Not even the most crass and sleazy defense lawyer these days would try to argue a killing was less heinous just because the victim was black.

Ending trans panic

EDITORIAL

We're normally on the side of the defense lawyers when it comes to criminal-justice legislation. The state has gone way too far down the road toward a lock-'em-up mentality, and most bills that come through the state legislature limiting the rights of criminal defendants are dangerous and deserve to die.

But AB 1160, by Assemblymember Sally Lieber (D–San Jose) is different. The bill would limit the use of so-called gay panic or (more frequently) trans panic defenses: the argument that a killer was driven to rage by the discovery that a person who appeared to be female was, in fact, biologically male, and thus is not fully responsible for the murder.

We don't know of anyone who's actually been acquitted in modern times with this kind of claim, but it's been used in a number of big cases to try to win reduced sentences. In 1999 one of the defendants in the killing of Matthew Shepard in Wyoming tried to avoid the death penalty (which requires premeditated first-degree murder) and win a verdict of manslaughter by claiming Shepard's homosexuality drove him into an uncontrollable rage. Then there was Jonathan Schmitz, who killed his friend Scott Amedure after learning on the Jenny Jones show in 1995 that Amedure was gay and found Schmitz attractive; he argued he was driven to kill by a gay-panic reaction. More recently, the defendants in the Gwen Araujo case argued they were guilty only of manslaughter because they had been unable to control their anger upon learning that Araujo was biologically male.

When you think about it, the claim is pretty bizarre: Not even the most crass and sleazy defense lawyer these days would try to argue a killing was less heinous just because the victim was black. But the Araujo case, which first ended in a hung jury before two of the three defendants were eventually found guilty of second-degree murder (a third pleaded guilty to manslaughter), shows just how utterly marginalized transgender people remain in society, even in the liberal Bay Area.

That's the overall message of Tali Woodward's stories beginning on page 13. The vast, vast majority of TG people face regular, chronic discrimination in employment, a new survey sponsored by the Guardian and the Transgender Law Center shows. They live with overt harassment, cruel jokes, and pervasive, subtle abuse every day. It's shocking — but not all that surprising — to realize that almost two-thirds of all transgender people have been in jail: They are often locked out of the legal economy, and as one person told us, "the police think the very fact that you are who you are is grounds for arresting you."

And jail time, which is never pleasant, is almost unimaginably harsh for male-to-female transgender people, who see themselves as women, and often have typically female traits, like breasts, but (unless they've had expensive gender-reassignment surgery) are locked in cages with men.

You can't stop transphobia with legislation, but good public policy can lead the way in fights against discrimination, and that's what the Lieber bill would do. Critics argue it interferes with a defendant's constitutional right to present a defense, and if it passes, it will no doubt wind up getting challenged. But the very statement it makes — that the state of California believes killing someone is no less terrible because that person happens to be trans — is worth fighting for.

The bill cleared the Assembly in January on a party-line vote and is now before the Senate Committee on Public Safety, chaired by San Francisco's senator Carole Migden. She should make sure the bill gets a timely, full hearing and should help push it to the floor.

Meanwhile, the Legislature ought to look at the situation in state prisons. With all the money California spends building and staffing penitentiaries, the Department of Corrections and Rehabilitation ought to be able to do (at the very least) what the San Francisco Sheriff's Department does: give transgendered people the option of being housed together, without punitive isolation. How hard can that be? *