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Will Congress take up a comprehensive LGBT rights bill?

Idea gaining traction amid ENDA criticism

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National Equality March, gay news, Washington Blade
National Equality March, gay news, Washington Blade

LGBT advocates are calling for the introduction of a comprehensive LGBT bill in a subsequent Congress (Blade file photo by Michael Key).

A new idea is gaining traction for advancing LGBT rights after controversy over the stalled Employment Non-Discrimination Act: a  comprehensive federal non-discrimination bill.

As several LGBT groups have announced they would no longer support ENDA because of its broad religious exemption, the idea of a comprehensive bill stands in contrast to ENDA because it would address discrimination in areas other than the singular issue of employment.

It’s for that reason — and not just the religious exemption — that the New York-based LGBT group Queer Nation has urged for the rejection of ENDA in favor of a comprehensive bill that would institute non-discrimination coverage in a plethora of categories.

Andrew Miller, a member of Queer Nation, said in a phone interview with the Washington Blade that his organization doesn’t back any version of ENDA — either with or without the expanded religious exemption.

“If you believe, as I do, that LGBT Americans are equal in every way to our fellow Americans, then it makes sense to pass legislation that affords the same civil protections as our fellow Americans,” Miller said. “I think that strategy of incrementalism behind ENDA, telegraphs or signals that LGBT Americans are not equal to our fellow Americans. If we want full equality because we know that we are equal in every way to our fellow citizens, then that’s what we should be demanding.”

The content of a comprehensive bill isn’t clear as the idea is just beginning to take hold, but the general sense is the legislation would aim to eliminate anti-LGBT discrimination across the board and would be introduced in the subsequent Congress. The presence of an employment component would be contingent on the likely event that ENDA won’t pass the U.S. House this year before Congress adjourns.

But Miller said his organization has a more concrete view of what issues should be included in the legislation: housing, employment, public accommodations, credit and federal programs.

“I think that what it would be is a bill, a law, that would afford the same civil rights protections that all other Americans have to LGBT Americans,” Miller said. “Those protections are from discrimination in not just employment, but in housing and in public accommodations, in housing and credit and federal programs. Those are the categories that are covered by the Civil Rights Act of 1964. Gay people should be afforded all those protections themselves.”

Many national LGBT groups have already endorsed the idea of a comprehensive LGBT bill to address discrimination, including the Human Rights Campaign and Freedom to Work. The categories that Queer Nation enumerated (with the exception of federal programs) were along the lines of the categories that HRC President Chad Griffin envisioned for the legislation in an op-ed published in Buzzfeed that also explained the organization’s continued support for ENDA.

Ian Thompson, legislative representative for the American Civil Liberties Union, said his organization also backs the idea of a comprehensive bill as a means to institute “explicit, effective and, above all, equal protections in federal law” for LGBT people.

“The concept of a more comprehensive bill is something that we are supportive of, but what we want to ensure at the end of the day is that LGBT people have explicit, effective and, above all, equal non-discrimination protections in federal law,” Thompson said.

The idea of a comprehensive LGBT bill as opposed to an incrementalist strategy isn’t new. Gay Rep. Jared Polis (D-Colo.) has said for years he was considering an omnibus LGBT bill that would act as a symbolic measure. The grassroots group GetEQUAL also has called for a full civil rights bill for LGBT people.

Heather Cronk, co-director of GetEQUAL, said her organization has been speaking out for the need to pass comprehensive LGBT legislation since its inception.

“For too long, our movement has fought for piecemeal legislation,” Cronk said. “It isn’t what we need; it isn’t what we deserve. We’ve been talking about some kind of larger civil rights bill since we began four years ago. Whether that looks like an omnibus bill, or a collection of smaller bills that is passed at the same time, we don’t really know what it looks like. We just want to make sure that we’re fighting for it and putting that on the table.”

In an attempt to build support for a comprehensive bill, Queer Nation has called on House Minority Leader Nancy Pelosi (D-Calif.) and the eight openly LGB members of Congress to endorse the idea.

Drew Hamill, a Pelosi spokesperson, confirmed his boss supports the idea of a comprehensive bill in response to an inquiry from the Washington Blade.

“She supports such legislation and would want to work closely with the leading LGBT national organizations to see it become a reality in the next Congress,” Hammill said.

Spokespersons for four of the eight openly LGB members of Congress — Reps. David Cicilline (D-R.I.), Mark Takano (D-Calif.), Sean Patrick Maloney and Mark Pocan (D-Wis.) — said the lawmakers also support the idea of a comprehensive bill.

