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Trump rescinds transgender student protections

‘A blind and cruel attack on young children’

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President Donald Trump (Blade file photo by Michael Key)

President Donald Trump has rescinded trans student protections. (Blade file photo by Michael Key)

Much to the dismay of the LGBT advocates who sought to keep guidance barring discrimination against transgender kids in schools, the Trump administration on Wednesday revoked the guidance.

White House Press Secretary Sean Spicer said Wednesday during the daily press briefing a letter rescinding the guidance would come out that day, reiterating his words from earlier in the week the decision to withdraw the guidance is based on President Trump’s support for states’ rights.

“As far as the conclusion goes, I’ve made this clear and the president’s made it clear throughout the campaign that he’s a firm believer in states’ rights, and that certain issues like this are not best dealt with at the federal level,” Spicer said.

A two-page “Dear Colleague” letter from the administration to schools indicates the Justice and Education Departments “are withdrawing the statements of policy and guidance” assuring protections for transgender students. Issued in May by those same departments during the Obama administration, the guidance invokes Title IX of the Education Amendments of 1972 to bar schools from discriminating against transgender kids or denying them access to the restroom consistent with their gender identity.

Citing “significant litigation” against the guidance, the letter cites a U.S. Fourth Circuit Court of Appeals ruling based on the guidance in favor of transgender student Gavin Grimm as well as a decision from U.S. District Judge Reed O’Connor enjoining enforcement of the guidance.

In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved,” the letter says. “The Departments thus will not rely on the views expressed within them.”

Notably, the letter is slightly different from a draft copy MSNBC published earlier in the day. The draft copy says even with the guidance withdrawn, schools “must ensure that transgender students, like all students, are able to learn in a safe environment,” but the final letter replaces the explicit mention of transgender students with “LGBT students.”

The final letter also adds the Department of Education Office for Civil Rights will continue to “hear all claims of discrimination and will explore every appropriate opportunity to protect all students” and says the administration is “committed to the application of Title IX and other federal laws to ensure such protection.”

The letter is issued just weeks after the White House declared in a statement Trump is “determined to protect the rights of all Americans, including the LGBTQ community.”

J. Bob Alotta, executive director of the Astraea Lesbian Foundation for Justice, condemned the decision to revoke the guidance as an attack on transgender students.

“These protections were put into place to ensure the safety of transgender students,” Alotta said. “Today’s decision actively harms the people who are most vulnerable to violence and the administration should immediately reverse course. Discrimination doesn’t belong in our schools or in our society. Everyone should have the freedom to express their gender identity without fear, retribution or risk of violence.”

Major media outlets reported the process leading to the revocation of the guidance was a source of contention. The Washington Post reported the transgender guidance was rescinded over the objections of newly confirmed Education Secretary Betsy DeVos. The Washington Blade has placed a call to the Education Department to verify those objections and determine who overruled her in the decision to overturn the guidance.

According to The New York Times, a fight erupted in the Trump administration over the letter between DeVos and U.S. Attorney General Jeff Sessions, who reportedly pressed the education secretary sign off on the change because he couldn’t go forward without her consent. The order had to come from both the Justice and Education Departments.

Trump sided with Sessions over DeVos, the New York Times reported, and faced with the choice of either resigning or defying the president, DeVos agreed to go along. The order was expected Wednesday, but held up, the Times reported, because the two Cabinet members disputed the final language.

“This is an issue best solved at the state and local level,” DeVos said. “Schools, communities, and families can find – and in many cases have found – solutions that protect all students.”

White House Press Secretary Sean Spicer, however, denied there was significant contention among members of the Trump administration, insisting there was “no daylight” between DeVos and Sessions on rescinding the guidance.

“I think where you might be hearing something is more on the timing of stuff,” Spicer said. “The conclusions every person in the administration has agreed upon. There’s no daylight between anybody, between the president, between any of the secretaries.”

Asked to clarify further the education secretary’s position, Spicer said DeVos is “100 percent” in favor rescinding the guidance.

In a statement announcing the guidance, DeVos said she considers “protecting all students, including LGBTQ students” a “key priority” for the Department of Education, but ultimately believes the issue should be left to the states.

The reported view of Sessions in favor of rescinding the guidance is consistent with recent actions from the Justice Department in litigation filed against the guidance by Texas Attorney General Ken Paxton on behalf of 12 states. As a result of the litigation, U.S. District Judge Reed O’Connor issued a preliminary injunction barring the administration from enforcing the guidance nationwide.

