Nine years ago, gay Army veteran Rob Smith chained himself to the White House fence, protesting “Don’t Ask, Don’t Tell.”
But last week, Smith stood before hundreds of MAGA hat-wearing Donald Trump supporters in D.C. and lamented more young people weren’t joining the conservative movement. In a speech to the Turning Point USA summit, he hammered the need to re-elect President Trump.
“I don’t like the fact that I lost all my gay friends in New York City when I came out as a conservative,” Smith told the Washington Blade. “I don’t like the fact that I lost the rest of my gay friends when I came out as a Trump supporter. I don’t like it. It doesn’t make me feel good, you know, but I can’t tell these kids not to stand up for what they believe and not practice what I preach.”
Smith isn’t alone. In Trump’s America, he’s among the emerging gay voices in the world of conservative political commentary, whether it be Twitter, YouTube or podcasts.
Want to read the latest from these gay political commentators? Open up the conservative Washington Examiner. Among the columnists is Eddie Scarry, a gay protege of conservative media queen Ann Coulter, and Brad Polumbo, a Zillenial writer who boasts a 4.0 GPA from the University of Massachusetts, Amherst where he joined Young Americans for Liberty.
Smith didn’t shy away from his sexual orientation on stage at the summit, where he said he was gay during his speech and referenced his husband. For the attendees, many of whom wore MAGA hats and frat attire consisting of a sport coat, khakis and top-siders, it didn’t seem to matter.
When Smith was on stage, they lined up to ask questions about being a youth in the conservative movement. Topics included Big Tech’s alleged censorship of conservatives on social media, teacher hostility to conservative viewpoints and whether it’s possible to be in a relationship with someone who has opposing political views. After Smith was done, attendees continued to mob him to snap group selfies and offer words of support and solidarity.
Speaking with the Washington Blade at the summit after his remarks, Smith said his sexual orientation at conservative events has “never really been a thing.”
Any concerns, Smith said, are generally quickly resolved because he says people in the conservative movement “are unafraid to offend you by asking questions.”
“So sometimes I do get questions,” Smith said. “They’re like, ‘I’m a conservative Christian, but I support you as a gay person, but my beliefs are differently, how do I reconcile those two things?’ And then I would just say, ‘You really lead from love, you lead from the fact that we all have the same fundamental values, like we’re all here for the same reason, we just have a different sexual orientation, different skin colors, different religions, different whatever.’”
Of course, the conservative movement isn’t exactly known for accepting LGBT people. In fact, conservative forces have long opposed LGBT equality — whether it be marriage, assurances of non-discrimination in employment or military service — let alone offered LGBT voices a platform to speak.
The welcoming attitude, Smith said, is a direct consequence of social media, which he said has enabled gay people with conservative viewpoints to become more vocal and visible. And yet, Smith also said he sees a “societal change,” which constitutes a more accepting attitude from Millennials and Gen-Z conservatives toward gay people than older conservatives.
“We ascribe so many things to like, the government needs to change all of this stuff, and this needs to happen,” Smith said. “Change does not start from the top down, it starts from the bottom up.”
Another gay conservative commentator is Guy Benson of Fox News Radio, where he works as a contributor and hosts a daily radio show/podcast. Neither Trump nor Democrats escape the barbs of his commentary, which, Benson told the Blade, demonstrates he’s “not a MAGA-hat wearing Trump supporter by any stretch of the imagination.”
Speaking with the Blade at the Turning Point USA conference after his speech, Benson said there’s a new environment in the conservative movement for gay people.
“I think that it’s a changing society, and I think I recognize that younger conservatives, in particular, have very different views on some of these than older generations,” Benson said.
Benson pointed to data from the Pew Research Center that found growth over time among Republicans who support same-sex marriage. (There has been growth, but still a minority of conservatives support gay nuptials. In 2019, 44 percent of Republicans said they support same-sex marriage compared to 23 percent in 2001.)
“So, there has been a sea change,” Benson said. “And I think there’s a recognition that politics is sort of an addition and multiplication game. It’s a coalitional game. And it’s more about ideas, or at least I hope it’s more about ideas than identity.”
