President Trump acknowledged Pride month via Twitter last week, but his well wishes for the LGBT community fell on skeptical ears following the extensive anti-LGBT actions of his administration.
In just the year since last Pride, the tally of anti-LGBT actions from the Trump administration dwarf the number of good things that have come from his presidency for the LGBT community.
With Pride celebrations underway, the Blade presents a list in no particular order of Trump’s positive and negative actions with direct impact on the LGBT community since 2018’s Pride celebration.
(-) 1. Embracing the Masterpiece Cakeshop decision
When the U.S. Supreme Court issued a narrow ruling last year in favor of Colorado baker Jack Phillips, many observers saw the decision as limited. After all, justices declined to find the First Amendment right Phillips asserted to refuse to make custom-made wedding cakes for same-sex couples.
But the Trump administration fully embraced the decision as a win for “religious freedom.” White House Press Secretary Sarah Huckabee Sanders said the court “rightly concluded” the Colorado Civil Rights Commission “failed to show tolerance and respect” for Phillips’ religious beliefs.
Soon after, the Labor Department issued guidance to ensure enforcement of LGBT non-discrimination rules complied with the ruling’s deference to religious freedom, even though the Trump administration wasn’t required to take that action.
(-) 2. White House meeting with Ginni Thomas
President Trump continues to meet with anti-LGBT activists in the White House, including a recent high-profile discussion with Ginni Thomas, the wife of conservative U.S. Associate Justice Clarence Thomas.
The New York Times reported Trump met in January with anti-LGBT activists led by Thomas in the Roosevelt Room of the White House. As Trump was reportedly “listening quietly,” members of the group denounced transgender people serving in the U.S. military.
In addition to decrying transgender military service, the anti-LGBT activists said women shouldn’t serve in the military “because they had less muscle mass and lung capacity than men.” They also said the Supreme Court ruling for marriage equality is “harming the fabric of the United States” and sexual assault isn’t pervasive in the military, according to the New York Times.
(-) 3. Coming out against the Equality Act
In the same week the U.S. House voted to approve the Equality Act, legislation that would amend the Civil Rights Act of 1964 to ban anti-LGBT discrimination, Trump came out against the bill.
In an exclusive statement to the Blade, a senior administration official said Trump opposes the Equality Act based on unspecified “poison pill” amendments to the legislation.
“The Trump administration absolutely opposes discrimination of any kind and supports the equal treatment of all; however, this bill in its current form is filled with poison pills that threaten to undermine parental and conscience rights,” the official said via email.
(+) 4. AIDS advisory council restaffed
One year after firing all members of the Presidential Advisory Council on HIV/AIDS without explanation as first reported by the Blade, Trump restaffed the advisory body with 11 new appointees.
Carl Schmid, deputy director of the AIDS Institute, and John Wiesman, secretary of health in Washington State, were named as co-chairs for the advisory council. Months later, the Department of Health & Human Services named nine additional members to PACHA from a variety of professions, including the pharmaceutical industry, activism and academia.
(-) 5. Trans military ban implemented
After the U.S. Supreme Court essentially green lighted Trump’s ban on transgender people in the military, the Defense Department implemented the policy in April.
Denying the transgender ban is, in fact, a ban, the policy prohibits anyone who has undergone gender reassignment surgery from enlisting in the military and requires anyone who identifies as transgender to serve in their biological sex (which would be a small number of transgender people.) Although transgender people who were already serving openly won an exemption, individuals who are diagnosed in the future with gender dysphoria or obtain transition-related care would be discharged.
(-) 6. Brief against trans protections under Title VII
In a brief urging the U.S. Supreme Court not to take up a case seeking clarification on whether anti-trans discrimination is a form of sex discrimination under federal law, the Trump administration asserted the U.S. Sixth Circuit Court of Appeals wrongly decided transgender people have protections under Title VII of the Civil Rights Act.
