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Rulings in favor of Title VII protections for LGBT workers on the rise

Decisions from Second and Sixth add to opinions from growing number of courts

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The number of circuit courts that have determined Title VII applies to LGBT people is on the rise.

New rulings from federal appeals courts that have found an existing civil rights law against sex discrimination also prohibits anti-LGBT discrimination are shaking up the landscape for protections for LGBT people in the workplace.

In the past month, two circuit courts — the U.S. Second Circuit Court of Appeals and the U.S. Sixth Circuit Court of Appeals — have determined Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex in the workplace, applies to LGBT people.

The Second Circuit found the anti-gay discrimination is a form of sex discrimination in the case against Altitude Express in New York filed by Donald Zarda, a gay now deceased skydiver. That decision made the Second Circuit one of two circuits where sexual-orientation discrimination is unequivocally prohibited under federal law, complementing a decision from the U.S. Seventh Circuit Court of Appeals last year.

The next week, the U.S. Sixth Circuit Court of Appeals determined Title VII bars anti-trans discrimination in the case against Harris Funeral Homes in Michigan. That decision also found the Religious Freedom Restoration Act doesn’t provide an exemption to employers seeking a religious exemption to discriminate against transgender workers. As a result of the ruling, the Sixth Circuit joins the First, Ninth and Eleventh Circuits in barring anti-trans workplace discrimination without dispute.

Sharita Gruberg, associate director of LGBT research and communications at the Center for American Progress, said the circuit court decisions are “incredibly important” tools against anti-LGBT discrimination.

“Title VII provides strong protections against discrimination in the workplace,” Gruberg said. “If you are an employee in any one of those circuits that have already held that you’re protected, that gives you recourse. Also, there’s a lot of district courts that have also found Title VII prohibits discrimination based on gender identity and sexual orientation. So we’re seeing a lot more jurisdictions across the country agreeing with this definition.”

As a result of these court rulings, workplace protections for LGBT people have advanced in measurable ways. Federal law in the states of the Sixth Circuit — Michigan, Ohio, Kentucky and Tennessee — now unequivocally bar discrimination against transgender workers. Although each of the states in the Second Circuit — Vermont, Connecticut and New York — already has state a law barring anti-gay discrimination, the ruling enables lesbian, gay and bisexual workers to sue under federal law. That requires a lower threshold of evidence for a successful case than state law because it allows charges when the firings were the result of mixed motivations.

Because each individual plaintiff either faces discrimination on the basis of sexual orientation or gender identity, courts have interpreted Title VII to apply to LGBT workers in a kind of two-layered approach. No court ruling against anti-gay or anti-trans discrimination explicitly covers the other. However, the reasoning is often based on the determination that anti-LGBT discrimination is sex-stereotyping, which means a ruling against anti-gay or anti-trans discrimination could easily bolster a case of the other kind of discrimination.

The number of circuit courts that have determined Title VII applies to LGBT workers may soon grow. The LGBT legal group Lambda Legal and the St. Louis-based law firm Mathis, Marifian & Richter LTD have brought before the U.S. Eighth Circuit Court of Appeals another lawsuit that could affirm protections in the jurisdiction for lesbian, gay and bisexual workers. The litigation was filed on behalf of Mark Horton, a health care sales specialist whose job offer at Midwest Geriatric Management was rescinded after the employer found out he’s gay.

Last week, 47 businesses, attorneys general from 15 states and D.C., the U.S. Equal Employment Opportunity Commission and major LGBT groups were among those that filed friend-of-the-court briefs before the Eighth Circuit urging the court to rule in favor of Horton and affirm Title VII protections for lesbian, gay and bisexual workers.

Omar Gonzalez-Pagan, staff attorney for Lambda Legal, said in a statement the briefs demonstrate “the nation’s top corporations recognize that discrimination is bad for business.”

