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Some LGBT advocates not on board with Equality Act

Activists hold meeting to discuss path forward for bill

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Gregory Angelo, Heather Cronk, Wade Henderson, gay news, Washington Blade
Gregory Angelo, Heather Cronk, Wade Henderson, gay news, Washington Blade, Equality Act

From left, Log Cabin Republicans Executive Director Gregory Angelo, GetEQUAL Co-Director Heather Cronk and Leadership Conference on Civil and Human Rights President Wade Henderson. (Washington Blade photos of Angelo and Cronk by Michael Key; photo of Henderson courtesy USDA)

Ahead of the expected introduction this week in Congress of comprehensive LGBT legislation known as the Equality Act, LGBT advocates met in D.C. on Tuesday to discuss the path forward for the bill — although they don’t agree that the measure is the right direction to take.

Numerous advocates confirmed they attended the meeting, which took place at the headquarters of an umbrella civil rights group known as the Leadership Conference on Civil & Human Rights. Scott Simpson, a spokesperson for LCCHR, confirmed the meeting took place, but added it was a closed-door discussion and declined to provide additional information.

The meetings at LCCHR are commonplace for the coalition of LGBT advocates — which heretofore had met to discuss strategy for the Employment Non-Discrimination Act. But now the meeting was focused on the Equality Act days ahead of its expected introduction in Congress. The new legislation is set to address not just anti-LGBT employment discrimination, but education, public accommodations, credit, federal programs, jury service and housing.

Attendees were largely tight-lipped about the meeting because of its off-the-record nature, although one advocate who spoke about it to the Washington Blade said there was an underlying disagreement about strategy. The disagreement stems from the apparent decision that Rep. David Cicilline (D-R.I.) and Sen. Jeff Merkley (D-Ore.) intend to make the legislation basically consist of amending the Civil Rights Act of 1964 and other civil rights laws to include sexual orientation and gender identity.

For starters, whether LCCHR itself will support the legislation is unclear. Even prior to the announced plan to introduce the bill, sources have told the Washington Blade amending the Civil Rights Act to include LGBT protections makes some longtime civil rights advocates uneasy because it potentially opens the historic law up to harmful amendments.

Although LCCHR has supported iterations of ENDA in the past, the organization didn’t respond to the Washington Blade’s request for comment on whether the organization will support the Equality Act upon its introduction.

Wade Henderson, president of the LCCHR, is quoted in a Wall Street Journal article earlier this month as expressing concern about the bill.

“Some are concerned about opening up arguably the most important statute Congress has ever enacted for the issue of racial discrimination,” Henderson said.

Heather Cronk, co-director of the LGBT grassroots group GetEQUAL, has previously objected to the idea of amending the Civil Rights Act to enact LGBT non-discrimination protections and told the Blade on Tuesday she’s “not sure” if her organization would be able to support the Equality Act.

Cronk cited concerns that the proposal would open up the Civil Rights Act to amendments, which she said is “way past dangerous,” but also said the bill doesn’t go far enough to protect LGBT people.

Amid frequent media reports of police brutality and harassment, Cronk said black LGBT people have unique challenges in the criminal justice system that should be addressed as part of the proposal. Additionally, Cronk faulted the measure for not addressing detention and deportation of LGBT immigrants, who face unusually high rates of violence in the immigration system.

“We’ve been really clear that we don’t support amending the Civil Rights Act because there’s so many potential downfalls, but also because amending the Civil Rights Act actually doesn’t fully protect LGBTQ folks in the unique way that we need, and so we continue to advocate for a standalone bill,” Cronk said.

But the mainstream view of LGBT advocates is praise and excitement ahead of the introduction of the bill. Amid media reports the legislation would be introduced in the coming days, the Human Rights Campaign and the Center for American Progress issued statements in support of the measure.

HRC President Chad Griffin said in a statement the non-discrimination bill would “create permanent and clear protections to ensure that all employees are hired, fired or promoted based on their performance.”

“No one in our community should be at risk of being fired, evicted from their home, or denied services because of who they are or whom they love,” Griffin said. “There is an unacceptable patchwork of state-level protections for LGBT people, and more than half of LGBT Americans live in a state that lacks fully-inclusive non-discrimination laws. The time has come in this country for full, federal equality, and nothing less.”