“The court of appeals’ conclusion that gender-identity discrimination categorically constitutes sex discrimination under Title VII is incorrect,” the filing says. “As discussed above, the ordinary meaning of ‘sex’ does not refer to gender identity…The court’s position effectively broadens the scope of that term beyond its ordinary meaning. Its conclusion should be rejected for that reason alone.”
(-) 7. List of anti-LGBT appointments grows
The U.S. Senate continues to confirm Trump’s appointments, many of whom have long anti-LGBT records. The latest will reportedly be former Virginia Attorney General Ken Cuccinelli, who once said homosexual acts are “against nature and are harmful to society,” for a position at the Department of Homeland Security
Other confirmations include U.S. District Judge Howard Nielson of Utah, who as an attorney argued a gay judge shouldn’t be able to decide the case against California’s Proposition 8, and U.S. District Judge Chad Readler of Ohio, who as acting assistant U.S. attorney general penned his name to briefs in favor of the transgender military ban and against LGBT protections under Title VII.
(+) 8. But a few are from the LGBT community
A handful of Trump’s appointments are from the LGBT community. Among them is former Log Cabin Republicans executive director R. Clarke Cooper, whom Trump appointed to a senior position at the State Department for political-military affairs. The Senate confirmed Cooper in April.
Other new LGBT appointments are Mary Rowland, a lesbian with ties to the LGBT group Lambda Legal whom Trump named to a federal judgeship in Illinois; and Patrick Bumatay, a gay federal prosecutor whom Trump named for a seat on the U.S. District Court for the Southern District of California. Both nominations are pending before the Senate.
(-) 9. Draconian anti-trans memo leaked
An explosive report in the New York Times last year exposed a planned memo within the Department of Health & Human Services that would effectively erase transgender people from federal law, igniting a massive outcry among transgender rights supporters.
The proposal reportedly asserts Title IX of the Education Amendments of 1972, which bars sex discrimination in schools, doesn’t apply to transgender people and calls for government agencies to adopt an explicit and uniform definition of sex “on a biological basis that is clear, grounded in science, objective and administrable.” A dispute about one’s sex, the New York Times reported, would have to be clarified using genetic testing.
(-) 10. Anti-trans ‘conscience rule’ is final
The memo as described by the Times never came to light, but months later HHS did implement an anti-trans “conscience rule” allowing health care providers to opt out of procedures over which they have religious objections, including abortions or gender reassignment surgery.
Trump announced the rule was final during a speech in the White House Rose Garden on the National Day of Prayer.
(-) 11. HHS seeks to undo trans health rule
HHS wasn’t done. Weeks after the conscience rule was final, the department announced a proposed rule seeking to undo regulations in health care against anti-trans discrimination.
The Obama-era regulations asserted Section 1557 of the Affordable Care Act, which bars sex discrimination in health care, also covers discrimination on the basis of gender identity. Under the Trump rule, HHS would disavow those protections. (The Obama-era rule was already enjoined by a federal judge.)
(-) 12. Ending visas for unmarried partners of diplomats
The State Department last year cancelled visas for the unmarried same-sex partners of diplomats to the United States.
By canceling these visas for these partners, the State Department forced these partners to either marry or get out, which complicated matters if these diplomats are from countries where same-sex marriage isn’t legal. At the time of the decision, only 25 countries recognized same-sex marriage.
(-) 13. Proposal to gut trans protections at homeless shelters
Despite assurances from Secretary of Housing & Urban Development Ben Carson LGBT non-discrimination rules for federally funded housing would remain in place, HUD has proposed a rule that would gut transgender protections at homeless shelters.
The HUD proposal would allow homeless shelters with sex-segregated facilities — such as bathrooms or shared sleeping quarters — to establish policy consistent with state and local laws in which operators consider a range of factors when determining where to place individuals looking to stay, including “religious beliefs.”
(+) 14. Trump announces HIV plan in State of the Union
Trump in his State of the Union address announced an initiative to end the HIV epidemic by 2030, asserting “remarkable progress in the fight against HIV and AIDS” in recent years.
