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Gay and trans panic defenses still legal in Arizona despite efforts to ban them

The legal strategy that asks juries to consider sexual orientation and gender identity of victims has not been banned in Arizona. Students and professors think it should be


Arizona has not banned the gay and trans panic defenses, a legal strategy that claims the victim's sexual orientation is to blame for the defendant’s actions. Illustration originally published Thursday, Oct. 28, 2021.

The American Bar Association issued a unanimous resolution in 2013 calling on U.S. states to ban the gay and trans panic defenses, defined by the LGBT Bar as "a legal strategy which asks a jury to find that a victim's sexual orientation or gender identity is to blame for the defendant's violent reaction, including murder."

Since the ABA released its recommendation, 15 states and Washington, D.C. have banned the gay and trans panic defenses from courtrooms. Arizona is not one of them. This month, the state of Maryland eliminated the defenses in murder cases.

So far, the bans have been enacted by mostly Democratic states, but over the last year, bills to ban the gay and trans panic defenses have been introduced in swing states like Florida and Pennsylvania, and Republican states like Texas.

In April 2021, Democratic Sen. Ed Markey and Rep. Chris Pappas, from Massachusetts and New Hampshire, respectively, introduced federal legislation to ban the gay and trans panic defenses on the federal level. It was referred to committee, but hasn't gone up for a vote. A similar bill was introduced in 2019, but died in committee.

Rep. César Chávez (D-Phoenix), a member of Arizona's LGBTQ caucus who is running for a state senate seat, said Democratic attempts to ban the gay and trans panic defenses in the Arizona Legislature have been unsuccessful.

"Any bill that is usually introduced by a member of the Democratic Party has automatic opposition, being that the GOP is the Majority. It is unfortunate that we cannot provide equitable solutions to our communities because of party division," Chávez said in an email.

However, Chávez said banning the gay and trans panic defenses is a priority for the LGBTQ caucus.

"We will continue to fight for LGBT+ inclusive policies in every aspect until we accomplish success. These policies are non-negotiable, and we hope that more of our conservative friends take a look at polls that indicate that pro-LGBT+ policies are accepted by the greater majority of Arizona's citizens," Chávez wrote in the email. 

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The defense was most famously used after Matthew Shepard, a 21-year-old gay man, was tortured and murdered by two men in Wyoming. One of Shepard's killers attempted the gay panic defense in hopes of receiving a reduced sentence. The judge rejected the defense.

Marlon Bailey, an associate professor at ASU's School of Social Transformation, said the gay and trans panic defenses are evidence of "structural homophobia" because they remove accountability from those who commit anti-LGBTQ+ hate crimes.

"The intent is to protect homophobia and protect those folks who engage in homophobic behavior and homophobic violence and to criminalize gay people, and queer people, for just being," Bailey said.

Bailey also criticized states like Arizona that have not banned the gay and trans panic defenses and said some Republican lawmakers don't want to address it.

"They don't want to alienate their homophobic constituents," Bailey said. "Let's just be crystal clear, this is a homophobic law."

One 2020 study found that since 1970, two Arizona defendants had attempted to use the gay and trans panic defenses to reduce their sentences or receive acquittal. The same study found almost one-third of defendants nationwide who used the gay and trans panic defenses had their charges reduced. 

The Department of Justice reported in 2020 34 hate crimes were committed on the basis of sexual orientation and eight hate crimes were committed on the basis of gender and gender identity in Arizona. No hate crimes have been reported on ASU's campuses in the past three years.

READ MORE:  Clery Report: Crime across ASU decreased in 2020

Victoria Choate, a first year law student at ASU's Sandra Day O'Connor College of Law represents other first year students through OUTLaw, an organization for LGBTQ+ ASU law students. They said ASU students still experience homophobia and hate crimes even though they may not be reported. However, Choate said banning the gay and trans panic defenses could send a message to Arizonans and ASU students that homophobia won't be tolerated.

"(Banning the gay and trans panic defenses) is important to send messages to students that the state and their schools care about issues of sexual discrimination," Choate said. "That is the bare minimum that should be done."

 OUTLaw is not planning any events to address the gay and trans panic defenses at this time. 

ASU provides various resources for LGBTQ+ students, including the Out@ASU website, where information about LGBTQ+ clubs, counseling and crisis hotlines are available.

Madelaine Adelman, a professor from ASU's School of Social Transformation, said it is important for Arizona LGBTQ+ rights activists to ban the defense.

"What a society criminalizes (or not) sends a message about how we distinguish between acceptable and unacceptable behavior," Adelman said in an email. "The so-called gay/trans panic defense seeks to carve out an exception to behavior we have deemed unacceptable due solely to the identity or status of the victim. This is a repugnant and twisted use of our legal system."

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