A number of statewide LGBT groups this week expressed concerns about the religious exemption in the Employment Non-Discrimination Act. Four groups — FreedomOhio, Equality New Mexico, the Transgender Education Network of Texas and Wyoming Equality — now say they won’t support the bill with the current exemption.
Amber Royster, executive director for Equality New Mexico, said her organization won’t support the version of ENDA pending before Congress with the current religious exemption.
“We do not support the proposed religious exemption,” Royster said. “Thus, we do not support the current version of ENDA. We hope our elected officials will see this religious exemption for what it is — a license to discriminate against LGBT people — and decide to remove it.”
Donna Red Wing, executive director of One Iowa, also expressed concerns about the religious exemption and called more conversations about it. The organization wouldn’t outright say it no longer supports the version of ENDA pending before Congress.
“When we move to a place where a religious body can freely discriminate against a staff person in a non-ministerial/non-religious position — a janitor or groundskeeper, for instance — that is problematic,” Red Wing said. “Other protected classes do not have this added burden. One Iowa feels there needs to be more conversation around the nuances and the potential harm of this exemption.”
The Washington Blade polled more than 50 state LGBT groups this week on their position regarding ENDA with its current religious exemption. The language would continue to allow religious institutions, like churches or religious hospitals and schools, to discriminate against LGBT workers in ministerial and non-ministerial positions even if the bill were to become law.
The religious exemption in ENDA is broader than similar exemptions under Title VII of the Civil Rights Act of 1964 for categories of race, gender, religion and national origin.
The most common response from statewide LGBT groups — including Equality Illinois and Equality California — was that they continue to support ENDA, but oppose or have concerns about the bill’s religious exemption.
Including Equality Illinois and Equality California, 15 groups shared that view, including: Equality Alabama, Equality Florida, Equality Hawaii, Gender Rights Maryland, MassEquality, Outfront Minnesota, Equality Missouri, the New York-based Empire State Pride Agenda, Equality North Carolina, Basic Rights Oregon, the Tennessee Equality Project, the Tennessee Transgender Political Coalition and the D.C.-based Gay & Lesbian Activists Alliance.
Dana Beyer, who heads Gender Rights Maryland, noted current political realities in Congress when explaining her organization’s position in support of the legislation.
“We support the current ENDA,” Beyer said. “We also welcome the efforts being made to revise and narrow the exemptions, and hope that those efforts make it more likely that the House will pass the bill that has already passed the Senate. In an ideal world we’d have the same religious exemptions as Title VII, but it’s, unfortunately, no longer 1964.”
Four groups — FreedomOhio, Equality New Mexico, the Transgender Education Network of Texas and Wyoming Equality — said they won’t support ENDA with the current religious exemption in place, while three others — Equality Delaware, the Kentucky-based Fairness Campaign, One Iowa, and the Missouri-based PROMO — didn’t offer an official position on ENDA, but expressed concerns about the bill’s religious exemption.
A total of 11 groups had no comment or no immediate comment on ENDA: One Colorado, the Louisiana-based Forum for Equality, Equality Maryland, Equality Michigan, Equality Ohio, Equality Pennsylvania, South Carolina Equality, Equality Virginia, Vermont Freedom to Marry Task Force, Fair Wisconsin and Fairness West Virginia.
Groups that didn’t respond altogether were Alaskans Together for Equality, Equality Arizona, Georgia Equality, Indiana Equality, Equality Maine, Garden State Equality, the Oklahoma-based Equality Network, Equality South Dakota, Equality Texas, Equality Utah and Equal Rights Washington.
A number of national LGBT groups — including the Human Rights Campaign, Freedom to Work, the National Gay & Lesbian Task Force, the American Civil Liberties Union, the National Center for Transgender Equality, Lambda Legal — have said they continue to support ENDA because of the LGBT non-discrimination protections it affords despite any concerns about the religious exemption. But two legal groups — the National Center for Lesbian Rights and the Transgender Law Center — have dropped support for the bill altogether.
Many of these state equality groups are dependent on or have affiliations with national LGBT groups that are continuing to push for passage of the current version of ENDA. For example, the Human Rights Campaign is partnering with Equality Alabama as part of its $8.5 million, three-year investment in the Project One America initiative in the South.
