States need to outlaw gay, trans panic defenses

California took another step toward providing equal rights and protections to its gay and transgender residents when Gov. Jerry Brown signed legislation on Sept. 29 that outlawed gay and trans panic legal defenses in the state.

Gay and trans panic are legal defenses sometimes used in hate crime cases that do not dispute a defendant’s guilt but aim to reduce sentencing by arguing that the defendant’s actions were motivated by an uncontrollable fear of unwanted sexual advances from someone of the same sex.

California is the first state to enact such a law, making it notably one of the more LGBTQ-friendly states. The legislation to outlaw the defense strengthens California’s reputation as an equality state—it is among the 19 states that recognize same-sex marriage—but the issue still exists in other states.

Despite some progress, there are still 49 more states in which gay or trans panic is a legal defense for attacking or killing a gay and transgender person. While it does not negate the fact that offenders committed the crime, gay or trans panic defenses enable bigoted individuals to physically manifest their hatred while mitigating the victim’s or the victim’s family’s ability to fully pursue justice. This injustice is often exhibited in cases during which the accused try to lodge the defense.

In 2008, a middle school boy in California shot a classmate twice in the head because he claimed he felt threatened by the classmate’s alleged flamboyancy. The shooter claimed gay panic during his initial trial in which he faced first-degree murder charges but pleaded guilty to second-degree murder and voluntary manslaughter following a hung jury in the first trial, according to a Sept. 28, 2011 Huffington Post article.

Even more heinous is a 2009 case in which a Hoffman Estates, Illinois man stabbed a man 61 times and was acquitted after using a gay panic defense.

The validity of the defense is more than just offensive—it is also widely disputed by those in the legal profession. The American Bar Association, a professional trade organization for lawyers, has urged lawmakers to draft legislation similar to California’s since Aug. 12, 2013.

A majority of the problem stems from the fact that sexual orientation and gender identity are not always considered protected classes, which makes it easier for less tolerant states to allow the gay or trans panic defense to hold in court. This can be seen in how states protect LGBTQ individuals’ employment and also how they classify hate crimes, which is largely left to the states to define.

Only 45 states have defined anti-hate crime laws. Classifications such as race, gender and religion are largely protected while sexual orientation and gender identity seem to be considered a subclass by some states.

Only 30 states have laws that designate crimes motivated by bias against sexual orientation as hate crimes and therefore are subject to the heightened sentencing often attached to such an offense. Trans panic is more widely accepted by the justice system with only 15 states including gender identity in their hate crime laws, according to the National Gay and Lesbian Task Force.

According to the American Civil Liberties Union, 21 states consider sexual orientation a protected class. Gender identity—a term often used to encompass the trans spectrum—is only protected in 18 of those states.

While the LGBTQ population is making massive strides in equality, such statistics are indicative of the hurdles and discrimination that LGBTQ individuals still face.

The idea that someone can justify attacking another person because he or she is afraid of that person’s sexual orientation is ludicrous and an intolerable double standard. A straight person could not attack someone of the opposite sex and claim that the fear of the heterosexual norm initiated an uncontrollable fear.

It seems more believable that LGBTQ people have more to fear from their straight counterparts. According to the Human Rights Campaign, at least one hate crime occurs per hour, and since Nov. 13, 1997—the date that saw the passage of the first anti-hate crime bill—there have been 13,528 hate crimes based on sexual orientation.

California is acting as a trailblazer for the fight against gay and trans panic, but other states need to follow suit. At a time when the LGBTQ population is seeing equality, it is essential to dismantle legal practices that threaten that equality.