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Pelosi hints at ‘plan’ for ENDA as supporters stand by bill

Many LGBT groups abandon measure over religious exemption

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Nancy Pelosi, ENDA, United States House of Representatives, California, gay news, Washington Blade

House Minority Leader Nancy Pelosi said the Senate version of ENDA is better than nothing. (Washington Blade photo by Michael Key)

After prominent LGBT advocacy groups withdrew their support for the Employment Non-Discrimination Act this week over its religious exemption, a number of other organizations and lawmakers who continue to support the bill are reasserting its potential to extend protections to LGBT workers.

During her weekly news conference, House Minority Leader Nancy Pelosi (D-Calif.) suggested she was still on board with ENDA by insisting the Senate-passed version is better than nothing.

“When you’re an advocate, 100 percent is your goal,” Pelosi said. “When you have to make a vote, the bill that we have is one that passed the Senate in a bipartisan way. I think that has a big value, and if we were able to pass it, send it to the president and get it on his desk.”

Pelosi, considered a strong supporter of the LGBT community, wouldn’t explicitly say whether she would vote for ENDA, despite repeated questioning from the Washington Blade and the Huffington Post, but maintained she’s “in consultation” with members and LGBT advocates and hinted at a plan that she wouldn’t convey at this time.

“Do we want to give up on this?” Pelosi said. “Because we have some Republican co-sponsors on the bill, overwhelming sponsorship among the House Democrats. We have an opportunity there. Or we can go to a place where we might not have Republican co-sponsors without the clause.”

On Tuesday, five major legal groups that work on LGBT advocacy issues and the LGBT labor group Pride at Work announced they were withdrawing support for ENDA over the religious exemption as the National Gay & Lesbian Task Force Action Fund announced it now opposes the bill.

The Human Rights Campaign, the National Center for Transgender Equality and Freedom to Work still support the version pending before Congress, but said they welcome a narrower religious exemption.

But the withdrawal of support complicated the chances of passing a version of ENDA in the Republican-controlled House, which was already an uphill task. House Speaker John Boehner (R-Ohio) has repeatedly said he opposes the legislation.

Throughout her remarks, Pelosi acknowledged her objections to the religious exemption, calling it a “conscience clause” because she doesn’t know what to call language with which she doesn’t agree.

Like many others who’ve now expressed concerns about ENDA, Pelosi said the U.S. Supreme Court ruling in the Hobby Lobby case, which allows closely held corporations to deny contraception coverage for religious reasons, had an impact on her thinking on ENDA.

“Before the court decision, I would say, I would have voted for the bill as I celebrated its passage in the United States Senate because it’s a giant step forward,” Pelosi said. “Again, not what we want, but what we could get passed, and that’s what legislation is.”

Pelosi also insisted that votes in the House Democratic caucus for ENDA without a religious exemption are present, so the only question is whether Republicans and the Senate can pass a revised bill.

“Our Democratic votes are solid with or without the clause, so I just want to get Republican votes right now, or else win the election and then have a bill, but you still have to deal with 60 votes in the Senate and that’s hard for people to understand, but that is the case,” Pelosi said.

Speaking about the religious exemption, Pelosi told the Blade she has a plan, but wasn’t in a position to convey at the moment any information about it.

“I have a plan,” Pelosi said. “I’m not going to tell you right now what it is, because this is really important to me.”

According to The Huffington Post, House Democrats have begun talks about reintroducing ENDA with a narrower religious exemption to appease LGBT groups that bolted from the bill. Sources have told the Blade about the possibility of attaching ENDA to an appropriations bill in the Senate for the House to pass as a larger package.

Tico Almeida, president of Freedom to Work, praised Pelosi’s leadership on ENDA, saying he welcomes plans to push forward on LGBT protections.

“Leader Nancy Pelosi is an outstanding champion for LGBT Americans and it’s great that she and our allies in the House are creating plans to continue the fight against those narrow-minded politicians who are blocking LGBT workplace protections from getting a simple up or down vote in Congress,” Almeida said. “We want those plans to include a narrower religious exemption with absolutely no Hobby Lobby loopholes, and we want to keep pushing forward for a long overdue vote on LGBT workplace protections.”

Other supporters of ENDA are reasserting the importance of the legislation, despite the withdrawal of support from LGBT advocates.

In a statement to the Blade, Sen. Tammy Baldwin (D-Wis.), the only openly LGBT member of the U.S. Senate, emphatically said she remains a supporter of ENDA and will continue to fight for its passage.

“I’ve been fighting this fight long enough to know that no bill is perfect, but we found common ground to prohibit workplace discrimination against LGBT Americans simply because of who they are or who they love,” Baldwin said. “Every American deserves the freedom to work free of discrimination and I will continue to call on the House to put progress ahead of politics and give the Senate-passed ENDA bill an up or down vote because this legislation provides workplace protections that millions of LGBT people deserve and need today.”

Spokespersons for Republicans Mark Kirk (Ill.) and Rob Portman (Ohio), who voted for the bill in the Senate, also maintained they continue to support the bill. The office of Sen. Susan Collins (R-Maine) didn’t respond to a request to comment.