Scott Overland, a Polis spokesperson, said his boss “is committed to passing legislation to ensure that LGBT Americans have equal protection under the law in all of these dimensions.” He didn’t immediately respond to a follow-up question on whether that means support for a singular, comprehensive bill.

The remaining three — Kyrsten Sinema (D-Ariz.), and Mike Michaud (D-Maine) as well as Sen. Tammy Baldwin (D-Wis.) — didn’t respond to the Blade’s request for comment. Michaud is in the middle of a campaign to become the next governor of Maine.

The process for passing a comprehensive LGBT bill in Congress would be different than efforts to pass other bills with a singular focus because such legislation would likely be referred to multiple committees. That would be similar to the process leading to the passage of health care reform legislation, which was approved by five different committees in the House and Senate before being combined into one piece of legislation for President Obama to sign.

In the Senate, the piece on employment and education would likely mean a referral to the Health, Education, Labor & Pensions Committee and the piece on public accommodations would mean a referral to the Judiciary Committee, while the component on credit may mean a referral to the Finance Committee and the component on federal programs may send the bill to the Homeland Security & Governmental Affairs Committee.

Assuming the legislation introduced is favorable enough for lawmakers to seek to advance the bill, the most challenging piece may be credit because it’s an area where the history of discrimination against LGBT people isn’t as widely known.

Thompson said he would be “not at all surprised” if a comprehensive bill would be referred to multiple committees, dismissing the notion that referrals would hamper passage.

“I think what would be the first, important step in that is doing the education and the outreach to congressional offices to make sure that they have a very good understanding about why a proposal like this is needed, why its time has come,” Thompson said.

Another possible approach to enacting comprehensive legislation would be amending the Civil Rights Act of 1964 — which provides protections based on race, color, religion, sex or national origin — to include the categories of sexual orientation and gender identity. Such a move would ensure the religious exemption to discriminate against LGBT people would be the same as it is for other categories of people.

According to some LGBT advocates familiar with ENDA, other civil rights groups are wary of amending the Civil Rights Act of 1964 to include LGBT people because it would make the historic law seem too easy to change. Moreover, amending that law wouldn’t institute non-discrimination protections for LGBT people in housing because those protections are in the Fair Housing Act of 1968.

Ayofemi Kirby, a spokesperson for the Congressional Black Caucus, said she “can’t speak” to whether lawmakers in her caucus would support that idea because that discussion hasn’t taken place, but noted a number of members of her caucus support ENDA.

A more likely scenario for the bill would be an amalgamation of other LGBT non-discrimination bills combined into one piece of legislation.

For example, the employment piece could consist of the version of ENDA with the narrower religious exemption that Polis introduced as a resolution before the House Rules Committee following controversy over the bill in a possible attempt to start a discharge petition on the legislation. The piece related to education may be the Student Non-Discrimination Act, legislation that would prohibit harassment and discrimination against students in K-12 schools.

Another question is whether President Obama would make the push in the final years of his administration to pass a comprehensive bill. Despite the progress seen on LGBT issues under his administration and strongly articulated support for legislation to end discrimination in the workforce, Obama has made no announcement in support of a comprehensive bill.

White House Press Secretary Josh Earnest declined to commit support when the Washington Blade asked about such legislation earlier this month, saying, “We’d consider it…but not I’m personally familiar with it.”

GetEQUAL’s Cronk said an endorsement from Obama of a comprehensive LGBT bill “would be helpful” in generating additional support for the bill.

“I think that would be a very core part of his legacy would be to go beyond advocating for things that other people have put on the table,” Cronk said. “I think it would be very powerful for President Obama to say, ‘Look, I endorse full equality for LGBT people, and this is what I mean by that.'”

Still, not every LGBT organization is offering a ringing endorsement of a comprehensive bill as the way to advance LGBT rights.

Stacey Long Simmons, policy and government affairs director for the National Gay & Lesbian Task Force, was non-committal about backing a singular bill, but insisted the goal should be comprehensive protections.

“While tackling employment discrimination is extremely important, it is but one piece of a much bigger, more wide-ranging set of changes needed to deliver real freedom and justice for all LGBTQ people,” Simmons said. “These changes include ending discrimination in housing, health care, education and in our democracy. In other words, a 360 approach that helps to create a nation where we all can equally access the promise of America. We care less about whether it’s done in one comprehensive bill than getting it done comprehensively.”

