of 
feelings. Think what it must be like. Think what stress, what agony you 
go through to defy society's conventions to the extent where you make 
that kind of statement. This is something people are driven to do. Is 
there any reason why any of us should make those lives of those people 
more difficult than they already are? Obviously, these are people who 
are coping, and things are getting better. Things are better in ways. 
When I was young, a lot of things were difficult that are less 
difficult today. But we say here is, if someone has these feelings, if 
someone is born with one set of characteristics and strongly identifies 
the other way, should you fire them? Do you deny them a promotion? Do 
you say to them no matter how good your job is, you make me uneasy so 
out you go?

                              {time}  2130

  I spoke in hopes, on September 5, that we would have the support to 
do this. To my dismay, not entirely to my surprise but to my dismay, I 
found that we did not yet have the votes to pass a bill that would 
protect people who are transgender. As I said, I have discussed this 
issue, I think, as much as any Member of Congress and more than most. I 
am determined to try to diminish that prejudice, as I was determined 
when I started my political career to diminish the prejudice based on 
sexual orientation.
  Let me add one point here. I am, myself, of course, gay, so when I 
talk about passing legislation against sexual orientation 
discrimination, it's fair for people to say, well, you think about 
yourself. But I first got elected to a legislature in 1972. In the 
intervening 35 years, I have worked very hard for legislation further 
banning discrimination based on race, discrimination based on 
ethnicity, based on gender to protect women, based on age to protect 
the elderly, based on disability.
  At the time that I voted to protect people against those forms of 
discrimination, I was not, myself, a victim of any of them. I was not a 
beneficiary of banning discrimination against women or against African 
Americans or against Hispanics or people who were disabled. I was not 
when I voted for it one who was protected against discrimination based 
on age, but I now am, but I wasn't when I voted for it. I have just 
been around long enough to do that.
  I reject the notion that somehow I have only been concerned with the 
category in which I am a member. I will say this, every time I voted 
for one of those, I was voting to protect one group of people and not 
another. Because at the time when we voted, that was all that we could 
do, that was all that we could get the votes for, because a fight 
against discrimination is an incremental fight. I wish it wasn't.
  Some of my colleagues, some of my friends, I say to my colleagues in 
the gay community, maybe I will do a little stereotyping, maybe they 
have seen the Wizard of Oz too often. They seem to have Speaker Pelosi, 
a wonderful dedicated, committed supporter of human rights, confused 
with Glenda the good witch. They think if she waved her magic wand she 
could somehow change things.
  I have seen this woman work as hard as it is humanly possible to do 
to achieve results, but there are limits to what any human being could 
do in the face of difficult reality. You can move reality, you can chip 
away at it, you can try to shape it, but you can't just wish it away.
  What I have learned in the past month was that we weren't yet at the 
point where we could wish away this prejudice against people with 
transgender. Yes, we have an overwhelming majority of Democrats for 
that, but not all of them; and we have very few Republicans, although 
we have some of them. By the way, I wish this wasn't partisan. People 
said, don't make it partisan. I wish it wasn't partisan. I also wish I 
could eat more and not gain weight, and I wish I was as energetic today 
as I was when I was not protected with age discrimination.
  But this is one of the central points. Denying reality not only 
doesn't change it; it makes it harder to overcome it. That's where we 
are.
  On September 5, I testified in favor of including people of 
transgender. We then learned from conversations with our colleagues 
that we didn't have the votes to do it.
  Let me say, and I love being in this House and many of my best 
friends are Members of Congress, but we are sometimes, those of us in 
elected office, loath to tell people the truth when it will make them 
mad. We don't often lie directly, but we have ways of sounding more 
agreeable than we, in fact, are. We detect that in each other. We know 
when someone is being verbally more accommodating than he or she is 
likely to be when it comes time to vote.
  I am afraid that some of my friends in the transgender community and 
the gay and lesbian community and the advocate community in general 
were misled by what we used to call in Massachusetts ``the wink and the 
nod,'' the smile, the oh, of course, I strongly sympathize with you.
  People thought we had the votes. I hoped we had the votes. I wasn't 
sure. We do not have the votes. That has been confirmed.
  The majority whip, a man whose own life has been one of dedication to 
overcoming prejudice, did a check, not of every single Member on the 
Democrat side, but a large number of Members who were likely to be 
problematic. What we have found was, and I have confirmed this in my 
own conversations, here is where we are after years of advocacy on the 
sexual orientation question, a few years of advocacy on the transgender 
issue.
  I am convinced that we have the votes to pass in this House a bill 
that has been the number one goal of the gay and lesbian and bisexual 
community and our allies for many years, a bill to ban discrimination 
based on employment. I think it will be an extraordinarily good thing 
for America if we are able to do that.
  I don't expect the President to sign it, but it has always been the 
view of advocates, including my gay and lesbian colleagues, that we 
don't get deterred from pushing ahead by the threat of a veto. It's 
important to get those votes and to get people on record and show your 
strength so you can move forward and set the stage for an enactment in 
2009. After all, I don't expect the President to sign the hate crimes 
bill; he says he won't, although he doesn't always remain unchanged.
  But no one that I work with said let's not pass the hate crimes bill, 
transgender inclusive, by the way, because we aren't sure George Bush 
is going to sign it or we think he might veto it. You push ahead.
  So this is the question we now face. I am convinced that the votes 
are there to pass a bill that bans discrimination based on sexual 
orientation in employment. I am also convinced that if we were to put 
up a bill that included people of transgender, that part would be 
stricken on a vote, and, unfortunately, a fairly heavy vote. Because 
what happens is when a tough issue, and the transgender issue is a 
tough political issue now, and if I have fought with colleagues, it is 
for not being honest enough with people. And people who would mislead 
you, I would say, Mr. Speaker, to those who come before us as 
advocates, people who would mislead

