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The Trans Panic Defense:
Masculinity, Heteronormativity, and the
Murder of Transgender Women
Cynthia Lee* and Peter Kwan**
When a heterosexual man is charged with murdering a transgender woman with whom
he has been sexually intimate, one defense strategy is to assert what has been called the
trans panic defense. The defendant claiming this defense will say that the discovery that
the victim was biologically male provoked him into a heat of passion causing him to
lose self-control. If the jury finds that the defendant was actually and reasonably
provoked, it can acquit him of murder and find him guilty of the lesser offense of
voluntary manslaughter. The trans panic defense strategy is troubling because it appeals
to stereotypes about transgender individuals as sexually deviant and abnormal.
In this article, we examine the cultural structures of masculinity that may lead a man to
kill a transgender woman with whom he has been sexually intimate. Building on
Professor Angela Harris’ important work on male-on-male violence, we argue that
* Charles Kennedy Poe Research Professor of Law, The George Washington University Law
School. Cynthia Lee thanks Omar Clarke, a transgender male co-worker at The George Washington
University Law School, for sharing his insights about transgender people and the process of
transitioning. Cynthia Lee thanks Carrie James, Erin Mick, Prerna Lal, Andrew Basham, and
Matthew Halldorson for research assistance on this paper. Cynthia Lee also thanks Nicholas Stark for
his expertise and assistance in finding difficult-to-locate resources.
** B.A., University of Sydney (with Honors); LL.M., University of Sydney (with Honors);
LL.M., Columbia University.
The Authors thank I. Bennett Capers, Joshua Dressler, Arnold Loewy, Kevin McGunigal,
Steve Morrison, Michael Rich, and Susan Rozelle for helpful suggestions when Cynthia Lee presented
this paper at Texas Tech School of Law’s Annual Criminal Law Symposium on April 4, 2014. We also
thank Gabriel Jack Chin, Chris Elmendorf, Angela Harris, Courtney Joslin, Miguel Mendez, former
California Supreme Court Justice Cruz Reynoso, and students in Angela Harris’s Spring 2014
Criminal Law class for helpful comments and feedback when Cynthia Lee presented the paper at UC
Davis School of Law in March 2014. We would also like to thank Robert Chang, Anupam Chander,
Susan Kuo, Andrea Freeman, Leah Grinvald, and Miye Goishi, who provided more helpful feedback
when Cynthia Lee presented this paper at CAPALF at UC Hastings College of the Law in San
Francisco, California in February 2013. We also thank Stephen Galoub, Melissa Hamilton, Carissa
Hessick, Anna Roberts, Danielle Tyson, and others for their comments and suggestions for
improvement when Cynthia Lee presented a very early draft of this paper at Law and Society in June
2012. Additional thanks go to Josephine Ross and Kelly Strader for their helpful comments.
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violence by men against transgender women is a variant of gender violence that has not
received the attention it deserves. We examine how masculinities theories can unmask
the motivations behind the trans panic defense and discuss ways in which structures of
masculinity can encourage juries to find that the defendant who claims trans panic was
reasonably provoked.
Most critics of the trans panic defense strategy have argued that defendants should be
banned from making trans panic arguments. Instead of advocating a ban on this
defense strategy, we offer a tool kit of strategies for prosecutors to combat claims of
trans panic. One of several suggestions we offer is a rephrasing of terminology,
replacing the phrase “trans panic” with “trans rage.” We also argue that the current
understanding of reasonableness in provocation doctrine—reasonableness as that
which is typical—is misguided. We suggest reasonableness is better understood as a
normative limitation on the provocation defense.
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THE TRANS PANIC DEFENSE
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Table of Contents
Introduction .................................................................................................. 79
I. Transgender ............................................................................................. 86
A. Terminology................................................................................ 86
B. Violence Against Transgender Persons .............................. 94
II. Provocation and Trans Panic .............................................................. 97
A. The Doctrine of Provocation .................................................. 98
B. Gay Panic .................................................................................. 100
C. Trans Panic ............................................................................... 105
III. Behind the Claims of Trans Panic .................................................. 108
A. Protection of the Masculine Identity and the Fear of
Being Seen as Gay ................................................................... 109
B. Sexual Prejudice and the Enforcement of Gender
Norms ......................................................................................... 112
C. Blaming the Victim for Her Alleged Deceit .................... 113
IV. Legislative Bans and Other Proposals for Reform .................... 119
Conclusion .................................................................................................. 132
Introduction
RESOLVED, That the American Bar Association urges 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, which seek to partially or completely excuse crimes
such as murder and assault on the grounds that the victim’s sexual
orientation or gender identity is to blame for the defendant’s violent
reaction. Such legislative action should include:
(a) Requiring courts in any criminal trial or proceeding, upon the
request of a party, to instruct the jury not to let bias, sympathy,
prejudice, or public opinion influence its decision about the victims,
witnesses, or defendants based upon sexual orientation or gender
identity; and
(b) Specifying that neither a non-violent sexual advance, nor the
discovery of a person’s sex or gender identity, constitutes legally
adequate provocation to mitigate the crime of murder to manslaughter,
or to mitigate the severity of any non-capital crime.
1
On August 12, 2013, the House of Delegates of the American Bar
Association (“ABA”) unanimously passed a resolution aimed at
combating the discriminatory effects of gay and trans panic defenses.
2
“Gay panic” and “trans panic” are not officially recognized criminal law
1
. Am. Bar Ass’n, Res. 113A, at 1 (2013),
available at
http://lgbtbar.org/wp-
content/uploads/2014/02/Gay-and-Trans-Panic-Defenses-Resolution.pdf.
2
. Terry Carter,
‘Gay Panic’ Criminal Defense Strategies Should Be Curtailed by Legislation,
ABA House Resolves
, A.B.A. J. (Aug. 12, 2013, 9:40 PM), www.abajournal.com/news/article/resolution_
on_gay_panic.
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defenses, but are defense strategies used to lend support to traditional
criminal law defenses like temporary insanity, provocation, or self-
defense. The defendant claiming gay panic will assert that his gay male
victim’s unwanted homosexual advance provoked him into a heat of
passion or caused him to lose his mind, and therefore the jury should find
him not guilty of murder.
3
Similarly, the defendant claiming trans panic
will argue that the post-intimate discovery that his transgender female
victim had male genitalia was so upsetting that it provoked him into a
heat of passion.
4
Provocation is a partial defense to murder. When
successful, it usually results in the mitigation of an intentional killing that
would otherwise be murder to voluntary manslaughter.
The ABA resolution contains two parts. First, the resolution urges
legislatures to enact laws requiring judges to give anti-bias jury
instructions upon the request of either party.
5
Second, it calls upon
legislatures to pass legislation specifying that neither a nonviolent sexual
advance nor the discovery of a person’s sex or gender identity constitutes
legally adequate provocation to mitigate the severity of any noncapital
crime.
6
The ABA should be commended for taking concrete action to try to
combat bias against gay men and transgender women.
7
The Authors of
this Article share the ABA’s concern that gay and trans panic defense
strategies promote negative stereotypes about gay men and transgender
women as sexual deviants. We fully support laws requiring judges to give
anti-bias jury instructions upon request of either party. We question,
however, whether a legislative ban is the best way to combat the bias that
gay and trans panic defense strategies reflect. While a ban would serve
an important expressive function, it might not be sufficient, in and of
itself, to eviscerate the underlying structures of masculinity that
encourage the use of gay and trans panic strategies.
8
We therefore
3
. Cynthia Lee,
The Gay Panic Defense
, 42 U.C. Davis L. Rev. 471, 500 (2008).
4
. See
Victoria L. Steinberg,
A Heat of Passion Offense: Emotions and Bias in “Trans Panic”
Mitigation Claims
, 25 B.C. Third World L.J. 499, 500–01 (2005) (reviewing Martha C. Nussbaum,
Hiding from Humanity (2004)).
5
. Am. Bar Ass’n,
supra
note 1, at 1.
6
. Id.
7
. While a ban on gay and trans panic arguments could theoretically protect all individuals in the
Lesbian, Gay, Bisexual, Transgender, and Questioning (“LGBTQ”) community, gay panic is usually
asserted by heterosexual male defendants charged with murdering gay men, and trans panic is usually
asserted by heterosexual men charged with murdering transgender women.
8
. We note that many progressive scholars warn against wholehearted support of measures that
make it easier for the State to incarcerate individuals, because such reforms often end up
disproportionately harming poor people and people of color.
See, e.g.
, Joey L. Mogul et al., Queer
(In)Justice: The Criminalization of LGBT People in the United States 144–45 (2011) (noting that
many in the LGBT community reject reforms that expand police power because such reforms often
end up disproportionately harming poor people and people of color); Aya Gruber,
Murder, Minority
Victims, and Mercy
, 85 Colo. L. Rev. 129, 129–30 (2014) (arguing that limiting the provocation
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suggest alternative ways to undermine the chances that a panic defense
strategy will succeed. Our proposals are aimed at raising public
awareness of the structures of masculinity that make appeals to gay and
trans panic arguments persuasive.
Because the gay panic defense strategy has been discussed at length
elsewhere,
9
the primary focus of this Article is the trans panic defense
strategy. Only a handful of law review articles have focused on the trans
panic defense strategy.
10
None of these articles examine whether the
ABA’s recent resolution is the best way to address the problem of bias
against transgender individuals that lies at the root of why trans panic
strategies have traction. We attempt to fill this void by examining the
cultural structures of masculinity that may lead a man to kill a
defense would have a disproportionate impact on less privileged men of color); Aya Gruber,
The
Feminist War on Crime
, 92 Iowa L. Rev. 741, 824 (2007) (“Feminists should not be channeling their
efforts into helping the government find new, better, and easier ways to incarcerate people (most
likely minority people), while remaining relatively silent on the government’s and society’s
maintenance of patriarchy.”); Aya Gruber,
Rape, Feminism, and the War on Crime
, 84 Wash. L. Rev.
581, 657 (2009) (“[I]ncreasing the prosecutorial power of the state is an endeavor in which, at this
particular moment, feminists should no longer enlist.”); Aya Gruber,
Neofeminism
, 50 Hous. L. Rev.
1325, 1330 (2013) (“State power, like an eager tenant, can and will quickly take up residence in the
architecture of progressive legal experiments.”).
9
. See, e.g.
, Lee,
supra
note 3, at 481 (arguing that making sexual orientation salient is a better
way to deal with problems of anti-gay bias than a judicial or legislative ban); Joshua Dressler,
When
“Heterosexual” Men Kill “Homosexual” Men: Reflections on Provocation Law, Sexual Advances, and
the “Reasonable Man” Standard
, 85 J. Crim. L. & Criminology 726, 726–32 (1995) (critiquing Mison’s
conception of the reasonable man); Robert B. Mison,
Homophobia in Manslaughter: The Homosexual
Advance as Insufficient Provocation
, 80 Calif. L. Rev. 133, 136 (1992) (arguing that judges should
rule, as a matter of law, that a nonviolent homosexual advance is not legally adequate provocation); J.
Kelly Strader et al., Gay Panic and the Case for Gay Shield Laws (2014) (unpublished manuscript) (on
file with Cynthia Lee) (providing an excellent analysis of the shooting of a 15-year-old gender
nonconforming teen named Larry King by his 14-year-old classmate Brandon McInerney and proposing
“gay shield” laws modeled after rape shield laws to minimize bias against the gay male or gender
nonconforming victim in gay panic cases);
Developments in the Law—Sexual Orientation and the Law
,
102 Harv. L. Rev. 1508, 1542–46 (1989); Gary David Comstock,
Dismantling the Homosexual Panic
Defense
, 2 L. & Sexuality: A Rev. of Lesbian & Gay Legal Issues 81, 81–82 (1992); Martha C.
Nussbaum,
Secret Sewers of Vice
,
in
The Passions of Law 30, 35–38 (Susan A. Bandes ed., 1999);
David Alan Perkiss,
A New Strategy for Neutralizing the Gay Panic Defense at Trial: Lessons from
the Lawrence King Case
, 60 UCLA L. Rev. 778, 784 (2013) (building on Lee’s suggestion that
prosecutors should make sexual orientation salient rather than ban the gay panic defense); Kara S.
Suffredini,
Pride and Prejudice: The Homosexual Panic Defense
, 21 B.C. Third World L.J. 279, 279,
302 (2001); Christina Pei-Lin Chen, Note,
Provocation’s Privileged Desire: The Provocation Doctrine,
“Homosexual Panic,” and the Non-Violent Unwanted Sexual Advance Defense
, 10 Cornell J.L. & Pub.
Pol’y 195, 201–03, 210–13. (2000); Alexis Kent, Comment,
A Matter of Law: The Non-Violent
Homosexual Advance Defense Is Insufficient Evidence of Provocation
,
44 U.S.F. L. Rev. 155 (2009).
See
also
Duncan Osborne,
The Homosexual Panic Defense: Are Juries Really Buying It?
, LGNY News, Nov.
4, 1999, at 4
.
10
.
See, e.g.
, Morgan Tilleman,
(Trans)forming the Provocation Defense
, 100 J. Crim. L. &
Criminology 1659 (2010); Steinberg,
supra
note 4; Bradford Bigler,
Sexually Provoked: Recognizing
Sexual Misrepresentation as Adequate Provocation
, 53 UCLA L. Rev. 783 (2006); Teresa Marie
Garmon,
The Panic Defense and Model Rules Common Sense: A Practical Solution for a Twenty-
First Century Ethical Dilemma
, 45 Ga. L. Rev. 621 (2011).
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transgender woman with whom he has been sexually intimate and make
his claim of provocation appear reasonable. Building on Professor
Angela Harris’ important work on male-on-male violence,
11
we argue
that violence by men against transgender women is a type of “gender
violence” that has gone largely unexamined until now. In an attempt to
undermine the appeal of trans panic, this Article excavates the structures
of heteronormativity
12
that provide invisible support for claims of trans
panic.
This Article proceeds in four parts. Part I begins the process of
raising awareness—a process critical to our end goal of reducing bias
against transgender individuals. It starts by defining terminology. For
many, words like “transgender,” “transsexual,” “intersexual,”
“transvestite,” and “gender identity” are not common and familiar terms.
Even the difference between the terms “sex” and “gender” is not self-
evident to many people. Part I tries to demystify these terms by
explaining their commonly understood meanings.
Part I also provides a broad overview of the problem of violence
against transgender persons. One problem with trying to assess the
extent of this violence is that, until recently, there was no nationwide
mechanism for the collection of statistics on violence against transgender
victims. A few private organizations have tried to address this problem
by collecting their own data on violence against transgender persons, and
we report their findings here. Another problem is that even in states that
do include gender identity bias in their hate crime laws, law enforcement
officers often do not report hate crimes based on gender identity bias
because they do not recognize anti-transgender bias as such. Many police
officers think hate crimes against transgender victims are crimes based
on sexual orientation, even though they are better understood as crimes
based on gender identity, because the officers do not understand what it
means to be a transgender individual.
13
Part II focuses on the doctrinal underpinnings of the trans panic
defense strategy. It starts by examining the doctrine of provocation in its
11
. Angela P. Harris
, Gender, Violence, Race, and Criminal Justice
, 52 Stan. L. Rev. 777, 780
(2000) (discussing violent acts committed by men against other men as “gender violence”).
12
. Kimberly Kiesewetter,
Catfish and the Influences of Heteronormativity
, Soc. in Focus (Mar.
11, 2013), http://www.sociologyinfocus.com/2013/03/11/catfish-and-the-influences-of-heteronormativity
(defining heteronormativity as “the belief that heterosexuality is the only acceptable sexual
orientation”); Nancy J. Knauer,
Heteronormativity and Federal Tax Policy
, 101 W. Va. L. Rev. 129,
133 (1998) (defining heteronormativity as “the largely unstated assumption that heterosexuality is the
essential and elemental ordering principal of society”); Kimberly Kiesewetter,
Catfish and the
Influences of Heteronormativity
, Soc. in Focus (Mar. 11, 2013),
http://www.sociologyinfocus.com/2013/03/11/catfish-and-the-influences-of-heteronormativity (defining
heteronormativity as “the belief that heterosexuality is the only acceptable sexual orientation”).