The Center for American Progress statement cites statistics on the importance of passing the legislation. According to the organization, one in 10 lesbian, gay, and bisexual workers reports being fired because of their sexual orientation, one in four transgender workers reported being fired because of their gender identity and one in four same-sex couples experienced discrimination when trying to buy a home according to one study.

Mara Keisling, executive director of the National Center for Transgender Equality, told the Blade she’s in the camp of advocates supporting the bill as it has been proposed.

“In a nutshell, I’ll say that I’ve been very interested for 10 years in expanding anti-discrimination away from just being about employment and becoming other things, and I think this bill really will expand our baseline to be about more than just about employment,” Keisling said.

Although Keisling acknowledged changes could be made to the bill, she wouldn’t immediately identify them and said legislation often is altered in the days before introduction anyway.

Responding to concerns raised by GetEQUAL, Keisling said her organization also supports efforts to change the immigration and criminal justice system — in addition to updating the Voting Rights Act and insurance coverage for transgender people — but doesn’t expect that to be part of the Equality Act.

“This isn’t a message bill where we’re just dumping the LGBT stuff and hoping we get it all,” Keisling said. “This is a bill that will be cohesive, something that we all really want and need and expect to pass. Not that putting that in would make it unpassable, [but] anytime you add something to a bill you make it harder to pass because someone’s going to have a complaint with every tiny bit of it.”

National Center for Transgender Equality, gay news, Washington Blade

Executive Director of the National Center for Transgender Equality Mara Keisling (Washington Blade photo by Michael Key)

For now, GetEQUAL may be unique in its reasons for withholding support for the bill. But in 2013, the group was first to withhold support for ENDA over the legislation’s religious exemption — a position that virtually every LGBT group later adopted with the exception of HRC, NCTE and Freedom to Work.

Yet another concern, cited by Log Cabin Republicans, is the lack of GOP involvement in the legislation. According to a “Dear Colleague” letter from Cicilline, lawmakers have until Thursday at noon to sign on as an original co-sponsor, but no Republican supporter is expected.

Gregory Angelo, Log Cabin’s executive director, slammed the process leading to the introduction of the bill as a partisan attempt to make Republicans look bad.

“Considering Republicans control the House and the Senate — and will control at least the House for years to come, if not both chambers — it is deeply concerning that this legislation has been drafted with next to zero input from Republicans,” Angelo said. “Even Republican LGBT allies feel they were alienated by the process, which indicates this bill was drafted more to be a partisan cudgel than a pragmatic LGBT non-discrimination bill.”

Angelo declined to comment on whether his organization will support the legislation, saying Log Cabin would issue a statement on Thursday.

The offices of Cicilline and Merkley haven’t responded to repeated requests for comment on the bill or criticism over the proposal.

LGBT advocates weren’t the only groups set to meet Tuesday about the Equality Act. Senate Democrats were set to receive a briefing from Merkley on the bill during their weekly closed-door caucus, but had to reschedule the discussion because they ran out of time.

Senate Minority Leader Harry Reid (D-Nev.) noted plans for the discussion during his weekly news conference on Tuesday when the Washington Blade asked if he’d be an original co-sponsor of the Equality Act.

Reid said co-sponsoring the Equality Act “sounds like something I would agree to,” but he needs to know more about the legislation. Further, he said Merkley would speak on the bill during next week’s all-caucus lunch.

Also on Tuesday, Drew Hamill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), confirmed his boss would be an original co-sponsor of the House version of the Equality Act.

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14 Comments

14 Comments

  1. David Hamburger

    July 22, 2015 at 4:29 am

    Gee, Log Cabin not supporting pro-LGBT legislation that they know that Republicans in Congress will oppose. How shocking! That NEVER happens!
    LOL!

    Do they actually think that they matter in any way? Maybe when they actually do something for LGBT rights, instead of ONLY fighting again Democrats, they’ll be relevant again.

  2. DFW EMS

    July 22, 2015 at 6:42 am

    The Log Cabin Republicans continue to make themselves less and less relevant. If they can’t get behind a comprehensive LGBT anti-discrimination law, then they are utterly useless as a political group standing for LGBT equality. One could even say they are “traitorous.”

    Where are the republicans stepping up to the plate to advance LGBT rights? If they truly existed, it wouldnt always have to be the Democrats bringing bills to the floor.