“Our economy cannot thrive unless all people are welcome both as employees and customers,” Gonzalez-Pagan said. “Companies across all industries know that when an employee like Mark can bring their whole selves to work without fear of retaliation, they can focus on their jobs and succeed. Mark was recruited because of his recognized skills, which is what matters – and not his sexual orientation.”

But not every court is in alignment with the idea that Title VII protects LGBT workers. In a case filed by Jameka Evans, who alleged Georgia Regional Hospital fired her as a security guard for being a lesbian, the Eleventh Circuit Court of Appeals last year determined Title VII doesn’t apply to lesbian, gay and bisexual workers because Congress didn’t intend that when it passed the law in 1964. Other circuits have years-old precedent against protections for LGBT people under Title VII.

Moreover, the Trump administration has defied court rulings and reversed federal policy from the Obama years determining laws against sex discrimination apply to transgender people. On Title VII, U.S. Attorney General Jeff Sessions reversed a memo from former Attorney General Eric Holder assuring transgender workers protections. The Obama administration never explicitly took a position one way or the other on whether Title VII applies to lesbian, gay and bisexual workers, but the Trump administration sent a lawyer to the Second Circuit to argue against interpreting the law in favor of gay people in the Zarda case.

That view of sex discrimination under the Trump administration isn’t limited to Title VII. The Trump administration also rescinded guidance assuring transgender kids access to school restrooms consistent with their gender identity under the Title IX of the Education Amendments of 1972. The Justice Department also backed down from defending in court a rule assuring transgender people’s access to health care, including gender reassignment surgery, based on Section 1557 of Obamacare, which prohibits sex discrimination by medical providers.

Walter Olson, a senior fellow at the libertarian Cato Institute, said the idea Title VII applies to LGBT workers is “something of a stretch” based on the intent of Congress in 1964 as well as lawmakers’ inability since that time to pass an explicit law against anti-LGBT discrimination, such as the Employment Non-Discrimination Act.

“When this question first came up years ago, several circuit courts of appeals had rejected the idea that by banning sex discrimination Congress had also banned sexual orientation discrimination,” Olson said. “The cases back then were clear enough and consistent enough that lawyers regarded the issue as practically settled and so advised their clients. And law runs on precedent.”

Still, Olson conceded “there are also some pretty good arguments in favor of the effort” to interpret Title VII to apply to LGBT workers because “the law as interpreted by courts does change.”

“As we have seen in constitutional law, when narrow interpretations get broadened the world does not necessarily come to an end,” Olson said “And in the past couple of years there has been first a trickle and now a definite movement of federal courts toward a new position that ‘because of sex’ does cover sexual orientation after all. If that’s a stretch, then it’s the kind of stretch we’ve seen many times before, both in Title VII and elsewhere.”

As opposed to just leaving the issue to the judiciary, Gruberg said LGBT advocates should pressure Congress to enact an explicit prohibition on anti-LGBT discrimination because of the uncertainty of the courts and possible reversals from the federal government depending on which administration is in power.

“There’s still parts of the country where it’s an individual worker’s right and whether it’s their right to work free from discrimination because of their sexual orientation or gender identity will be upheld is not clear, and it’s really critical that Congress bring that clarity,” Gruberg said.

The likely vehicle for explicit legislative protections against anti-LGBT discrimination is the Equality Act, which would amend the Civil Rights Act of 1964 to prohibit anti-LGBT discrimination in employment, housing, public accommodations, credit, jury service, education and federal programs. The chief sponsor of the bill is Rep. David Cicilline (D-R.I.) in the U.S. House and Sen. Jeff Merkley (D-Ore.) in the U.S. Senate.

However, the bill is highly unlikely to move as long as Republicans retain control of Congress. In a 2000 interview with The Advocate, President Trump said he supports the idea of a bill that would add sexual orientation to the Civil Rights Act, but hasn’t addressed the issue since that time, nor whether he’d support adding protections for transgender people to the law. It seems unlikely he would support that now based on the record of his administration.

