Emails from the State Department — obtained by the Washington Blade from a lawsuit filed under the Freedom of Information Act — reveal the Trump administration had at least laid the preliminary groundwork for a global campaign to decriminalize homosexuality to the extent of identifying 10 countries where it was thought most possible.
The initial seven-page batch of emails, obtained by the FOIA lawsuit seeking communications from former U.S. Ambassador Richard Grenell in his capacity as leader of the initiative to decriminalize homosexuality, was delivered to the Blade last month and hints at initial steps toward a plan shortly after the announcement of the initiative.
It’s unclear from the initial production what further efforts, if any, sprang from the identification of these 10 countries. Critics at the time said the campaign was nothing but window-dressing to cover up for anti-LGBTQ policies during the Trump administration.
In an exchange dated Aug. 23, 2019, an assistant to Grenell forwards an email from an individual whose identity is redacted on an edited list of 10 countries where “we believe decriminalization is possible.” Copied on the email is Robin Quinville, who was deputy chief of mission in Berlin.
“Per your request, attached and edited below is the list of 10 countries where LGBTI decriminalization is possible — with your and Robin’s edits incorporated,” the email is redacted.
The names of the 10 countries, however, are redacted in the exchange provided to the Blade, as is an apparent Word document attached in the exchange with a short justification for each of the countries. Also redacted are the names of two agencies an assistant in the email identifies as having “cleared” the list.
The assistant tells Grenell the State Department’s Bureau of Democracy, Human Rights and Labor hasn’t yet responded, but the embassy “will forward their list when we receive it.”
As a result of the redactions, the identity of the 10 countries is unknown at this time. The early production given the Blade in response to a FOIA request filed in September 2020 offers no indication on the extent to which the State Department conducted further efforts to change the law in these countries, or whether there was any engagement after identifying them.
Grenell didn’t respond to the Blade’s request for comment for this article on how the identification of these 10 countries informed efforts to decriminalize homosexuality. Quinville couldn’t be reached for comment.
The initial FOIA production also includes an earlier exchange between an assistant and Grenell dated June 11, 2019, shortly after Botswana became the latest country to decriminalize homosexuality, forwarding a link to a Washington Post article on that news. The name of the assistant is redacted and may or may not be the same as the one in the other exchange.
“Some good news coming out of Botswana! Their High Court ruled today that parts of the penal code criminalizing same-sex conduct are unconstitutional,” the unidentified assistant writes.
Grenell is short in his reply: “I just tweeted about it.” It’s not clear whether or not Grenell contributed to the decriminalization efforts in Botswana other than the tweet he references. The assistant goes on to share a link from a tweet from the State Department spokesperson congratulating Botswana.
Other countries addressing the criminalization of homosexuality after the Trump administration’s initiative was announced were Gabon, which became one of the few countries in sub-Saharan Africa to decriminalize homosexuality, and Sudan, which eliminated the death penalty as punishment for homosexual conduct (although the punishment remains prison time from five years to life).
There’s no evidence those changes happened as a result of the global initiative Grenell led. One of the aims of the Blade’s FOIA lawsuit is to shed light on any activity from the U.S. government during the Trump administration in assisting with efforts, successful or otherwise, to decriminalize homosexuality.
The redactions on the production in the FOIA lawsuit may not be the last word. FOIA was amended in 2016 to clarify federal agencies cannot redact deliberative language without demonstrating revealing that information would cause “foreseeable harm.” The Blade, represented by attorneys at Davis Wright Tremaine, LLP, will have the opportunity to challenge these redactions once the FOIA production is complete.
At the time the lawsuit was filed, the State Department cited a “sizable universe of potentially responsive records” numbering in the thousands of pages as a reason for being unable to produce the records in a more timely manner. The initial seven pages produced by the State Department are an extremely small percentage of that total.
An unnamed State Department official, in response to an inquiry submitted by the Blade’s attorneys on the reasons for the initial limited production, fell back on the ongoing coronavirus pandemic and overwhelming nature of the work, citing a need to consult “subject matter experts” before disclosing potentially sensitive material.
“That process can take considerable time, particularly given the substantial constraints that have been imposed by the ongoing COVID-19 pandemic,” the State Department response says. “Thus, it’s not necessarily the case that the size of the potentially responsive universe returned by your client’s request should dictate the size of State’s first production. Similarly, a small production set does not necessarily entail that State has not processed a sizeable number of records during the preceding processing cycle.”
The Blade, through its attorneys, has asked the State Department to determine how much of the “sizable universe” has been reviewed and determined to be responsive or non-responsive (“fully processed”) and how long would the process involving subject matter experts take.
Daniel Fiedler, representing the Blade in the FOIA lawsuit as an attorney with Davis Wright Tremaine LLP, said the initial production from the State Department was unsatisfactory.
“In December, the Department of State made its first production in response to the FOIA request submitted by the Washington Blade over a year ago,” Fiedler said. “This nominal production consisted of two email records, both heavily redacted. Such a token response after so much time is truly disheartening, and we will continue to push to ensure that the Department satisfies its obligations under FOIA.”
Fiedler concluded: “The American public is entitled access to the records sought, and every additional day without that access causes further harm.”