Although the Justice Department under the Obama administration filed an appeal with the U.S. Fifth Circuit Court of Appeals seeking along with a request to limit the scope of the injunction to the 12 plaintiff states, a legal brief under Sessions withdraws that second request and declares the Trump administration is “currently considering how best to proceed in this appeal.”

During the White House briefing, Spicer denied the timing for revoking the guidance meant it was a priority for the president and said the decision is based on the Gloucester County Schools v. G.G. case pending before the Supreme Court. Arguments are set for March 28.

“It’s dictated by that,” Spicer said. “The Obama administration had issued joint guidance from the Department of Education and the Department of Justice. We now have to decide whether or not this administration wants to continue that track that they were on. It’s plain and simple if we don’t.”

Explaining the decision to reverse course, Spicer said a review from the Education and Justice Departments under Trump identified “areas of concern,” such as the interpretation of Title IX to apply to transgender students.

“And so, it’s incumbent upon us to actually follow the law and recognize that Title IX never talked about this; it was an act of 1972,” Spicer said. “There was no discussion of this back then, and to assume certain elements of the law were thought of back then…would be completely preposterous.”

Despite Spicer’s words, a long body of case law — including a determination from the U.S. Equal Employment Opportunity Commission in 2012 and rulings from federal appeals courts as far back as 2000 — have determined the prohibition on sex discrimination in federal civil rights laws like Title IX apply to transgender people. The 1989 U.S. Supreme Court case Price Waterhouse v. Hopkins, which found the law covers not just discrimination on the basis of sex, but also sex stereotyping, formed the basis for those decisions.

Gary McCaleb, senior counsel with Alliance Defending Freedom, was among those cheering Trump for following up on his campaign promise to rescind the guidance.

“The privacy, safety, and dignity of young students should be the first concern of every local school official across America,” McCaleb said. “The Obama administration radically distorted a federal law that was meant to equalize educational opportunities for women and then forced local officials to intermingle boys and girls within students’ private facilities like locker rooms, hotel rooms on school trips, and restrooms. The Trump administration would be right to return to the rule of law by rescinding the Obama administration’s misleading guidance.”

The action comes despite calls from transgender advocates to keep the policy in place. On Tuesday, the Human Rights Campaign promoted a letter to Trump signed by more than 1,000 parents of transgender children calling on him to preserve the guidance.

“Like all parents, all we want is for our children to be healthy, safe, and loved,” the letter says. “No young person should wake up in the morning fearful of the school day ahead. When this guidance was issued last year, it provided our families — and other families like our own across the country — with the knowledge and security that our government was determined to protect our children from bullying and discrimination. Please do not take that away from us.”

In the 2015 U.S. Transgender Survey conducted by the National Center for Transgender Equality, more than three-quarters of those who were out or perceived as transgender at some point in kindergarten through high school experienced at that time some from of mistreatment, such as being verbally harassed, prohibited from dressing according to their gender identity, disciplined more harshly, or physically or sexually assaulted.

The survey doesn’t look specifically at the degree to which transgender students were barred from the restroom or locker room consistent with their gender identity. However, the survey found 59 percent of respondents reported in the past year they had avoided using a restroom, such as in public, at work, or at school, because they were afraid of confrontations.

Nearly one-third of the sample avoided drinking or eating so they wouldn’t have to use the restroom, and eight percent reported having a urinary tract infection or kidney-related medical problem as a result of avoiding restrooms.

Chad Griffin, president of the Human Rights Campaign, lambasted Trump for the decision to revoke the guidance in a statement and said it would only serve to harm transgender youth.

“What could possibly motivate a blind and cruel attack on young children like this?” Griffin said. “These transgender students simply want to go to school in the morning without fear of discrimination or harassment. The consequences of this decision will no doubt be heartbreaking. This isn’t a ‘states rights’ issue, it’s a civil rights issue. Children deserve protection from bullying no matter what state they live in. Period.”

Even though the guidance is rescinded, transgender advocates insist transgender students can still sue on their own if they feel they’ve experienced discrimination in schools under the provision of Title IX barring discrimination of the basis of sex. Because of the order from O’Connor, the guidance wasn’t an option for relief anyway.

But the plans could have an impact on pending litigation before the U.S. Supreme Court in which Gavin Grimm, a transgender student in Virginia, is suing his Gloucester County high school to use the restroom consistent with his gender identity. The court accepted the case to evaluate whether courts should defer to the guidance, a point that now seems moot, as well as whether Title IX prohibits schools from barring students from using the restroom consistent with their gender identity.

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28 Comments

28 Comments

  1. Edziu Lisowski

    February 22, 2017 at 8:38 pm

    No comments from the Log Cabin Republicans?

