Gay and Trans Panic Defense Prohibition Act would ban the homophobic legal defense from courts for anti-gay hate crimes

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Published in
4 min readJun 13, 2019

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Rep. Joe Kennedy III (D-MA4)
Sen. Ed Markey (D-MA)

Should a straight murderer of a gay or trans person be able to claim “He (or she) was coming on to me” as a valid legal defense?

Context

The gay-panic or trans-panic defense is a legal strategy in which a defendant argues that they committed a crime against a gay or trans person as a result of fear or shock. Some have described it as the “I only killed him because he was coming on to me” defense.

The strategy has been successfully used in about half of all states since its introduction in the 1960s, including some perhaps-surprising states such as California, Massachusetts, New Jersey, and New York.

In the last few years, though, amid a broader groundswell of support for the LGBT community and LGBT rights, the tide has turned. Four states have now banned the gay-panic and trans-panic defenses in their courts: first California in 2014, then Illinois in 2017, Rhode Island in 2018, and Nevada in May (but not going into effect until November).

What the legislation does

The Gay and Trans Panic Defense Prohibition Act would ban the gay-panic and trans-panic defenses in courts on a federal level.

It was introduced in the House on June 5 as bill number H.R. 3133, by Rep. Joe Kennedy III (D-MA4). It was introduced in the Senate that same day as bill number S. 1721, by Sen. Ed Markey (D-MA).

What supporters say

Supporters argue the legislation would remove a bigoted and largely bogus legal defense, which could potentially let committers of hate crimes go free in a court of law.

“Claiming a victim’s sexual orientation or gender identity justify murder or assault expressly tells entire segments of our society that their lives are not worthy of protection,” Rep. Kennedy said in a press release. “As long as gay and trans panic defenses are allowed in our state and federal courts, the LGBTQ community will be deprived of the justice all Americans deserve. With four states already implementing bans, we have the federal momentum to outlaw this bigoted legal practice across the country.”

“Our courtrooms are supposed to be chambers of justice, not hate,” Sen. Markey said in the same press release. “So-called gay and trans panic legal defenses perpetuate bigotry and violence toward the LGBTQ community and should be banned. They corrode the legitimacy of federal prosecutions, and blame victims for the violence committed against them. All Americans deserve to be treated with dignity and humanity in our justice system… Relegate hateful practice of gay and trans panic defense to the history books.”

What opponents say

One need not be homophobic to oppose this legislation, as George Washington University Law School Professor Cynthia Lee argued in a 2008 paper.

First, she began by opposing the gay-panic and trans-panic defenses. “Such strategies are problematic because they reinforce and promote negative stereotypes about gay men as sexual deviants and sexual predators,” Lee wrote. “Gay panic defense strategies are also troubling because they seek to capitalize on unconscious bias in favor of heterosexuality that is prevalent in today’s heterocentric society.”

However, Lee nonetheless felt that defendants should be allowed to make such defense strategies regardless — and indeed, that it might be better if they do.

“I… argue that banning gay panic arguments from the criminal courtroom is a bad idea. When gay panic arguments are forced to take a covert turn — when they are not explicit or out in the open — they may actually be more effective than they would be if out in the open,” Lee wrote. “Social science research on implicit bias suggests that making race salient can diminish the otherwise automatic effect of racial stereotypes on perception and beliefs.”

“Conversely, pretending that race is irrelevant allows unconscious racism to operate without any constraints,” Lee continued. “It appears the same is true of other types of bias, including sexual orientation bias. Rather than precluding defendants from making gay panic arguments, I argue that the criminal courtroom is the place where such arguments can, and should, be aired and battled.”

Odds of passage

A previous version in the prior Congress attracted 29 House cosponsors, all Democrats. It never received a vote in the House Judiciary Committee, then under Republican control.

Similarly, a previous version in the prior Congress attracted five Senate cosponsors, all Democrats. It never received a vote in the Senate Judiciary Committee, than as now under Republican control.

This article was written by GovTrack Insider staff writer Jesse Rifkin.

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