In the aftermath of the historic decision in favor of marriage equality, the next LGBT rights issue the courts will likely settle is the right for transgender people to use the restroom consistent with their gender identity, although legal experts have different predictions on whether the endgame is the Supreme Court or lower courts.
Last week, the U.S. Supreme Court weighed in on the case of a transgender Virginia student whose school is barring him from using the boy’s restroom by issuing a stay blocking a ruling in his favor from the U.S. Fourth Circuit Court of Appeals from taking effect.
The law supporting the case for Gavin Grimm, a student at Gloucester High School, is Title IX of the Education Amendments of 1972. The Fourth Circuit determined the prohibition on gender discrimination in schools requires the school to allow Grimm to use the restroom consistent with his gender identity.
Observers have predicted the 5-3 stay in the case indicates the Supreme Court will grant review in the case as part of its upcoming term. After all, issuing a stay requires a vote of five justices on the Supreme Court, but granting a writ of certiorari (or agreeing to take up a case) takes a vote of four.
But legal experts denied that scenario will necessarily unfold of the Supreme Court accepting the Grimm case and settling the transgender restroom issue with that case.
Jon Davidson, legal director for Lambda Legal, said although the Supreme Court may decide to take up the Grimm case, the granting of a stay “doesn’t indicate for sure that they will grant cert.”
“There have been multiple cases where the Supreme Court has granted a stay of a lower court and then denied cert after it’s granted stay pending consideration of a cert petition,” Davidson said.
Ilona Turner, legal director of the San Francisco-based Transgender Law Center, said agreement from the Supreme Court to hear the case is “pretty unlikely” because the Fourth Circuit decision “is so legally sound” and the issue is new in federal courts.
“Usually the Supreme Court will only take up review if the lower courts and specifically the federal courts of appeal are in disagreement with one another, if there’s a real deadlock among the federal courts of appeal, and we are very far from anything like that in terms of Title IX’s protection for transgender students,” Turner said.
The Supreme Court initially granted stays pending review of federal appeals court decisions in favor of marriage equality in the Tenth, Fourth and Seventh Circuits, then ultimately declined to hear the cases. Only after the Sixth Circuit upheld bans on same-sex marriage, creating a split among the circuits, did the Supreme Court decide to adjudicate the marriage issue.
Moreover, U.S. Associate Justice Stephen Breyer, considered one of the four liberal justices on the bench, voted with the conservative justices to grant a stay “as a courtesy.”
Breyer, who has called the death penalty cruel, has been thwarted from considering a case that could potentially ban the punishment, Medellin v. Texas, because justices wouldn’t grant a stay on the execution of a death row inmate before the Supreme Court could consider the issue. Breyer cited the case in his explanation for why he was granting a “courtesy” vote for conservative justices on the bench.
Davidson said the Supreme Court may well decline to hear the Grimm case given Breyer’s apparent disagreement in principle with the stay — as well as the current eight-justice makeup of the bench — because they know the ultimate result would be affirmation of the Fourth Circuit decision.
“Any four justices who may want to hear the case because they disagreed would understand that a 4-4 split by the Supreme Court would summarily confirm the 4th Circuit decision, just as happened recently in the U.S. v. Texas case involving immigration enforcement, and would keep the injunction in place,” Davidson said. “And so, they would need to think about whether they would really want to grant cert under those circumstances.”
The Gloucester School Board has yet to even file a petition of certiorari before the Supreme Court even though the request for a stay was based on Supreme Court consideration of the lawsuit. The deadline for the school board to make the filing is Aug. 29, which is 90 days after the Fourth Circuit’s final decision denying the school board’s motion for en banc review before the full court on May 31.
The Supreme Court would likely docket the petition for consideration during conference after the new term begins in October, although there’s no deadline for the court to consider the request or take action.
Davidson said even if the Supreme Court declines to take up the Grimm case, justices will likely accept review for a lawsuit on whether transgender people can use the restroom consistent with their gender identity at some point in time — perhaps in three to four years.
“I think there’s a good chance that the Supreme Court would grant cert at some point,” Davidson said. “I think there is sort of an issue where I think there’s a good chance there would be a split in the circuits at some point, but one of the issues with respect to the G.G. case is that it is kind of early in the development of the case law here for the Supreme Court to weigh in on this issue.”
If the November election is favorable to transgender advocates, Davidson said the issue could also be resolved through passage of comprehensive LGBT non-discrimination legislation known as the Equality Act, which he said would be a “definitive statement” that gender identity is protected under the law.
Turner, on the other hand, predicted every circuit adjudicating the issue would follow precedent and rule in favor of transgender people using the restroom consistent with their gender identity, eliminating the need for the Supreme Court to take action.
“I’m confident that we won’t see other circuit courts going the other way because the reasoning of the Fourth Circuit is so sound and they were simply applying well-established rules of interpretation to Title IX to conclude that transgender students are entitled to the same protections as everyone else, and it’s pretty hard to disagree with that conclusion legally,” she said.
