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Gender reassignment for inmates emerges as hot topic

Despite legal setbacks, advocates confident change will come

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Michelle Norsworthy, gay news, Washington Blade
Michelle Norsworthy, gay news, Washington Blade

Michelle Norsworthy is seeking gender reassignment surgery over the course of her incarceration. (Photo courtesy Transgender Law Center)

Ensuring access to gender reassignment surgery for transgender inmates has emerged as a hot topic in the transgender rights movement amid recent developments in court cases filed on behalf of inmates.

Mara Keisling, executive director of the National Center for Transgender Equality, said ensuring prisoners have access to gender reassignment surgery is “the same issue” as making sure private insurance pays for the procedure, which many providers refuse to cover.

“The priority is to get society to understand that this is medically necessary care and as such, it is illegal for employers not to have plans covering it because you’re discriminating against certain employees,” Keisling said. “It’s just as illegal, except it’s unconstitutional, to deny it to prisoners.”

Major medical and psychological groups, including the American Medical Association, have endorsed gender reassignment surgery as treatment for gender dysphoria.

On Monday, the U.S. Supreme Court announced it has declined to hear a lawsuit filed on behalf of Massachusetts transgender inmate Michelle Kosilek, who was prescribed gender reassignment surgery in prison but then denied the procedure by the Massachusetts Department of Corrections. As a result of being denied treatment, Kosilek has self-mutilated and has twice attempted suicide.

Kosilek has been serving a life sentence since the early 1990s, when she was convicted of murdering her spouse, Cheryl McCaul, by strangulation. Kosilek killed her spouse following an altercation after McCaul discovered Kosilek wearing women’s clothes.

The U.S. First Circuit Court of Appeals in an “en banc” ruling affirmed the state’s ability to deny her the procedure. Now that the Supreme Court has declined to hear the lawsuit, the case is at an apparent dead end and the appeals court ruling will be the final word on the matter.

Keisling said the Supreme Court had the opportunity to put the issue to rest by taking up the case.

“It’s hard to know what kind of reasoning they have for not granting cert,” Keisling said. “Sometimes it’s they don’t think it’s ripe, sometimes they don’t want to handle it, sometimes they don’t have enough time. We have no reason to know what it is, but for now the decision in the First Circuit stands.”

On the same day the Supreme Court indicated it wouldn’t hear the case, California Attorney General Kamala Harris filed a request before the U.S. Ninth Circuit Court of Appeals seeking to halt gender reassignment surgery for Michelle-Lael Norsworthy, a transgender inmate at Mule Creek State Prison in Ione, Calif., as her case proceeds on appeal.

Norsworthy, who’s serving time for second-degree murder, was denied the procedure by the California Department of Corrections & Rehabilitation, but granted gender reassignment surgery as a result of an order from U.S. District Judge Jon Tigar.

In both these cases, attorneys representing the transgender inmates say denying them the procedure constitutes cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution.

Kellan Baker, a senior fellow at the LGBT project for the Center for American Progress, said ensuring access to gender reassignment surgery in prison is “a major priority” for transgender advocates across the country.

“The denial of medically necessary care to transgender people who are incarcerated is harmful on the individual level and also undermines the very real needs and basic humanity of transgender people everywhere,” Baker said. “Respecting a person’s identity should never come with a qualification.”

Ezra Young, an attorney at the New York-based law office of Jillian T. Weiss, has handled pro bono insurance appeals for transgender people for seven years and said there’s no reason to deny gender reassignment surgery for transgender people in prison or otherwise.

“I do not see a difference between seeking care for our incarcerated brothers and sisters and seeking care for folks through private and public insurance,” Young said. “Moreover, I do not believe that the promise of health equality for all trans folks is diminished by simultaneously pursuing coverage for incarcerated persons and those on the outside. In both cases, we have wide swaths of our community who are unable to access quality, safe, medically necessary care for no reason other than institutional, systemic, and deep-seated personal biases against trans people.”