[[Page H11385]]

you and let you think your task is easier are not your friends. They 
are undercutting your ability. Underestimating your enemy is the surest 
way, not only to lose, but to lose so bad it is hard to come back.
  I had hoped that we would have a vote upon a transgender-inclusive 
bill and win. Getting a large vote in this body to say no to 
transgender inclusion will make it harder in the future to change that 
situation, partly because my junior Senator, as the Presidential 
candidate, was unfairly pilloried. His remark was caricatured about his 
vote on Iraq. He quite sensibly voted for one version of funding for 
Iraq and then voted against another. He phrased it inartfully. What he 
did was correct.
  But because of that, the fear that Members of this body have and of 
the other body of voting one way and then later changing has been 
magnified. People now pay an unduly high price if they change their 
mind. So if you go ahead and get a negative vote on the transgender 
issue today, that will make it harder for us at some point, and I hope 
that point comes within the next few years, to change things after we 
have done more education.

  If we simply put the bill forward, and these become parliamentary 
intricacies, but they are irrelevant, if we simply put the bill forward 
and there was no amendment in the committee and it came to the floor of 
the House and it included the transgender inclusion, then you would see 
a series of very clever moves from the Republican side, motions to 
recommit, that could lead to the indefinite postponement in a repeated 
set of votes that would keep us from passing this bill.
  Now, people have said to me, what's the message you send if you pass 
the bill banning sexual orientation and not transgender discrimination? 
Before I answer that question, I want to pose another.
  What will be the message to this country who are not following all 
the intricacies of transgender inclusion? What will be the message that 
we will send if Nancy Pelosi, as strong an advocate of human rights for 
all people who has ever held high public office in the United States, 
if she is portrayed in the headlines as someone who says, I give up, we 
can't pass the gay rights bill this year.
  If, after Nancy Pelosi ascends to the Speakership with her record of 
advocacy and after many of us, and I include myself in this, who have 
long been supporters of fairness, if we now are in a position of 
leadership in this House and we collectively say, sorry, you know that 
goal that you have had for over 30 years, that we have had, speaking 
for myself, of banning discrimination in employment based on sexual 
orientation? You know this message we wanted to send that it's wrong to 
do that all over the country? Not now, can't do it. Why can't we do it? 
Because we can't do it perfectly.
  Now, the notion that you do not pass an antidiscrimination bill 
protecting large numbers of people until you can protect everybody, in 
my judgment, is flawed, morally and politically. It is flawed morally 
because I am here to help people in need. That's why I serve in this 
job.
  If we can get a sexual orientation ban enacted, we will be protecting 
millions of people in this country who live in States where there is no 
such law. There are laws in some States and not others. The States that 
have the laws are probably the place where prejudice is most active.
  I do not accept the argument that I am somehow morally lacking if I 
say, you know what, I would like to protect everybody, gay, lesbian, 
bisexual and transgender, I am only at this point able to get a vote 
passed that protects the millions of people who are gay, lesbian and 
bisexual; but I will withhold from them that protection until I do 
anything. Because any time you insist on doing everything all at once, 
you will do nothing.
  I think my favorite way to look at American history is to look at 
some of those wonderful principles that were set forth in the 
Constitution of United States, extraordinary declarations of basic 
human rights at a time when those were really quite unrealized in the 
world.
  But as people pointed out, Thurgood Marshall most eloquently, there 
was a great gap between those wonderful universal principles, the 
rights of all, and the practice. Yes, everybody had rights on the 
paper, and rich white Christian men had rights in reality.
  What we have seen over 200-plus years, in my judgment, is successive 
efforts to take those marvelous principles of freedom and equality and 
democracy and fairness that were set forward in the Constitution, 
Declaration of Independence and apply them to more and more people, to 
diminish the exclusion. We have done it on race, we have done it on 
