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Fairness for All Act seeks middle ground on LGBTQ rights

Legislation seen as alternative to Equality Act

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Rep. Chris Stewart (R-Utah) speaks about the Fairness For All Act at a press conference near the Capitol on Friday. (Washington Blade photo by Vanessa Pham)

Newly introduced legislation in the U.S. House backed by the Mormon Church seeks to strike a middle ground on LGBT rights and religious freedom in federal civil rights law, although major proponents of each refuse to support the legislation.

Introduced by Rep. Chris Stewart (R-Utah) on Friday, the Fairness for All Act would strike balance between LGBT rights and religious freedom in way proponents say would protect First Amendment rights. That way, however, permits anti-LGBT discrimination from religious institutions and small-business wedding vendors.

“Throughout history, there are time when principles come into conflicts, and often they are conflicting good principles, both of them with equal value,” Stewart said at Capitol Hill news conference Friday.

“The job we have before us in our society today is a good example of that, where we have the principle of non-discrimination, that every American should be treated fairly and with respect and with dignity, and at the same time, the sincerely held belief that religious faith and principles also matter, and how do we reconcile those two conflicting principles,” Stewart added. “This is what we are trying to do with this legislation.”

The Fairness for All Act is seen as an alternative to the Equality Act, legislation approved by the House in May under the Democratic majority — with five Republican votes. The Equality Act would make anti-LGBT discrimination a form of sex discrimination under the Civil Rights Act of 1964 and clarify the Religious Freedom Restoration Act can’t be a justification for discrimination.

Much like the Equality Act, the Fairness for All Act would make anti-LGBT discrimination against federal law, but it would also institute a accommodation for institutions like religious organization and small-business wedding vendors.

The Fairness for All Act would prohibit anti-LGBT discrimination in employment, housing, jury selection, credit, federal programs and public accommodations, but do so without defining anti-LGBT discrimination as sex discrimination. The bill would also expand the definition of public accommodations beyond the Civil Rights Act of 1964.

But in contrast to the Equality Act, the Fairness for All Act would preserve Religious Freedom Restoration Act and protect the tax-exempt status of religious colleges and universities that oppose same-sex marriage, such as Brigham Young University, Bethel University and Catholic University.

The Fairness for All Act would also extend protections to small business whose owners refuse to provide services to same-sex weddings based on religious objections. Among them is Jack Phillips, the owner of Masterpiece Cakeshop, who gained notoriety when his reached the Supreme Court and justices ruled narrowly in his favor based on the facts of the case.

The measure would prohibit anti-LGBT discrimination at “any store, shopping center or online retailer or provider of online services that has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year,” but states the threshold doesn’t apply to claims of discrimination based on race, color or national origin or the small business wedding vendors excluded under the measure.

Similarly, the measure says “a property owned or operated primarily for noncommercial purposes by a non-profit religious corporation that holds itself out to the public as substantially religious, has as its stated purpose in its organic documents that it is religious, and is substantially religious in its current operations” is not a public accommodation under the legislation.

Lastly, the Fairness for All Act purports to protect religiously affiliated adoption agencies “so they can continue to serve vulnerable children and willing couples, while at the same time ensuring the ability of LGBT persons to adopt and foster children too.”

Unlike the Equality Act, the Fairness for All Act also makes clear access to abortion services aren’t protected, but stipulates the measure shouldn’t be construed to impose a penalty on women who have had an abortion or seek abortion-related services.

Among the proponents of the Fairness for All Act is the Church of Latter-day Saint and Seventh-Day Adventist Church, which expressed support for the legislation in a statement Friday.

Shirley Hoogstra, president of Council for Christian Colleges & Universities, spoke out in favor of the legislation at the Capitol Hill news conference.

“This coalition represents civic pluralism at its best,” Hoogstra said. “We want a society where people with deep differences can live alongside each other with respect and understanding.”