Young sought to allay potential concerns among transgender people themselves that incarcerated individuals like Kosilek can obtain gender reassignment surgery at the taxpayer’s expense, but for the population, the procedure remains out of reach.

“I understand it is frustrating that a convicted murderer had a chance at getting the same medically necessary care that you need but currently can’t get in many places because of legal impediments and anti-trans bias,” Young said. “However, denying Kosilek and those like her access to medically necessary care will not make your journey any easier, and most definitely will not help us change the structural and institutional barriers that prevent all trans folks from living free from bias.”

Transgender people in prison who seek gender reassignment surgery must obtain it at taxpayer’s expense because incarcerated individuals don’t have access to personal finances. Estimates of the initial cost of the procedure for male-to-female transgender people range from $7,000 to $24,000, while estimates of the cost for female-to-male transgender people exceed $50,000.

It should be noted these expenses pale in comparison to the cost incurred by the state to fight granting the procedure to inmates through the appeals process.

Babs Siperstein, a New Jersey-based transgender advocate who’s a member of the Democratic National Committee, said she’s “come around” to believe transgender people in prison should have access to the procedure.

“As a small business owner, I pay medical insurance for myself, for my employees,” Siperstein said. “I look at people who are incarcerated and, say, ‘Hey! Why should they get more than me?’ But then I look at it [and say], ‘Hey! This is basic medical care. If we have to rely on physicians for what’s basic and necessary medical care, why shouldn’t we do it for everyone?”

The sense that granting prisoners access to gender reassignment surgery should be a priority is pervasive among transgender advocates. One group that has yet to weigh in on the issue is Log Cabin Republicans. Asked by the Blade about the position of the organization, Gregory Angelo, Log Cabin’s executive director, replied, “LCR has not taken a position on this issue at the present time.”

High-profile Dems oppose procedure for inmates

Now that many high-profile Democrats, such as President Obama, have “evolved” to support the once highly contentious idea of same-sex marriage, transgender rights issues have begun to command more attention. But that doesn’t necessarily mean otherwise progressive Democrats support gender reassignment surgery for inmates.

When running for U.S. Senate in 2012, progressive champion Elizabeth Warren was asked during a radio interview about a lower court ruling granting Kosilek gender reassignment surgery and she replied, “I have to say, I don’t think it’s a good use of taxpayer dollars.” Her Senate office hasn’t responded to multiple requests from the Washington Blade over the course of this year on whether her views have since changed.

Meanwhile, Harris, who’s considered a champion of LGBT rights in California, has elected to appeal on behalf of her state a court order granting gender reassignment surgery for a transgender inmate. The attorney general takes this action as she pursues the Democratic nomination to succeed Barbara Boxer (D-Calif.) in the U.S. Senate.

Siperstein said she’s “extremely disappointed” Harris has sought to appeal this decision as she continues to seek public office and questioned the candidate’s commitment to transgender rights.

“I would think that any political candidate, or any public servant, that would fight to prevent basic and necessary medical treatment for any person would be incompetent to serve,” Siperstein said. “How can you trust any public servant, any elected official, who fights to prevent basic and necessary medical service for any person? Who’s next?”

The attorney general’s office has insisted Harris is appealing the order on behalf of a decision made by other state officials, but her obligations as California’s top attorney haven’t stopped her before from seeking alternative means to protect LGBT rights. Harris refused to defend Prop 8 before the Supreme Court, which resulted in a decision by the court letting a lower court decision stand restoring marriage equality to the state.

More recently, Harris requested a court order to allow her to refuse to certify a ballot measure that would make gay sex a crime punishable by death, even though attorneys general in California are required to provide an official title and summary for proposed initiatives.

Jon Davidson, legal director for Lambda Legal, said Harris’ decision to defend withholding gender reassignment surgery to a transgender inmate is her own choice.

“Even where the decision is made to defend an unconstitutional practice, there’s nothing that dictates the tactics of that defense, particularly once a court has found there are likely ongoing constitutional violations,” Davidson said. “The choice to appeal a preliminary court order and to seek to delay its implementation is just that — a choice. It’s also a very unfortunate one, given that what is at stake here is potentially life-saving treatment that is widely recognized as medically necessary for some people suffering from gender dysphoria.”

