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What does Republican Senate takeover mean for LGBT issues?

Fears of inaction may prompt ENDA move in lame duck

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Republican Party LGBT, United States Senate, Tom Cotton, Shelley Moore Capito, Mitch McConnell, Mike Rounds, gay news, Washington Blade
Republican Party LGBT, United States Senate, Tom Cotton, Shelley Moore Capito, Mitch McConnell, Mike Rounds, gay news, Washington Blade

From left, Rep. Tom Cotton (R-Ark.), Rep. Shelley Moore Capito (R-W.Va.), Sen. Mitch McConnell (R-Ky.) and former Gov. Mike Rounds (R-S.D.) are responsible for Republican gains in the U.S. Senate. (Photos public domain)

When the polls closed on Tuesday, the Republican takeover of the U.S. Senate made clear further advancement of LGBT rights in Congress became a lot more complicated — if not totally put on ice.

Shortly after 11:20 pm, the Associated Press reported Republicans won control of the Senate — presumably clearing the way for Sen. Mitch McConnell to become Senate Majority Leader — by picking up seats in Iowa, North Carolina, Colorado, Arkansas, West Virginia, Montana and South Dakota. Additionally, media outlets projected Republicans would win about 10 seats in the U.S. House.

Gregory T. Angelo, executive director of the Log Cabin Republicans, said the GOP gains will be a test for LGBT groups on whether they’re willing to work in a bipartisan fashion in the 114th Congress.

“This is really a time of choosing for LGBT advocates on the left,” Angelo said. “Do you support the left agenda, or do you actually support equal rights for Americans? Those who fall in the latter category are going to be the ones who are going to be come to the table with Republicans and find solutions, ways to pass things, like employment protections for LGBT individuals, that also reach consensus among Republicans.”

Angelo said he’ll meet with Log Cabin’s board of directors in January to discuss priorities, but one area of interest for which he’s seen a “tremendous appetite” among Republicans on Capitol Hill — even if they’re not on board with other pro-LGBT initiatives — is confronting human rights abuses against LGBT people overseas.

One bill that LGBT advocates may continue to push is the Employment Non-Discrimination Act, legislation that would bar employers from engaging in anti-LGBT bias in the workplace. There’s also interest in a comprehensive civil rights bill, which has been endorsed by the Human Rights Campaign, which would institute LGBT protections in employment, public accommodations, housing, credit, education and federal programs.

But Republican control may put the kibosh on these bills in the upcoming Congress, let alone versions of the legislation sought by LGBT advocates that would narrow the religious exemption along the lines of Title VII of the Civil Rights Act of 1964.

Jeff Cook-McCormac, senior adviser to the pro-LGBT Republican group American Unity Fund, nonetheless said he sees a way forward if an “authentically bipartisan strategy” is applied.

“Instead of being contentious, we’re going to have to meet Republican legislators where they are and engage in thoughtful conversations about the time in which they have the level of comfort to move legislation forward,” Cook-McCormac said. “I think it presents both new challenges and new opportunities for the movement to advance these issues.”

An important part of this strategy, Cook-McCormac said, is making sure Republican members are carrying bills of interest to the LGBT community in consultation with Democratic allies in Congress.

“With regard to advancing the ball forward on an issue that garners broad bipartisan support like non-discrimination, I think there will be an increasing level of interest,” Cook-McCormac added.

Even with Democratic control of the Senate, the current Congress didn’t yield much pro-LGBT legislation. A version of ENDA passed the Senate on a bipartisan basis last year, but the House Republican leadership never brought up the measure.

The one exception to the inaction on LGBT legislation was reauthorization of the Violence Against Women Act, which included non-discrimination protections for victims of domestic violence based on sexual orientation and gender identity.

Jerame Davis, executive director of the LGBT arm of the AFL-CIO known as Pride at Work, predicted more of the same inaction on LGBT legislation when Congress reconvenes in January thanks to Republican victories on Election Day.

“I think it means more gridlock and no movement on LGBT issues in Congress,” Davis said. “We’ve been, as you know, waiting for something akin to the Employment Non-Discrimination Act to pass Congress for over 30 years and with a Republican-controlled Senate, we’re not likely to see movement. In fact, the last time that ENDA made any movement was in the Senate, and the Republican takeover means that bill is certainly dead in that house of Congress.”

With movement on pro-LGBT legislation in question, advocates may be looking elsewhere in arenas other than Congress to advance LGBT rights.

