HAVANA — The sun had already set over the Florida Straits on May 13 by the time Francisco Rodríguez Cruz, a gay journalist and advocate, and Miguel Angel Plasencia Rodríguez arrived at a section of Havana’s Malecón, an oceanfront promenade, near the iconic Hotel Nacional that is a popular late-night gathering place for LGBT Cubans.
Musicians were playing conga drums and guitars along the oceanfront promenade as couples danced salsa and street venders sold candy, soft drinks and flowers. Rodríguez was wearing a rainbow Pride bracelet as he wrapped his arm around Plasencia’s and held his hand.
“To sit on the Malecón as a couple like any other is one of those daily acts of love in Cuba that may not have been so easy five or 10 years ago for gay people,” Rodríguez told the Washington Blade. “It’s not that it was specifically prohibited, but the looks of disapproval and perhaps even some unfounded police action most likely would have been brought against us for this ‘exhibitionism.’”
LGBT Cubans over the last decade have become increasingly visible as efforts to extend rights to them have gained traction.
Transgender people have been able to obtain free sex-reassignment surgery under Cuba’s national health care system since 2008. Adela Hernández in 2012 became the first openly trans person to hold public office on the island when she became a member of the Caibarién Municipal Council.
The country’s lawmakers in late 2013 approved a proposal that banned anti-gay discrimination in the workplace. Mariela Castro, the daughter of Cuban President Raúl Castro who directs the National Center for Sexual Education, which is part of the Cuban Ministry of Public Health, has publicly backed marriage rights for same-sex couples.
Members of the Gay Men’s Chorus of Washington last month accepted Mariela Castro’s formal invitation to travel to Cuba in July and perform with a gay chorus in Havana.
These positions and overtures stand in stark contrast to the treatment of LGBT people in the years following the 1959 Cuban Revolution.
Then-President Fidel Castro in the 1960s sent more than 25,000 gay men and others deemed unfit for military service to labor camps known as Military Units to Aid Production or the Spanish acronym UMAP. Cuba repealed its sodomy law in 1979, but trans people continued to face persecution.
Hernández spent two years in prison in the 1980s for what the Associated Press described as “dangerousness” because of her gender identity. The Cuban government forcibly quarantined people living with HIV/AIDS in state-run sanitaria until 1993.
Fidel Castro during a 2010 interview with a Mexican newspaper described the persecution of gay Cubans that included sending them to work camps in the years following the revolution as a “great injustice.”
Independent Cuban LGBT rights advocates and their supporters in the U.S. and elsewhere insist the government continues to persecute those who criticize it through arbitrary detentions, the enforcement of public assembly laws and social isolation. The normalization of relations between Washington and Havana that President Obama announced late last year has done little to temper these criticisms inside Cuba and abroad.
Part of a ‘marvelous island’
Mariela Castro has publicly championed a number of LGBT-specific initiatives in the Communist country over the last decade through the National Center for Sexual Education, which is known by the Spanish acronym CENESEX. One source with whom the Blade spoke in Cuba said she is expanding upon the work that her late mother, Vilma Espín, began on behalf of LGBT Cubans when she was president of the Cuban Federation of Women.
CENESEX over the last eight years has organized a series of events in Havana and across the country to commemorate the International Day Against Homophobia and Transphobia.
Pastors from the U.S. and Canada on May 9 blessed the relationships of 20 Cuban same-sex couples in Havana during a series of events marking the International Day Against Homophobia and Transphobia. Singer Thelma Houston also performed.
Mariela Castro a week later led a march through Las Tunas, a provincial capital about 410 miles southeast of Havana, to commemorate the International Day Against Homophobia and Transphobia.
She ran under a large rainbow flag after stepping out of a gray van and joined her supporters who had gathered on Las Tunas’ main street before they and hundreds of others marched to the center of the city. Two CENESEX-affiliated advocates placed a wreath of flowers and palm fronds from the organization under a statue of Vicente García, a leading figure in the 10 Years’ War from 1868-1878 during which Cubans fought for Independence from Spain, that noted its events commemorating the International Day Against Homophobia and Transphobia.
