No fewer than seven reporters from six media outlets asked questions on the topic: American Urban Radio, Fox News, Time Magazine, NBC News, FOX 5 DC and the Washington Blade.
Spicer dodged questions on whether transgender bathroom access is a civil rights’ issue, maintaining the issue belongs to the states. Denying the change was a reversal, Spicer pointed to the order from U.S. District Judge Reed O’Connor in Texas enjoining enforcement of the guidance.
On that court decision, Spicer asked rhetorically: “Where were the questions in August about this?” The Blade in fact took up the issue of the impact of the order with then-White House Press Secretary Josh Earnest, who at the time was cagey in his responses about continued enforcement of Title IX.
In a response to a question the Blade, Spicer said the revocation of the guidance “clearly does” represent the administration position on the way the Supreme Court should rule in Gavin Grimm case, which contemplates whether Title IX compels schools to allow transgender students to use the bathroom consistent with their gender identity.
Although Spicer didn’t say explicitly what the result should be, the position seems to be against Gavin based on the Trump administration’s rejection of the idea Title IX applies to transgender students.
Here’s a transcript of the trans guidance-related questions during the briefing:
AMERICAN URBAN RADIO: There was a different comment from the president about if people like Caitlyn Jenner wanted to use the bathroom in Trump Tower, she could. What’s happened?
SEAN SPICER: No, I think that’s — So, just to be clear, the president was asked at one point if Caitlyn Jenner was in Trump Tower and he said, “That’s great.” That’s consistent with everything he said. It’s a states’ rights issue. That’s entirely what he believes that if a state wants to pass a law or rule, or an organization wants to do something in compliance with the state rule that’s they’re right, but it shouldn’t be the federal government getting in the way of this.
If you look at this, the law that was passed in 1972 did not contemplate or consider this issue. No. 2, the procedure for this guidance letter that was done through the Obama administration was not properly followed. There was no comment period, there was no input from parents, teachers, students or administrators. None.
If we think about how this was implemented last administration, there was zero input, there was zero comment period offered. Teachers and students never had any say in how this was implemented.
No. 3, there’s a reason that the Texas court had this matter enjoined. It’s because it didn’t follow the law and it had procedural problems. Four, as I mentioned, it’s a states’ right issue.
And then five, is I think that we do have to recognize that children do enjoy rights from anti-bullying statutes that are in almost every state, and that there’s a difference between being compassionate for individuals and children who are struggling with something, and wanting to make sure they’re protected and how it’s being done, and I think that president had a big heart, has talked about it in a lot of other issues, and there’s a big difference.
Personally, he addressed this issue when it came up with respect to one of his properties, but he also believes that that’s not a federal government issue. It’s an issue left to the states. And it’s an issue that, there’s a reason in August of last year that the court enjoined this: Because it hadn’t followed the law and it hadn’t followed the procedures, the comment period and the solicitations of opinions and ideas what wasn’t followed. It was jammed down the process, and so, we’re actually following the law on this one, and I think that’s the way is going to be done.
FOX NEWS: The Human Rights Campaign said in rescinding the guidance last night that this is not a states’ rights issue, it’s a civil rights issue, and therefore is in the purview of the federal government. Do you disagree that this is a civil rights issue?
SPICER: It’s a question of where it’s appropriately addressed, and I think there’s a reason — We got to remember, this guidance was enjoined last August by a court. It hasn’t been enforced. There was no comment period by anyone, by the Human Rights Campaign, by teachers, parents, students. Nobody had any input in this, and it seems to me a little interesting that if this was any other issue, people would be crying foul that the process wasn’t followed.
The reality is that if you look Title IX, it was enacted in 1972. The idea that this was even contemplated in that is preposterous on its face, but that doesn’t mean — the president obviously understands the issue and the challenges that especially young children face. He just believes that this is a state issue that needs to be addressed by states as he does with a lot of issues that we’ve talked about.
And so this is — we are a states’ rights party, the president on a lot of issues believes in these various issues being states’ rights. I don’t see why this would be any different, and again, if you go through it, it’s not just — it’s how the guidance was issued, it’s the legal basis on which it was ordered, it fell short on a lot of stuff. It wasn’t us that did this, it was court that stepped in and said they hadn’t followed the procedure of the law back in August of last year and enjoined the case.
FOX NEWS: Does the White House disagree that this is an issue with civil rights?
SPICER: I think it’s not a question of whether it’s civil rights, it’s a question of whether it’s appropriately addressed. As I noted, it’s appropriately addressed at the state level.
NBC NEWS’ KELLY O’DONNELL: Does the president personally believe a student who is transgender should be able to use the bathroom of their choice? His personal belief?
SPICER: I think the president believes it’s a states rights issue, and he’s not going to get into determining — I understand what you’re asking Kelly — and I think that as April pointed out, when the issue came to one of his own properties he was clear. But again, what he doesn’t want to do is force his issues or beliefs down. He believes that it’s a states’ rights issue.
