Why was the gay/trans panic defense, recently banned by state law, ever even a thing?

As protesters called for racial justice outside of the Capitol in early June, one chant stood out in particular to Rep. Breanna Titone (D-Arvada). “Black trans lives matter,” she heard over and over again. And it’s one she could not ignore.

As the first trans person elected to public office in Colorado, and only one of four elected trans officials across the country, Titone knew she couldn’t give up on the Gay or Transgender Panic Defense bill, which died in committee after a whole host of bills were killed swiftly in light of the coronavirus shutdowns and COVID relief legislation that needed to be passed. It was a legislative priority for Democrats at the beginning of the year, and one that drew widespread support from both sides of the aisle. So, Titone wrote a letter to party leadership and started a Change.org petition to garner attention and support for the cause.

“I wanted this bill to go through because it aligned with what was going on outside the building,” Titone says. “If we’re going to start making meaningful change to support black lives, we need to work on supporting trans black lives. And this is part of that.”

On June 13, Gov. Jared Polis signed SB-221, making Colorado only the 11th state in the U.S. to ban the use of gay or transgender panic defense in criminal court. The new law prohibits the knowledge or discovery of a victim’s gender identity or sexual orientation from justifying violence in criminal cases.

Gay and transgender panic defense is a tactic that materializes in a variety of ways, used as part of self-defense, temporary insanity or diminished capacity, and heat of passion or provocation arguments in an attempt to rationalize a violent reaction. But it’s not a defense in and of itself.

“It’s not a formal defense that you enter that has been codified by law,” says Scott Skinner-Thompson, a law professor who focuses on LGBTQ issues at the University of Colorado Boulder. “It comes in sort of at the edges and often it’s not a complete defense, but maybe it’s a mitigating factor that defendants try to get courts to consider when [trying to reduce] a sentence or conviction.”

It’s been used to excuse homophobic and transphobic violence across the country, essentially arguing that the discovery of a victim’s sexual or gender identity is a defensible reason to commit acts of violence or murder. A defendant may claim that a man came onto him, which provoked him to react, as was raised in the Matthew Shephard case by one of the killers. (It didn’t work.) Or, as in the 2008 death of Angie Zapata from Greeley, a defendant may claim that the discovery rendered them temporarily insane, unable to distinguish right from wrong. (Also, unsuccessful.)

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