That includes action from Obama, whom advocates are pushing to lift the ban on transgender service in the U.S. military, and the courts, which are still issuing decisions on marriage equality and may soon interpret existing civil rights law to bar workplace discrimination based on sexual orientation.

Davis said LGBT advocates will increasingly turn to state legislatures to act on initiatives if federal pro-LGBT bills continue to languish in Congress.

“Labor contracts protect LGBT union workers even in states with no legislative protections, but that’s not always an option,” Davis said. “Until Congress can pass a clean version of ENDA without extraneous religious exemptions, we will have to look to state legislatures to pick up the slack.”

Anti-gay group pledges ‘religious liberty’ bill

One fear is that Republican control of Congress could lead to passage of anti-LGBT legislation, much like the Federal Marriage Amendment that was brought up for a vote, but failed, the last time the party had majorities in both chambers of Congress during the administration of George W. Bush.

While the rapid growth in support for marriage equality makes such an amendment unlikely, anti-gay groups may push for some kind of federal religious exemption bill that would allow individuals or officials to opt out of facilitating same-sex marriages throughout the country.

In an email blast to supporters on Monday, Brian Brown, president of the National Organization for Marriage, said immediately after the election his organization will “be meeting with the newly elected to discuss the upcoming term and what bills need to be advanced to protect marriage and religious liberty.” The plans, Brown said, include organizing for a 2015 “March for Marriage.”

Cook-McCormac said he doesn’t think anti-gay legislation along these lines will come up based on the Republican lack of interest in moving such bills in the House during the current Congress despite control of the chamber.

“I think there will still be reluctance by Republicans, as we’ve seen over the past two years in the House to advance legislation that in any way rolls back recent gains for LGBT Americans,” Cook-McCormac said. “Most Republican elected officials recognize that any efforts to turn the clock back on freedom for LGBT individuals is something that is extremely unpopular with the American people.”

That forecast for anti-gay bills is bolstered by recent history in Arizona, where Gov. Jan Brewer vetoed a “turn away the gay” bill that would have enabled businesses to discriminate against LGBT people following a media frenzy after the Arizona Legislature passed the bill.

Moreover, any anti-gay bill that comes up in the Senate could be subject by minority Democrats to filibuster, which would take 60 votes to overcome. These bills would also be likely voted down by pro-LGBT members of the Republican caucus, such as marriage-equality supporters Rob Portman (R-Ohio), Lisa Murkowski (R-Alaska), Mark Kirk (R-Ill.) and Susan Collins (R-Maine). In the event that anti-gay legislation somehow passes Congress, LGBT advocates would look to President Obama for a veto.

Fred Sainz, vice president of communications for the Human Rights Campaign, said his organization views new Republican members of Congress as “an opportunity to educate and change hearts and minds.”

“LGBT equality isn’t a partisan issue,” Sainz said. “After all, LGBT people are born to all sorts of parents. We’re just as likely to be born to conservative Republican Baptist parents from Mississippi as we are to liberals from New York City. So it’s incumbent on us to reach out to individuals who we’ll hope to turn into allies and advocates.”

Will Republican House pass ENDA in lame duck?

The uncertainty about the upcoming Congress may also mean Democrats will take the opportunity of the lame duck session to move forward with pro-LGBT legislation while they remain in control of the Senate. Now that the election has taken place, lawmakers are due back in D.C. on Nov. 12 to finish their current session.

One idea sources close to ENDA have articulated is attaching the measure to a larger bill in the Senate, such as to the fiscal year 2015 defense authorization bill, to ensure it reaches Obama’s desk.

Cook-McCormac said Republican supporters of ENDA have “considerable interest” in seeing ENDA passed in the lame duck through one vehicle or another, but the limited timeline and few remaining “must-do” items in Congress to which ENDA could be attached present challenges.

“I think that it’s a little early to tell what the prospects are for something like that, but I do believe that over the next week, week-and-a-half, we’re going to have a much clearer idea of the type of things that might be possible in the lame duck, what the window looks like, and what types of efforts will be necessary to help that move forward,” Cook-McCormac said.

Angelo said he’s “hearing mixed messages” on whether passage of ENDA is a possibility during the lame duck session of Congress.

“I’m hearing Democrats in the Senate are hesitant to attach ENDA to something like NDAA reauthorization, and I’m hearing Republicans in the House are leaning toward attaching ENDA to NDAA reauthorization,” Angelo said.