NBC NEWS’ KELLY O’DONNELL: But…they want to know where the president is on this issue.
SPICER: I understand that, and I think he is very sympathetic to children who deal with that. This is up to states and schools with in a particular district to address how they want to accommodate that, and not sort of be prescriptive from Washington. That’s what the president believes.
TIME MAGAZINE: You mentioned that this order was enjoined by the court and there was criticism about the process. That exact same criticism has been levied on the administration’s first executive order on the travel ban. I mean, can you help square the circle here? Why are you relying on that same enjoined by a federal court criticism of the process for one, but not the other?
SPICER: Well, I think there’s a big difference. There’s no way that you can read Title IX from 1972 — anybody — and say that that was even contemplated back then. There’s nobody that is possibly suggesting that the law that was passed in 1972 did that.
No. 2, there was zero comment period put forward on this guidance, which is in violation of how it was executed, OK?…There is also a strong reading when you read 1182 U.S. Code that it is very clear the president does have the authority, so they are very much apples and oranges issues.
One, it’s very clear that the president is told by Congress in U.S. code that he has the authority to do what’s necessary to protect the American people, and there’s no way that anybody above a fifth grade reading level could interpret that. There is a difference between looking at a statute from 1972 and saying that something was complicated back then. Not only that, again, it’s a multi-faceted, when you look at how the guidance was issued, there was a zero comment period. Nobody was able to weigh in on that situation back then.
And so when you’re talking about forcing schools to make a huge accommodation from the federal level and schools, parents, teachers kids were not able to have any input in that decision from Washington, I think, it’s a very, very clear difference.
NBC NEWS’ KRISTEN WELKER: I want to start off by following on the transgender directive. 82 percent of transgender children report feeling unsafe at school. So, isn’t the president leaving some of these children open and vulnerable to be bulled in school?
SPICER: No, I mean, there are bullying laws and policies in place in almost every one of these schools.
WELKER: But transgender children experience not being able to use the bathroom that they feel comfortable using.
SPICER: But you’re missing the point here, Kristen. The president said literally it should be a state decision. He respects the decision of the states
WELKER: Protecting kids is a states’ right issue?
SPICER: You’re trying to make an issue out of something that doesn’t exist. It was the court who stopped this in August of last year, OK? So, where were the questions last year in August about this? It wasn’t implemented correctly, legally and the procedure wasn’t followed because the court found at the time didn’t have the authority to do that.
So, you’re asking us why we’re following the law that wasn’t followed, and the reality is —
WELKER:…reversing the directive…
SPICER: We’re not reversing it. That is a misinterpretation of the scenario. The court stopped it. It enjoined it in August of last year because it wasn’t properly drafted and it didn’t follow the procedures and there was no legal basis for it in a law that was instituted in 1972.
So for you to use those terms, frankly, doesn’t reflect what the situation actually is and how it happened. To talk about us reversing something that was stopped by the courts.
WELKER: But you’re sending a message.
SPICER: No, we’re not. We’re basically saying it’s a states’ rights issue. If a states chooses to do it, as I mentioned to April, when this circumstance came up at one of the president’s own properties, he was very clear about his position on this, so for you to turn around and say what message is president saying, where was the message when he sent it last year?
I think the message shows that he’s a guy with a heart that understands the trouble that many people go through, but he also believes that the proper legal recourse for this is with the states. He believes in a states’ ability to determine what’s right for their state versus another time.
WELKER: But what you’re saying and what the LGBTQ community was saying yesterday that what were perceiving is those are kids are not…
SPICER: There’s a difference between what people may or not feel and the legal process and the law, and the law right now doesn’t allow for it under Title IX that was passed in 1972, and the procedure wasn’t followed. The court saw this in August of last year for a reason, and all we’re doing is saying that the proper place for this is in the states.
And so, for you to suggest what message this is sending, it’s very simple that it’s a states’ rights issue and the state should enact laws that reflect the values, principles and will of the people in their particular states. That’s it plain and simple.
WASHINGTON BLADE: On the transgender guidance, the administration not only rescinded it, but sent a letter to the Supreme Court informing them about the change as it considers a related case. Does the termination of the guidance represent a position from the administration on the way the Supreme Court should rule?
SPICER: Removing the guidance clearly does. The guidance that was put forward by the Obama administration, which clearly hadn’t been done in a proper way in terms of how they solicited, or rather didn’t solicit comments. The guidance it puts forward obviously sends a signal to the court on where the administration stands on this issue.
FOX 5 DC: Jackie Evancho, she sang the National Anthem, she request a meeting with the president. Her sister is transgender. Is he going to take that meeting or meet with anyone from the transgender community during this conversation?
SPICER: Yeah. I think the president would be welcome to meet with her.
Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead
No political willpower to force vote or reach a compromise
Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.
Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.
In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.
If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.
“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”
The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.
Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”
“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process. We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”
Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.
“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”
A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.
Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”
Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.
The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.
Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.
“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”
Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.
For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.
Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”
“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”
But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.
No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.
Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.
“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”
Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.
Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.
Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.
To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.
A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.
“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”
But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.
D.C. bill to ban LGBTQ panic defense delayed by Capitol security
Delivery of bill to Congress was held up due to protocols related to Jan. 6 riots
A bill approved unanimously last December by the D.C. Council to ban the so-called LGBTQ panic defense has been delayed from taking effect as a city law because the fence installed around the U.S. Capitol following the Jan. 6 insurrection prevented the law from being delivered to Congress.
According to Eric Salmi, communications director for D.C. Council member Charles Allen (D-Ward 6), who guided the bill through the Council’s legislative process, all bills approved by the Council and signed by the D.C. mayor must be hand-delivered to Congress for a required congressional review.
“What happened was when the Capitol fence went up after the January insurrection, it created an issue where we physically could not deliver laws to Congress per the congressional review period,” Salmi told the Washington Blade.
Among the bills that could not immediately be delivered to Congress was the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, which was approved by the Council on a second and final vote on Dec. 15.
Between the time the bill was signed by Mayor Muriel Bowser and published in the D.C. Register under procedural requirements for all bills, it was not ready to be transmitted to Congress until Feb. 16, the Council’s legislative record for the bill shows.
Salmi said the impasse in delivering the bill to Congress due to the security fence prevented the bill from reaching Congress on that date and prevented the mandatory 60-day congressional review period for this bill from beginning at that time. He noted that most bills require a 30 legislative day review by Congress.
But the Evangelista-Hunter bill, named after a transgender woman and a gay man who died in violent attacks by perpetrators who attempted to use the trans and gay panic defense, includes a law enforcement related provision that under the city’s Home Rule Charter passed by Congress in the early 1970s requires a 60-day congressional review.
“There is a chance it goes into effect any day now, just given the timeline is close to being up,” Salmi said on Tuesday. “I don’t know the exact date it was delivered, but I do know the countdown is on,” said Salmi, who added, “I would expect any day now it should go into effect and there’s nothing stopping it other than an insurrection in January.”
If the delivery to Congress had not been delayed, the D.C. Council’s legislative office estimated the congressional review would have been completed by May 12.
A congressional source who spoke on condition of being identified only as a senior Democratic aide, said the holdup of D.C. bills because of the Capitol fence has been corrected.
“The House found an immediate workaround, when this issue first arose after the Jan. 6 insurrection,” the aide said.
“This is yet another reason why D.C. Council bills should not be subject to a congressional review period and why we need to grant D.C. statehood,” the aide said.
The aide added that while no disapproval resolution had been introduced in Congress to overturn the D.C. Evangelista-Hunter bill, House Democrats would have defeated such a resolution.
“House Democrats support D.C. home rule, statehood, and LGBTQ rights,” said the aide.
LGBTQ rights advocates have argued that a ban on using a gay or transgender panic defense in criminal trials is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or expression is to blame for a defendant’s criminal act, including murder.
Some attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.
In addition to its provision banning the LGBTQ panic defense, the Evangelista-Hunter bill includes a separate provision that strengthens the city’s existing hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats to be prosecuted as a hate crime.
LGBTQ supportive prosecutors have said the clarification was needed because it is often difficult to prove to a jury that hatred is the only motive behind a violent crime. The prosecutors noted that juries have found defendants not guilty of committing a hate crime on grounds that they believed other motives were involved in a particular crime after defense lawyers argued that the law required “hate” to be the only motive in order to find someone guilty of a hate crime.
Salmi noted that while the hate crime clarification and panic defense prohibition provisions of the Evangelista-Hunter bill will become law as soon as the congressional review is completed, yet another provision in the bill will not become law after the congressional review because there are insufficient funds in the D.C. budget to cover the costs of implementing the provision.
The provision gives the D.C. Office of Human Rights and the Office of the D.C. Attorney General authority to investigate hate related discrimination at places of public accommodation. Salmi said the provision expands protections against discrimination to include web-based retailers or online delivery services that are not physically located in D.C.
“That is subject to appropriations,” Salmi said. “And until it is funded in the upcoming budget it cannot be legally enforced.”
He said that at Council member Allen’s request, the Council added language to the bill that ensures that all other provisions of the legislation that do not require additional funding – including the ban on use of the LGBTQ panic defense and the provision clarifying that hatred doesn’t have to be the sole motive for a hate crime – will take effect as soon as the congressional approval process is completed.
D.C. man charged with 2020 anti-gay death threat rearrested
Defendant implicated in three anti-LGBTQ incidents since 2011
A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.
D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.
Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.
According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.
Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.
An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.
“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”
The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”
Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.
Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.
In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.
“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.
Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.
The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.
In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”
At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.
The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.
The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.
In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.
The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.
It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.
Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.
The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.
The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.
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