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Draft Trump order would endorse sweeping anti-LGBT discrimination

Possible directive would allow discrimination in name of ‘religious freedom’

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A draft Trump order would enable sweeping anti-LGBT discrimination. (Blade file photo by Michael Key)

A draft Trump order would enable sweeping anti-LGBT discrimination. (Blade file photo by Michael Key)

Days after a White House statement that declared President Trump is “respectful and supportive of LGBTQ rights” and would preserve an Obama-era executive order against anti-LGBT discrimination, a new draft of an executive order has emerged that — if signed by Trump — would endorse sweeping anti-LGBT bias in the name of “religious freedom.”

First reported by The Nation and obtained by the Washington Blade, the four-page draft order has been circulating among federal advocacy organizations for days. It would allow persons and religious organizations — broadly defined to include for-profit companies — to discriminate on the basis of religious objections to same-sex marriage, premarital sex, abortion and transgender identity.

Invoking as authority the Religious Freedom Restoration Act and religious exemptions under federal civil rights law, the draft order instructs various federal agencies to allow persons and religious organizations to discriminate against LGBT people in the name of religious freedom.

“Religious freedom is not confined to religious organizations or limited to religious exercise that takes places in houses of worship or the home,” the draft order says. “It is guaranteed to persons of all faiths and extends to all activities of life.”

Chad Griffin, president of the Human Rights Campaign, said the order would enable “sweeping and dangerous” discrimination against LGBT people if Trump were to sign it.

“It reads like a wishlist from some of the most radical anti-equality activists,” Griffin said. “If true, it seems this White House is poised to wildly expand anti-LGBTQ discrimination across all facets of the government — even if he does maintain the Obama EO. If Donald Trump goes through with even a fraction of this order, he’ll reveal himself as a true enemy to LGBTQ people.”

The first portion of the order calls for a rule that would allow health insurers to opt out of preventive care for religious reasons, including preventative-care for women, STD or cancer screenings. The order also directs the Department of Health & Human Services to ensure individuals have access to health care plans that don’t cover abortion and don’t subsidize plans that provide such coverage.

The order also forbids the U.S. government from taking action against religious organizations that provide child-welfare services if those organizations decline to offer a service based on religious belief. Although no federal law currently prohibits adoption agencies from engaging in discrimination, that language in the order would essentially green-light the ability of adoption agencies to deny child placement with same-sex couples and discriminate against LGBT youth.

Another section is akin to the Russell Amendment, a measure Rep. Steve Russell (R-Okla.) inserted into the 2017 defense authorization bill, but congressional Republicans ultimately discarded. The order would allow federal contractors exemptions consistent with the Civil Rights Act of 1964 and the Americans with Disabilities Act. Since neither of those laws prohibit anti-LGBT discrimination, the amendment would allow these contractors to discriminate on the basis of sexual orientation or gender identity.

The next section forbids the Treasury Department from taking away the tax-exempt status from an institution — such as a religious school like Brigham Young University — for holding the position marriage is one man, one woman, gender is immutable based on biology or life begins at conception. The order forbids penalties for religious organizations for engaging in political speech, would seek to fulfill Trump’s campaign promise to undo the Johnson Amendment.

The general provisions section calls for rolling back “any rulings, directives, regulations, guidance, or interpretations” inconsistent with the order. That could lead to unraveling of pro-LGBT regulations of the Obama administration. Those regulations, to name a few, include the Department of Housing & Urban Development rule barring anti-LGBT discrimination in government-sponsored housing, the HHS rule ensuring transgender people have access to transition-related care and the USAID rule barring foreign assistance contractors from discriminating against LGBT people in providing services.

Roberta Kaplan, a lesbian New York attorney who successfully argued before the Supreme Court against the Defense of Marriage Act, said the executive order’s attempt to align the federal government with a particular religious view is “truly unprecedented.”

“Abortion has been listed in executive orders before, but never based on the so-called religious beliefs that life begins at conception,” Kaplan said. “So, it’s unprecedented for the government to be officially preferencing certain religious beliefs over others, and it definitely shares that with HB1523.”