13
. Rebecca L. Stotzer,
Violence Against Transgender People: A Review of United States Data
,
14 Aggression & Violent Behav. 170, 176 (2009).
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various forms, from its early common law roots to its use today in murder
cases involving gay and transgender victims. Provocation law generally
requires proof that the defendant was actually provoked into a heat of
passion and that the provocation was legally adequate.
14
In modern
jurisdictions, legally adequate provocation exists if the reasonable person
would have been provoked into a heat of passion.
15
Most courts
understand reasonableness in the provocation context as a descriptive
limitation, equating it with typicality.
16
Under this view, the reasonable
person in provocation law is the average, ordinary person.
17
We argue
that equating reasonableness with typicality is problematic because it
allows the average man’s fear of being seen as gay to excuse fatal acts of
violence against transgender women.
Part III examines three possible motivations behind the violence in
trans panic cases and assesses whether any of these motivations ought to
count as legally adequate provocation. First, the defendant’s violence
may be motivated by his fear of being seen as gay. The male defendant
who kills a transgender woman with whom he has been sexually intimate
may believe that his attraction to someone he later learns is biologically
male reflects his own latent homosexuality. He may be afraid that if
others find out that he was sexually intimate with a transgender woman,
they will think he is gay.
18
Just as fear of being seen as a coward should
not constitute legally adequate provocation, a murder defendant’s fear of
being seen as gay should not be considered a legitimate reason for losing
one’s self-control.
Second, the defendant’s violence may be motivated by the
defendant’s extreme discomfort with gender nonconformity. His act of
killing reflects a desire to enforce prevailing gender norms that align sex
with gender.
19
The common way of thinking about gender sees male and
female, masculine and feminine as binary opposites.
20
The transgender
woman transgresses gender norms by assuming a female identity when
she was born with male anatomy. The defendant punishes her act of
transgression by killing her. The law, however, generally disapproves of
acts of violence that are motivated by a desire to enforce gender norms.
14
. Joshua Dressler, Understanding Criminal Law § 31.07 (6th ed. 2012).
15
. Id.
at § 31.07(B)(2)(b)(i); Joshua Dressler,
Rethinking Heat of Passion: A Defense in Search
of a Rationale
, 73 J. Crim. L. & Criminology 421, 430 (1982).
16
. Dressler,
supra
note 14, at § 31.07(B)(2)(b)(ii);
see also
Dressler,
supra
note 9, at 753 (“The
Reasonable Man in the context of provocation law . . . is more appropriately described as the
Ordinary
Man (
i.e.
, a person who possesses ordinary human weaknesses).”).
17
. Dressler,
supra
note 14, at § 31.07(B)(2)(b)(i).
18
. The man who kills a male-to-female transgender person believes that the victim’s true sex is
male and therefore, any sex he had with the victim was homosexual sex. The trans woman who prefers
to date straight men, however, is heterosexual.
19
. See infra
Part I.A.
20
. See infra
Part I.A.
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Bullying of gay and lesbian youth, for example, is widely condemned.
Likewise, the law of provocation should not countenance the use of
violence to enforce gender norms in the trans panic context.
Third, the defendant’s violence may be motivated by his anger at
the victim’s alleged deceit or misrepresentation regarding her gender
identity. The defendant may feel the victim deceived him by pretending
to be a woman when she was, in the defendant’s view, actually a man.
The defendant claims that the discovery of the victim’s “true” gender
identity—finding out that the victim was a “he” rather than a “she”—and
the feeling of betrayal stemming from the victim’s deceit upset him so
much that he lost his self-control and was reasonably provoked into a
heat of passion. In examining whether the transgender victim’s alleged
deceit should partially excuse the defendant’s fatal loss of self-control,
we assess the defendant’s claim of deceit against the fraud-in-the-factum
and fraud-in-the-inducement distinction found in rape law and conclude
that the law of provocation should not permit mitigation on the basis of
the defendant’s anger at the victim’s alleged deceit.
In Part IV, we discuss various ways legal actors involved in the
criminal justice system might act to combat the bias against transgender
individuals that inheres in trans panic cases. Most of the existing legal
literature on this topic, like the ABA resolution, advocates banning gay
and trans panic arguments either legislatively or judicially.
21
We
acknowledge that a legislative ban can serve a valuable expressive
function but caution that unless steps are taken to reduce bias against
transgender individuals, a ban is unlikely to ensure murder convictions in
all cases in which a defendant argues that he was so upset by the
discovery that he was sexually intimate with someone he thought was
female but was biologically male that he killed her. Indeed, a ban could
have the unintended consequence of more acquittals or hung juries in
jurisdictions where the community sees transgender individuals as
unnatural and deviant. In such jurisdictions, if jurors are faced with an all
or nothing choice, they may opt to acquit the defendant because they
have not been given legal permission to find the defendant guilty of
manslaughter. An additional concern is that a legislative ban on a
defense argument in one arena might open the door to legislative bans
on defense arguments in other contexts. When the defense is one that is
construed as a case-in-chief defense, as the defense of provocation
typically is, this is all the more problematic since the prosecution bears
the burden of proving every essential element of the charged offense and
disallowing the defense lessens the prosecution’s burden of proof.
Instead of a ban, we offer a tool kit to help prosecutors combat the
trans panic defense strategy. First, we suggest that prosecutors try to
21
. Garmon,
supra
note 10, at 644; Steinberg,
supra
note 4, at 501–02; Tilleman,
supra
note 10, at 1685.
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humanize the transgender victim so the jury can see the victim as a
person worthy of empathy. As is common in other homicide cases, the
prosecutor can humanize the victim by bringing in witnesses to talk
about the victim. Prosecutors should educate jurors about what it means
to be a transgender individual. They should also educate jurors about the
cultural structures of masculinity that contribute to violence against
transgender individuals in general, and transgender women in particular.
Finally, prosecutors can change the tone of the debate by referring to the
defense strategy as “trans rage,” rather than “trans panic.” Parts I and II
of this Article are aimed at assisting prosecutors in this project of
education.
Prosecutors who attempt to do these things are likely to face
objections from the defense on the ground that character evidence
regarding the victim is irrelevant. The defense will argue that the only
thing the jury should be concerned with is the state of mind of the
defendant, not what the victim was experiencing or feeling. Moreover,
the defense is likely to argue that if cultural structures of masculinity
encourage men in this society to think it is unmanly to be gay, this kind
of evidence actually supports the defendant’s claim that it was reasonable
for him to be provoked into a heat of passion by the discovery that the
victim was biologically male. We address both of these objections in Part
IV.
Second, we propose that judges clarify to juries that the requirement
of “legally adequate provocation” is a normative limitation on the
provocation defense. Instead of being told that the defendant can receive
the provocation mitigation as long as a reasonable person would have
been provoked, the jury should be instructed that a murder defendant is
not entitled to receive the provocation mitigation unless his or her loss of
self-control was normatively reasonable. In other words, whether the
defendant should receive the provocation mitigation should not turn
upon whether the ordinary or average person in the defendant’s shoes
would have been provoked into a heat of passion. The jury should assess
whether the nature of the provoking circumstances supports mitigation
and whether the motivations underlying the defendant’s heat of passion
are ones that the criminal law should countenance. A careful dissection
of a defendant’s claim of trans panic should lead the jury, in most trans
panic cases, to conclude that the basis for the defendant’s loss of self-
control is not legally adequate. Neither homophobic fear of being seen as
gay, a desire to police gender norms, nor anger at the victim’s alleged
deceit about her biological sex should be considered legitimate bases for
mitigation under the provocation defense.
Our proposals for reform may not be as direct a form of moral
condemnation as a legislative ban on panic strategies, but are preferable
because they leave the question as to what constitutes legally adequate
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provocation—a question that involves consideration of the facts of the
case and community values—in the hands of the jury. The jury is not a
perfect institution, but because it has more contextual information about
the individual case before it, it is better suited than the legislature to deal
with questions of culpability and whether punishment is deserved.
Moreover, our proposals for reform are preferable to a legislative ban
because they are aimed at raising awareness of the structures of
masculinity that can lead to violence against transgender individuals.
22
We seek to attack the root structures of masculinity and
heteronormativity in order to combat the trans panic defense strategy in
a more lasting way.
I. Transgender
[A] lot of people have absolutely no idea what a transgender person is
or what it means.
—Elizabeth Riley
23
A. Terminology
“Transgender” is an adjective used to describe individuals whose
biological sex is different from the gender identity they ascribe to
themselves.
24
Terry Kogan explains that transgender individuals are
22
. While a legislative ban would send an important message about society’s condemnation of the
killing of gay men and trans women, it may do little to actually deter such violence. Giovanna Shay
and J. Kelly Strader make a similar point about hate crime law, writing that “hate crime statutes may
send an important message, but have done little to deter violence against LGBTQ people.” Giovanna
Shay & J. Kelly Strader,
Queer (In)Justice: Mapping New Gay (Scholarly) Agendas
, 102 J. Crim. L. &
Criminology 171, 174 (2012) (reviewing Victoria L. Steinberg,
A Heat of Passion Offense: Emotions
and Bias in “Trans Panic” Mitigation Claims
, 25 B.C. Third World L.J. 499 (2005)).
23
. Leslie J. Moran & Andrew N. Sharpe,
Violence, Identity and Policing: The Case of Violence
Against Transgender People
, 4 Crim. Justice 395, 403 (2004) (quoting Elizabeth Riley, coordinator of
the Sydney Gender Centre).
24
. Transgender Law Ctr., 10 Tips for Working with Transgender Patients 1
(2011),
available at
http://transgenderlawcenter.org/issues/health/10tips (“The term ‘transgender’ is used to
describe people whose gender identity does not correspond to their birth-assigned sex and/or the
stereotypes associated with that sex.”); Mary Kristen Kelly,
(Trans)forming Traditional
Interpretations of Title VII: “Because of Sex” and the Transgender Dilemma
, 17 Duke J. Gender L. &
Pol’y 219, 221 (2010) (citing Human Rights Campaign Found., Transgender Inclusion in the
Workplace 2 (2008),
available at
http://www.hrc.org/files/assets/resources/HRC_Foundation_-
_Transgender_Inclusion_in_the_
Workplace_2nd_Edition_-_2008.pdf) (“[T]ransgender means that a person’s physiological sex is
different from his or her psychological perception or expression of his or her sex.”).
See
Dylan Vade,
Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender
That Is More Inclusive of Transgender People
, 11 Mich. J. Gender & L. 253, 312 (2005)
(“[T]ransgender people are people who have a different gender identity than the one assigned at birth
and/or different gender expression then the one that is stereotypically associated with the gender
assigned at birth.”). Vade strongly disagrees with the conceptualization of transgender as one whose
sex and gender do not match.
Id.
at 278. Vade prefers a definition of transgender that does not rely on
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people who feel they are trapped or imprisoned in a body that does not
reflect their true gender identity.
25
A transgender woman, for example,
considers herself a female, even though her body is anatomically male.
26
Patience Crozier notes, “American society assumes that there are
two sexes, male and female, and flowing from those two sexes are two
genders, masculine and feminine, and that all people fall into one of
those two closely linked categories.”
27
This, however, is not a completely
accurate picture. As Frank Valdes explains, “[t]he first common
misunderstanding . . . is the equation of sex, as a physical or biological
trait, with ‘penis’ or ‘vagina.’”
28
Sex is the term used to refer to one’s physical or biological
attributes.
29
In today’s society, a person with a penis is presumed to be
male; a person with breasts and a vagina is presumed to be female.
Transgender men, however, are born with vaginas and transgender
women are born with penises and testicles.
Gender, in contrast, is the term used to refer to the way a person
presents himself or herself to the world.
30
One can present as either
feminine or masculine.
31
Often there is congruence between one’s sex
and one’s gender, with men presenting as masculine and women
presenting as feminine, but not always. Some men are more feminine
than other men in the way they act and some women are more masculine
than other women in the way they dress and carry themselves. As Dylan
Vade notes, “there are feminine women, masculine women, androgynous
women, feminine men, androgynous men, [and] masculine men, to name
just a few.”
32
what he calls the sex-gender distinction and would define transgender people as “people whose birth-
assigned gender does not completely describe the person’s self-identified gender.”
Id.
at 311–12.
25
. Terry S. Kogan,
Transsexuals and Critical Gender Theory: The Possibility of a Restroom
Labeled “Other”
, 48 Hastings L.J. 1223, 1225 (1997).
26
. Id.
27
. Patience W. Crozier, Book Note,
Forcing Boys To Be Boys: The Persecution of Gender Non-
Conforming Youth
, 21 B.C. Third World L.J. 123, 125 (2001) (reviewing Christina Hoff Sommers, The
War Against Boys: How Misguided Feminism is Harming Our Young Men (2000)).
See also
Kim D.
Felsenthal,
Socio-Spatial Experiences of Transgender Individuals,
in
4 The Psychology of Prejudice
and Discrimination 204 (Jean Lau Chin ed., 2004) (noting that our society has constructed “a gender
system that consists only of males and females, not allowing for a third, fourth, or nth gender”).
28
. Francisco Valdes,
Queers, Sissies, Dykes, and Tomboys:
Deconstructing the Conflation of “Sex,”
“Gender,” and “Sexual Orientation” in Euro-American Law and Society
, 83 Calif. L. Rev. 1, 20 (1995).
29
. Felsenthal,
supra
note 27, at 201–02.
30
. Gender is often viewed as a social construction while sex is perceived as real.
Id.
at 204.
31
. Valdes notes that “sex denotes bio-physical aspects of personhood associated with ‘man’ and
‘woman,’ while gender denotes the social constructions understood as ‘male’ and ‘female’ or
‘masculine’ and ‘feminine.’” Valdes,
supra
note 28, at 21.
See also
Vade,
supra
note 24, at 262 (arguing
that the sex-gender distinction is harmful to transgender people because it suggests that one’s
biological sex is one’s true or real identity).
32
. Vade,
supra
note 24, at 265.
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Transgender men and women are not simply individuals who
present their gender identity in a way that does not conform to their
biological sex. A gay man, for example, may walk or talk in a feminine
manner and may even wear effeminate clothing but still view himself as a
man. A transgender woman, however, is a person born with male
anatomy who self-identifies as female. Like the effeminate gay man, she
may walk, talk, and dress in a feminine manner. Unlike the gay man, who
sees himself as a man who is sexually attracted to other men, the
transgender woman sees herself as a woman, a woman born into a man’s
body.
Gender identity should not be confused with sexual orientation. The
transgender woman may be heterosexual (attracted to men) or lesbian
(attracted to women).
33
Likewise, the transgender man may be gay
(attracted to men) or heterosexual (attracted to women).
34
Many people
assume that an individual with male anatomy who is sexually attracted to
men must be gay, but a transgender woman—a female born with male
anatomy—who likes men is heterosexual. Janet Mock, a transgender
woman who has written about her transition, explains why a transgender
girl may call herself gay for a short time:
As a tween, I was living in the murkiness of sexuality and gender. I
knew I was viewed as a boy. I knew I liked boys. I knew I felt like a
girl. Like many young trans people, I hadn’t learned terms like
trans
,
transgender
, or
transsexual
—definitions that would have offered me
clarity about my gender identity. For example, a trans girl who is
assigned male at birth and attracted to boys may call herself gay for a
short time—a transitional identity on her road to self-discovery. In
actuality, though, since her gender identity is that of the girl, and she is
attracted to boys, then her sexual orientation mirrors that of a
heterosexual girl, not a gay man.
35
The words “transgender” and “transsexual” are often used
interchangeably to describe individuals whose gender identity does not
match the gender assigned to them at birth.
36
It is increasingly common,
however, for the term “transgender” to be used as an umbrella term
37
33
. Janet Mock, Redefining Realness: My Path to Womanhood, Identity, Love & So Much
More 50 (2014) (“A trans person can be straight, gay, bisexual, etc. . . . .”).
34
. When transgender men and lesbian women date, their relationships do not fall neatly into
either of the two standard categories of heterosexual or homosexual.
35
. Mock,
supra
note 33, at 80.
