1 in 5 LGBTQ+ people will experience a hate crime over the course of their lives. That number becomes 1 in 4 when discussing transgender people. This means that in my friend group, at least one or two people will experience a hate crime. Unfortunately, there is a law in most states—38 specifically—that can potentially protect the perpetrators of violent hate crimes. In those 38 states, it is completely legal to cite a legal defense officially called the “Gay/Trans Panic Defense.”
Though the title of the defense suggests specificity to members of the LGBTQ+ community who identify as gay and/or trans, it can be used against anyone, and that includes individuals who identify as straight or cisgender. The way the defense is written allows it to be cited in cases where the defendant assumes the victim’s identity or believes them to be something they are not.
The “Gay/Trans Panic Defense” has three subsections to which a defendant can claim that their violent actions, often murder, was justified. The first clause of the defense is known as “Defense of Insanity or Diminished Capacity,” which “argues that the victim’s sexual orientation or gender identity is to blame for the defendant’s breakdown into a panic.” This clause is based on an incredibly outdated, debunked psychological term that suggests the inherent wrongness of homosexuality. The term, “homosexual panic disorder,” was removed from the Diagnostic and Statistical Manual of Mental Disorders in 1973 after its first edition.
Perhaps one of the most violent cases associated with this defense is the murder of Terrance Hauser. Hauser was murdered by Joseph Biedermann, who lived in the same apartment building. Biedermann went back to Hauser’s apartment after having a few drinks with him. Biedermann claimed that he passed out and woke up to Hauser above him with a sword to his neck. Biedermann managed to get the weapon and stabbed Hauser 61 times. Evidence that surfaced during the trial made it clear that Biedermann had the upper-hand in the altercation, and even if his actions began as self-defense, stabbing a man 61 times without hesitation is overkill. Though Biedermann claimed the self-defense clause of the “Gay/Trans Panic Defense,” his obvious violent spiral was tied to “homosexual panic.” Biedermann was acquitted for the brutal murder of Hauser; he received no charge for butchering a man, and that just further proves the insanity of this legal defense.
The second variation of the “Gay/Trans Panic Defense” is called “Defense of Provocation,” and it allows a defendant to argue that the victim’s proposition of a “non-violent sexual advance” was provocative enough to justify murdering the victim. A phrase like this would never appear in United States law in reference to straight/cisgender people. In fact, multiple women who kill their rapists and abusers for violent sexual advances are arrested for murder every year. If killing a gay or trans person is justified because they looked at their murderer flirtatiously, why is rape not a justifiable reason to kill an abuser? This brings up the commonly perceived notion that anything relating to the LGBTQ+ community is provocative and/or gross.
A 17-year-old transgender girl named Gwen Araujo was murdered by four men who claimed the “Defense of Provocation.” The four men, Michael Magidson, Jaron Chase Nabors, Jose Morel, and an unnamed man, strangled and beat her to death in 2002 at a house party after discovering that Araujo was transgender. All four were arrested, but were not charged with first-degree murder. They claimed the “Gay/Trans Panic Defense” in court in an attempt to keep themselves out of jail, and it succeeded in lowering their sentences. Despite their transphobic, demeaning, violent actions, the California legislature passed a bill called the Gwen Araujo Justice for Victims Act that forbade juries from making decisions about cases based on the victim’s sexual orientation or gender identity.
Some cases where the defense is invoked do not take it into consideration. In 1998, Matthew Shepard was robbed, kidnapped, and murdered by Russell Henderson and Aaron McKinney. The two men picked Shepard up at a gay bar in Laramie, Wyoming, and took him to a remote location outside of Laramie. They brutally pistol-whipped Shepard and tied his naked body to a prairie fence in the freezing temperatures. Before leaving him there, they lit him on fire. Shepard was found by mountain bikers, and his body was so unrecognizable that they originally thought he was a scarecrow. McKinney attempted to use the “Gay/Trans Panic Defense” during his trial, saying that Shepard’s actions/advances disgusted him. He was fortunately unsuccessful.
The third defense is “Defense of Self-Defense.” This section of the “Gay/Trans Panic Defense” states that a defendant can claim that they believed a victim was about to cause them “serious bodily harm” because of their sexual orientation or gender identity. This part of the defense perpetuates the idea that living as a queer person is a threat to the safety of straight/cisgender people.
The fact that the defense exists is upsetting enough, but what’s worse is that it is often used in an attempt to lessen the charges for the defendants, regardless of how severe or violent their crime was. Though most of the cases it has been invoked in have not lowered charges for the defendant, it happens too often.
The murder of 32-year-old Daniel Spencer is one of the most well-known cases in the United States where the defendant’s sentence was lightened after invoking the “Gay/Trans Panic Defense.” Spencer was murdered in 2015 after inviting James Miller to his house one night. Miller alleged that Spencer tried to kiss him, which he rejected. Miller’s rejection reportedly made Spencer angry, and Miller killed Spencer by stabbing him in self-defense. Reports about the case were released, and the prosecutor stated that Spencer was the victim in this situation.
However, Miller was convicted of criminally negligent homicide, a lesser charge than manslaughter or murder. On top of the light charge, Spencer’s family and friends testified that he identified as heterosexual, which raises the question: how does the defense work if it includes people who aren’t part of the LGBTQ+ community?
It does not work. Thousands of LGBTQ+ people are hate-crimed every year, and account for 18.8% of total hate crimes in the United States, according to the FBI. There were 1,656 incidents of hate crimes on the basis of sexuality or gender identity in 2019 out of a total of 7,103 “single-bias incidents.”
If the violence statistics were not polarizing enough, the list of states with full protection for LGBTQ+ individuals is short and gets shorter when discussing rights for LGBTQ+ youth. As of April 2021, only these states/districts have effectively banned the “Gay/Trans Panic Defense”: California (2014), Illinois (2017), Rhode Island (2018), Nevada (2019), Connecticut (2019), Maine (2019), Hawaii (2019), New York (2019), New Jersey (2020), Washington (2020), Colorado (2020), District of Columbia (2020), and Virginia (2021).
LGBTQ+ individuals fear for their safety and their lives because the world we live in has made it very clear that it does not value queer lives. Our modern country claims freedom for all, but my friends and millions of other Americans have a 20% chance of getting hate-crimed because of something they cannot control. In what world is that freedom? In what world is that equality? The violence has to end, the justification of violence has to end. There is no excuse for this defense to still be a part of the law in any state. We have to put an end to it before more LGBTQ+ are slaughtered without serious repercussions.
Approximately 18.4 million Americans identify as LGBTQ+, so even if you do not know it, this defense could be used against your loved ones next.
For more information on the cases and statistics and how you can help, visit these sources: