Abstract

Excerpted From: Grayson E. Yauger, State-Sponsored Violence: Examining LGBTQ+ Panic Defenses to Uncover Queer People's History of Discrimination in the Law, Yale Journal of Law & Feminism 118 (2026) (568 Footnotes) (Full Document Requested)

On the morning of February 12, 2008, Brandon McInerney shot his fellow classmate Lawrence “Larry” King in the middle of a crowded classroom. McInerney pulled a handgun out of his bag and shot King twice in the back of the head, execution-style. After the second shot, McInerney tossed the gun on the ground and walked out the classroom door. Despite being rushed to the hospital, King died from his injuries two days later. The day before he shot King, McInerney reportedly told a classmate that they should not expect to see King again because he was “going to kill Larry.”

King’s classmates had subjected King to various homophobic remarks for being openly gay. King may also have been transgender. Shortly before the shooting, King began wearing lipstick, high-heeled boots, and women’s jewelry to school. He also asked at least one of his teachers to call him Leticia and told his mother that he wanted “a sex-change operation.” On the day of his murder, he had written his name as Leticia King on his classroom assignment. This Article uses the pronouns he and him for King only because King did not live long enough to fully self-identify his pronouns.

The police charged McInerney with first-degree murder and a hate crime. At trial, McInerney’s defense hinged on painting King as sexually aggressive. Witnesses told jurors that King frequently disrupted class by making sexual remarks and targeted McInerney with unwanted flirtations. They provided as an example that, the day before the murder, King asked McInerney to be his valentine and said, “[l]ove you, baby!” The defense argued that the killing was not premeditated, despite McInerney’s statements to the contrary, because it was the result of being pushed to the edge by King’s “inappropriate remarks” and “sexual advances.” The defense asked the jury to evaluate King’s behavior leading up to the murder, not McInerney’s. The first trial resulted in a deadlocked jury. However, McInerney reached a plea deal with the prosecution before a second trial commenced. Instead of first-degree murder and life in prison, McInerney pled to a lesser offense for only a twenty-one-year sentence. McInerney became eligible for parole in December 2025, thirteen years from when he entered state prison. The trial was successful for the defense because the jury failed to reach a guilty verdict, and the defendant was able to negotiate a lighter sentence with the prosecution. One juror said she believed it was King who bullied McInerney, despite the prosecution’s evidence that King was the frequent target of homophobic bullying by his classmates--including McInerney--and several jurors wore “Save Brandon” rubber bracelets throughout the trial.

Larry King’s murder provides a window into how LGBTQ+ panic defenses are used. King’s case is particularly useful in this context because he openly identified as gay and expressed a budding interest in transitioning from the gender he was assigned at birth. As such, this case is uniquely positioned to demonstrate how sexuality and gender identity can converge into an LGBTQ+ panic defense. This defense is an extension of the provocation defense to murder, in which the defendant claims that the victim’s perceived sexual orientation or gender identity mitigates the defendant’s culpability to murder because the victim provoked the defendant into a heat of passion.

LGBTQ+ panic defenses rely upon the theory that a perpetrator can reasonably react violently to either discovering the victim’s sexual orientation or gender identity after experiencing a romantic advance by the victim or discovering the victim’s so-called deception about their gender. Gay panic defenses are commonly used in a romantic advance scenario. Trans panic defenses, however, have a wider application because they are often used in two distinct situations. First, defendants use trans panic defenses to justify domestic, dating, or “hookup” violence. Second, catcallers use trans panic defenses to excuse violence resulting from the discovery that the target of their advance is a trans person.

Use of the LGBTQ+ panic defense is still permissible in many courtrooms. However, the National LGBTQ+ Bar Association’s last documented instance of a panic defense being successfully asserted by a defendant was in 2015. The lack of widespread use, even in light of the current heightened anti-trans, anti-queer vitriol that government leaders across America are peddling, may lead one to wonder why the panic defense is still relevant to legal conversation. The answer lies in the broader social commentary embedded in legally permitting a person who kills a member of a sexual or gender minority to assert a defense that paints a queer victim as deceptive, aggressive, and dangerous. One might posit that any defense to murder hinges upon providing a mitigating excuse or justification to why a defendant is less guilty than they otherwise would be. And yet, consider the following: Justice Amy Coney Barrett recently articulated in her United States v. Skrmetti concurrence that transgender people are not a suspect class because they have not, “as a historical matter ... been subjected to a longstanding pattern of discrimination in the law .” Justice Barrett concludes that transgender people have not been subject to such a pattern of discrimination. I posit that Justice Barrett is incorrect, and use LGBTQ+ panic defenses as a vehicle for discussing how the state has sanctioned violence against queer bodies in a variety of interconnected methods.

Despite Justice Barrett’s assertion to the contrary, legislation and jurisprudence have long shaped a view of non-heterosexuality and transgender identity as immoral, false, deceptive, threatening, or otherwise frightening. The force and longevity of LGBTQ+ panic defenses, which gained traction in the 1960s, demonstrates that these views have been enshrined into law, and in so doing, they have set the stage for defendants to argue that they are justified in committing crimes against sexual and gender minorities. As provocation defenses, LGBTQ+ panic defenses hinge upon examining the behavior of the victim rather than the defendant. However, queer people, who lack the adequate legal protection and recognition enjoyed by other populations, are particularly vulnerable to state-sanctioned violence. Otherwise put, these laws shift the responsibility for the harm caused to queer victims by positing that said victims are legally suspect to begin with. Much like an ouroboros eating its own tail, the same enshrined views allow anti-queer proponents to further leverage an inherently suspect identity to further repress their rights and freedoms--often while weaponizing the fact that queer bodies have continued to exist despite state-sanctioned repression as the reason for why there is no such discrimination to begin with. To continue to use LGBTQ+ panic defenses as an example of such scapegoating: not only are sexual and gender minorities disproportionately victims of physical violence compared to their cisgender, heterosexual counterparts, but also the perpetrators of such violence can then turn around and rely on the victim’s queer identity to excuse their crime.