Charlie Kirk, a 25-year-old rising star in the conservative movement and founder of Turning Point USA, said via email to the Blade gay people with conservative ideology are more than welcome in the movement.
“This generation of conservatives is marked by increasingly diverse and charismatic voices like Guy and Rob, who love their country and value timeless conservative ideas like small government, freedom of speech and individual responsibility,” Kirk said. “We celebrate patriots like these regardless of whether they’re gay or straight, black or white, male or female, rich or poor, tall or short. We’re so grateful for their leadership and for inspiring so many others in their own journeys in what has really become an all new conservative movement.”
It should be noted Turning Point USA faces accusations of racism, despite employing black conservatives like Smith and “Blexit” leader Candace Owens, in addition to objections to churning out an army of youth in support of Trump.
To be sure, large swaths of the conservative movement are still vocally opposed to LGBT rights and to promoting LGBT people to positions of visibility within the movement. Just last week, a failed U.S. Senate candidate in California announced a “Straight Pride” event to celebrate “whiteness” and “heterosexuality” as the Family Research Council President Tony Perkins hailed a new State Department commission widely seen as hostile to LGBT rights.
The path for the emergence of these gay conservatives takes different forms. Benson has long been a conservative, but came out as gay in 2015 on a Fox News during an interview with Megyn Kelly. Smith went in the opposite direction, starting as an openly gay progressive who voted for Bernie Sanders in the 2016 Democratic primary, then becoming a conservative, then becoming a Trump supporter.
But Smith’s voice as a gay conservative is especially unique because years ago he was not just a progressive, but an activist with the now defunct LGBT grassroots group GetEQUAL opposing “Don’t Ask, Don’t Tell.”
These days, Smith doesn’t talk much publicly about when not even the Democratic Party was supportive enough of LGBT rights to pass muster for him. On that cold November day in 2010, he was arrested protesting outside the White House where President Barack Obama was in charge.
Giving voice to the “Don’t Ask, Don’t Tell” repeal effort as a gay Army veteran who served in Iraq and Kuwait, Smith was among 13 activists who in protest of the military’s gay ban chained themselves to the White House fence. For the act of civil disobedience, Smith and others were subsequently arrested.
Joining Smith at the time was former Lt. Dan Choi, who gained notoriety for being the first activist to chain himself to the White House fence in an effort to encourage then-President Obama to end the discharges under “Don’t Ask, Don’t Tell.” To Smith’s immediate left was Autumn Sandeen, a San Diego-based transgender activist and Navy veteran, to his immediate right was longtime gay military activist Michael Bedwell.
After Choi became the first activist to chain himself to the White House fence in 2010, Smith penned an op-ed for the Huffington Post saying more activism like Choi’s was needed.
“I think what we needed was to see something like this to light a fire under each and every one of us that cares as deeply as he does about ‘Don’t Ask, Don’t Tell’ repeal, and about full equality in general,” Smith wrote. “This movement needs him as much as it needs me, or Jarrod Chlapowski, or Lt. Col Victor Fehrenbach, or any of the other gay veterans who share our past of silent service knowing that it reflects the present of thousands of gay soldiers currently serving.”
Although times have changed, Smith said he looks back on his days as an LGBT rights activist with no regrets and said that work helped him reach where he is now.
“When I look back at that now, and when I look back at standing up for LGBT soldiers, and doing all the things that I did at the White House, I look back on it fondly,” Smith said. “And I’m proud of every single thing that I did. And when I look back on that all of that stuff really did inform the change to conservatism that I’ve had over their past few years.”
Smith said the experience of being with GetEQUAL helped him “see how organizations work,” which is why he’s “so critical of a lot of things that are going on in not just in the transgender ideology, [but] very critical about things that are going on in the LGBT movement in general.”
“There was a moment when ‘Don’t Ask, Don’t Tell’ repeal happened and marriage equality happened, there was this whole moment where people didn’t know where we were going to go, because fundamentally, the rights for the gays and lesbians have more or less been achieved,” Smith said. “And those were two really big things, right? And so I think that the embrace of a lot of the nuttiness that that’s going on in the name of the LGBT nowadays is motivated not by a genuine desire to help people, but by a desire to keep that sort of money train coming.”
