A year ago, President Barack Obama issued a proclamation naming June “Lesbian, Gay, Bisexual and Transgendered Pride Month.”  The proclamation effectively incorporated the transgendered community into President Bill Clinton’s 2000 proclamation, which named June “Gay & Lesbian Pride Month.”  In honor of the transgendered community, their legal rights, and the month of June, it seems appropriate to discuss gender identity discrimination and the infamous “trans panic defense.”

The overall struggle that transgender people face is similar to the struggle that gays and lesbians face, but for transgender people, the progressive change for their legal rights seems to be slower.  Currently, in 38 states it is still legal to discriminate based on gender identity.  Comparatively, 30 states have not yet developed laws against sexual orientation discrimination.  Wisconsin was the first state to ban employment discrimination based on sexual orientation, and it did so in 1982.  However, as of yet, it has not created equal legislation regarding gender identity.

Discrimination based on gender identity is more commonplace than most people realize.  According to the Human Rights Campaign, transgendered individuals suffer from a wide array of injustice including hate crimes, work place discrimination, housing discrimination, credit discrimination, public accommodation discrimination, and even health care discrimination:

[F]emale-to-male transsexual Robert Eads of rural Georgia developed cervical cancer but [he] could not find a doctor to treat him. Twenty simply refused to do so.  He eventually found one more than 130 miles from home, but by then, Eads’ partner said, it was “just too late.” He died in 1999.

Even in the states that have established anti-discrimination gender identity laws, the fight for equal treatment in the workplace is not a closed book.  Organizations like the Traditional Values Coalition (TVC) continue to advocate against the protection for transgender individuals on the basis that schools would be required to keep teachers who undergo sex changes.   TVC argues that children should not be “subjected to [a transgendered] man’s bizarre sexual transformation,” as it claims transgender individuals are “seriously mentally disturbed,” despite psychological studies that say otherwise.

One  blog post offered the conservative estimate that transgendered individuals are over ten times more likely to be murdered than individuals of the general population.  The “trans panic defense”—a variation on the classics of insanity, diminished capacity, provocation, and self-defense –has been introduced as a means to justify, or at least excuse, some of these murders.  Cousin to the “trans panic defense” is the “gay panic defense,” which was used in the case involving the high profile murder of Matthew Shepard.  Both defenses are built around the psychological phenomenon called homosexual panic. Psychiatrist Edward J. Kempf in 1920, who coined the phenomenon, described it as an acute, brief reactive psychosis suffered by the target of unwanted advances by homosexual or transgendered individuals.

The phenomenon and its subsequent legal defense seem ludicrous on a number of grounds.  First, it is troublesome that as legal defenses they seem to reinforce and promote negative stereotypes about homosexual and transgendered individuals as sexual deviants and sexual predators. Second, they are unsettling because the defenses seek to substantiate a subconscious bias in favor of heteronormativity, which is prevalent in today’s hetero-centric society. Lastly, a disturbing analogous defense comes to mind. Should there be a similar justification for unwanted or unsolicited flirting with women by heterosexual men, and what would that mean for the male population?  The last critique is somewhat tongue-in-cheek, but the point remains that this phenomenon gives an unbelievable amount of legal weight to what might be a simple come-on.

By and large, as this blog has acknowledged, jurisdictions across the US are progressively restricting the use of the “insanity defense.”  Thus, a call for the elimination of the “trans panic defense” in cases concerning mental defect might be unnecessary.  But the insanity defense is only half of the issue.  These defenses, when tied to claims of provocation, have been relatively successful.  The use of the “gay panic defense” and the “trans panic defense” in the judicial system show no real signs of going away.