gender, we have done it in a number of other areas.
  The last remaining barrier is sexual orientation and people who are 
transgender. We cannot do it, I believe, all at once. I have tried, and 
I will say that I have tried as hard, I quoted several statements I 
made. I will say this as an aside, I will get to this later, that one 
of the things that does bother me, to be honest, is that people who are 
now demanding that we kill a bill to protect people against sexual 
orientation and discrimination because we haven't done enough to 
protect people of transgender were silent on the issue awhile ago.
  When I testified on September 5, I wasn't the head of some large 
movement. I was speaking out personally. I had been begging people for 
months. We knew this was coming up. It has been published since earlier 
this year that we would be voting on this bill now.
  People are now having Web sites; people are bursting forward. Where 
were they when we needed them? I will talk about why we did not see 
them then and we see them now.
  But the moral issue is, do you deny protection to millions of people 
because you can't give it to millions plus several hundred thousands? 
It's not the numbers that counted. More is always better; and, again, 
the notion that we shouldn't have helped blacks until we could help 
women, as somebody pointed out in an editorial, I think it was in the 
Washington Blade, constitutionally black men got the vote long before 
white women.
  Now, I wish everybody had gotten the vote back at that time. There 
were suffragettes back then, but wouldn't it be fair to say we are not 
giving anybody the additional right to vote until everybody can? That's 
the issue. There are people who can test this and say, oh, if you had 
really tried, you could have gotten the vote.
  They are simply wrong. I will tell them that I and many others, 
Speaker Pelosi and many others, have tried very hard to get those 
votes. They weren't there.
  It's partly because some of the people who are now lately to this 
fight weren't there helping us through the lobbying. But even if they 
were, we probably wouldn't be there yet because we have been later to 
this game, and we have a deeper hole to fill. I believe we will get it 
done.
  Now, there is one argument, let me actually hit two arguments, that 
people will say as to why we shouldn't go ahead now. One, they say, 
well, you know what, it's strategic. The President is not going to sign 
the bill anyway. Why go ahead with sexual orientation now without 
transgender?
  But that argument is not being made honestly, because the argument is 
not that we shouldn't go ahead and pass the bill that George Bush would 
veto. The position taken by the various groups that want us to kill the 
gay rights bill now, because we do not have the votes to include 
transgender, are people who say to us, never pass the bill, even if you 
get a Democratic President who would sign it in 2009, and you get a 
House and Senate majority ready to pass it in early 2009, do not 
protect millions of people in this country against discrimination based 
on sexual orientation until you can protect everybody now unprotected.
  I don't think that's morally a valid position, but let's be fair. 
It's not a tactical issue about whether you do it now or then. It's do 
you ever do it.
  One other argument we get is, well, if you pass a sexual orientation, 
antidiscrimination law, you won't be protecting even gay and lesbian 
people, because people will then be able to fire gay men on the grounds 
that they are effeminate, not that they are gay. They will fire 
lesbians for being too masculine and that will take away the 
protection.
  In fact, many States in this country still have laws that protect 
only against sexual orientation, including

[[Page H11386]]

New York State, which passed it a few years ago with the strong support 
of many of the people who now tell us that Congress dare not do what 
New York did. How people think we are going to get more votes, we are 
going to get more votes for a better bill in America than they got only 
in New York, I don't understand, if they really think that the United 
States is a more favorable theater for these kinds of rights than New 
York.
  But I have challenged people to give me one case in which in a State 
which protects only against sexual orientation, and most States had 
that originally and it was that way in many States for a while and it's 
still that way in a lot of other States, is there one case where a 
person was fired because of her sexual orientation, and that firing was 
upheld in the teeth of the law that said you couldn't do that because 
she was too masculine?

