The EconomistNovember 28th 2020 United States 252
D
anielspencerwasa quiet,32-year-
oldfilmeditorwhohadrecently
movedtoAustin,TexasfromLos Ange-
les.Hewasalsogay.In 2015 his neigh-
bour,JamesMiller,stabbedhim to death.
Thecasewasharrowing.Buta legal quirk
uncoveredduringthetrialmade it even
worse.MrMillerintroducedthe “gay-
panic”defenceincourt,arguing that at
somepointonthenightofthe murder,
MrSpencerhadtriedtokisshim. The
victim’sapparenthomosexuality had
madeMrMillerfearfulforhis safety and
thusdiminishedhisresponsibility.
Despitea lackofphysicalevidence (and
thefactthatMrMillerdefended himself
bystabbingthevictimtwicein the back),
hewassentencedtojustsixmonths in
jail,withtenyearsonprobation.
Thecasewasnoanomaly.The “gay-
panic”defenceremainslegally admis-
siblein 39 statesaccordingtothe Move-
mentAdvancementProject,a think-tank.
It normallybolsterseitherinsanity or
self-defenceclaims,anditsuse goes back
decades.Thebrutal‘candlestick murder’
ofJackDobbinsinCharleston in 1958
resultedina fullacquittalofthe man
whoconfessedtothecrime,based on the
factthatthevictimhadallegedly made
unwantedadvances.Although attitudes
tohomosexualityhavechanged since
then,thelawinsomeplaceshas not.
Thedefenceis“theproblem hiding
underthesofa”,saysJasonMarsden,
executivedirectoroftheMatthew Shep-ardFoundation,whichlobbiesagainst
hate crimes. It occurs in so few cases,
scattered across multiple jurisdictions,
that it seldom attracts much attention.
The American legal system is no
stranger to bizarre lines of defence. In
2013 Ethan Couch killed four people
while drunk-driving in Texas. His law-
yers successfully argued that the 16-year-
old was suffering from “affluenza”, hav-
ing grown up sheltered by wealthy par-
ents who had failed to teach him the
consequences of his own actions (he
initially avoided prison and was instead
put on probation for ten years). Lawyers
for Colin Ferguson, a Jamaican immi-
grant who killed six people on a train in
New York in 1993, pursued a “black-rage”
defence, claiming that a lifetime of racial
prejudice had driven Mr Ferguson insane
(they were unsuccessful).
But the track record of the “gay-panic”
defence makes it particularly egregious.
The fbikeeps no data on the sexuality of
homicide victims, and state-by-state
records on hate crimes are spotty, so
numbers can be difficult to pin down.
But Carsten Andresen, a criminal-justice
professor at St Edward’s University in
Austin, Texas, has been busy compiling a
database. His research shows that since
the 1970s, gay- and trans-panic defences
have reduced murder charges to lesser
offences in 40% of the roughly 200 cases
that he has identified. In just over 5% of
cases, the perpetrator was acquitted or
the charges dropped.
It took until 2014 for California to
introduce the first ban on the defence
(the state’s attorney-general at the time,
Kamala Harris, led efforts to push the ban
through). Since then, ten more states
have followed, most recently Colorado in
July of this year. Proposed bans are in
committee stages in a handful else-
where, including Texas and Minnesota,
but 30 statehouses remain silent on the
issue. And the fact that a third of cases
since 1970 have occurred in the past ten
years suggests that the problem may be
worsening, or at least that “every step
forward is followed by several steps
back”, says Mr Andresen. For now, nearly
two-thirds of gay Americans are living in
states where their very existence can be
claimed to be a reasonable cause for
violence against them. Daniel Spencer
probably did not know this when he
invited his neighbour over for an evening
of wine-drinking and guitar-playing.Panicattacks
Obscure lawsNEW YORK
The“gay-panic”defence remains legally admissible in 39 statesA not very terrifying sightprofessionals who have built careers work-
ing with trans-identifying children. She
points out that this is the only medical field
apart from cosmetic surgery in which both
diagnosis and treatment are determined by
the patient. She describes doctors and ther-
apists (who would ordinarily consider it
their job to challenge their patients’ as-
sumptions) bowing to the judgment of vul-
nerable teenagers. They also, grievously,
tell parents who do not accept that their
daughters are boys that failing to affirm
their identity may heighten the risk of sui-
cide (research does not back this up).
Data on transgender medical interven-
tions are poor—no one knows how many
teenagers have transitioned—and one
wonders at times if Ms Shrier may have be-
come so steeped in the phenomenon that
she exaggerates its reach. But she tells the
stories of those she interviews with great
care. She writes empathetically about the
distress of gender dysphoria, “the relent-
less chafe of a body that feels all wrong,”
and the experience of adults who have
transitioned (a group that has long suffered
discrimination). She quotes her interview-
ees at such length that it would be hard to
claim she has misrepresented them.
Yet despite this the book has been de-
nounced as transphobic. This month, a
prominent lawyer from the American Civil
Liberties Union tweeted, from his personal
account, that “stopping the circulation of
this book and these ideas is 100% a hill I
will die on”. A professor of English litera-
ture at Berkeley suggested that people
should steal the book and burn it. Few
mainstream newspapers have reviewed it,
though it is one of the first accessible treat-
ments of a subject that has generated much
fascinated coverage.
This is a clear illustration of what the
book claims: the dominance of an ideology
that brooks no dissent or debate. One of the
most shocking episodes it describes con-
cerns Lisa Littman, a medical doctor and
researcher at Brown University, who noted
in a paper in 2018 that most transgender
children were teenage girls with no history
of gender dysphoria. Many of the teenagers
in her study had been exposed to peers who
had come out as trans shortly before doing
so themselves; a majority had spent more
time on the internet. The study sparked a
bullying campaign, which prompted
Brown to publish an apology, though the
paper’s findings never changed. She was
fired from another job as a consultant.
In “Irreversible Damage” Ms Shrier de-
scribes meeting Dr Littman and wondering
out loud about the cultural factors that
might be causing so many American girls
to want to become boys. She is impressed
when Dr Littman refuses “to theorise be-
yond the limits of her data”. This punctili-
ous respect for the facts had threatened to
destroy her career. 7