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6 Comments

6 Comments

  1. El Dorado

    July 29, 2014 at 11:23 pm

    Why do people who supposedly speak for our movement live in such a fantasy world? Queer Nation for example says we should demand for a comprehensive people because of our beliefs in equality. We can’t even get a fair up and down vote on ENDA, so you think a bill that would expand our rights and equality further under the law would be easer to pass? Stop living in a bubble before it pops you back into reality. Homophobia hasn’t been defeated. It’s still out there and isn’t going to lie down and die easily. Hell, racism still hasn’t gone away despite all the advances under the law for race. Nice little speeches on being on the right side of history mean nothing to those that oppose our freedom!

    It’s nice to speak in terms of what our beliefs on fairness and equality are but how far is a majority of Congress let alone a sitting President willing to endorse those beliefs in our rights into law? We’ve been down this path before. I recall a bill once being discussed in Congress to protect us in Housing. A conservative congressman griped that his mother-in-law shouldn’t have to rent to Sister Boom Boom of the Sisters of Perpetual Indulgence. Some of you may recall this group of queer men in San Francisco who dressed up as nuns and marched in gay pride parades? Now, those were just queens having fun.

    I can imagine the push back from social conservatives on renting to Transgender people or having gay couples stay in public accommodations owned by Christian conservatives. It’s hard enough for them to accept working with openly GLBT people in secular businesses but when you get into the realm of them having to be your landlord or host, having you do god knows what on their property, you really will push boundaries they will oppose greatly.

    Rather than ram a major change like this through Congress, like we did when we added Transgender people to ENDA, you should first test the waters and line up solid support from enough people in Congress to pass the legislation. It sucks wasting our lives waiting for what we know should be a know brainer, but you’re dealing with people who are not fair, don’t see this as the right thing to do and aren’t easily going to be swayed to endorse it. Do your homework rather than waste yet another round of a bill that is going nowhere!

    The piecemeal approach is an attempt to at least get something like employment into federal law before tackling issue that are even more of a challenge to get wide acceptance on.

  2. brians ions

    July 30, 2014 at 6:04 am

    “I think that what it would be is a bill, a law, that would afford the same civil rights protections that all other Americans have to LGBT Americans,” Miller said. “Those protections are from discrimination in not just employment, but in housing and in public accommodations, in housing and credit and federal programs. Those are the categories that are covered by the Civil Rights Act of 1964. Gay people should be afforded all those protections themselves.”
    =============================================================
    Yes, but SEPARATE is so NOT EQUAL.
     
    And it can’t be truly “comprehensive” AND effective immediately unless it is attached to America’s best-known, already tested and well-settled civil rights laws — which DOJ and EEOC lawyers know like the back of their hands. They’ve been enforcing the ’64 and ’68 Civil Rights Acts for going on 50 years after all.
     
    The 1964 Civil Rights Act (Title II/public accommodations and Title VII/Equal Employment, esp.) and its related update, The 1968 Civil Rights Act (Fair Housing) need only have four words added to them (“sexual orientation and “gender identity”).
     
    The simple addition of FOUR WORDS to those two laws would be a monumental achievement for all time.
     
    And that is a lot easier to persuade congress to do. Why can’t that be handled by one bill?
     
    BTW, the EEOC has already ruled (unanimously) that the existing “sex” discrimination prohibition in Title VII *INCLUDES* sexual identity and transgender status.
    **See the Blade’s coverage, April, 2012**…
    http://www.washingtonblade.com/2012/04/24/historic-eeoc-ruling-protects-trans-workers-from-discrimination/
    So that specifically-stated trans inclusion should not be such a ‘hard sell’ to Congress — if we utilize America’s existing ’64 Civil Rights Act.
     
    It would be great to see ACLU, HRC and Get Equal get behind those essential and EQUAL-treatment-for-LGBTs updates to those two prestigious civil rights laws.
     
    Introduction of such a bill some time after SCOTUS hears a final Marriage Equality appeal, if, as is probable, in its next term, too, might have the added advantage of good timing with a growing buzz/ anticipation favoring LGBT civil rights.
     
    A subsequent or same-track separate bill– likely involving more details — can then be crafted for fair credit, lending and financial institution discrimination as well.
     
    That’s a doable WIN-WIN-WIN scenario lots of us can unite behind. It would likely motivate us more to get the House gavel back in Nancy’s hands again this fall. And what a crowning achievement it could be for the president as well.
     

    • El Dorado

      July 30, 2014 at 11:27 pm

      Damn, you are obsessed with our rights under the law being added to the 1964 Civil rights act. You’re the first I’ve heard to think that achieving the same ends through a separate law makes it separate but NOT equal. If the rights under a law are the same as the rights under Title VII then they are equal baby. I’m not offended or feel any less equal simply because we don’t realize our rights under Title VII but through some other legislation.