That would mean the order may be struck down in court for violating the Establishment Clause, which was the basis of Kaplan’s argument leading to a federal court injunction against a “religious freedom” law in Mississippi enabling sweeping anti-LGBT discrimination.

The draft order was unearthed the evening before Trump is scheduled to speak at the National Prayer Breakfast, an annual event attended by social conservatives who may welcome the “religious freedom” order.

The White House didn’t dispute the veracity of the draft, but asserted it’s one of hundreds of circulating draft orders in the administration and may not reflect Trump’s thinking or intended policy.

“There are many versions of EOs of various topics floating around out there, nothing is valid or confirmed until they’re signed by the president,” White House spokesperson Stephanie Grisham said. “It’s important not to get ahead of things.”

The executive order is consistent with tweets from Washington Post columnist Josh Rogin and a Reuters report affirming the existence of a draft “religious freedom” order that would enable sweeping anti-LGBT discrimination.

The apparent draft emerges days after the White House declared Trump would “leave intact” an executive order former President Barack Obama signed in 2014 barring federal contractors from engaging in anti-LGBT workplace discrimination. But the draft executive order would, in fact, undercut the Obama-era order by allowing religious organizations and for-profit contractors to discriminate in the name of religious freedom.

Log Cabin Republicans, which lobbied to preserve the Obama-era order and praised Trump after the White House said he’d keep it, had no comment on the draft “religious freedom” order.

“If this is legit and if it’s signed, we’ll be issuing a statement,” Log Cabin President Gregory Angelo said. “For now I’m not going to comment on a supposed executive order that is still in draft form.”

Ian Thompson, legislative director for the American Civil Liberties Union, said the existence of the draft order demonstrates Trump’s pledge to keep the Obama order in place wasn’t the truth.

“This draft is chilling,” Thompson said. “Signing this EO would be a devastating attack on the rights and dignity of LGBT people and women. It would eviscerate the LGBT nondiscrimination protections that President Obama put into place for federal contractors in 2014. The statement from the Trump White House that those would be maintained appears to have been a lie.”

Rep. Jerrold Nadler (D-N.Y.) said in a statement the order is the latest in Trump’s “hateful attacks on the communities that comprise our nation” and condemned the measure.

“It has long been established that our constitution protects the free exercise of religion, but those protections do not create the right to cause harm to others,” Nadler said. “Protections for religious freedom must be shields to protect the practice of religion, not swords to enable one person to force his or her religious beliefs on others. No matter how sincerely held a religious belief may be, employers – including the federal government – must not be permitted to wield them as a means of discriminating against their employees or against those they serve.”

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28 Comments

28 Comments

  1. Mark Cichewicz

    February 2, 2017 at 11:16 am

    It has been said, This is Mike Pence on staroids.

    • mginsd

      February 2, 2017 at 12:09 pm

      That statement is out of this world.

      • lnm3921

        February 2, 2017 at 7:12 pm

        I’d say you’re not one to talk! Enjoy your alternative facts!

  2. mginsd

    February 2, 2017 at 12:14 pm

    Boy, Chris Johnson sure presumes a lot, doesn’t he? No one ever elected or even appointed him as any kind of spokesman for “the gay community,” whatever that is. Sorry folks, THIS gay man, who’s actively litigated and won several gay rights cases, doesn’t buy any of his or HRC’s ridiculously exaggerated claims against President Trump or any of his nominees. There ARE more important issues than gay rights, after all, and freedom of religion, like national security, is just one of them.

    • Kathy11

      February 2, 2017 at 12:16 pm

      Would you have won them if this order existed? Or could the respondent had merely claimed they had a religious objection?

      • mginsd

        February 2, 2017 at 12:41 pm

        Yes, since they predated even Obama’s appearance in the IL House. In fact, if conversely, I recall engaging with some even-then haughty HRC types at one of their conclaves in the ’80s about the need to raise establishment clause arguments in gay rights litigation, only to be pooh-poohed by them – but ever-so-gently so as not to dissuade me from contributing to their outfit. (I didn’t then, and I haven’t since.) There are A LOT of us who were doing gay rights work LONG before “activists” – cf. arrivistes – showed up on the scene, and many of us do NOT agree with their Twisted approach of always asking for “more,” whether accompanied by a “Please, Sir” or not.

