Michigan is 20th state to ban gay and trans panic defense

Michigan has become the latest state to ban the controversial “gay and trans panic” defense, joining a growing list of states that have made it illegal to use a victim’s sexual orientation or gender identity as justification for committing a crime. Governor Gretchen Whitmer signed the bill into law on July 23, 2024 marking a significant step in protecting LGBTQ rights and ensuring justice for victims of hate crimes in Michigan.

The “gay and trans panic” defense has been a legal strategy where defendants argue that the discovery of a victim’s sexual orientation or gender identity triggered a violent reaction, leading to a reduced sentence or acquittal. The American Bar Association has condemned this defense as a “miscarriage of justice.”

Michigan’s new law, which goes into effect on October 23, prohibits defendants from using a victim’s real or perceived sexual orientation, gender identity, or gender expression as a provocation defense, a “heat of passion” defense, or a diminished capacity defense. This move empowers judges and prosecutors to challenge and block attempts by defense attorneys to exploit a victim’s sexual identity during trials.

W. Carsten Andresen, an assistant professor of criminal justice at St. Edward’s University in Austin, Texas has extensively researched the “gay and trans panic” defense. His database, compiled from media articles, legal transcripts, and academic writings, has identified over 700 cases in the United States from 1970 to 2024 where this defense was employed, including 18 cases in Michigan. Andresen’s analysis found that this defense successfully reduced charges about one-third of the time.

Michigan State Rep. Laurie Pohutsky, D-Livonia, who sponsored the bill, expressed her enthusiasm for its passage, stating, “I have been incredibly passionate about this bill for several years, and I am elated to see it signed into law. Protecting the future of LGBTQ+ people across Michigan is something I have been working hard to do.”

Michigan is now the 20th state to enact such a ban. Other states with similar legislation include California, Illinois, New York, and New Jersey. Despite these advancements, the “gay and trans panic” defense remains legal in many states. Efforts to introduce federal legislation to ban the defense nationwide have been unsuccessful so far.

High-profile cases like the 1998 murder of Matthew Shepard, a gay University of Wyoming student, highlight the devastating impact of this defense. Shepard’s killers attempted to use the “gay panic” defense, claiming that Shepard’s sexual advance triggered the attack. The judge ultimately rejected this defense, but the case remains a stark reminder of the potential for injustice.

According to the National LGBTQ+ Bar Association, approximately 56% of the LGBTQ population lives in states where this defense is still permissible. Michigan’s new law is a critical step toward eliminating this discriminatory legal strategy and ensuring that victims receive the justice they deserve.

As Michigan’s political landscape evolves queer advocates say this landmark legislation represents a significant victory for LGBTQ rights and sets a precedent for other states to follow.