“Sen. Kirk has consistently been a vocal supporter of the LGBT community and will continue to back ENDA and the protections it affords countless Americans,” said Danielle Varallo, a Kirk spokesperson.

On Wednesday, the Third Way, a centrist group that supports the advancement of LGBT rights, delivered an advance copy of a memo to the Blade titled, “Don’t Abandon ENDA,” which urges advocates not to reject the legislation over the religious exemption. It’s written by Lanae Erickson Hatalsky, Third Way’s director of social policy and politics; and Sarah Trumble, Third Way’s policy counsel.

“While it is understandable that many Americans — gay and straight — feel worried about the right wing’s ever-expanding claims to opt out of laws based on religious liberty, ENDA’s religious exemption is not the problem, and abandoning ENDA in order to protest it is not the solution,” the memo states.

According to the memo, whether or not ENDA contains a religious exemption, religious organizations could still discriminate against LGBT workers if the organization deems they violated a tenet of the organization’s religion because Title VII of the Civil Rights Act of 1964 allows religious organizations to discriminate on the basis of religion. That means a religious organization could terminate for religious reasons a male employee if he decided to date or marry another man, the memo says.

“It is unlikely a male gay janitor who worked for a religious organization would feel better if his employers fired him for deciding to openly date or marry another man than if they fired him for being gay,” the memo says. “While that difference matters, it is not enough to throw the ENDA baby out with the bathwater.”

Meanwhile, Pelosi said the continuing debate over whether there should be LGBT non-discrimination protections enshrined into law is baffling to her.

“I can’t even believe that it should even be necessary to still need such a bill, but it is, and in states where it exists, it has not had any of the consequences that Speaker Boehner has said — job killer, whatever, this, that and the other thing,” Pelosi said. “No. It has worked very well. We want it be a national law, and so we’re going to carefully review what the options are.”

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7 Comments

7 Comments

  1. brians ions

    July 10, 2014 at 7:33 pm

    “According to the memo, whether or not ENDA contains a religious exemption, religious organizations could still discriminate against LGBT workers if the organization deems they violated a tenet of the organization’s religion because Title VII of the Civil Rights Act of 1964 allows religious organizations to discriminate on the basis of religion. That means a religious organization could terminate for religious reasons a male employee if he decided to date or marry another man, the memo says. ”
    ========================================
     
    Hmmm. I think it’s safe to say that scary memo is Third Way’s ‘money shot’ for LGBT donors. Plus “let’s keep the LGBT-donors-in-line for Dems, HRC, etcetera, etcetera. ROTFL!
     
    Hey, WTF are you ungrateful LGBTs complaining about?!?!
     
    We’ve got ‘support ENDA’ letters all ready to go out for our various 2014 campaigns! Dems or progressive GOPs… it doesn’t really matter. If you’ve have a donation check, we’ve got a group custom-made for all LGBT donors– even Log Cabin-ers!
     
    Don’t you understand? ENDA is our cash cow for the ’14 election cycle. And it’s ALL for YOUR benefit, donchyaknow. Don’t bite the hand that feeds you.
     
    Whatever you LGBTs think you should do– now is not the ‘right time’ to go asking the Congress for the full panoply of rights recognized for other minorities under Title VII of the 1964 Civil Rights Act.
     
    Move along. There’s nothing to see in that law, except real scary stuff. We hear that if you demand Title VII rights, it will threaten Marriage Equality itself. Do you ingrates want to be responsible for that?
     
    Do NOT trust your lyin’ eyes! Our Third Way policy lawyers know way better about this stuff than you inexperienced LGBT voters.
     
    Besides, we gave you DADT repeal… and now, you almost have Marriage Equality. Why are you LGBT folks still so uppity?
     
    Look. Just wait a little while longer, until you see our direct mail campaign for ENDA. We’re all sure you’ll want to continue your generosity to our common causes.

    • El Dorado

      July 12, 2014 at 1:11 am

      I have no doubt our enemies are more happy to see us at odds with each other over this legislation since we do a nice enough job of derailing the legislation on our own.

      If they really thought the religious exemption in Hobby Lobby wins the day for them, then why would Boehner hold up a fair up and down vote in the House? Another rallying cry for donors or actually fear they would lose with any form of ENDA as law?

      Nothing stops the religious conservatives from going to court if ENDA becomes law to claim that it does not apply to them or their group based on this ruling. More litigation and an endless cultural war. But hey, at least we aren’t being put into jail by corrupt homophobic police and beaten like in Russia. Trying to say that barring gays from discrimination at work infringes on religious liberty is a tough case to make if you’re in a secular business.

  2. EL Dorado

    July 10, 2014 at 9:24 pm

    If Pelosi is such a strong supporter of this bill, she should have done more to get it on the House floor for a vote while she was Speaker. Had she and Reid acted back then we may have had ENDA as law by now. Instead They squandered the opportunity, making endless excuses why they couldn’t vote on the bill, on the pretext that after the election that lose them control they would be able to focus on it. You can never and should never take anything for granted.

