Democrats introduce federal bill to ban the LGBTQ+ panic defense

Congressional Democrats introduced a federal bill to ban the gay and trans panic defenses in federal courts earlier this week. The LGBTQ+ panic defense is a legal defense strategy used to justify violent crimes against LGBTQ+ people due to “panic” over their sexual orientation or gender identity.

Out Rep. Chris Pappas (D-NH) in the House and Sen. Ed Markey (D-MA) in the Senate introduced bills on Monday to ban the LGBTQ+ panic defense.

Related:

Virginia banned the gay/trans panic defense on the Transgender Day of Visibility

It’s the 12th state to ban defendants from arguing they “panicked” when they found out their victim was LGBTQ.

“No one’s sexual orientation or gender identity is a defense for assault or murder, and it is time Congress follows the lead of states that have already banned this defense in their courts,” Pappas said.

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“Members of the LGBTQ+ community, particularly trans people of color, are facing ongoing, escalating, and intensifying violence emboldened by hateful actions and speech by elected officials at every level of government,” said Markey. “This so-called defense is not only antiquated, but actively legitimizes violence against the LGBTQ+ community and encourages homophobic and transphobic bigotry within our legal system. The LGBTQ+ Panic Defense Prohibition Act will stop courts from sanctioning violence against people based on who they are and who they love. It is a necessary step forward—LGBTQ+ people deserve to be treated with dignity and respect.”

The LGBTQ+ panic defense has often been criticized as effectively having the defendant admit to committing a hate crime and then relying on stereotypes about LGBTQ+ people – often gay men and transgender people – to evoke sympathy with the judge and jury. Defendants can argue that their masculinity was threatened when a gay man hit on them or that the woman they had sex with was transgender, causing them to lose control as they panicked.

The defense has been used in several prominent cases. It gained national attention in a 1995 case where a gay man, Scott Amedure, told his straight friend Jonathan Schmitz that he was attracted to him on the Jenny Jones Show.

Three days later, Schmitz shot Amedure and turned himself in to police, and he argued in court that he was “embarrassed” on national TV. He avoided a first-degree murder conviction and was convicted of second-degree murder.

The use of the  “gay panic” became even more publicly discussed with the murder of Matthew Shepard, where his killers claimed that Shepard had “come on to” one of the duo. Similarly, the “transgender panic” defense gained notoriety in the 2004 murder of Gwen Araujo in Newark, California. 

Criminal justice professor Carsten Andresen told The Appeal that he has found over 200 cases that have used this defense in the last 50 years, though he suspects there are hundreds more.

“I describe it like carbon monoxide,” he said. “There’s a hazardous byproduct of putting out all these toxic ideas about gay people and other LGBTQ+ people — this idea that they’re predatory. It’s ridiculous.”

According to the Movement Advancement Project, no state allows the defense to be used on its own, but it is often used alongside other defense strategies as a way to advocate for leniency.

The bill comes a week after Democrats re-introduced the Equality Act in Congress. The Equality Act would add sexual orientation and gender identity to federal anti-discrimination legislation, banning anti-LGBTQ+ discrimination in numerous areas. It has been introduced since 2015 and it passed the House in both 2019 and 2021, but it has not been passed by the Senate.