U.S. Sen. Ed Markey (D-Mass.) and U.S. Rep. Chris Pappas (D-N.H.) introduced legislation on Monday that would prohibit all U.S. federal courts from allowing use of the LGBTQ panic defense, a legal tactic that has been banned in 16 states and D.C.
In criminal trials involving violent crimes against LGBTQ people, the so-called “gay panic,” “trans-panic,” or more broadly, “LGBTQ panic” defense is raised to argue for more lenient sentencing or otherwise in an attempt to lessen the defendant’s culpability in the eyes of a judge or jury.
These types of arguments, which are widely considered outdated and offensive, both exploit and work to perpetuate homophobia and transphobia in the criminal justice system, the lawmakers said in a press release Monday announcing their bill.
Markey and Pappas noted LGBTQ panic defenses have been used in criminal law for decades, perhaps most famously after the 1998 murder of gay college student Matthew Shepard. During trial, counsel for the defense argued their client was triggered by an unwanted sexual advance by Shepard.
The case would galvanize calls to take action against bias-motivated violence, eventually leading to Congress’s passage in 2009 of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.
Nevertheless, use of LGBTQ panic defenses has persisted. The lawmakers noted a prominent recent example with the 2019 prosecution of the man who murdered 17-year-old Washington teen Nikki Kuhnhausenthe. Law enforcement noted during trial that the defendant was “shocked,” “uncomfortable” and “disturbed” upon learning Kuhnhausenthe was transgender.
The LGBTQ panic defense “is not only antiquated, but actively legitimizes violence against the LGBTQ+ community and encourages homophobic and transphobic bigotry within our legal system,” Markey said.
“No one’s sexual orientation or gender identity is a defense for assault or murder,” Pappas said, “and it is time Congress follows the lead of states that have already banned this defense in their courts.”
The lawmakers also highlighted the pervasive problem of violent crimes targeting LGBTQ people, highlighting statistics compiled by the country’s largest LGBTQ advocacy organization, the Human Rights Campaign.
HRC has recorded more than 256 cases of fatal violence against trans Americans, more than 80 percent of whom were people of color. Last year, according to the organization, at least 38 trans people were killed in the U.S., the majority of whom were trans women of color.
Markey also introduces gender-affirming care bill
Also on Monday, Markey introduced the Gender Affirming Care Access Research for Equity (CARE) Act, a bill that would authorize federal health authorities to research barriers to gender affirming health treatments and study the consequences of gaps and disparities to access.
The legislation would provide for the annual allocation of $25 million over five years for the National Institutes of Health and the U.S. Centers for Disease Control and Prevention. It comes in response to efforts by lawmakers in conservative states to restrict their trans residents’ access to medically necessary care, Markey noted, with 20 states passing bans targeting youth so far this year.
“Trans health is health, and health care is a human right,” he said. “We have a moral obligation to protect, defend, and expand the fundamental right for transgender and nonbinary people to get the care they need despite the tremendous legal, financial, and social barriers they too often face when accessing their health care.”
According to a press release from Markey’s office, cosponsors for the bill include Democratic Sens. Alex Padilla (Calif.), Mazie Hirono (Hawaii), Elizabeth Warren (Mass.), Peter Welch (Vt.) and Jeff Merkley (Ore.)
At the end of March, Markey introduced the Trans Bill of Rights with U.S. Rep. Pramila Jayapal (D-Wash.), whose provisions include ensuring the community’s access to necessary medical care. The same day, Markey and other Democratic senators sent a letter urging President Joe Biden to shore up federal protections for trans Americans’ access to gender affirming care and health providers administering this care who are “facing threats of violence and limits on their ability to provide care.”
Additionally, last year the Massachusetts senator issued a letter to the U.S. Department of Justice, the U.S. Department of Health and Human Services, and the U.S. Drug Enforcement Administration, urging them to “lift barriers to testosterone and expand access to gender-affirming hormone therapy for transgender people, including transgender men and transmasculine nonbinary people.”