36
. Noa Ben-Asher,
The Necessity of Sex Change: A Struggle for Intersex and Transex Liberties
,
29 Harv. J.L. & Gender 51, 51 n.1 (2006) (noting that “frequently medical and psychological
discourses read [transgender] as synonymous to ‘transsexual’”).
37
. See
Paisley Currah,
Gender Pluralisms Under the Transgender Umbrella
,
in
Transgender
Rights 3, 4 (Paisley Currah et al. eds., 2006) (noting that the meaning of transgender has changed over
time from “signifying a subject position between cross-dresser and transsexual,” to being an umbrella
term for “all persons whose perceived gender and anatomic sex may conflict with [their] gender
expression”); Paisley Currah & Shannon Minter, Nat’l Ctr. for Lesbian Rights, Transgender
Equality: A Handbook for Activists and Policymakers 3 (2000),
available at
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that encompasses a wide range of gender nonconforming individuals,
including transvestites (men who like to wear women’s clothing for erotic
pleasure),
38
cross-dressers (men and women who dress in clothing usually
worn by the opposite gender),
39
and transsexuals (individuals who
undergo or seek to undergo sex reassignment surgery to align their
bodies with their gender identity).
40
As Dean Spade—possibly the first
openly transgender tenure-track law professor
41
—explains,
“[t]ransgender and trans are both political terms that have emerged in
recent years to indicate a wide variety of people whose gender identity or
expression transgress the rules of binary gender.”
42
Many in the
http://www.thetaskforce.org/downloads/reports/reports/TransgenderEquality.pdf. (noting that
“transgender has become an ‘umbrella’ term that is used to describe a wide range of identities and
experiences, including but not limited to: pre-operative, post-operative, and non-operative transsexual
people; male and female cross-dressers (sometimes referred to as ‘transvestites,’ ‘drag queens’ or ‘drag
kings’), intersexed individuals, and men and women, regardless of sexual orientation, whose
appearance or characteristics are perceived to be gender atypical”); Nat’l Ctr. for Transgender
Equal., Transgender Terminology
(Jan. 2014),
available at
http://transequality.org/Resources/
NCTE_TransTerminology.pdf (noting that “transgender” is “[a] term for people whose gender
identity, expression or behavior is different from those typically associated with their assigned sex at
birth”).
See also
Kogan,
supra
note 25, at 1225 n.6 (noting that the term “transgender” is increasingly
being used to describe both transvestites, men who like to cross-dress but have no desire to change
their biological sex, and transsexuals, individuals whose internal sense of gender identity is the
opposite of their physical body); Vade,
supra
note 24, at 255 n.2 (“I use the word
transgender
very
broadly to refer to people whose gender identity and/or expression does or is perceived to not match
stereotypical gender norms associated with their birth-assigned gender.”).
38
. The word “transvestites” refers to “males who have an episodic, compelling desire to wear
women’s clothes,” often for erotic pleasure. Hasan Shafiqullah,
Shape-Shifters, Masqueraders, &
Subversives: An Argument for the Liberation of Transgendered Individuals
, 8 Hastings Women’s L.J.
195, 196 (1997)
(citing Richard Green,
Spelling “Relief” for Transsexuals: Employment
Discrimination and the Criteria of Sex
, 4 Yale L. & Pol’y Rev. 125, 127 (1985) (noting that unlike
transsexuals, transvestites are not discontent with being male, and unlike gay men, transvestites are
sexually attracted to women)).
39
. “Cross-dressers” are either men who dress in traditionally female clothing or women who
dress in traditionally male clothing, not necessarily for the purpose of sexual arousal. Shafiqullah,
supra
note 38, at 196.
40
. Susan Etta Keller,
Operations of Legal Rhetoric: Examining Transsexual and Judicial
Identity
, 34 Harv. C.R.-C.L. L. Rev. 329, 329 (1999) (“A transsexual is someone who undergoes or
contemplates undergoing anatomical and hormonal modifications in order to live in and be recognized
as a different gender than the one attributed at birth.”).
See
Nat’l Ctr. for Transgender Equal.,
Transgender Terminology
(Jan. 2014),
available at
http://transequality.org/Resources/NCTE_
TransTerminology.pdf (noting that the word “transsexual” is “[a]n older term for people whose
gender identity is different from their assigned sex at birth who seek[] to transition from male to
female or female to male,” and that the term is disliked because it sounds overly clinical).
41
. Dean Spade,
Be Professional!
, 33 Harv. J.L. & Gender 71, 71 (2010).
42
. Dean Spade,
Resisting Medicine, Re/modeling Gender
, 18 Berkeley Women’s L.J. 15, 16 n.2
(2003). While others might include intersex people (individuals whose biological features make it
difficult to classify them as either male or female) under the transgender umbrella, we do not do so out
of sensitivity to concerns expressed to us by the Chairperson of the Organisation Intersex
International (“OII”). E-mail from Hida Viloria, Chairperson, Organisation Intersex International, to
Cynthia Lee (Apr. 5, 2013, 8:18 PM) (on file with Cynthia Lee); E-mail from Hida Viloria,
Chairperson, Organisation Intersex International, to Cynthia Lee (May 6, 2013, 5:53 PM) (on file with
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transgender community view the word transvestite as an offensive slur.
43
Similarly, many in the transgender community disfavor the term
transsexual.
44
The term “cisgender” (or “cis” for short) describes non-
transgender individuals, that is, persons who “identify with the gender
that correlates with the sex they were assigned at birth.”
45
State laws addressing whether a transgender person may change the
gender marker on his or her driver’s license or birth certificate vary
considerably. Many states will permit a change of gender marker on
one’s driver’s license after an individual has undergone sex reassignment
surgery.
46
Most states will also allow the name and gender on one’s birth
certificate to be changed or will issue a new birth certificate if a
transgender individual has undergone sex reassignment surgery.
47
Both
California and Vermont allow pre-operative transgender individuals to
change their birth certificates and driver’s licenses upon a physician’s
determination that an individual has received appropriate individualized
treatment for gender transition.
48
Other states, such as Massachusetts,
require gender reassignment surgery for birth certificate amendments,
but not for amendments to driver’s licenses.
49
In June 2014, New York
adopted a policy allowing transgender individuals to change the gender
marker on their birth certificates without first undergoing sex
reassignment surgery.
50
Also in June 2014, the American Medical
Association announced their position that transgender people should not
Cynthia Lee). Intersex people are individuals born with biological features that make it difficult to
clearly categorize them as either male or female. Crozier,
supra
note 27, at 126–27. Intersex individuals
may have both male and female physical characteristics. Shafiqullah,
supra
note 38. For example, an
intersex individual may be born with ovaries and male genitalia. Crozier,
supra
note 27, at 126.
According to the OII, no research has yet been conducted that would dispute the research of Dr.
Anne Fausto-Sterling that at least 1.9% of live births are intersex births.
On the Prevalence of Intersex
and the Various Numbers Quoted for It
, OII Intersex Network (Jan. 22, 2012), http://oii-
usa.org/259/prevalence-intersex-numbers-quoted (noting that a minimum of 1.9 percent of all live
births are intersex births and the actual number of intersex births is likely to be substantially higher).
43
. See
Resources for Journalists and Media Covering Chaz Bono and Transgender Issues
,
GLAAD, http://www.glaad.org/publications/resources-journalists-and-media-covering-chaz-bono-and-
transgender-issues (last visited Dec. 14, 2014).
44
. Nat’l Ctr. for Transgender Equal.,
supra
note 40.
45
. Mock,
supra
note 33, at 23.
46
.
Driver’s License Policies by State
, Nat’l Ctr. for Transgender Equal.,
http://transequality.org/
Resources/DL/DL_policies.html (last updated Jan. 4, 2013).
47
.
Changing Birth Certificate Sex Designations: State-by-State Guidelines
, Lambda Legal,
http://www.lambdalegal.org/publications/sources-of-authority-to-amend (last updated Jul. 14, 2014).
48
. Cal. Health & Safety Code § 103425 (West 2014); Vt. Stat. Ann. tit. 18, § 5112 (2014).
49
.
Change of Gender
, Mass. Registry of Motor Vehicles, https://secure.rmv.state.ma.us/
PolicyBrowserPublic/PB/default.htm?turl=WordDocuments%2FTransactions%2Fchangeofgender44.htm
(last visited Dec. 14, 2014).
50
. Jonathan Allen,
New York Drops Surgery Rule for Changing Sex on Birth Certificate
,
Reuters, June 5, 2014,
available at
http://www.huffingtonpost.com/2014/06/06/new-york-drops-
surgery-rule_n_5454005.html.
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have to undergo sex reassignment surgery to change the gender marker
on their birth certificates.
51
Many transgender individuals report that their sense of gender
misidentification began early in childhood.
52
According to Patrick Kelly,
a psychiatrist with the Division of Child and Adolescent Psychiatry at
Johns Hopkins Children’s Center, gender solidifies between the ages of
three and six.
53
Typically, it is around this age when a child “whose
gender orientation is at odds with his or her biology begins expressing
that disconnect.”
54
Transgender children “may shower with their clothes
on, so they don’t have to see themselves.”
55
In extreme cases,
transgender girls have tried to cut off their penises.
56
The psychological literature pathologizes individuals who transgress
socially accepted gender roles by calling a transgender person’s
discomfort with his or her biological body “gender dysphoria.”
57
Until
recently, the American Psychiatric Association suggested in its
Diagnostic and Statistical Manual of Mental Disorders
that transgender
individuals suffer from “Gender Identity Disorder” (“GID”).
58
As
described by the World Health Organization, an individual with gender
identity disorder will experience “a persistent and intense distress about
assigned sex, together with a desire to be (or insistence that one is) of the
51
. Bruce Japsen,
AMA Says Transgender Patients Don’t Need Surgery to Change Birth
Certificate
, Forbes.com (June 9, 2014, 3:19 PM), http://www.forbes.com/sites/brucejapsen/2014/06/09/
ama-says-transgender-patients-dont-need-surgery-to-change-birth-certificate.
52
. Kogan,
supra
note 25, at 1225–26.
53
. Petula Dvorak,
Transgender at Five
, Wash. Post, May 20, 2012, at A1 (quoting Patrick
Kelly).
54
. Id.
55
. Id
.
56
. Id.
57
. Kogan,
supra
note 25, at 1226.
58
. Crozier,
supra
note 27, at 134 (noting that the term “gender identity disorder” was added to the
Diagnostic and Statistical Manual of Mental Disorders
in 1980); Shafiqullah,
supra
note 38, at 199. The
addition of Gender Identity Disorder (“GID”) to the Diagnostic and Statistical Manual of Mental
Disorders in 1980 was “highly controversial because of assertions positing that GID was created to
prevent possible behavioral manifestations of homosexuality.” Felsenthal,
supra
note 27, at 205. As
Felsenthal explains, “cross-dressing or atypical gender behavior in children, some assume, leads to
homosexual adults; therefore, if a child is diagnosed with GID, then these behaviors can be ‘fixed’
through therapeutic intervention.”
Id.
Trying to “fix” the sexual orientation of individuals attracted to the
others of the same sex remains deeply controversial. When California passed legislation prohibiting
licensed psychotherapists from trying to change the sexual orientation of gay minors in 2012, the law was
met with fierce opposition from opponents. Lisa Leff,
Calif. Gay Therapy Ban Sparks Competing
Rulings
, Seattle Times (Dec. 4, 2012),
http://seattletimes.com/html/nationworld/2019825547_apusgaytherapy.html (noting that “[t]wo federal
judges in California have arrived at opposite conclusions on whether the state’s first-of-its-kind law
prohibiting licensed psychotherapists from trying to change the sexual orientation of gay minors violates
the Constitution”). In 2013, the Ninth Circuit Court of Appeals held that the law was constitutional and
the Supreme Court denied certiorari. Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013) (en banc),
cert.
denied
, 134 S. Ct. 2871 (2014).
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other sex.”
59
Similarly, the 1994 edition of the
Diagnostic and Statistical
Manual of Mental Disorders
provided that a person may be diagnosed as
having gender identity disorder upon: (1) “evidence of a strong and
persistent cross-gender identification, which is the desire to be, or the
insistence that one is, of the other sex,” and (2) “evidence of persistent
discomfort about one’s assigned sex or a sense of inappropriateness in
the gender role of that sex.”
60
In 2013, the American Psychiatric
Association eliminated the term “gender identity disorder” from the
Diagnostic and Statistical Manual of Mental Disorders
and replaced that
term with “gender dysphoria.”
61
Regardless of which term is used, “gender identity disorder” or
“gender dysphoria,” the fact that the condition of discomfort with one’s
assigned sex is in the
Diagnostic and Statistical Manual of Mental
Disorders
suggests that transgender people are not normal and that a
transgender individual suffers from a mental disorder. As Dean Spade
observes, by establishing gender nonconformity as a basis for mental
illness, the American Psychiatric Association has invented a category of
deviation with transgender persons as the ones who are deviant:
The diagnostic criteria for GID produces a fiction of natural gender in
which normal, non-transsexual people grow up with minimal to no
gender trouble or exploration, do not cross-dress as children, do not
play with the wrong-gendered kids, and do not like the wrong kinds of
toys or characters. This story is not believable. Yet, it survives because
medicine produces it not through a description of the norm, but
through a generalized account of the norm’s transgression by gender
deviants.
62
It is difficult to assess the number of transgender men and women in
the United States. “Transgender” is not a category found on the census
form. Even if it were, it is unlikely that all of the individuals who consider
themselves transgender would openly admit to this on a government
form given the social stigma suffered by transgender individuals.
63
Estimates of the size of the transgender population in the United States
59
. World Health Org., The ICD-10 Classification of Behavioural Disorders § F64.0.2
(2010),
available at
http://apps.who.int/classifications/icd10/browse/2010/en#/F64.
60
. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 532–33
(4th ed. 1994).
61
. Lindsey Tanner,
U.S. Psychiatrists Approve Revisions to Diagnosis Manual
, Wash. Post,
Dec. 2, 2012, at A5.
62
. Spade,
supra
note 42, at 25.
63
. Tarynn M. Witten & A. Evan Eyler,
Hate Crimes and Violence Against the Transgendered
,
11 Peace Rev. 461, 462 (1999) (“[M]any members of the U.S. transgender community prefer to remain
undetected, due to fear of adverse consequences from either the healthcare professions or society at
large.”); Sam Winter & Lynn Conway,
How Many Trans* People Are There? A 2011 Update
Incorporating New Data
, Transgender Asia (2011), http://web.hku.hk/~sjwinter/TransgenderASIA/
paper-how-many-trans-people-are-there.htm (last visited Dec. 14, 2014) (noting that “many
transpeople try to keep their trans status private”).
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THE TRANS PANIC DEFENSE
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are likely to be low because they are usually based on data regarding
individuals who have undergone or are seeking sex reassignment
procedures and do not include all the individuals who fall under the
transgender umbrella.
64
Nonetheless, the Williams Institute estimates
that nearly 700,000 individuals in the United States, or 0.3% of all adults,
are transgender men and women.
65
The National Center for Transgender
Equality estimates that transgender men and women constitute between
0.25 and 1% of the total population in the United States.
66
Transgender persons are often grouped with gays and lesbians
under the umbrella term “LGBT” (lesbian, gay, bisexual, and
transgender).
67
The grouping of transgender persons with gays, lesbians,
and bisexuals may explain why many people mistakenly assume that
violence against a transgender person is related to bias based on sexual
orientation.
68
The LGBT label also masks the fact that transgender
individuals sometimes face hostility from within the gay and lesbian
community. For example, some lesbians are hostile to transgender
women because they view trans women as repressed gay men who are
sexually attracted to other men but cannot accept their sexual
orientation.
69
These lesbians believe trans women falsely assert a female
gender identity in order to achieve their goal of being with men.
70
This
view of transgender women, like the traditional understanding of sex and
gender, aligns gender identity with biological sex.
