The crisis of violence against transgender people in 2017 and the need to end the use of “panic defenses” in 2018

LGBT people have always faced disproportionately high rates of violence. And our estimates are likely low, given that many incidents of anti-LGBT hate violence go unreported.

As Brooke Sopelsa and John Paul Brammer note in NBC OUT:

The number of hate crimes committed in the U.S. rose 5 percent in 2016, compared to the year before, according to data gathered from local law enforcement agencies by the FBI. The data, which was released in November, found an increase in hate crimes against the LGBTQ community in 2016 compared to the previous year. Of the 7,615 known hate crime victims, 1,255 of them were targeted due to sexual-orientation bias, accounting for nearly one in six hate crime victims. The number of victims targeted due anti-transgender bias also increased — from 76 in 2015 to 111 in 2016.

More transgender people were the murdered in 2016 in the United States than in any other year since 2010. The deaths were overwhelmingly people of color.

Because of Mic’s new database that tracks the lives of transgender and gender nonconforming people who die violent deaths, we know:

Fully 75 percent of the trans and gender-nonconforming Americans killed because of their identities since 2010 were Black women.

As the Anti-Violence Project observes in the #ValueTransLives campaign:

“We’re facing a crisis of violence against transgender people in our country.”

According to AVP, at least 28 transgender and gender-nonconforming people have been killed in 2017.

Once again, these numbers are likely low as Colorlines observes:

“And the recorded numbers are likely not truly reflective of the lives that have been lost. Transgender people are often misgendered both in life and death, whether by families who reject their identities or law enforcement officials who are not trained to properly record them.”
Illustration: Mic

Back in 2013, my Lambda Legal colleague and I wrote about the death of a young transgender woman, Islan Nettles, who died as a result of injuries inflicted during a brutal attack.

Islan’s attacker shouted anti-trans and antigay slurs at her and punched her repeatedly in the face — over and over and over again — even after he had already knocked her to the ground. Islan was 21 years old when her mother, Delores, faced a parent’s nightmare of having to decide whether to remove her child from life support. Delores vows, “I want my baby to get justice. Police are investigating the incident as a hate crime.
Islan Nettles

As former FBI Director James Comey said about the impact of hate crimes in a 2014 speech before the Anti-Defamation League:

“Hate crimes are different from other crimes. They strike at the heart of one’s identity. They strike at our sense of self, our sense of belonging. The end result is loss: loss of trust, loss of dignity and, in the worst case, loss of life.”

As I noted when writing about the murder of Islan Nettles, some reports thought it pertinent to add that Islan’s killer had “made a pass” at her and was “shocked” and “humiliated” when he learned (in some unspecified way) that Islan was transgender — supposedly prompting the attack.

“Wait, what?” you might wonder. “Why is that relevant?” It is not. But in the past, those accused of killing other people who are transgender have tried to escape justice by blaming their victim — asserting that the discovery of their victim’s gender identity or sexual orientation justified the attack. Blame-shifting efforts like these have happened frequently enough that they have names: “gay panic” and “trans panic.” Neither “gay panic” nor “trans panic” is officially a defense to murder, but the terms describe defense strategies that try to bolster claims of insanity, self-defense and provocation.

While the use of the so-called “gay panic” and “trans panic” legal defenses are by no means common, they have been invoked with some success. According to the Williams Institute:

“Since the 1960s, the gay and trans panic defenses have appeared in court opinions in approximately one-half of the states.

The numbers tracking the use of gay/trans panic defenses are low given that the Williams Institute can only count what appears in court opinions.

One of the most well-known instances where the gay panic defense was used (for those of us who remeber the 1990’s) came from The Jenny Jones Show. As I explained:

In 1995, lawyers for Jonathan Schmitz claimed that “gay panic” caused him to shoot and kill his friend Scott Amedure because Scott had revealed that he had crush on Jonathan on The Jenny Jones Show. Three days later, Schmitz went to the bank, withdrew money for a shotgun, bought the gun, and then drove to Scott’s trailer and shot him twice in the heart. Despite that evidence, the jury acquitted Schmitz of first-degree (premeditated) murder, and convicted him of the lesser, second-degree, murder.

In 2013, the American Bar Association, with the support of the LGBT Bar Association, unanimously approved a resolution calling for state legislatures to ban gay/trans panic defenses. The Williams Institute also provides model legislation for a ban. California was the first state to ban them in 2014. Illinios became the second state this in 2017, when the Republican governor signed the bill.

Legislative action is called for. As the AP observed:

“Supporters plan to revive legislative attempts to ban what’s also known as the ‘trans panic’ defense, in statehouses in Washington and New Jersey, where proposals haven’t yet received committee votes. Advocates also hope to make inroads in New York, Maryland, Michigan, Minnesota and Texas.”

In 2018, it is essential that we commit to ending the murders of trans women of color, and do more to stop the hate crime epidemic. We have lost too many members of our community to anti-LGBT violence. One thing we in the legal community can do right now, is push for an end to harmful gay and trans panic legal defenses. This will help ensure that those who commit violent acts are unable to manipulate the anti-LGBT biases of the public to escape justice for their crimes.

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