Angelo identified Rep. Chris Gibson (R-N.Y.) as an ENDA supporter who would be open to passing ENDA as an amendment to the defense authorization bill, and Sen. Jeff Merkley (D-Ore.) as a Democrat who “did not have an appetite” for such a strategy. Their offices didn’t respond to the Washington Blade’s request for a comment on the issue.

In a July interview with the Washington Blade, Rep. Charlie Dent (R-Pa.), an ENDA co-sponsor, said he wanted to see the legislation passed as an amendment to a larger vehicle, but at that time wasn’t sure which legislation would be appropriate for ENDA.

An aide for outgoing Sen. Tom Harkin (D-Iowa), chair of the Senate Health, Education, Labor & Pensions Committee, said the senator backs “any effort to pass” ENDA when asked if he supports attaching it as an amendment to the defense authorization bill.

Any attempt to move ENDA in lame duck may encounter opposition from LGBT advocates because it would likely be the Senate-passed version of the legislation. That version has a religious exemption that would allow religious-affiliated businesses to continue to discriminate against LGBT workers in non-ministerial positions, unlike protections afforded to other groups under existing civil rights law. Many pro-LGBT organizations, including the American Civil Liberties Union and the National LGBTQ Task Force, have dropped support from this version of ENDA.

“Rather than getting into those fights, I want after the election to see if it’s something that is feasible during the lame duck session, and then we can talk strategy,” Angelo said. “But there are definitely those mixed signals that I’m getting.”

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10 Comments

10 Comments

  1. Adrian Salsgiver

    November 5, 2014 at 4:56 am

    The Republican takeover of the Senate means nothing because the brutal bloody murder of innocent children around the world in the name of protecting our freedom will continue.

  2. EL Manevitch

    November 5, 2014 at 5:59 am

    The sad reality is that LGBT advances in legislation are pretty much at a standstill. It's not about the "left" embracing anything to work with Republicans as Log Cabin says. The bottom line is that right-wing conservatives in the GOP in particular religious ones have no interest in seeing any advancement of GLBT issues. In fact, you'll likely see renewed efforts to introduction a constitutional amendment to limit marriage to heterosexual couples and a bill to exempt anyone from complying with laws that forbid discrimination against GBLT people because of religious beliefs.

    Aside from that there will be renewed attempts to repeal the ACA and impeachment President Obama. That pretty much sums up the core of the GOP agenda! No time for anything else like making the economy stronger or creating good jobs!

  3. EL Manevitch

    November 5, 2014 at 6:01 am

    WTF are you talking about?

  4. Mike Dean

    November 5, 2014 at 1:58 pm

    Sure, Greg, and while you're wishing you might as well ask Santa for a pony.

  5. Hannah LeeAnn Jefferson

    November 5, 2014 at 2:29 pm

    Republicans just want to pass bills like the one in Arizona. Would it have become law, first responders would have been permitted to allow someone wounded in an accident to bleed out and die if they were LGBT and their religion didn't agree with gays.

  6. Bobbie Jo Justice

    November 5, 2014 at 6:49 pm

    WHICH PART OF ALL in the phrase liberty and justice for all is the difficult part for republicans ? As my tshirt says, our forefathers would be shooting by now.

  7. Stephen Herman

    November 5, 2014 at 7:35 pm

    Is it possible that Judge Sutton is waiting for Justice Scalia to author the 6th Circuit SSM Ruling?

  8. OneAngry Monk

    November 9, 2014 at 1:06 am

    "first responders would have been permitted to allow someone wounded in an accident to bleed out and die if they were LGBT and their religion didn't agree with gays"

    That has to be the absolute dumbest comment I have ever heard In my life!!

    Lies and grandstanding like this have only contributed to the GOP landslide, keep it up till they have the White House too!!

    Does it hurt to be that damned dumb?

  9. Hate Watch

    November 9, 2014 at 5:37 am

    There is absolutely NO scenario on the planet that would ever permit ANY first responder or member of the medical profession to willfully watch a person die and not be criminally charged and professionally stripped of any and all certifications that they posses, not to mention other civil penalties and repercussions. With an imagination like yours, I can’t believe Youngstown State actually lets you work in their labs. Please seek therapy.

  10. Anthony Rek LeCounte

    November 11, 2014 at 2:36 am

    Rep. Charlie Dent of Pennsylvania is a Republican.

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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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