Virginia on Wednesday became the 12th state to ban the gay and trans “panic” defense, a controversial legal strategy that allows a defendant to explain violent crimes based on their discovery of the victim’s gender identity.
Gov. Ralph Northam (D) signed legislation that bans use of the defense for murder or voluntary manslaughter charges. The bill (HB 2132) passed the state House 58-42 and Senate 23-15 in February.
LGBTQ advocates hailed the bill as a significant step in rolling back the trans panic defense in states across the country, especially amid a rise in murders of trans people, particularly Black and Brown women.
The Human Rights Campaign documented at least 40 killings of transgender or gender non-conforming people in 2020, the highest since the group began tracking that data in 2013, and there have been at least 10 murders of transgender people of color this year, according to the group.
“You can’t just say that because you discovered, or you perceived someone as being LGBTQ, that that in and of itself, or coupled with an oral solicitation, is reason to murder or assault that person,” said Virginia Del. Danica Roem (D), the bill’s author.
Advocates say more work remains: After Virginia, the defense will still be allowed in thirty-eight states, and five territories, according to data from the Movement Advancement Project, a think tank on LGBTQ issues.
Defendants relying on gay and trans panic defenses have generally used them to establish theories of provocation, diminished mental capacity, or self-defense, according to a report from the Williams Institute at the UCLA School of Law. Twenty-three states have reported court decisions discussing the gay and trans panic defenses since the 1960s, according to the report.
The use of the defense is rare, but state laws allowing it still pose an obstacle to victims of violence seeking justice, according to Avatara Smith-Carrington, an attorney and Tyron Garner Memorial Law Fellow at Lambda Legal.
“They usually are states where we’re seeing higher instances of violence against trans people, specifically Black and Brown trans women,” said Smith-Carrington. “This type of defense welcomes, legitimizes, and excuses violence; allowing a jury to find that a person’s gender or sexual orientation is to blame for the aggressor’s actions.”
The Criminal Justice Section of The American Bar Association (ABA) called for a ban in 2013, and advocates have been working to achieve that goal state by state. California in 2013 was the first state to ban the defense through legislation
“Over 93% of these kinds of crimes are prosecuted in state courts,” said William Shepherd, a partner at Holland & Knight LLP, who was chair of the ABA criminal justice section when the group called for the ban.
“The federal courts, from a criminal perspective, are a very small percentage of crimes and certainly a small percentage of sort of one-on-one individual violent crimes. So, if you want to have a change, the change really needs to come from the states.”
Advocates say momentum is growing. Governors in New Jersey, Washington, and Colorado signed bills banning the defense in 2020, and in January 2021, Washington, D.C., Mayor Muriel Bowser signed a bill (B23-0409) slated to take effect in June.
LGBTQ advocates want to build on that in 2021, in particular in Maryland and Iowa, where legislation fell short last year.
Advocates are most hopeful about Maryland, where a measure passed the state House in 2020 and was awaiting a Senate committee vote before being sidetracked by legislative work to address the coronavirus pandemic, according to C.P Hoffman, legal director at FreeState Justice in Baltimore.
In January, Maryland Del. Julie Palakovich Carr (D) reintroduced legislation (HB 231) barring the defense , and there is a companion bill in the upper chamber (SB 46) sponsored by Sen. Clarence K. Lam (D). The House unanimously passed its version March 10.
Hoffman said Gov. Larry Hogan (R-Md.) hasn’t spoken directly on the panic defense bill but expects him to support the legislation once it’s passed. There could be movement on the Senate companion bill “soon.”
In Iowa, legislation barring the trans panic defense unanimously passed the state House in 2020, but the Legislature suspended its session a week later due to Covid-19 and the bill was never taken up by the Senate. The bill (HSB 11) was reintroduced in January 2021 and passed the House unanimously in February.
Because Republicans control the state legislature and governor’s mansion, “we have to work with Republican legislators if we want to get this passed,” said Keenan Crow, director of policy and advocacy at One Iowa, who supports the bill.
Rep. Liz Bennett (D), the only openly LGBTQ elected official in the Iowa legislature, backs banning the defense.
“I don’t see this as a conservative versus liberal issue or Republican versus Democrat issue. It should be the standard for our state,” Bennett said.
Defense Lawyers Divided
Shephard said the ABA faced pushback on the issue “from a number of members of the defense community” when it called for a ban.
Advocates in Maryland and Iowa said they hadn’t faced resistance from groups representing criminal defense attorneys in their states.
But in Nebraska—where advocates are also pushing a ban—there’s been heavy opposition from criminal defense attorneys, said Abbi Swatsworth, executive director of OUTNebraska.
“These attorneys don’t want to lose any available avenue to defend their clients and they see this as punishment on their ability to defend clients,” Swatsworth said. “So, it takes a lot of work to sort of educate the profession about why this isn’t a defense that’s worthy of being upheld.”
The head of the National Association of Criminal Defense Lawyers said a ban could short-change the legal process for some defendants.
“The National Association’s position is not that everyone who raises this defense should be acquitted. The position that we have is that people should be allowed to raise whatever legitimate defense that they have,” said Christopher Adams, the group’s president.
“We create more problems when we try to just take things out of the hands of the jurors and the judge who can hear all the evidence.”
LGBTQ advocates said they hope more states will reject the defense, creating a domino effect.
“I think there will be more states that will consider banning the trans panic defense because most places don’t want to be left out,” said Elle Hearns, founder and executive director of the Marsha P. Johnson Institute, an advocacy group for Black transgender people. “I do think there will continue to be a domino effect because our movement will continue.”
“I just hope it’s not too late,” Hearns added. “I hope it’s not at the expense of more people’s lives who definitely deserve to be here.”