The LGBTQ+ Panic Defense and the U.S.’s Fear of LGBTQ+ People
Design by Emma Lehman
CONTENT WARNING: Rape/sexual assault; transphobia; homophobia
“Jennifer is my daughter. All of this, this whole house, she built.”
A small, quiet woman, perhaps 50 or 60 years old, gestures at a dimly lit bedroom with cinderblock walls. Atop a CD player on the mantle are dozens of framed photographs of her daughter, a young woman clad in iridescent ball gowns and fringed swimsuits. In each picture, she wears a smile: some sultry, some cheerful, some strained. Dangling crystal earrings and neatly plucked eyebrows frame a youthful face, reminiscent of the older, sadder one that speaks to the camera.
“Jennifer was her nickname, but for me, it’s ‘Ganda.’” the woman says. “Ganda” means “beautiful” in Tagalog.
So begins “Call Her Ganda,” a documentary about Jennifer Laude, a transgender woman from the Philippines who was murdered in 2014 by Joseph Scott Pemberton, a U.S. Marine stationed in Olongapo. Forty-five minutes after entering a motel room with Pemberton, Laude was found strangled, bloodied and drowned in the hotel room toilet. Pemberton was sentenced to only 6-10 years in prison for this crime.
Pemberton’s defense team was one of many to use the LGBTQ+ panic defense, a legal strategy which argues that the perpetrator was rendered “temporarily insane” after the victim revealed a queer or trans identity, or that the crime in question was the result of “sudden and intense passion” provoked by learning of the victim’s sexual orientation or gender identity. The so-called “gay panic defense” was first brought to public attention in 1998, when gay college student Matthew Shepard was beaten to death by Aaron McKinney and Russell Henderson. McKinney’s lawyer argued that McKinney had been rendered “temporarily insane” by alleged flirting from Shepard.
In the Laude case, Pemberton’s attorney made the case that Laude’s choice not to disclose her transgender identity resulted in Pemberton “feeling raped” after discovering that Jennifer was transgender. The defense claimed that Pemberton was “defending his honor” after becoming a victim of “fraud,” and thus the strangulation of Laude was self-defense. It was this “deception regarding the victim’s gender,” the fact that Laude had not disclosed that she had been born with a penis, that reduced Pemberton’s charges from murder (a 20 to 40 year sentence under Philippine law) to homicide (6 to 12 years, classified in the Philippines as a lesser offense than murder). In other words, the panic defense worked –– lawyers were able to convince a judge that Laude’s transgender identity was a “mitigating circumstance,” and her killer was punished with no more than a slap on the wrist. At its core, this is yet another instance of society perceiving trans women as men who are trying to “trick” people, especially straight men, into sex. The idea that one’s gender identity must be public information lest that individual be accused of fraud or coercion is deeply transphobic, and reinforces the idea that trans women are anything other than women. It is important to mention, too, that LGBTQ-phobia in the Philippines, among many other colonized peoples, is rooted in colonialism –– with the imposition of Spanish values, laws, and worldviews came the imposition of Spanish laws about gender and sexuality. These laws and the stigmas and prejudices they spread are still in the process of being dismantled, decades and centuries later, through decolonization.
The Pemberton case is hardly the first to have successfully used the panic defense.
In August of 2013, Islan Nettles was beaten to death by James Dixon after Dixon was teased by his friends for flirting with Islan, a transgender woman. Dixon confessed to having flown into “a blind fury” upon learning that Nettles was transgender. Witnesses report Dixon and his friends used homophobic and transphobic slurs against Nettles and her friends before throwing her to the ground and fatally beating her beyond recognition. Though Nettles’s family argued that Dixon should be charged not only with first-degree murder, but also with a hate crime, he was instead charged only with the lesser offense of manslaughter. For the murder of Islan Nettles, James Dixon will serve only 12 years in prison.
