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Ban the ‘Gay and Trans Panic Defense’

Tuesday, March 2, 2021

In 1998, Matthew Shepard, a 19-year-old college student, was violently beaten, tortured, and left to die by the side of a road near Laramie, Wyoming. Rescuers took him to a hospital in neighboring Colorado, where he died six days later from profound head injuries.

The two suspects in the attack were arrested and charged with first-degree murder. 

The defense lawyer claimed that one of the attackers was driven to temporary insanity by alleged sexual advances from Shepard.

This is known as the gay and trans panic defense. This legal argument asks a jury to rule that a same-gender sexual advance is enough of a provocation to excuse a defendant’s violent reaction, even including murder.  It is not a free-standing defense to criminal liability but a legal tactic used to support other defenses.

The two perpetrators were both convicted and sentenced to two consecutive life sentences for the heinousness of their crime.  But the gay and trans panic defense gained notoriety – and popularity. It has been used in hundreds of cases across the country to defend people accused of attacking and even murdering gay and transgender people.

The panic defense has been used in three ways to reduce the charge of murder to the lesser charges of manslaughter or justified homicide.

  • The insanity or diminished capacity defense contention is that the victim’s sexual orientation or gender identity is to blame for triggering the defendant’s panic reaction.
  • In the provocation defense, the argument is that the victim’s “non-violent sexual advance” is sufficiently provocative to induce the defendant to kill them, behavior which, on its own, is not illegal or harmful but is only considered ‘provocative’ when it comes from an LGBTQ person.
  • In the final variation, defense of self-defense, the claim is that because of the victim’s sexual orientation or gender identity, the victim must have been about to cause the defendant serious bodily harm and the attacker is justified in using violence. Despite the removal of “gay panic disorder” from the DSM by the American Psychological Association in 1973, legal defense teams continue to use it.

The American Bar Association regards the gay and trans panic defense as particularly egregious.  In 2013, the ABA passed Resolution 113A, urging “federal, Tribal, state, local, and territorial governments to take legislative action to curtail the availability and effectiveness of the ‘gay panic’ and ‘trans panic’ defenses. These defense strategies seek to excuse the crimes by saying that the victim’s sexual orientation caused their assailant’s violent reaction to them.”

Since that 2013 ABA resolution, eleven states have banned the defense – but it remains legal in Minnesota.

The ABA continued to urge the ban in 2020: “This legally sanctioned discrimination against one’s sexual orientation and gender identity must cease.”

At the federal level, Sen. Edward Markey and Rep. Joseph Kennedy introduced the Gay and Trans Panic Prohibition Act in 2018 and again in 2019. The bill expressly noted that “continued use of these anachronistic defenses reinforces and institutionalizes prejudice … and marks an egregious lapse in the march of the United States toward a more just criminal justice system; the antiquated notion that LGBT lives are worth less than others and to reflect modern understanding of LGBT individuals as equal citizens under law, gay and trans panic defenses must end.”

However, the bill has not passed.

Why is this important?

The LGBTQ community comprises about 5% of the U.S. population, according to the Williams Institute, UCLA School of Law.  However, the FBI documents that nearly 20% of hate crimes are directed against individuals because of their sexual orientation or gender identity and the proportion continues to rise, making a small minority of people highly vulnerable to extremely violent attacks. 

In the aftermath of the devastation of World War II, global leaders created the Universal Declaration of Human Rights. This Declaration affirms the equality of all people, everywhere, based on their immutable personal characteristics of race, religion, ethnicity, national origin – and sex. 

Countries, laws, and organizations around the world, and the Minnesota Human Rights Act, define sex to include sexual orientation and gender identity.  These characteristics define the essence of our human existence and we are all guaranteed equality before the law because of, and even despite, who we are.

The gay and trans panic defense is dangerous.

  • Yet it is legal in 39 states, including Minnesota.
  • It has been used to justify murder nearly 200 times around the country.
  • It has resulted in reduced sentences or acquittals for nearly half of those murders.

Bills are pending now in the Minnesota House and Senate to ban this defense:  SF 1512 and HF 1648.

We urge Minnesotans to ban this defense.  We do so to honor the memory of Matthew Shepard and all others who have been murdered simply because of who they are – and to send the message that we will not tolerate hate.

Sen. Scott Dibble

Rep. Athena Hollins

Ellen J. Kennedy, Ph.D.