64
. Esther N. Tebbe & Bonnie Moradi,
Anti-Transgender Prejudice: A Structural Equation
Model of Associated Constructs
,
59 J. Counseling Psychol. 251, 251 (2012).
65
. Gary J. Gates, Williams Inst., How Many People Are Lesbian, Gay, Bisexual, and
Transgender? 6 (Apr. 2011),
available at
http://williamsinstitute.law.ucla.edu/wp-content/uploads/
Gates-How-Many-People-LGBT-Apr-2011.pdf. In 2003, the transgender population in the District of
Columbia alone was about 4,000 persons. Jessica Xavier, Fact Sheet for Anti-Transgender
Violence in the District of Columbia (Aug. 22, 2003),
available at
http://www.glaa.org/archive/2003/
Fact%20Sheet%20for%20Anti-TG%20Violence%200822.pdf.
66
. Nat’l Ctr. for Transgender Equal., Understanding Transgender: Frequently Asked
Questions About Transgender People 1
(May 2009),
available at
http://transequality.org/Resources/
NCTE_UnderstandingTrans.pdf.
67
. For commentary on why adding the “T” to “LGB” makes sense, see Matt Kailey,
Does T
Belong with LGB?
, Matt Kailey’s Tranifesto (Sept. 14, 2009), http://tranifesto.com/2009/09/14/does-
t-belong-with-glb.
But see
John Aravosis,
How Did the T Get in LGBT?
, Salon (Oct. 8, 2007, 4:10
AM), http://www.salon.com/2007/10/08/lgbt (raising concerns and questions about whether adding the
“T” to “LGB” makes sense); Brynn Tannehill,
Why ‘LGB’ and ‘T’ Belong Together
, The Huffington
Post (Feb. 25, 2013, 10:52 AM), http://www.huffingtonpost.com/brynn-tannehill/why-lgb-and-t-belong-
together_b_2746616.html.
68
. There is evidence that police officers often mischaracterize acts of violence against
transgender people as hate crimes based on sexual orientation rather than gender identity. Moran &
Sharpe,
supra
note 23, at 409; Stotzer,
supra
note 13, at 176.
69
. Kogan,
supra
note 25, at 1230.
70
. Id.
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It is important to recognize the multidimensional identities held by
transgender persons.
71
Transgender men and women can be
heterosexual, gay or lesbian, or bisexual. They may be wealthy, middle-
class, working class, or at the bottom of the socio-economic ladder.
72
They may be White
73
or belong to a racial or ethnic minority group.
B. Violence Against Transgender Persons
The moment of forced disclosure is a hostile one to experience, one in
which many trans women, even those who have the conditional
privilege of ‘passing’ that I have, can be victim to violence and exiling.
—Janet Mock
74
Transgender men and women are harassed, assaulted, and killed at
alarming rates.
75
Assessing the true extent of violence against
transgender people is difficult because, until recently, there was no
nationwide effort to collect statistics on crimes motivated by gender
identity bias. Numerous attempts to add gender and gender identity to
the list of bias categories protected under the Hate Crimes Statistics Act
71
. As Leslie Morgan and Andrew Sharpe note, “it is necessary for interventions to recognise
[sic] the many differences between transgender people, differences that run along axes of race,
ethnicity, class, age and sexuality, as well as differences between transgender women and transgender
men . . . .” Leslie J. Moran & Andrew N. Sharpe,
Policing the Transgender/Violence Relation
,
13 Current Issues Crim. Justice 269, 281 (2002).
See
Darren Lenard Hutchinson,
Identity Crisis:
“Intersectionality,” “Multidimensionality,” and the Development of an Adequate Theory of
Subordination
, 6 Mich. J. Race & L. 285, 314 (2001) (arguing for a multidimensional equality theory
that would be more responsive to the needs of transgender people); Peter Kwan,
Jeffrey Dahmer and
the Cosynthesis of Categories
, 48 Hastings L.J. 1257, 1264 (1997) (developing a theory of
“cosynthesis” that replaces current conceptualizations of race, gender, and sexual orientation as
separate categories with a theory that allows their simultaneous implication).
72
. Many transgender persons are unemployed because of discrimination they suffered when they
transitioned or became open about their gender identity. Jaime M. Grant et al., Nat’l Ctr. for
Transgender Equal. & Nat’l Gay and Lesbian Task Force, Injustice at Every Turn: A Report of
the National Transgender Discrimination Survey 51 (2011),
available at
http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf (noting that “[f]orty-seven
percent (47%) [of those surveyed] said they had experienced an adverse job outcome, such as being
fired, not hired or denied a promotion because of being transgender/gender non-conforming; 26% of
respondents said that they had lost a job due to being transgender or gender non-conforming”).
73
. I purposely capitalize the word White to emphasize the fact that Whiteness is a socially
constructed racial category.
See, e.g.
,
Angela Onwuachi-Willig,
Celebrating Critical Race Theory at
20
, 94 Iowa L. Rev. 1497, 1500 n.11 (2009) (explaining author’s choice to capitalize Black and White
when used as nouns to describe racial groups, but not when used as adjectives).
See also
Cheryl I.
Harris,
Whiteness as Property
, 106 Harv. L. Rev. 1707, 1716–18 (1993) (arguing that whiteness was in
part a social construct designed to differentiate free whites from enslaved blacks); Martha R.
Mahoney,
Segregation, Whiteness, and Transformation
, 143 U. Pa. L. Rev. 1659, 1660 (1995) (arguing
“race is a social construction in which whiteness is a distinct, socially constructed identity”).
74
. Mock,
supra
note 33, at 247. By “passing,” Mock means being able to pass as an individual
who was born with female anatomy, not having her female gender identity questioned.
75
. Spade,
supra
note 41, at 78 n.12.
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95
were unsuccessful until recently.
76
In 2012, Congress finally passed the
Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of
2009, which amended the Hate Crimes Statistics Act to include bias
based on gender and gender identity.
77
No federal government statistics
on hate crimes based on gender identity, however, were available at the
time this Article was written.
78
While twelve states and the District of
Columbia prohibit hate crimes based on actual or perceived gender
identity,
79
hate crimes against transgender individuals may be
significantly underreported because gender identity bias is often
mischaracterized as bias on the basis of sexual orientation.
80
While government data on violence against transgender persons is
limited, a few private organizations have begun collecting data on anti-
transgender violence. For example, the International Transgender Day
of Remembrance Project, sponsored by Gender Education and
Advocacy and authored by Gwendolyn Ann Smith, reported in
November 2011 that over 330 transgender murders had occurred in the
United States since 1970.
81
This comes to an average of six or seven
murders involving trans victims each year, or one murder every two
months, over the last four decades. Reports from the National Coalition
of Anti-Violence Programs (“NCAVP”) suggest that the number of
transgender victims of murder has increased significantly in the last few
years. According to the NCAVP, thirteen transgender individuals, all
transgender women of color, were murdered in 2012,
82
twelve
76
. See
Stotzer,
supra
note 13, at 177 (noting that “in 2007 both the House and Senate passed
versions of a hate crime law, called the Matthew Shepard Act, that would have mandated the FBI to
count transgender hate crimes in the United States as they counted those based on race, ethnicity,
sexual orientation, religion, and disability” but both House and Senate versions of the bill were
unsuccessful).
77
. 28 U.S.C. § 534 (2014).
78
. The FBI is implementing mechanisms to collect data on crimes motivated by gender and
gender identity bias.
Hate Crimes Remain Steady: 2010 FBI Report Released
, Fed. Bureau of
Investigation (Nov. 14, 2011), http://www.fbi.gov/news/stories/2011/november/hatecrimes_111411.
79
. Cal. Penal Code §§ 422.55, 422.56 (West 2014); Colo. Rev. Stat. § 18-9-121 (2014); Conn.
Gen. Stat. § 53a-181j (2014); D.C. Code §§ 22-3701, 22-3702 (2014); Haw. Rev. Stat. § 846-51 (2014);
MD. Code Ann., Educ. § 7-424 (LexisNexis 2014); Minn. Stat. §§ 363A.03(44), 609.2231(4),
609.595(1a), 611A.79 (2014); Mo. Rev. Stat. § 557.035 (2014); N.J. Stat. Ann. § 2C:16-1 (West 2014);
N.M. Stat. Ann. § 31-18B-3 (2014); Or. Rev. Stat. §§ 166.155, 166.165 (2014); Vt. Stat. Ann. tit. 13,
§§ 1455, 1458 (2014); Wash. Rev. Code § 9A.36.080 (2014).
See
Jim O’Hara,
Dwight DeLee Gets the
Maximum in Transgender Slaying
, Syracuse.com (Aug. 18, 2009, 12:00 PM),
http://www.syracuse.com/news/index.ssf/2009/08/dwight_delee_to_be_sentenced_i.html; Jim Spellman,
Transgender Murder, Hate Crime Conviction a First
, CNN (Apr. 23, 2009), http://www.cnn.com/2009/
CRIME/04/22/transgender.slaying.trial/index.html.
80
. Moran & Sharpe,
supra
note 23, at 409 (“the tendency to translate a trans incident to one of
homophobia [might be attributed to a] lack of understanding”); Stotzer,
supra
note 13, at 176.
81
. All Years to 2011
, Int’l Transgender Day of Remembrance, http://tdor.info/?attachment_
id=2216 (last updated Nov. 10, 2011).
82
. Nat’l Coal. of Anti-Violence Programs, Lesbian, Gay, Bisexual, Transgender, Queer
and HIV-Affected Hate Violence in 2012, at 8 (2013),
available at
http://www.avp.org/storage/
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transgender persons were murdered in 2011,
83
twelve transgender
persons were murdered in 2010,
84
and eleven transgender persons were
murdered in 2009. These statistics indicate that an average of one
transgender murder occurs each month.
85
Professor Spade estimates that
the murder rate of transgender persons is 17 times higher than the
murder rate of non-transgender individuals.
86
The Human Rights
Campaign estimates that one out of every 1,000 homicides in the United
States is an anti-transgender hate crime.
87
In addition to facing the threat of being killed because of their
gender identity, transgender persons are assaulted at alarming rates. In
an in-depth study of types of violence experienced by a sample of 402
transgender persons across the United States, Emilia Lombardi and
others found that close to half of the sample population (forty-seven
percent) had been assaulted because of their transgender status at some
point during their lives.
88
In other words, one out of every two
transgender individuals is likely to be physically attacked at some point
in his or her lifetime because of his or her transgender status.
In its most recent reports, the NCAVP found that approximately
431 transgender persons were the victims of hate violence in 2010
89
and
approximately 371 transgender persons were the targets of hate violence
in 2009.
90
These statistics suggest that each month, between thirty to
documents/ncavp_2012_hvreport_final.pdf (noting that transgender women accounted for fifty percent
of the twenty-five lesbian, gay, bisexual, transgender, queer, and HIV-affected (“LGBTQH”) murder
cases).
83
. Nat’l Coal. of Anti-Violence Programs, Hate Violence Against Lesbian, Gay, Bisexual,
Transgender, Queer, and HIV-Affected Communities in the United States in 2011, at 45 (2012),
available at
http://www.avp.org/storage/documents/Reports/2012_NCAVP_2011_HV_Report.pdf
(noting that transgender women accounted for forty of the thirty LGBTQH murder cases).
84
. Nat’l Coal. of Anti-Violence Programs, Hate Violence Against Lesbian, Gay, Bisexual,
Transgender, Queer, and HIV-Affected Communities in the United States in 2010, at 7 (2011),
available at
http://www.avp.org/storage/documents/Reports/2011_NCAVP_HV_Reports.pdf (noting that
transgender women accounted for forty-four percent of the twenty-seven LGBTQH murder cases).
85
. Nat’l Coal. of Anti-Violence Programs, Hate Violence Against the Lesbian, Gay,
Bisexual, Transgender, and Queer Communities in the United States in 2009, at 32 (2010),
available at
http://www.avp.org/storage/documents/Reports/2009_NCAVP_HV_Report.pdf (noting
that transgender women accounted for fifty percent of the twenty-two hate murder cases).
86
. Spade,
supra
note 41, at 78 n.12.
87
.
How Do Transgender People Suffer from Discrimination?
, Human Rights Campaign,
available at
http://web.archive.org/web/20110710192512/http://www.hrc.org/issues/1508.htm (last visited Dec. 14, 2014).
88
. Emilia L. Lombardi et al.,
Gender Violence: Transgender Experiences with Violence and
Discrimination
, 42 J. Homosexuality 89, 95 (2001).
89
. Transgender, gender nonconforming (self-identified, genderqueer, and questioning), and
intersex persons represented a combined 17.2% of all reports of anti-LGBTQH hate violence in 2010.
Nat’l Coal. of Anti-Violence Programs,
supra
note 84, at 25. NCAVP gathered information on
2,503 LGBTQH survivors and victims in 2010.
Id.
at 17. This percentage amounts to approximately
431—the number of transgender and non-gender conforming victims of hate violence in 2010.
90
. NCAVP found that 2,181 LGBTQH persons were the victims of hate violence in 2009. Nat’l
Coal. of Anti-Violence Programs,
supra
note 85, at 16. Transgender and gender nonconforming
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97
thirty-six transgender persons are the victims of hate violence in the
United States. In other words, each day, somewhere in the United States,
a transgender person is subjected to a violent attack because of his or her
gender nonconformity.
Race and class often interact with gender identity in ways that mark
low-income transgender persons of color as the ones most at risk of
becoming victims of an assault. In one study of violence against
transgender individuals in Los Angeles County from 2002 to 2006,
Rebecca Stotzer found that transgender persons were rarely attacked
“solely because of their gender identity; a host of other dimensions,
including race, came into play as well.”
91
Stotzer’s study revealed that
transgender victims of hate violence were disproportionately African
American
92
and that “[t]ransgender people at the bottom of the
socioeconomic ladder [were] more likely to be victims of violence.”
93
Stotzer concluded that transgender persons may be targets of violence
because they are stereotyped as easy targets.
94
Reports from the
NCAVP, which began collecting data on attacks against transgender
people in 1998, echo Stotzer’s findings.
95
The NCAVP found that, of all
the victims of anti-LGBTQ violence, transgender persons and people of
color were the most likely to be the victims of hate violence.
96
II. Provocation and Trans Panic
What I think is a problem is that these transgenders lie and say they’re
women to get with some man, and then he’s got to beat them up.
—Anonymous
97
individuals constituted seventeen percent of the total number of LGBTQH persons who were the
victims of hate violence in 2009.
Id.
at 17 (noting that transgender women accounted for approximately
eleven percent of those reporting and transgender men, those with intersex conditions, and people
identifying as self-identified or other, genderqueer, or questioning, accounted for six percent of reports
in 2009). Seventeen percent of 2,181 is 371.
91
. Rebecca L. Stotzer,
Gender Identity and Hate Crimes: Violence Against Transgender People
in Los Angeles County
, 5 Sexuality Res. & Soc. Pol’y 43, 50 (2008).
92
. Id.
at 46.
93
. Id.
at 50; Shay & Strader,
supra
note 22, at 180 (noting that the media pays less attention to
victims that are economically underprivileged, transgender, or people of color).
94
.
Stotzer,
supra
note
91, at 47.
95
. Nat’l Coal. of Anti-Violence Programs, Anti-Lesbian, Gay, Bisexual and Transgender
Violence in 1998, at 19 (1999),
available at
http://www.avp.org/storage/documents/Reports/1998_NCAVP_
Bias_Report.pdf (reporting 148 cases of violence against transgender women and 13 cases of violence
against transgender men for a total of 161 cases of hate violence against transgender victims).
96
. Nat’l Coal. of Anti-Violence Programs,
supra
note 85, at 7.
97
. Interview by Professor Gabriel Arkles with Anonymous Training Attendee, Transgender
Awareness for Service Providers, in L.A., Cal. (Feb. 8, 2013).
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A. The Doctrine of Provocation
The defense of provocation, also known as the heat of passion
defense, is a partial defense to murder.
98
If the jury finds that the
defendant was provoked into a heat of passion by legally adequate
provocation, it may find the defendant not guilty of murder, the charged
offense, and instead find the defendant guilty of voluntary manslaughter,
a less serious form of homicide.
99
Alternatively, the jury may mitigate in
favor of the defendant by rejecting a charge of first-degree murder,
finding the defendant guilty of only second-degree murder.
100
At early common law, not all forms of provocation had this
mitigating legal effect. Courts recognized only limited categories of
legally adequate provocation. A murder defendant could claim
provocation only if he had: (1) suffered an extreme assault or battery, (2)
been engaged in mutual combat with the victim, (3) observed the victim
committing a serious felony against a close relative, (4) been illegally
arrested, or (5) caught his wife in the act of adultery.
