Rep. David Cicilline (D-R.I.) will become the most senior openly gay member of the U.S. House as Democrats take the majority this week, but he’s more excited about the growing ranks of openly LGB people who will serve in Congress alongside him and finally being able to move long-awaited legislation to ban anti-LGBT discrimination.
Asked by the Blade during an interview in his office Dec. 20 about his new distinction as the most senior out gay member of the House with outgoing Rep. Jared Polis leaving to become governor of Colorado, Cicilline said he’s “very proud” the chamber will have a net gain of two out LGB members in the 116th Congress and talked about the Equality Act.
“It’s a great privilege to be a part of that group,” Cicilline said. “I think this year will be an opportunity for us to finally move forward on the Equality Act, which I think is the single most important piece of legislation to our community in terms of, once and for all, prohibiting discrimination against members of the LGBT community as a matter of federal law. And so, I’m honored to be the senior most member and really excited about the new colleagues that are joining this caucus.”
(Although Cicilline is now the most senior openly gay person in the House, he’s not the most senior openly gay person in Congress. That distinction belongs to Sen. Tammy Baldwin of Wisconsin who was first elected to the House in 1998, but moved to the Senate and won re-election last year.)
The Equality Act would amend the Civil Rights Act of 1964 and the Fair Housing Act to ban anti-LGBT discrimination in employment, housing, public accommodations, jury service, education, federal programs and credit.
The bill also seeks to update federal law to include sex in the list of protected classes in public accommodation in addition to expanding the definition of public accommodations to include retail stores, banks, transportation services and health care services. Further, the Equality Act would establish that the Religious Freedom Restoration Act — a 1994 law aimed at protecting religious liberty — can’t be used to enable anti-LGBT discrimination.
Although the ongoing government shutdown will likely be the first priority for the Democratic majority, Nancy Pelosi said advancing the Equality Act would be a personal goal and the legislation will receive a bill number between 2 and 10.
And the lawmaker who’ll spearhead that legislation is Cicilline, who introduced the comprehensive non-discrimination measure in the previous two Congresses with Sen. Jeff Merkley (D-Ore.). For the first time, Democrats will introduce the Equality Act while controlling at least one chamber of Congress, which presents an opportunity for a floor vote on the legislation.
Cicilline said the timing for introduction for the Equality Act in the 116th Congress is yet to be determined, although it’ll definitely coincide with Merkley’s introduction of the legislation in the Senate. The Rhode Island Democrat said conversations with Democratic leadership on the timing for the legislation haven’t yet taken place “other than knowing we’re moving forward on it.”
“I know that the incoming speaker had made public statements about our intention to make the Equality Act a priority, which I’m delighted to hear,” Cicilline said.
Cicilline said he expects committees with jurisdiction over the Equality Act — such as the Judiciary Committee and the Education & the Workforce Committee — to hold hearings on the legislation before moving forward in accordance with regular order before the floor vote.
The next iteration of the Equality Act will have “pretty much” the same language as its previous iterations, Cicilline said. He added every time he reintroduces a piece of legislation “it’s another occasion to kind of look at the bill and see if there’s anything to change.”
“So we’ll go through that process, but it’ll be essentially the same bill,” Cicilline added.
Asked whether he had anything in mind that would make the Equality Act not the same in the 116th Congress, Cicilline replied, “No.”
In the previous Congress, all members of the Democratic caucus were co-sponsors of the legislation, except for two lawmakers: Rep. Dan Lipinski (D-Ill.), whom LGBT groups sought (unsuccessfully) to oust during the Democratic primary last year for not backing LGBT rights, and Rep. Marcia Fudge (D-Ohio).
Cicilline said he expects the same level of support in the Democratic caucus as it takes the majority in the 116th Congress.
“I’ve talked to a number of my new colleagues about the Equality Act, a number of them have already contacted me about wanting to be co-sponsor, so I expect will have the same kind of overwhelming Democratic support,” Cicilline said. “Hopefully, every Democrat will be a co-sponsor.”
Republicans however, are a different story. Only two Republicans co-sponsored the Equality Act in the last Congress. One of them is Rep. Ileana Ros-Lehtinen (R-Fla.), known for being the most pro-LGBT House Republican, who retired after 24 years in Congress. The other Republican co-sponsor, Rep. Scott Taylor (R-Va.), was voted out of office in the Democratic “blue” wave.
Cicilline said he’s had conversations on the Republican side of the aisle about the Equality Act and is “going to continue those because I want to do everything I had to make it bipartisan.
“I think it’ll be really important to have some of our Republican colleagues, but I don’t have any yet that are committed to it,” Cicilline added.
Asked whether there were any Republican possibilities he could name, Cicilline demurred.
