Why America’s Call for LGBTQ Rights is Insincere

California is the only state in the United States to ban the “Gay Panic” defense.
California is the only state in the United States to ban the “Gay Panic” defense. Source: Wikimedia Commons

Recently, a couple walking on the street was brutally beaten up for being gay. Under the region’s laws, their attackers were charged with temperate laws as opposed to harsh ones because LGBTQ discrimination is not punishable by law. It might be surprising to find out that this incident took place in the United States and not, as one might expect, a less-developed country or a politically repressive regime. The “Philadelphia Gay Bashing Incident” brought light to the gaping loophole that exists in Philadelphia hate crime laws. This loophole is a drop in the bucket of the prevailing laws which outright target LGBTQ community members like “pro-homo” laws and the “gay panic” defense which was only recently banned in California. The existence of these laws demolishes the myth of a progressive America and highlights the hypocrisy of the American media’s stance on gay rights issues.

During the 2014 Sochi Olympics, there was a huge outcry from Americans and the mainstream liberal media over Russia’s anti-gay laws. There were questions raised about the decision to send American athletes to a country that has a law that states: “Propaganda of homosexualism [sic] among minors is punishable by an administrative fine.” However, no media outlet debated similar laws in America itself. For example, in Utah and Arizona teachers are forbidden from casting homosexuality in a positive light; the statutory code specifically outlaws the promotion or “advocacy of homosexuality” in schools. Arizona State has legislatively determined that it is inappropriate to even suggest to children that there are “safe methods of homosexual sex.” Alabama and Texas mandate that sex-education classes emphasize that homosexuality is “not a lifestyle acceptable to the general public.” Additionally, Alabama and Texas laws even mandate that children be taught that “homosexual conduct is a criminal offense” even though criminalizing private, consensual homosexual conduct has been unconstitutional since 2003. This occurs even in more liberal states like Illinois. In April, a bill to ban sexual orientation conversion therapy for children under 18 failed to pass the state house by 44-51. Conversations about these laws are fairly scarce and frequently overshadowed by conversations about homophobic laws abroad. While the mainstream media and politicians maunder on about the danger to the LGBTQ community in Uganda, laws like the “gay panic” defense exist in 49 states of America and  lead to lethal consequences.

“Gay Panic” or “Trans Panic” is a legally recognized defense for those charged with assault or murder based on the claim that their actions were the result of “violent temporary insanity” stemming from a psychological condition known as “homosexual panic” or “trans panic.” Psychiatrist Edward J. Kempf, in 1920, first described these conditions as panic induced by unwanted homosexual advances. “Trans panic” is similar to “Homosexual panic” in the sense that its users claim temporary insanity upon finding out a transgender person’s assigned sex. These “disorders” are not accepted by most psychiatrists and psychologists as they are not backed up by any scientific research, qualitative studies, or analysis. However, they are a fairly popular defense in cases involving a homosexual or transgender victims.Most recently, this defense was used in the 2011 murder trial of Brandon McInerney, the fourteen-year-old boy who shot and killed his fifteen-year-old classmate Larry King . McInerney claimed that Larry King’s flirtatious behavior and advances goaded him into committing murder. Using the “gay panic” defense, he successfully reduced his charges from second-degree murder to involuntary manslaughter. Part of the reason why McInerney was able to settle on a lower charge was because the jury could not reach a verdict, making the first trial a mistrial. Probably its most famous use was in the case of Gwen Araujo, an eighteen-year-old transgender woman who was beaten to death by a group of men back in 2002.  The perpetrators used “trans panic” as a defense in the proceeding trial that resulted in a deadlocked jury; however, in the second trial, two of the men were convicted of second-degree murder while the third was able to successfully plead  “no contest” to voluntary manslaughter and was sentenced eleven years in prison.

California Governor Jerry Brown approved Assembly Bill 2501 in September, banning the use of “gay panic” or “trans panic” defenses in court. By signing this bill into law, Governor Jerry Brown eliminated the use of “fear” and “panic” as a justifiable cause for murder. Introduced by Democratic Assemblywoman Susan Bonita, the bill cleared the state assembly 50-10. By passing this law, California was the first state in the United States to ban “gay panic” or “trans panic” as a defense against murder or assault. Andrew Pham, the PR director of ‘Barangay LA’, a Los Angeles based LGBTQ advocacy group said that, “It is our hope that [other] states follow suit and recognize the importance of fair treatment of people as individuals, and not as a lower or detrimental body based on how they self-identify.” This passage has been praised by LGBTQ groups, many calling it “landmark” and “historic” while acknowledging that there is still work to be done.

Indeed, this is a concise reflection of the fact that in 49 states “Gay Panic” is still a legal defense and there is no active effort to change this status. While President Obama has taken some action for equal rights, such as signing an executive order in July forbidding discrimination against federal employees who happen to be a member of the LGBTQ community, this civil rights movement is certainly holding its breath for more.