“Scientific breakthroughs have brought a once-distant dream within reach,” Trump said. “My budget will ask Democrats and Republicans to make the needed commitment to eliminate the HIV epidemic in the United States within 10 years. We have made incredible strides. Incredible. Together, we will defeat AIDS in America and beyond.”
The plan seeks to reduce new HIV diagnoses by 75 percent within five years, and by 90 percent within 10 years. Efforts will focus on 48 counties, D.C., and San Juan, Puerto Rico and seven states where the epidemic is mostly in rural areas.
(+) 15. And the budget follows through with that request
Trump’s budget request for fiscal year 2020 made good on his pledge in the State of the Union address, seeking $300 million in new funds for domestic HIV programs.
The bulk of the $300 million figure is an additional $140 million requested for HIV prevention at the Centers for Disease Control & Prevention, which is a 19 percent increase in its overall budget from fiscal year 2019. The rest is $70 million for the Ryan White Health Care Program, $50 million for PrEP services at HRSA centers and $25 million to screen for HIV and treat Hepatitis C.
(-) 16. But NIH and global AIDS programs slashed
But the same budget sought to slash funds for the National Institutes for Health, which conducts HIV research, and global AIDS programs like PEPFAR. Moreover, the plan sought to make Medicaid a block-grant program, even though 40 percent of people with HIV rely on it. Congress ended up rejecting the cuts, fully funding NIH and global AIDS programs.
(-) 17. Giving Pete Buttigieg nickname of ‘Alfred E. Neuman’
Consistent with his track record of giving his political opponents nicknames, Trump gave an unflattering moniker to Pete Buttigieg, the gay presidential candidate with growing support in the Democratic primary.
Trump dubbed him “Alfred E. Neuman,” the Mad Magazine character famous for the phrase, “What Me Worry?” In a dog whistle that perhaps gay people could hear, Trump said, “Alfred E. Neuman cannot become president of the United States.”
(+) 18. Recognizing global initiative to end anti-gay laws
In his tweet recognizing June as Pride Month, Trump also acknowledged his global initiative to decriminalize homosexuality. Currently, same-sex relations are illegal in 71 countries.
The project is spearheaded by U.S. Ambassador to Germany Richard Grenell, the highest-ranking openly gay person in the Trump administration.
Previously, Trump seemed unaware of the project. Asked about it by reporters, Trump said, “I don’t know which report you’re talking about. We have many reports.”
(-) 19. No State Dept. recognition of Pride Month, IDAHO
In contrast to Trump, the State Department in 2019 issued no statement recognizing Pride Month, nor weeks before did it recognize the International Day Against Homophobia & Transphobia.
In 2018, Secretary of State Mike Pompeo issued statements recognizing Pride Month and IDAHO. Coming off a confirmation process in which he was criticized as homophobic, Pompeo said “too many governments continue to arrest and abuse their citizens simply for being lesbian, gay, bisexual, transgender or intersex.”
(-) 20. Refusing to recognize birthright of child to gay couple
Consistent with the policy of cracking down on immigration, the Trump administration refused to recognize the birthright citizenship of the son of U.S.-citizen Andrew Dvash-Banks and his Israeli husband Elad Dvash-Banks.
The couple had two twin boys conceived via a surrogate mother in Canada. The State Department, however, required a DNA test to prove the children were related to the couple to provide them U.S. passports. One child, Aiden, was deemed a citizen because he’s the biological son of Andrew, but the other, Ethan, wasn’t because he’s the biological son of Elad.
(-) 21. And appealed a court ruling for the couple
When the couple sued the Trump administration, a court sided with the couple in granting birthright citizenship to Ethan.
However, the State Department refused to accept the decision and appealed the ruling to the U.S. Ninth Circuit Court of Appeals, where the case remains pending. A mediation document reveals the State Department insists on its policy of “a biological relationship between a U.S. citizen parent and a child born outside the United States” to grant citizenship.
(-) 22. LGBT protections watered-down in USMCA
An initial version of the USMCA trade agreement with Canada and Mexico contained at the behest of Canadian Prime Minister Justin Trudeau language a call for countries to adopt policies “against sex-based discrimination, including on the basis of sexual orientation and gender identity.”
