The “gay and trans panic defense” basically allows those accused of committing a violent act towards a member of the queer community to be excused because of the fear of their victim’s sexual orientation. The legal strategy places the reasoning behind the crime committed on the sexuality or gender identity of the victim.
States are currently taking steps to ban the use of the panic defense. Colorado is fighting to vote yes on HB20-1307. The bill’s description is “evidence relating to the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted, non-forcible, romantic or sexual advance toward the defendant, or if the defendant and victim are or have been involved in an intimate relationship, is irrelevant in a criminal case and does not constitute sudden heat of passion in a criminal case. The bill creates a protective hearing if a party claims that such evidence is relevant and wants to use it in a criminal case.”
This defense is rooted in the outdated stigma that being queer and/or trans is equal to mental illness. Despite this being disproven in 1973, this homophobic and transphobic panic defense is still being used frequently to lessen a defendant’s sentence. This legal strategy also capitalizes on the idea that the queer community are sexual predators, and it allows for lethal action towards a person to be deemed reasonable just because of their identity.
The Williams Institute reports that no state has the “gay and trans panic defense” as a solidified defense, but rather, “defendants have used concepts of gay and trans panic in three different ways in order to reduce a murder charge to manslaughter or to justifiable homicide.” The three ways of usage are boiled down to support provocation, a mental breakdown, or self-defense, all due to a person’s sexuality or gender identity.
The use of the “gay panic” defense has been recorded since the 60s. Most notably, it as used in the case regarding Matthew Shepard. The defense team used the legal strategy as a reason for the murder.
The “trans panic” defense has recently been on the rise. Black, transgender individuals are the majority of folks being impacted by violence ruled by transphobia. The Human Rights Campaign reported 26 deaths in 2018 of transgender and non-conforming people.
The “gay and trans panic” defense is being used as an excuse for inexcusable acts towards an entire community, and it’s time to get rid of this archaic way of thinking.
