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New lawsuit challenges Mississippi same-sex adoption ban

DOMA attorney Roberta Kaplan files lawsuit against 2000 statute

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Robbie Kaplan, Roberta Kaplan, GLAD, DOMA, gay news, Washington Blade
Robbie Kaplan, Roberta Kaplan, GLAD, DOMA, gay news, Washington Blade

Roberta Kaplan is the lead attorney in a new lawsuit challenging Mississippi’s gay adoption ban. (Washington Blade file photo by Michael Key)

Mississippi’s ban on same-sex marriage is now defunct thanks to the U.S. Supreme Court’s historic decision in favor of gay nuptials, but new litigation seeks to finish the job for LGBT families in the state law by challenging the adoption law.

On Wednesday, the LGBT advocacy group Family Equality Council and the Campaign for Southern Equality, which advocates on behalf of LGBT people in the South, filed litigation in federal court against Mississippi’s law banning gay couples from adoption.

The 38-page lawsuit, Campaign for Southern Equality v. Mississippi Department of Human Services, challenges the state law — saying it’s the last in the country that explicitly bars gay couples from adoption — on the basis that it violates the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.

“The Mississippi Adoption Ban writes inequality into Mississippi law by requiring that married gay and lesbian couples and parents be treated differently than all other married couples in Mississippi, unequivocally barring them from adoption without regard to their circumstances,” the complaint says. “As a consequence, the equal dignity of hundreds of families and thousands of children in Mississippi is disrespected and the significant and concrete rights, benefits, and duties that come with legal parentage are denied.”

Enacted in 2000, the gay adoption ban in Mississippi state code consists of nine words: “Adoption by couples of the same gender is prohibited.”

“Those nine words in Mississippi’s statutory code not only nullify, for gay people only, all of the factors otherwise considered relevant in ensuring that adoptions in Mississippi are performed in the best interests of the child, but blatantly discriminate against gay couples who are now legally married,” the complaint says.

The attorneys who filed the complaint are Robert McDuff, an attorney with the Jackson, Miss.-based law firm McDuff & Byrd, and Roberta Kaplan, the New York-based lesbian attorney who successfully argued against the Defense of Marriage Act before the Supreme Court in 2013. Both lawyers represented plaintiff same-sex couples in the Mississippi marriage case.

“Mississippi’s ban on adoption by gay and lesbian couples blatantly discriminates against loving families, unfairly harms innocent children, and plainly cannot be reconciled with the constitutional guarantees of due process and equal protection as recently interpreted by the Supreme Court,” Kaplan said in a statement.

Plaintiff families in the lawsuit consist of four lesbian couples — two who are seeking second-parent adoption for children they’re already raising, and two who are childless but seeking to adopt.

One of the couples is Donna Phillips and Janet Smith, who’ve been together since 1995 and married in Maryland in 2013. They reside in Rankin County, Miss., and have lived in the state their entire lives.

In 2007, Phillips gave birth to an eight-year-old daughter, who remains anonymous in the lawsuit. Because of the state’s adoption ban, only Phillips’ name is listed on the child’s birth certificate, not Smith’s. The child has no legal parent other than Phillips.

The couple has sought to allow Smith to adopt the child because Phillips’ military duties often take her away from home and there’s a possibility Phillips could be killed or seriously injured in the line of duty.

Their efforts have been unsuccessful. Not only has every social worker they have tried to engage to perform a home study rebuffed their request because of state law, some told the couple they feared performing a home study would endanger their standing with the state, according to the lawsuit.

Another plaintiff couple in the lawsuit is Jessica Harbuck and Brittany Rowell, who’ve been together since 2010 and are engaged to wed in Jackson, Miss., in January 2016. The couple is seeking the ability to adopt and say they’re well-suited to take care of children, both financially and emotionally.

