In the year since the Department of Defense’s restrictions on transgender service members went into effect, some who were “grandfathered in” now find themselves fighting COVID-19 while others are barred from serving despite having medical training.
The DoD’s restrictions, detailed in its directive-type-memorandum 19-004, went into effect on April 12, 2019 in response to President Donald Trump’s July 26, 2017 tweet stating the U.S. military would no longer “accept or allow transgender individuals to serve in any capacity.”
However, a year after the ban went into effect, transgender service members continue to serve in multiple capacities, including “directly supporting COVID-19 relief and recovery as medical professionals, logisticians, security forces and administrators,” according to SPART*A, a trans service member support organization.
For example, Navy Hospital Corpsman Alonna Lovanh is an out trans woman who tests patients for COVID-19 as a medical laboratory technician.
While she analyzes patient samples, Lovanh must keep an Exception to Policy memo in her uniform “in case anybody asks me about my hair. I can say it is in the correct standards in accordance with my gender because I am female.”
When Lovanh spoke with the Blade, she rarely used the word transgender and spoke with a confidence that emanated from the memo in her pocket exempting her from the ban’s restrictions and allowing her to continue receiving necessary medical treatment. Other trans service members are not as fortunate.
“April 12 created a break between those who already transitioned and those who had not yet,” she explained. “Those who are nonexempt, they have been told they are not allowed to take medications or transition. They would not be allowed to get medical aid as provided by the military. But for me, since I am exempt, I have a care plan for where I am in my transition, to include my medications. But those who are nonexempt, they do not really get a care plan.”
Lovanh’s work, and other COVID-19 relief efforts by trans troops, highlight contradictions addressed by ongoing legal challenges to the ban. Though the DoD states the restrictions do not constitute a “ban,” they restrict the ability of transgender people to serve authentically even during a global crisis.
“It prevents transgender people from joining the military or commissioning,” explained Peter Perkowski, the legal and policy director of the Modern Military Association of America. “Unless you agree to serve in your birth sex and are certified ‘stable’ for 18 months in your birth sex. That’s why it’s a ban [for people who have or want to transition].”
Melody Stachour, a transgender Navy chief petty officer who is also exempt from the ban’s restrictions, stated these restrictions feel more intense than those under the now rescinded “Don’t Ask, Don’t Tell” law banning open service based on sexual orientation.
“Then you would change the pronouns of your partner in order to keep serving,” she said. “Now you have to change your own.”
Last year’s April 12 deadline for transgender troops to medically or socially transition prior to the ban’s implementation created two separate but supposedly equal groups of trans service members. The DoD categorizes them as either “exempt” from the restrictions (i.e. “grandfathered in”) or “nonexempt” and restricted from medically or socially transitioning from their assigned sex at birth.
Perkowski pointed out the ban violates the equal protection clause of the Constitution by creating a sex-based and gender-based classification as well as a due process issue.
“The question becomes whether the government has a legitimate basis to make this decision,” he said, also stating the “special accommodations” a Pentagon spokesperson told NBC News the memo “removes” involves medical care all military personnel should be able to receive and not be restricted from.
Other restrictions include not having a diagnosis of gender dysphoria, which the American Psychological Association defines as “discontent with the physical or social aspects of one’s own sex,” and not having a history of “cross-sex hormone therapy” or of gender-affirming surgery, all of which are considered “disqualifying” under the new guidance.
“Individuals who are not exempt must adhere, like all other service members, to the standards associated with their biological sex,” states the DoD memo.
However, Stachour said the new classifications and restrictions only apply to transgender service members.
“Over the past year the policy states that if you were not ‘out’ prior to it, then you were not allowed to serve [openly] and you were not allowed to join the service if you transitioned,” she told the Blade.
While the guidance states service members may not be discharged on the basis of gender identity, it states they can be discharged or face “appropriate disciplinary action” if they are “unable or unwilling” to meet standards “associated with their biological sex.”
A nonexempt transgender service member initially reached out to the Blade to discuss life under the DoD restrictions, but later changed their mind out of fear of discharge or other negative consequences if outed. The current policy does state that transgender service members or potential recruits may seek waivers from these restrictions, but no waiver has yet has been approved or denied.
Although, according to SPART*A, many have applied in the past year.
Bree Fram, SPART*A’s communications director and a transgender Air Force lieutenant colonel who is exempt from the ban, told the Blade they were aware of around “20 or more” nonexempt trans service members who applied for waivers.
“They are understanding that they are taking a risk and should they be denied, they can be separated,” Fram explained. “Once that waiver is denied, they can face discharge. Anyone who is putting a waiver in should consider that at the end of that process could be a discharge.”
However, many nonexempt trans service members are willing to accept the risk because an approved waiver grants them the protections and stability of exempt status.
“The waiver allows you to be an exempt individual,” Fram said. “And fall under those criteria for stability.”
