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Trans military ban halted by war threat

LGBT groups file lawsuit as White House reportedly finalizes guidance

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President Donald Trump caved to pressure from religious conservatives and announced a ban on trans service members. (Photo courtesy of the White House YouTube channel)

It took the threat of nuclear war with North Korea to reportedly get the White House to put a hold on the policy re-instituting the ban on open transgender service in the military.

A White House source, who spoke to the Blade on condition of anonymity, said “A Guidance Policy for Open Transgender Service Phase Out”— which had been certified by the White House Counsel’s Office after repeated advice that it would result in lawsuits—was expected to be sent to Defense Secretary James Mattis sometime during the week starting Aug. 7.

However, according to a Pentagon source, after President Trump and North Korean dictator Kim Jong-un got into a fiery verbal sparring match on Aug. 8, the Defense Secretary sent a message to major U.S. commands letting them know that the threat by North Korea was his overriding priority and that other issues “were to be temporarily sidelined.”

Additionally, the Pentagon source says that Mattis intends to put a hold on all personnel matters, though disciplinary issues such discharges will continue. However, anything that affects military strength and readiness, specifically troop numbers, will be put on hold. Meanwhile, the Pentagon confirmed to the New York Times Aug. 9 that it has not yet received the trans guidance.

More pressing is possible nuclear war. On Aug. 5, the United Nations Security Council imposed tougher economic sanctions on North Korea after the isolated country tested two intercontinental ballistic missiles. China and Russia voted with the United States, something of a diplomatic coup, considering China’s connections to North Korea. Trump and his advisers had been warned by President Obama and National Security Adviser Susan Rice that Kim Jong-un was developing a threatening nuclear program—a fact made more concerning when the Washington Post reported that North Korea has developed a miniaturized nuclear weapon that can fit on top of an ICBM, which is capable of reaching the United States. Los Angeles, considered a prime target, is 5,935 miles from North Korea.

“North Korea best not make any more threats to the United States,” warned Trump from his golf club in Bedminster, N.J. “They will be met with fire and fury like the world has never seen. He has been very threatening — beyond a normal statement,” Trump said of Kim Jong-un. “As I said, they will be met with fire, fury and frankly power the likes of which this world has never seen before.”

North Korea threatened a preemptive strike creating “enveloping fire” against Guam, a sovereign U.S. territory that’s home to combined Navy and Air Force forces at Joint Region Marianas, with 6,000 service members, a port for nuclear submarines and other major military forces and more than 162,000 Americans. Last June, Guam held its first LGBT Pride parade with 150 people, including Guam Legislature Speaker Benjamin Cruz.

While Mattis did not specifically mention tabling the transgender service ban, it can be extrapolated that dealing with such a major policy change would be exceedingly disruptive during a time of crisis, especially when a military leader would want the ability to deploy all available troops.

transgender military ban, gay news, Washington Blade

Lt. Cmdr. Blake Dremann is continuing to do his job, despite President Trump’s announcement that he intends to ban transgender people from serving in the U.S. military. (Washington Blade photo by Michael Key)

Meanwhile, GLAD and the National Center for Lesbian Rights filed a “Doe v. Trump lawsuit on Aug. 9 in federal court in D.C., seeking an injunction against Trump’s directive to reinstate a ban.

“President Trump is needlessly attacking courageous transgender service members who put their lives on the line for our country,” GLAD and NCLR said in a press release. “Trump’s efforts to reinstate the ban are already harming service members, who have been blindsided and are scrambling to deal with what this means for their families and their futures—including the loss of job security, retirement benefits, healthcare, and other serious harms.”

The two LGBT-focused law firms note that the military has already carefully studied the ban, which led to former Defense Secretary Ash Carter agreeing to lift the ban on open trans service in June 2016 after a RAND Study he commissioned indicated there would be no problems either with service or limited costs for medical care. Thousands of trans service members subsequently came out and have been serving openly without incident. The firms represent five of those active duty service members.

The lawsuit asserts that Trump’s tweeted directive violates the equal protection and due process guarantees of the Constitution, discriminates against one group with no legitimate purpose and contradicts the military’s own conclusion that there is no reason for the ban.
Transgender service members also relied on the continuity of the policy after Mattis’ Jan. 12 confirmation hearing in which he assured lawmakers that he would not roll back the Obama administration rules. Sen. Mazie Hirono (D-Hawaii) asked specifically if Mattis thought there was anything innate about being a woman or LGBT that would disqualify them from serving in a lethal force, Mattis said, “No,” The Hill reported.

