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Trump’s Muslim ban recalls restrictions on gay, HIV-positive people

Longstanding prohibitions undone in Bush, Obama administrations

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Donald Trump, Values Voter Summit, gay news, Washington Blade
Donald Trump, Values Voter Summit, gay news, Washington Blade

Donald Trump has proposed a ban on Muslims entering the United States. (Washington Blade photo by Michael Key)

Donald Trump’s plan to bar Muslims from entering the United States has been criticized as unconstitutional and inhumane, but it’s not unprecedented, as gay and HIV-positive people once faced similar prohibitions.

The United States barred gay people from entering the country by statute until 1990 and HIV-positive people from entering until the HIV travel ban was finally lifted in 2010.

The ban on gay people first appeared under the Immigration Act of 1917, which was passed by Congress in an override vote of President Wilson’s veto at a height of xenophobic sentiment in the United States. The law prohibited of a slew of classes of individuals from entering the United States, including anarchists, polygamists and those above age 16 who were illiterate.

The law also barred “persons of constitutional psychopathic inferiority,” which almost 60 years before the American Psychological Association would declassify homosexuality as a mental illness was understood to mean gay people.

With the Immigration & Nationality Act of 1952, Congress sought to further clarify its intent by replacing the language with an exclusion on immigrants “with a psychopathic personality,” which were explicitly defined as “homosexuals or sex perverts.” But the bill signed into law by President Truman contained only the language “psychopathic personality.” A Senate Judiciary Report on the bill reveals that phrase was considered “sufficiently broad to provide for the exclusion of homosexuals and sex perverts.”

Gay former Rep. Barney Frank, who led efforts to change the law in 1990 during his tenure in Congress, told the Washington Blade in a brief interview Thursday the gay ban wasn’t fully enforced, but was “harassment and it was a sign of contempt.”

“I think the Muslim ban is worse in many ways in terms of its impact on the rest of the world,” Frank said. “Unfortunately, when America was banning gay people, it was more in synch with the rest of the world. The Muslim ban is outrageous in terms of human rights, but it’s even worse politically in terms of foreign policy.”

In the 1960s, Clive Michael Boutilier, a Canadian national living in New York, challenged the interpretation of language as a prohibition on gay people entering the United States. When he applied for U.S. citizenship in 1963, he was instead placed in deportation proceedings because he admitted he was arrested in 1959 on charges of sodomy. (The charge was later reduced to simple assault and subsequently dismissed.)

Boutilier didn’t deny he was gay. At the request of the government as part of his citizenship application, he summited an affidavit outlining his sexual behavior in great detail. He said he had his first homosexual experience at age 14 and was a passive participant in the encounter. In the period since he entered the United States in 1955, Boutilier said he had sex with a man on average three or four times a year. Since 1959, Boutilier said he shared an apartment with a man with whom he was having sex.

Boutilier took issue with the language of the ban. Even though he was gay, he said that didn’t mean he had a “psychopathic personality.” But his appeal of the special inquiry officer’s finding was rejected by the Board of Immigration Appeals and the U.S. Second Circuit Court of Appeals.

When his petition was accepted by the U.S. Supreme Court, Congress and the progressive Kennedy and Johnson administrations were so concerned Boutilier would prevail they yet again changed the statutory language. One year after passing the Civil Rights Act of 1964, Congress changed immigration law in 1965 in a way that banned people from entering the United States who engaged in “sexual deviation.”

As it turned out, the concerns of Congress were unfounded. The famously progressive Warren Court, which ended school segregation and overturned bans on interracial marriage, determined in 1967 the “psychopathic personality” language was intended for gay people based on legislative history.

In a 6-3 decision, former U.S. Associate Justice Tom Clark determined the language was a “term of art intended to exclude homosexuals” and therefore not void under the Fifth Amendment because of vagueness.

“The Government clearly established that petitioner was a homosexual at entry,” Clark wrote. “Having substantial support in the record, we do not now disturb that finding, especially since petitioner admitted being a homosexual at the time of his entry. The existence of this condition over a continuous and uninterrupted period prior to and at the time of petitioner’s entry clearly supports the ultimate finding upon which the order of deportation was based.”

In his dissent, former U.S. Associate Justice William Douglas said the term “psychopathic personality” is “much too vague by constitutional standards for the imposition of penalties or punishment” and invoked the research of contemporaneous sexologist Alfred Kinsey in defense of gay people.

“It is common knowledge that in this century homosexuals have risen high in our own public service—both in Congress and in the Executive Branch—and have served with distinction,” Douglas writes. “It is therefore not credible that Congress wanted to deport everyone and anyone who was a sexual deviate, no matter how blameless his social conduct had been nor how creative his work nor how valuable his contribution to society.”

