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Judge issues decision favorable to Md. trans student on locker room use

Obama-appointed judge determines policy ‘does not withstand’ legal scrutiny

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Max Brennan, gay news, Washington Blade, trans student

Max Brennan (Photo courtesy of Max Brennan)

A federal judge in Maryland has issued a decision favorable to a transgender student whose school has barred him from the locker room consistent with his gender identity.

In a 40-page decision, U.S. District Judge George Russell III, an Obama appointee, stopped short Tuesday of issuing a preliminary injunction in favor of Max Brennan, identified as M.A.B in the lawsuit, but nonetheless finds St. Michaels Middle High School in Talbot County’s policy “does not withstand” heightened scrutiny and amounts to unlawful sex-stereotyping.

“Because defendants contend that they may bar M.A.B. from the boys’ locker room completely — despite the presence of single-use restrooms or stalls — by implication, defendants are arguing that the presence of M.A.B. in the boys’ locker room — itself — is what infringes on the privacy rights of other boys,” Russell writes. “Defendants do not provide any explanation for why completely barring M.A.B. from the boys’ locker room protects the privacy of other boys changing there, while the availability of single-use restrooms or locker room stalls does not. Nor does the Court find any.”

The ruling is consistent with decisions from numerous courts throughout the country finding that barring transgender students from the restroom consistent with their gender identity amounts to sex discrimination, which is unlawful under Title IX of the Education Amendments of 1972.

In a statement, Brennan said he’s “extremely happy with the court’s decision” and thinks “it is a great step in the right direction.”

“I am hopeful that this case will not only help change policy for the better, but help the students who are bound to come after me,” Brennan said.

According to the decision, the school initially required Brennan to use designated single-use gender neutral bathrooms, but then allowed him to use boys’ restrooms consistent with his gender identity. Still, the school prohibited Brennan from using the boys’ locker room, instead making him use the gender neutral bathroom whenever he needed to change his clothes.

As a result, Russell writes, Brennan has faced “humiliation and embarrassment, as well as alienation from his peers.” The student received “weird looks” from his peers when using the designated restroom, so has tried to use them infrequently, Russell writes.

Because the bathrooms are far away from Brennan’s locker, his physical education teacher gave him extra time to change. But when substitute teachers were present, they required him to explain why he was tardy to class, forcing him to out himself as transgender.

“The ‘stigma and impracticality’ of changing his clothes in the designated restrooms led M.A.B. to attend physical education class without changing when he thought he would not sweat very much,” Russell adds. “At times, his physical education teacher penalized M.A.B.’s grade for not changing his clothes.”

Russell notes precedent exists in the Fourth Circuit on bathroom access for transgender students after the U.S. Fourth Circuit Court of Appeals’ decision in favor of transgender student Gavin Grimm. However, Russell writes that “no longer resolves” the situation because it’s based on Obama-era guidance assuring transgender kids access to school restrooms consistent with their gender identity, which was rescinded in the Trump administration.

Instead, Russell turns for guidance to Title IX and concludes Brennan is eligible for a claim of unlawful sex-stereotyping, referring to a decision by the U.S. Seventh Circuit Court of Appeals in favor of Ash Whitaker, another transgender student.

“The main difference between the policy in Whitaker and defendants’ policy here is that the school administrators in Whitaker barred the student from the boys’ restrooms, whereas here, defendants barred M.A.B. from the boys’ locker room,” Russell writes. “That difference does not change the court’s Title IX analysis. Like the policy in Whitaker, defendants’ policy of barring M.A.B. from the boys’ locker room requires him to use a facility that ‘does not conform’ with his gender identity.”

Further, Russell finds M.A.B. is eligible for relief under the Equal Protection Clause of the Fourteenth Amendment because they both require sex discrimination and transgender discrimination to be subjected to heightened scrutiny.

“The policy clearly implicates the Equal Protection Clause,” Russell writes. “It treats M.A.B. differently from the rest of the High School’s students. While the rest of M.A.B.’s peers may use the locker room that aligns with their gender identity, M.A.B. may not. Instead, Defendants discipline M.A.B. if he uses such a locker room — the boys’ locker room.”

As evidence that transgender people are politically powerless, Russell notes “there are very few transgender elected officials” and only two openly transgender people have been elected to state legislatures.

“Transgender people have been historically subjected to discrimination, their status bears no relation to their ability to contribute to society, they exhibit immutable and distinguishing characteristics, and they are both a minority and politically powerless,” Russell concludes.

Russell also rejects out of hand the argument from the school the policy is lawful because it protects the privacy of other male students in the locker room who may be exposed to M.A.B.’s genitals.

