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Civil rights, legislative wrongs.

For gay rights activists, the important difference in the presidential race is between two strongly supportive Democrats on one side and the uniformly hostile Republicans--including John McCain--on the other. But while the Al Gore-Bill Bradley split over whether to support a separate antibias bill (the Employment Non-Discrimination Act) or to amend the 1964 Civil Rights Act has no electoral relevance, it is crucial legislatively. The wrong choice will make the hard job of passing any bill even harder.

Illogically, some argue that because those of us most active in this fight once backed amending the Civil Rights Act, our support for ENDA is questionable. The opposite is true. We changed our strategy and drafted ENDA precisely because it became clear to us that a stand-alone measure would be much easier to pass while providing identical legal protection against job discrimination for gay and lesbian people.

The reason was--and is--affirmative action, which derives its major legislative sanction from the Civil Rights Act. When a gay rights bill was first proposed in Congress in the 1970s, this was no problem. But by the mid '80s, conservatives were making political gains by demonizing affirmative action as the source of "reverse discrimination" against white males. The success of this tactic spilled over into the fight against sexual orientation bias.

As it became clear that most Americans oppose firing people because they are gay, lesbian, or bisexual, our opponents decided that dishonesty was the best politics. Implicitly conceding that job discrimination is wrong, they argued that gay people were already protected against such bias, so we must be seeking affirmative action--i.e., "special rights." Both parts of this argument are false, but as the outcome of several antigay ballot measures has demonstrated, propaganda does not have to be accurate to be effective.

Our first response to this in 1989 was to add language to our proposed modification of the Civil Rights Act severely limiting affirmative action on the basis of sexual orientation. But this gave our opponents cover to continue to argue that we wanted special rights: Why else, they asked, did we seek coverage under the very law establishing affirmative action? At the same time, supporters of full affirmative action for racial minorities and women correctly worried that bringing a bill to the floor that weakened affirmative action in one context made it much easier--in both parliamentary and political terms--to attack it in other ways.

ENDA was then drafted as a better legislative response. It insulates us from the preference accusation without in any way diminishing the force of affirmative action under the Civil Rights Act, and its antibias effect in employment is as strong as that in the Civil Rights Act. (The rest of that act is irrelevant to sexual minorities, except for the public accommodation section, an area where gay, lesbian, and bisexual people have registered far fewer complaints.)

Proof that we can pass a gay rights bill only by disavowing any interest in affirmative action came in 1998 when we beat back a Republican attack on Clinton's order banning discrimination in federal employment only after much work to make it clear that affirmative action was not involved.

The centrality of affirmative action rebuts one other point made by those who now argue for returning to the Civil Rights Act strategy. Some of us who back ENDA have cosponsored bills to expand the act in the race and gender contexts. But none of these bills seeks to circumscribe affirmative action. And unlike ENDA, which was one vote from passing in 1996, they are all at the early, symbolic stage, with no one yet seeking to bring them to the House floor.

This was, of course, true of the gay rights bill until 1992, when the election of our first supportive president made it possible to begin serious legislative efforts actually to enact a law. ENDA was the result. Its ability to attract broader support than the Civil Rights Act approach soon became clear. One prominent Democrat, for example, who had declined for 15 years to cosponsor the gay rights bill as part of the Civil Rights Act, signed on to ENDA in the very first year it was introduced.

His name is Bill Bradley.

Frank is a Democratic U.S. representative from Massachusetts.
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Title Annotation:presidential race
Author:Frank, Barney
Publication:The Advocate (The national gay & lesbian newsmagazine)
Article Type:Brief Article
Date:Feb 15, 2000
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