“This is just a big mess,” says Mara Keisling, the executive director of the National Center for Transgender Equality. “Definitely a bad situation for all of us.” Keisling, herself a transgender woman, is referring to the controversy surrounding the newest version of the federal Employment Non-Discrimination Act (ENDA) bill, H.R. 3685, which aims to prohibit employers from using an individual’s sexual orientation as a basis for different treatment in hiring or in the workplace. On October 18, by a vote of 27 to 21, the House Education and Labor Committee approved the legislation—which, to appeal to more delegates when it goes before the full House for a scheduled October 25 vote, had been revised to remove protections for transgender people. Many congressional insiders, quick to label the bill a victory for all gay people, believe it will pass. But the gay community, outraged by the omission, is hardly celebrating. “This would be the first time in American history,” Keisling says, “that a [bill] passed that nobody it’s supposed to protect wants.”

Currently, 20 states have laws prohibiting the firing of employees based on sexual orientation, and only 12 states have laws to protect people from gender-identity-based discrimination, a larger category that includes transgender people.  To address the issue, Representative Barney Frank (D-MA), one of two openly gay members of Congress, introduced H.R. 2015 this past April. Its original mandate included transgender rights, but on September 27, weeks before Congress was to vote on H.R. 2015, Speaker of the House Nancy Pelosi (D-CA), with Frank’s support, put forth H.R. 3685, an amended ENDA that offers protection only for gay, lesbian and bisexual American workers.

Frank told POZ that gender-identity protection was eliminated because inside polling and conversations with congressional representatives suggested a trans-inclusive bill was doomed. “It was because of [congressional and societal] prejudice,” he says. “Some members in Congress are more educated on gay and lesbian issues, but not about the transgendered. I support a trans-included bill, but it won’t pass, so do we kill the bill altogether? We should push the bill forward and include them later.”

Frank asserts that a slow-but-steady approach has long been successful in eventually achieving a variety of civil-rights protections. He cites, for instance, a gender discrimination bill in the 1970s, which excluded sexual orientation entirely. “This notion that we don’t do anything until you do everything means that we will never do anything,” he says. “No one bill does everything.” Roberta Sklar, communications director for the National Gay and Lesbian Task Force, an LGBT civil-rights organization, begs to differ—loudly. “Seven years ago Minnesota passed the first nondiscrimination trans-inclusive bill,” she says. “[Look at] states like that to [see] what we can do; it is quite the opposite from what Frank tells you. [He] does not have his finger on the pulse of the community.” Many activists further contend that any congressional neglect of transgender rights could have a trickle-down effect on state and local legislation.

Nor is it easy to amend legislation once it is passed. Chris Long, the states-issues organizer from the New York City-based AIDS advocacy group Housing Works, says, “New York passed [legislation similar to Frank’s version of the bill] four years ago, and we are still working to get [transgendered protections] included.”

Keisling says the transgender community is in no position to wait. “When a 21-year-old comes to us after losing her job because she was outed at work as trans, how can I tell them, ‘Oh, everybody cares; we just don’t have the votes.’ ”

More than 300 LGBT and AIDS organizations across the country have sparked a grassroots movement to stop the bill by urging Congress to vote against it—even if it poses a possible tradeoff in denying much-needed protection to the larger LGBT community. Opponents have formed coalitions—such as United ENDA, which has widely circulated a petition—and have urged gay allies to call their state representatives, lobby Congress and declare that legislative segregation among their already marginalized community is unacceptable. “The ‘T’ in ‘LGBT’ is not an add-on,” says Kevin Cathcart, executive director of Lambda Legal, a civil-rights organization for lesbians, gay men, transgender people, and people with HIV/AIDS.  “Our responsibility is to represent all constituents within the scope of our community.”

The only major LGBT group that does not support voting against H.R. 3685 and refused to sign United ENDA’s petition is the Human Rights Campaign (HRC), the nation’s largest gay-rights organization. Yet HRC vigorously supports a trans-included bill: Its advocacy and lobbying around the issue has included the “10 in 10 days” campaign, which encouraged people to each contact 10 friends about the issue. The community severely criticized and aggressively protested HRC’s position, which HRC executive director Joe Solmonese defended in a statement on the group’s website. Despite HRC’s general support of transgendered protection, he wrote, the group did not want to jeopardize key congressional relationships by endorsing the signing of the ENDA petition. “No matter how difficult it is to come under fire,” he added, “we know that turning our backs on our relationships with Congress is not an acceptable strategy for HRC. It would completely incapacitate us in the fight for a complete bill. Everything that has transpired in the past week, and everything that we will do going forward, reflects this basic understanding: if we remain outside of the legislative process, we have no hope of influencing it.”

The legislative process, however, threatens to obscure the crucial social- and public-health issues the bill means to address. Many studies have strongly correlated job and economic insecurity with incarceration and a rise in HIV infections. What’s more, the Centers for Disease Control and Prevention (CDC) has reported that some 27% of male-to-female (MTF) transgender people have tested positive for HIV infection. Infection rates among African American MTF people have reached 56.3%.

“Trans people are the most vulnerable,” says Sklar. “They earn an average income of $10,000 a year. Job discrimination is dangerous because this is their livelihood.” Long adds, “We know what happens when people cannot get a job:  They find other ways to access money—sex, drugs and [other illegal activity].”

On October 16, Keisling and representatives from other organizations took this message to a special closed session with members of Congress. “They were confused and want to do the right thing,” she says. “They don’t want to vote against a gay bill but don’t want to vote for a bill that no one wants, either, and ruin their relationships with people in the community.” Because of a confidentiality agreement, Keisling could not divulge who was present. But three days after the meeting, four Democrats, Rush Holt (NJ), Yvette Clarke (NY), presidential candidate Dennis Kucinich (OH) and Linda Sanchez (CA) went on the record that they will oppose the bill when it comes up for vote.

The other openly gay member of Congress, Tammy Baldwin (D-WI), told POZ that if a stripped version of the bill makes it to the floor, she will introduce an amendment including gender identity and gender expression. Baldwin said, “It is gratifying to see that conviction shared by so many people in all parts of the country.… This extraordinary opportunity to advance LGBT rights in America is proud evidence of democracy, in which the people decide what is possible.”

But ultimately, even if a trans-inclusive bill were to pass the House, and then the Senate, it is the president of the United States who would decide, with a signature, if it becomes federal law. Many consider that prospect unlikely in the current administration. “With 2008 being an election year, nobody is going to deal with this until 2009, so what is the rush?” Cathcart asks. “From now until 2009, we need to keep lobbying and communicating in hopes that Congress will be in better shape to vote on a stronger more inclusive bill. Why lower the bar now?”