The Trans Panic Defense: Yep, Still Legal!

By: Eliza Wagman

 

The trans panic defense, derived from the earlier established gay panic defense, is a legal defense used by people on trial for assaulting or murdering a transgender individual.  The defense is used to justify and excuse the attacker’s behavior by stating that when the victim’s transgender identity was ‘revealed’, the defendant was sent into a panic due to shock.  During such a panic, they argue, they cannot be held fully responsible for their violent actions.

 

The trans panic defense places blame for the violence on the victim, rather than the attacker, and legitimizes gender identity as a basis for justified violent anger.  Although the defense is not an official free-standing court defense, it has been employed in about half of U.S. states, and has been successful in getting charges changed from homicide to manslaughter, sentences decreased, and general sympathetic treatment for blatant, violent transphobia.

 

Only two states, California and Illinois, have banned the use of the gay and trans panic defenses.  Trans people experience a disproportionately high rate of violence, and eradicating the panic defenses is a crucial step in protecting all trans and queer individuals.  A trans person is not responsible for disclosing any aspect of their identity to another, and legal action against these defenses is needed in order to cement that truth in courtrooms.  As lawyer Max Stern stated when he helped convict the men involved in trans woman Gwen Araujo’s 2002 murder, “This

was not a manslaughter, because it is not reasonable to accept this behavior in response to the circumstances here.  Even if the defendants believed they had been sexually deceived, that

would be no basis, no justification for beating and murder”.  We must ensure that all judges convict along these guidelines, so that the murder of trans individuals is not seen as a justifiable, barely-punished fit of passion.

 

For more information on trans rights and to find trans-specific medical resources, visit http://www.myplannedparenthood.org.

 

Sources

https://www.nbcnews.com/feature/nbc-out/illinois-become-second-state-ban-gay-panic-defense-n833441

https://lgbtbar.org/what-we-do/programs/gay-and-trans-panic-defense/

https://williamsinstitute.law.ucla.edu/wp-content/uploads/2016-Model-GayTransPanic-Ban-Laws-final.pdf

https://lawreview.law.ucdavis.edu/issues/42/2/articles/42-2_lee.p

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