Additionally, Beyer was named chair of the advisory board for Freedom to Work, a national group pursuing passage of ENDA in Congress that has touted the religious exemption as a way to gain Republican support for the bill.
The Washington Blade will keep this article open for additional or revised comments for state LGBT groups’ positions on ENDA and its religious exemption.
The statements from each of the equality groups that have responded to the survey from the Washington Blade follow:
“Equality Alabama strongly supports a comprehensive Employment Non-Discrimination Act — one free of loopholes and licenses to discriminate. Simultaneously, we also strongly support freedom of religion.”
“As we know all too well, little legislation comes from Washington that is perfect. Equality Alabama supports the passage of ENDA, but we are hopeful that the final legislation will protect all LGBT persons in the workplace.” — Ben Cooper, chair of Equality Alabama
EQCA supports the passage of the federal Employee Non-Discrimination Act, but we strongly oppose the broad religious exemption that has been attached to it.
“Ensuring that all American employees are judged on the quality of their work, not their sexual orientation or gender identity, is fundamental to achieving full equality. But that protection shouldn’t come with an asterisk or loophole, and that’s what this religious exemption is — a way to promise full protection without delivering it. This exemption undermines the value of ENDA and it must be fixed.” — Rick Zbur, EQCA executive director-elect
“One Colorado doesn’t have any comment at this time.” Jon Monteith, spokesperson for One Colorado.
Gay & Lesbian Activists Alliance
“GLAA has long supported ENDA. Our position was to support the best achievable bill, because we understood the value of strategic compromise — not as an end point but as a way station in the ongoing struggle for equality.”
“But here in DC, as in the marriage equality fight, we have successfully fought against overbroad religious exemptions. Of course religious groups enjoy protections in their core religious functions; outside that sphere is another matter.”
“It is time to push back against the religious bullies. Religious exemptions beyond those applying to discrimination under Title VII should not be accepted in ENDA.” — GLAA President Rick Rosendall
“Equality Delaware has not yet taken a position as a board on the religious exemption in the ENDA bill. However, our general position is that discrimination against LGBT people is wrong, and that includes discrimination against those who work for religious entities in non-ministerial roles.” — Equality Delaware chief Lisa Goodman
“While we are pleased with the progress and momentum behind ENDA, we are very concerned with the sweeping, unprecedented scope of the legislation’s religious exemption.”
“In the current version, ENDA’s religious exemption could provide religiously affiliated organizations – far beyond houses of worship – with a blank check to engage in employment discrimination against LGBT people.” — a Jan. 22, 2014 coalition letter to Rep. Ileana Ros-Lehtinen signed by Equality Florida
“It would depend upon how the exemption is worded, but, in principle, we would hopes that religious exemption language is removed before passage. Considering that religious beliefs were once used to deny women the right to vote, justify segregation and oppose interracial marriage, gutting anti-discrimination laws is a slippery slope that turn back time on anti-discrimination laws. We certainly hope for ENDA’s passage and, if it does pass with this language in tact, hope that judicial and legislative steps will be quickly taken to correct this free pass to discriminate.” — Don Bentz, executive director of Equality Hawaii
“We support the proposed federal Employment Non-Discrimination Act, which aims to prohibit workplace discrimination against LGBT Americans, but we strongly oppose including any exemptions that would give LGBT people less protection than other protected groups already enjoy under federal civil rights law.” — Organizational statement from Equality Illnois
“Equality is equality. Unfortunately, we start to diminish that when we make the kinds of exemptions we are seeing in this iteration of ENDA. One Iowa fully respects, appreciates and understands a religious organization’s right to follow the tenets of its own belief system. However, when we move to a place where a religious body can freely discriminate against a staff person in a non-ministerial /non-religious position–a janitor or groundskeeper, for instance–that is problematic. Other protected classes do not have this added burden. One Iowa feels there needs to be more conversation around the nuances and the potential harm of this exemption.” — Executive Director Donna Red Wing