                              {time}  2145

  There are no such cases.
  And I asked Lambda Legal which may decide to give me a case. They 
have the one case that they allude to. They don't give the citation 
often because it is so clearly not supportive of that position. It's 
Dawson against Bumble & Bumble. No, that was not out of Dickens. Dawson 
against Bumble & Bumble is a case from the State of New York. Its cite 
is 398 F.3d 211. And what the three-judge panel says here affirming a 
district court judge is very simple. The woman who brought the claim 
wasn't able to show that she was discriminated against on any ground. 
In fact, the argument was, you know, you didn't have transgender 
protection in the New York State law; that's why she was fired. It was 
mostly a case about title 7 of the federal law, which doesn't even 
mention sexual orientation, and much of the case comes up with her 
trying to get sexual orientation into it. But in fact, as the judges 
point out, let me read what the three-judge court said, and this is a 
claim from Lambda Legal, that this shows that you could fire a lesbian 
on the grounds of her being too mannish because she didn't have gender 
identity protection. Listen to who fired her. The district court found 
it to be particularly significant that Connie Voines, the manager of 
the salon and the individual who ultimately decided to terminate 
Dawson, is a ``presurgery male to female transsexual who, at the time 
of the events in question, was transitioning from appearing male to 
appearing female.'' She was fired by a transsexual. How in the world 
would having sexual gender identification protection have kept her from 
being fired by a transsexual? She was fired because she was a lousy 
haircutter. I don't say that negatively about her. I'd be a pretty 
lousy haircutter. But that's why she was fired. Dawson's performance 
was erratic. Sometimes she performed well, other times she did not. 
Over time, her performance and the educational program declined until 
it was unacceptable.
  Now, she does say with regard to New York State law, the Federal law 
doesn't even have sexual orientation in it, so it's totally irrelevant. 
Under New York State law, which has only sexual orientation, she did 
say that, yes, it was a problem because a couple of people had made 
remarks to her about being a dyke. You know what the Court found? That 
they didn't fire her; that the people who insulted her had no power to 
fire anybody. She was fired, this woman, in a place that was about 50 
percent gay and lesbian, by the way. The notion that this was a pretext 
for getting rid of gays and lesbians, it was a hair salon. This wasn't 
the backfield of the New York Jets. It was a place where most, half the 
people were themselves openly gay and lesbian, and she was fired by a 
transsexual. And they say that this shows that a sexual orientation law 
doesn't mean anything.
  It's sad to see a legal organization for which I have respect making 
that kind of an argument because what they're doing is they are loading 
the gun against us. Because I will tell you this: If in a future case, 
anybody fired a gay man and said ``Well, I didn't fire him because he 
was gay; I just fired him because he was too effeminate'' in a State 
which had a sexual orientation law, if someone tried to cite this case 
as an argument for firing that person, Lambda Legal would say ``Of 
course not; you've misread it.'' Please don't distort the case now for 
rhetorical purposes when you may be putting this weapon in. 
Fortunately, this case is so completely off the point, a woman was 
fired for being a bad haircutter by a transsexual, and we're told, 
``Oh, if there was only gender identification protection, this wouldn't 
have happened.'' That's not good argument. What people really believe 
is, and it's not tactical. He's not going to sign it. It is not this 
principle. Do not pass a law that protects some people until you can 
protect everybody. Now that's a valid argument. I think it is terribly 
wrong. I also believe, by the way, from the standpoint of protecting 
people who are transgender, and as I've said I've listed my comments in 
favor of inclusion of people who are transgendered. I think I've got as 
good a record on this as others. And by the way, in listing what I've 
done on behalf of helping transgender people win, I will cite some of 
the arguments that people have taken issue with because I have told 
them how hard it's going to be. Yeah. A lot of people have been yessing 
people to death. And a lot of people, both in the gay and lesbian 
community and the broader advocacy community, and here in the Congress, 
people don't like to say no to people. You know, we Caucasians get all 
ethnocentric. We impute to people of Asian descent an unwillingness to 
be unpleasant face to face. Most people don't like to be unpleasant 
face to face. Most people tend to shade things. They tend to, you know, 
one of the things you learn here if you're in the whip organization, if 
you're counting, please discount by a very significant percentage what 
people say to you because that's a natural human tendency.
  And I remember once when I was in high school reading, the New York 
Times had an article about a Member from the Midwest who was very angry 
at a New York Member of Congress. He said, you know, ``You told me you 
were going to vote with me and you didn't. You broke your word to me.'' 
And he said, ``What do you mean? I never told you that.'' And he said, 
``Well, I asked you if you were going to vote with me and you said, 
`Yeah, yeah.''' And the guy said, ``Don't you know that in New York 
`yeah, yeah' means no?'' I mean, often that's where we are. That's the 
issue.
  So again, there is a central issue here. Do you withhold protection 
from millions of people who live in States where they are now 
unprotected from discrimination based on sexual orientation? We had the 
case of a lesbian who was fired by Cracker Barrel who was a lesbian in 
the State of Georgia. They don't have a law. I think that's the morally 
flawed position. I reject the notion that when I want to extend 
protection to millions of people. And I want to go back. Am I 
protecting myself? Not anymore. Sure, there was a time when I was 
vulnerable. I'm now chairman of the Financial Services Committee. I 
really am very unlikely to be discriminated against. This is not a 
personal thing with me. But I remember what it was like to be young and 
gay and worried about the job. I know what it's like today when I talk 
to young people who are afraid, not in Massachusetts, not in 
California, not in Wisconsin, not in a lot of the States that have the 
law, but in many States that don't have the law there are people who 
are afraid. And again, we are being told by a very strongly motivated 
group, and it's not don't do it now because he's going to veto it. It's 
not don't do it for tactical reasons. It is very clear in what they 
say. Never pass a law that will protect people against discrimination 
because they are gay or lesbian or bisexual in their employment unless 
you pass a law that covers people who are transgender as well. My view 
is that we should try very hard to extend it to people who are 
transgender. I want to do that. But if I can't do everything, I don't 
want to be told to do nothing, because that is a way never to do 
anything.
  And by the way, even Martin Luther King understood that. In 1964, the 
Civil Rights Act covers race, but it didn't cover all subjects. It 
didn't cover housing, didn't cover voting rights. And we've had people 
who said don't pass ENDA. It doesn't include everything, doesn't 
include housing, etc., etc. Well, neither did the 1964 Civil Rights 
Act. When we voted to protect people in the American Disabilities Act, 
we, in fact, protected people who had AIDS and