Dozens more cases have achieved a reduction in sentence by using the victim’s sexual orientation or gender identity as a justification for their murder. Joshua Cottrell, convicted of strangling Guin “Richie” Phillips to death and dumping him in a lake, was charged with only second-degree murder despite prosecutors seeking the death penalty. Cottrell’s defense –– that Phillips, a gay man, had attempted to force him into oral sex –– contradicted the testimony of family and friends, who said that Cottrell had lured Phillips to a hotel room to kill him after a mutual friend had suggested Phillips was attracted to Cottrell. In 2001, Roderiqus Reshad Reed beat Ahmed Dabarran to death while Dabarran slept. Reed’s defense team claimed Dabarran made unwanted advances towards him, but a medical examiner found that Dabbaran was asleep when he was killed. Despite Reed’s full confession, he was acquitted of the murder and served no time in prison. In 2018, James Miller avoided prison entirely and was sentenced to only 10 years probation after stabbing his neighbor, Daniel Spenser, to death in “self-defense” when Spenser allegedly tried to kiss him.
That the LGBTQ+ panic defense is still successful in reducing sentences isn’t surprising in a country whose queer- and transphobia runs as deep as its founding principles. One Cornell study from 2000 reasons that the existence and efficacy of the gay panic defense proves societal perception of queerness as a threat –– one great enough to justify violence, even murder. Whether genuine fear or simply bigotry comprise this perception can be debated. Perhaps it is a bit of both: a hatred of queer and trans people based upon the fear that they pose a threat to “traditional” society. Perhaps some have a genuine fear of LGBTQ+ communities based on ignorance, isolation, and/or lack of queer or trans friends, family members, and peers. Perhaps it is blatant bigotry, plain and simple. And though strides have been made in recent years towards acceptance of LGBTQ+ people in the U.S. –– same-sex marriage was legalized in 2015, and the Equal Employment Opportunity Commission ruled in the same year that Title VII’s protection against sex-based prejudice also covered anti-gay discrimination –– these protections are idealistic.
Protecting LGBTQ+ from housing discrimination is only effective if they are able to break into the housing market at all. LGBTQ+ youth especially are impacted by homelessness at a disproportionate rate; though they make up only 7% of America’s youth, LGBTQ+ people constitute 40% of the 1.6 million young people experiencing homelessness in the U.S. Despite these staggering statistics, there is no federal program to address LGBTQ+ homelessness. Similarly, while the unemployment rate among transgender adults is double the national average (and up to four times the national average for trans people of color), there is no federal program to address these injustices, nor has there been an acknowledgement of such disparities. And for trans women of color, against whom acts of transphobic violence are most often committed, the situation is especially dire. 82% of trans murder victims in 2018 were women of color. In 2019, that number was 91%.
While queer and trans people face violence, homelessness/housing insecurity, and threats to their survival, are marriage equality and employment anti-discrimination legislation –– which simply catch the LGBTQ+ communities up to where cisgender, straight citizens have been for decades and even centuries –– the only bones our government is willing to throw?
Homophobia and transphobia are still deeply ingrained into the consciousness of many Americans, whether borne of bigotry, hatred, ignorance, or a combination of the three. Thus, year after year, decade after decade, and century after century, those in power have proved unable, or simply unwilling, to purge American institutions of these prejudices. As a result, Americans live under legal codes which are often discriminatory, frequently unfair, and at times fatal.
Legislation from the 1600s making “sodomy” (defined as consensual anal sex between two men) punishable by death are echoed by those from the 1970s criminalizing the same act, and remained in effect until the 2010s. Consensual sex between two adults of the same sex was illegal in all 50 states until 1962, when the state of Illinois became the first to decriminalize (not legalize) it, and more than a dozen states did not do so until the year 2003, when the Supreme Court ruled that state laws prohibiting “consensual, adult homosexual intercourse” were unconstitutional. To this day, however, 16 states still have laws against sodomy, with Kansas, Kentucky and Texas explicitly targeting these laws towards same-sex encounters.
