"Don't talk to me about deception": the necessary erosion of the trans-panic defense.

AuthorWodda, Aimee
PositionWrongful Convictions: Understanding and Addressing Criminal Injustice

    A woman sits on a stage and tells a talk show host that a man who has "liked" many of her pictures on Instagram has wanted to meet her for a month, but it had not yet happened because they live in different parts of the country. He called the talk show in order to facilitate their meeting, and she obliged. However, she tells the talk show host: "But he don't know my secret." When the host asks her what it is, she replies that she is transgender, to which the audience makes loud "oooooh" noises. She says that because she never planned on meeting this man, she had not been taking their interaction seriously, but she would have told him that she was transgender if he had asked her.

    The talk show host brings out her admirer. The man comes out onto the stage, greets the host, hugs his crush, and sits down next to her. After a brief exchange of hellos, she says, "Well, before we go any further, I need to letchu know something. Umm, I haven't really taken it seriously because we've only been talking for a month, and we live so far, I never planned on meetin' you, but I'm lettin' you know, I was born a man." Her admirer asks the host, "Is she serious, Jerry?" Before even receiving an answer, he jumps onto the woman, his arms swinging at her, and the show's security guards spring into action as the audience erupts in cheers, hoots, laughter, and applause. They shout, "Jerry! Jerry! Jerry!" The security guards pry the combatants apart and separate them to opposite sides of the stage. The chairs have been moved to the back of the stage, out of the way of the fighters. "Punk ass bitch!" the woman yells at the man as she is held back by a security guard.

    The host asks the man why he is upset. He replies, "It's crazy, cuz yeah, I wanted to meet her, I ain't know she was a man, like, come on. I gotta go back to my 'hood, like, it's crazy. I got kids! I don't do that!"

    "Did you, why didn't you ask? You saw the pictures," the host says.

    "Yeah, I seen the pictures, but she looked, she looked like, you know what I mean, a wo-man, but come to find out she a he-she! Like, come on, man, I don't do that. I don't do that."

    The woman interrupts: "Why are you so mad? We didn't sleep together."

    He yells, "A month! Cuz you deceived me!"

    After a back-and-forth exchange between the man and the woman about her body and her attractiveness, a sound is heard: Ding! Ding! Ding! It is a boxing bell, presumably encouraging the guests to physically fight each other. They lunge at each other. The audience continues to react as the security guards try to keep the fighters apart. (1)

    Although The Jerry Springer Show recently vowed to remove "tranny" from its vocabulary, (2) segments featuring a woman who was "born a man" (3) and is there to reveal this to a sexual or romantic partner have been popular on the show. This is evidenced by recent show titles such as "Trannies Tell All," (4) "Tranny Bomb!," (5) "Online trans women of color, experience rates of violence much higher than any other population in the United States. (12) Although the FBI's Uniform Crime Report does not currently include information on (nonhate) crimes perpetrated against lesbian, gay, bisexual, trans*, or queer (LGBTQ) victims, (13) and most local agencies also do not collect statistical data that include gender identity and/or sexual orientation for crimes that are not considered hate crimes, (14) researchers have uncovered high rates of sexual abuse/assault and relationship violence among transgender people. (15) Further, according to the most recently released National Coalition of Anti-Violence Programs' hate violence report, LGBTQ people of color represented fifty-three percent of total reported victims and survivors of all hate crimes in the United States in 2012 and comprised 73.1% of LGBTQ homicide victims. (16) A shocking ninety-eight percent of incidents perpetrated against trans* (17) folk are suffered by those occupying the male-to-female spectrum. (18) Julia Serano, who characterizes this phenomenon as "trans-misogyny," believes that violence against trans women indicates a backlash against femininity. (19) Because an overwhelming percentage of trans women who experience violence are people of color, (20) this phenomenon has alternately been characterized as "transmisogynoir." (21)