101
These five
categories were the only ways a defendant could mitigate a murder
charge down to manslaughter, and reflected what constituted legally
adequate provocation at early common law.
102
The early common law
approach was problematic because it was very rigid. A defendant could
not claim the provocation mitigation unless he fell strictly within one of
the categories of legally adequate provocation. The early common law
approach was woefully insensitive to context.
Eventually, the early common law approach was abandoned in favor
of a more flexible, context driven approach. Today, most jurisdictions
utilize a “reasonable person” approach to provocation.
103
Under the
98
. Provocation is a partial defense, not a complete defense, because the defendant who
successfully argues provocation is not fully absolved of criminal liability. The defendant is merely
acquitted of the charged offense but convicted of a lesser offense.
See
Dressler,
supra
note 14, at
§ 31.07(A).
99
.
See id.
;
see also
, Del. Code Ann. tit. 11, § 632 (2014) (“A person is guilty of manslaughter
when . . . [t]he person intentionally causes the death of another person . . . under the influence of extreme
emotional disturbance.”); Tenn. Code Ann. § 39-13-211(a) (2014) (“Voluntary manslaughter is the
intentional or knowing killing of another in a state of passion produced by adequate provocation
sufficient to lead a reasonable person to act in an irrational manner.”).
100
. See, e.g.
, 720 Ill. Comp. Stat. 5/9-2 (2014) (“A person commits the offense of second-degree
murder when he or she commits the offense of first-degree murder . . . [and] at the time of the killing he
or she is acting under a sudden and intense passion resulting from serious provocation by the individual
killed . . . .”); Wis. Stat. § 939.44(2) (2014) (“Adequate provocation is an affirmative defense only to first-
degree intentional homicide and mitigates that offense to 2nd-degree intentional homicide.”).
101
. Dressler,
supra
note 14, at § 31.07(B)(2)(a).
102
. Cynthia Lee, Murder and the Reasonable Man: Passion and Fear in the Criminal
Courtroom 19 (2003).
103
. Id.
at 25. Some jurisdictions have adopted the Model Penal Code’s extreme emotional
disturbance defense, which allows a defendant who kills while suffering from an extreme mental or
emotional disturbance for which there is a reasonable explanation or excuse to be convicted of
manslaughter rather than murder. Model Penal Code § 210.3(1)(b) (2001). Under the Model Penal
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99
modern test for provocation, the jury may find a defendant charged with
murder guilty of the lesser included offense of voluntary manslaughter if
it finds that: (1) the defendant was actually provoked into a heat of
passion, (2) the reasonable person in the defendant’s shoes would have
been provoked, (3) the defendant did not have time to cool off, and (4)
the reasonable person would not have cooled.
104
The provocation defense is based on the idea that certain extreme
circumstances might cause the average person to lose his or her self-
control and react in a fatally violent way.
105
If the provoked killer’s loss
of self-control is something that an ordinary person in the same situation
might experience, the provoked killer is considered less culpable than the
average intentional killer, and therefore deserving of some mitigation.
106
The difficult question is usually thought to be which characteristics of the
defendant ought to be incorporated into the reasonable person standard
to ensure a fair assessment of the defendant’s culpability. This is the
wrong question to ask. As Peter Westen argues, the key question in
provocation cases is not to what extent the idealized reasonable person
should be individualized with the defendant’s traits, but rather whether
the defendant’s “inadvertence or extreme emotional agitation . . . manifests
appropriate respect on his part for the interests of others.”
107
Similarly,
Kyron Huigens observes that provocation is less a question regarding the
capacity of the defendant to conform his conduct to the law and more a
question of whether the defendant has lived up to normative
expectations.
108
Accordingly, the question jurors should be asking when
evaluating whether a defendant’s claim of provocation should be
accepted is whether the defendant’s loss of self-control was normatively
appropriate, not whether the average person in the defendant’s shoes
would have lost his self-control.
The provocation doctrine is usually viewed as a partial excuse rather
than a partial justification.
109
The law mitigates not because society
Code’s test, the reasonableness of the explanation or excuse is to be viewed from the defendant’s
perspective, not the perspective of an ordinary or typical person.
Id.
;
see also
Paul H. Robinson,
Murder
Mitigation in the Fifty-Two American Jurisdictions: A Case Study in Doctrinal Interrelation Analysis
, 47
Tex. Tech L. Rev. (forthcoming 2014
)
(noting that 40 states currently use the modern test for provocation
and only twelve states have adopted the Model Penal Code’s extreme emotional disturbance defense)
.
104
. Dressler,
supra
note 14, at § 31.07(A); Lee,
supra
note 102, at 25.
105
. Dressler,
supra
note 14, at § 31.07(B)(2)(b)(i).
106
. Id.
107
. Peter Westen,
Individualizing the Reasonable Person in Criminal Law
, 2 Crim. Law & Phil.
137, 140 (2008).
108
. Kyron Huigens,
Provocation at Face Value
, 95 Marq. L. Rev. 409, 440–42 (2011) (arguing that
provocation should be looked at in terms of normative expectations).
109
.
See
Dressler,
supra
note 14, at § 31.07(C)(1)–(2). In the criminal law context, a justification
defense suggests the defendant did the right thing or acted the way society would have wanted him to act.
Id.
at § 23.04(B). An excuse, in contrast, implies that the defendant did not do the right thing, but is not
morally blameworthy or at least less morally blameworthy because of some excusing condition like a
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considers the provoked killer as having done the right thing, but because
it sees the defendant as less guilty than an unprovoked killer.
110
The
defense is better viewed as one that includes features of both excuse and
justification.
111
To the extent the doctrine mitigates culpability due to the
defendant’s loss of self-control, it functions as an excuse. The doctrine
recognizes that the defendant who cannot control his actions is less
morally blameworthy than the defendant who kills intentionally. But this
explanation is not wholly satisfactory. Many killers who claim they were
provoked fully intended to kill their victims.
112
To say that they are less
morally blameworthy than the defendant who kills intentionally does not
seem adequate as an explanation for the mitigation they receive. The
provoked killer will often claim that the victim did something that
provoked him into killing, suggesting that the victim was at least partially
at fault for her own demise.
113
In this sense, the provocation defense
operates as a partial justification because its success turns on the extent
to which the fact finder agrees with the defendant that the victim was
partially responsible for the circumstances leading to her death.
114
Our
recognition of the justificatory aspects of the provocation defense should
not be interpreted as support for viewing provocation as a partial
justification. We do not think it is right for a defendant claiming
provocation to blame the victim. Nonetheless, this is a fairly common
feature of provocation cases, suggesting that in its application, the
provocation defense operates as a partial justification and partial excuse.
B. Gay Panic
In the late 1960s, male defendants charged with murdering gay men
began using gay panic defense strategies.
115
The defendant claiming gay
panic would argue either that the victim’s unwanted sexual advance
provoked him into a heat of passion or that it caused him to go
mental disease or defect.
Id.
; Reid Griffith Fontaine,
Adequate (Non)provocation and Heat of Passion as
Excuse
, 43 U. Mich. J.L. Reform 27, 42 (2009) (arguing that the heat of passion defense “must be
understood as a partial excuse”).
But see
Susan D. Rozelle,
Controlling Passion: Adultery and the
Provocation Defense
, 37 Rutgers L.J. 197, 217 (2005) (“If the provocation doctrine is to remain in our
criminal law jurisprudence in any form, it must find its home as a justification, rather than as an excuse.”).
110
. Dressler,
supra
note 14, at § 31.07(C)(2)(b).
111
. Lee,
supra
note 102, at 227–29 (discussing the justificatory nature of the provocation
defense).
112
.
For example, the man who finds his wife in bed with another man and kills the lover may fully
intend to end the man’s life. By invoking the provocation defense, the defendant is arguing not that he
lacked the intention to kill, but that what he did was understandable.
113
.
For example, a male defendant who argues provocation after killing a gay man suggests that
his victim was to blame for unwisely making an unwanted sexual advance upon a heterosexual man.
114
.
Lee,
supra
note 102, at 229 (“Underlying many provocation claims is the idea that the victim got
what he or she deserved.”).
115
. See
People v. Rodriguez, 64 Cal. Rptr. 253, 255 (Cal. Ct. App. 1967);
see also
Lee,
supra
note
3, at 491.
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101
temporarily insane.
116
There are no precise statistics on how often gay
panic has been asserted as a defense, but some estimate that defendants
claimed gay panic in approximately 200 cases between 1996 and 2006.
117
One of the earliest uses of gay panic came in a case famous not
because the defendant used a gay panic defense, but because the case
reinforced the well-established principle that the prosecution bears the
burden of proving every element of the charged offense beyond a
reasonable doubt.
118
In
Mullaney v. Wilbur
, the defendant who was
charged with murdering Claude Hebert in Hebert’s hotel room claimed
he “attacked Hebert in a frenzy provoked by Hebert’s homosexual
advance.”
119
The defense argued that the jury should find Wilbur not
guilty of murder because he lacked criminal intent or that, at most, he
should be found guilty of manslaughter since the killing occurred in the
heat of passion and he was provoked by the victim’s homosexual
assault.
120
Under Maine law, a defendant arguing provocation bore the
burden of proving by a preponderance of the evidence that he acted in a
heat of passion.
121
The Supreme Court held that placing the burden of
proving heat of passion on the defendant violated the due process
requirement that the government bears the burden of proving beyond a
reasonable doubt every fact necessary to constitute the crime charged.
122
As a result, the Court concluded that the State could not shift this burden
to the defendant by requiring him to prove he was provoked into a heat
of passion.
Gay panic continued to be used as a defense strategy from time to
time in cases throughout the 1970s and 1980s. The defense gained
national prominence when it was asserted in the Matthew Shepard case
in 1999.
123
Shepard, an openly gay undergraduate student at the
University of Wyoming, was brutally beaten to death and tied to a
wooden fence by Aaron McKinney and Russell Henderson in October
1998.
124
The case received a great deal of media attention, with gay rights
groups denouncing the brutal killing as the murder of an innocent gay
116
. Dressler,
supra
note 9, at 758; Lee,
supra
note 3, at 491, 500; Mison,
supra
note 9, at 160.
117
. Yomi S. Wronge,
Bill Aims to Block ‘Panic Defense’—Proposal Is Named for Transgender
Teen
, S.J. Mercury News, Jan. 16, 2006, at A2 (“There are no solid statistics on how many defendants
use the panic defense, but opponents estimate there have been about 200 cases in the past decade.”).
118
. Mullaney v. Wilbur, 421 U.S. 684, 704 (1975).
119
. Id.
at 685.
120
. Id.
121
. Id.
at 703.
122
.
The Supreme Court’s jurisprudence on the question of which party bears the burden of proof
has not been consistent. In
Patterson v. New York
, 432 U.S. 197 (1977), just two years after
Mullaney
v. Wilbur
, 421 U.S. 684, the Court upheld a statute placing the burden of proving extreme emotional
disturbance—the Model Penal Code’s version of the provocation defense—on the defendant.
123
. Lee,
supra
note 3, at 523.
124
. Id.
Henderson pled guilty to murder to avoid the death penalty. Jim Hughes,
Plea Self-
Serving, Lawyer Says Shepard Assailant Stays Off Death Row
, Denv. Post, Apr. 7, 1999, at B-01.
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man. At McKinney’s trial, his attorneys argued that Shepard was at fault
for provoking McKinney into a heat of passion because Shepard grabbed
McKinney’s crotch and tried to lick McKinney’s ear while in McKinney’s
pickup truck.
125
The jury, however, rejected the defense’s attempt to
mitigate the murder charge to manslaughter, finding McKinney guilty of
felony murder.
126
Five years after he was convicted, McKinney admitted, in a
jailhouse interview with 20/20’s Elizabeth Vargas, that he lied when he
claimed Shepard made these sexual advances.
127
20/20’s investigation
into the murder revealed other facts that called McKinney’s claim of gay
panic into question. For example, in a recently published book about the
killing of Matthew Shepard, Stephen Jimenez, the investigative journalist
who worked with Elizabeth Vargas on the 20/20 investigation, reported
that McKinney was a frequent visitor of gay bars and engaged in sex with
other men long before he killed Shepard.
128
If true, this would undermine
McKinney’s claim that he found Shepard’s alleged sexual advance
upsetting because it came from a man.
The gay panic defense strategy was again utilized in a case out of
Oxnard, California, in which fourteen-year-old Brandon McInerney shot
and killed his fifteen-year-old classmate Larry King on February 12,
2008.
129
King was a gender-nonconforming student at E.O. Green Junior
High,
130
who, in January 2008, began going to school wearing lipstick and
high heels.
131
In media reports about the case, King was described as an
openly gay teen.
132
The fact that King liked to wear makeup and high
125
. Lee,
supra
note 3, at 523–24;
see
Patrick O’Driscoll,
Lawyer: Panic Drove Defendant
, USA
Today, Oct. 26, 1999, at A6 (noting that McKinney’s lawyer claimed McKinney blacked out with rage
after Shepard grabbed his crotch and licked his ear as they headed out of town).
126
. Tom Kenworthy,
2nd Man Is Convicted of Killing Gay Student; Wyo. Jury Weighs
McKinney’s Fate
, Wash. Post, Nov. 4, 1999, at A1 (noting that the jury of seven men and five women
found McKinney guilty of felony murder, kidnapping and aggravated robbery).
127
.
20/20:
The Matthew Shepard Story: Secrets of a Murder
(ABC television broadcast Nov. 26,
2004) (McKinney admitted that the gay panic argument was something he and his lawyers made up
because they thought it would be the best way to prove McKinney did not intend to kill Shepard).
128
. Stephen Jimenez, The Book of Matt: Hidden Truths About the Murder of Matthew
Shepard 29 (2013).
129
. Catherine Saillant,
Mistrial in Killing of Gay Student
, L.A. Times, Sept. 2, 2011, at AA1
[hereinafter Saillant,
Mistrial in Killing
]; Catherine Saillant,
Trial in Killing of Gay Teen Will Test
New Law
, L.A. Times, July 21, 2011, at AA1 [hereinafter Saillant,
Trial in Killing of Gay Teen
]. For an
excellent analysis of this case, see Strader et al.,
supra
note 9.
130
. Ramin Setoodeh et al.,
Young, Gay and Murdered
, Newsweek, July 28, 2008, at 41. Just
before he was shot, King told a female classmate that he was planning to change his name from Larry
to Leticia. Steve Chawkins,
Gay Student Shooting: ‘I Wanted To Kill Him,’ Accused Told Expert
,
L.A. Times Blog (Aug. 15, 2011, 1:58 PM), http://latimesblogs.latimes.com/lanow/2011/08/gay-student-
shooting-i-wanted-to-kill-him-accused-told-expert.html.
131
. Setoodeh et al.,
supra
note 130,
at 43.
132
. Catherine Saillant & Richard Winton,
Retrial in Gay Youth’s Shooting to Omit Hate
Allegation
, L.A. Times, Oct. 6, 2011, at A1.
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103
heels and was planning to change his name from Larry to Leticia,
however, suggests that King was actually a transgender female, not a gay
male.
133
According to the defense, a few days before the shooting, King was
playing a game with a group of friends in which each participant had to
approach someone and ask them to be their Valentine.
134
King allegedly
walked up to McInerney, who was playing basketball nearby, and asked
McInerney, in front of McInerney’s friends, to be his Valentine.
135
McInerney’s friends started teasing McInerney, saying McInerney and
King were going to make “gay babies” together.
136
The day before the fatal shooting, while passing McInerney in the
hall, King allegedly blew a kiss at him and said something like, “What’s
up, baby?”
137
Later that day, McInerney told one of King’s friends to say
goodbye to King because she would never see him again.
138
The next day,
McInerney brought a .22 caliber handgun to school.
139
Upon hearing
King tell a female classmate that he had changed his name from Larry to
Leticia, McInerney took out the gun, which he had hidden in his
backpack, and shot King twice in the back of his head.
140
At McInerney’s murder trial, his attorneys argued that King’s
repeated sexual taunts provoked him into a heat of passion and,
therefore, he should be found guilty of voluntary manslaughter, not
murder.