Mariela Castro paid homage to García in a brief ceremony before speaking to her supporters. A handful of journalists and photographers from Cuba and the U.S. were also present.
“We are working for the social participation of everyone,” said Mariela Castro during her speech.
Mariela Castro did not speak to journalists after her remarks, but she greeted supporters at a community fair that featured CENESEX-affiliated LGBT and HIV/AIDS advocacy groups from Las Tunas and Havana. Dozens of dancers, musicians and other performers took to the stage at Las Tunas’ main theater before a CENESEX party with drag queens and dancers took place at Cabaret Taíno, a local nightclub.
Restaurants and other businesses in Las Tunas hung signs supporting the International Day Against Homophobia and Transphobia. These included a CENESEX poster in a local food stall that read “homosexuality is not a danger” and a picture inside a nearby home that depicted gay and lesbian families.
More than half a dozen gay men and a drag queen who took a horse-drawn cart from Cabaret Taíno around 3:15 a.m. on May 17 — the International Day Against Homophobia and Transphobia — did little to hide their sexual orientation and gender identity to the two drivers and passersby. They were among the hundreds of people who drank beers and rum at an after-party that was taking place at a bar on the outskirts of Las Tunas.
“We are part of the marvelous island of Cuba,” said Morgot, a drag queen who performed at Cabaret Taíno during the CENESEX party.
Mercedes García, a Havana resident who is a member of the CENESEX-affiliated Humanity for Diversity Network, told the Blade after the Las Tunas march she feels the events around the International Day Against Homophobia and Transphobia provide “open spaces where we can share among ourselves independent of sexual orientation and gender identity.”
“It is more important to see the support for the large community…from the government,” said García.
Gala, a Havana-based drag queen and HIV/AIDS educator who performs at Humboldt 52, a gay bar near the Hotel Nacional, was quick to applaud Mariela Castro and CENESEX during a May 13 interview with the Blade. She performed earlier in the evening before highlighting a campaign to fight HIV among men who have sex with men that featured colorful balloon animals engaging in sexual activity.
Gala also traveled to Las Tunas to take part in the International Day Against Homophobia and Transphobia commemorations.
“We are seeing advances thanks to Mariela Castro and CENESEX,” Gala told the Blade. “They give us a chance.”
Rodríguez and other supporters of CENESEX and Mariela Castro concede that homophobia, transphobia and anti-LGBT discrimination remain problems on the island.
Frank Padrón, a prominent gay theater critic who has a weekly show on Cuban television, told the Blade during an impromptu interview on a street near the Riviera Movie Theater in Havana’s sprawling Vedado neighborhood on May 13 that police continue to harass trans people and cross-dressers who they suspect are sex workers. He said that CENESEX and “individual activists have worked to change this.”
“We are not yet a society that is free from homophobia,” said Padrón. “We are not satisfied.”
Mariela Castro and her supporters who marched with her in Las Tunas sought to frame the expansion of LGBT rights on the island as a continuation of the revolution that toppled then-President Fulgencio Batista and brought Fidel Castro to power nearly six decades ago.
Marchers chanted “yes to Socialism, no to homophobia” as they worked their way through the provincial capital. A large banner containing a picture of Fidel Castro against the backdrop of the Cuban flag with a slogan reading “We will defend this flag, this sky and this land at any cost” provided a backdrop for Mariela Castro’s speech.
Mariela Castro is ‘a fraud’
Cuban advocates who work independently of CENESEX have a vastly different opinion of Mariela Castro, her father’s government and the state of LGBT rights on the Communist island.
Nearly 20 LGBT advocates and independent journalists spoke with the Blade at the home of Nelson Gandulla Díaz, president of the Cuban Foundation for LGBTI Rights in the city of Cienfuegos on May 15.
A poster reading, “Mariela Castro is a fraud” with the acronym CENESEX crossed out in a rainbow-colored circle hung prominently next to the entrance of Gandulla’s home as the advocates spoke. A gay flag was flying outside in the front yard that overlooks one of Cienfuegos’ main streets.
Gandulla told the Blade that more than a dozen independent LGBT rights advocates from across the country are members of his organization that he founded last year. He said his group’s primary mission is to “defend the rights of the LGBTI community in Cuba” and to speak out against anti-LGBT discrimination.