As an example, Smith took particular issue with the Human Rights Campaign deciding to endorse Hillary Clinton in 2016 — even before the Democratic primary with Bernie Sanders had yet to conclude.
“That wasn’t about the people; it was about Chad Griffin,” Smith said. “That was about the people that were on the boards of these things, trying to put access to power. And what I hate the most, is that they use young LGBT people, and they’re using young LGBT people of color to push these leftist messages out, and they’ll put their faces all over the place, and they’ll send them out to interviews and all that stuff. And these people are still not represented on the boards, they’re still not represented in leadership positions.”
But at least one of his fellow activists from that time doesn’t see it that way, especially when policies like Trump’s transgender military ban are still on the books.
Robin McGehee, who served as co-chair of GetEQUAL and was another of the 13 activists arrested at the White House, criticized Smith for his political transformation from an LGBT activist into a Trump supporter.
“Although I deeply believe in the personal freedom of choosing your political positions and candidates, that does not mean I am not saddened by Smith’s desire to support a person and party that clearly discriminates, promotes classism, sexism, homo/transphobia and operates in a fashion that is demeaning to the liberty and justice for all that Rob helped protect and promote fighting as a solider for our country, on and off the battlefield,” McGehee said.
McGehee took particular issue with Smith supporting an administration that enacted a transgender military ban, which she said is “damaging to the same soldiers he took the fence with who defended his right to serve openly as a gay man.”
“His desire to support a president and an administration that would so clearly discriminate against transgender service members seems self-centered, but for that — disappointingly — he has picked the right candidate and party,” McGehee said.
In terms of rhetoric, there may well be a changing environment that has enabled gay conservatives to emerge under the Trump administration, which despite its anti-LGBT record has embraced some symbols of LGBT rights.
On one hand, Trump recognized Pride month in a Tweet and a global initiative to decriminalize homosexuality in the more than 70 countries where it remains illegal. Per White House counselor Kellyanne Conway, Trump was the first president to enter into the White House “approving of gay marriage.”
On the other hand, Trump has presided over anti-LGBT administration in terms of policy, mostly in terms of attacks on the transgender community. Among his administration’s initiatives are a transgender military ban and disavowing protections for transgender workers under federal Title VII of the Civil Rights Act of 1964. (But the Trump administration also has argued federal civil rights law doesn’t apply to gay people.)
As part of this schizophrenia, there’s a perception the Trump administration has approached gay people and transgender people differently, which is also reflected in the conservative movement. We may be living in a post-gay world, but we’re not living in a post-trans world.
Benson recognized an “addition and multiplication game” within the conservative movement to reach out to gay people, but said that isn’t the case with transgender people.
“That’s a trickier piece at the moment,” Benson said. “I think there’s a lot of people who don’t understand transgenderism. I think there’s a lot of people who are just wrapping their brains around same-sex marriage for the first time. And now, they feel like there’s this new frontier that is, you know, aggressive and challenging biological sex and all these sorts of things.”
Despite the inclusive approach of the LGBT movement, many gay conservatives themselves see a distinction between the fight for gay rights and transgender rights. Among them is Smith, who said he sees a distinction between the “L” and the “G” in the LGBT movement and the other letters.
“There’s so much confusion about all the other letters, because they are confused about who they are, what they want, what the goals are, what constitutes this, what constitutes that,” Smith said. “They’re confused. There are a lot of people that are literally making these things up as they go along. So they’re confused. They’re confusing each other. And they’re confusing everybody else.”
Smith said he faces constant accusations he’s transphobic, but denied that was the case and said instead he’s “shamelessly gender critical.”
“I’m shamelessly critical of some of the roads that transgender ideology is going down to when it comes to invasive medical intervention for kids and teenagers, when it comes to silencing the voices of women, of lesbians, silencing lesbian icons like Martina Navratilova,” Smith said, “Or silencing lesbians like Julia Beck, or silencing anybody who dares to stand up against what I like to call super-radical transgender ideology.”
It’s that kind of thought Smith said informs his opposition to the Equality Act, LGBT rights legislation that would enact long sought-after federal LGBT non-discrimination protections into law. (The White House has said Trump opposes the legislation based on unspecified “poison pill” amendments in the bill.)
