Gay and Trans “Panic Defenses” Banned in New York

ORLANDO, USA - MAY 05, 2017: Place where Omar Mateen, killed 49 people and wounded 53 others in a terrorist attack hate crime in a gay nightclub in Orlando, Florida, United States.

New York lawmakers passed a groundbreaking bill this week that will ban the use of gay and trans panic defenses. The criminal defenses have been used against the LGBTQ community as a way to circumvent the law and justify murder crimes.

Daniel J. O’Donnell sponsored the bill. The Democrat, who is openly gay, sponsored Assembly Bill A2707 which prohibits defendants from using a person’s gender expression, identity or sexual orientation as a criminal case defense.

“The legal strategy known as a ‘gay panic’ or ‘transgender panic’ defense has been used for decades to justify violent crimes,” according to Tsion Chudnovsky, a prominent criminal defense lawyer at Chudnovsky Law. “Basically criminal defense attorneys have used the idea that accused murderers acted in a state of ‘temporary insanity’ caused by the victim’s gender identity or sexual orientation.”

A study by the Williams Institute at UCLA School of law found that panic defenses originated from psychologists’ theories that same-sex attraction or gender identity are mental illnesses. The study authors drafted model legislation in 2016 that formed the foundation for New York and other state’s new laws.

New York Governor Andrew Cuomo took to Twitter to praise lawmakers and congratulate the LGBTQ community. “With the enactment of this measure we are sending this noxious legal defense strategy to the dustbin of history where it belongs. This is an important win for LGBTQ people everywhere,” he tweeted.

Cuomo has been a strong supporter of the LGBTQ community over the years, supporting gender identity. He signed into law acts that would stop discrimination against a person’s gender identity, too.

Gay and transgender defenses have been in use since the 1960s, with more than half of the states in the United States allowing the practice for over 50 years. The case of Islan Nettles is one of the most common examples, and the case took place in New York.

Nettles was a transgender woman that was beaten to death in Harlem. James Dixon beat Nettles to death after finding out that she was a man. He claimed that Nettles provoked him and that he didn’t want to be fooled.

He claimed that his pride was at stake during a taped confession.

Dixon would go on to accept a deal that would put him behind bars for just 12 years. Many in the LGBTQ community claim that the sentence was far too lenient.

New York’s new law would not allow a repeat of the Dixon case. Lawmakers claim that defense attorneys will no longer be able to weaponize a person’s LGBTQ identity like they have in the past.

Since the American Bar Association passed a resolution in 2013 urging lawmakers to ban these panic defenses, states have begun taking action. The push to ban panic defenses across the country has been steadily building momentum.

Gay trans panic defenses have been now banned in eight states including: California in 2014, Illinois in 2017, Rhode Island in 2018, Connecticut, Hawaii, Nevada, Maine and now New York in 2019. Similar legislation has been introduced, but not yet passed in an additional seven states.

The status of gay trans panic defense legislation throughout the United States can be seen here on this interactive map.