“We come together in this sense as the entire LGBTI community in Cuba, regardless of ideology, regardless of belief, regardless of who you are,” said Gandulla.
Gandulla told the Blade that Mariela Castro declined to take part in a June march in Havana to commemorate Pride month.
He also questioned the effectiveness of her efforts to build support for marriage rights for same-sex couples. Maykel González Vivero, a gay blogger who is a member of Proyecto Arcoiris, another independent LGBT advocacy organization, told the Blade during an interview at his apartment in the city of Sagua la Grande on May 17 that Mariela Castro previously said that Cuba is “not ready for marriage.”
“She did this as though she was speaking on behalf of the LGBTI community,” said González. “Clearly, as is frequently the case in Cuba, she speaks on behalf of everyone and does not consult with anyone.”
Tanía García Hernández of the LGBTI Help Line, which is based in the province of Villa Clara, told the Blade as she attended the Cuban Foundation for LGBTI Rights meeting in Cienfuegos with her son Leandro that CENESEX only “answers to the government.”
“It is one more office of the government,” said García. “It corresponds with the objectives of the government and she (Mariela Castro) is there.”
Many of the independent LGBT rights advocates with whom the Blade spoke insisted that fewer than 30 trans Cubans have been able to receive sex-reassignment surgery. Navid Fernández Cabrera, president of Proyecto Shui Tuix, an independent LGBT advocacy group named for one of the gay parties he organized in the Cuban capital in 2008, told the Blade during a May 14 interview in his one-bedroom apartment in Havana’s 10 de Octubre neighborhood that CENESEX subjects potential candidates to a lengthy screening process that includes meeting psychologists and other health care professionals.
“It’s not a lot,” said Fernández.
Fernández and five advocates who are affiliated with his organization spoke with the Blade for nearly two hours about Mariela Castro, CENESEX and the harassment and discrimination they said they have experienced.
Leosbel Heredia Azafares, a cross-dressing sex worker who goes by the nickname Doris la Exploradora (Doris the Explorer in English) when he works in Havana’s Carlos III area that trans prostitutes frequent, told the Blade that Cuban police officers routinely harass him and others known as jineteros or jineteras in Cuban Spanish by taking their money and forcing them to have sex with them. Hand-painted red signs along the National Highway in the city of Camagüey read “no prostitution” and “no illegal activities” without providing any specifics.
“Trans life is not recognized on the part of the police,” said Heredia, who presented himself as a man while at Fernández’s apartment.
Fidel Malvarais Pelegrino, 24, who represents Proyecto Shui Tuix in the city of Santiago de Cuba, said authorities detained him last June for seven days because he was in Havana without permission from the government. Marino López Borell, 28, who lives in the San Miguel del Padrón area of Havana, told the Blade the police stopped him and his Cuban American partner who lives in Florida last year while they were along a dark portion of the Malecón.
“The police officer only wanted money and wanted sex,” said López.
“CENESEX does not care about these stories,” added Fernández.
Juana Mora Cedeño, a member of Proyecto Arcoiris who met with House Minority Leader Nancy Pelosi (D-Calif.) and other members of Congress in February at the home of Jeffrey DeLaurentis, chief of mission of the U.S. Interests Section in Havana, told the Blade during an interview at a colleague’s home in Vedado that there are few “spaces” for LGBT Cubans to gather freely.
LGBT-specific events take place at bars and clubs throughout Havana, but Mora said the government operates many of them.
Hundreds of people on May 17 attended a state-sponsored party at Mi Cayito, a gay beach east of the Cuban capital, to commemorate the International Day Against Homophobia and Transphobia. A small, tattered gay flag was flying over the beach when the Blade visited it the following day, but Mora and other independent LGBT advocates said police have previously conducted raids there.
A police officer was sitting under a thatched umbrella on May 18, casually talking to men who rent chairs to beachgoers and bring them food and drinks from a restaurant adjacent to Mi Cayito’s parking lot.
A picture that González posted to his blog on the same day shows two Cuban police officers at an LGBT rights march in the city of Santa Clara that he said were “apparently” there to “provide security.” Fernández and other independent advocates told the Blade that authorities have also sought to intimidate those who attend their events that are not authorized by the government.