“If defendants were concerned that children with different-looking anatomies were changing clothes in the locker room together, ‘then it would seem that separate [locker rooms] also would be appropriate for pre-pubescent and post-pubescent children who do not look alike anatomically,'” Russell writes. “But defendants have not separated locker rooms in that manner.”

But Russell denies Brennan’s request for a preliminary injunction in his favor as well as the school’s request for summary judgment to throw out the lawsuit, ordering the parties to confer to come up with a joint proposed scheduling order in time for a hearing on Sept. 4.

The judge denies the preliminary injunctions without prejudice on the basis M.A.B. isn’t in imminent danger under school policy because he’s not currently enrolled in a gym and won’t be until fall 2018.

“Of course, it is certain M.A.B. will take physical education class when the following school year begins this September,” Russell writes. “Still, it is ‘speculative’ whether the school year will begin before the court will issue a
decision on the merits.”

Sasha Samberg-Champion, a civil rights attorney with the D.C.-based Relman, Dane & Colfax PLLC, said the decision is ” is everything that advocates could want,” even though the court stopped short of issuing a preliminary injunction in Brennan’s favor.

“That Judge Russell did not also grant a preliminary injunction — yet — is likely a good thing,” Samberg-Champion said. “A PI would be immediately appealable to the Fourth Circuit, and then potentially to the Supreme Court, which would consider the case at a very preliminary posture with a relatively undeveloped record. Instead, the parties have a few months to potentially resolve the situation without further litigation and, at worst, to better develop the factual record before Judge Russell hears a renewed motion in late summer or early fall.”

Arguing “we do better in these cases the more we develop the facts,” Samberg-Champion predicted the school will be unable to come up with evidence showing its privacy claims are reasonable, which means “the plaintiff’s case for a PI will be even stronger, and will be better suited to be upheld on appeal.”

Representing Brennan was FreeState Justice, which initially filed the lawsuit, and the American Civil Liberties Union and the ACLU of Maryland, which later on joined as co-counsel.

Jennifer Kent, managing attorney with FreeState Justice, said she hopes the decision for Brennan “is a wake-up call for the Talbot County School Board.”

“School systems in Maryland should know the law and should be protecting students who are transgender from discrimination, not singling them out for separate and unequal treatment,” Kent said.

Joshua Block, a senior staff attorney at the ACLU LGBT & HIV Project, said the decision is consistent with other court rulings throughout the country.

“Courts across the country have recognized that Title IX and the Constitution prohibit schools from singling out transgender students for different and discriminatory treatment,” Block said. “We will continue to fight on behalf of Max and other transgender students to ensure that these stigmatizing and harmful policies are a thing of the past.”

Attorneys for Talbot County Public Schools didn’t immediately respond to the Washington Blade’s request for comment.

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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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Biden names civil rights veteran to U.S. Education Dept.

Catherine Lhamon’s portfolio will include LGBTQ rights, sexual misconduct, racial discrimination

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Nominee for Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education Catherine Lhamon. (Photo public domain))

The White House announced Thursday that President Joe Biden has nominated Catherine Lhamon to serve as the Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education.

Lhamon currently serves as a Deputy Assistant to the President and Deputy Director of the Domestic Policy Council for Racial Justice and Equity at the White House, where she manages the President’s equity policy portfolio. She is a former attorney for the American Civil Liberties Union, (ACLU) and served as chair of the U.S. Commission on Civil Rights from 2017 to 2021.

She has also served as Legal Affairs Secretary to California Governor Gavin Newsom.

Her portfolio at Education, where she previously served in the same position under former President Barack Obama, will include LGBTQ rights, sexual misconduct and racial discrimination in the nation’s K-12 schools, universities and colleges. Lhamon was Assistant Secretary for Civil Rights at the Department of Education, to which President Obama nominated her and the Senate confirmed her in 2013.

“I am thrilled that President Biden is nominating Catherine Lhamon to serve as Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education. Catherine has devoted her career to ensuring equity is at the core of all her work,” U.S. Secretary of Education Miguel Cardona said in a statement released by his office Thursday.

“She has a strong record of fighting for communities of color and underserved communities, whether as the current Deputy Director of the Domestic Policy Council, the former chair of the U.S. Commission on Civil Rights, or as a civil rights educator at Georgetown University. We are thrilled to have Catherine serving as Assistant Secretary for Civil Rights and know she will continue to fight for fairness, equity, and justice for all of America’s students.”

Lhamon has also litigated civil rights cases at National Center for Youth Law, Public Counsel Law Center, and the ACLU Foundation of Southern California.  Lhamon taught federal civil rights appeals at Georgetown University Law Center in the Appellate Litigation Program and clerked for the Honorable William A. Norris on the United States Court of Appeals for the Ninth Circuit.

