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Anti-gay workplace bias barred under existing law: EEOC

Decision bars employment discrimination against gay people under Title VII

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Chai Feldblum, gay news, Washington Blade, United States Equal Employment Opportunity Commission, gay news, Washington Blade
Chai Feldblum, gay news, Washington Blade, United States Equal Employment Opportunity Commission, gay news, Washington Blade

EEOC Commissioner Chai Feldblum (Washington Blade photo by Michael Key)

In a historic decision, the agency of the U.S. government charged with enforcing employment civil rights law determined on Thursday workplace discrimination against people for being gay, lesbian or bisexual constitutes gender discrimination under current law.

In the 17-page decision dated July 15, the U.S. Equal Employment Opportunity Commission finds discrimination based on sexual orientation in employment violates the provision prohibiting gender bias under Title VII of the Civil Rights Act of 1964. The name of the plaintiff in the case is redacted, but the defendant is Transportation Secretary Anthony Foxx in his role as overseer of the Federal Aviation Administration.

The EEOC reasons sexual orientation discrimination is sex discrimination because it necessarily entails treating employees less favorably because of gender and because such bias is associational discrimination based on gender.

“When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions,” the decision states. “It is not. Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegation of sex discrimination — whether the agency has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.”

The determination, which directs agencies to process sexual orientation claims as gender discrimination, builds off the 2012 decision EEOC reached in Macy v. Holder, which affirmed discrimination against people for being transgender violates the gender provisions of Title VII. Chai Feldblum, a lesbian member of the commission, had said the Macy ruling also enables gay, lesbian and bisexual workers to seek relief under current law, but the EEOC hasn’t made that clear until now.

Tico Almeida, president of Freedom to Work, praised the decision and said LGBT advocates should relay the information that even without explicit protections, current law prohibits employment discrimination on the basis of both sexual orientation and gender identity.

“We applaud the EEOC’s historic determination that sexual orientation is inherently a sex-based consideration, and we encourage all gay men, lesbians and bisexual Americans who face harassment or discrimination on the job to consult an attorney and file Title VII sex discrimination claims with the EEOC,” Almeida said. “It’s time for LGBT advocates to retire the incorrect talking point that gay Americans can get married at Noon and fired at 2:00 pm without legal recourse. That kind of unlawful firing falls clearly under Title VII’s ban on sex discrimination, and it is already illegal.”

Justine Lisser, a spokesperson for EEOC, said the vote on the commission was 3-2. Along with Feldblum, Chair Jenny Yang and Commissioner Charlotte Burrows voted in favor of the ruling, but Commissioner Victoria Lipnic and Commissioner Constance Barker voted against it.

According to the ruling, the complainant at the time of the events giving rise to the complaint was a temporary supervisory air traffic control specialist for FAA working at the international airport in Miami. The complainant filed a complaint on Dec. 21, 2012 when he learned he wasn’t selected for a permanent position as a frontline manager at the Miami Tower TRACON facility.

The complainant didn’t officially apply for the permanent position on the basis that he thought all temporary workers would be considered for an open permanent posting, but he knew management was seeking someone for the position and he was well qualified. The FAA contended the position was never filled, so no discrimination occurred.

The complainant alleged he wasn’t selected for the position because he’s gay and recounted incidents of negative comments about his sexual orientation from his supervisor, who was involved in the selection process. For example, the complainant said in May 2011 he talked about going to Mardi Gras with his partner and his supervisor replied, “We don’t need to hear about that gay stuff.” Complainant also said he was told he was being a “distraction in the radar room” when he mentioned his male partner in conversations.

Although the complainant initially filed a claim within the agency, the claim was dismissed in 2013 because it was filed too late and EEOC had not at that time made clear sexual orientation discrimination was covered under existing law. EEOC under its analysis reversed the determination of the agency.

“The narrative accompanying his formal complaint makes clear that Complainant believes that he was denied a permanent position because of his sexual orientation,” the ruling states. “The Agency, in its final decision, indicated it would process this claim only under its internal procedures conceding sexual orientation discrimination and not through…EEO complaint process. The Agency erred in this regard.”