Frank told the Blade when he was first seated in Congress in 1981, he was “determined to get rid of” the gay travel ban. Although he said the language at that time didn’t have many defenders, he had to resort to a tactic other than outright repeal to make the change.

“My problem was people didn’t want to vote explicitly to repeal it,” Frank said. “So the strategy was to take the whole section which embodied it, and rewrite the section to leave it out so nobody actually had to vote to repeal it.”

In 1990, Congress passed and President George H.W. Bush signed into law the Immigration Act of 1990, which reversed the gay ban in addition to making other changes to immigration law.

“I am also pleased to note that this Act facilitates immigration not just in numerical terms, but also in terms of basic entry rights of those beyond our borders,” Bush said in a signing statement at the time. “S. 358 revises the politically related ‘exclusion grounds’ for the first time since their enactment in 1952.”

Boutilier is considered an unsung hero of the gay rights movement, although Marc Robert Stein, an associate professor of history at York University in Toronto, Ontario, made public details about Boutilier’s life in a 2005 article, “Forgetting and Remembering a Deported Alien.”

Presumably distraught over the Supreme Court’s decision, Boutilier attempted suicide before leaving New York. After surviving a month-long coma that left him brain-damaged with permanent disabilities, he moved to southern Ontario, where his parents cared for him for 20 years. According to one of his relatives, he died of complications from heart disease in April 2003, weeks before Canada legalized same-sex marriage and months before the U.S. Supreme Court struck down state bans on sodomy in Lawrence v. Texas.

The HIV travel ban has a similar story. It was instituted in 1987 at the height of the AIDS crisis by the Reagan administration, which added HIV to the list of “dangerous and contagious diseases” that excluded people from entering the country. That same year, Congress reinforced the policy by passing an amendment from the late Sen. Jesse Helms adding HIV infection to the exclusion list.

Although the Immigration Act of 1990 allowed the Department of Health & Human Services to lift the HIV travel ban, that attempt was thwarted after an outcry from social conservatives. The ban was strengthened in 1993 under reauthorization of the National Institutes of Health, which included language specifying “infection with the etiological agent for acquired immune deficiency syndrome” was reason to bar someone from the United States.

Carl Schmid, deputy executive director of the AIDS institute and champion of lifting the HIV travel ban, said the policy presented complications on determining who was HIV positive — something he says he thinks would be duplicated if Trump’s Muslim ban went into effect.

“It’s really difficult to know who’s HIV positive and who’s not,” Schmid said. “So you connect that to Muslims as well. Who is to know just by looking at someone? I don’t think on your passport it has what religion you are.”

Schmid said the only way customs officers know if a traveller had HIV was if that person was carrying related medications.

In 1989, Dutch educator Hans Paul Verhoef was detained for five days in Minneapolis by immigration officials when they found azidothymidine with him en route to San Francisco for an AIDS conference. A waiver was obtained, but not until the conference ended.

The ban also kept the United States from hosting the high-profile annual international AIDS conference. When the conference was held in San Francisco in 1990, more than 70 organizations, including the International Red Cross, boycotted the event because of the HIV travel ban.

Congress would statutorily lift the ban under the administration of President George W. Bush when it renewed his President’s Emergency Plan for AIDS Relief in 2008. But the process wasn’t finished; President Obama had to administratively change federal rules, which finally resulted in the lifting of the ban in 2010.

“We lead the world when it comes to helping stem the AIDS pandemic — yet we are one of only a dozen countries that still bar people with HIV from entering our own country,” Obama said in 2009 upon announcing plans to lift the ban. “If we want to be the global leader in combating HIV/AIDS, we need to act like it. And that’s why, on Monday my administration will publish a final rule that eliminates the travel ban effective just after the New Year.”

Consequently, the nation hosted in 2012 the international AIDS conference in D.C. for the first time since the boycott of the U.S.-held conference in 1990.

Although Trump is considered the front-runner for the GOP nomination, the passage of a Muslim travel ban similar to the bans on gay and HIV-positive people the nation has had in the past seems unlikely.

Frank said he doesn’t think Congress would enact the restriction because “the majority of members know how stupid it is.”

“I don’t think there’s a remote chance of Donald Trump becoming president, but secondly, we’ve already seen it has virtually no support among Republican members of Congress with a Republican majority,” Frank said.

Joe Solmonese, former president of the Human Rights Campaign at the time the HIV travel ban was lifted, said the past treatment of gay people in this country, including travel prohibitions, makes it imperative for the LGBT community to speak out when other minority communities are demonized.