Smith said he shares that view on the Equality Act because he wants to ensure women (“not people that identify as a woman or I feel like a woman today — like I think about the actual women”) have access to sex-segregated spaces, like restrooms and lesbian bars. (Transgender advocates would call the exclusion of transgender women from these spaces discrimination.)
“Now there is a form of legislation that I think conservatives and liberals and Democrats can probably come together on, that protects LGBT people and still keeps women with the rights that they have fought so hard for,” Smith said. “But you don’t, I’m not asking them to give up their rights, so that the LGBTQI or whatever can can get whatever rights that they want.”
On the Equality Act, Benson said he wasn’t familiar with the legislation, but said some kind of legislation “to add some just very basic protections that exists for other groups should exist for LGBT people as well.”
At the same time, Benson also said a religious exemption within such legislation would be “very important.”
“I think that we should be able to coexist in a way that people are protected and not discriminated against because of who they are, and then people aren’t trampled on, if they are religious dissenters,” Benson said. “I know that that’s a tricky needle to thread, but that’s one of my goals is fostering the type of culture and the type of country where we can exist side by side.”
If gays and lesbians have largely escaped the wrath of Trump’s rhetoric, other minority groups, such as immigrants and Muslims, aren’t so lucky.
Most recently, that has become evident with Trump’s tweet telling four Democratic congresswomen — who are also people of color — to “go back” to their home countries. At a subsequent rally, Trump supporters chanted “send her back” in reference to one of the four, Rep. Ilhan Omar (D-Minn.), who’s a Somalian immigrant, but a U.S. citizen. As backlash ensued, Trump disavowed the chant the next day.
(Over the weekend, Trump rekindled this racist rhetoric when he criticized Rep. Elijah Cummings (D-Md.), asserting his congressional district in West Baltimore “is a disgusting, rat and rodent infested mess.” When civil rights leader Al Sharpton came to Cummings’ defense, Trump subsequently tweeted Sharpton “hates whites & cops.”)
Smith, however, said those comments “didn’t offend me” because people speaking freely is what the conservative movement is about.
“I feel empowered as a conservative because I don’t have to like run around being offended by every little thing,” Smith said. “I don’t get empowerment by being offended. I don’t get empowerment by being a victim.”
Smith sought to redirect the indignation, pointing out Rep. Rashida Tlaib (D-Mich.), another one of the four congresswomen Trump told to “go home” appeared on stage with Omar Suleiman, a Muslim leader who has expressed views being gay is contrary to his religion.
“Who’s going to call Rashida Tlaib out for sharing the stage with a homophobic imam at a CARE fundraiser?” Smith said. “And this homophobic imam, Omar Suleiman, said that homosexuality is a disease that needs to be cured and compared it to bestiality and incest, right? So, we can’t wait to waive the smelling salts and clutch the pearls and do all of this stuff when Trump says something…Why is nobody calling her out for sharing the stage with a homophobe, right?”
Smith took both the Human Rights Campaign and the LGBT media watchdog GLAAD to task for refusing to criticize Tlaib, an American citizen and native of Palestinian descent.
“Where’s HRC?” Smith said. “Like, why are they not doing that? Because they know that they would be attacked for attacking a congresswoman of color. Where is GLAAD calling her out for that? She never should have shared the stage with that person.”
It should be noted Tlaib has supported LGBT rights as a member of Congress. The Michigan Democrat is a co-sponsor of the Equality Act and has supported the transgender community, including by displaying a blue-and-purple transgender flag outside her office.
Benson, however, took a different approach and said that rhetoric from Trump wasn’t appropriate, pointing out he had criticized it on Twitter.
“I was very critical of it from the very beginning,” Benson said. “I think that that’s the type of tweet where, you know, I said to the kids today, I feel like we don’t have to defend every single thing the president says or does or tweets, just because he’s the leader of the party and the team that you have identified with.”
Benson expressed particular concern with the “send her back” chant at the Trump rally.
“I have all sorts of problems with Ilhan Omar, and I write and talk about them all the time,” Benson said. “And she’s a U.S. citizen, so ‘send her back’ has this sort of nativist ugly — It’s not even an undertone, right? It’s just out there, and I think that’s really bad.”