As a result of the ruling, the agency is ordered to continue processing the remanded claims. The Transportation Department must submit its compliance report within 30 days of the completion of all ordered corrective action. If the department doesn’t comply, the complainant may petition the EEOC for enforcement. Complainant may also seek civil action, but in that case the administrative processing of the complaint and any petition for enforcement will be terminated.

It should be noted the sweeping impact of the ruling affects only employment law. The EEOC doesn’t have authority to determine whether gender provisions in housing and education law also cover sexual orientation discrimination. An upcoming LGBT non-discrimination comprehensive bill that Rep. David Cicilline (D-R.I.) and Sen. Jeff Merkley (D-Ore.) are set to introduce in Congress should explicitly prohibit sexual orientation and gender identity discrimination in these areas in addition to employment, public accommodations, federal programs and credit.

Chad Griffin, president of the Human Rights Campaign, praised the decision, but said the time has come to enact into federal law prohibiting LGBT discrimination in all areas.

“Discrimination has no place in America, plain and simple,” Griffin said. “This historic ruling by the EEOC makes clear they agree workplace discrimination on the basis of sexual orientation, much like gender identity, is illegal. While an important step, it also highlights the need for a comprehensive federal law permanently and clearly banning LGBT discrimination beyond employment to all areas of American life. Such a law would send a clear and permanent signal that discrimination against LGBT people will not be tolerated under any circumstances in this country, and we remain fully committed to making that happen.”

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31 Comments

31 Comments

  1. Kathy11

    July 16, 2015 at 8:35 pm

    Excellent! And hopefully public accommodations et al will follow.

    The groundbreaking progress made by transgender plaintiffs in this approach that led to it’s expansion to sexual orientation shouldn’t be overlooked.

    • lnm3921

      July 16, 2015 at 8:57 pm

      Well, if that’s true, it’s about time they did something to advance the rights of the community overall rather than hang on the coattails of all the groundwork down by gay and lesbian activists in decades past!

      Although it seems more a by product of their own interest rather than the purpose of those plaintiffs.

      • Kathy11

        July 17, 2015 at 6:39 am

        Yeah – they suck. Even when what they did gave you nationwide civil rights. Well – that’s true in your case.

        • lnm3921

          July 17, 2015 at 10:51 pm

          I never said anyone sucked. You did!

          How did they give me nationwide civil rights exactly? It’s an opinion by EEOC that still has yet to bear fruit for anyone. Being gay isn’t about gender. EEOC typically deals with employment issues not all other forms of civil rights.

          What HRC says is nice and dandy. What happens in practice is what really matters.

          Next you’ll say we need to thank you for the Stonewall riots, striking down sodomy laws, ending DADT, hate crimes legislation and marriage equality.

          Until we have a law nationwide that bars discrimination in employment, housing, public accommodations and services I don’t feel we have nationwide civil rights!

          • Kamelhaj

            July 18, 2015 at 5:06 pm

            Treating homosexuals equal in employment is a no-brainer, but I draw the line on having men/women use each other bathrooms.
            I suffer from paruresis (probably the only group which everyone feels free to discriminate against in hiring), and just the possibility of knowing an opposite-sex person could walk in on me changes my disorder from serious to nearly impossible.
            Btw, from my own experiences, paruresis occurs more often in the gay than the straight population.

          • lnm3921

            July 18, 2015 at 5:49 pm

            Wow. I’ve never heard of your condition. But I learned something new today and the other term parcopresis. That does suck. Must be difficult to go through life like that when you can’t always run home to do your business especially if you have to travel away from home. Is there a cure or treatment for that?

            I never head of other gay men having that but likely nothing that most people are willing to discuss openly. I do not like using the stall when other people are in the bathroom. Hate leaving the stall when someone is in the bathroom, too. Seems embarrassing but I tell myself they have to use it too so don’t let it bother as much. If I must I will do what I have to do.