The U.S. Equal Employment Opportunity Commission, the agency charged with enforcing federal employment civil rights law, has determined in recent years Title VII applies to LGBT workers and decided to take up charges of anti-LGBT discrimination on behalf of workers. The commission found in 2012 Title VII applies to transgender workers in the case of Macy v. Holder and found in 2015 the law applies to lesbian, gay and bisexual workers in the case of Baldwin v. Foxx.

Data on the EEOC’s website indicates the charges and resolutions of anti-LGBT discrimination in the workforce has grown since the findings were made. In fiscal year 2017, the commission obtained 1,762 receipts of anti-LGBT discrimination and resolved 2,016 charges if anti-LGBT discrimination. (A total of 1,373 these FY-17 resolutions, however, were dismissed because EEOC found “no reasonable cause” for discrimination and another 304 were dismissed through administrative closures because, for some reason, such as a lack of contact information, EEOC couldn’t move forward with investigation.)

Even though the 11th Circuit in the Evans case has determined Title VII doesn’t apply to lesbian, gay and bisexual workers, the commission continues to interpret the law that way in that jurisdiction.

Christine Nazer, a spokesperson for the EEOC, affirmed the commission continues to apply the law in opposition to anti-gay discrimination in the 11th Circuit because the EEOC works as as independent agency.

“The agency’s position doesn’t change because of a circuit court decision,” Nazer said. “When we take charges of workplace discrimination (in this case, sexual orientation and gender identity charges) from the public, we apply Title VII/sex discrimination. In other words, our administrative process doesn’t charge; we determine the merit of the charge based on the law and EEOC policy.”

Gruberg said the EEOC has stood apart from other agencies in the Trump administration in continuing to uphold the idea laws against sex discrimination apply to transgender workers because of the nature of the commission.

“Even the conservative commissioners come from this kind of employment law background, and they have a very deep strong understanding of what Title VII entails and what the law says and what the non-discrimination protections includes and have been reviewing these cases and very familiar with it,” Gruberg said.

It’s hard to say when the U.S. Supreme Court will have an opportunity to decide the issue on a nationwide basis and affirm without a doubt Title VII protects either gay or transgender workers from discrimination. The high court declined to take up an opportunity last year to decide the issue in terms of anti-gay discrimination by declining a petition for certiorari in the 11th Circuit case filed by Jameka Evans against Georgia Regional Hospital.

There may be another opportunity if Altitude Express, the company that fired Zarda, filed a petition for certiorari over the Second Circuit. Although the business hasn’t announced one way or another what it will action, that action seems unlikely. An attorney for Attitude Express didn’t respond to a request to comment on whether a petition will be filed.

Another opportunity also may come after the Eighth Circuit decides against Horton, which may well be the case because the conservative court is stocked George W. Bush appointees. If Horton is the losing party, he could file a petition for certiorari before the Supreme Court.

Gruberg said the timing for when the Supreme Court will take up a case on whether gay protections are included under Title VII is “a very good question.”

“I think everyone feels that that’s coming,” Gruberg said. “It’s unclear what that case is going to be, though, so I think it’s probably a question that they’re going to take up soon, but what soon means in the court’s timeline is really unclear right now.”

The prospects are more daunting for a Supreme Court ruling asserting Title VII covers transgender people compared to anti-gay discrimination because the circuit courts have reached a greater consensus anti-trans discrimination is illegal. Transgender advocates are unable to seek review of wins before the Supreme Court because they have to take “yes” for an answer from the circuit courts.

However, a ruling from the Supreme Court for either gay or transgender people on Title VII, Gruberg said, would be significant not only for employment protections, but because it would have implications for other civil rights laws barring sex discrimination.

“It would definitely shift the tide in our favor when we’re trying to interpret what sex discrimination under Title IX means. That would also weigh really heavily into that, including protections for LGBTQ people, sex discrimination in Section 1557 also,” Gruberg said. “It would be very clear LGBTQ people are protected under that as well.”

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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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