Opinion: Gay and trans panic defense ban could further protect LGBTQ Coloradans

I had been out as transgender, publicly, for about six months before a guy hit on me at a bar. Dealing with unwanted advances from men is one of those things most cisgender women (who were assigned female at birth) unfortunately learn before adolescence. As a trans woman, I had to figure it out in my 30s. I was paying my tab and I felt a hand on the small of my back.

“Hey, let me buy you a drink?”

Startled by such a sudden invasion of personal space — another thing cis women learn to deal with much earlier in life — I spun around awkwardly with my hands up, not entirely sure what was happening.

“Oh, no thanks, I’m just leaving,” I said as politely as I could.

He recoiled as if I had spit at him. It was probably my voice. That is one of the hardest things for trans women to change, and even when I make an effort I still sound like Michael Cera from Arrested Development.

“You fucking faggot!” he sneered, and then stormed off.

I left the bar quickly, feeling embarrassed and guilty but also completely unsure of what, exactly, I did wrong. I was actually pretty lucky I wasn’t assaulted, or worse. Trans women have the difficult job of having to manage both male attraction and male revulsion, often simultaneously.

In 2008, Angie Zapata, an 18-year-old transgender woman from Greeley, was murdered by Allen Andrade, a 31-year-old man she met on social media. Zapata didn’t disclose her gender history and when Andrade discovered she was transgender — by grabbing her crotch — he beat her unconscious with his fists and then bludgeoned her to death with a fire extinguisher.

Andrade claimed he “snapped” and murdered Zapata in a rage. The jury didn’t buy that defense and found him guilty of first-degree murder and a bias-motivated crime. He was sentenced to life in prison.

Colorado State Rep. Leslie Herod recently introduced a bill to ban the use of the “gay panic” defense in courtrooms in the state of Colorado.

[pullquote-1] “So-called ‘gay panic’ and ‘trans panic’ defenses,” reads House Bill 20-1307, “seek to partially or completely excuse a defendant from full accountability for the commission of a violent crime on the grounds that the sexual orientation or gender identity or expression of the victim is sufficient in itself to arouse the heat of passion in the defendant... or cause the defendant to be temporarily insane.”

“The number of hate crimes against trans women of color specifically, but gay and trans people throughout Colorado is increasing,” says Herod. From 2017 to 2018, Colorado saw a 16 percent increase in crimes based on a victim’s “race, sexual orientation, gender identity or disability,” according to annual reporting by the FBI. Last year, Emmit Davis, a transgender man, was assaulted outside his home in Colorado Springs.

Most cases that utilize the panic defense don’t receive the same level of scrutiny as Zapata’s case.

“After working with the DAs [District Attorneys] on this issue we found out that it’s a lot more common than we thought. It’s a defense that needs to be banned outright,” says Herod. “There are a lot more cases than those that end up in the press. They get offered a plea or their case is sealed. This is happening across the state.”

Herod’s co-sponsor on the bill is Matt Soper, a Republican representative from Delta — surprising given the anti-LGBTQ bills introduced by Colorado Republicans this legislative session. “Once folks realized that this defense is actually being used, folks came on board,” explains Herod. “It’s a pretty egregious defense. It’s not one that I could use, for instance, as a lesbian, against a straight man who hit on me. Why should that be allowed the other way around?”

Bipartisan support of the bill is a good sign, but unfortunately the emerging health crisis has put a damper on things at the Capitol.

Colorado has some of the most robust laws in the country protecting LGBTQ citizens from discrimination and harassment, and HB20-1307 would be a welcome extra layer of defense.