            The issue of who can use public bathrooms is not my personal fight so I remain neutral on that. I guess transgender people may see it like White Only versus Colored bathrooms.

          • Kamelhaj

            July 19, 2015 at 2:45 pm

            Thank you for your heartfelt reply!
            Perhaps there could be a third bathroom for others which would include transgenders? If it was a single user with a locked door, that could be used by paruretics too. Now I’m getting confusing….
            There is no cure for the two pars – hypnosis, medications, surgery, talk therapy – all have only a minor effect. There is a group called the IPA which holds workshops across the world where one with this condition re-learns how to urinate with others nearby. I’ve been to four workshops over the years and I am now down to having this about 60%. Btw, that’s where I met the many gays who had this.

          • lnm3921

            July 19, 2015 at 6:26 pm

            I don’t know if you’re going to get a third bathroom for transgender people when women complain there aren’t enough toilets for them in their bathrooms. Time will tell.
            The money to build and space required to provide it probably will be the biggest issue. But some trans may not want a separate bathroom based on equality issues but that’s just my guess. Life is such a struggle for everything!

            What causes the condition? Have you always had it or developed it suddenly?

          • Kathy11

            July 19, 2015 at 8:17 am

            Well – the first LGBT specific legislation passed was a birth certificate bill back in 1956 – so perhaps the story is slightly more nuanced than you believe. Illinois- a decade before Stonewall and two decades before the first bill addressing sexual orientation. Anti cross dressing laws were overturned before many sexual orientation laws passed.

            But sure, trans people didn’t exist and did nothing till last week.

          • lnm3921

            July 19, 2015 at 2:10 pm

            I never heard of the birth certificate issue but I guess that is more a significant milestone to Trans people not GLB people. Trans people were not originally part of the GLB movement at least not as a distinct group in itself. I wasn’t aware of any and I still really don’t know anyone trans. You’re a minority within a minority. The “T” in GLBT was not added until much later than I came out.

            We didn’t even know people as trans until the latter half of the 20th century. Yes, a few high profile people changed sex but it seemed something rare and again GLB didn’t associate it with the movement. That term did not exist before then. Although you may have been there, we just assumed you were drag queens. Essentially you didn’t exist to most of us.

            Since I don’t cross-dress I never have seen that as an achievement to my personal rights as gay. We were fighting to be able to work, live where we wanted and be served like everyone else without being bashed.

          • Kathy11

            July 19, 2015 at 3:29 pm

            Well – you should look into Magnus Hirschfeld and the start of organized gay rights – where trans people were part of that. The trans term was used then in the early 1900’s – to be fair – gays were called homophiles back in the day or inverts – even in gay orgs. That doesn’t mean gays didn’t exist. In the U.S. Johnathan Ned Katz originally called the Cercle Hermaphoditos in 1895 the first U.S. Group to fight for civil rights – turns out they were trans – at Paresis Hall in NYC- which was a gay establishment where they rented a space and were just part of the milieu.

            As far as Jenner or even Chaz being the first celebrity- there wasn’t a paper in the country that didn’t have Christine Jorgensen in it’s cover back in 1952? When no gays were getting that kind of coverage- she was also named women of the year by the U.S. Scandinavian Society in their annual event – rather like Jenner’s recent award.

            Back in 1972 – before the Miami Pres Conventions – the large gay orgs got the anti-cross dressing laws overturned because it was a gay issue and was a huge part of their political demonstrations. So- while it doesn’t effect you personally- it’s safe to say you’re not all gay men or lesbians (who would get arrested for cross dressing for wearing pants back in the day).

            I understand that you have your particular experience- this may not be universal or reflect history.

          • lnm3921

            July 19, 2015 at 6:36 pm

            You’re well versed in history. I recently learned about Christine Jorgensen as that all happened before I was born so I never heard of her before.