“Like many other couples, we are looking into the future and how we want to start expanding our family,” Harbuck and Rowell said in a joint statement. “We feel compelled to adopt because the staggering statistics for children in foster care are daunting. We want to open our home to a child and make them feel safe, wanted, and loved. Every child deserves that. And we would be honored to be able to change the life of a child.”

Rev. Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, said in a statement stories like Harbuck and Rowell’s are common in Mississippi.

“Across Mississippi, there are same-sex couples like Brittany and Jessica who are ready and able to provide a loving, stable home to children and there are waiting children in Mississippi’s foster care system who desperately need a home,” Beach-Ferrara said. “What stands between them is a discriminatory law that must be struck down. It’s time for Mississippi to treat LGBT families as equal in every area of the law — including the right to adopt.”

The other plaintiff couples in the lawsuit are Kari Lunsford and Tinora Sweeten-Lunsford, who are seeking to adopt a child, and Kathryn Garner and Susan Hrostowski, who have a 15-year-old son.

Although Mississippi bans adoption by gay couples, the state actually leads the nation in the percentage of same-sex couples raising children. According to a 2014 study by the Williams Institute, University of California, Los Angeles, 29 percent of the same-sex couples in Mississippi are raising 1,401 non-adult children in their homes.

And there’s an apparent need for more to adopt. According to the lawsuit, 100 children in Mississippi are in foster care and available to be adopted, but haven’t yet been matched with parents.

Mississippi Gov. Phil Bryant said in a statement to the Washington Blade he supports the adoption ban. In 2013, he signed into law a religious freedom measure seen to enable anti-LGBT discrimination in his state.

“The current statutory law in Mississippi prohibits adoption by couples of the same gender,” Bryant said. “This prohibition was added by the legislature in 2000. I hope the attorney general will vigorously defend the State of Mississippi against this lawsuit.”

Rachel Ring, a spokesperson for Mississippi Attorney General Jim Hood, was non-committal about the next steps the attorney general would take.

“We have received the complaint and are reviewing it,” Ring said. “We don’t have a comment at this time.”

The lawsuit comes as LGBT advocates have renewed efforts to ensure equal treatment for same-sex parents in states throughout the country. Just this week, the San Francisco-based National Center for Lesbian Rights launched a campaign known as #Equality4Families to raise awareness to reform state laws.

“No child should ever lose a parent just because the law refuses to recognize them as a family,” said NCLR Family Law Director Cathy Sakimura. “For as long as it takes we will be here, working to bring dignity and full recognition to LGBT parents and their children in every state.”

In Congress, legislation known as the Every Child Deserves a Family Act — introduced by Sen. Kirsten Gillibrand (D-N.Y.) in the U.S. Senate and Rep. John Lewis (D-Ga.) in the U.S. House — would bar any adoption or foster care placement entity that receives federal funds from discriminating against parents based on sexual orientation, gender identity or marital status.

And there have been some recent victories. Last month, a federal judge ordered Utah to change its adoption laws in the aftermath of the U.S. Supreme Court decision on same-sex marriage, instructing the state to place a same-sex couple on their child’s birth certificate.

In 1977, Florida enacted a law prohibiting gay people from adopting, but the statute wasn’t enforced after a court decision against the law in 2011. The state formally repealed the statute under Republican Gov. Rick Scott in June.

Gabriel Blau, executive director of Family Equality Council, said in a statement Mississippi’s law disregards what’s best for children.

“The best interest of children must always be at the heart of family law,” Blau said. “Mississippi’s statute disregards what is best for children, families and America. This blatant discrimination hurts our families and treats them like second-class citizens. Mississippi has the highest rate of same-sex couples raising children in the country. All families — no matter in which state they make their home — deserve to be treated equally, and all children deserve to be protected by legal relationships with their parents.”

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37 Comments

37 Comments

  1. Jay Jay

    August 12, 2015 at 4:25 pm

    Dosent a Child have a right under the US Constitution to be raised by heterosexual parents?

    • Former Representative Elliott

      August 12, 2015 at 4:31 pm

      If so, those heterosexual parents, who abandon for adoption their duly procreated children, should be looking at prison time. Right?

