LAMBDA issued a legal analysis that ENDA without gender identity, as I have argued before, means that lesbians and gay men who are gender transgressive will not be protected.

Preliminary Analysis Summary:

* As a point of clarity for the community: The recent version is not simply the old version with the transgender protections stripped out —but rather has modified the old version in several additional and troubling ways.

* In addition to the missing vital protections for transgender people on the job, this new bill also leaves out a key element to protect any employee, including lesbians, gay men and bisexuals who may not conform to their employer’s idea of how a man or woman should look and act. This is a huge loophole through which employers sued for sexual orientation discrimination can claim that their conduct was actually based on gender expression, a type of discrimination that the new bill does not prohibit.

The ACLU is also arguing that Congress maybe creating a loophole that will in the longterm be incredibly destructive.

Even though gender identity and sexual orientation are two different things - many people who have changed gender are not gay - leading gay rights organizations refused to abandon transgender people even if it meant delaying passage of a landmark bill they have sought for more than a decade.

That’s because discrimination against gays and lesbians often is based on their refusal to conform to gender norms, advocates said.

“A lot of the discrimination against people who are gay or lesbian is coming less from hostility to a specific sexual orientation as from the expectation of what it means to be a man or what it means to be a woman,” said Christopher Anders, a legislative counsel for the American Civil Liberties Union who has worked on the anti-discrimination bill for years.

“The more masculine a gay man is, or the more feminine a lesbian is, the less the likelihood of discrimination,” Anders said.

The worry among gay-rights lawyers is that even if there is a statute banning discrimination on the basis of sexual orientation, employers could point to straight-passing gay employees as evidence that they are not discriminating - even if they refused to hire or promote a gay person whose dress or mannerisms did not fit gender stereotypes.