            The 1972 event you discuss also is unknown to me. I was too young then to understand or care. I wasn’t paying attention to Watergate so I wouldn’t have paid attention to that assuming it was even televised on the news. I have a brief recollection of the Stone Wall riots on TV only because my father commented about faggots and their aggression as he was watching TV and I kind of pieced it together as being that event. No one discussed gay issues when I was growing up. Very taboo.

      • Kathy11

        July 17, 2015 at 7:12 am

        Here ya go sourpuss- from the mouth of HRC no less. It came from the Macy precedent.

        “Discrimination has no place in America, plain and simple,” said HRC President Chad Griffin. “This historic ruling by the EEOC makes clear they agree workplace discrimination on the basis of sexual orientation, much like gender identity, is illegal. While an important step, it also highlights the need for a comprehensive federal law permanently and clearly banning LGBT discrimination beyond employment to all areas of American life. Such a law would send a clear and permanent signal that discrimination against LGBT people will not be tolerated under any circumstances in this country, and we remain fully committed to making that happen.”

        In a 2012 decision in Macy v. Holder, the EEOC determined that discrimination based on an individual’s gender identity is sex discrimination and thus constitutes a violation of the Civil Rights Act.

        • lnm3921

          July 17, 2015 at 11:00 pm

          Sourpuss. How quaint. I didn’t think anyone used that term anymore. Kathy darling you put a smile on my face with that one. Blowing kisses and bubbles at you!

          • Kathy11

            July 19, 2015 at 8:19 am

            Slainte.

          • lnm3921

            July 19, 2015 at 8:58 pm

            Unusual toast. Haven’t heard it before but always good to learn something new. You have a Gaelic background?

      • customartist

        July 31, 2015 at 7:37 am

        I cannot imagine the difficulty that trans people must endure, and to attempt to belittle their contributions would be akin to belittling the efforts of slaves in the antibellum south.
        Being Gay and lesbian should endow one with the understanding of the plight of those with lesser status and rights. I guess that is not a given?

        • lnm3921

          July 31, 2015 at 3:10 pm

          Really? Why should it? Racial minorities aren’t all endowed with the understanding of the plight of GLBT people despite their own similar experiences. Heck, there are still issues of racism and sexism within the GLBT community, too.

          You live in a world of idealism which simply isn’t reality. Everyone sadly has prejudices despite being victims of the prejudices of others. Some will try and overcome them while others never will.

  2. lnm3921

    July 16, 2015 at 8:52 pm

    All previous claims to EEOC have always been denied saying GLBT were not covered by existing federal laws. Why the sudden change in interpretation? What’s to prevent a more conservative head of the agency to reverse course and deny that GLBT are covered? It’s happened before under I think the Bush Administration’s appointee.

    I think the conclusion is good but without something in law that explicitly cites GLBT people are protected from discrimination or a SCOTUS ruling saying we are covered once and for all, I don’t feel we can count on this to be permanent solution.

    • MikeinBaltimore

      July 17, 2015 at 2:28 am

      According to the 10th Circuit Court of Appeals in an opinion handed down in 1996, “EEOC’s decisions [are] not reviewable under the
      Administrative Procedure Act (APA)”.

      The case was Bell v Flores, EEOC
      ( http://www.ca10.uscourts.gov/opinions/95/95-1455.pdf )

      If the APA has not been amended (and I don’t think it has), EEOC decisions are final to the specific case, and also to all like cases.

      • Brian's Ions

        July 17, 2015 at 6:32 am

        Thanks. That’s encouraging, too!

      • lnm3921

        July 17, 2015 at 10:56 pm

        Well, the 10th circuit court of Appeals isn’t the final say is it? Their decision can be overruled by the SCOTUS. I never take anything for granted until it’s either codified in law like hate crimes protections.

        Even the SCOTUS rulings can never be taken for granted as final. We lost on sodomy the first time around before it was reversed.