“Catherine Lhamon is the right choice to lead the Department of Education’s Office for Civil Rights at such a critical time for the country and the agency. There is much work to do in order to roll back the harmful policies and legacies of Betsy DeVos, from her attacks on transgender students to her unconscionable revocation of discriminatory discipline guidance and rewrite of Title IX rules,” Adele Kimmel, Director of the Students’ Civil Rights Project at Public Justice told the Blade in an email.

“During her previous tenure in the same job, Catherine embraced equality, enforced Title IX and ensured students had an ally inside the federal government. She will do so again, and the Senate should move to quickly confirm her so she can begin the work of restoring the Department’s commitment to protecting the civil rights and dignity of students and implementing the Biden Administration’s pledge to undo the damage that DeVos has done,” Kimmel added.

Born in Virginia and raised in California, Lhamon graduated from Amherst College and Yale Law School. Lhamon and her husband and two daughters are transitioning between California and Maryland.

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IDAHOBiT events to promote intersectionality, resilience, allyship

HRC president to participate in virtual panel in Canada

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(Photo courtesy of the International Day Against Homophobia, Biphobia and Transphobia committee)

 

Intersectionality, resilience and allyship are among the themes that this year’s International Day Against Homophobia, Biphobia and Transphobia events will highlight.

Dignity Network Canada and the Black Coalition for AIDS Prevention on May 17 will hold a virtual panel that will feature Human Rights Campaign President Alphonso David, Canadian Center for Gender and Sexual Diversity Executive Director Debbie Owusu-Akyeeah, Kaleidoscope Trust Executive Director Phyll Opoku-Gyimah, COC Nederland Executive Director Marie Ricardo and Rainbow Railroad Executive Director Kimahli Powell. The British High Commission and the Dutch Embassy in Canada have co-sponsored the event.

“We hope that this will be a really interesting and important conversation on intersectionality and transnational solidarity — and what it means for these leaders and their organizations during these times,” reads a description of the event.

The U.N. LGBTI Core Group on May 17 will host a virtual IDAHOBiT event that will focus on ways to develop an “inclusive and diverse post-pandemic world.” The World Bank Group, the International Monetary Fund, the European Bank for Reconstruction and Development, the Inter-American and Asian Development Banks host a similar IDAHOBiT commemoration.

“In order to heal from the economic, social, and public health dire impact the pandemic has had and still has, every plan of recovery must take into account a human-rights based, intersectional and gender responsive approach that addresses the specific needs of LGBTI persons in order not to leave them further behind,” reads a description of the U.N. LGBTI Core Group event.

Several Russian LGBTQ rights groups on May 17 will hold a “Vaccine for Acceptance” event that seeks to bolster allyship in the country.

Retired South Africa Constitutional Court Justice Edwin Cameron on May 16 will moderate a virtual panel that will focus on religion and anti-LGBTQ violence.

Workplace Pride and the Dutch Embassy in Budapest on May 17 will host a symposium on LGBTQ-inclusive workplaces in Hungary. M.V. Lee Badgett, an economics professor at the University of Massachusetts, on the same day will participate in a webinar the U.S. Embassy in Singapore is hosting with Oogachaga, a local LGBTQ advocacy group.

Haver Srbija, a Serbian NGO, on May 15-16 will hold Falafel, a film festival that seeks to build “bridges and promotes Israeli, Jewish and LGBTQI culture and communities” and highlight “various social issues in the context of the fight against prejudice, discrimination, anti-Semitism, homophobia and xenophobia and encourages the audience to develop critical thinking on the issue of these topics.” Proud Lebanon is slated to hold a series of six webinars between May 17-22 that will focus on feminism, LGBTQ rights and other topics.

The National Center for Sexual Education in Cuba will hold a series of virtual forums and other events through the month to commemorate IDAHOBiT.

CENESEX Director Mariela Castro, whose father is former Cuban President Raúl Castro, during a May 4 press conference in Havana said the IDAHOBiT events are part of the process of amending the country’s family code to make it more equitable for LGBTQ Cubans. Mariela Castro said a bill to amend it will be introduced in the Cuban Parliament in July.

“I was able to appreciate that the majority of the population … is in favor of recognizing the rights of LGBTI+ people and especially the rights in the family sphere that include the possibility, the option, of marriage,” said Mariela Castro during the press conference, according to Tremenda Nota, the Washington Blade’s media partner in Cuba.

IDAHOBiT commemorates the World Health Organization’s 1990 decision to declassify homosexuality as a mental disorder.

This year’s events will take place against the backdrop of a pandemic that continues to exacerbate existing inequalities for LGBTQ people and other vulnerable groups around the world.

Consensual same-sex sexual relations remain criminalized in dozens of countries. Violence based on gender identity and sexual orientation remains rampant in the U.S. and throughout the world.

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