66 Hastings L.J. 77 (2014-2015)
The Trans Panic Defense: Masculinity, Heteronormativity, and the Murder of Transgender Women

handle is hein.journals/hastlj66 and id is 87 raw text is: 










                    The Trans Panic Defense:

       Masculinity, Heteronormativity, and the

              Murder of Transgender Women



                      CYNTHIA LEE* AND PETER KWAN**



When a heterosexual man is charged with murdering a transgender woman with whom
he has been sexually intimate, one defense strategy is to assert what has been called the
trans panic defense. The defendant claiming this defense will say that the discovery that
the victim was biologically male provoked him into a heat of passion causing him to lose
self-control. If the jury finds that the defendant was actually and reasonably provoked, it
can acquit him of murder and find him guilty of the lesser offense of voluntary
manslaughter. The trans panic defense strategy is troubling because it appeals to
stereotypes about transgender individuals as sexually deviant and abnormal.

In this article, we examine the cultural structures of masculinity that may lead a man to
kill a transgender woman with whom he has been sexually intimate. Building on
Professor Angela Harris' important work on male-on-male violence, we argue that
violence by men against transgender women is a variant of gender violence that has not
received the attention it deserves. We examine how masculinities theories can unmask the



     * Charles Kennedy Poe Research Professor of Law, The George Washington University Law
School. Cynthia Lee thanks Omar Clarke, a transgender male co-worker at The George Washington
University Law School, for sharing his insights about transgender people and the process of
transitioning. Cynthia Lee thanks Carrie James, Erin Mick, Prerna Lal, Andrew Basham, and
Matthew Halldorson for research assistance on this paper. Cynthia Lee also thanks Nicholas Stark for
his expertise and assistance in finding difficult-to-locate resources.
    ** B.A., University of Sydney (with Honors); LL.M., University of Sydney (with Honors);
LL.M., Columbia University.
       The Authors thank I. Bennett Capers, Joshua Dressler, Arnold Loewy, Kevin McGunigal,
Steve Morrison, Michael Rich, and Susan Rozelle for helpful suggestions when Cynthia Lee presented
this paper at Texas Tech School of Law's Annual Criminal Law Symposium on April 4, 2014. We also
thank Gabriel Jack Chin, Chris Elmendorf, Angela Harris, Courtney Joslin, Miguel Mendez, former
California Supreme Court Justice Cruz Reynoso, and students in Angela Harris's Spring 2014
Criminal Law class for helpful comments and feedback when Cynthia Lee presented the paper at UC
Davis School of Law in March 2014. We would also like to thank Robert Chang, Anupam Chander,
Susan Kuo, Andrea Freeman, Leah Grinvald, and Miye Goishi, who provided more helpful feedback
when Cynthia Lee presented this paper at CAPALF at UC Hastings College of the Law in San
Francisco, California in February 2013. We also thank Stephen Galoub, Melissa Hamilton, Carissa
Hessick, Anna Roberts, Danielle Tyson, and others for their comments and suggestions for
improvement when Cynthia Lee presented a very early draft of this paper at Law and Society in June
2oi2. Additional thanks go to Josephine Ross and Kelly Strader for their helpful comments.

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