141
The government asserted that McInerney shot King in cold
blood and should be found guilty of first-degree murder.
142
Jurors at
McInerney’s trial could not come to an agreement, with seven in favor of
voluntary manslaughter and five favoring murder.
143
As is common when
a jury hangs, the judge declared a mistrial. Before he could be retried,
133
. In “Valentine Road,” a documentary about the case, one of King’s friends says Larry was a
transgender teen. Valentine Road (Bunim-Murray Productions & Eddie Schmidt Productions 2013).
134
. Strader et al.,
supra
note 9, at 11 (noting that forensic psychologist Donald Hoagland testified
McInerney told him King came onto the basketball court, interrupted the game, and ask ed to be
McInerney’s valentine); Setoodeh et al.,
supra
note 130, at 45.
135
. Setoodeh et al.,
supra
note 130, at 45.
136
. Id.
No witnesses at McInerney’s trial, however, testified that they actually saw this exchange
between King and McInerney. Strader et al.,
supra
note 9, at 11.
137
. Setoodeh et al.,
supra
note 130, at 45–46.
138
.
Id.
139
. Id.
140
. Id.
141
. Id.
142
. Strader et al.,
supra
note 9, at 35 (“Brandon McInerney was charged with first-degree murder, which
required the jury to find that McInerney acted willfully (intentionally) with premeditation and deliberation.”).
143
. Catherine Saillant,
Gay Teen’s Killer Takes 21-Year Deal
, L.A. Times, Nov. 22, 2011, at AA1
(“McInerney’s first trial ended in a hung jury in early September, with jurors torn between murder and
manslaughter.”);
Mistrial Declared in Killing of Gay California Student
, CNN (Sept. 8, 2011, 5:44
AM), http://www.cnn.com/2011/CRIME/09/01/california.gay.student.murder/index.html (“[T]he nine-
woman, three-man jury panel said its last vote resulted in seven in favor of finding the defendant guilty
of voluntary manslaughter.”).
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McInerney pled guilty to second-degree murder and voluntary
manslaughter and agreed to serve twenty-one years in prison, in addition
to the approximately four years he had already served prior to the plea
bargain.
144
McInerney’s assertion of the gay panic defense resonated with seven
of the twelve jurors who felt McInerney did not deserve to be convicted
of murder.
145
The fact that a majority of the jurors sympathized with
McInerney’s claim was surprising given the strong evidence of
premeditation and deliberation. McInerney admitted to the psychiatrist
who interviewed him after his arrest that he thought about killing King in
advance.
146
McInerney told the psychiatrist that King’s comments
bothered him so much that he decided to kill King.
147
McInerney brought
a loaded gun to school and concealed it in his backpack.
148
Moreover, as
Kelly Strader notes, McInerney lied to his teacher about being finished
with his assignment in order to be moved to the chair near the drinking
fountain, which was directly behind King.
149
McInerney stared at the
back of King’s head for twenty minutes before he fired the first shot.
150
He shot King not once, but twice, in the back of the head and fired the
second shot after the teacher in the room heard the first shot, looked at
McInerney, and asked him “what the hell he was doing.”
151
All of these
acts suggest that McInerney thought about killing King before he pulled
the trigger, and that he did so with calm, cool reflection and
deliberation.
152
144
.
See
Conversation between Cynthia Lee and Maeve Fox, Senior Deputy Dist. Att’y, Ventura
Cnty. Dist. Att’y Office (Feb. 10, 2014);
see also
Saillant,
supra
note 143. Apparently the plea deal was
to ensure that McInerney would have a murder conviction on his record. Conversation between
Cynthia Lee and Maeve Fox,
supra
. In exchange for his plea of guilty, McInerney will be paroled at
age 39.
Id.
145
. Saillant,
Mistrial in Killing
,
supra
note 129 (“Jurors deadlocked 7 to 5 in favor of voluntary
manslaughter in the emotional two-month trial . . . .”); Saillant,
supra
note 143 (“McInerney’s first trial
ended in a hung jury in early September, with jurors torn between murder and manslaughter.”);
Mistrial
Declared in Killing of Gay California Student
,
supra
note 143 (“[T]he nine-woman, three-man jury panel
said its last vote resulted in seven in favor of finding the defendant guilty of voluntary manslaughter.”).
146
. Steve Chawkins,
Psychologist Says Teen ‘Snapped’ and Fatally Shot Student
, L.A. Times,
Aug. 16, 2011, at AA1. The jurors may have also sympathized with McInerney given his age—he was
14 years old when he shot King.
147
.
Chawkins,
supra
note 130.
148
. Calif. Teen Brandon McInerney Sentenced to 21 Years for Point-Blank Murder of Gay
Classmate
, CBS News (Dec. 19, 2011, 10:17 PM), http://www.cbsnews.com/news/calif-teen-brandon-
mcinerney-sentenced-to-21-years-for-point-blank-murder-of-gay-classmate.
149
. Strader et al.,
supra
note 9, at 13–14 (citing interview with Assistant Principal Joy Epstein,
noting that when a student was finished with her assignment that student would be moved to a chair
near the drinking fountain so that someone else could use the computer and that the seat by the
drinking fountain was the seat directly behind King).
150
. Id.
at 13 (citing interview with Detective Dan Swanson in Valentine Road).
151
. Yomi S. Wronge,
Two Found Guilty in Slaying of Teen—Mistrial Declared for Other
Defendant in Transgender Case
, S.J. Mercury News, Sept. 13, 2005, at A1.
152
. Strader et al.,
supra
note 9 (outlining the numerous facts that point to premeditation and intent).
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105
The reaction of the majority of the jurors was also surprising given
that McInerney seemed to have been largely provoked by King’s words.
In most jurisdictions, mere words can never constitute legally adequate
provocation.
153
This is because it is generally thought that people should
keep their emotions in check and not react with physical violence when
they are verbally insulted. In California, however, verbal provocation can
serve to mitigate a murder charge to voluntary manslaughter if the jury
chooses to find that the defendant was reasonably provoked by the
victim’s words and other actions.
154
It is also noteworthy that a majority of the jurors were inclined to
grant McInerney the provocation mitigation despite the fact that the jury
was instructed not to let bias against the victim’s gender identity
influence their deliberations.
155
This suggests that the anti-bias jury
instructions were not effective. One juror felt so strongly that King was
the one at fault that she wrote a letter to the district attorney after the
trial was over, saying she felt the prosecution of McInerney was a
“propaganda filled witch hunt.”
156
That same juror then suggested that
King brought on his own death by engaging in “deviant behavior,”
writing:
You all know this was not a hate crime. You all know the victim had a
long history of deviant behavior. Yes, I said deviant. Not his sexual
orientation—deviant behavior. . . . After weeks of testimony, it is my
firm belief that this young man [Brandon McInerney] reacted to being
bullied and being the target of Larry King’s sexual harassment. There
was provocation.
157
C. Trans Panic
Claims of trans panic, a defense strategy modeled after the gay
panic defense, have garnered increasing attention in recent years. A
murder defendant claiming trans panic alleges that he became upset and
lost control of his actions upon discovering that he engaged in sexual
relations with someone whom he thought was female, but was
biologically male. Essential to the claim of trans panic is the argument
that the average heterosexual man would have been provoked into a
heat of passion if he had discovered that the person with whom he had
153
. Dressler,
supra
note 14, at § 31.07(B)(2)(a); Wayne R. LaFave, Criminal Law 823–35 (5th
ed. 2010).
154
. People v. Berry, 556 P.2d 777, 780 (Cal. 1976) (en banc).
155
. Conversation between Cynthia Lee and Maeve Fox, Senior Deputy Dist. Att’y, Ventura Cnty.
Dist. Att’y Office (Feb. 6, 2014) (confirming that anti-bias jury instructions were given in the
McInerney case);
see
Saillant,
Trial in Killing of Gay Teen
,
supra
note 129.
156
. Letter from Juror Number 11 to Dist. Att’y Gregory D. Totten (Sept. 28, 2011) (on file with
author). The Author thanks Professor Kelly Strader of the Southwestern Law School in Los Angeles,
California, for sharing this letter with her.
157
. Id.
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been sexually intimate was not a “real” female, but a person with male
genitalia pretending to be a woman.
The Gwen Araujo case illustrates the trans panic defense strategy in
action. On October 3, 2003, 17-year-old Gwen Araujo was brutally
beaten to death by a group of four male teenagers she had considered
her friends.
158
Araujo had been sexually intimate with two of the four
teens, Jose Merel and Michael Magidson, engaging in oral and anal
intercourse with each of them.
159
The teens began to suspect that Araujo
was not biologically female after she refused to have vaginal intercourse
with Merel and Magidson on separate occasions, claiming each time to
be menstruating.
160
One night, the teens decided to stop speculating and find out
definitely whether Araujo had male or female genitalia.
161
After Araujo
was forced into a bathroom where Nicole Brown, the girlfriend of one of
the teens, pulled down Araujo’s pants, several of the male teenagers beat
Araujo to death.
162
Three of the teens, Merel, Magidson, and Jason
Cazares, were arrested and charged with murder.
163
The prosecution
argued that the defendants should be found guilty of first-degree
murder.
164
Merel and Magidson admitted to having killed Araujo, but
asked the jury for a voluntary manslaughter conviction.
165
Their
attorneys argued that the discovery that Araujo was anatomically male
was so upsetting that it provoked their clients into a heat of passion.
166
The jury agreed that Merel and Magidson should be found guilty of
murder, but could not come to a consensus on the degree of murder.
167
158
. People v. Merel, No. A113056, 2009 WL 1314822, at *6–8 (Cal. Ct. App. May 12, 2009).
159
. Id.
at *1.
160
. Id.
(indicating the teens were suspicious because Araujo had told one of the teens she was
menstruating just two weeks after she had told the other she was menstruating, and a period usually
lasts less than seven days).
161
. Id.
at *2–3.
162
. Magidson started by putting his arm around Araujo’s throat and choking her repeatedly.
Id.
at *3. Merel followed by using a can of food to hit Araujo on top of her head so hard that the force
dented the can.
Id.
Merel left the room and came back with a frying pan, which he used to hit Araujo
on the crown of her head.
Id.
Next, Magidson punched Araujo twice in the face with a closed fist, and
after she dropped to the floor, kneed her twice in the face.
Id.
at *4. The prosecution argued that Jason
Cazares and Jason Nabors encouraged the beating.
Id.
at *16
.
163
. Id.
at *9
.
“The information included allegations that the defendants had committed a hate
crime in concert.”
Id.
164
. Yomi S. Wronge,
Trial Ordered in Teen’s Killing; Judge Rules Three Defendants Should
Face Charges in October Killing of Transgender Newark Resident
, S.F. Chron., Mar. 19, 2003, at B1.
165
. Yomi S. Wronge,
Mistrial in Killing of Transgender Teen; Jury Deadlocks on Issue of
Premeditation
, S.J. Mercury News, June 23, 2004, at A1.
166
. Id.
Cazares claimed he initially stepped in to stop Magidson from harming Araujo and was
outside the house when Araujo was being beaten.
Merel
, 2009 WL 1314822, at *5 (noting that Cazares
testified at trial that he stopped Magidson, Merel, and Nabors several times from beating Araujo and,
after realizing Araujo was not a woman, went outside to smoke, returning only after Araujo was dead).
167
. Wronge,
supra
note 165 (noting that in Merel’s case, two jurors voted in favor of first-degree
murder while ten jurors voted against, and in Magidson’s case, seven jurors voted in favor of first-
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107
Since the jury was unable to reach a unanimous verdict, the court
declared a mistrial.
168
The State re-filed murder charges against the
defendants, again arguing the defendants should be found guilty of first-
degree murder.
169
After the second trial, a different jury found Merel and
Magidson guilty of second-degree murder but did not find them guilty of
having committed a hate crime.
170
Merel and Magidson were sentenced
to 15 years to life.
171
While the teens were ultimately found guilty of murder, the fact that
it took two trials led many to feel that the law needed to be changed to
prevent defendants from successfully arguing trans panic in the future. In
2006, then-Governor Arnold Schwarzenegger signed A.B. 1160, the
Gwen Araujo Justice for Victims Act, into law. The Act provides that in
any criminal trial or proceeding, upon the request of a party, the court
shall instruct the jury as follows:
Do not let bias, sympathy, prejudice, or public opinion influence your
decision. Bias includes bias against the victim or victims, witnesses or
defendants, based upon his or her disability, gender, nationality, race
or ethnicity, religion, gender identity, or sexual orientation.
172
These anti-bias jury instructions are much like the anti-bias jury
instructions in the ABA’s August 2013 resolution.
173
The Gwen Araujo Justice for Victims Act also made legislative
findings as follows:
1.It is against public policy for juries to render decisions tainted
by bias based upon the victim’s actual or perceived disability, gender,
nationality, race or ethnicity, religion or sexual orientation, or his or
her association with a person or group with one or more of these
characteristics.
2.“Panic strategies” are those strategies that try to explain a
defendant’s actions or emotional reactions based upon the knowledge
or discovery of the fact that the victim possesses one or more of the
characteristics listed above or associates with a person or group with
one or more of these characteristics.
degree murder while five voted against). The jury also deadlocked on Cazares. Ivan Delventhal,
Deliberations Hung Up on Degree of Charges
, Inside Bay Area News (June 23, 2004, 7:55 AM),
http://www.insidebayarea.com/news/ci_2357241 (noting that the jury was 10 to 2 in favor of acquitting
both Merel and Cazares of first-degree murder and 7 to 5 in favor of convicting Magidson of first-
degree murder).
168
.
Merel
, 2009 WL 1314822, at *9.
169
. Yomi S. Wronge,
Opening Arguments in Murder Case Retrial
, S.J. Mercury News, Jun. 2,
2005, at B1.
170
.
Merel
, 2009 WL 1314822, at *9; Wronge,
supra
note 151. The second jury, like the first, could
not reach a verdict on Cazares, so a mistrial was again declared as to Cazares.
Merel
, 2009 WL
1314822, at *9.
171
.
Wronge,
supra
note 151
.
172
. Gwen Araujo Justice for Victims Act, Cal. Penal Code § 1127h (West 2014).
173
. Am. Bar Ass’n.,
supra
note 1.
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3.The Legislature is concerned about the use of societal bias in
criminal proceedings and the susceptibility of juries to such bias. The
use of so-called “panic strategies” by defendants in criminal trials
opens the door for bias against victims based on one or more of the
characteristics listed above or an association with a person or group
with one or more of those characteristics.
4.It is against public policy for a defendant to be acquitted of a
charged offense based upon an appeal to the societal bias that may be
possessed by members of a jury.
174
A separate provision of the bill that would have precluded defendants
from making gay or trans panic arguments did not pass.
175
Concerns
about the constitutionality of such a provision taking away the ability of a
defendant to present a defense may have prompted the rejection of this
part of the bill.
176
A similar bill recently made its way through the California
legislature.
177
In February 2014, Assemblywoman Susan Bonilla
introduced A.B. 2501, which California Governor Jerry Brown signed
into law in September 2014.
178
The law, which amends Section 192 of the
California Penal Code, bars defendants in California from contending
that they were provoked into a heat of passion by the discovery of the
victim’s sexual orientation or gender identity.
179
III. Behind the Claims of Trans Panic
When a heterosexual man kills a transgender woman, his claim of
trans panic may evoke feelings of sympathy or empathy, especially in
male jurors who themselves may be extremely uncomfortable with the
thought of unwanted male sexual contact and may view the transgender
female as a man despite her outward appearance and self-identification
174
. Penal § 1127h.
175
.
See
Wronge,
supra
note 117 (noting that the first version of A.B. 1160 sought to block
defendants charged with a hate crime from asserting a heat of passion defense, but was defeated amid
opposition from Campaign for California Families, a conservative lobbying group).
176
. But see
Memorandum re: Constitutional Analysis of A.B. 1160: Validity of Due Process
Challenges to Legislation Eliminating Gay and Trans Panic Defenses in California from R. Bradley,
Williams Project, UCLA School of Law, to Senator Sheila Kuehl (Feb. 2, 2005),
available at
http://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Kukura-CA-AB1160-Memo-Feb-
2005.pdf (concluding that a statute defining legally adequate provocation for a heat of passion defense
to exclude gay and trans panic defenses would not violate a defendant’s due process rights).