The Grimm case is but one of multiple cases on the right of transgender people to use the restroom consistent with their gender identity, although his case is the furthest along procedurally.
Five lawsuits are challenging North Carolina’s House Bill 2, which prohibits transgender people from using the restroom in schools and government buildings consistent with their gender identity. Those lawsuits include one filed against the law by U.S. Attorney General Loretta Lynch and another by Lambda, the American Civil Liberties Union and the ACLU of North Carolina as well as countersuits filed by the North Carolina Legislature, the anti-LGBT Alliance Defending Freedom and Gov. Pat McCrory. A trial over HB 2 is set to begin in federal court on Nov. 14.
In response to the Obama administration’s guidance instructing schools to allow transgender students to use the public restroom in accordance with their gender identity, Texas Attorney General Ken Paxton filed a lawsuit representing 12 states and two school districts against the Obama administration. Nebraska Attorney General Doug Peterson is representing 10 states in a separate lawsuit against the guidance. An initial hearing in the Paxton lawsuit is set for Friday.
In Wisconsin, a transgender student has filed a lawsuit against Kenosha Unified School District for barring him from the boys’ restroom and not respecting his gender identity in other ways. A similar lawsuit was filed in federal court by a transgender boy in Talbot County, Md.
In Illinois, the Alliance Defending Freedom has filed a lawsuit representing Palatine School District against the Department of Education after a transgender student was granted access to the girl’s locker room. In Ohio, the Alliance Defending Freedom is representing Highland School District in a similar lawsuit over the federal government’s requirement for accommodation of transgender students.
Also pending is the lawsuit against Mississippi’s recently enacted “religious freedom” law House Bill 1523, which allows businesses to prohibit restroom usage in accordance with gender identity. A federal court has placed an injunction on enforcement of the law, but the litigation isn’t yet resolved.
Joshua Block, a senior staff attorney for the ACLU’s LGBT Project, said the stay in the Grimm case may impact proceedings in these other cases, but they’re unlikely to reach the Supreme Court in time for joint consideration.
“Some judges might hold off on ruling, some judges may not,” Block said. “I’m sure the different parties in the different cases will be arguing to the judges whether they should … move forward, but obviously I don’t think there’s any case that is in a posture of being decided by a district court and being decided by the court of appeals before mid-October.”
A key decision bolstering the case transgender people must be allowed to use the restroom consistent with their gender identity under current law is the 1989 Supreme Court ruling in Price Waterhouse v. Hopkins, which determined gender stereotyping is actionable as sex discrimination under Title VII of the Civil Rights Act. Courts and the U.S. Equal Employment Opportunity Commission have drawn on this ruling to determine transgender discrimination is barred under current law.
Although Title VII governs employment, not education, courts look to guidance on Title VII for interpretation of Title IX because both laws prohibit gender discrimination.
Based on this precedent and other rulings under Title IX, Block expressed confidence the Supreme Court would rule in favor of transgender rights if justices granted certiorari to review the case.
“I’ve learned many, many times not to predict how the justices would rule, but I can certainly predict on what the answer should be based on existing precedent on everything the court has said before, which is that the Fourth Circuit’s decision was correct, and under any standard of review or any standard of deference, excluding transgender students from being able to use the same restrooms as their peers violates Title IX,” Block said. “And I think certainly if the court does grant cert now, I am certainly hopeful they will be consistent with what they’ve said before and affirm the Fourth Circuit decision.”
Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead
No political willpower to force vote or reach a compromise
Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.
Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.
In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.
If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.
“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”
The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.
Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”
“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process. We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”
Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.
“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”
A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.
Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”
Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.
The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.
Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.
“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”
Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.
For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.
Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”
“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”
But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.
No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.
Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.
“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”
Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.
Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.
Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.
To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.
A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.
“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”
But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.
D.C. bill to ban LGBTQ panic defense delayed by Capitol security
Delivery of bill to Congress was held up due to protocols related to Jan. 6 riots
A bill approved unanimously last December by the D.C. Council to ban the so-called LGBTQ panic defense has been delayed from taking effect as a city law because the fence installed around the U.S. Capitol following the Jan. 6 insurrection prevented the law from being delivered to Congress.
According to Eric Salmi, communications director for D.C. Council member Charles Allen (D-Ward 6), who guided the bill through the Council’s legislative process, all bills approved by the Council and signed by the D.C. mayor must be hand-delivered to Congress for a required congressional review.
“What happened was when the Capitol fence went up after the January insurrection, it created an issue where we physically could not deliver laws to Congress per the congressional review period,” Salmi told the Washington Blade.
Among the bills that could not immediately be delivered to Congress was the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, which was approved by the Council on a second and final vote on Dec. 15.
Between the time the bill was signed by Mayor Muriel Bowser and published in the D.C. Register under procedural requirements for all bills, it was not ready to be transmitted to Congress until Feb. 16, the Council’s legislative record for the bill shows.