      • Jay Jay

        August 12, 2015 at 4:37 pm

        Try Focusing on the Rights of a Child !
        For Instance a 6 year old that wants a traditional Male Dad and Female Mom!
        The Child Should have a Constitutional RIGHT TO CHOOSE the TYPE of parents that will adopt him or her! Correct?

        • Former Representative Elliott

          August 12, 2015 at 4:42 pm

          Yes, why not let children choose their parents. Let’s add additional categories like eye color, ethnicity, hair color, left handedness or intelligence as well. Shopping for a mommy and daddy could become a new children’s past time. We could open a flagship store at Times Square!

          See how ridiculous you sound?

          • Jay Jay

            August 12, 2015 at 4:48 pm

            Do CHILDREN Have Rights ? or Just ADULTS?

          • Former Representative Elliott

            August 12, 2015 at 4:54 pm

            You never replied to my comment about the heterosexual parents who abandon their duly procreated children. What about that? Are those heterosexual parents trampling on the rights of THOSE children? Should the parents be prosecuted?

          • Jay Jay

            August 12, 2015 at 4:56 pm

            OFF Point!

          • Former Representative Elliott

            August 12, 2015 at 5:06 pm

            More like destroys whatever point you were attempting to make. Otherwise you’d answer.

          • Jay Jay

            August 12, 2015 at 4:49 pm

            Are you afraid they wont pick you?

          • Former Representative Elliott

            August 12, 2015 at 4:51 pm

            You should be afraid they won’t pick you. Ignorance and bigotry are generally considered to be undesirable traits.

          • Jay Jay

            August 12, 2015 at 4:56 pm

            You should know that well!

          • Jay Jay

            August 12, 2015 at 4:56 pm

            I like the idea of adding catagories ….THANKS!

          • Former Representative Elliott

            August 12, 2015 at 5:05 pm

            How about the flagship store at Times Square? We could call it Build-A-1950s Family-Workshop.

          • Jay Jay

            August 12, 2015 at 9:51 pm

            From what youve said Children do NOT have a right to pick their parents when adopted.

          • Former Representative Elliott

            August 13, 2015 at 7:51 am

            I said no such thing, however according to the law in most states, a child must be 18 to choose what parent they want to live with in the case of divorce. In the case of adopted children, they simply want the security and protection of a loving family.

          • Jay Jay

            August 13, 2015 at 1:55 pm

            SO Again everyone has rights …Except Kids who cannont pick their adopted parents or have a GUardian litem represent them in an adoption?

          • Former Representative Elliott

            August 13, 2015 at 2:49 pm

            Give it up Jay – we get that you’re trying to infer that gay parents are “second class” in your tiny little mind. Frankly, no one cares about you, your ignorance or your bigotry. We just feel sorry for you.

          • Jay Jay

            August 13, 2015 at 3:30 pm

            Never said that but I guess your refusal to admits kids have rights to pick parents speaks volumes

          • Former Representative Elliott

            August 13, 2015 at 3:36 pm

            Because legally, they do not until they are 18.

          • Jay Jay

            August 13, 2015 at 4:30 pm

            Wrong ! Which is why there is a process called Guardian ad litems in Court!
            ALSO FYI in Divorce cases the Judge will Frequently listens to kids or their GL about which parent they want to live with.
            To Bad Your self serving, self rigteous, arrogant and ignorant agenda demands rights for you being gay… But NOT For Kids gay or Straight !

            Im glad the Whole gay Community is NOT Like You!

          • Former Representative Elliott

            August 13, 2015 at 4:42 pm

            Oh piss off you complete waste of time. Go take your ignorance to WND or Lifesite news.

          • Jay Jay

            August 13, 2015 at 4:49 pm

            WOW ! Ignorant of Divorce / Adoption Law, Ignorant of Childrens Rights, Ignorant of Constitutional Rights of Others, Believes your rights are More Important than others, and thinks you are a “good spokeperson for the Gay Community….I hope you are on drugs otherwise you are a very poor excuse for a human being! I would not let you adopt a dead dog …let alone a child!

