Gender, Sexuality, and Law: “Transgender Panic”

Harper Jean Tobin

Contributing Writer

Next Saturday, November 20, is Sixth Annual Transgender Day of Remembrance. Around the world, people will gather on that day to memorialize victims of anti-transgender violence. It is estimated that one trans person is killed in a hate crime every month. One such killing has grabbed many headlines over the last two years.

Seventeen-year-old Gwen Araujo was brutally slain in October of 2002 in Newark California. Three men were charged with her murder, with a hate-crime enhancement that could add four years to their sentences. The killing followed the men’s discovery that Araujo – who had had sex with two the accused men – was born male. Strikingly, the state’s position is that the crime is aggravated because it was motivated by prejudice – thus the enhancement – while the defense has framed this same motive as a mitigating factor, making the killing a provoked manslaughter.

This is a variation on what has become known as the “gay panic defense,” made (in)famous in the Matthew Shepard murder trial of 1999. There, the defendants claimed that an unwanted sexual advance from another man inspired such an irresistible fit of rage that the killers were not fully responsible for their actions. While the defense was barred in that trial because of a state statute, it was also unsuccessful in the trial of Jonathan Schmitz, who was convicted (in a retrial – don’t ask) in 1999 of the murder of an acquaintance who confessed a crush on him on a national talk show.

The “gay panic” defense in this form is easily dismissed: the law should not appear to countenance homophobia so virulent that it responds to mere words with violent acts. Indeed, the similarity to lynchings of Black men for coming on to White women is chilling. The defense in the Araujo case has an important difference: the defendants claim to have been provoked not by words but by the discovery that they had had “homosexual” sex with Araujo.

This “transgender panic” defense first arose in 1997, in the killing of transwoman Chanelle Pickett. The man accused of that crime was convicted of assault and battery prompting one journalist to quip, “When is a murder not a murder? When the victim is transsexual.” In the Araujo trial, however, the jury appears not to have been persuaded by the defense case; a mistrial resulted because they could not decide between first- and second-degree murder.

Legal commentators on the case have referred to these defense arguments as “machismo defenses,” and one newspaper columnist wrote that she resented the defense suggestion that female jurors ask themselves (in her own words), “to think like 24-year-old men who are in a state of arrested emotional development.” These “panic” defenses, somewhat like the defense of provocation by adultery, may amount to a legal imprimatur on men’s extreme fear of emasculation. Is this an “actor’s situation” we should consider?

And what about the “sexual deception” angle? This seems to imply that Gwen Araujo (whose named a court posthumously changed from “Eddie” at her mother’s request) was “asking for it” when she fooled around with young men who did not know she was transgendered. From a transwoman’s point of view, there may be nothing to disclose – she has always felt herself to be female – but even then one could anticipate that biological sex will matter a great deal to others.

Should society, or the law, expect individuals to disclose to their sexual partners anything that might upset them, and to refrain from doing so at their peril? Marital status? Beliefs about abortion? Criminal record? Bisexuality? Past relationship with your most hated enemy? Ohio law makes it a felonious assault not to tell a sexual partner you have HIV, no matter what sex acts you share or what precautions you take – and whether such an “assault” might constitute provocation in a homicide case is an interesting question. But perhaps the most fitting analogy is once again to racism: the bitter racist who discovers the woman he has slept with and believed to be White is actually biracial. Or, perhaps more fittingly, the racist who discovers his sister’s lover is biracial. Would the jury be asked to consider the reaction of the reasonable White-supremacist man?

Gwen Araujo’s killers will face a retrial in May 2005. A memorial fund has been created in her name which will fund school-based programs promoting understanding of transgendered people. For more information on the Transgender Day of Remembrance, see http://www.gender.org/remember/index.html.

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