Salmi said the impasse in delivering the bill to Congress due to the security fence prevented the bill from reaching Congress on that date and prevented the mandatory 60-day congressional review period for this bill from beginning at that time. He noted that most bills require a 30 legislative day review by Congress.
But the Evangelista-Hunter bill, named after a transgender woman and a gay man who died in violent attacks by perpetrators who attempted to use the trans and gay panic defense, includes a law enforcement related provision that under the city’s Home Rule Charter passed by Congress in the early 1970s requires a 60-day congressional review.
“There is a chance it goes into effect any day now, just given the timeline is close to being up,” Salmi said on Tuesday. “I don’t know the exact date it was delivered, but I do know the countdown is on,” said Salmi, who added, “I would expect any day now it should go into effect and there’s nothing stopping it other than an insurrection in January.”
If the delivery to Congress had not been delayed, the D.C. Council’s legislative office estimated the congressional review would have been completed by May 12.
A congressional source who spoke on condition of being identified only as a senior Democratic aide, said the holdup of D.C. bills because of the Capitol fence has been corrected.
“The House found an immediate workaround, when this issue first arose after the Jan. 6 insurrection,” the aide said.
“This is yet another reason why D.C. Council bills should not be subject to a congressional review period and why we need to grant D.C. statehood,” the aide said.
The aide added that while no disapproval resolution had been introduced in Congress to overturn the D.C. Evangelista-Hunter bill, House Democrats would have defeated such a resolution.
“House Democrats support D.C. home rule, statehood, and LGBTQ rights,” said the aide.
LGBTQ rights advocates have argued that a ban on using a gay or transgender panic defense in criminal trials is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or expression is to blame for a defendant’s criminal act, including murder.
Some attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.
In addition to its provision banning the LGBTQ panic defense, the Evangelista-Hunter bill includes a separate provision that strengthens the city’s existing hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats to be prosecuted as a hate crime.
LGBTQ supportive prosecutors have said the clarification was needed because it is often difficult to prove to a jury that hatred is the only motive behind a violent crime. The prosecutors noted that juries have found defendants not guilty of committing a hate crime on grounds that they believed other motives were involved in a particular crime after defense lawyers argued that the law required “hate” to be the only motive in order to find someone guilty of a hate crime.
Salmi noted that while the hate crime clarification and panic defense prohibition provisions of the Evangelista-Hunter bill will become law as soon as the congressional review is completed, yet another provision in the bill will not become law after the congressional review because there are insufficient funds in the D.C. budget to cover the costs of implementing the provision.
The provision gives the D.C. Office of Human Rights and the Office of the D.C. Attorney General authority to investigate hate related discrimination at places of public accommodation. Salmi said the provision expands protections against discrimination to include web-based retailers or online delivery services that are not physically located in D.C.
“That is subject to appropriations,” Salmi said. “And until it is funded in the upcoming budget it cannot be legally enforced.”
He said that at Council member Allen’s request, the Council added language to the bill that ensures that all other provisions of the legislation that do not require additional funding – including the ban on use of the LGBTQ panic defense and the provision clarifying that hatred doesn’t have to be the sole motive for a hate crime – will take effect as soon as the congressional approval process is completed.
D.C. man charged with 2020 anti-gay death threat rearrested
Defendant implicated in three anti-LGBTQ incidents since 2011
A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.
D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.
Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.
According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.
Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.
An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.
“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”
The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”
Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.
Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.
In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.
“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.
Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.
The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.
In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”
At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.
The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.
The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.
In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.
The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.
It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.
Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.
The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.
The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.
Two new books celebrate Old Hollywood glory
Sheila Alexander-Reid to step down as director of D.C. LGBTQ Affairs Office
Attack on trans woman in D.C. laundromat captured in video
North Dakota lawmakers okay regulation banning Conversion Therapy
New York Gender Recognition Act passes heads to Governor Cuomo
D.C. Pride Walk and Rally set for June 12
‘Ex gays’ hold rally on Washington Monument grounds
Gallup Poll shows 70% approval for same-sex marriage
In seesaw experience, LGBTQ fed’l workers enjoy new openness under Biden
D.C. restaurants, bars ready to celebrate Pride
Sign Up for Blade eBlasts
Obituary6 days ago
Longtime LGBTQ activist, DC schools official Clark Ray dies
Local5 days ago
D.C. Pride Walk and Rally set for June 12
Local5 days ago
‘Ex gays’ hold rally on Washington Monument grounds
National6 days ago
East Texas bakery shows Pride, gets slammed, that went viral and…yeah
National4 days ago
Gallup Poll shows 70% approval for same-sex marriage
Local5 days ago
Even before COVID, LGBTQ+ youth faced a high risk of homelessness. The pandemic only made things worse.
National4 days ago
In seesaw experience, LGBTQ fed’l workers enjoy new openness under Biden
Dining3 days ago
D.C. restaurants, bars ready to celebrate Pride