          • Former Representative Elliott

            August 13, 2015 at 4:59 pm

            Now you’re just frothing at the mouth and making crap up. Why don’t you wipe down your spittle-flecked monitor and take a xanax. All you’re trying to do here is stir up BS. We don’t care about you. You’re a worthless waste of time. Stop pretending you know what I think. (except of course that I think you’re a complete idiot.)

          • Jay Jay

            August 13, 2015 at 8:55 pm

            In alot your post you say WE..Do You prented to speak for the Entire Gay Community?

            Just a note on parenting..A good parent puts the Rights of Children above theirs, a good parent sacrifices for thier kids and good Parent WILL LET A CHILD CHOOSE WHO TO LIVE WITH!

            Try reading the Constitution or a book on childrens Rights you obviously Believe ONLY Gay adults have rights!

  2. Jay Jay

    August 12, 2015 at 4:55 pm

    The Child Should have a Constitutional RIGHT TO CHOOSE the TYPE of parents that will adopt him or her!
    A court appointed attorney or lay person could act as a Guardian Ad litem for the child.
    They would advise the Court of the childs preference ie Traditional Heterosexual parents or Homosexual Parents and report to the Court!

    Today …Dogs have more rights than children in the USA.

  3. Jay Jay

    August 12, 2015 at 5:03 pm

    Does a Child have a right under the US Constitution to Choose Who they will be Raised by? ie Heterosexual parents ? or Homosexual parents?

    And once they make that decision; do they have a right to pick 2 pople from that group?

    • Former Representative Elliott

      August 12, 2015 at 5:07 pm

      See below. You are now posting SPAM. Duly reported.

      • Jay Jay

        August 12, 2015 at 5:17 pm

        Funny you cant argue facts or theroys or solutions so you resort to an ad hominum attack ! Try growing up …or go post on the disney board!

        • Former Representative Elliott

          August 12, 2015 at 5:20 pm

          Actually, I argued a theory and asked you to respond. Since it destroys your attempt at a point, you have not replied. Now, facing a losing battle, it is you who are attacking me. Why don’t YOU go to the Disney board… You’ll find plenty of kids who will tell you that all they really want is the protection of a loving family.

          • Jay Jay

            August 12, 2015 at 7:35 pm

            Please get Real Get a life and Argue Facts or go home

          • Former Representative Elliott

            August 14, 2015 at 7:50 am

            Yes, Va Jay Jay, you should do that.

          • Jay Jay

            August 12, 2015 at 7:38 pm

            SEE Above …Do they have a right…cant answer the question ? Does the cat have your tongue?

          • Jay Jay

            August 12, 2015 at 7:48 pm

            You want Rights But are Afraid if any Kids gets rights is that It?

    • Jay Jay

      August 12, 2015 at 7:37 pm

      I find it Very Interesting that No One has the Guts to respond to the above Question!

  4. Brian's Ions

    August 12, 2015 at 6:02 pm

    Kudos to Kaplan … AGAIN! And thanks to the courageous plaintiffs for pursuing their cases. You’re making history… and all of us proud.

    Mississippi LGBT family values (and historic clout) … Cool! Who knew? (Perhaps some of us were distracted by Lance Bass…ahem).

    The 14th Amendment to the Constitution has teeth– for ALL Americans. I suspect Kaplan and McDuff will demonstrate how it can bite hateful little Magnolia politicians and their sponsoring bigots in the butt.

    • StraightGrandmother

      August 12, 2015 at 6:17 pm

      You are right the Plaintiffs are the real Heroes, they are fighting for their families.

  5. StraightGrandmother

    August 12, 2015 at 6:13 pm

    REALLY thorough article. Well researched and well written.
    Three Cheers for Robbie Kaplan!
    Sic ’em Robbie!

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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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