        • Kathy11

          February 2, 2017 at 3:32 pm

          No – would you have won if this order existed when you went to court?

          And really – no need to spend your time talking HRC down in your answer. It’s not like I’m a fan. Quite the opposite.

          • mginsd

            February 2, 2017 at 3:47 pm

            Yes, because the issues were different: partner’s right to recover for emotional distress, sexual privacy, and right of elected gay GOPers to keep their seats on GOP county committee.
            Sorry I misunderstood your original ?, but “no apologies, no regrets” re: HRC. Nuff said?

          • lnm3921

            February 2, 2017 at 7:11 pm

            HRC wasn’t the only organization. We also don’t all belong to a specific one. That doesn’t mean we don’t support the issues that HRC supports and advocates.

            Form your own organization on GLBT instead of whining about it!

        • lnm3921

          February 2, 2017 at 7:04 pm

          Well those activist you bash stood up for the community during the AIDS crises when we had no legal protections at all and were marginalized by many. We helped get protections included in the ADA, we worked to defeat sodomy laws, integrate the US military, add protections for GLBT at the state level, achieved a hate crimes act and did much to achieve marriage equality.
          I was working on those issues since the early eighties myself and know how bad it was for us. Don’t lecture us on what you were doing in the shadows when we were risking ourselves being in the front lines when doing so could cost us dearly! You trying to now hijack the credit for the GLBT movement!

    • lnm3921

      February 2, 2017 at 6:55 pm

      And someone appointed you the LGBT spokesperson instead? You’ve litigated and won gay rights cases, so what? You want an award? That gives you some kind of special insight over what will happen under the Trump Administration, in Congress or the states level that no one else has?

      He’s promised to support religious freedom laws and the FADA. He’s also said he’s going to destroy the Johnson Amendment. What makes you anymore authority or expert on Trump or his nominees than the rest of us? Are you sleeping with him?

      There are more important issues than GLBT rights and freedom of religion? Fine, go handle them since you obviously can’t chew gum and walk at the same time. Just get out of the way of those of us that feel these issues are just as important. GLBT rights are the communities national security!

      • mginsd

        February 2, 2017 at 7:34 pm

        No, thanks, already got the awards, a couple, in fact. But, of which “communities,” however possessively, do you presume to speak? And, no more straw men, please: one dissenting opinion from the litany of the lockstep left does not a spokesman – or an “activist” – make.

        • lnm3921

          February 2, 2017 at 8:00 pm

          I speak for myself and many who think just like me. I can ask the same of you. I’ve met more people within the GLBT community that think like me than you. You’re the minority within the minority. Hopefully you aren’t as obnoxious as Miss Milo Yiannopolous.

          I guess all you need now is a halo for all you’ve done for us. Maybe the pope of Greenwich Village will canonize you!?

          • mginsd

            February 2, 2017 at 8:03 pm

            “Yes, yes, Mrs. Danvers. That will be all.”

          • lnm3921

            February 2, 2017 at 8:14 pm

            We’ve had enough Misery from you Annie Wilkes!

          • mginsd

            February 3, 2017 at 12:25 pm

            LOL! That alone is enough to atone. “Go now and sin no more!”

          • lnm3921

            February 3, 2017 at 1:22 pm

            When I’m good, I m very good, but when I’m bad I’m better!!!

          • Mark Cichewicz

            February 3, 2017 at 7:30 am

            I am someone you speak for.

      • Mark Cichewicz

        February 3, 2017 at 7:29 am

        Yes they are just as important. Trickle down or trickelrd on. Anyone who voted for Trump should be ashamed. And I think the logers are the biggest wast of anyone’s time, Useless!

  3. Im Just Sayin

    February 2, 2017 at 12:19 pm

    No worries, the Log Cabin Republicans will use their considerable influence within the GOP to protect us. A second white paper perhaps and or how about another USA Today advertisement begging republicans to stop being meanies?