[[Page H11387]]

people who are HIV positive. But we didn't protect people who weren't. 
That was a distinction among gay men. If you can show me that by 
helping some people I am making other people worse, then I won't go 
forward.
  But there's a great concept in economics, there used to be. Maybe 
they changed it. They changed a lot of things since I studied it. It 
was called pareto optimality. Pareto Optimality meant, named for the 
sociologist Vilifredo Pareto, pareto optimality recognized, being 
sensible people, that you can never make everything better at once. 
Pareto optimality is if you make some things better and nothing worse. 
And that, by the way, is considered an unattainable ideal in economics. 
To be able to make some things better and nothing worse is 
unattainable. To make everything better and leave nothing behind is 
unthinkable. It's beyond unattainable. And I think we are at pareto 
optimality when we say to millions of gay men and lesbians, blue-collar 
workers, young people, other people who live in the majority of 
American States where they're not now protected against discrimination, 
we will protect you. And I wish we could protect people who're 
transgender.
  And by the way, from my standpoint, there are three options now. We 
could go forward with the bill that included people with transgender. 
That would lose. I am convinced it would lose. We've looked and worked 
hard on this. And I'm someone who's been an advocate. The Speaker's 
been an advocate. Chairman Miller, the gentleman from California, the 
Chair of the Committee on Education and Labor, the gentleman from New 
Jersey (Mr. Andrews), advocates who said they were trying. We don't 
have the votes for it. It is not, in my judgment, in the interest of 
succeeding ultimately and including people who are transgender in this 
protection to have them lose by 50 or 60 votes today. And I started to 
say this before. What will happen is this: They will lose. We know 
that. And once they've lost, people who were ready to support them will 
say, you know what, they're losing anyway. I think I'd better not vote 
for them, because what's the point of taking a hit when it's not going 
to be of any use.
  So we could go forward with the vote and have them lose and maybe 
lose the whole bill because of procedural maneuvering, or we could let 
the whole bill die and people say what message are you sending the 
country if you protect against sexual orientation and not transgender? 
Well, my view is the message we are sending is we are at a point in our 
fight against prejudice where we have made these gains but not those 
gains, and we will consolidate the gains we made and move forward.
  And the alternative is, the Democrats took over the House and they 
have the Speaker from San Francisco and they've got a chairman who's 
gay and they've got all these other people who tell gay and lesbian 
people they're friends, and they couldn't even pass a bill to protect 
people. What message does that send to gay and lesbian people in all 
those States who are not now protected? So I think we should go 
forward. Do the best we can.
  Now, I said we're going to lose. I hope I'm wrong. After we did our 
count and found that we didn't have the votes, all of a sudden, the 
cavalry mounted up. But they're coming from a long distance. I have 
been pleading with people in the gay and lesbian and bisexual and 
transgender communities to lobby for us. Instead, they want to 
strategize, many of them. Some, no. Some have done a very good job. But 
many of them weren't there. And now they have announced, in the last 
couple of weeks, and they asked for a postponement. The Speaker 
correctly said sure, take a couple of weeks. It's hard to do that in a 
couple of weeks. Maybe they can turn it around. I will say this, Mr. 
Speaker, if at some point it looks like our count is turned around, I 
don't expect it to, but I hope it does, and we have the votes to 
include transgender, I'll be for that vote being taken. But I doubt 
very much that people will be able to undo months and years of inaction 
and of talking only to each other and not doing the hard lobbying 
within a couple of weeks.
  So I will say this. If a week from now we've reached a point after 
this delay that was granted to advocacy groups where we have, as we did 
