Gay-Rainbow-Flag Photo Credit: Diego M. Radzinschi/ALM

On August 17, 2013, Islan Nettles met James Dixon on the streets in Harlem. Dixon started flirting with Nettles, unaware that she was a transgender woman. When Dixon’s friends started mocking him, Dixon became enraged and struck Nettles, causing her to fall to the ground. Evidence indicated that she was repeatedly struck while lying on the pavement, and that her head had been rammed into the pavement. Five days after the incident, Nettles died as a result of her injuries at age 21.

Dixon later told police officers that he “just didn’t want to be fooled,” and that he had gone into “a blind fury” when he discovered that Nettles was transgender. On the eve of trial, Dixon pled guilty to manslaughter in exchange for a promised sentence of 12 years in prison, out of a maximum sentence of 25 years.

Dixon’s attempt to justify killing Nettles after discovering her gender identity is reflective of a system that endorses a blame-shifting strategy upon which those accused of LGBT murder think they can rely in order to rally the anti-LGBT biases of judges and juries and mitigate their perceived culpability. Tactics like this are frequently referred to as “gay panic” and “trans panic” legal defenses—and they have not been banned here in New York.

While gay and trans panic defense theories are not themselves codified under the Penal Law, they are used in conjunction with New York’s extreme emotional disturbance defense to murder in the second degree. Thus, gay and trans panic defenses seek to provide a “reasonable explanation or excuse” for the defendant’s intent to kill.

These “defenses” have no place in our criminal justice system, which is often viewed as a model for other states. The availability of these defenses in our system sends a message to LGBT New Yorkers—that their lives are not equal.

What’s more, gay and trans “panic defenses” run afoul of New York’s anti-hate legislation enacted nearly two decades ago, which increases the severity of a specific offense motivated by bias. Effective enforcement of New York’s Hate Crimes Act has never been more important. In 2016, more than 1,300 hate crimes based on sexual orientation and gender identity were reported to the Federal Bureau of Investigation by local law enforcement agencies. Here in New York, our agencies reported 123 hate-based incidents against LGBT people in that year alone, up from 107 the year prior.

In 2013, the American Bar Association unanimously called for legislative action to curtail the availability and effectiveness of the gay and trans panic defenses. Since the ABA issued its resolution, one or both defenses have already been abolished in California and Illinois. Earlier this year Governor Andrew Cuomo announced he was putting a measure in his 30-day budget amendments to proactively ban the use of these “defenses,” but the New York State Legislature blocked the effort. Senator Brad Holyman and Assemblyman Daniel O’Donnell have introduced legislation to ban them.

Passage of this proposed legislation will alleviate this irreconcilable inconsistency in our criminal justice system and help ensure that those who commit violent acts are unable to profit from unconscious public biases against LGBT people and escape justice. LGBT New Yorkers should not have to live in fear that being out could provide justification for violence against them. It is time for New York to join other states in adopting similar legislation. We have lost too many members of our community to anti-LGBT violence. It’s time to end the “panic.”

Eric Lesh is the executive director of LeGaL, the LGBT Bar Association of New York. James Castle is an associate of Cozen O’Connor’s commercial litigation department in New York.