Most legal scholarship on LGBTQ+ panic defenses theorizes that the use of these defenses can be attributed to cultural views concerning sexuality and gender identity while largely ignoring the ways in which discrimination against members of the LGBTQ+ community are baked into law. This Article examines the ways in which legal discrimination in various aspects of the law creates a jurisprudential environment conducive to the continued use of LGBTQ+ panic defenses against murdered members of the queer community; and how the use of those defenses, in turn, demonstrates systemic anti-queer bias in the law. Ultimately, this Article evaluates how legal doctrine explicitly and implicitly stigmatizes and criminalizes sexual and gender minorities, and how this stigma and criminality combine with gender stereotypes to converge into LGBTQ+ panic defenses. In doing so, the Article reveals a systemic anti-queer bias in law that is so severe as to imply that queer people deserve to be killed for their nonconformity with traditional hegemonic notions of gender.

Part I of this Article begins by providing the reader with a theoretical framework that both defines relevant terms and explains how oversimplifying matters of gender and sexuality can lead to real harm. It then examines various bodies of law that stigmatize and criminalize certain sexual orientations and gender identities, revealing how certain legal doctrines both create and perpetuate stereotypes of queer people as aggressive or false; and how they create a rhetorical environment conducive to LGBTQ+ panic defenses. Part II examines how existing law in various other areas converge in the case of an LGBTQ+ panic defense by placing a victim’s sexuality or gender identity on trial. In doing so, Part II examines various cases in which an LGBTQ+ panic defense has been used and dissects the ramifications of such use. Finally, although the core of this Article is its uncovering of the legal biases that continue to underlie federal jurisprudence, I take the opportunity at the close of the article to consider whether LGBTQ+ panic defenses should remain viable as a matter of law. Part III thus begins by briefly surveying the potential methods that other scholars have posited to address the use of LGBTQ+ panic defenses and concludes by applying a critical legal theory lens to examine why such defenses may continue to be permissible without endorsing the rhetoric animating the defense itself. I conclude that while there may be good reasons to continue to allow the defenses to exist, any such continued existence should not obscure our understanding of the state-sanctioned violence that lurks behind the defense.

[ . . . ]

When I first conceived this project, it was at a time when anti-trans backlash was rising across the country. However, even then, the last alleged use of a LGBTQ+ panic defense was a handful of years old. When I explained the project to some of my peers and mentors, there was an implicit question about why I felt that this topic was still able to be a meaningful contribution to legal scholarship. And yet, the genesis of this project began when I was sitting in a classroom, listening to my cisgender peers argue that it would be acceptable to use a LGBTQ+ panic defense if a queer person ““annoyed” them with an unwanted sexual advance. The point of this story is not to brand my classmates as queerphobic, but rather to highlight how certain aspects of legal history have made Larry King’s story fit into a contemporary legal landscape.

This Article has examined a small sampling of areas of law that vilify and otherwise discriminate against sexual and gender minorities by painting them as aggressive, deceptive, and dangerous. LGBTQ+ panic defenses are a lens through which one can understand how the various areas of legally permitted discriminatory legislation and jurisprudence endorse the violence that can be enacted against queer people. I argue that to combat the pernicious theories that underly anti-queer bias in the law, those who are concerned with addressing the various inequalities that sexual and gender minorities experience--particularly in the hostile environment of the present historical moment--should embrace a political framework of critical trans politics. Doing so promotes solidarity across various vulnerable minority populations, rather than positing a list of formal inequalities that must be addressed piecemeal through legislation or litigation, pitting issues and communities against each other for priority. While one may see gradual gains through the pursuit of individual legal battles, the story of LGBTQ+ panic defenses demonstrates that even direct legal intervention, such as banning such defenses, may accomplish little as a practical matter.

Anti-queerness exists in a web of legal inequities that are best addressed through political solidarity and the collective tackling of systems that disadvantage vulnerable people. This is not to say that political approaches to anti-queerness ignore the particular rights and needs of sexual and gender minorities, but rather that they look for ways to address those particular rights and needs that fix larger systemic problems rather than creating carve-outs for “deserving” LGBTQ+ people. We can, for example, use trans identity as a springboard to talk about broader communal challenges such as the denial of medical care and criminalization of social difference. Legal initiatives may include actions such as promoting open understandings of sexual wellness; easing procedures for acquiring identity documents; and improving access to health care for all, including gender-affirming care. This sort of work must exist alongside legal intervention to address the history of state-sponsored violence against queer bodies and identities.

J.D., University of Tulsa School of Law. Author’s pronouns are they/he. Because identity is multifold, and as it is relevant to the Author’s identity in discussing this topic, I will disclose some of the labels I use when discussing my identity: trans, nonbinary, bisexual, and queer.