Michigan lawmaker says bill banning the ‘gay panic’ defense is personal for her

State Rep. Laurie Pohutsky (D-Livonia) discusses Michigan legislation that supports the LGBTQ+ community during a roundtable in the Grand Rapids Pride Center on June 21, 2024. | Lucy Valeski

Michigan lawmakers on Thursday cleared a bill that would bar the “gay panic” or “trans panic” legal defense, which has allowed defendants to argue that the discovery of a victim’s sexual orientation or gender identity justified the crime.

House Bill 4718 will now head to Gov. Gretchen Whitmer, who is expected to sign it.

Legislation to end ‘gay panic’ defense in Michigan gets House hearing

The “gay panic” defense has been used in cases to justify murder and violent assaults and is regarded by LGBTQ+ groups as permission from the legal system to regard members of the LGBTQ community as subhuman and deserving of violence .

Bill sponsor state Rep. Laurie Pohutsky (D-Livonia) remembers being a preteen in 1998 when the death of gay University of Wyoming student Matthew Shepard shook the country. Then- President Bill Clinton publicly decried the killing of the 21-year-old who was physically tortured and tied to a fence by two men who pretended to be gay in order to lure Shepard away from the bar they were at.

“When Matt Shepard was murdered, I wasn’t out yet. I was very young, but it was the first time that I thought to myself that maybe I just shouldn’t come out because it could clearly be deadly, and it can be dangerous,” Pohutsky told the Advance on Thursday.

The “gay panic” defense was unsuccessfully attempted by one of the men. Both men were sentenced to two life sentences for Shepard’s murder.

During the sentencing of one of the killers, Shepard’s father, Dennis Shepard, said that it takes a unique person to tie up and murder his son who couldn’t even ball up a proper fist until he was 13.

When she became a lawmaker, Pohutsky said she was horrified to learn Michigan is in the majority of states that permit the “gay panic” defense .

And though the defense is not used often, one researcher, Carsten Andresen from St. Edward’s University found in 2020 that Michigan ranked sixth in states for highest concentration, with four cases between 1970 and 2020. Andreson told the Advance in September that further research has shown 10 cases in that time in the state.

The American Bar Association is against the defense , advising that federal and local governments bar “gay panic” defenses as they suggest “that violence against LGBT individuals is excusable.”

“The use of a gay or trans panic defense deprives victims, their family, and their friends of dignity and justice. More broadly, it is designed to stir up and reinforce the anti-gay or anti-transgender emotions and stereotypes that led to the assault in the first place,” an ABA resolution from 2013 says .

The bill would not excuse any violence perpetrated by a member of the LGBT+ community, Pohutsky clarified to lawmakers during a Senate committee in March, when questions were raised that the bill might prevent individuals from pressing assaultive charges against individuals on the basis of their identity.

“At its core, the defense asserts that crimes against the LGBTQ community carry less weight because we are inherently less human and therefore less valuable,” Pohutsky said. She added that if someone commits an assault, there are laws for victims to seek justice and a person’s sexual or gender identity does not exempt them from those rules.

Courts and the justice system are not the only arena LGBTQ+ people have been subject to unjust rules that set them aside as “other”, Emme Zanotti, advocacy and outreach director of Equality Michigan said. Zanotti pointed to President Joe Biden’s recent pardon for U.S. military veterans who were discharged or convicted under military law for same sex relationships.

“Our Nation’s service members stand on the frontlines of freedom, and risk their lives in order to defend our country,” Biden said in the written statement. “Despite their courage and great sacrifice, thousands of LGBTQI+ service members were forced out of the military because of their sexual orientation or gender identity. Some of these patriotic Americans were subject to court-martial, and have carried the burden of this great injustice for decades.”

The ideologies held by institutions and decision makers that led to purging LGBTQ+ people from public service are the same ideologies that create things like LGBTQ panic defenses that legitimize violence against LGBTQ+ people on the grounds of them being LGBTQ+, Zanotti said.

The banning of the “gay panic” defense is a big deal as the U.S. places high standing on the courts system, Zanotti said. For such a valued system to bar justification of violence against LGBT+ people says the state of Michigan will not condone and legitimize violence.

“The reality is this defense is used to justify violence against humans and to justify violence specifically against LGBTQ humans,” Zanotti said. “When we talk about creating a socially and physically safe country for everyone to live in here, eliminating this panic defense is critical.”

As someone who was a queer kid in the 1990s, there’s something to be said about witnessing the impact of Shepard’s murder and the violence the LGBT+ community has faced and growing up to help make things better, Pohutsky said.

“So it’s personal for me and it means a lot to me just because, I don’t know, I guess I hope that there is some other kid who has maybe been concerned about safety and coming out and I hope that they take this as a sign that this is a state where they are safe to be themselves,” Pohutsky said.

“This passed along a party line vote in the House. We have a lot of work to do. It’s not that it’s always safe. But there are people that are supportive of the community and want them to be able to call Michigan home without being in fear and that’s what I hope for some other young queer kid at home that is scared.”

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