But the nation’s leading advocacy group for LGBTQ rights says the Fairness for All Act doesn’t go far enough, and an anti-LGBT legal firm that purports to protect religious freedom also doesn’t support the legislation.

Alphonso David, president of the Human Rights Campaign, said he “strongly oppose[s]” the Fairness for All Act because it sells LGBTQ people short and erodes existing protections under federal civil rights law.

“The so-called Fairness for All Act is an unacceptable, partisan vehicle that erodes existing civil rights protections based on race, sex and religion, while sanctioning discrimination against lesbian, gay, bisexual, transgender and queer people,” David said. “For LGBTQ people living at the intersection of multiple marginalized identities, this bill is a double whammy of dangerous rollbacks and discriminatory carve-outs. This bill is both wrong and harmful, and we strongly oppose it.”

David said the right path for advancing LGBTQ rights is the Equality Act, which he said is necessary because “LGBTQ people deserve full federal equality, period.”

“The Equality Act, on the other hand, has already passed through the House of Representatives with a bipartisan majority, the support of more than 260 leading companies and more than 500 civil rights, religious, medical and social welfare organizations, and is our movement — and, most importantly, our community’s — top legislative priority,” David said.

A spokesperson for Alliance Defending Freedom, the anti-LGBT legal firm that has represented Masterpiece Cakeshop and schools seeking to deny transgender kids access to bathroom consistent with their gender identity, referred to the Washington Blade to a 2018 statement from the organization against the Fairness for All Act Act.

“Every person should be treated with dignity and respect,” said ADF Senior Vice President of U.S. Legal Division Kristen Waggoner. “Unfortunately, sexual orientation and gender identity laws like the so-called ‘Fairness for All’ proposal undermine both fairness and freedom. This proposal is a SOGI law under different branding, with special — and likely temporary— exemptions that protect only a favored few.

A chief proponent of the Fairness for All Act, however, is the American Unity Fund, a pro-LGBTQ Republican organization backed by philanthropist and GOP donor Paul Singer.

Tyler Deaton, senior adviser to the American Unity Fund, said his organization supports the Equality Act, but prefers the Fairness for All Act to prohibit anti-LGBT discrimination.

“We have to have black letter laws on the books that can make it explicit when we’re protected and when we’re not,” Deaton said. “This is hard thing from me to say as a gay guy. There are going to be times that there are religious organizations that are going to have the freedom to refuse to serve me or employ me.”

Deaton said the Human Rights Campaign’s opposition to the Fairness for All Act was “disheartening,” especially the assertion it would undermine existing protections based on race, sex and national origin.

“I think that the statement exaggerates impacts that the bill would have on existing civil rights,” Deaton said. “And I want to be clear on this point, which is that Fairness for All does not touch, or erode, or diminish any civil rights that are on the books today, and in fact, it is biggest expansion of civil rights since the passage in 1964 of the Civil Rights Act, and that’s similar to the Equality Act.”

Another supporter of the legislation is Republican LGBT ally Margaret Hoover, who voiced support for the measure in an interview last month with the Los Angeles Blade and at the Capitol Hill news conference.

“We know that we expect that this bill will be met with criticism from both sides of the aisle,” Hoover said. “Compromise is never easy, but it is our view that LGBTQ Americans cannot afford to wait a single day longer.”

Just about every LGBTQ advocate pushing for the Equality Act came out against the Fairness for All Act, including Justin Nelson, president of the National LGBTQ Chamber of Commerce.

“NGLCC reaffirms it support for the Equality Act, and cannot support ant legislation containing loopholes designed to further keep tax-paying, law-abiding LGBT citizens from achieving success and safety in their own country,” Nelson said.

But there was some openness among LGBTQ advocates. Striking a welcoming chord on the Fairness for All Act was Shannon Minter, legal director for the National Center for Lesbian Rights.