“We are not included in any governmental organization or any party,” said Gandulla. “What happens is that none of the official people, like Mariela Castro, want to work with us.”
González said he has faced harassment at the state-run radio station in Sagua la Grande where he works because of his public criticism over the omission of statistics from the 2012 Cuban Census that noted the number of same-sex couples who live together in the country. He told the Blade that CENESEX did not invite him and other independent advocates to a 2014 conference in the beach resort of Varadero that drew hundreds of LGBT rights advocates from across the Americas and the Caribbean.
González and other independent advocates have also questioned how the government will enforce the law that bans anti-gay discrimination in the workplace.
“There is a risk of quickly falling into a sort of social isolation zone,” González told the Blade. “People quickly assume that you are a dangerous person because you are someone who asks questions.”
Gandulla said that members of his group are “very afraid” of the Cuban government. He added it is “very dangerous” for them to criticize Mariela Castro or any other member of her father’s government during interviews with foreign journalists.
“It is only dangerous for us to meet with you because we don’t agree (with the government),” said García.
Neither Mariela Castro, nor CENESEX responded to the Blade’s request for comment on the criticisms that García, Gandulla, González, Fernández and other independent advocates made against them. Manuel Vázquez Seijido, a lawyer who is a senior CENESEX staffer, last month during a speech at a global LGBT rights conference at Rutgers University School of Law in Newark, N.J., dismissed those who publicly oppose his organization and the Castro government.
“Their goal is to simply criticize institutions like CENESEX and, of course, the Cuban government,” said Vázquez in response to a Blade question on the issue.
Rodríguez in an email to the Blade on Tuesday acknowledged there are independent Cuban LGBT rights advocates who are “honest people” who “want to advance their own projects without the tensions that working within the political commitment to the framework of a state institution entails.” He nevertheless described the activists who continue to criticize CENESEX and Mariela Castro as “not truly independent.”
“They only follow the instructions in a disciplined manner from the centers of power in the United States and other countries that don’t accept the possibility of an alternative policy to capitalism,” Rodríguez told the Blade. “They finance whatever force or individual that makes it easier for them to achieve their goals of destabilizing the country.”
Rodríguez did not provide any additional comment on the specific groups in the U.S. and elsewhere that he believes provide funding to the Cuban LGBT advocates who criticize the government. His assertion is a common one among Mariela Castro’s supporters when asked about Cuban LGBT rights advocates who publicly criticize her and CENESEX.
Herb Sosa, a first-generation Cuban American who is president of the Unity Coalition, a Miami-based LGBT advocacy group, in 2013 blasted Equality Forum Executive Director Malcolm Lazin’s decision to honor Mariela Castro at his organization’s annual dinner in Philadelphia. Sosa and U.S. Rep. Ileana Ros-Lehtinen (R-Fla.), who was born in Cuba, both criticized CENESEX’s ultimately unsuccessful effort to hold an international LGBT rights conference in Havana.
“Unfortunately, and we all wish this to be different, the LGBT community has little to no rights of free speech, right to congregate, march or speak against the government,” said Sosa, noting Cubans also have limited access to the Internet. “The list goes on.”
Robyn Ochs, a bisexual advocate and writer who is a member of the MassEquality board of directors, attended the LGBT rights conference in Varadero in 2013.
She acknowledged lingering concerns over Cuba’s human rights record that include a lack of freedom of speech on the island. Ochs also noted to the Blade that “like all political figures,” Mariela Castro, has “said and done things over time that are problematic,” but she insists her support of LGBT Cubans is “crystal clear.”
“Things are clearly moving in a positive direction,” said Ochs. “There is a great deal that is possible in Cuba now that was not possible a decade ago.”
Ros-Lehtinen in a statement to the Blade reiterated her long-standing criticisms of Mariela Castro and her father’s government.