    Pelosi and Reid let us down when they had the most opportunity to act on this important legislation with lip service and I won’t forget it. Now under Boehner the bill can’t even get a free standing fair up and down vote. It’s being held hostage.

  3. Lonaldo Lopezington

    July 11, 2014 at 5:46 pm

    This Botox-faced monster has a secret plan for ENDA so awesome she can't tell us about? I call bullshit. Pelosi is a two-faced LIAR who will say anything to get LGBTs cheer for the Democrats. Remember when she promised to lead the impeachment of Bush if we just voted for Democrats in 2006? SHE IS A PROVEN LIAR. And what makes me most sad is how so many fags and dykes will fall for her lies yet again because she's a Democrat. It's no wonder queer youth are killing themselves. Look at what passive bitches queer adults in this country are.

    • El Dorado

      July 12, 2014 at 1:00 am

      I’m not pleased with Pelosi’s record on ENDA but it’s better than the GOP record on it! Politicians typically lie. At least we ended DADT and got Hate Crimes Protections while she was in control. Her excuses on ENDA not coming up for a vote were lame and inexcusable. But gays like Barney Frank aided and abetted and Transgender people opposed the bill when they weren’t included in it.

      It’s not like we have much choice other than to work with the people in power and try to make the best of it.

      I hardly think queers are passive bitches though. A people united in a common cause can be a formidable force. Stonewall riots weren’t lead by passive bitches. The assassination of Harvey Milk and unjust verdict for his murderer brought us out in the streets to riot against the police. Groups like ACT UP proved that when push comes to shove we will be as aggressive as it takes to survive when elected officials and the medical establishments refuses to take action to save our lives.

      Make no mistake that it’s our tenacity and refusal to give up that has resulted in all we’ve achieved thus far. It’s bullying, lack of support and a sense of being alone without hope that contributes to gays committing suicide. It actually takes a lot of courage to be openly queer and keep going despite everything in your world against you.

  4. Sloan Wiesen

    July 12, 2014 at 4:49 am

    We all need to call our members of the House AND Speaker Boehner's office at 202-224-3121 and tell them to pass ENDA now.

    Our community needs to stop letting the perfect be the enemy of the good. Millions of people would be protected from job discrimination by THIS VERSION of ENDA. Should those millions of us without protection in 29 states be left behind in pursuit of something better — something which is even less likely to come until ENDA has first become the law of the land? Should the 1964 Civil Rights Act have been blocked because it didn't protect against age discrimination, or discrimination based on sexual orientation or gender identity, or because it didn't include the Americans with Disabilities Act? No, its passage made those later advances possible.

    On health care, should there have been no health care reform at all without a single payer system, or without a public option? Should we have just left millions of people with pre-existing conditions vulnerable and uninsured and open to bankruptcy if they got sick, just because we could pass a good bill, but not a perfect bill?

    An all-or-nothing ideological mentality is our greatest adversary here. There are well-intentioned people who insist that NO law is better than a law that would protect millions of LGBT Americans. Generally, these are the misguided folks who end up leaving everyone behind in the name of leaving no one behind.

    The time has come to pass ENDA with broad bipartisan support. Religious liberty and equal rights are twin values that go together. It's time to protect millions of LGBT Americans from unfair job discrimination, and we CAN do it. Call Congress at 202-224-3121 and tell them to Pass ENDA Now. Just keep calling, and getting all your friends to call, until, finally, at long last, non-discrimination for our community is the law of the land.

    • brians ions

      July 15, 2014 at 10:48 am

      Sloane, I understand the desire of many– especially that of transgenders– to pass THIS bad ENDA bill now– irrespective of the long-term cost to LGBT and ALL civil rights. But setting new and bad legislative *PRECEDENT* matters.
       
      Every civil rights lawyer understands the danger of making bad law a precedent for both courts and for future legislative action by civil rights opponents. It is bad civil rights legal precedent that is LGBT’s greatest adversary at this point in time.
       
      Republican lawyers, especially– whose majority is still generally opposed to recognizing LGBT civil rights on an equal footing with all other protected minorities under Title VII of the Civil Rights Act– see an opportunity here. That is why a number of Republicans are now happy to praise this bad ENDA bill, with its new, broad religious exemption. They are only too happy to codify discrimination– posing as religious belief– into any federal law.
       
      Non-discrimination protections for ALL LGBTs are best handled by first amending Title VII of the Civil Rights Act to include LGBTs, using specific language. Then, other protections for housing, banking and credit, etc. can then be easily passed by Congress.
       
      This bad ENDA bill should never become law.

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Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead

No political willpower to force vote or reach a compromise

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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.

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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

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New fencing around the Capitol following the Jan. 6 insurrection prevented some D.C. bills from being delivered to the Hill for a required congressional review. (Blade file photo by Michael K. Lavers)

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.

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D.C. man charged with 2020 anti-gay death threat rearrested

Defendant implicated in three anti-LGBTQ incidents since 2011

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shooting, DC Eagle, assault, hate crime, anti-gay attack, police discrimination, sex police, Sisson, gay news, Washington Blade

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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