before, have the votes to protect millions of currently unprotected 
people against a form of job discrimination, but not everybody who's 
being discriminated against, then I say it's immoral not to go forward. 
And again, I understand that we may not get the bill passed this year. 
But I understand also that what we're debating this year is a proxy for 
when we do have the votes to get this passed, because we will be told 
whenever we are in this situation, and I don't think we're going to 
turn this around in a year. I wish we could. But if we have a President 
ready to sign the bill and a majority ready to pass it, we will again 
be told, no, you may not. You may not protect millions of people 
against discrimination because they're gay or lesbian or bisexual until 
you can also protect people with transgender. I have to say to my 
transgender friends, why would you want to say that? Why would you want 
to say until you can protect me, don't protect anybody else? I've never 
said that. I never said don't protect people against racism until you 
can protect me against homophobia. Don't protect some people against 
ethnic discrimination until you can protect other people because 
they're lesbians. That's just not the way we'll get there. We have got 
to get there working together.
  And in fact, the best way to improve is this, there are irrational 
fears about what will happen if we pass a bill protecting against 
sexual orientation. You know what's odd? There are people who think the 
real fight in this world is whether or not we can include transgender. 
They kind of take for granted that we can pass sexual orientation. The 
fact that we are on the verge of passing a bill to protect people 
against discrimination based on sexual orientation is a wonderful 
breakthrough in this country. We've been fighting for it for over 30 
years. A year ago, when we were trying to fend off a right-wing effort 
to ban same-sex marriage in Massachusetts and retroactively cancel the 
marriages of thousands of people, I don't think people were confident 
that we would be on the verge of passing a sexual orientation 
antidiscrimination bill. That's a wonderful moment as we make advance 
after advance in civil rights. And I will not allow people without my 
dissenting to turn that great breakthrough into some mark of weakness.
  It's a great thing to be able to go forward, and it's also the 
prerequisite for going even beyond that, because if we are able to 
establish in 2009 antidiscrimination protections based on sexual 
orientation, within a year we will have alleviated many of the fears. 
We always have excessive fears about antidiscrimination. People always 
think antidiscrimination measures will cause chaos when they don't. And 
once we have done that, it will be easier to add people who are 
transgender rather than to say we're never going to do anything until 
we can do everything. That is not the way legislation has ever worked. 
That is not the way social advance has ever worked.
  Now the question then is, and I think this is worth pondering in my 
closing minutes here. How did we get to the point, we certainly weren't 
there a year ago, where an announcement by a Speaker who has spent so 
much of her life fighting against prejudice, her announcement that she 
will bring to the floor a bill in which we will get a majority in the 
United States House of Representatives which would ban in the entire 
country discrimination based on sexual orientation, how did that get 
transmogrified in the minds of I believe only a few people, but a few 
very vigorous people? How did that become a bad thing? How did one of 
the great advances in civil rights protection since the Civil Rights 
Act of 1964 get labeled as somehow a sellout? And here's the problem. 
And it is a problem both parties face, and in some ways, this issue, do 
we go forward with a bill achieving a decades-long goal of for the 
first time getting either House to vote to ban sexual orientation 
discrimination, something gay and lesbian people have been fighting for 
a long time? And I do suspect there are some people who it's precisely 
because we're on the verge of victory that they decided they better not 
think it's such a good idea, because they are vested in the notion that 
we'll never win and that we must always be fighting.