        • MikeinBaltimore

          July 18, 2015 at 2:42 pm

          Unless SCOTUS rules that the APA is UNconstitutional, the APA rules. SCOTUS could rule the decision by the EEOC doesn’t fall under the APA, but the clear language is that the APA says that EEOC decisions cannot be contested in courts of law.

          Or maybe you see any and all situations in the worst light possible? Commonly labeled the ‘Chicken Little’ perspective?

          • lnm3921

            July 18, 2015 at 3:42 pm

            Hardly chicken little. Only devil’s advocate. Even when rulings go our way our enemies always find some other avenue to undermine them. I just don’t want people to think we’ve achieved it all and become complacent. No sooner do we get a major marriage equality win that they try and get a bill into law to undermine that achievement for example giving religious belief exemptions.

            I’ve seen a lot of things go against us over the decades and know our enemies don’t give up either. So excuse me for wanting air tight outcomes and being skeptical. I’ve also seen a lot of things go our way and haven’t ignored those achievements.

            Being any kind of minority that knows hatred and discrimination is never easy. We’re one of the last minorities people could get away with bashing until recently.

            Since we’ve never been able to rely on the EEOC before it’s hardly anything I’ve had personal experience with as such it’s a brave new world. Great if people truly benefit from that ruling going forward.

          • MikeinBaltimore

            July 18, 2015 at 9:13 pm

            In other words, you have the commonly-called ‘Chicken Little’ attitude. ‘Anything that can go wrong will go wrong.’

            What part of the APA wording causes you to have that Chicken Little attitude?

          • lnm3921

            July 18, 2015 at 9:40 pm

            Not in other words, in your words. Anything thing that can go wrong will go wrong is commonly called Murphy’s law.

            There was a song once that used to say: Got it all together don’t you baby? Murphy’s law is sure out to get you!

            I never heard it called Chicken Little Attitude until now.

            I’m not familiar with the APA either or it’s wording. Evidently you’re an expert on it. Did you write it too?

          • MikeinBaltimore

            July 19, 2015 at 1:37 am

            Try doing a bit of research.

            For example:
            ( https://en.wikipedia.org/wiki/Henny_Penny )

          • lnm3921

            July 19, 2015 at 8:57 pm

            I do my bit of research on many issues. I just don’t find reading the APA an exciting way of spending my weekend.

    • Brian's Ions

      July 17, 2015 at 6:31 am

      Good point as to the need for specific (and comprehensive) LGBT civil rights legislation.

      But any administrative finding in favor of non-discrimination ups the ‘change considerations’ ante for future (opposing political party) administrations, of course. It adds the probability of an immediate civil rights challenge should a future administration wish to reverse it. So there’s still lots of value in it.

      • Kathy11

        July 17, 2015 at 2:11 pm

        Fortunately – cases in court are starting to follow the same interpretation. But yes – it’s not a nondiscrim law and it only cover employment. Shh – don’t tell lnm3921 that this was a trans person as well.

        US Court Refuses to Dismiss Transgender Professor’s Sex Bias Suit July 15, 2015 • By Gay City News

        BY ARTHUR S. LEONARD |

        A federal district court judge has denied a motion to dismiss a sex discrimination claim filed by the Justice Department on behalf of a transgender woman against Southeastern Oklahoma State University, a public institution, alleging that she suffered discriminatory treatment and a denial of tenure after she announced her intent to transition.

        Judge Robin J. Cauthron of the US Western District of Oklahoma ruled on July 10 that allowing such an employment claim under Title VII of the 1964 Civil Rights Act is consistent with a growing body of judicial precedents, some sparked by an ongoing project by federal civil rights officials.

        http://gaycitynews.nyc/us-court-refuses-dismiss-transgender-professors-sex-bias-suit/

    • customartist

      July 31, 2015 at 7:23 am

      Just ONE more reason to motivate and to elect a Democratic President in 2016.
      The distinct likelihood that a Republican President could, and would, remove these and other protections, as well as hinder further LGBT protections, is undeniable.
      Vote Democratic! On this do not fail. Educate your friends and relatives.

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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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