“That’s what’s really important for people to remember,” Solmonese said. “As we continue to be more and more powerful, and less and less the victim of this sort of rhetoric, I think we’ve got a moral obligation to pay attention to — and to speak up and have something to say — about other groups of people who become the victims of this kind of rhetoric.”

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5 Comments

5 Comments

  1. lnm3921

    December 13, 2015 at 5:44 pm

    Interesting historical account about gay travel bans. However, how many travel bans on homosexuals exist in the Middle East that would deny entry to openly gay people? in fact, in many Muslim countries we can expect imprisonment, physical punishment for the “crime”, long or life imprisonment or even the death penalty.

    How would these people some of you are so eager to allow entry to the USA react to an openly gay person? Would they defend the rights of gay people in their countries and give them shelter if they faced death or imprisonment?
    So we are supposed to be welcoming to anyone, including those that may bring such homophobic hostile attitudes to this country? Some of you ignore the fact that during the last terrorist attack by that couple in California, they knew one of their victims was gay. I’m sure that was a contributing factor in their murder of him.

    These people aren’t US citizens like the Japanese that were interred during WWII. They also aren’t classified as criminals in their countries, with mental problems like gay people were.

    I just see a lot of you as foolishly advocating for people who wouldn’t do a thing for you and may in fact promote your torture, imprisonment and death in the countries they are coming from.

    • Sean Hansen

      December 14, 2015 at 12:23 pm

      The problem is one you’ve highlighted in your denunciation here. Every time you refer to the group you’re advocating warding against, the reference is to “these people”. What people?

      The article bears a warning against painting danger with too broad a stroke. It’s reasonable to take precautionary measures against epidemics, but banning everyone with HIV from entering the country had negative long-term effects that were difficult to undo, and was enacted in the first place based on fear and prejudice rather than reason and science.

      Likewise, it makes sense to take action against those who explicitly wish you harm. However, the country of one’s birth is not an explicit position, nor is being of the same religion as some terrible people (which is true of all of us, incidentally) a reasonable measure of guilt. Once “the people” that need to be opposed have actually been identified, then action can be taken.

      i.e. measure twice, cut once.

      • lnm3921

        December 14, 2015 at 7:38 pm

        the status quo is that anyone from the middle east can come to this country without regard to extremist ideology. No one in U.S. immigration in particular screens for hostile attitudes toward glbt Americans.

        People banned from coming here based on hiv status were not coming here with the threat of murdering people like some from the middle east are now.

        How are you not painting with a broad stroke by assuming there is no reason for concern? Let me hear these Muslims express non- violence toward us and not oppose our freedom and equality before blindly extending it to them.

  2. Philip Chandler

    December 13, 2015 at 10:24 pm

    I am openly gay, and entered the United States on a tourist (B2) visa in 1986, when the prohibition against gay persons entering the country was still on the books. I applied for, and obtained, my “green card” in 1989 (through employer sponsorship). At that time, I was deeply closeted, and I did not “act gay” (in terms of possessing or exhibiting the traditional stereotypes). Fortunately, the issue was never raised — I never had to answer the question about whether or not I was gay, because nobody ever asked me this question.

    Had I been asked, I would have lied. I know that this would have been somewhat less than honorable, but I did not view it as my duty to follow a law which blatantly violated my conscience, and I certainly did not wish to be put on an airplane and sent back to Johannesburg. Furthermore, I did not experience my first sexual encounter with another man until 1989, after I obtained my “green card.” Technically, then, I would not have lied had I been asked the question — at that time, no distinction was made between sexual behavior and sexual orientation by the courts, by the legislatures, and by the executive branches of both the state and US governments.

    By the 1980s, the ban against gay men and lesbians entering the country was very sporadically and occasionally enforced. This was in part due to the fact that the public health service refused to certify gay persons as having “psychopathic personalities,” noting that the American Psychiatric Association had removed homosexuality from the list of mental disorders in 1973 (when the Diagnostic and Statistical Manual of Mental Disorders was published in its third edition in 1980, all references to homosexuality were removed, with the exception of “ego-dystonic homosexuality” — when DSM-IV was released, “ego-dystonic homosexuality” was also removed, leaving the manual entirely devoid of references to homosexuality as a mental disorder).

    I remember when President Bush signed repeal of the gay ban into law. I was very relieved to note that I could no longer be deported!

    PHILIP CHANDLER

  3. ShadrachSmith

    December 14, 2015 at 11:00 am

    Trump doesn’t want to murder you, faithful moslems do.

    So, that is something to consider.

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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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