    • lnm3921

      February 2, 2017 at 6:48 pm

      Considerable influence? Since when do doormats and yes men (women) have any influence?

  4. ChloeAlexa Landry

    February 2, 2017 at 12:37 pm

    What is the USA coming to when it allows religion to ‘Trump’ the Constitution??
    Separation of Church and State has worked for all these years, why the change
    in practice now. Follow the old axiom, If it’s working why change it.

    • CrissCross

      February 2, 2017 at 5:24 pm

      If “separation of church and state has worked for all these years”, then please explain how it is that laws restricting the civil rights of LGBT people have existed for all these years.
      No rational justification for such restrictions has ever emerged. That is how each restriction is, one by one, steadily repealed.
      The only “justification” for those laws is “the religion demands them”.
      No such separation has existed.
      The separation only truly takes hold once every last religious based law is removed, which is precisely what these lunatics are working to prevent.

    • eatingbeetslowersbp

      February 2, 2017 at 6:30 pm

      The USA became a total joke last November.

  5. Bob Mitchell

    February 2, 2017 at 2:40 pm

    If gays now-a-days really knew discrimination they would be counting their blessing not over reacting to a leaked memo.

    • CrissCross

      February 2, 2017 at 5:19 pm

      This is the argument that gays should be happy with, and accept, nothing more than the meager scraps the homophobes have “permitted” them.
      No!
      We do not structure our lives on their terms. We structure our lives on our own terms.

  6. MTWW

    February 2, 2017 at 2:55 pm

    I’m not shocked at any of the current proposed bills or drafts being circulated considering that (Gay Hater) Tony Perkins, president of the Vile anti-gay (FRC) family research council has been begging for ever for the far right republicans in congress to adopt his hate towards anyone that doesn’t fit his idea of a perfect Christian. That being said, I have felt for some time that president of the HRC, Chad Griffin, should’ve at the very least, attempted to reach out to president Trump to try to have an honest debate and possibly open up a positive dialogue. I’ve been a successful businessman most of my life and you don’t become a billionaire without having the ability to compromise. I’ve watched president Trump all my life and have read many great things about him before he ran for president, and the one thing I can say about him is that anyone who reaches out to him usually walks away with a mutual understanding and loyal trust. In my honest opinion I believe if the HRC would at least try to open a dialogue with president Trump it would be in the best interest of the entire gay community. Instead of playing to the gay communities deep seeded hate for anyone, including other gays, in order to make the gay community happy for unfounded beliefs, all gays would be better served if Chad Griffin reached out and attempted to make ally’s instead of enemies. I know for a fact that president Trump doesn’t hate gays and has many gay friends and employees many gays. If the HRC would request to meet with president Trump and explain what Tony Perkins and his ilk really stand for he’d listen. If we continue to lash out from the sidelines while satanic people like Tony Perkins continues to have a seat at the Trump table without opposition from the gay community at the very same table, only gives all anti gay hate groups a leading edge with their hateful point of view being the only option at that very important table. I’m a gay disabled veteran and I love America. I believe that the gay community deserves to be respected without discrimination. I along with many other gays believe that the majority of the gay community became very arrogant after winning the battle for marriage equality, not to mention the gay community literally stopped advocating for the many other rights that are needed. However, if we don’t start reaching out to the current administration we’re getting nowhere fast. Like it or not, complaining and hating others because we think they’re horrible gets nothing done.

    • CrissCross

      February 2, 2017 at 5:16 pm

      How exactly do you propose to “try to have an honest debate” with a president who approaches EVERYTHING as though it is a zero sum game?
      The game theorist ALWAYS plays to win, and rejects ALL win-win situations.
      The USA has elected a president who insists that he wins and anyone he engages across the table must lose.
      There is no such thing as an “honest debate” with such people.
      At best all you can hope for is a tolerable level of subservience being imposed upon you.
      Which is precisely what the fight for LGBT rights has been against all along: We are NOT lesser beings, and we will NOT accept second class status.
      We are seeking equality, not an alternative lowly status.

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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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