Will States Finally Dump the ‘Gay Panic’ and ‘Trans Panic’ Defenses in 2018?

Is it ever reasonable to kill someone because you find out they are gay or transgender? It’s a legal defense in many states—but activists are campaigning to eliminate it this year.

Photo Illustration by The Daily Beast

In 2013, Islan Nettles was found beaten to death. Her killer, James Dixon, said he flew into a “blind fury” when he discovered that Nettles—whom he had been flirting with—was transgender.

This is the “trans panic” defense, and whether or not it played a role in Dixon’s receiving only 12 years in prison for killing Nettles in cold blood, it—and its sister, the “gay panic” defense—is often invoked by defendants alleging diminished capacity. Think of it as a milder version of temporary insanity: I just wasn’t myself, your honor. When that man hit on me, I flew into a rage.

With the coming of the new year, the gay panic/trans panic defense is formally illegal in Illinois, which banned it last May. California banned it in 2014, after the American Bar Association issued a recommendation that it be eliminated. Activists are mounting legislative campaigns to follow suit in seven other states this year.

But why now? Data suggest the gay panic defense is only used occasionally and is usually unsuccessful. After all, if getting angry were a defense to a crime, few people would ever be convicted.

It’s not also a formal legal provision. Rather, the defense is a tactic, a way to argue that the attacker wasn’t in his right mind at the time, or that the victim provoked the defendant, or even that the attack in question might have been self-defense.

Brad Sears, the founding director of the Williams Institute, a leading LGBT legal think tank, recently co-authored model legislation for eliminating the gay and trans panic defenses. Sears told The Daily Beast that “the gay and trans panic defenses mean that LGBT lives matter less.”

“More specifically,” Sears continued, “the legal doctrine states that homophobia and transphobia that leads to a murderous rage is not only understandable, it is how a ‘reasonable’ person would react. The cost of this doctrine is not only measured by the number of people who are killed, but in the message it sends about all LGBT people: They deserve to be attacked for just being themselves.”

That’s especially true in the current political climate, in which advances in LGBT equality are being steadily rolled back by legal maneuvers at the state level, including broad religious exemptions to civil rights laws and narrow interpretations of the right to marry, such as Texas’ position that it should be able to deny spousal employment benefits to a same-sex spouse.

Given that these rollbacks have often taken place away from the spotlight, which understandably has been focused on other matters, raising the “gay panic” issue could also be a way to draw attention to LGBT issues more generally.

2017 was also the third year in which a record number of transgender women, mostly women of color, were murdered. Even if the gay/trans panic repeal affects few real cases, at least it could send a message that such attacks are intolerable.

And even though the gay panic issue matters mostly in state courts, the rapid and profound transformation of the federal bench ought to remind us how much power trial judges have in shaping how justice is or is not served.

On the other hand, it’s reasonable to wonder whether the effort might lead to a backlash. Some states might proactively validate the “gay panic” defense, for example, making matters worse. And at least one commentator has opined that banning the defense might allow homophobia and transphobia to “fester in the subconscious realm.”

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Sears, not surprisingly, disagreed. “The elimination of the gay and trans panic defenses won't drive bias underground,” he said. “What its elimination will do is stop the state’s endorsement of that bias.”

Of course, given the astonishing success that Christian conservatives have enjoyed lately, it’s also reasonable to wonder whether the campaign might lead to a backlash. Conservative states might specifically authorize the gay/trans panic defense, for example, making matters worse than they are today. It’s easy to imagine right-wing activists arguing “free speech” for gay-bashers, just as they have for bullies (and won, in some cases).

That backlash might itself backfire, however. 2017 isn’t 2007, and while people may disagree about the balance between equality and religious freedom, there aren’t a lot of Americans left who think that gay-bashing is OK. Remember, Jesus said to turn the other cheek, not bash a trans woman’s head in.

Which is ultimately what makes the gay panic issue a potent symbol. Much of the seemingly never-ending “culture war” is fought over symbols that convey basic messages about what is OK and what isn’t. The Masterpiece Cakeshop case isn’t about a wedding cake; obviously, the gay couple turned away by the Christian bakery owner can go to a different bakery. It’s about whether, in the United States of America, it’s OK to hang a sign saying “No Gays Allowed” on your storefront window.

And that, fundamentally, is whether our society “gets it” that gays, lesbians, bisexuals, and trans folk are people whose lives are worthy of dignity and respect in a democratic society, whatever our personal opinions, views, preferences, religious beliefs, and practices—or whether it’s still OK to display open disrespect toward us, with the sanction and cover of law.

Likewise, if a male defendant can try to persuade a jury that it was reasonable to attack the man who made a pass at him, or the woman who turned out to be transgender, then our legal system is saying that reasonable people might think that’s a reasonable thing to do. And that statement, whichever way it is made, trickles down into a thousand schoolyards, locker rooms, offices, and homes.

Eliminating the gay/trans panic defense won’t bring Islan Nettles back. But if it stops even one such murder from taking place, if it plays some role in convincing one would-be attacker that society will not excuse him from responsibility, then maybe it’s worth it to try.