    In addition to these explanations, it is believed that a general feeling of disgust or revulsion towards gender nonconforming persons may be regarded as a contributing factor in cases of transphobic acts of violence. (22) Media reports of violence against trans* persons and even legal narratives may use the term "it" to describe a transgender individual, thereby engaging in dehumanization based on the notion of a fixed gender binary. (23) Indeed, for mainstream society wedded to the idea of dichotomous gender there are three ways of seeing gender: "a man, a woman, or ... a nonhuman 'it.'" (24) This outdated perspective contributes to the politics of trans* dehumanization. (25)

    Transgender and gender nonconforming persons are often the object of fear, scorn, and derision. They may be portrayed in the media as curiosities or oddities, as mentally unstable persons, and/ or as predators. (26) The persistent mischaracterization of trans* persons as deceptive and murderous aberrations contributes to a transphobic social climate perpetuated by mass media. Transphobic behaviors exist on a spectrum of violence from lower-impact harms (e.g., slurs such as shemale, he-she, shim, tranny, and it), to the most extreme enactment of transphobia--lethal violence. In the courtroom, defendants have attempted to legitimize lethal violence against trans women with claims of "trans* panic" and, thus, the cultural norm of transphobia has been displayed in legal settings in addition to society at large.

    This article will look into the cultural and legal milieu that has been made possible and has perpetuated the so-called trans* panic defense through dual means: the employment of the deception trope and a reliance upon a societal predilection towards dichotomous gender identities and roles. In order to explore why and how the trans* panic defense has been used and to what end, we explore the origins and "psychology" of the defense, partially by noting similarities to and differences with the gay panic defense. We investigate cultural values that perpetuate the (masculine) fear of deception and nonbinary identities and analyze how sociocultural values are expressed in the legal realm by exploring several of the more noteworthy cases wherein defendants have attempted to utilize the trans* panic defense. Transphobic values are also evident in media coverage of transgender victims, which we evaluate alongside other sources. We conclude with an investigation into the ways in which the trans* panic defense is merely a sensationalized version of the denial of rights and humanity that transgender and gender nonconforming persons routinely experience within the law and crimino-legal systems more broadly, but look to positive outcomes such as the movement towards eliminating the trans* panic defense.


    To clarify, "[t]here is no official, freestanding gay or trans panic defense" that exists within the legal sphere as a recognized affirmative defense. (27) However, claims of gay panic or trans* panic are typically presented within the context of an existing criminal law defense, such as temporary insanity, provocation, or self-defense. (28)

    The trans* panic defense parallels the gay panic defense but typically has additional layers. Specifically, a defendant utilizing the gay panic defense would argue "that [a] gay man made an unwanted sexual advance that caused the defendant to panic, lose self-control, and respond with fatal violence." (29) Although an alleged sexual advance by a transgender person may also be the motivation for so-called trans* panic, so might the realization that one has engaged in sex acts with a transgender person without being aware of their assigned sex at birth. Indeed, as we later detail, defendants have even claimed trans* panic as a result of being sexually attracted to or romantically interested in a transgender person and learning of that person's biological sex. In the next section, we further detail the "psychology" of the defense and the cultural values that underlie transphobia and trans* panic.

    1. The Psychology of the Defense

      Trans* panic is based on transphobia, which has been defined in a number of ways. The simplest definition involves a pathological fear of people who do not conform to gender norms. (30) An alternate, and potentially more useful, definition posits that transphobia can more productively be envisioned as an institutional response to persons who do not conform to binary gender categories. (31) Because these categories function to produce heteronormative and gender-based hierarchies, institutional transphobia is expressed in sensational and stigmatizing media coverage of trans* individuals and their lives, employment and housing discrimination, slurs, and multiple other levels of harm. (32) In cases such as those we describe, transphobia (33) has undeniably proven fatal. (34) Thus, the ways transphobia is manifested go far beyond mere fear of gender transgressors; it can entail interpersonal and institutional violence.

      We argue that the trans* panic defense relies upon a number of cultural values regarding masculinity and heteronormativity, particularly those that emphasize a binary system of gender and an aversion to anything outside the boundaries of heterosexual (cisgender male and cisgender female) sexual activity. In a binary system of gender, individuals are assumed to be either male or female, and their biological attributes, such as their genitalia, hormones, and secondary sex characteristics, are expected to align with that designation (e.g., in a binary sex/gender system, "women" cannot possess...

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