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Our Opinion: Get anti-gay, -LGBTQ defense off the books

https://www.berkshireeagle.com/stories/our-opinion-get-anti-gay-lgbtqdefense-off-the-books,544913

It was fitting last Friday that Senator Edward Markey and Representative Joe Kennedy — two members of the congressional delegation from the state that first legalized same-sex marriage — would introduce bills in their respective chambers seeking to eliminate “gay panic” and “trans panic” as criminal defense arguments in federal courts (Eagle, July 15). These defenses — whose underlying rationale is that an alleged perpetrator of a crime of violence against another human being can be rendered temporarily insane upon the discovery that the victim is gay or transgender (and that this can be used in an attempt to mitigate their sentence) — is still legal to use in every state except California, Illinois and Rhode Island.

Representative Kennedy was succinct in his statement explaining the bill’s introduction: “Murdering or assaulting anyone because of their sexual orientation or gender identity is not a defense, it’s a hate crime,” he said, echoing the ACLU’s decade-old argument against use of the defense. Senator Markey added that such a defense reflects an irrational fear and bigotry toward the LGBTQ community, and that it “corrode(s) the legitimacy of federal prosecutions.”

The proposed legislation addresses a vestigial remnant of the days when a jury could be convinced that a perpetrator had simply lost their mind upon discovering that a colleague or lover was gay or trans, and therefore could not be held fully accountable for their actions. The bill is completely in keeping with the inscription on the architrave of the U.S. Supreme Court building: “Equal Justice Under Law,” and a section of the language included in the bill reflects that philosophy: “… to end the antiquated notion that LGBT lives are worth less than others and to reflect modern understanding of LGBT individuals as equal citizens under law…”

To anyone who believes in universal human rights, the introduction of such a bill would seem to be an unnecessary political gambit at a time when the American people in general have undergone a tectonic cultural shift in their attitudes regarding gender identity and preference. Nevertheless, prejudices persist — and as long as lawyers who are charged with mounting the best possible defense for their clients retain such a strategy in their toolboxes, they will continue to use it regardless of the corollary damage it might wreak in perpetuating a societal evil. Even in Massachusetts, citizens will be voting on a ballot question that would repeal or uphold a law prohibiting discrimination in public places based on gender identity. It’s best not to be too confident.

It’s true that social mores cannot be legislated, but Senator Markey and Representative Kennedy rightly contend that the state should not be in the business of condoning bigotry and prejudice by permitting such sentiments to be the basis for a credible legal defense. By logical extension, such a defense — were it valid — could (and should) also be available to a gay person who discovered someone they thought to be gay was straight, but no defense attorney in their right mind would use it.

Both the sponsors of the bill and their co-sponsors are Democrats and it will make interesting viewing to watch how Republicans handle the proposed legislation. Democrats have the advantage of being able to argue the human rights high ground without fear of retribution, while a significant component of the Republican base is made up of evangelicals and other social conservatives who have deep moral problems with the equal treatment of LGBT individuals. In an election year, the passions that would elevate an obscure piece of lawmaking to hot-button issue status run especially high. Messrs. Kennedy and Markey bring honor to Massachusetts for proposing legislation that will advance this country’s jurisprudence and human rights record.