“If I name them, they become less possible,” Cicilline said. “I’m going to explore with as many Republican colleagues as I can and get them on board.”
But the Equality Act also faces concerns among civil rights supporters. Many civil rights groups, including the Leadership Council on Civil & Human Rights, have said they support the goals of the Equality Act, but have stopped short of a full endorsement of the bill.
Fudge, who was considering a leadership challenge to Pelosi after Democrats won their majority, has expressed concerns about opening the Civil Rights Act to amendments on the House floor, where the landmark legislation could be watered down.
“What I opposed was including the Equality Act in the current Civil Rights Act,” Fudge said in a statement. “The Civil Rights Act is over 50 years old and isn’t even adequate to protect the people currently in it. I want us to do a new and modern civil rights bill that protects the LGBTQ community and updates protections for this era. I do not believe it is appropriate to open and relitigate the current Civil Rights Act.”
Cicilline said the Leadership Council on Civil & Human Rights made “a very strong statement of support of equality for our community” in regards to the Equality Act. As for Fudge’s concerns, Cicilline said he understands them, but doesn’t share them.
“I understand the argument advanced by Congresswoman Fudge,” Cicilline said. “I disagree with it. I think that we can’t have full equality by having a separate but equal civil rights bill.”
Cicilline said barring discrimination against LGBT people by amending the Civil Rights Act of 1964 has significant benefits that a different bill couldn’t accomplish. Among these benefits is applying more than 50 years of jurisprudence of the landmark law to anti-LGBT discrimination.
“Really the only way to do it is to include it in the existing civil rights architecture, so you have the benefit of all that jurisprudence whenever exemptions exist, whenever other kinds of tests need to be applied,” Cicilline said. “There’s significant jurisprudence on it, and so it saves kind of litigating all these things again. So, I think there’s real value legally and real value in terms of making a strong statement that we need for equality.”
Cicilline pointed out that every other member of the Congressional Black Caucus was a co-sponsor of the Equality Act, including civil rights icon Rep. John Lewis (D-Ga.), whom Cicilline said was “one of the early champions of the bill, and he’s a respected leader in that community.”
After the Equality Act passes the House, the game changes. Instead of a new Democratic majority, the U.S. Senate under Senate Majority Leader Mitch McConnell (R-Ky.) has an expanded Republican majority. Moreover, President Trump would need to sign any legislation for it to become law.
But Cicilline denied passage of the Equality Act in the House is the end of the story. In fact, he called it the “beginning of the story” because the campaign to pressure Republicans to support LGBT rights will begin.
“We will work hard to get it passed in the Senate,” Cicilline said. “I think this is one where it’s very critical for outside groups to play a role in identifying who are the key senators who are at least willing to consider supporting the Equality Act and that they hear from constituents in their districts from the LGBT community and allies about the importance of this, and we begin a real campaign to persuade them to do it.”
Referencing polls showing the American public opposes discrimination against LGBT people, Cicilline said the issue “is one where the American people are way ahead of us overwhelmingly.”
“I think part of our challenge is to catch up to where the American people are,” Cicilline said. “They understand fundamentally that discrimination is wrong. It’s antithetical to the fabric that is this country. And when you give them the examples of the kind of discrimination we’re talking about they’re opposed to it. So I think this is about kind of Congress basically catching up to where the rest of the country is and making certain that qualified people cannot be fired from their jobs, cannot be kicked out of housing.”
Cicilline also wouldn’t rule out Trump supporting the Equality Act, recalling an interview Trump gave in 2000 to The Advocate in which he said he likes the idea of adding sexual orientation to the Civil Rights Act of 1964. Trump hasn’t said whether he still holds that position.
“It’s hard to know that he’ll continue to maintain that position, especially when you think of the ways the administration has behaved, but if we bill pass the bill soon, that’s our next effort,” Cicilline said.
The third branch of the U.S. government may also have a chance to weigh in on anti-LGBT discrimination. Two petitions are pending before the Supreme Court calling on justices to affirm anti-gay discrimination amounts to sex discrimination under current law, and another petition seeks clarification on whether anti-trans discrimination is sex discrimination.
For decades, courts have more or less consistently found anti-trans discrimination is sex discrimination. Court rulings finding anti-gay discrimination is sex discrimination are a relatively new development, but a growing number of them are reaching that conclusion.
In the event the Supreme Court decides to take up these cases, Cicilline said either way justices would come down, it wouldn’t change the need for the Equality Act.
