Being Afraid of a Gay or Trans Person Is Still a Valid Murder Defense in Most of the US

If you’ve been accused of homicide, you can still blame the victim for their own murder in most of the U.S. by claiming that their sexual orientation or gender identity made you panic.

Last week, Virginia became the 12th state in the country—and the first in the South—to ban the use of the “gay and trans panic” defense. The bill to ban the defense, which can let accused killers escape with a lesser sentence, was introduced by Danica Roem, the state’s first openly trans legislator.

“I hope that as a region, the Mid-Atlantic can really tell people that you are welcome here because of who you are, and we will protect you here because of who you are,” Roem told NBC News. 

But “gay and trans panic” defenses live on in much of the U.S., despite widespread recognition that they’re rooted in baseless, homophobic fears and imply that violence against LGBTQ people is tolerated. The American Bar Association has denounced them as “legally sanctioned discrimination,” urging people to contact their state legislators and demand that these defense be outlawed. 

The “gay and trans panic” defense dates back to the 1960s. Although it’s believed to be deployed infrequently today, court opinions in about half of all states have cited them, according to research by the Williams Institute, a think tank at the University of California, Los Angeles School of Law. No state currently lets attorneys cite “gay and trans panic” defenses as a “freestanding defense,” the think tank found, but they can still be used to soften a homicide charge.

“The gay and trans panic defenses allow perpetrators of LGBT murders to receive a lesser sentence, and in some cases, even avoid being convicted and punished, by placing the blame for homicide on a victim’s actual or perceived sexual orientation or gender identity,” Williams Institute researchers wrote in a 2016 brief on the defenses.

Gay, lesbian, bisexual, transgender, queer, and gender non-confirming people already face staggering high risks of violence. People in those communities are nearly four times more likely to become victims of violent crimes, compared to people who are not, according to a recent study based on 2017 data from Bureau of Justice Statistics. 

Last year, the Human Rights Campaign recorded the violent deaths of at least 44 trans and gender non-conforming people—the highest number since the group started tracking this statistic in 2013. So far in 2021, at least 12 trans or gender non-confirming people have so far been violently killed.

The “gay panic” defense has even been used to try to justify what’s now recognized as a literally textbook hate crime. After torturing and murdering Matthew Shepard in 1998, his killers tried to claim that they’d been driven to kill Shepard—who was gay—partly because, in the words of a newspaper at the time, he’d made an “unwanted sexual advance.”

That defense failed, but only on a technicality. Regardless, the judge in the case still suggested that Shepard’s sexuality, rather than his killers’ deadly homophobia, was the reason he died. After one of the killers pleaded guilty, the judge said Shepard was murdered in “part because of his lifestyle”—a statement that still appeared to shift blame onto the victim.

Today, Shepard is the namesake of a federal hate crime law.

Roem said she first learned about the “gay and trans panic” defense through Shepard’s murder, NBC News reported. In 2004, a lawyer for one of the men convicted of killing Gwen Araujo, a trans teenager who was beaten to death in 2002 in California, used the defense. (More than a decade later, California became the first state to ban the “gay and trans panic” defense.) 

Roem was in college at the time. Once she became a legislator, she received an email from a teenaged constituent, asking her to ban the “gay and trans panic” defense.

“I came to realize that in 2021, my out teenage constituents are living with the same fear that I did in 1998, after Matthew was killed, and that I did in 2002 after Gwen Araujo was killed,” Roem told NBC News. “And you think of how many other people will stay closeted because they have a fear of being attacked, let alone all the other fears that a closeted person who wants to come out has.”

The “gay panic” defense isn’t the only kind of bogus defense that’s been used to explain away the violent deaths of LGBTQ people. After Dan White shot and killed Harvey Milk, the first openly gay elected official in California, in 1978, his lawyer infamously claimed that White was unstable and had “diminished capacity”—partly because he ate too much junk food. It’s a tactic now reviled as “the Twinkie defense,” and it worked: White, who also shot San Francisco’s mayor to death, served just over five years in jail for the two deaths.