Yes, the gay and trans ‘panic’ defense is still legal in a majority of states

The LGBTQ+ panic defense is when a defendant argues that the victim’s sexual orientation or gender identity/expression justified their violent actions.

In May 2022, former Virginia Tech football player Isimemen Etute was found not guilty of second-degree murder in the 2021 death of Jerry Smith, a gay man who Etute initially believed to be a woman based on Smith’s Tinder profile.

People online claimed it appeared that Etute had used the gay or trans panic defense, which is a legal defense that claims a victim’s sexual orientation or gender identity/expression is to blame for a defendant’s violent reaction. 

In response, a tweet with hundreds of shares claims that “the gay/trans panic defense isn’t banned in the overwhelming majority of states.” 

THE QUESTION

Is the gay and trans panic defense still legal in the majority of U.S. states?

THE SOURCES

LGBTQ+ Bar

American Bar Association (ABA)

UCLA School of Law’s Williams Institute

Movement Advancement Project (MAP)

W. Carsten Andresen, Ph.D., St. Edward’s University criminal justice professor who conducted a study on LGBTQ+ panic defenses over 20 years

Ashley Korslien, anchor and reporter for television station KGW who produced the “Should Be Alive” podcast, which explores the murder of a transgender teen that inspired a LGBTQ+ panic defense ban in Washington state

THE ANSWER

Yes, the gay and trans panic defense is still legal in a majority of states.

WHAT WE FOUND

The gay and trans panic legal defense is a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity/expression is to blame for a defendant’s violent reaction, including murder, according to the LGBTQ+ Bar, an association of legal professionals and organizations that promote justice for the LGBTQ+ community. The LGBTQ+ Bar refers to this as the “LGBTQ+ panic” defense to include violence against LGBTQ+ people who do not identify as gay or transgender.

No state recognizes the LGBTQ+ panic defense as a free-standing defense, the UCLA School of Law’s Williams Institute, a research center on sexual orientation and gender identity law and public policy, said in a 2021 report. Instead, the Williams Institute report and the American Bar Association (ABA) say the LGBTQ+ panic defense is used to bolster the defendant’s defense claim. 

There are three defenses the LGBTQ+ panic defense is paired with:

Defense of insanity or diminished capacity: argues that the victim’s LGBTQ+ identity is to blame for the defendant’s breakdown into a “panic”

Defense of provocation: argues the victim’s proposition of a “non-violent sexual advance” provoked the defendant to kill them

Self-defense: claims that because of the victim’s LGBTQ+ identity, the victim must have been about to harm the defendant

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