“This exemption seems broader than the religious exemptions we’ve supported on local and statewide legislation in Kentucky. Still awaiting final analysis” — Chris Hartman, director of the Fairness Campaign
Forum for Equality
“We haven’t taken a position yet, we will be meeting next week to discuss. Sorry, at this point we have no position.” — Executive Director Sarah Jane Brady
“MassEquality supports the federal Employment Non-Discrimination Act, which aims to prohibit job discrimination against LGBT workers, as a modest first step in leveling the playing field for LGBT people and their families. However, we strongly oppose ENDA’s current religious exemption, which would provide LGBT people less protection than that afforded other protected groups under existing federal civil rights law. ENDA is about ensuring fairness and equality, both of which are undermined by an exemption that would result in second-class protections for LGBT people.” — MassEquality Executive Director Kara Coredini
“Equality Maryland has not taken a position on the current version of ENDA. If and when we do, I will let you know.” — Equality Maryland Executive Director Carrie Evans
Gender Rights Maryland
“We support the current ENDA. We also welcome the efforts being made to revise and narrow the exemptions, and hope that those efforts make it more likely that the House will pass the bill that has already passed the Senate. In an ideal world we’d have the same religious exemptions as Title VII, but it’s, unfortunately, no longer 1964.” — Gender Rights Maryland Executive Director Dana Beyer
“We will issue a response and official statement. We are just doing our due diligence. We have every intention of standing by the response we send to you as we consider this extremely important. and are fighting like hell for similar and broader protections statewide here in Michigan. Much respect for the work you are doing as this develops.” — Executive Director Emily Dievendorf
“OutFront Minnesota supports the proposed federal Employment Non-Discrimination Act, but we oppose including any exemptions that would give LGBT people less protection than other protected groups already enjoy under federal civil rights law.”
“Minnesota passed an LGBT inclusive human rights act in 1993 and it has worked effectively to protect LGBT people. New and broader religious exemptions to LGBT nondiscrimination laws would be a step backward.” — Outfront Minnesota Director Jean Heyer
“Equality Missouri supports the passage of the federal Employee Non-Discrimination Act, but we are strongly opposed the broad religious exemption that has been attached to it, the religious exemption is nothing more than a license to discriminate against LGBT people” — Field Director Caleb-Michael Files
“As it currently stands, we have not made a statement either in support or against the current version of ENDA. This isn’t so much to reflect the current controversy but rather the perception that it has a very limited chance of passing the House in any form at this time. If pressed on the religious exemptions, we would likely stand with EQIL, NCLR and the TLC in opposition to the religious exemptions, however our board has not taken up any position at this time. I wager the board would stand with those orgs mainly because the congressional representation from MO would not be persuaded to support ENDA, even with those broad exemptions, so why barter for support when it isn’t available.” — Executive Director A.J. Bockelman
Equality New Mexico
“We do not support the proposed religious exemption. Thus, we do not support the current version of ENDA. We hope our elected officials will see this religious exemption for what it is — a license to discriminate against LGBT people — and decide to remove it.” — Executive Director Amber Royster
Equality North Carolina
“While we oppose the religious exemption it is able to be removed down the line, we’re in a position in North Carolina where just don’t have the luxury of waiting for these protections. There are real-world problems that North Carolinians across the Tar Heel State face, including employment discrimination, so we do support employment non-discrimination as it stands and we will continue to push for it. We will also continue to advocate that religious exemptions will be removed in the future.” — Executive Director Christopher Sgro
Empire State Pride Agenda
“The Pride Agenda supports the swift passage of ENDA and belives that no one should be denied employment or fired from their job simply because of who they are. We also believe the religious exclusion should be consistent with the other protected classes and hope that the final bill is reflective of that and is signed into law soon.” — ESPA spokesperson Allison Steinberg
“Don’t have anything for you regarding national legislation at the moment – we’re working night and day working to make progress in Ohio.” — Communications Director Grant Stancliff.