[[Page H11388]]

                              {time}  2200

  But how do we reach the point where this is a negative in the minds 
of some? Well, here is the problem, and it is a problem, as I said, for 
both parties. It is how do you relate, those of us who hold positions 
of responsibility who have been elected by broad majorities and given a 
responsibility to govern, to govern in pursuit of our values? I'm not 
here as some neutral administrator. I am here because I have a set of 
values. I have a set of views about what I want this society to look 
like. And I'm here to try to move this society in that direction. And I 
do that as part of a broad coalition, and included in that coalition 
are some people who are fiercely motivated.
  Now, this is the issue: Does a political party say to its most 
militant, committed, ideologically driven believers in purity that they 
have a veto over what the party does? And I say that procedurally 
because substantively I agree with them. I have spoken on this floor 
and in committee for including people of transgender. I have argued 
that with my colleagues in private. I have argued that with the 
Democratic Caucus. But I also believe that I have a broader set of 
responsibilities than to any one group and my job is to advance the 
moral values that I came here to advance as far and as fast as I can 
and not voluntarily to withhold an advance because it doesn't meet 
somebody's view of perfection. And the question is, how do we relate to 
those people? And it has become an increasing problem for both parties.
  Frankly, until recently I have felt that one of the advantages we 
Democrats have had over our Republican colleagues is that we were more 
willing to be responsible, less susceptible to the most committed 
minority of our party having a veto. I think from the days of Terri 
Schiavo and before and since, the Republican Party has suffered from 
that. I don't want the Democratic Party to suffer from it. Not because 
I want to protect the Democratic Party as an end in itself, but because 
the Democratic Party is the means by which these values I care about 
are most likely to be advanced.
  And let me talk about this ideological faction that we have. There 
are some characteristics that they have that I think led them to this 
profoundly mistaken view that the greatest single advance we can make 
in civil rights in many, many years would somehow be a bad thing 
because it would only include millions of people and leave some 
hundreds of thousands out. And I want to include those hundreds of 
thousands. I have done more to try to include them than many of the 
people who say we should kill the whole thing, but I don't understand 
how killing the whole thing advances that.
  But here are some of the characteristics: first of all, they tend to 
talk excessively to each other. One of the things when you are in this 
body is you talk to people all over the country. You talk to Members of 
Congress from every State. And I have this with people who can't 
understand why I am not introducing legislation to impeach the 
President and the Vice President, and I find that this is a 
characteristic that these are people who do not know what the majority 
thinks, who do not understand the depths of disagreement with their 
positions on some issues. And that doesn't mean a majority that says 
George Bush is wonderful. That isn't there anymore, but a majority who 
would be skeptical of impeachment.
  But let me get back to this. There are people who talk excessively to 
each other. They don't know people of other views.
  There is another characteristic of these people who are so dedicated. 
They do not have allies. You can take an elected official who has been 
with one of these groups day after day for years, but let that 
individual once disagree, and it's a betrayal. It's a failure of moral 
will. And lest anyone think I am here being defensive about myself, let 
me be very clear: I will be running for reelection again. The 
likelihood that I will be defeated by someone who claims that I am 
insufficiently dedicated to protecting people from discrimination based 
on sexual orientation seems to me quite slender. I am not worried about 
my own situation, and let me also say that I have said that my 
colleagues suffer sometimes from the unwillingness to tell people bad 
news. It has been suggested that I may suffer from the opposite 
direction. It's not that I like telling people bad news, but I do think 
that you should when you have to.
  I am not worried about myself, but here is what I'm worried about: I 
am worried about people from more vulnerable districts because not only 
do people talk only to themselves and not understand the differences 
that exist and not accept anybody's bona fides ever, that they will 
turn on anybody the first time there is an honest disagreement, but 
there is also the single-issue nature. That is, there are people who 
say, okay, you know what, I don't care about your survival to fight for 
any other issue.
  Let me put it this way: there are people who say to me, wait a 
minute, when you say you don't want to take a vote on transgender 
because it might lose and it would be politically difficult, you are 
letting politics enter into it. Let me make a very blanket statement 
here in the first place for those who want to live in America or France 
or England or anywhere else. If you want a decision to be made without 
any regard to politics, do not ask 535 politicians to make it. That's 
called democracy when you like it; it's called politics when you don't.
  But here is the issue: there are people in this Chamber who come from 
districts much tougher to win in than mine, districts which I could 
never have won. And I treasure their being here because they help us on 
the children's health program, on raising the minimum wage, on 
defending civil liberties and fighting racism, and, hopefully, in 
getting us out of the war in Iraq. Yes, I do take into account the 
likelihood that my colleagues with whom I agree on so many issues might 
be jeopardized in a fight that we are going to lose anyway.
  And, by the way, I say to my gay and lesbian friends, there are 
people here who voted with us against a constitutional amendment that 
would have retroactively wiped out marriages in Massachusetts. They are 
ready to vote with us to get rid of the ban on gays in the military 
when we get a President who will sign that. They voted with us on hate 
crimes. They are ready to vote with us to ban discrimination based on 
sexual orientation, which we have cared about for so long. They are 
ready to do other things that will be helpful to us.
  I will not abide by people telling me that I have to totally 
disregard my interest in their continuing to be here on every single 
issue, and that's the problem with the single issue. You are willing to 
disregard progress on any other issue. So to demand 100 percent on the 
one issue and to scorn people giving 90 percent and to say I don't care 
whether they win or lose when they are with us on so many other issues, 
that is irresponsibility.
  And I say this is a moment of truth for the Democratic Party. I wish 
it weren't the case. I apologize to my colleagues. It is awkward for me 
here. I have been pressing people for years. And, again, I want to 
stress a bill that bans discrimination and employment based on sexual 
orientation will be, I believe, the biggest single advance in fighting 
prejudice in many years, certainly since the American Disabilities Act; 
maybe since, in numbers, the Civil Rights Act of 1964. And I know that 
is a tough vote for some people to cast. And I have got people saying, 
I don't care if it's a tough vote to cast. If they are not also willing 
to do it for transgender, then they are my enemy and I don't want it to 
go forward.
  I am sure of this, Mr. Speaker: I have been here 27 years, and the 
longer I get here, the less I know about everything else than what is 
here. My mind is not expansive enough to do much when the day is over. 
So I think I know a lot about this place and increasingly little about 
everything else. What I am sure about this place is this: if we listen 
to the most dedicated, most zealous believers in purity and kill this 
bill that would be such a great advance in civil rights, we will be a 
long time in getting back to anything. People who think that if they 
are successful in killing this one and in attacking people and 
demonizing people who want to deliver, as part of a movement, this big 
advance that they will then be able to get more than that live in Oz, 
in not only a fantasy world but a nonexistent fantasy world and a 
dream. It simply will not happen.

