Court Notices Affirming that LGBTQ+ Identities Do Not Constitute Provocation to Violence: Maryland Outlaws the “Gay-Trans Panic Defense” On Friday, October 1st, 2021, House Bill 231 (HB 231) became effective in Maryland. The bill was enacted on May 30th following unanimous passage in the House and Senate chambers, but notably lacking Governor Larry Hogan’s signature. HB 231 amended the criminal code at Sections 2-207 and 3-209 to prohibit a defendant from asserting “[t]he discovery or perception of, or belief about, another person’s race, color, national origin, sex, gender identity, or sexual orientation, whether or not accurate” as a mitigating affirmative defense to charges of murder or assault. Readers of Maryland’s code might note that the change in language is relatively short; however, advocates for this bill recognize hard-fought progress embedded in the revised code. The “gay-trans panic defense” has been employed to mitigate charges where the defendant alleges that an LGBTQ+ victim provoked the defendant by making a non-violent sexual advance, triggered a “panic” in the defendant which diminished their culpability for violence against the victim, or caused the defendant to believe that the victim, by virtue of their LGBTQ+ identity, constituted a threat of serious bodily harm which compelled selfdefense. The affirmative defense is comparable to the “hot-blooded” defense, which argues that a defendant acted in the heat of passion and should thus be liable only for a lesser charge of manslaughter or a lower degree assault. Application of the “gay-trans panic defense” thus requires the court’s assent that discovery or perception of a victim’s sexual orientation or gender identity constitutes an adequate provocation to violence. The National LGBTQ+ Bar notes that “panic” defenses are asserted by defendants who commit crimes against many minority groups. The availability of this defense is particularly disturbing in light of crime statistics demonstrating that LGBTQ+ individuals are especially vulnerable to hate crimes; while LGBTQ+ people make up less than six percent of the adult population in the United States, hate crimes motivated by sexual orientation and gender identity made up nearly nineteen percent of single-bias hate crimes in 2019. Testimony in favor of HB 231 poured in after its introduction by Democratic Delegate Julie Palakovich Carr. In January, support for the bill came from organizations such as ACLU Maryland, Maryland Psychological Association, Lambda Legal, the Maryland Legislative Latino Caucus, FreeState Justice, and the National LGBTQ+ Bar, among others. Many
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activists focused on protecting the dignity of LGBTQ+ Marylanders, which is served when the legislature affirmatively acknowledges and includes sexual orientation and gender identity in the criminal code among the reasons that this community has been unjustifiably targeted. The state also promotes safety within Maryland’s LGBTQ+ community by committing to its protection directly in the legal code. Some advocates highlighted the lack of trust that LGBTQ+ Marylanders have felt when crimes against this community, particularly violent crime resulting in the deaths of Black trans women, have passed without convictions. Proponents of the legislation recognize that this reform is one among many required to earn the trust of LGBTQ+ Marylanders. Where a defendant can assert their victim’s sexual orientation or gender identity as a justification for violence committed against that victim, the criminal justice system validates the belief that LGBTQ+ people are inherently dangerous and less deserving of the state’s protection. Prohibiting the use of this defense helps to erode the fear among many LGBTQ+ Marylanders that seeking justice will be a fruitless and retraumatizing experience. HB231 follows a national trend of state legislatures prohibiting the use of the “gaytrans panic defense.” The American Bar Association approved a resolution in 2013, introduced by the National LGBTQ+ Bar, calling for the prohibition of the defense in all states. In 2014, California was the first state to ban the defense; Maryland became the sixteenth state to pass this ban in its state legislature. Ten more state legislatures are currently considering similar legislation, including neighboring Pennsylvania, which is considering the issue for the first time this year. Anyone interested in tracking progress in state legislatures can follow along using the LGBTQ+ “Panic” Defense Legislation Map, hosted online by the National LGBTQ+ Bar. In April 2021, Senator Ed Markey and Congressman Christopher Pappas introduced The Gay and Trans Panic Defense Prohibition Act of 2021 to amend the United States code. The bill echoes the sentiment expressed in HB 231’s proponents, the American Bar Association, and the National LGBTQ+ Bar: “to end the antiquated notion that LGBTQ lives are worth less than others and to reflect modern understanding of LGBTQ individuals as equal citizens under law, gay and trans panic defenses must end.”
The Advocate
– Shannon Kreiner November 2021