177
. Assemb. B. 2501, 2013–14 Leg., Reg. Sess. (Cal. 2014);
California: Bill To Curb “Gay Panic”
Defense Advances
,
SDGLN.com (Apr. 30, 2014), http://www.sdgln.com/news/2014/04/30/california-
bill-curbing-gay-panic-defense-advances#sthash.tHrUuOPW.dpbs (noting that A.B. 2501 passed the
Assembly Public Safety Committee with a vote of 5–1 and moves next to the Assembly
Appropriations Committee). The full text of this legislation can be found at
http://legiscan.com/CA/text/AB2501/id/1014787.
178
. Seth Hemmelgarn,
Proposal to Ban ‘Gay,’ ‘Trans’ Panic Defenses Introduced
, EBAR.com
(Feb. 26, 2014, 5:43 PM), http://ebar.com/blogs/proposal-to-ban-gay-trans-panic-defenses-introduced.
179
.
2014 Cal. Legis. Serv. ch. 684 (A.B. 2501) (West).
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109
as a female. Whether the jury finds that the defendant was reasonably
provoked may turn on the defendant’s underlying motivation for
violence. In this Part, we examine three possible motivations for the
defendant’s violence: (1) the defendant’s fear of being seen as gay if
others find out he had sex with a transgender individual, (2) the
defendant’s desire to enforce gender norms, and (3) the defendant’s
anger at the victim’s alleged deceit. We also address the normative
question of whether any of these motivations ought to support the claim
that the defendant was reasonably provoked.
A. Protection of the Masculine Identity and the Fear of Being
Seen as Gay
First and foremost, the defendant’s violence may be motivated by
his fear of being seen as gay. The male defendant who kills a transgender
woman with whom he has been sexually intimate may believe that his
attraction to someone who is biologically male reflects his own latent
homosexuality. He may be afraid that if others find out that he was
sexually intimate with a transgender woman, they will think he is gay.
180
The heterosexual man who believes in traditional gender roles may also
see the fact of his having had sex with a transgender female as a threat to
his masculine identity that has to be quashed.
Scholars in the field of masculinities theories observe that in the
United States, men are socialized to believe that being a man means not
being a woman and not being gay.
181
As Michael Kimmel explains,
“being a man means ‘not being like women,’” which requires that one
not desire other men or at least ensure that “no one could possibly ever
180
. If the man who kills a male-to-female transgender person believes that the victim’s true sex is
male, he may believe that any sex he had with the victim was homosexual sex. The trans female who
dates straight men, however, does not view herself as homosexual. If she prefers to date men, her
sexual orientation is decidedly heterosexual.
181
. Ann C. McGinley,
Work, Caregiving, and Masculinities
, 34 Seattle U. L. Rev. 703, 707
(2011) (“For many men, defining oneself as ‘masculine,’ requires proof of two negatives: that one is
not feminine or a girl, and that one is not gay.”); Ann C. McGinley,
Reproducing Gender on Law
School Faculties
, 2009 BYU L. Rev. 99, 108 (“Masculinity involves a flight from the feminine and a
fear of homosexuality.”); Ann C. McGinley, Ricci v. DeStefano:
A Masculinities Theory Analysis
,
33 Harv. J.L. & Gender 581, 586 (2010) (noting that White middle class college men who are members
of fraternities gain acceptance by proving their masculinity to each other, which often involves
mistreating gay men and participating in gang rapes of women); Ann C. McGinley,
Harassing ‘Girls’ at
the Hard Rock: Masculinities in Sexualized Environments
, 2007 U. Ill. L. Rev. 1229, 1251
(“Difference from girls is an integral component in the construction of dominant masculinity.”) (citing
Jon Swain,
Masculinities in Education,
in
Handbook of Studies on Men & Masculinities 213, 223
(Michael S. Kimmel et al. eds. 2005)); Ann C. McGinley,
Masculinities at Work
, 83 Or. L. Rev. 359,
408 (2004) (noting that under hegemonic masculinity, gay men are seen as feminine) ( citing Robert
W. Connell, Masculinities 78 (1995)).
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mistake one for a homosexual.”
182
Similarly, Frank Rudy Cooper
observes that a central feature of masculinity is the need to denigrate and
repudiate those who are not considered masculine, namely women, gays,
and racial minorities.
183
Masculinities scholars speak of “masculinities” in the plural because
there are different ways of establishing masculinity.
184
As Angela Harris
notes, hegemonic masculinity, the kind of masculinity to which white
heterosexual middle and upper class men aspire, is marked by financial
and political power over other men and women, intellectual mastery, and
technological prowess.
185
For these men, being a man means being in
power.
186
In contrast, men of color and working class men, who often are
unable to attain hegemonic masculinity either because they lack the
education and training to exhibit technological prowess or because they
take orders rather than give them, construct “rebellious forms of
manhood.”
187
Harris notes that working class men and men of color often
“resort to ‘hypermasculinity’ (the exaggerated exhibition of physical
strength and personal aggression) in an attempt to gain social status.”
188
Masculinity, for these men, is reflected in physical strength and sexual
prowess.
189
They may use violence to prove their masculinity, particularly
when they feel their masculine identity is being threatened.
190
When a heterosexual man is sexually intimate with a transgender
woman, the heterosexual man may worry that those who find out he was
sexually intimate with a person who is biologically male will think he is
gay. In these situations, killing the transgender woman reinforces and
affirms the defendant’s masculine identity in two ways. First, the
defendant shows the world that he is disgusted with the thought of
having sex with another man, and, therefore, he is not gay. Second, the
defendant attempts to demonstrate that he is not a woman by acting
aggressively and with brute physical force.
Take, for example, the killing of Gwen Araujo, discussed above.
Testimony at trial revealed that Merel became very upset when he
182
. Michael S. Kimmel,
Masculinity as Homophobia: Fear, Shame, and Silence in the Construction
of Gender Identity
,
in
The Gender of Desire: Essays on Male Sexuality 25, 31–34 (2005).
183
. Frank Rudy Cooper,
Our First Unisex President?: Black Masculinity and Obama’s Feminine
Side
, 86 Denv. U. L. Rev. 633, 648 (2009);
see
Frank Rudy Cooper,
Hyper-incarceration as a
Multidimensional Attack: Replying to Angela Harris Through
The Wire, 37 Wash. U. J.L. & Pol’y 67,
75 (2011) (noting that the attempt to prove one’s masculinity leads to attempts to distinguish oneself
from other, less masculine figures, such as women, racial minorities, Jews, and gay men).
184
. Harris,
supra
note 11, at 783.
185
. Id.
at 783, 784.
186
. Id.
187
. Id.
at 784–85.
188
. Id.
at 785.
189
. Id.
190
. Id.
at 781.
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THE TRANS PANIC DEFENSE
111
started thinking that Araujo might have been born with male genitalia.
Merel thought this meant that he himself was gay since he had found
Araujo to be sexually attractive and had enjoyed oral and anal
intercourse with Araujo.
191
He was so distraught when he found out that
Araujo had male genitalia that his initial reaction was to vomit, and then
cry—not very “manly” ways to react.
192
While his brother Emmanuel
(Manny) and friend Nicole Brown tried to console him, Merel kept
saying he could not believe he was gay.
193
According to Bill DuBois, Merel’s attorney, Merel was very fond of
Araujo and had a romantic attachment to her.
194
When Merel discovered
Araujo was not biologically female, he experienced a crisis of self-
conception.
195
In other words, finding out that he had been attracted to a
person with a penis made him doubt his own masculinity and
heterosexuality. Michael Thorman, Magidson’s attorney, asserted a
similar argument. According to Thorman, Magidson was shocked when
he discovered Araujo had male genitalia.
196
Thorman characterized
Araujo’s actions as “theft of heterosexuality,” arguing to the jury that
Araujo had stolen Magidson’s masculine identity.
197
The trans panic defense rests, in part, on the idea that the victim
robbed the defendant of his masculinity by tricking him into having sex
with a man pretending to be a woman. The defendant arguing trans panic
suggests that his fear of being seen as gay is a reasonable fear, one that
most men would have if they found themselves in a similar situation. The
defendant arguing trans panic suggests that his fear of being seen as gay
is a reasonable fear, one that most men would have if they found
themselves in a similar situation, and therefore, the jury should find that
he was reasonably provoked into a heat of passion by the victim’s
deception about her biological sex. A fear of being gay, however, should
not be grounds to mitigate a murder charge to manslaughter. Just as fear
of being seen as a coward has never constituted legally adequate
provocation, neither should fear of being seen as gay.
191
. People v. Merel, No. A113056, 2009 WL 1314822, at *7 (Cal. Ct. App. May 12, 2009).
192
. When Magidson first came outside the bathroom and told Merel, “That’s a man. I know that’s
a man,” Merel vomited.
Id.
When Nicole Brown came out of the bathroom and confirmed that she had
seen male genitalia on Araujo, Merel began to cry.
Id.
193
. Id.
194
. William H. DuBois, Criminal Defense Atty., Remarks at UC Hastings College of the Law
Symposium on Hate Crimes: Combating Gay & Transgender “Panic” Strategies (July 20–21, 2006),
available at
www.ebar.com/news/article.php?sec=news&article=1028.
195
. Id.
196
. Michael P. Thorman, Criminal Defense Atty., Remarks at UC Hastings College of the Law
Symposium on Hate Crimes: Combating Gay & Transgender “Panic” Strategies (July 20–21, 2006),
available at
www.ebar.com/news/article.php?sec=news&article=1028.
197
. Id.
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B. Sexual Prejudice and the Enforcement of Gender Norms
Second, the defendant’s violence may be motivated by his extreme
discomfort with any manifestation of gender non-conformity. His act of
killing the transgender woman reflects a desire to enforce prevailing
gender norms that align sex with gender and masculine identity with
heterosexual orientation. As Aaron Norton and Gregory Herek note,
“transgender identities pose a challenge to the widespread assumptions
that [male] gender and biological sex are binary categories . . . .”
198
Most
people assume that a person born with male genitalia is a man and a
person born with female genitalia is a woman.
199
Negative attitudes toward sexual and gender minorities appear to be
closely bound to heteronormative
200
attitudes about gender identity,
patriarchal authoritarianism, and masculinity.
201
Transgender people
disrupt the “stability of both gender and sexual orientation
categories.”
202
Even though the transgender woman who enjoys sex with
men is actually heterosexual, the defendant views her as a homosexual
man, because she is biologically male and enjoys sex with men.
Norton and Herek observe a link between heterosexual prejudice
against gays, lesbians, and bisexuals and prejudice against transgender
people:
[H]eterosexuals’ attitudes towards transgender people displayed many
of the patterns consistently observed in their attitudes towards gay
men, lesbians, and bisexuals. They were significantly correlated with
higher levels of psychological authoritarianism, political conservatism
and anti-egalitarianism, and (for women) religiosity—variables that are
also consistent predictors of sexual prejudice. These patterns suggest
that negative attitudes toward transgender people may have their
psychological roots in strong support for existing social conventions,
power hierarchies, and traditional values. In this respect, they are
similar not only to sexual prejudice but also to negative attitudes
toward outgroups in general.
203
198
. Aaron T. Norton & Gregory M. Herek,
Heterosexuals’ Attitudes Toward Transgender
People: Findings from a National Probability Sample of U.S. Adults
, 68 Sex Roles 738, 740 (2012).
199
. See
Valdes,
supra
note 28, at 20.
200
. For definition of “heteronormativity,” see
supra
note 12 and accompanying text.
201
. Norton & Herek,
supra
note 198, at 746–48;
see
Eric Anderson,
“Being Masculine Is Not
About Who You Sleep with . . .”: Heterosexual Athletes Contesting Masculinity and the One-time
Rule of Homosexuality
, 58 Sex Roles 104, 105 (2008) (“[T]he stigma associated with men’s
homosexuality reflects more than just the dislike of sex between men: male homosexuality is also
disparaged because it is culturally conflated with femininity . . . .”).
202
. Norton & Herek,
supra
note 198, at 741 (Transgender people “violate . . . the ‘natural
attitude’ toward gender by changing from one gender to another or by not confirming to societal
expectations for male- or female-bodied people.”);
see
Shinsuke Eguchi,
Negotiating Hegemonic
Masculinity: The Rhetorical Strategy of “Straight-Acting” Among Gay Men
, 38 J. Intercultural
Comm. Res. 193, 207 (2009).
203
.
Norton & Herek,
supra
note 198, at 749 (citation omitted). Elsewhere, Herek has noted that
sexual prejudice “is almost always directed at people who engage in homosexual behavior or label
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113
Importantly, Norton and Herek found that “attitudes toward
transgender people were significantly
more
negative than attitudes
toward sexual minorities.”
204
For defendants asserting the trans panic defense, the transgender
woman transgresses gender norms by assuming a female identity when
she was born with male anatomy. The defendant punishes her act of
transgression by killing her. The law, however, generally disapproves of
acts of violence, like bullying, that are motivated by a desire to enforce
gender norms.
205
Likewise, the law of provocation should not
countenance the use of violence to enforce gender norms.
C. Blaming the Victim for Her Alleged Deceit
The defendant’s violence may also be motivated by his belief that
the transgender victim was deceitful and misrepresented her true gender
identity.
206
The defendant in a trans panic case thinks the victim deceived
themselves gay, lesbian or bisexual.” Gregory M. Herek,
The Psychology of Sexual Prejudice
, 9
Current Directions in Psychol. Sci. 19, 19 (2000).
204
.
Norton & Herek,
supra
note 198, at 749 (emphasis added).
205
. Safe Place to Learn Act, Cal. Educ. Code § 234 (West 2014); Wash. Rev. Code Ann.
§ 28A.300.285 (West 2014); Lisa C. Connolly,
Anti-gay Bullying in Schools—Are Anti-Bullying
Statutes the Solution?
, 87 N.Y.U. L. Rev. 248 (2012) (noting that anti-bullying legislation has
proliferated in the last decade); s
ee
R. Kent Piacenti,
Toward a Meaningful Response to the Problem
of Anti-gay Bullying in American Public Schools
, 19 Va. J. Soc. Pol’y & L. 58 (2011) (arguing that
state anti-bullying statutes are inadequate and suggesting LGBT protections should be added to Title
IX). Most of the existing anti-bullying legislation is found in state civil codes. In May 2014, the city of
Carson, California, a suburb of Los Angeles, became the first in the nation to consider enacting an
anti-bullying statute that would make repeated bullying a crime.
See
David Ingram,
California City
Close to Finalizing Tough Anti-bullying Ordinance
, MSNBC (May 15, 2014, 2:21 PM),
http://www.msnbc.com/craig-melvin/california-citys-anti-bullying-ordinance (noting that the proposed
ordinance “targets kindergarteners through adults age 25 who make another person feel ‘terrorized,
frightened, intimidated, threatened, harassed, or molested’ with no legitimate purpose” and that “first-
time offenders will be fined $100,” second time offenders will be fined $200, and “a third offense could
bring a criminal misdemeanor charge”);
Bullying Battle: California City Could Become Nation’s First
Zero-tolerance Zone for Bullies
, CBS News (May 20, 2014, 2:49 PM),
http://www.cbsnews.com/news/carson-california-could-pass-anti-bullying-ordinance-and-become-
nations-first-no-tolerance-zones (noting that “[i]f passed, the city could become one of the nation’s
first no-tolerance zones for bullies”). In the end, the anti-bullying ordinance did not pass. Tracy
Bloom,
Anti-bullying Ordinance Defeated by Carson City Council Vote
, KTLA.com (May 20, 2014,
10:03 PM),
http://ktla.com/2014/05/20/anti-bullying-ordinance-in-carson-set-for-vote.
206
. In
Queer (In)Justice
,
Joey Mogul, Andrea Ritchie, and Kay Whitlock discuss ways in which
the archetypal narrative of transgender people as inherently deceptive is reflected in criminal statutes
that prohibit cross-dressing and comments by judges and prosecutors in criminal cases. Mogul et al.,
supra
note 8, at 73, 76. For example, at one time an Ohio criminal statute “made it illegal for any
‘perverted person’ to appear in clothing belonging to ‘the opposite’ sex.’”
