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Tuesday, September 30, 2014

California's Ban on "Gay Panic" and "Transgender Panic" Is a Model for Other States

Posted By on Tue, Sep 30, 2014 at 8:49 AM

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After San Francisco Supervisor Dan White shot fellow Supervisor Harvey Milk and Mayor George Moscone in 1978, his attorneys put forth a novel argument. A former fitness fanatic, White claimed to be so depressed and so addled by a diet rich in junk food that he wasn’t fully in charge of his faculties. The so-called “Twinkie Defense” succeeded in obtaining a reduced sentence for White, but generated sufficient outrage for it to be a one-trick pony.

Another, more cruelly homophobic strategy went on to contaminate the legal system, however: the gay panic defense.
Simply put, gay panic is the notion that acts of violence are partly justifiable when a person’s all-consuming hatred for LGBT people causes them to go berserk or act with “diminished capacity.” It’s a heinous defense tactic that banks on a judge or jury’s own homophobia, apportioning some blame onto victims in order to get a murder charge downgraded to manslaughter. Leaning on a “heat of passion” line of thinking deliberately turns a trial into something out of a pulp novel. Gay panic benefits from anti-LGBT bias, and adds to it as well, by dredging up ancient stereotypes of gays as sexual predators who can’t be trusted not to curb their appetites.

And it’s still in use in America — even in California. As the Advocate noted, the 2011 murder trial of Brandon McInerney (who was 14 years old when he killed his classmate, 15-year-old Larry King, who may or may not have been transgender) used King’s flirtatious behavior as grounds for reducing the charges. It led to a mistrial when the jury couldn’t reach a verdict, and McInerney’s attorney succeeded in changing his plea to second-degree murder and involuntary manslaughter. Appalling as it sounds, “gay panic” works — insofar as its sole purpose is to muddy the waters.

But it's no longer a justifiable defense in Golden State courtrooms, since Assemblymember Susan Bonilla (an East Bay Democrat) has pushed a bill banning both gay panic and transgender panic as legal defenses through the legislature. Gov. Jerry Brown signed AB 2501 into law over the weekend, continuing to put the state at the forefront of LGBT rights.

The transgender half is unquestionably the more progressive part. No one knows how many transwoman are attacked each year, but activists for sex workers claim it’s woefully common. Anti-trans animus, while seemingly declining, is very real, and the twisted logic of “She’s really a he, so I freaked out!” sounds plausible to many people.

This law will do good.

Even if AB 2051 might appear partly symbolic, as with accurate school textbooks, emissions standards and allowing trans students to use the restroom of their choice, California law inevitably has a lot of clout. The hope is for other states to adopt it as a model and stamp out this grotesque avenue by which justice can be thwarted. 

As with the recent gay-bashing in Philadelphia that drew attention to Pennsylvania’s outdated hate crimes law, sometimes it takes a brutal act to put change into place.

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About The Author

Pete Kane

Pete Kane

Pete Kane is a total gaylord who is trying to get to every national park before age 40

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