    If they really believe that they can bring Republican support to LGBT causes, then they should step up to the plate now and win bipartisan votes for this bill – without watering it down. I doubt that it is possible, beyond a small handful of votes.

    • lnm3921

      July 22, 2015 at 10:57 pm

      Why can’t groups like Log Cabin take the lead in obtaining GOP sponsors for the bill instead of whining about it? What’s the sense of identifying as a gay group if you’re not going to push for GLBT issues within the GOP?

      Instead of being lap dogs to make conservatives look compassionate, they should be more aggressive and vocal for our rights rather than settling for whatever bone of recognition is tossed to them. Stop wagging your tails and being petted by the GOP leadership, rolling over on command and actually start barking and biting when necessary! They need to stop acting like leeches sponging off of the rights that other GLBT activist achieve for them and start doing some actual work to achieve those rights!

      Either GOP sponsors agree that discrimination against GLBT in the areas the bill seeks to address is wrong or they don’t. What can the GOP add that hasn’t already been covered?

      Their social conservatives will try and add amendments to it if anything to water the legislation down and give Huge concessions to our enemies. That is assuming the bill gets a fair up and down vote in the first place. You know they will use the religious liberty card to justify it.

      At least this should be a wake up call that despite having achieved marriage equality, hate crimes legislation, ending Sodomy laws and DADT, we are persona non grata in general when it comes to the GOP. We are the wedge issue they exploit to win votes against us.

      • DFW EMS

        July 24, 2015 at 1:11 am

        totally agree.

        i predict, the bill is introduced. Republicans try to amend it with the religious liberties nonsense, then that either succeeds (and the whole bill passes, until it is vetoed by Obama) or the amendment fails and then the Republicans blame Democrats for not being able to compromise. Either way, we get nothing this time around.

  3. weshlovrcm

    July 22, 2015 at 7:33 pm

    So because House and Senate Republicans will not support this bill, it’s a “partisan attempt to make Republicans look bad?” Wanting protections in employment, public accommodations, etc. is actually just a ploy to make “Republicans look bad?” Give me a break! No one has to lift a finger to make Republicans look bad, they do it themselves every day!

  4. TampaZeke

    July 22, 2015 at 8:33 pm

    Here’s the deal, it’s usually your fat ass, and not your clothes, that makes your ass look fat and it’s usually the bad things that Republicans say and do, and not nefarious Democratic schemes, that make Republican’s look bad.

  5. ERuth

    July 23, 2015 at 6:07 pm

    This is incorrect. There were no bisexual organizations or leaders invited to attend these meetings so they were only interested in lesbian, gay, and transgender opinions. Yet again, a huge percentage of the people that make up the entire LGBT community (statistics show up to 50%) we left out of the discussion and out of any strategizing around The Equality Act. Why doesn’t the press ever ask these major organizations why they continually ignore bisexual organizations, leaders, and issues?

    • DFW EMS

      July 24, 2015 at 1:21 am

      I’m curious about your perspective on this.

      It is certainly true that bisexuality gets left out of many social conversations, and people continue to rehearse the tired old myths about bisexuals. I’m with you on that – totally!

      However, what I’m not clear on is if in our political battles for marriage, and now non-discrimination laws, bisexual interests are substantively different from gay and lesbian interests.

      In other words, I guess I’m saying that unless there are substantive matters of rights and law specific to bisexual life that are separate from those of lesbians and gays, I don’t know that can really say bisexuals’ interests aren’t being represented.
      I’m all for inclusion and collaboration. But please let me in on what “bisexual issues” are getting left out. (I’m sincere in asking, here.)

      • ERuth

        July 26, 2015 at 10:09 pm

        Thank you for asking, sincerely. I wonder if, with your
        reasoning, the same could be said if all the representation of the community was by gay men. Well, lesbians have the same issues so they really don’t have to be at the table. Hmmm, I doubt it.

        Let’s look at the statistics from the Williams Institute: “Among adults who identify as lesbian, gay, or bisexual, bisexuals comprise a slight majority (1.8% compared to 1.7% who
        identify as lesbian or gay).” So the majority of our community identifies as bisexual, but no bisexual organizations or leaders were invited to this meeting. Does that seem fair to you? It says distinctly LGBT, so the leadership ought to reflect that.

        In terms of issues, of course bisexual issues overlap with the gay and lesbian community. In fact, seeing that there are actually more bisexual people than gays and lesbians it really could be said that lesbians and gays have similar issues to
        bisexuals. It’s all in the perspective.

        My last point is that bisexuals experience all the same discrimination, harassment, bullying, and pressures to not live totally out lives as gays and lesbians. The effects of those experiences are reflected in the statistics that show bisexual people have even higher suicide, mental health, and substance abuse rates than lesbians and gays. We deserve to be at the table discussing the policies that will affect our lives.

        • DFW EMS

          July 27, 2015 at 12:00 am

          Thanks for you answer. I would never imply that bisexuals shouldn’t be represented at the table when discussion matters of mutual concern are underway. – or lesbians for that matter.

          It just strikes me as possible, at least in principle, that each group (L G or B) is perfectly able to speak on behalf of the other with respect to the kind of matter at hand, in this instance: strategy for passing a comprehensive anti-discrimination law. In principle, at least.

          That said, I am concerned about reports of white gay male dominance at organizations such as the HRC – and, in general, in the way that even in the LGBTI coalition, we can easily identify instances where male, monosexual, cis, white, and/or middle-class privilege seems to bubble up to the surface. If we allow that to happen, we could end up in the troubling situation of leaving certain less-priviledged groups behind… So, please consider me an ally to any internally marginalized constituencies.

          I was unaware of the stats you cite that show higher suicide, mental health, and substance abuse rates for bisexuals. That is unfortuntate – and surprises me. I would have guessed the cultural problems confronting the bi community (the way so many people still rehearse the old bi myths; the effects of heteronormativity in the lives of bisexuals) would be the biggest issues *specific* to bisexuals.

          In any event, in this instance, the anti discrimination law wouldn’t be addressing any of those.

          It would be great to have balanced representation around the table at such meetings, ideally, sure. But, I also think that L, G, and B groups have a shared history of understanding each other’s political and legal needs. Call me an optimist.

          Nevertheless, once we get those remaining legal fights squared away, I think we’ll have to turn and focus on the social, cultural and psychiatric issues that remain for the bi community.

          • Thomas Leavitt

            July 27, 2015 at 3:54 pm

            There are legal issues clearly specific to the bisexual community… immigration cases, for example, in which the legitimacy of an applicant’s marriage to a different sex partner is questioned, because they are “really gay” (see Ivo Widlak), or their bisexuality is questioned (and thus risk of persecution), because they have a record of different sex attractions (which invalidates any record of same sex attractions).

            Research shows that outreach and programing aimed at gay men and lesbians often fails to reach or serve bisexuals, who often don’t see themselves as part of the queer community due to biphobic experiences with peers and service providers (they tell medical professionals they are gay, lesbian, or straight, for example, to avoid questioning of their attractions and biphobic comments).

            Bisexual (and transgender) are terms that are completely missing from the Supreme Courts decision on marriage equality. Certainly, our same-sex marriages are now legal everywhere, but being omitted from possibly the most significant historical document in American queer history would seem to be an issue specific to our communities as well.

            The assumption that when gay and lesbian interests are served, bisexual interests are served, is based on a model of bisexuality that treats us as “part gay” or “part lesbian”, rather that distinctly and holistically bisexual.

          • DFW EMS

            July 28, 2015 at 1:30 am

            Oh. Interesting. Thank you for pointing those out. That is exactly the kind of information on bi legal causes I wanted to hear.

          • DFW EMS

            July 28, 2015 at 1:38 am

            One other thought though to add to that. With regards to the Obergefall decision on marriage, it has been covered in odd ways in the press. It is not actually a case about “same-sex marriage” or “gay marriage”. Both of those would exclude transgender people. The latter seems to ignore bisexual identities.

            In fact, the ruling establishes a right to “marriage without regards to gender.” That is inclusive of all groups. I remember readings about cases that were out there in a holding pattern which involved a heterosexual married couple, one of whom had transitioned within the marriage. Prior to Obergefall, transitioning nullified the marriage if they were in the wrong state. The report indicated that such cases are now set aside and the marriages are intact.

            So, it seems to be clear that Obergefall is inclusive of B’s and T’s.

            However, how that will play out in immigration cases of the kind you mention is uncertain.

  6. DysGrntVeteran

    July 24, 2015 at 11:45 am

    Log cabin republicans are nothing more than self hating collaborators who would vote against their own rights if Mitch McConnell asked them too.

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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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