Amid continued opposition from public officials to granting gender reassignment surgery to transgender inmates, Keisling said more education on the issue is necessary.

“We haven’t made this one clear yet, but the principles are pretty rock solid here,” Keisling said. “It is illegal to deny prisoners health care. If a prisoner breaks their leg, you have to set it, if they get cancer, you have to treat it, and it is almost unanimously agreed upon by modern medicine that the medical treatments we’re talking about are medically necessary. So, it’s obvious that they don’t think Michelle Kosilek is a particularly sympathetic character, or that Chelsea Manning is a particularly sympathetic character, but that’s not about whether it’s right or not.”

On the similar legal track as efforts to ensure transgender inmates have access to gender reassignment surgery is litigation seeking hormone treatment for trans people who are incarcerated.

Following a lawsuit filed by the Southern Poverty Law Center on behalf of Ashley Diamond, a transgender inmate, the Georgia Department of Correction announced a new policy to diagnose and treat inmates with the condition. The U.S. Justice Department intervened in the case, filing a brief stating the Eighth Amendment mandates individualized assessment and care for gender dysphoria.

A higher-profile case is that of Chelsea Manning, who’s serving a 35-year sentence in military prison for leaking thousands of pages of top secret documents while serving in the U.S. Army. Following a lawsuit filed by the American Civil Liberties Union, Fort Leavenworth in Kansas elected to provide Manning hormone treatment during her incarceration — an apparent first for military prison in the United States.

Although legal challenges for inmates seeking gender reassignment surgery remain difficult and, in at least one case, has reached a dead end, Keisling said she envisions victory at some point as a result of one lawsuit or another.

“The LGBT movement has some of the best legal minds in the country, and they’re going to keep bringing these suits and they’re going to win, and people will or won’t be ashamed of themselves later,” Keisling said. “But this is about a pretty straightforward thing, this is just settled law, you can’t withhold medical treatment from prisoners no matter what they did whether you were a shoplifter, or smoked a joint, or murder somebody.”

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2 Comments

2 Comments

  1. Deanna B.

    May 7, 2015 at 6:50 pm

    Doesn’t it embarrass Chris Johnson to churn out one-sided editorials and pass them off as news articles? With the exception of a single sentence quoted from one politician, every person quoted in this article is on one side of this issue. And Johnson injects his own editorials throughout. The end product looks both sleazily dishonest and defensive.

    BTW, on what basis does he Johnson assert that the cost of surgery and long-term follow up “pale in comparison to the cost incurred by the state to fight granting the procedure to inmates through the appeals process.” Has Johnson done a comparative analysis? Does he know how many surgeries would have to be provided and at what cost? And how has he determined the cost to the state to litigate when the litigation is handled by salaried employees? I doubt if Johnson will respond because it is obvious that he either made that claim up or he simply repeated a trans activist talking point while doing no fact checking.

    Nowhere in this compendium of trans activist quotes did Johnson deal with the reasons why Massachusetts prevailed, i.e., why the Court concluded that It had the better legal argument. (Great reporting, Chris!) And nowhere does he deal with the problematic priorities of non-trans groups like Lambda Legal, which is overwhelmingly funded by LGBs. Lambda may come to learn that LGBs are unwilling to fund an organization which gives top priority to the demands of those who murder and maim women.

  2. Walter Smith

    May 18, 2015 at 11:54 am

    I do no believe these people should be given gender reassignment surgery while in prison. They should serve their time as the gender they were when they committed their crimes. He was a male when he killed, he should serve time as a make, in male prison, with all the attendant risks and dangers. Why reward someone with hundreds of thousands of dollars of surgery for killing someone. He killed a man, let him serve time as a man. Why are we, the gay community, even having this discussion. Seems like they are taking over the whole movement. Let them start their own movement, and stop riding on our coat-tails.

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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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