By Amanda Scott, a native of Mobile and a senior at Georgetown University.
Alabama's lesbian, gay, bisexual and transgender community has come a good way in only three years. In 2015, a federal judge in Mobile struck down the state's ban on same-sex marriage as unconstitutional, giving way for Alabama's same-sex couples to marry and adopt children. In 2017, Birmingham approved a city ordinance prohibiting discrimination on the basis of sexual orientation or gender identity and expression, as did the city of Montevallo this past year.
But Alabama still lags far behind other states in ensuring its lesbian, gay, bisexual and transgender residents are treated equally. As I wrote two years ago about the murder of bisexual teen Nick Hawkins, Alabama still does not have a state hate crime law covering crimes motivated by a victim's sexual orientation or gender identity and expression.
Another lesser-known area where Alabama lags behind, and most states for that matter, is that it allows criminal defendants to invoke so-called "gay panic" and "trans panic" in their defense, as do 48 other states.
What this means, is that if a defendant experiences an unwanted sexual advance by a member of the same sex, or discovers the biological sex or gender identity of a date or partner, they can argue that they entered into a "state of panic" and killed the LGBT victim. This allows the jury to consider a lighter charge and sentence.
These gay and trans panic defenses are based on grossly inaccurate and deeply harmful stereotypes of LGBT people being sexual predators who prey on straight and cisgender people.
Growing up bisexual in Alabama, I recall clearly overhearing straight men on multiple occasions say they would kill a gay man if he "tried to hit on them" or a transgender woman if they found out "'she' was really a 'he.'" Perhaps you have, too.
According to a 2016 report by the Williams Institute at the UCLA School of Law, discussions of so-called "gay panic" and "trans panic" defenses have appeared in court opinions in approximately one-half of all states since the 1960s.
These defenses are not relics of a less tolerant past. As recently as May 2018, a former police officer in Austin, Texas, James Miller, successfully invoked the "gay panic" defense after killing his neighbor, David Spencer.
After a night of drinking at Spencer's house, Miller testified that Spencer moved in for a kiss which Miller rebuffed. Then, Miller said he pulled out a knife and stabbed Spencer two times. Miller claimed he had entered into a state of "gay panic" from being hit on by another man.
Jurors did not find Miller guilty of murder or manslaughter and he will not spend a day in prison. He was sentenced to only six months in jail, ordered to perform 100 hours of community service, and pay $11,000 in restitution to Spencer's family. He will also be on probation for a decade.
In 2013, the American Bar Association (ABA), with the support of the National LGBT Bar Association, unanimously approved a resolution calling for states to ban gay and trans panic defenses. The ABA urged states to adopt laws requiring courts in criminal proceedings and trials to instruct the jury to "not allow bias, sympathy, prejudice, or public opinion," based on the victim's sexual orientation or gender identity and expression, to influence its deliberations or decisions.
The ABA also called for states to specify that neither a non-violent sexual advance, nor the discovery of a person's sex or gender identity, constitutes "legally adequate provocation" to "mitigate the severity of a crime."
To date, only two states have banned gay and trans panic defenses. In 2014, California became the first state to ban the defenses, and Illinois became the second state to do so in 2017. Similar legislation is currently pending in New Jersey, Washington, Rhode Island, and the District of Columbia.
The Williams Institute provides a model legislation guide for lawmakers in states considering banning gay and trans panic defenses. Alabama lawmakers, especially those on the Committee on the Judiciary or who have professional backgrounds in law, could easily amend the state's criminal codes to ban these defenses that hurt LGBT victims and stigmatize the LGBT community.
In doing so, Alabama could tell its LGBT community: we will protect you as we protect our straight and cisgender residents, and we won't let those who would bring you harm be held unaccountable. That simple message would go a long way.