Asked whether he felt any special concern over the remarks as a gay man in sense of a solidarity with other minority groups, Benson said, “I didn’t think of it that way. It gave me pause as an American.”
“It did not occur to me like, ‘Oh, I’m relating to her because I’m a member of a minority group,’” Benson said. “It was just like, as someone who believes in this country as an idea, and what we should be about. It was offensive. Just straight up on its — on its own merits, not like in any sort of other context for me.”
It seems gay conservatives writ-large aren’t as concerned with Trump’s racist tweets as they are pleased with his policies and attempts at LGBT outreach.
Charles Moran, a spokesperson for Log Cabin Republicans, talked about Trump’s HIV and global LGBT initiative when asked whether his organization would denounce his “go back” tweets.
“President Trump’s leadership to end the spread of HIV/AIDS in 10 years as well as the initiative to end the criminalization of homosexuality internationally is a strong signal of commitment to the LGBTQ community,” Moran said. “Coupled with a roaring economy and a focus on improving the lives of the average American worker, I think it’s safe to say that gay conservatives and Log Cabin Republican members are still quite pleased with their support of President Trump and are unwavering in their support.”
With the left having a reputation for shunning those who disagree with their political views, especially dissenters who are members of minority groups, can these gay conservatives find romance? They say they’re making it work.
Benson, who’s engaged to marry his boyfriend later this year, denied having any sort of tension with his soon-to-be spouse over politics.
“He’s not terribly political, so I’d say he’s right-leaning,” Benson said. “His parents are definitely Republicans, but he doesn’t really care that much about politics. Like when we get home, he’s not eager to watch the Mueller testimony, he’s eager to watch HGTV. That’s the kind of vibe that we got going on.”
Smith, who mentioned on stage at the Turning Point USA summit his spouse doesn’t share his views, said his husband “loves me, he doesn’t love a political ideology.”
“He doesn’t love Rob Smith with fucking 125,000 followers on social media,” Smith said. “He loves me, and we connect to our love for each other, and politics is not a huge thing in our relationship. I don’t even talk about politics that much at home because this is what I do. It’s what I talk about all day.”
But will these new gay conservative voices have any effect on the LGBT electorate in 2020? In years past, exit polls have shown LGBT people comprise a sizable chunk of around 5 percent of the electorate and have overwhelmingly supported Democrats. (In 2016, LGBT voters opposed Trump in support of Hillary Clinton by a whopping margin of 78 to 14 to percent.)
Based on voting trends — as well as criticism of Trump within the LGBT community — Benson wasn’t terribly optimistic about newfound gay support for conservatives in the 2020 election, saying he imagines Trump will “not get a huge percentage of the LGBT vote.”
“I think that some of the objections are legitimate,” Benson said. “[But] I think there are actual signs of progress that the president himself and some of the top people in his administration have spearheaded that have gotten scant attention or are sort of sneered at as unimportant.”
Benson counted among these signs the standing ovation Peter Thiel received after saying he’s gay on stage at the 2016 Republican National Convention and Trump’s appointment of Richard Grenell as an openly gay U.S. ambassador to Germany, which Benson called “an extremely important position.”
“I think it’s quite good that the ambassador has been tasked with a U.S.-led initiative to combat the criminalization of homosexuality around the world,” Benson added. “I think that’s leadership.”
Smith said he’s going to talk “as much as I can” about newfound conservative values and why President Trump should win re-election in 2020.
“By the way, I think that America is the freest and safest nation for gays and lesbians, and I believe that wholeheartedly,” Smith said. “And I’m going to go out to the rallies, and I’m going do the work with Turning Point USA, and I’m going to keep running my mouth on social media.”
Smith also warned against underestimating the power of gay conservatives or their presence in the LGBT voting bloc.
“There’s not a lot of us,” Smith said. “There’s maybe like 5, 6, 7 that have this national platform right now. What I’ve seen, and what a lot of these people will tell you, is that there are more of us than you think, and when I look at my DMs and my tweets, and what I see when I post an Instagram video, there’s so many of us out there.”
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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