[[Page H11389]]

  Let me close, Mr. Speaker. I am a great believer in free speech. I 
often am one of only two or three Members voting against telling people 
they can't read this or say that or look at such and such on the 
Internet. If I was inclined to ban forms of expression, it wouldn't 
have much to do with sex. I would make it a misdemeanor to use 
pragmatism and idealism as if they were opposing views. And that's what 
we have here. People say, well, you're going to be pragmatic and pass a 
bill that protects millions of people against discrimination based on 
sexual orientation, but, me, I am an idealist. I am for no bill at all 
because if I can't protect everybody, I don't want to protect anybody.
  Let me put it to you this way, Mr. Speaker: of course you should 
start with ideals. You don't belong in this line of work making rules 
that other people have to abide by unless you are motivated by a 
genuine idealism about how the world should be. But the more committed 
you are to your ideals, the more you are morally obligated to be 
pragmatic about achieving them. What good are your ideals if they're 
never achieved and all they do is make you feel pure?
  If we kill the gay rights bill this year and set back for some time 
to come the possibility of going after any of these forms of 
discrimination, there will be people who will be very proud of 
themselves. See, I didn't let those politicians compromise. I didn't 
let those politicians settle not for half a loaf but for about 85, 90 
percent of a loaf. I insisted on absolute solidarity and absolute 
purity, and I feel much better about it.
  And they probably will. But millions of people will be worse off 
because they will have been denied by this preference for purity a real 
legal protection.
  Mr. Speaker, I filed a bill in 1972, in December, and my former 
colleague Jim Segel here who was with me as one of the few supporters 
of that, and we pushed for that. My colleague, the gentleman from 
Massachusetts (Mr. Markey), was one as well. We pushed for that. For 35 
years I have been trying very hard to protect people against 
discrimination, and the people who are the victims of discrimination, 
they tend to be the most vulnerable people in places where there is the 
most hostility. And we are on the verge in winning in the House of 
Representatives an extraordinary historic victory, the passage of a 
bill banning discrimination based on sexual orientation. And people say 
don't do that because you can't protect everybody.
  I should add, Mr. Speaker, I talk a lot to gay people, gay men and 
lesbians. I find the view that we should not do anything until we can 
do everything very much in the minority. I understand the passion of 
those who are in organizational positions. But, you know, we talk about 
politics here. There are politics in organizations too. There are 
people who I have privately discussed this with who have said, yes, we 
wish you would go ahead, but I can't say that. I can't stand up against 
this organizational consensus.
  Well, idealism by itself is going to be pretty fruitless, and 
idealism that is empowered by pragmatism is the way in which we make 
progress, and that is what we are called upon to do here. And so I am 
asking my colleagues, Democratic and Republican because there is 
bipartisan support for this, please do not be dissuaded by those who 
say do nothing until you can do everything. Look at the history of 
civil rights. Look at the fact that we helped one group here, we dealt 
with a certain form of discrimination there.
  Even here, by the way, we are talking about employment 
discrimination. We are not talking about marriage here. There was an 
effort to try to put civil unions and partner benefits in the bill. It 
was a mistake. We'd get rid of it or it would kill the whole bill.
  I do not believe that the majority of gay men and lesbians in this 
country want to take the position that nothing shall be done to enhance 
legal protection against the prejudice from which they suffer until we 
can do the job perfectly. I also believe that from the standpoint of 
including people who are transgender, for which I have and will 
continue to work, we will not accomplish that nearly as quickly. Maybe 
in 50 years it will all get done. I'll be dead; so tell me anything. I 
won't be able to argue with you.
  But in the interim, we will get there much more quickly if we 
continue to follow the sensible strategy of working with allies, of 
accepting support that is overwhelming but not complete, of 
understanding political reality, of moving forward, of alleviating some 
fears by taking some partial steps. We are a lot likelier to get there.
  So we have two choices today: we can say until we are able to do 
everything, we are going to abandon this effort; and I believe the 
consequences of that will be profoundly negative for any effort to 
revive this. People will say, wait a minute, those are the people who 
tell me not to do that. God knows what they're going to ask me for the 
next time. For 30 years they told me they wanted this. Now when I want 
to give them this, no, that's not good enough. They want that. I can't 
go through this again.

                              {time}  2215

  Or, we can take one of the biggest steps forward in the anti-
discrimination march, in the march to make the American Constitution's 
wonderful principles fully applicable with everybody, we can take a 
major step forward on that issue. And having done that, we will be, in 
my judgment, better able to take the next step. That is the choice. And 
I hope, both for the substance, and for giving people a lesson in 
responsible governance in defense and in advancement of our values, my 
colleagues, especially on this side, but in the whole House, will opt 
for sensible and real progress that serves the interests of the 
majority and rejects the counsel of those who say that, absent 
perfection, we should leave everything as it was.

                          ____________________