      Frankly, other than you who cares how we codify our rights under Federal laws as long as it happens? No need to take it to such ridiculous extremes. You’re likely the type that would oppose legislation unless it were included under Title VII which is insane. I swear if activists derail legislation again due to some silly concept like this they deserve to have nothing.

      • brians ions

        August 1, 2014 at 12:39 am

        If the rights under a law are the same as the rights under Title VII then they are equal baby. I’m not offended or feel any less equal simply because we don’t realize our rights under Title VII but through some other legislation. – El Dorado
        ======================================

        No. You’re very much mistaken about that, Mr. Dorado ;), as you assume a separate bill will be “the same” as Title VII (employment discrimination) and Title II (public accommodations… discrimination by hotels, restaurants, retail stores, etc.).

        Like good medicine, limiting ourselves to simple, doable legislation that is both SAFE (politically, esp. for the Republican votes Pelosi and Reid need to attract) and EFFECTIVE (ready to protect us from day one without ‘new law’ court challenges) is the way to go.

        Both the ’64 and ’68 laws have been well-tested in the courts and well-argued by DOJ and EEOC lawyers. So simply adding the words, *sexual orientation* and *gender identity* to those laws makes them easier to enforce for LGBTs from the start.

        Unless we have overwhelming Dem majorities as happened in the 111th Congress (Jan 2009 – Jan 2011) any new “omnibus” bill will be amended to nothing-worth-having as happened with ENDA in the Senate (then strengthened by SCOTUS/Hobby Lobby).

        Conversely, that’s the beauty of simply adding FOUR WORDS to the two, EXISTING civil rights laws that have been around for 50 years, and 46 years, respectively. The fact that the ’64 Civil Rights Act (public accommodations & employment non-discrimination) and its ’68 counterpart for fair housing are popular, accepted and well-settled laws is likely to prevent ANY other changes to them in Congress.

        Moreover, votes for simple changes to existing laws are easier for Republicans and Blue Dog Dems to justify to their ultra-conservatives back home, too.

        Look, that’s all we can reasonably expect to get out of the likely next Congress anyway. Keep it simple/ stupid. It can’t be capable of being dissed and labeled as a radical, LGBT/ ‘gay agenda’ bill. And at the end of the day, it has to be reasonably bipartisan.

        Make it too comprehensive or making it sound too ‘big government boot-heeled’ will be a deal-killer for lots of Republicans. We should avoid descriptions like *omnibus*, e.g.

        And trying to add fair lending/ banking to an ‘omnibus’/ ‘comprehensive’ bill would be a prescription for legislative disaster! Banks, credit unions, national and state Chambers of Commerce, would all unite to kill such a overreaching bill. Maybe even big labor would oppose it too. Fear of new, invasive government regs make for strange bedfellows.

        New, separate legislation that imposes new, separate regulations on any businesses, esp. small and medium businesses, is likely to give them and their congressional representatives and senators tons of heartburn.

        In turn, that would likely threaten all that can be achieved by simply using the existing ’64 & ’68 Civil Rights Acts for limited– but still very powerful– employment, public accommodations and housing civil rights protections.

  3. Todd Tif Fernandez

    July 31, 2014 at 2:12 pm

    Over 250 organizations have taken The Pledge for Full LGBT Equality – calling for a one-bill, full-equality solution. This idea is 5 years in the making. And the time is now. http://equalitypledgenetwork.weebly.com/the-equality-pledge.html

    • brians ions

      August 2, 2014 at 2:39 am

      The idea is also 5 years in the FAILING, then, too.
       
      That’s because a separate and unequal, “omnibus” bill is designed to tell LGBT *DONORS* what they want to hear, rather than craft simple changes to existing law that can actually become effective civil rights protection for LGBT people.
       
      Some of these groups are grasping at what they must know are sham, impossible-to-pass legislative proposals to use for their own, self-serving fundraising. Worse still, that disempowers the overall cause of LGBT civil rights, too.
       
      If LGBT voters and our lobbying groups keep looking like naive losers, legislators — both federal and local — will treat us like naive losers.
       
      Oh, many LGBT-friendly politicians will give us a wink and a nod, and speak at LGBT events integral to everyone’s fundraising game. They will certainly take any LGBT money offered for such sham efforts.
       
      But those politicians are not going to seriously work to gather sufficient congressional votes to pass such “omnibus” legislation. Why? Because congressional members’ votes for such sweeping legislation– especially with a “For LGBTs Only” label slapped on it– simply aren’t there.

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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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