“The introduction of this historic bill marks the first time that conservative religious organizations and leaders have supported comprehensive federal protections for LGBTQ people,” Minter said. “While the details of the bill require more careful consideration, it marks an important milestone in the growing national support for the equality and dignity of LGBTQ people.”  

The Fairness for All Act is introduced as the U.S. Supreme Court is considering litigation that would clarify whether Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of sex in employment, also applies to cases of anti-LGBT discrimination.

If the court rules in favor of LGBT workers, it could have far reaching implications and make federal legislation against anti-LGBT discrimination moot in employment, housing and education (although a legislative change would still be necessary to ban anti-LGBT bias in public accommodations and federal programs). If the court rules against LGBT workers, they would have no protections under federal law, and a legislative fix would be all the more needed.

Arguably the very introduction of the Fairness for All Act bolsters the case Congress didn’t intent to include LGBTQ people when it passed the Civil Rights of 1964, but Deaton denied that was case, adding that line has already been crossed with the Equality Act.

“I think that we all know that regardless of what the Supreme Court decides in the spring, we’re still going to need a federal law that either codifies that decision or rebukes that,” Deaton said. “I mean, if the Supreme Court decides that sex should be interpreted narrowly, then it’s all the more reason we need this bill now.”

The Fairness for All Act will be a tough sell in the House, which addressed the issue of expanding LGBT non-discrimination protections by passing the Equality Act. In the Senate, companion hasn’t even yet been introduced.

House Speaker Nancy Pelosi (D-Calif.) signaled she “strongly opposes” the legislation via comments from her spokesperson Drew Hammill.

“Speaker Pelosi strongly opposes this legislation,” Hammill said. “It represents a step backward in many respects and is a partisan effort to that would lead to much more discrimination in our country not less.”

The solution for enacting LGBT non-discrimination protections under federal law, Hammill said, would be for Senate Majority Leader Mitch McConnell (R-Ky.) to bring up the Equality Act.

“LGBTQ Americans deserve nothing short of full equality,” Hammill said. “House Democrats will continue to call on Senator McConnell to pass the Equality Act.”

Then there’s President Trump. Asked whether he spoken with the White House about the Fairness for All Act, Deaton declined to discuss conversations.

The Trump administration, through White House Deputy Press Secretary Judd Deere, signaled an openness to the Fairness for All Act when asked by the Washington Blade about the legislation.

“President Trump has protected human dignity, fought for inclusion, promoted LGBTQ Americans and strongly protected religious freedom for everyone while in office,” Deere said. “The White House looks forward to reviewing the legislation.”

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Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead

No political willpower to force vote or reach a compromise

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Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.

Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.

In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.

If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.

“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”

The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.

Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”

“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process.  We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”

Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.

“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”

A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.

Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”

Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.

The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.

Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.

“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”

Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.

For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.

Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”

“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”

But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.

No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.

Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.

“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”

Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.

Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.

Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.

To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.

A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.

“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”

But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.

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D.C. bill to ban LGBTQ panic defense delayed by Capitol security

Delivery of bill to Congress was held up due to protocols related to Jan. 6 riots

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New fencing around the Capitol following the Jan. 6 insurrection prevented some D.C. bills from being delivered to the Hill for a required congressional review. (Blade file photo by Michael K. Lavers)

A bill approved unanimously last December by the D.C. Council to ban the so-called LGBTQ panic defense has been delayed from taking effect as a city law because the fence installed around the U.S. Capitol following the Jan. 6 insurrection prevented the law from being delivered to Congress.

According to Eric Salmi, communications director for D.C. Council member Charles Allen (D-Ward 6), who guided the bill through the Council’s legislative process, all bills approved by the Council and signed by the D.C. mayor must be hand-delivered to Congress for a required congressional review.

“What happened was when the Capitol fence went up after the January insurrection, it created an issue where we physically could not deliver laws to Congress per the congressional review period,” Salmi told the Washington Blade.

Among the bills that could not immediately be delivered to Congress was the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, which was approved by the Council on a second and final vote on Dec. 15.

