Breaking Down States Where a ‘Trans Panic’ Defense Is Not Illegal

Claim

Fewer than ten states in the U.S. have enacted bans against the use of "trans panic" legal defenses.

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A graphic posted on a transgender-oriented website’s Facebook page does, for the most part, illustrate a particular form of transphobic courtroom discrimination.

The post by “TransMusePlanet,” which has been shared more than a thousand times since it was published on September 30 2019, displays a map of the United States with most of the states highlighted, along with a caption explaining that they represent states “where it is legal to argue that a trans woman is responsible for your decision to murder her”:

The chilling explanation is a description of what has classically been called the “trans panic” defense, a variation of the term “gay panic.” The National LGBT Bar Association also describes the tactic as “LGBTQ+ Panic.”

The American Bar Association reported that legal defense teams continue to use “gay panic disorder” as a defense even though the American Psychological Association had debunked it as a legitimate condition:

It must be noted that gay/trans panic is not an affirmative legal defense; it is a tactic to strengthen the defense by playing on prejudice. It has, however, been used to not only explain a defendant’s actions, but to excuse them as well.

Typically, the defense has three variations: defense of insanity or diminished capacity, defense of provocation, and defense of self-defense. The insanity or diminished capacity defense argues that the victim’s sexual orientation or gender identity is to blame for the defendant’s break down into a panic. The provocation defense argues that the victim’s proposition of a “non-violent sexual advance” could be sufficiently provocative to induce the defendant to kill them. The final variation, of self-defense, claims that because of the victim’s sexual orientation or gender identity, the victim must have been about to cause the defendant serious bodily harm.

The TransMusePlanet post itself is mostly accurate compared to a similar graphic published by the LGBT Bar. However, the latter group’s map reflects the passage of a bill in Connecticut banning the “gay panic” defense in June 2019.

Currently, Connecticut and seven other states — California, Illinois, Rhode Island, Nevada, Maine, Hawaii, and New York — have enacted bans against LGBTQ+ “panic” defenses; similar bills have been introduced in Minnesota, New Jersey, New Mexico, Pennsylvania, Texas, and Washington, as well as the District of Columbia.