    • lnm3921

      February 22, 2017 at 9:28 pm

      There busy looking for a job for Miss Milo now that her fifteen minutes are up!!!!

    • mginsd

      February 23, 2017 at 12:21 pm

      Sorry, we do have lives, you know, and usually jobs, too. This LCRer has no problem with President Trump’s rescinding a “guideline” that should never have been issued in the first place. A LOT of us in “the gay community,” GOP and otherwise, believe that the whole T issue has been blown way out of proportion and a LOT of kids have had their lives irreversible damaged by the T advocates’ “change now, deal with it later” approach. In short, these kids have been used as pawns by “activists” who are more interested in boosting their own egos than those of the kids they claim to serve.

      • Kathy11

        February 23, 2017 at 2:20 pm

        This is exactly why gay kids shouldn’t be allowed to come out – it could harm them. They should be told by gay orgs to stay in the closet. But – gay orgs like Log Cabin use them by saying things like they should be out and respected. And gay leaders like Milo – well – you know.

      • DC20037

        February 23, 2017 at 5:44 pm

        So Mr. Log Cabiner please provide us with some “facts” related to how the whole T issue has been blown way out of proportion and the evidence ALOT of you have uncovered showing that T advocates use children as pawns? Perhaps LCR has issued some talking points to pass out since you of course might be too busy living or working to save us from our ignorance.

      • lnm3921

        February 23, 2017 at 8:24 pm

        You have lives and jobs, really? Seems yourives are nothing but Trump and how deep your heads can squeeze up his rump! He may need emergency surgery soon due to the severe bowel obstruction you create!
        Liberals fighting for equality is the reason people like you can say your are gay without receiving violent threats or slurs, being arrested or Used to be you’d be fired for being gay if hired at all.

  2. lnm3921

    February 22, 2017 at 9:27 pm

    Tim Spicer has special needs doesn’t he? He sounds so simplistic. He tells us such outrageous things like Trump has always been consistently tough on Russia or that he has a great relationship with Mexico. Does the Trump administration really think we live in a vacuum?!

    So what is Caitlyn Jenner doing these days? She attended Trump’s inauguration yet where is she now to influence Trump on this policy change? Sounds like a typical GLBT conservative, getting recognition is all that counts not taking stand for our rights or pushing for them. Don’t upset the status quo you might not get invited to a GOP function or the White House!

    • mginsd

      February 23, 2017 at 12:17 pm

      Careful there! Wasn’t President Trump castigated for aping a “tardo” during his campaign?

      • lnm3921

        February 23, 2017 at 7:52 pm

        Trump was aping a “tardo” then? He normally comes across to me like that!

  3. Kathy11

    February 22, 2017 at 10:28 pm

    And that’s Trump’s plan to defeat ISIS.

  4. DC20037

    February 23, 2017 at 7:40 am

    Just came across an interview with Greg Angelo, President of the Log Cabin Republicans on a site called “Quartz.” The article which ironically was published yesterday revealed this from Mr. Angelo regarding the new Attorney General, Jeff Sessions:

    Q: How do you feel about Jeff Sessions? [Trump’s attorney general consistently voted against LGBT equality measures during his time in the senate.]

    A: I’m willing to give Jeff Sessions a chance. I’m willing to give him a chance…something that puts us at odds with, to my knowledge, every LGBT advocacy organization out there.

    This comes from my perceptions of what it means to be an attorney general. I believe liberals feel it is the job of the attorney general to interpret the law, and conservatives feel it’s the job of the attorney general to uphold the law. There’s a key difference there.

    All of the opposition to Sessions from the LGBT left was born from questions about ways he’d interpret law. And time and again during his hearing, Sessions said that he would faithfully execute the laws of the country. In his opening statement, he said explicitly that he recognized the fight for equality that the country’s LGBT community values.

    So Greggy, the next time your position is at odds with every other LGBT advocacy organization (which in the case of LCR is almost always) take this as a lesson, that the odds are very high that LCR is on the wrong side of LGBT advocacy. Oh and take down that picture and statement of support for Betsy DeVos from your home page. It just makes LCR look even more pathetic if that is even possible.

    • mginsd

      February 23, 2017 at 12:24 pm

      I like the way you respond to Angelo’s statements with facts and logic, if not exactly reason. What a fine advocate for “every other LGBT advocacy organization” you are!

      • lnm3921

        February 23, 2017 at 7:58 pm

        At least they are consistent advocates for LGBT rights unlike LCR leadership who are GINOs(Gays in Name Only) and do little else than go with the status quo of their party in fear that they will be ostracized otherwise! They like bending over!

  5. customartist

    February 23, 2017 at 12:11 pm

    Conspicupously evident is the absence of commentary from Advisor-to-the-President Peter Thiel, gay PayPal entrepreneur extraordinaire. WHERE is he? Where in the world IS Trump’s token gay? Are all of the Whitehouse doormats out for a cleaning today?

    • mginsd

      February 23, 2017 at 12:22 pm

      Unlike the Democrats, GOPers, gay and straight, see no reason to wear their diversity on their sleeve.

      • Brian's Ions

        February 23, 2017 at 1:29 pm

        Of course you don’t wear your diversity on your sleeve. Because remaining in the closet is the only way you’ll be tepidly ‘accepted’ by the racists, sexists, homophobes, transphobes, Islamophobes, anti-Latinos, and anti-Semites that have seized the GOP. Now go back to your slobbery boot-iickin, LCR.

        State’s Rights for civil rights??? OMG! This is unquestionably the last straw, for those of us who were willing to give a decent benefit of doubt to the new president, however popularly unelected he is.

        An OUT.COM wag’s prediction the day after the election if worth noting again…
        http://www.out.com/news-opinion/2016/11/09/5-ways-trump-presidency-could-affect-lgbt-rights

        • customartist

          February 23, 2017 at 1:51 pm

          I saw this coming a mile away. It was exposed months ago, just after the election, that Conservatives had come to understand that while Marriage equality was a done deal, they calculated to focus their efforts on Other issues surrounding LGBT rights, ones that had not yet been adjudicated. Nothin surprising with this particular decision.

      • lnm3921

        February 23, 2017 at 8:09 pm

        Really? Like you can all hide it let alone should have to hide it. What happens to your spouses and boyfriends? Do they meet you in the parking lot when it gets dark to go home?! Do

      • customartist

        February 24, 2017 at 9:02 am

        Hyperbole will not help. The issue here is that [some] voters, LGBT or supporters, may have been encouraged in part to vote for Trump because of his association with Thiel, and the portrayed support for LGBT folks.

        Most if not all of Trump’s OTHER close allies have spoken out, time and again, on the issues important to them. Questioning why Thiel is not doing the same is not asking him to “wear diversity on his sleeve”.

    • lnm3921

      February 23, 2017 at 8:15 pm

      Forget Peter Thiel. Where is Caitlyn Jenner on this issue?!

  6. Count Dracula

    February 23, 2017 at 2:59 pm

    Ladies rooms are for ladies, chix with dix are not ladies.

    • lnm3921

      February 23, 2017 at 8:55 pm

      You should know about dix You’re a big one!

      • Count Dracula

        February 24, 2017 at 11:27 am

        Stop fantasizing.

  7. lnm3921

    February 23, 2017 at 8:04 pm

    You say get over it! Openly gay men were treated the same way in regards to sharing the same spaces with hetero men! Do you have any concept of what that’s like? If you weren’t out in High School then you’re clueless as ever! We were forced to take showers by our gym coach like It or not without any privacy partitions!

    It’s a GLBT movement now isn’t it? Not just gay anymore!

  8. customartist

    February 23, 2017 at 8:34 pm

    “What do you say to Whites who know they are White…..locker rooms and public swimming pools…?”

    This too was said back in the day.

    • Mark Hatchett

      February 23, 2017 at 9:11 pm

      Sorry but public school boys and girls in America have never been forced to share the same restrooms, locker rooms and showers at the same time no matter their color. Adult men and women in America have never been forced to share the same public restrooms, locker rooms and showers at the same time no matter their color. Men who pretend to be women and women who pretend to be men are simply out of luck because the rest of us are under no obligation whatsoever to accommodate or enable their particular desires.

      • lnm3921

        February 23, 2017 at 9:32 pm

        So will you be telling Caitlyn Jenner that at your next conservative social gathering and inform her she should keep a bed pan in her purse if she won’t share the bathroom with you?! Maybe you can empty it for her and wash it out along with disposing of the used toilet paper.

        I guess she won’t get the trans ambassador job she wanted after all from the Trump administration. Sigh!

        Also where do drag queens and flaming queens fit in your world?! You need to tell miss Milo to butch it up more!

  9. lnm3921

    February 23, 2017 at 9:41 pm

    Where is Dave Lampo? Sounds like he owes Gay, Inc. an apology instead of giving us his typical lisp service on supporting conservatives and the GOP to promote our rights! It sounds from the tone of many conservatives on this message board that they encouraged the Trump administration to rescind the order Obama put in place not promote it.

    Why do liberals need to play the victim card when so many conservatives provide them happily? I see some saying they don’t wear being gay on their sleeve like Democrats so in other words they like to identify as gay just not fight for gay rights within their party!

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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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