Of course, these laws punish only one small facet of queerness. The criminalization of sex and marriage for LGBTQ+ people, however, is indicative of an institutional desire to curtail the freedoms and agency of that community –– marriage and sex are simply the easiest to regulate. Not to mention, anti-sodomy laws did more than just criminalize sex: they justified denying gay parents custody of their children, denying gay parents adoption rights, and barring gay people from becoming foster parents. In a few cases, anti-sodomy laws have been used to uphold orientation-based employment discrimination. More insidious, too, are policies conforming to the concept of “liberal homophobia” or “no promo homo” that fall short of explicitly prohibiting queerness in favor of burying and stigmatizing it.
This is but an overview. A brief survey of state and federal laws will expose dozens upon dozens more instances of homophobic and/or transphobic legislation and legal precedent still in effect today:
- In May 2019, Iowa enacted a bill excluding gender-confirming surgeries from public insurance coverage. The bill used the terms “transsexual” and “hermaphrodite.”
- Kentucky Senate Bill 114 closes designated girls’ sports divisions to transgender women athletes and restricts transgender athletes from using lockers matching their gender. Under this bill, the athletes’ gender is determined by the designation on their birth certificate or by an examination. Alabama, Colorado, Idaho, Mississippi, Tennessee, and West Virginia have recently introduced similar legislation.
- Six states prohibit instruction on LGBTQ+ issues within public schools, in sex education or otherwise, and only four states and the District of Columbia have regulations mandating LGBTQ+-inclusive sex education.
That is to say, if there is an “American culture,” it is predicated on an ingrained discomfort with the existence of queer people. The anti-LGBTQ+ oppression which is embedded in the fabric of this country–– in our own individual biases and in our collective consciousness –– is evidenced by our institutions and legislation, and has been for centuries. The LGBTQ+ panic defense is a product of these attitudes.
Though more people today than ever before will claim acceptance, or at least tolerance, of LGBTQ+ communities, queer people in the U.S. are still largely ostracised and punished by a culture whose roots are deeply embedded in hatred, fear, and misunderstanding of their identities. Even in death, some still refuse to respect dozens of victims whose killers or attackers were given leniency due to the LGBTQ+ panic defense. Rampant and explicit misgendering of Laude –– both in pronouns and name, despite the fact that her correct name and pronouns were well-known and used by her family and community –– abounds in articles describing her death. Some sources refer to Laude as “Jeffrey Laude,” “Mr. Laude,” a “man who was dressed as a woman,” and a “cross-dresser.” Others use slurs, still others spend several sentences discussing Laude’s genitalia. Even the New York Times referred to Jennifer as “Mr. Laude,” writing “Mr. Laude had . . . asked [a] friend to not disclose that he was a man.” Before we are able to enact new laws and policies to protect and defend queer people in the United States, we must examine the culture that underlies and informs our legislation and our attitudes.
As this article is written, James Dixon is in prison, with eight years remaining in his 12-year sentence. Joseph Pemberton, too, remains in prison: despite an appeal by his defense team, the 10 year maximum on his sentence was upheld. That such lenient sentences can be considered victories is a testament to the brokenness of the American system. But recent state bans on the panic defense provide a glimmer of hope; slowly but surely, we may be working towards challenging our fear of queerness.
We cannot bring back Jennifer, Matthew, Islan, or any of the other scores of individuals killed for their identity, nor can we eliminate the cultural underpinnings of the panic defense in one fell swoop. We can, however, work to eliminate the stigma around queer people: queer bodies, queer relationships, queer identities. The existence of LGBTQ+ people in the United States has long been relegated to the sidelines. For some, this means forcing their identity to be invisible, for others this means being made hyper-visible in spaces that are often unsafe and sometimes fatal. In order to eradicate our fear of the LGBTQ+ community, we must give space to the marginalized and normalize the demonized, to allow queer people to exist loudly, boldly, and without shame.