“We are heartened by Gen. Mattis’ stated commitment during his testimony not to reverse the profound progress we have made in ensuring LGBT service members and their families are able to serve our nation with pride,” American Military Partner Association President Ashley Broadway-Mack and OutServe-SLDN Executive Director Matt Thorn said in a joint statement.

So how did the White House, the Defense Department and the LGBT community come to this point, especially after then-candidate Trump promised to protect the LGBT community?

President Donald Trump, shows a crowd at Colorado campaign rally an upside down Rainbow flag. Upside down flags are a sign of distress. An omen of things to come (Photo courtesy Trump campaign Instagram)

“Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs,” he tweeted on June 14, 2016.

Then there was his acceptance speech at the Republican National Convention on July 21, 2016. “Only weeks ago, in Orlando, Florida, 49 wonderful Americans were savagely murdered by an Islamic terrorist. This time the terrorist targeted our LGBT community. As your president, I will do everything in my power to protect our LGBT citizens from the violence and oppression of a hateful foreign ideology,” Trump said.

But that promise clashed with another promise Trump made to his more reliable base, the evangelical community, led by Vice President Mike Pence and Family Research Council President Tony Perkins.

The specific drive to repeal and replace the open transgender service commitment started behind the scenes with a series of anti-LGBT nominations in March and April, with the growing sense that some military officers were pressing the chiefs to roll back the policy through an amendment to the National Defense Authorization Act. They found an opening when on May 10, USA Today reported on two transgender cadets at the Air Force Academy and at West Point. That exposed a glaring loophole in the accessions policy, the procedure for accepting new troops into service.

“Currently, there is an Air Force Academy cadet who has identified as a transgender individual,” said Lt. Col. Allen Heritage, an academy spokesman, told USA Today. “The cadet can graduate. But, per the current (Defense Department) transgender policy, this cadet cannot commission into the Air Force. However, we are strongly recommending this individual for Air Force civil service as an option for continued service after the academy.”

On May 21, USA Today reported on a May 8 memo from Deputy Defense Secretary Robert Work instructing the service secretaries and chiefs of the armed services to assess the military’s “readiness to begin accepting transgender applicants on July 1, 2017.” Their assessments are due May 31.

“The personnel policies of this Department are designed to enhance the warfighting readiness and lethality of the force that protects our country,” Work wrote. “We do not intend to reconsider prior decisions unless they cause readiness problems that could lessen our ability to fight, survive and win on the battlefield.”

Brad Carson, a top Carter official for military personnel and an advocate for lifting the ban, told USA Today he was concerned about how the other ordinary memo, for a new administration, could be interpreted.

Secretary of Defense Robert M. Gates speaks with outgoing acting U.S. Central Command commander Lt. Gen. John Allen (right) and incoming commander Gen. James N. Mattis before an assumption of command ceremony at MacDill Air Force Base, Fla., on Aug. 11, 2010. (Photo by Cherie Cullen; courtesy U.S. Department of Defense)

“This could be seen as an opportunity to reconsider the policy,” Carson said. “It is certainly possible, and it would invite litigation. I do have full confidence in (Defense Secretary) Jim Mattis to do the right thing here.”

He was right. The articles exposing the loophole in the accessions policy and the May 8 memo, triggered a Religious Right chain reaction, with the Heritage Foundation reaching out to the Military Times to follow up. This was also during the same period that there was much coverage of Chelsea Manning in the media. On May 16, 85 conservative leaders, many like Tony Perkins, head of the Family Research Council, and scores of retired anti-LGBT military officers, issued a statement opposing transgender service.

“Conservative leaders urgently suggest that the Trump Administration review and rescind the Obama-era policies that hinder military readiness and overall effectiveness,” the statement said. “Politically correct policies have been imposed largely through administrative fiat. They can be removed in like manner while further study and congressional guidance is obtained. The most problematic policies in this category are those addressing the presence of transgender individuals in the military.”

That was enough to motivate a number of religious Republican conservatives in the House — led by Rep. Duncan Hunter of California and Rep. Vicki Hartzler from Missouri — to launch a series of amendments to the NDAA.

By now, Freedom Caucus chair Mark Meadows of North Carolina, Mo Brooks from Alabama, Steve King from Iowa, and Trent Franks from Arizona were involved.