“While Mariela Castro and the Cuban regime try to make the farcical case that they are LGBT-friendly, the reality the reality of their hostility to anyone who does not share their radical, Communist ideology is much harsher and well-documented,” said the Florida Republican who is an outspoken supporter of LGBT rights. “Interestingly, in its bid to promote its supposed LGBT record, the Castro regime has only spotlighted those who do not object to the regime’s history of repression. Sadly, any Cuban, regardless of sexual orientation or gender identity, who disagrees with the Castro brothers is subject to the same acts of repudiation, arrest and imprisonment that has characterized these tyrants’ rule.”
Impact of normalized relations unclear
Cuba’s LGBT rights movement is growing more visible as the process to normalize relations between Washington and Havana that President Obama began late last year continues to move forward.
The fourth round of talks between the two countries took place last week in Washington.
White House Press Secretary Josh Earnest and State Department spokesperson Marie Harf both acknowledged to the Blade on May 22 that the treatment of independent LGBT advocates and other aspects of Cuba’s human rights record remain serious concerns for the U.S. as efforts to normalize relations with the Communist country continue.
“Human rights remain a centerpiece of U.S. foreign policy, including our approach to Cuba,” a State Department spokesperson told the Blade on Tuesday.
Cuban LGBT rights advocates remain mixed as to whether the normalization of relations between Washington and Havana will have a positive impact on their lives.
Mariela Castro last December described the prospect of normalized relations between Cuba and the U.S. as a “dream come true” during an interview with CNN’s Christiane Amanpour.
She called upon human rights advocates to urge Washington to end its decades-long embargo against her country, which a billboard near Havana’s José Martí International Airport describes as “the world’s longest running genocide.” Signs with nearly identical slogans are a common sight throughout the country.
Mariela Castro once again spoke out against it during the Havana commemoration of the International Day Against Homophobia and Transphobia. She also celebrated the release of three of the so-called “Cuban Five” — intelligence officers from the Communist island who had been in federal prisons — as part of the agreement to begin normalizing relations with the U.S. that included the release of Alan Gross, a subcontractor with the U.S. Agency for International Development who had been held in a Cuban prison for five years after authorities arrested him for connecting a local Jewish community to the Internet.
“The embargo is the main obstacle to our development plan and for the guarantee of our rights, including the rights of LGBTI people,” she said.
López told the Blade that he feels the Cuban government uses the embargo as an “excuse” for the country’s ailing economy, poor infrastructure, food shortages and other problems — the power went out for about five minutes as he and others spoke with the Blade inside Fernández’s apartment. Raúl Márques, a gay man who works in the arts in Havana, said the average Cuban is focused more on meeting their basic needs as opposed to the status of relations between their country and the U.S.
“People here have had many problems,” he told the Blade. “You are not going to think about other things in your life.”
González shared an equally pessimistic view, joking sarcastically that the Cuban people have a “very special” relationship that dates back to the 19th century. He further noted he is “not an optimistic man.”
“It is an issue that almost nobody talks about,” said González, referring to the prospect of closer ties between Washington and Havana. “It is not in people’s daily conversation.”
Gala told the Blade after performing at Humboldt 52 in Havana that normalized relations between the U.S. and Cuba will have no impact on her daily life, even though she said the country is “entering a beautiful moment.”
Mora said she hopes closer ties between Havana and Washington will help ease some of the problems that Cubans continue to face because of the island’s economic situation. She also expressed optimism for the future of her organization and other independent LGBT advocates on the island.
“All of us are agents of change,” said Mora. “I believe that if we all believe in something, we can change it.”
Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead
No political willpower to force vote or reach a compromise
Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.
Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.
In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.
If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.
“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”
The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.
Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”
“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process. We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”
Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.
“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”
A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.
Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”
Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.
The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.
Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.
“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”
Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.
For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.
Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”
“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”
But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.
No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.
Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.
“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”
Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.
Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.
Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.
To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.
A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.
“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”
But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.
D.C. bill to ban LGBTQ panic defense delayed by Capitol security
Delivery of bill to Congress was held up due to protocols related to Jan. 6 riots
A bill approved unanimously last December by the D.C. Council to ban the so-called LGBTQ panic defense has been delayed from taking effect as a city law because the fence installed around the U.S. Capitol following the Jan. 6 insurrection prevented the law from being delivered to Congress.
According to Eric Salmi, communications director for D.C. Council member Charles Allen (D-Ward 6), who guided the bill through the Council’s legislative process, all bills approved by the Council and signed by the D.C. mayor must be hand-delivered to Congress for a required congressional review.