“FreedomOhio believes ENDA can and must be strengthened by eliminating the overly broad religious exemption that permits employers to discriminate based on a person’s real or perceived sexual orientation. FreedomOhio cannot support a version of ENDA that legalizes discrimination in the workplace for non-ministerial workers.” — Executive Director Ian James
Basic Rights Oregon
“The effort to pass ENDA has been a decades-long struggle, and Basic Rights Oregon strongly support passage of ENDA and thanks Rep. Jeff Merkley (D-Ore.) for his leadership. We do have deep concerns about the special exemption that is currently in the bill, as it will result in discrimination against gay, lesbian, bisexual and transgender Americans. We are hopeful that the language will be modified to be consistent with legislation applied to other protected groups, rather than singling out LGBT people for disparate treatment.” — Executive Director Jeana Frazzini
“Sorry but we are deep in a legislative session right now and we haven’t had time to review the language and talk to our board about this.” — Equality Pennsylvania spokesperson Levana Layendecker
South Carolina Equality
“The board decided last night to not provide official comment at this time. We reserve the right to weigh in on this issue at a future date once we explore the topic.”
“ENDA has not been our focus this year. We have been a 100 percent focused on SC House bill 4025 in the state legislature which would have banned discrimination in South Carolina laws. Our bill did not contain any religious exemptions because we attempted to update existing human affairs laws which did not include them either. The session just ended but we plan to reintroduce the same bill for next session.” — Executive Director Ryan Wilson
Tennessee Equality Project
“Our position is similar to Equality Illinois. We support the bill, but we are obviously opposed to carving out exemptions for non-clergy positions in religious schools and charities. We’re supporting ENDA because we have no hope of enacting state-level job protections that forbid discrimination based on sexual orientation and gender identity. I get calls every month from people in Tennessee who have been fired, not hired, or denied a promotion because of their sexual orientation or gender identity.” — Chris Sanders, President of the Tennessee Equality Project,
Tennessee Transgender Political Coalition
They are currently in support of the existing ENDA. They’re not happy with the religious exemption, but they’re not going to oppose ENDA because of it. They have “no intention of withdrawing support from the current version.” — Secretary Marisa Richmond
Transgender Equality Network of Texas
“We are in agreement with Transgender Law Center and National Center for Lesbian Rights in that we do not support a bill with the current religious exemption included.”
“We are already seeing an increase of growth in RFRA (Religious Freedom Restoration Acts) around the country, and find Arizona’s SB1062 particularly notable if it becomes a trend.” — Executive Director Katy Stewart
“I don’t have an answer for you. I apologize that we will not be able to participate in the poll this time around.” Equality Virginia spokesperson Kirsten Bokenkamp
Vermont Freedom to Marry Task Force
“We’re not commenting on ENDA at this time.” — Board Chair Sheryl Rapée-Adams
“You might have heard that we have recently won marriage due to a federal ruling on Friday, and things have been busy as we are assisting clerks in Wisconsin with implementation. I will have to get back to you later about ENDA.” — Fair Wisconsin spokesperson Megin McDonell
Fairness West Virginia
“We’re not going to be able to meet your deadline. Typically we can respond faster to reporters for stories but many of our key people are out of reach right now. Best of luck with the poll, we look forward to reading what the results are.” — Fairness West Virginia spokesperson Carling McManus
“Wyoming Equality obviously supports ENDA and making this a reality is one of our top priorities. However, as the proposed bill reads we would not be able to support it due to the broad religious exemption. We believe in freedom of religion and would be supportive of similar wording used in Title VII, but this feels like a religious exemption that would allow discrimination to continue against the LGBT community. No other minority group is subject to such a broad exemption. For example, this exemption would allow a Catholic School to fire a janitor just because they are LGBT! We want to see opinions in the work place develop around hard work and dedicated employees not sexual orientation or gender identity; and equality should never come with a footnote, asterisk or a loophole.” — Board Chair Jeran Artery
Justin Peligri contributed to this report.
Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead
No political willpower to force vote or reach a compromise
Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.
Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.
In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.
If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.
“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”
The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.
Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”
“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process. We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”
Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.
“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”
A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.
Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”
Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.
The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.
Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.
“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”
Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.
For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.
Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”
“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”
But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.
No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.
Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.
“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”
Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.
Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.
Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.
To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.
A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.
“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”
But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.
D.C. bill to ban LGBTQ panic defense delayed by Capitol security
Delivery of bill to Congress was held up due to protocols related to Jan. 6 riots
A bill approved unanimously last December by the D.C. Council to ban the so-called LGBTQ panic defense has been delayed from taking effect as a city law because the fence installed around the U.S. Capitol following the Jan. 6 insurrection prevented the law from being delivered to Congress.