Meanwhile, Perkins, along with his colleagues Ken Blackwell and Lt. Gen. Jerry Boykin (ret), went to Vice President Mike Pence who agreed to step in and help if he could, according to a source with knowledge of the situation.

The LGBT movement leadership knew what was going on but tried to keep everything quiet. “We were trying desperately to get to May 31 because we knew at that point the accessions policy would be locked into place by the Pentagon,” said a source who asked to remain anonymous. “Then it was just a simple matter of letting it ride until Secretar Mattis signed off on it.”

The LGBT coalition quietly working on this were confident (if they could get to May 31) because there had already been one year of open service without incident for an estimated 15,000 trans service members in all five branches of service, and because of the assumed power of the RAND Study.

But Hartzler’s focus on the Pentagon not paying for what Hartzler called “transition surgeries,” as well as hormone therapy, became a media talking point. “The job of Congress is to ensure that our military is the most effective, efficient and well-funded fighting force in the world. With the challenges we are facing across the globe, we are asking the American people to invest their hard-earned money in national defense. Each dollar needs to be spent to address threats facing us,” she said in a July statement. She threw out wild estimate that the surgeries would cost “a billion dollars over the next ten years.”

The RAND study flat contradicted that, underscoring that “not all of these transgender service members would be expected to seek medical treatment related to their gender status or become non-deployable.”

“Only a small portion of service members would likely seek gender transition-related medical treatments that would affect their deployability or health care costs,” said Agnes Gereben Schaefer, lead author of the study and a senior political scientist at RAND.

RAND estimated that “between 30 and 140 new hormone treatments could be initiated a year and 25 to 130 gender transition-related surgeries could be utilized a year among active component service members. Additional health care costs could range between $2.4 million and $8.4 million, representing an approximate 0.13-percent increase.”

Vice President Mike Pence addressed The Conservative Political Action Conference, an annual political conference attended by conservative activists and elected officials from across the United States. (Photo by Gage Skidmore; courtesy Wikimedia Commons)

Hunter, Hartlzer, Brooks, Franks and Meadows approached White House Deputy Chief of Staff for Legislative Affairs Rick Dearborn to get involved. “Dearborn has the ear of Vice President Pence. So he and the VP talked about it,” the source said.

This same week, there was a meeting of evangelical leaders at the White House and they briefly discussed the transgender issue. “But when Pence got back to his office, he made a call over to Meadows and they had another discussion about it,” the source says.

It was at this point that Rep. Pete Sessions, who is chair of the House Rules Committee, was basically saying we’re not going to let it in on the final rule, it’s basically going to have to go as an amendment to the bill on House floor. Speaker Ryan agreed.

Hunter and Hartzler, Brooks and Franks lined up as many votes as they could get, as did the pro-LGBT side.

The day before the vote, on Wednesday, July 12, the Pentagon source says Mattis reached out to Hartzler herself. Late that night, the source said Hartzler, “in a very polite way, told him to fuck off.”

The LGBT side needed all the Democrats and at least 25-30 Republican moderates to cross over, which happened after it was confirmed that Mattis had lobbied against the amendment. Though it was a narrow vote—214-209—the amendment was defeated. But the issue didn’t die, even after Mattis spoke directly to Ryan and others.

Hunter, Hartzler, and Meadows would not take “no” and eventually went to Pence.

While Trump was on his way to a rally in Ohio, Pence, Dearborn, Steve Bannon, and others held a conference call with the Republican legislators. At some point, the source says, Pence made a call to the plane and discussed the situation with Trump. About five hours later, Pence called the plane again as it was on its way back to Joint Base Andrews.

The issue was brought up again the next morning during the morning briefing and 25 minutes after that came the first tweet. There was a nine-minute gap, then came the second tweet, and then that was quickly followed by the third tweet.

Mattis and the Pentagon were told something was going on the day before, but not what it was. They were told to stand by for a change of direction in policy. They were all reportedly caught off guard by the tweets. And everyone was caught off guard by the swift backlash from such conservatives as Sens. Orin Hatch of Utah and Joanie Ernst of Iowa. The consensus was that this is not how policy is done.

Reversing the policy of inclusion for transgender service members has been a priority of Pence’s base—the religious right—since the ban was lifted on June 30, 2016. Just because of the possibility of war, a lawsuit seeking an injunction against the expected White House guidance, and the fact that Mattis does not want the anti-trans policy should not mean the LGBT community should drop its guard. Trans service may be constitutional but it’s still under attack in a war of the Religious Right’s making.

 

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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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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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