According to the DoD’s governing memorandum, “Service members who are exempt may not be separated, discharged, or denied reenlistment or continuation of service solely on the basis of gender identity,” and they will be treated “in a manner consistent” with a cisgender service member.
“In case I wanted to go use the female head,” Lovanh said. “I can show anyone who questions me the [Exception to Policy] memo and say I am allowed to be here because the Navy recognizes me as female.”
But the process for obtaining a waiver is long and difficult, and in the past year only one has made it to a branch Secretary’s desk.
Even the current pandemic crisis has not eased the process for those with medical expertise. Fram told the Blade of a doctor who is having difficulty getting a waiver to join the service.
“I know a trans physician who can’t get traction from a recruiter to get into the service though he could be valuable in the fight against COVID-19,” she said.
The physician, who asked not to be identified so as not to further complicate his entry efforts, stated he had spoken with “every single branch and every form of service” to include active duty and National Guard components with similar results.
Stachour, who serves as a mentor for both lower-ranking officers and enlisted sailors, said the current crisis also prevents her from administering effective face-to-face career guidance to those she works with.
“One of the biggest struggles for the folks assigned to me,” she said. “is I don’t see them as much as I used to … so I wind up reaching out during my off hours. I can’t get a quick two minute update when we are walking out to our cars. The interpersonal mentoring is challenged.”
Both Stachour and Fram were chosen by cisgender senior leadership to serve as advisers partially because of their being transgender and the unique and empathetic experience it brings.
“Because I am senior enlisted and I’m trans, that means the chiefs look to me when trans people start showing up in their unit,” Stachour said. “I wind up mentoring sailors all around the world, whether they are assigned to me or not because I have an expertise they don’t…This is part of the makeup of a good chief.”
Similarly, Fram was selected for an advising role because of the insights her enriched perspective brings.
“I was hired for a position because I was trans,” she recalled. “I had a long sit down with a new general officer and a week later I was asked to be his executive officer. Our discussion was about trans issues and he just wanted to learn because I had made a good impression on him.”
While Fram pointed out that exchange occurred prior to the implementation of the current restrictive policy, she still says overall her experience in her commands have been positive.
“I came out on the day the ban was first lifted in 2016, and I received incredible support from my coworkers,” she said. “I continue to receive support from my leadership. The welcome from my team that works for me today is fantastic.”
Lovanh also considers herself lucky to have come out prior to the ban and to be in the medical field.
“My peers in in my opinion and experience have been all accepting,” she said. “I was very lucky to have a command who made sure I was comfortable. Sure, there are struggles, but in the medical community there is not having to explain too much. The information is available and easy to understand.”
But Stachour, Fram and Lovanh all worry for those who were caught on the wrong side of the April 12, 2019 deadline. They all see the nonexempt are having very different experiences under the ban.
“On a personal level for me, it has been about trying to assist others,” Fram said. “Particularly those who are nonexempt. As a senior officer, I continue to face a very welcoming military, but there are others who don’t face the same situation. Trying to make sure they are taken care of has had an impact on me. We want to make sure they can get medically necessary military care so they can focus on the mission and fully dedicate themselves to it.”
Stachour also pointed to this guilt of the exempt for the nonexempt as one motivation for her effective mentoring of all sailors, including those who are trans.
“Back in 2015, I knew my goal of transition was counter to the goal of staying in,” she recalled. “At that time those goals were in conflict due to the nature of the policy. So, [sailors] sometimes need to learn to put some goals on the back burner and let them simmer for right now, so when we do have the opportunity to re-attack that goal, we can do it with a richness that is not available to us right now.”
The Modern Military Association is currently attacking the ban with a case currently pending a discovery ruling. MMA has requested documentation from the government to support its basis for the ban.
“They have produced a lot of documents,” Perkowski said. “We are requesting a subset of that.”
He stated the October court date on the discovery issue is just one of two “clocks” determining the outcome of the ban.
“The second clock is the election in November,” Perkowski told the Blade. “If there is a change in administration — if Joe Biden becomes president, then this could all become moot when he takes office in January, since he said he will reverse this ban.”
Stachour and Fram also stated this could all end with a decision from the voters in November.
“The ban is going to stand until a new president is in office,” Stachour said before adding hopefully, “But I don’t think this ban is going to last forever.”
Fram agreed, stating, “A lot depends on how the election unfolds in the fall. If this situation continues, I encourage [trans youth] to continue to prepare for future entry into the service.”
In the meantime, Stachour, who resides in D.C. under a stay-at-home order, looks forward to the time when both COVID-19 and trans service restrictions are lifted. Then the Minnesota native can fully enjoy shows like “Rent” again at the National Theater with friends who are no longer “nonexempt.”
“Hold your head high,” Lovanh encouraged other trans people still hoping to serve. “And the day will come again when you will be able to come in and wear the same uniform I am. It may not be right now, but your time will come.”
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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