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Six years after ABA resolution, end of the ‘gay/trans panic’ defense still a long way off

Pride Parade
A marcher carries a combination of the rainbow flag and the American flag in the Washington, DC Capital Pride Parade on June 9.

It’s no secret that June is LGBTQ+ Pride Month. Pride celebrations are occurring every weekend across the United States, and the world. Here in Omaha, 32 of the 34 American flags that line the ConAgra campus downtown have been replaced with rainbow flags in solidarity.

Thanks to artist Gilbert Baker, the rainbow flag, which he created in 1974 at the request of openly gay San Francisco City Supervisor Harvey Milk, has become the international symbol of the LGBTQ+ community. It can be seen to represent diversity being united together, a symbol of peace or new beginnings after a storm. More importantly, however, Baker saw it as symbol of a tribe and noted how flags were about proclaiming power, as he proclaimed in a 2015 interview with the Museum of Modern Art (MoMA). He further said, “[The flag is] a way of proclaiming your visibility, or saying, ‘This is who I am!’ ”

But while we are celebrating society’s progression into continued acceptance of the LGBTQ+ community, there’s still work to be done.

To see how we got to where we are today, I want you to think about the following people:

What do these five people have in common? Those who were convicted of their murders tried to use gay/trans panic as a defense to their crimes. While this is not an exhaustive list of victims, they are some of the most well-known.

I’m sure you may be asking, what is gay/trans panic defense? It’s a “strategy” where a defendant claims they acted in a state of violent temporary insanity as a result of a sexual advance by someone who identifies gay or trans.

To date, only fourstates have passed legislation prohibiting this defense from being used by defendants.

In 2006, then-governor of California, Arnold Schwarzenegger, signed that state’s act. This law allowed parties to request, “the court instruct jurors not to allow bias based on sexual orientation, gender identity or other protected bases to influence their decision.”

California followed up in 2014 with Assembly Bill 2501, which was co-sponsored by current senator and Democratic presidential candidate Kamala Harris, who was the Attorney General for California at the time. This law prohibits the use of the gay/trans panic defense to downgrade a murder charge to manslaughter.

At the close of the 2013 Annual Meeting, the American Bar Association passed Resolution 113A, in which the House of Delegates urged, “. . . federal, tribal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the ‘gay panic’ and ‘trans panic’ defenses. …” This same resolution also recommended that courts, when asked, instruct juries to ignore a victim’s gender or sexual orientation in deliberations.

Since the ABA passed Resolution 113A, Illinois, Rhode Island, Nevada, and Connecticut have followed the recommendation of the ABA in advancing legislation prohibiting gay/trans panic.

In 2017, Illinois passed Public Act 100-0640, which prohibits a non-violent sexual advance or the discovery of a person’s gender or orientation from being used as a mitigating factor relevant to the imposition of the death penalty in first-degree murder.

Rhode Island amended a section to their General Laws titled “Trial” in 2018, which provides that the discovery of a person’s gender or orientation does not present “objectively reasonable conditions for a sudden quarrel or heat of passion, reduce mental capacity, or justification of force for a crime.

My home state of Nevada just passed Senate Bill 97 in May. The bill was introduced by Nevada Youth Legislature Chair and Coronado High School Valedictorian Olivia Yamamoto, whose friend was killed by his father for being gay.

Currently, Hawaii and Connecticut both have laws that have passed legislature banning use of the gay/trans panic defense and are just awaiting final signatures. Another five states – Maine, New Mexico, New York, Texas, and Washington – have introduced legislation against gay/trans panic for consideration in 2019.

On the federal level, Sen. Edward Markey (D-Mass.) and Rep. Joseph Kennedy III (MA-04) have reintroduced the Gay and Trans Panic Prohibition Act, which would prevent use of the defense in federal court.

Additionally, 16 states have enacted bans on conversion therapy while another 10 states plus the District of Columbia offer gender-neutral identification options. Several law schools such as Emory, Columbia, University of North Texas at Dallas, Cornell, and NYU – to name a few – offer LGBTQ+ legal clinics. (I ran an (admittedly) unscientific poll on Twitter, which garnered 59 votes, and found that 90% say their school offers a LGBTQ+ student organization on campus.)

In a time where 17% of all hate crime victims are targeted due to their gender or orientation and the murders of transgender women in Dallas headline the national news, the country, its lawmakers, law schools, and law students are making great strides towards equality and inclusivity.

So, as the nation and the world continue to celebrate the LGBTQ+ tribe and their proclamation of power, remember that the rainbow is the calm after the storm. We are getting there. We are moving forward. Let’s continue to do so by working together to see that ABA Resolution 113A becomes a reality in all 50 states.

Want to get involved, but not sure how? Check out the LGBT Bar. There, you can find out how to help and even find out if your school is part of their affiliate program. As John Krasinski said in his commencement speech at Brown University, “Before you do something special, do something.”

Jessica Gilgor Jessica Gilgor is a 3L at Creighton University School of Law. A native of Las Vegas, she graduated from the University of Nevada Reno, where she studied Professional Chemistry and minored in Physics. Jessica was a part-time sports journalist for the United States Bowling Congress during their Open Championships tournament under the tutelage of Matt Cannizzaro and Aaron Smith.