“It’s one tiny piece of this bill,” Cicilline said. “So it would answer that question, but if it was answered and said it is covered that would be great because we have some partial coverage, partial protection against discrimination for one part of the community but it doesn’t solve the problem and it would still, I think, wouldn’t in any way undermine the necessity of passing and enacting the Equality Act. If they rule against it, then it just affirms the emergency of passing the Equality Act. So, I don’t know that it has a big impact.”
The Equality Act isn’t the only LGBT issue Cicilline has spearheaded. Last year, when the nation was horrified over the Trump administration’s “zero tolerance” immigration policy that separated asylum-seekers from their children, Cicilline pointed out the LGBTQ youth in immigration detention facilities have no legal protections.
Cicilline said “there may, in fact, be some implications of the Equality Act” in the context of immigration detention in terms of if there were educational facilities or it was considered a public accommodation.
“They did not have in place any protocols or systems,” Cicilline said. “They acknowledged that when issues arise related to the sexual orientation or gender identity of youth they deal with it on a case-by-case basis, whatever that means. But it was clear there aren’t established protocols that protect this vulnerable population. This is one of many, many shortcoming in the current immigration detention proceedings.”
The treatment of LGBT youth in immigration detention facilities, Cicilline said, will be the subject of congressional oversight with the House under Democratic control.
“I think you’ll see a lot of oversight hearings on this when we take the majority in January,” Cicilline said.
That isn’t the only LGBT issue facing expected congressional oversight for Cicilline, who identified other areas he predicts will come under scrutiny.
“The same things that exist in the immigration system context exist in the criminal justice system, so protections are in place for the people in our community who are incarcerated,” Cicilline said. “There’s lots of work that needs to be done in terms of protecting students, particularly with Betsy DeVos’ rollback of some key protections.”
One LGBT issue that has reemerged is reports of anti-gay human rights abuses, including the extrajudicial killing of gay people in concentration camps, in the Russian semi-autonomous Republic of Chechnya. Last month, the State Department promoted a report from the Organization for Security for Cooperation in Europe corroborating those reports and finding Russia “appears to support the perpetrators rather than the victims.”
Cicilline said the report “confirmed what we suspected from the beginning” and found an earlier Russian investigation that found no abuse “was not legitimate.”
“We have attempted in a variety of different ways to raise that issue both by introducing and passing a resolution in Congress condemning that action as well as leading a letter to the president and secretary of state urging him to raise this issue with — abuse of LGBT people in Chechnya — with the Russian officials,” Cicilline said. “So this confirms what we have attempted to do and sadly is just another example of people from our community suffering violence and discrimination and brutality and really unforgiveable circumstances.”
The Trump administration has sanctioned Chechen leader Ramzan Kadyrov under the Magnitsky Act and supported the OSCE report, but Trump himself has said nothing about the abuses, unlike other world leaders such as Justin Trudeau, Theresa May, Emmanuel Macron and Angela Merkel.
Asked what the Trump administration or new House majority should do, Cicilline said “we just have to continue to press for human rights,” raising the possibility of legislation and sanctions.
“I think there’s some legislative stuff we can do,” Cicilline said. “I think we should continue to bring attention to these issues, continue to express condemnation when appropriate with sanctions, etc. So I think there’s a whole range of options available to us, but raising our voices and making sure that America continues to be a country that speaks out against violence against the LGBT community is really important.”
Asked what would need to happen to trigger sanctions, Cicilline said “we have current mechanisms,” but other proposals are in the works through the legislative process.
With a Democratic majority taking control of the House, Cicilline said the distinction between Democrats and Republicans on LGBT rights will exemplify the new tone in Washington.
“I think the contrast is really stark and, I think people have a right to expect that the Democrats who take the House back that LGBT equality and protecting the LGBT community from discrimination will be an important priority for us and, I think, the community should be excited about having at least one chamber that fundamentally respects who we are and is committed to fighting for our equality,” Cicilline said.
Although the House is just one chamber of Congress and Trump still occupies the White House, Cicilline said the distinction between Democrats and Republicans on LGBT rights will shine a light for the American public in time for the 2020 election.
“So this is a big change and we’re either going to get the Equality Act passed in the Senate after it passes the House and have equality, or we’re not,” Cicilline said. “And we’re going to be able to demonstrate who stopped our fight for equality, and those people will be on the ballot in two years.”
Cicilline added, “Our community will work to elect people who do support equality, so this is an important one, but the work isn’t done, so we got a lot of work ahead of us. Fights for equality are never easy, even though they seem obvious to us.”
Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead
No political willpower to force vote or reach a compromise
Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.
Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.
In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.
If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.
“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”
The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.
Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”
“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process. We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”
Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.
“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”
A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.
Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”
Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.
The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.
Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.
“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”
Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.
For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.
Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”
“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”
But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.
No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.
Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.
“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”
Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.
Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.
Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.
To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.
A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.
“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”
But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.