“What happened was when the Capitol fence went up after the January insurrection, it created an issue where we physically could not deliver laws to Congress per the congressional review period,” Salmi told the Washington Blade.
Among the bills that could not immediately be delivered to Congress was the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, which was approved by the Council on a second and final vote on Dec. 15.
Between the time the bill was signed by Mayor Muriel Bowser and published in the D.C. Register under procedural requirements for all bills, it was not ready to be transmitted to Congress until Feb. 16, the Council’s legislative record for the bill shows.
Salmi said the impasse in delivering the bill to Congress due to the security fence prevented the bill from reaching Congress on that date and prevented the mandatory 60-day congressional review period for this bill from beginning at that time. He noted that most bills require a 30 legislative day review by Congress.
But the Evangelista-Hunter bill, named after a transgender woman and a gay man who died in violent attacks by perpetrators who attempted to use the trans and gay panic defense, includes a law enforcement related provision that under the city’s Home Rule Charter passed by Congress in the early 1970s requires a 60-day congressional review.
“There is a chance it goes into effect any day now, just given the timeline is close to being up,” Salmi said on Tuesday. “I don’t know the exact date it was delivered, but I do know the countdown is on,” said Salmi, who added, “I would expect any day now it should go into effect and there’s nothing stopping it other than an insurrection in January.”
If the delivery to Congress had not been delayed, the D.C. Council’s legislative office estimated the congressional review would have been completed by May 12.
A congressional source who spoke on condition of being identified only as a senior Democratic aide, said the holdup of D.C. bills because of the Capitol fence has been corrected.
“The House found an immediate workaround, when this issue first arose after the Jan. 6 insurrection,” the aide said.
“This is yet another reason why D.C. Council bills should not be subject to a congressional review period and why we need to grant D.C. statehood,” the aide said.
The aide added that while no disapproval resolution had been introduced in Congress to overturn the D.C. Evangelista-Hunter bill, House Democrats would have defeated such a resolution.
“House Democrats support D.C. home rule, statehood, and LGBTQ rights,” said the aide.
LGBTQ rights advocates have argued that a ban on using a gay or transgender panic defense in criminal trials is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or expression is to blame for a defendant’s criminal act, including murder.
Some attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.
In addition to its provision banning the LGBTQ panic defense, the Evangelista-Hunter bill includes a separate provision that strengthens the city’s existing hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats to be prosecuted as a hate crime.
LGBTQ supportive prosecutors have said the clarification was needed because it is often difficult to prove to a jury that hatred is the only motive behind a violent crime. The prosecutors noted that juries have found defendants not guilty of committing a hate crime on grounds that they believed other motives were involved in a particular crime after defense lawyers argued that the law required “hate” to be the only motive in order to find someone guilty of a hate crime.
Salmi noted that while the hate crime clarification and panic defense prohibition provisions of the Evangelista-Hunter bill will become law as soon as the congressional review is completed, yet another provision in the bill will not become law after the congressional review because there are insufficient funds in the D.C. budget to cover the costs of implementing the provision.
The provision gives the D.C. Office of Human Rights and the Office of the D.C. Attorney General authority to investigate hate related discrimination at places of public accommodation. Salmi said the provision expands protections against discrimination to include web-based retailers or online delivery services that are not physically located in D.C.
“That is subject to appropriations,” Salmi said. “And until it is funded in the upcoming budget it cannot be legally enforced.”
He said that at Council member Allen’s request, the Council added language to the bill that ensures that all other provisions of the legislation that do not require additional funding – including the ban on use of the LGBTQ panic defense and the provision clarifying that hatred doesn’t have to be the sole motive for a hate crime – will take effect as soon as the congressional approval process is completed.
D.C. man charged with 2020 anti-gay death threat rearrested
Defendant implicated in three anti-LGBTQ incidents since 2011
A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.
D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.
Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.
According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.
Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.
An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.
“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”
The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”
Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.
Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.
In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.
“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.
Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.
The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.
In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”
At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.
The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.
The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.
In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.
The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.
It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.
Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.
The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.
The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.
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