But Trudeau publicly buckled when asked about his commitment. After additional negotiations with the Trump administration, a footnote was added to USMCA stating Title VII in the United States, which bars discrimination on the basis of sex in the workforce, was sufficient to meet the requirements of the deal.
(-) 23. DOJ’s ‘Religious Liberty Task Force’
Before he was sacked by Trump, former U.S. Attorney General Jeff Sessions held a summit at the Justice Department on religious freedom featuring Masterpiece Cakeshop’s Jack Phillips and Catholic leaders.
At the summit, Sessions established the Religious Liberty Task Force. The goal of the task force was to ensure his memo on “religious freedom” — widely seen as guidance in support of anti-LGBT discrimination — was being implemented throughout the federal government.
(+) 24. Hailing PrEP deal with Truvada as ‘great news’
The Department of Health & Human Services reached a deal with Gilead to make PrEP available for generic production one year earlier and to secure a donation of the medication for up to 200,000 individuals each year for up to 11 years.
Trump took to Twitter to hail the agreement: “Great news today: My administration just secured a historic donation of HIV prevention drugs from Gilead to help expand access to PrEP for the uninsured and those at risk. Will help us achieve our goal of ending the HIV epidemic in America!”
(-) 25. Deleting trans employee guidance on OPM website
In a little-noticed development over the holidays, guidance on the Office of Personnel Management’s website for federal workers who are transgender was deleted without explanation.
The Obama-era guidance spelled out the definition of terms for transgender identities and expectations for respecting transgender workers. The guidance ensured transgender people could dress according to their gender identity, be addressed by their preferred gender pronouns and use restrooms and locker rooms consistent with their gender identity.
(+) 26. U.S. joins OSCE in calling for Chechnya investigation
Under the Trump administration, the United States joined 15 allied countries at the U.S. Organization for Security & Cooperation in Europe in the creation of a probe to investigate alleged anti-gay human rights abuses in Chechnya.
The report concluded, as the United States and human rights organizations long believed, Chechen government officials engaged in human rights violations, including “harassment and persecution, arbitrary or unlawful arrests or detentions, torture, enforced disappearances and extrajudicial executions.” Victims were LGBT people, human rights defenders, journalists and members of civil society.
(-) 27. But U.S. didn’t sign U.N. statement against atrocities
Months later, the United States was nowhere to be found on a United Nations statement signed by more than 30 countries calling for a thorough investigation of the Chechnya atrocities. The State Department said the United States didn’t sign because it withdrew from the U.N. Human Rights Council “and no longer participates in its sessions.”
(-) 28. State Department proposes ‘natural law’ commission
LGBT rights supporters are viewing with skepticism a State Department proposal to create a “natural law” commission, which is set to “provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.”
The term “natural law” has been used to express condemnation of LGBT identities in religious discourse.
(-) 29. Eliminating LGBT youth data question in foster care
The Trump administration has proposed eliminating requirements for case workers to ask LGBT youth in foster care about their sexual orientation of youth for data collection purposes.
Although the Department of Health & Human Services concluded it was “intrusive and worrisome,” LGBT rights advocates say the questions are necessary to ascertain disparities facing LGBT youth in the foster care and adoption systems.
(-) 30. Trump stands with anti-LGBT adoption agencies
In a speech at the National Prayer Breakfast, Trump expressed solidarity with religious-affiliated adoption agencies, who are bristling over LGBT non-discrimination requirements to obtain federal funding.
“My administration is working to ensure that faith-based adoption agencies are able to help vulnerable children find their forever families while following their deeply held beliefs,” Trump said.
(-) 31. And defends Karen Pence teaching at anti-LGBT school
In the same speech, Trump also defended second lady Karen Pence for her decision to teach art at a Christian school in Virginia, which has a policy against employing LGBT teachers or admitting LGBT students.
“She just went back to teaching art classes at a Christian school,” Trump said, “Terrific woman.”
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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