D.C. bill to ban LGBTQ panic defense delayed by Capitol security
Delivery of bill to Congress was held up due to protocols related to Jan. 6 riots
A bill approved unanimously last December by the D.C. Council to ban the so-called LGBTQ panic defense has been delayed from taking effect as a city law because the fence installed around the U.S. Capitol following the Jan. 6 insurrection prevented the law from being delivered to Congress.
According to Eric Salmi, communications director for D.C. Council member Charles Allen (D-Ward 6), who guided the bill through the Council’s legislative process, all bills approved by the Council and signed by the D.C. mayor must be hand-delivered to Congress for a required congressional review.
“What happened was when the Capitol fence went up after the January insurrection, it created an issue where we physically could not deliver laws to Congress per the congressional review period,” Salmi told the Washington Blade.
Among the bills that could not immediately be delivered to Congress was the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, which was approved by the Council on a second and final vote on Dec. 15.
Between the time the bill was signed by Mayor Muriel Bowser and published in the D.C. Register under procedural requirements for all bills, it was not ready to be transmitted to Congress until Feb. 16, the Council’s legislative record for the bill shows.
Salmi said the impasse in delivering the bill to Congress due to the security fence prevented the bill from reaching Congress on that date and prevented the mandatory 60-day congressional review period for this bill from beginning at that time. He noted that most bills require a 30 legislative day review by Congress.
But the Evangelista-Hunter bill, named after a transgender woman and a gay man who died in violent attacks by perpetrators who attempted to use the trans and gay panic defense, includes a law enforcement related provision that under the city’s Home Rule Charter passed by Congress in the early 1970s requires a 60-day congressional review.
“There is a chance it goes into effect any day now, just given the timeline is close to being up,” Salmi said on Tuesday. “I don’t know the exact date it was delivered, but I do know the countdown is on,” said Salmi, who added, “I would expect any day now it should go into effect and there’s nothing stopping it other than an insurrection in January.”
If the delivery to Congress had not been delayed, the D.C. Council’s legislative office estimated the congressional review would have been completed by May 12.
A congressional source who spoke on condition of being identified only as a senior Democratic aide, said the holdup of D.C. bills because of the Capitol fence has been corrected.
“The House found an immediate workaround, when this issue first arose after the Jan. 6 insurrection,” the aide said.
“This is yet another reason why D.C. Council bills should not be subject to a congressional review period and why we need to grant D.C. statehood,” the aide said.
The aide added that while no disapproval resolution had been introduced in Congress to overturn the D.C. Evangelista-Hunter bill, House Democrats would have defeated such a resolution.
“House Democrats support D.C. home rule, statehood, and LGBTQ rights,” said the aide.
LGBTQ rights advocates have argued that a ban on using a gay or transgender panic defense in criminal trials is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or expression is to blame for a defendant’s criminal act, including murder.
Some attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.
In addition to its provision banning the LGBTQ panic defense, the Evangelista-Hunter bill includes a separate provision that strengthens the city’s existing hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats to be prosecuted as a hate crime.
LGBTQ supportive prosecutors have said the clarification was needed because it is often difficult to prove to a jury that hatred is the only motive behind a violent crime. The prosecutors noted that juries have found defendants not guilty of committing a hate crime on grounds that they believed other motives were involved in a particular crime after defense lawyers argued that the law required “hate” to be the only motive in order to find someone guilty of a hate crime.
Salmi noted that while the hate crime clarification and panic defense prohibition provisions of the Evangelista-Hunter bill will become law as soon as the congressional review is completed, yet another provision in the bill will not become law after the congressional review because there are insufficient funds in the D.C. budget to cover the costs of implementing the provision.
The provision gives the D.C. Office of Human Rights and the Office of the D.C. Attorney General authority to investigate hate related discrimination at places of public accommodation. Salmi said the provision expands protections against discrimination to include web-based retailers or online delivery services that are not physically located in D.C.
“That is subject to appropriations,” Salmi said. “And until it is funded in the upcoming budget it cannot be legally enforced.”
He said that at Council member Allen’s request, the Council added language to the bill that ensures that all other provisions of the legislation that do not require additional funding – including the ban on use of the LGBTQ panic defense and the provision clarifying that hatred doesn’t have to be the sole motive for a hate crime – will take effect as soon as the congressional approval process is completed.
D.C. man charged with 2020 anti-gay death threat rearrested
Defendant implicated in three anti-LGBTQ incidents since 2011
A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.
D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.
Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.
According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.
Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.
An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.
“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”
The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”
Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.
Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.
In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.
“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.
Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.
The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.
In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”
At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.
The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.
The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.
In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.
The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.
It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.
Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.
The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.
The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.
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