Between the time the bill was signed by Mayor Muriel Bowser and published in the D.C. Register under procedural requirements for all bills, it was not ready to be transmitted to Congress until Feb. 16, the Council’s legislative record for the bill shows.

Salmi said the impasse in delivering the bill to Congress due to the security fence prevented the bill from reaching Congress on that date and prevented the mandatory 60-day congressional review period for this bill from beginning at that time. He noted that most bills require a 30 legislative day review by Congress.

But the Evangelista-Hunter bill, named after a transgender woman and a gay man who died in violent attacks by perpetrators who attempted to use the trans and gay panic defense, includes a law enforcement related provision that under the city’s Home Rule Charter passed by Congress in the early 1970s requires a 60-day congressional review.

“There is a chance it goes into effect any day now, just given the timeline is close to being up,” Salmi said on Tuesday. “I don’t know the exact date it was delivered, but I do know the countdown is on,” said Salmi, who added, “I would expect any day now it should go into effect and there’s nothing stopping it other than an insurrection in January.”

If the delivery to Congress had not been delayed, the D.C. Council’s legislative office estimated the congressional review would have been completed by May 12.

A congressional source who spoke on condition of being identified only as a senior Democratic aide, said the holdup of D.C. bills because of the Capitol fence has been corrected.

“The House found an immediate workaround, when this issue first arose after the Jan. 6 insurrection,” the aide said.

“This is yet another reason why D.C. Council bills should not be subject to a congressional review period and why we need to grant D.C. statehood,” the aide said.

The aide added that while no disapproval resolution had been introduced in Congress to overturn the D.C. Evangelista-Hunter bill, House Democrats would have defeated such a resolution.

“House Democrats support D.C. home rule, statehood, and LGBTQ rights,” said the aide.

LGBTQ rights advocates have argued that a ban on using a gay or transgender panic defense in criminal trials is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or expression is to blame for a defendant’s criminal act, including murder.

Some attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.

In addition to its provision banning the LGBTQ panic defense, the Evangelista-Hunter bill includes a separate provision that strengthens the city’s existing hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats to be prosecuted as a hate crime.

LGBTQ supportive prosecutors have said the clarification was needed because it is often difficult to prove to a jury that hatred is the only motive behind a violent crime. The prosecutors noted that juries have found defendants not guilty of committing a hate crime on grounds that they believed other motives were involved in a particular crime after defense lawyers argued that the law required “hate” to be the only motive in order to find someone guilty of a hate crime.

Salmi noted that while the hate crime clarification and panic defense prohibition provisions of the Evangelista-Hunter bill will become law as soon as the congressional review is completed, yet another provision in the bill will not become law after the congressional review because there are insufficient funds in the D.C. budget to cover the costs of implementing the provision.

The provision gives the D.C. Office of Human Rights and the Office of the D.C. Attorney General authority to investigate hate related discrimination at places of public accommodation. Salmi said the provision expands protections against discrimination to include web-based retailers or online delivery services that are not physically located in D.C.

“That is subject to appropriations,” Salmi said. “And until it is funded in the upcoming budget it cannot be legally enforced.”

He said that at Council member Allen’s request, the Council added language to the bill that ensures that all other provisions of the legislation that do not require additional funding – including the ban on use of the LGBTQ panic defense and the provision clarifying that hatred doesn’t have to be the sole motive for a hate crime – will take effect as soon as the congressional approval process is completed.

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D.C. man charged with 2020 anti-gay death threat rearrested

Defendant implicated in three anti-LGBTQ incidents since 2011

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shooting, DC Eagle, assault, hate crime, anti-gay attack, police discrimination, sex police, Sisson, gay news, Washington Blade

A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.

D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.

Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.

According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.

Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.

An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.

“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”

The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”

Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.

Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.

In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.

“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.

Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.

The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.

In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”

At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.

The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.

The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.

In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.

The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.

It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.

Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.

The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.

The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.

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