According to Eric Salmi, communications director for D.C. Council member Charles Allen (D-Ward 6), who guided the bill through the Council’s legislative process, all bills approved by the Council and signed by the D.C. mayor must be hand-delivered to Congress for a required congressional review.
“What happened was when the Capitol fence went up after the January insurrection, it created an issue where we physically could not deliver laws to Congress per the congressional review period,” Salmi told the Washington Blade.
Among the bills that could not immediately be delivered to Congress was the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, which was approved by the Council on a second and final vote on Dec. 15.
Between the time the bill was signed by Mayor Muriel Bowser and published in the D.C. Register under procedural requirements for all bills, it was not ready to be transmitted to Congress until Feb. 16, the Council’s legislative record for the bill shows.
Salmi said the impasse in delivering the bill to Congress due to the security fence prevented the bill from reaching Congress on that date and prevented the mandatory 60-day congressional review period for this bill from beginning at that time. He noted that most bills require a 30 legislative day review by Congress.
But the Evangelista-Hunter bill, named after a transgender woman and a gay man who died in violent attacks by perpetrators who attempted to use the trans and gay panic defense, includes a law enforcement related provision that under the city’s Home Rule Charter passed by Congress in the early 1970s requires a 60-day congressional review.
“There is a chance it goes into effect any day now, just given the timeline is close to being up,” Salmi said on Tuesday. “I don’t know the exact date it was delivered, but I do know the countdown is on,” said Salmi, who added, “I would expect any day now it should go into effect and there’s nothing stopping it other than an insurrection in January.”
If the delivery to Congress had not been delayed, the D.C. Council’s legislative office estimated the congressional review would have been completed by May 12.
A congressional source who spoke on condition of being identified only as a senior Democratic aide, said the holdup of D.C. bills because of the Capitol fence has been corrected.
“The House found an immediate workaround, when this issue first arose after the Jan. 6 insurrection,” the aide said.
“This is yet another reason why D.C. Council bills should not be subject to a congressional review period and why we need to grant D.C. statehood,” the aide said.
The aide added that while no disapproval resolution had been introduced in Congress to overturn the D.C. Evangelista-Hunter bill, House Democrats would have defeated such a resolution.
“House Democrats support D.C. home rule, statehood, and LGBTQ rights,” said the aide.
LGBTQ rights advocates have argued that a ban on using a gay or transgender panic defense in criminal trials is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or expression is to blame for a defendant’s criminal act, including murder.
Some attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.
In addition to its provision banning the LGBTQ panic defense, the Evangelista-Hunter bill includes a separate provision that strengthens the city’s existing hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats to be prosecuted as a hate crime.
LGBTQ supportive prosecutors have said the clarification was needed because it is often difficult to prove to a jury that hatred is the only motive behind a violent crime. The prosecutors noted that juries have found defendants not guilty of committing a hate crime on grounds that they believed other motives were involved in a particular crime after defense lawyers argued that the law required “hate” to be the only motive in order to find someone guilty of a hate crime.
Salmi noted that while the hate crime clarification and panic defense prohibition provisions of the Evangelista-Hunter bill will become law as soon as the congressional review is completed, yet another provision in the bill will not become law after the congressional review because there are insufficient funds in the D.C. budget to cover the costs of implementing the provision.
The provision gives the D.C. Office of Human Rights and the Office of the D.C. Attorney General authority to investigate hate related discrimination at places of public accommodation. Salmi said the provision expands protections against discrimination to include web-based retailers or online delivery services that are not physically located in D.C.
“That is subject to appropriations,” Salmi said. “And until it is funded in the upcoming budget it cannot be legally enforced.”
He said that at Council member Allen’s request, the Council added language to the bill that ensures that all other provisions of the legislation that do not require additional funding – including the ban on use of the LGBTQ panic defense and the provision clarifying that hatred doesn’t have to be the sole motive for a hate crime – will take effect as soon as the congressional approval process is completed.
D.C. man charged with 2020 anti-gay death threat rearrested
Defendant implicated in three anti-LGBTQ incidents since 2011
A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.
D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.
Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.
According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.
Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.
An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.
“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”
The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”
Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.
Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.
In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.
“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.
Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.
The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.
In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”
At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.
The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.
The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.
In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.
The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.
It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.
Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.
The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.
The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.
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