Id.
at 73 (citing I. Bennett
Capers,
Cross Dressing and the Criminal
, 20 Yale J.L. & Human. 1 (2008)). In another case, a judge in
New Jersey refused to allow a transgender woman to change her name on the ground that “it is
inherently fraudulent for a person who is physically a male to assume an obviously ‘female’ name for
the sole purpose of representing herself to future employers and society as a female.”
Id.
at 73 (citing
In re
Eck, 584 A.2d 859, 860 (N.J. Super. Ct. App. Div. 1991)). In another case involving a Black
transgender woman charged in 2007 with attempted murder, the prosecutor told the jury, “How can
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him by pretending to be a woman when “he”
207
was actually a man. The
defendant alleges that his discovery of the victim’s “true”
208
gender
identity—finding out the victim was a “he” rather than a “she”—upset
him so much that he lost self-control. The defendant also argues that the
average heterosexual man in his shoes would have been equally upset,
and therefore he was reasonably provoked into a heat of passion.
In many cases, it will be quite apparent that a transgender person is
transitioning.
209
In such cases, a defendant’s claim that the victim was
deceptive about her true sex should be viewed with skepticism.
Moreover, one might question whether a transgender woman who does
not disclose her biological sex is being deceitful. Does one have a duty to
reveal everything about oneself to a person with whom one is sexually
intimate? When does such a duty arise? An individual with an ugly birth
defect in a private place might not disclose this to a potential sexual
partner, hoping that the relationship develops to a more serious level
before revealing such information.
210
In examining the defendant’s claim that the transgender victim’s
misrepresentation about her “true” gender identity was what caused the
defendant to lose self-control, and whether the alleged deception ought
to be cognizable as legally adequate provocation, one might draw an
analogy to rape law’s distinction between fraud-in-the-factum and fraud-
in-the-inducement.
211
As Russell and Kathryn Christopher explain,
“[f]raud, along with force and coercion, is one of the three principal
you trust this person? He tells you he is a woman; he is clearly a man.”
Id.
at 76. In yet another
example in 1994, Sean O’Neil, a White transgender man, was charged with criminal impersonation and
sexual assault after having consensual sex with four underage teenage girls.
Id.
at 77. The teenage girls
admitted that the sex with O’Neil was consensual but the prosecutor argued that because O’Neil was a
transgender man, their consent was procured by fraud, involuntary, and therefore invalid.
Id.
In light
of the fact that he faced a twenty year prison sentence if convicted, O’Neil pled guilty to second-
degree sexual assault.
Id.
at 78. He was sentenced to three months in a women’s prison and required to
register as a sex offender.
Id.
Apparently influenced by the idea that a transgender person is being
deceptive when he or she fails to disclose their biological sex, the judge opined at O’Neil’s sentencing
hearing, “What this case is about is deceit.”
Id.
at 77.
207
. We use quotation marks around the word “he” to emphasize that it is the defendant who
views the transgender woman as a man The defendant uses the male pronoun to refer to the victim
even though the female pronoun is more appropriate.
208
. We put the word “true” in quotation marks because we contest the view that a transgender
woman is
mis
representing her gender identity when she presents herself to the world as female.
209
. Prior to gender reassignment surgery, a transgender woman may wear makeup, dresses, and
heels, but an Adam’s apple or large hands and feet may make it obvious to others that she is transitioning.
Similarly, a transgender man may wear attire usually associated with men, such as a tuxedo or suit and tie,
but feminine facial and body features may make it apparent to others that he is transitioning.
210
. We thank Professor Courtney Joslin at UC Davis School of Law for suggesting this line of
inquiry.
211
. In doing so, we do not mean to suggest that the transgender woman who does not disclose her
biological sex to an intimate partner is engaging in fraudulent behavior.
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115
means by which a person can commit rape.”
212
“Obtaining intercourse
through fraud, just as through force and coercion, constitutes rape
because it vitiates the consent of the victim.”
213
Rape law, however, distinguishes between actionable and non-
actionable rape-by-fraud by examining the type of fraud that encouraged
the victim to say “yes.” As Jed Rubenfeld notes, as a general matter, sex-
by-deception is not recognized as rape.
214
Sex-by-deception constitutes
rape only when the victim is deceived as to the nature of the act. For
example, if the victim thinks she is being subjected to a medical
procedure when the defendant is actually inserting his penis into her
vagina, the defendant’s act will be construed as non-forcible rape.
215
Such
cases involve fraud-in-the-factum, which invalidates the victim’s consent,
and makes the defendant’s conduct actionable as rape-by-fraud.
216
If the
victim knows that she is engaging in the act of sexual intercourse but is
deceived as to some collateral matter (for example, she thinks the
defendant is a famous rock star when he is not), this constitutes fraud-in-
the-inducement, and is not grounds for a claim of rape-by-fraud.
217
212
. Russell L. Christopher & Kathryn H. Christopher,
Adult Impersonation: Rape by Fraud as a
Defense to Statutory Rape
,
101 Nw. U. L. Rev. 75, 77 (2007).
213
. Id.
214
. Jed Rubenfeld,
The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy
,
122 Yale L.J. 1372, 1395–96 (2013) (defending the force requirement in rape law and the general rule
that sex-by-deception does not constitute rape). Rubenfeld notes that Anglo-American courts
recognize only two exceptions to this general rule: sex falsely represented as a medical procedure and
impersonation of a woman’s husband.
Id.
at 1397;
see
Anne M. Coughlin,
Sex and Guilt
, 84 Va. L.
Rev. 1, 19 (1998) (noting that “[t]he traditional approach holds that it is a crime to obtain sexual
intercourse by fraud in only two narrow contexts,” namely (1) when a man deceives a woman into
thinking she is submitting to a nonsexual act, and (2) when a man obtains intercourse by masquerading
as the woman’s husband).
215
.
See, e.g.
, People v. Minkowski, 23 Cal. Rptr. 92, 94–96 (Cal. Ct. App. 1962) (defendant was a
physician who “treated” patients for menstrual cramps by having them bend over a table while the
doctor first inserted a metal instrument into their vagina from behind, then substituted a different
“instrument” that was in fact the doctor’s penis).
216
. Christopher & Christopher,
supra
note 212, at 83 (“Fraud in the factum consists of a
deception or fraud as to the fact, or act, or nature of the act, itself.”); Patricia J. Falk,
Rape by Fraud
and Rape by Coercion
, 64 Brook. L. Rev. 39, 51 (1998) (referring to fraud-in-the-factum as “mistake
as to the act itself”);
see
Martha Chamallas,
Consent, Equality, and the Legal Control of Sexual
Conduct
, 61 S. Calif. L. Rev. 777, 831 n.224 (1988) (“Fraud in the factum typically denotes a situation
in which the victim consents to the doing of act X and the perpetrator of the fraud, in the guise of
doing act X, actually does act Y.”).
217
. Christopher & Christopher,
supra
note 212, at 83 (“Fraud in the inducement consists of
deception or fraud neither to the fact, nor act, nor nature of the act, nor ‘to the thing done, but
[rather] . . . to some collateral matter’.”); Falk,
supra
note 216, at 51 (referring to fraud-in-the-
inducement as “mistake about the reason for doing the act”).
See, e.g.
, Boro v. Superior Court,
210 Cal. Rptr. 122, 123–24 (Cal. Ct. App. 1985) (finding fraud-in-the-inducement where the defendant,
pretending to be a doctor, told a woman that she had contracted a highly infectious and possibly fatal
disease and the only way to treat the disease was to have sexual intercourse with an anonymous donor
who had been injected with a serum or undergo an expensive and painful surgical procedure). The law
on rape-by-deception is changing. As Jed Rubenfeld notes, “[i]n Tennessee, rape is already defined to
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If a trans panic case involves fraud-in-the-factum, then the
defendant may be able to convince the jury that he was raped—his
consent to the act of sexual intercourse with the transgender victim was
invalid due to fraud-in-the-factum, and therefore his outrage at the
discovery that his sexual partner was biologically male was reasonable.
The defendant would argue that the transgender woman tricked him into
engaging in a sex act when he was not fully aware of what he was doing.
In perhaps the only published law review article to date that defends
the use of the trans panic defense strategy, Bradford Bigler argues that
sexual misrepresentation cases involving a transgender woman’s failure
to disclose her biological sex ought to count as legally adequate
provocation under certain circumstances.
218
Rather than viewing cases
where a transgender female is intimate with a heterosexual man without
revealing her biological sex as fraud-in-the-inducement, Bigler thinks
that trans panic cases straddle the line between fraud-in-inducement and
fraud-in-the-factum. He acknowledges that trans panic cases look like
fraud-in-the-inducement because “both parties are fully aware of the
sexual nature of the act.”
219
Bigler argues, however, that because the
defendant is deceived as to the biological sex of his partner, “the nature
of the sex to which the deceived party consents (for example,
heterosexual sodomy in the case of Araujo) is fundamentally different
[from] the act in which the defendant actually engaged (here,
homosexual sodomy).”
220
The problem with Bigler’s argument is that the defendant who
engages in sodomy with a transgender female is not engaging in
homosexual sodomy. The transgender female who dates straight men is
heterosexual. She is a woman who prefers to be intimate with men, not
women. When she allows a man to have anal intercourse with her, this
act of anal intercourse is an act of heterosexual sodomy, not homosexual
sodomy.
221
It only looks like homosexual sodomy if we adopt the
defendant’s view of the world and equate gender with sex. As discussed
earlier, the binary view of sex and gender is problematic because it fails
include ‘sexual penetration . . . accomplished by fraud,” and “[a] man commits rape in Idaho, under a
2011 amendment, when he has sex with a woman who, because of his ‘artifice, pretense, or concealment,’
believes him to be ‘someone other than’ who he is.” Rubenfeld,
supra
note 214, at 1375.
218
. Bigler,
supra
note 10, at 786 (arguing that a transgender woman’s failure to disclose her
biological sex ought to count as legally adequate provocation where: (1) the defendant engaged in a
sexual act while reasonably deceived as to his partner’s biological sex, (2) the defendant would not have
engaged in that sexual act had he known of his partner’s biological sex, and (3) a reasonable person in his
shoes would have suffered a severe mental or emotional crisis upon discovery of the truth).
219
.
Id.
at 800.
220
.
Id.
at 800–01.
221
. Vade explains that “gender identity” is “who one is”, whereas “sexual orientation” is “to whom one
is attracted.” Vade,
supra
note 24, at 270. Vade notes that “[t]ransgender people have all sexual
orientations: some transgender people are straight, some are gay, some are bisexual, and some are queer.”
Id.
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117
to account for individuals whose biological sex differs from their gender
identity and conflates gender identity and sexual orientation.
222
The argument that the defendant is deceived as to the nature of the
act fails for another reason. In most trans panic cases, the defendant
knows full well that he is engaging in oral or anal intercourse. If the
defendant is deceived about anything (in many cases, there is reason to
doubt that the defendant was actually deceived about the victim’s
transgender status), he is deceived regarding his partner’s biological sex.
Whether you call his act of oral or anal intercourse homosexual sodomy
or heterosexual sodomy, sodomy is sodomy (whether oral or anal). As
such, the defendant knew that he was engaging in sodomy at the time.
223
Bigler further contends that the sexual identity cases are similar to
cases involving a woman who has sex with a man she thinks is her
husband, but who is actually an imposter.
224
Courts are split over
whether the marital fraud cases (also known as “husband
impersonation”) constitute fraud-in-the-factum or fraud-in-the-
inducement.
225
Under one view, the marital fraud cases are understood as
cases involving fraud-in-the-factum
226
on the ground that the wife
thought she was engaging in marital sex when she was actually engaging
in adulterous sex.
227
Because the wife was deceived as to the true nature
222
. See supra
notes 27–35 and accompanying text.
223
. The defendant may assert that he thought he was engaging in vaginal intercourse, rather than
anal intercourse. In such a case, the prosecutor might counter that the defendant knew he was engaging in
sexual intercourse (whether vaginal or anal), and therefore there was no fraud-in-the-factum.
224
. Bigler,
supra
note 10, at 800.
225
.
Id. See, e.g.
,
People v. Evans, 379 N.Y.S.2d 912, 919 (N.Y. Sup. Ct. 1975) (opining in dicta
that it is not rape when a woman has intercourse with a man impersonating her husband).
But see
Boro v. Superior Court, 210 Cal. Rptr. 122, 124–25 (Cal. Ct. App. 1985) (noting in dicta that spousal
impersonation is fraud-in-the-factum and therefore rape); s
ee also
Rubenfeld,
supra
note 214, at 1397–
98 (“[T]he spousal-impersonation exception is the law of at least fourteen states, including California,
and is recognized in the Model Penal Code.”).
226
. State v. Navarro, 367 P.2d 227, 228 (Ariz. 1961) (defendant convicted of rape after crawling
into victim’s bed and impersonating her husband under Arizona statute defining rape to include
inducement through impersonation of the victim’s husband); Pinson v. State, 518 So. 2d 1220 (Miss.
1988). In a recent case, a California Court of Appeal overturned the lower court’s conviction of a man
who had impersonated the victim’s boyfriend in order to have sexual intercourse with her, finding that
“[a] man who impersonates someone in order to have sexual intercourse may be guilty of rape only if
the victim was married and the man was pretending to be her husband.” Maura Dolan,
Voiding of
Rape Conviction Involving Sleeping Woman Called “Bizarre,”
L.A. Times Blog (Jan. 4, 2013, 7:33
AM), http://latimesblogs.latimes.com/lanow/2013/01/rape-case-voiding-involving-sleeping-woman-
called-bizarre-.html.
227
. Falk,
supra
note 216, at 66–67 (“[H]usband impersonation cases really involve fraud in the
factum because the woman has consented to marital intercourse not adultery and, therefore, the
impersonator’s fraud vitiates her consent.”) (citing Regina v. Dee, 15 Cox CC 579 (Ir. 1884)). For an
excellent discussion of the way both family law and criminal law reinforce a binary view of sexual
intercourse as either marital, and thus legal, or non-marital, and thus illegal or illegitimate, see
generally Melissa Murray,
Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction
of Intimate Life
, 94 Iowa L. Rev. 1253 (2009). Under the historical binary view of sex, the wife who
has sex with the husband impersonator agrees to engage in lawful marital intercourse, not unlawful
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of the sex act, supporters of this view say her consent must be invalidated
as induced by a fraud-in-the-factum.
228
Drawing a distinction between
marital sex and adulterous sex, however, obscures the bottom line.
Whether labeled marital sex or adulterous sex, the act in question still
constitutes sexual intercourse.
We think the marital fraud cases are better understood as cases
involving fraud-in-the-inducement. In the marital fraud cases, the wife
understands that she is engaging in sexual intercourse and is merely
deceived regarding the identity of the person with whom she is engaging
in sexual intercourse. The marital fraud cases are thus akin to cases in
which a man induces a woman to have sex with him by pretending to be
someone he is not, such as a wealthy businessman, a Playboy
photographer, or a man who intends to marry her.
229
Such cases, without
a doubt, involve fraud-in-the-inducement. The fact that the women in
these cases would not have consented to the sexual intercourse had they
known the truth about the man’s identity does not invalidate their
consent.
This is not to say that we approve of men who masquerade as a
woman’s husband in order to get her to engage in sexual intercourse. We
would have no objection if a legislature made spousal impersonation in
order to achieve sexual intimacy a crime separate and apart from the
crime of rape, punishable by sentences just as severe as other types of
non-forcible rape. We simply think it is a stretch to try to squeeze
husband impersonation cases into the fraud-in-the-factum category when
they more closely resemble the fraud-in-the-inducement cases.
We also think that claims of sexual deception made by a defendant
asserting a trans panic defense are better understood as cases of fraud-in-
the-inducement, if fraud at all,
230
not fraud-in-the-factum.
231
Just like the
adultery or sex outside the marriage, providing support for the view that the marital fraud cases
constitute examples of fraud-in-the-factum.
228
.
Falk,
supra
note 216, at 66–67.
229
. Christopher & Christopher,
supra
note 212, at