A gay man meets meet a good-looking man at a bar. They go home. The good-looking man insists on performing oral sex on the gay man. After they part, the gay man later learns that the good-looking man was no man at all. He was a woman. The gay man, overcome with anger, shock and disbelief (that a woman could perform oral sex as well as a gay man) goes to the woman’s home, beats her up and kills her. When caught by police, the gay man claims he was overcome with transgender panic.

That’s exactly what three men are arguing now in an Oakland, Calif., case involving the brutal death of a transgender teenager, Gwen Araujo, in October 2002. Prosecutors charged four men with killing the 17-year-old biologically-male Gwen, whose given name was Eddie. She identified and dressed as a woman and went by the name Gwen. Jaron Chase Nabors, 20, pled guilty to manslaughter in a deal wherein he also agreed to testify against the three others, Michael William Magidson, 23, and Jose Antonio Merel and Jason Cazares, both 24.

The Los Angeles Daily Journal has chronicled the case since the preliminary hearing of the three men charged with Gwen’s murder. Nabors testified at the preliminary hearing that he and the others raised questions about Gwen’s gender only after they had oral and anal sex with her. When they saw that she didn’t have female genitalia, Magidson and the others then proceeded to beat Gwen about the head, while choking her and strangling her with a rope. Gwen’s body was found two weeks later in a shallow grave in the Sierra foothills.

The three killers have argued during their preliminary hearing, and now throughout the trial, that they killed Gwen in the heat of passion. Instead of murder, they argue, their crime was manslaughter. The sentence for murder would be 25 years to life. Plus, because this would be a hate crime, the judge could add another four years to the sentences. Conversely, for manslaughter, they could face as little as three years (the most would be 11 years).

The defense strategy is similar to the so-called “homosexual panic” defense. A straight man is overcome with emotion after rebuffing an advance by a gay man. He has no time to cool off and he kills the gay man.

The Alameda County deputy district attorney, Chris Lamiero, discounts the heat-of-passion defense because, he said, the four men had suspicions about Gwen long before the murder. And the four had apparently agreed that, should their suspicions prove true, they would kill her.

But some experts suggest this case is tougher for the prosecution than the typical gay-panic defense case. In a gay-panic defense case, the perpetrator knows the gender and sexual orientation of the so-called “aggressor”. In a case involving a transgender (especially pre-operative), where the defendants have had sex with the victim, it’s more likely that the attacker will react violently. It’s the deception factor, say the prosecutors.

The gay-panic defense was rejected in the 1999 slaying of Matthew Shepard, but the Daily Journal notes that it has been successful in conservative locales, especially where there is proof that the victim was gay. In a 1997 murder case of pre-operative transsexual Chanelle Pickett, a Boston jury convicted William Palmer only of battery after he admitted killing Chanelle. Also in 1997, in a case from Cape May, New Jersey, Brian Haller was able to plead guilty to manslaughter for killing a transgender after she performed oral sex on him. Haller said he was averse to homosexual activity and that’s what caused him to react so violently. In Gwen’s case, the defendants tried at the preliminary hearing to get the charges reduced to manslaughter but the judge refused.

Regardless of what this defense is called – “gay panic” or “transgender panic” – it’s nothing more than a device to allow straight men to get away with murder, and to validate their denial when they know (or any reasonable person should know) that the person they are having sex with has genitalia of the same or opposite sex.

Unfortunately, the law allows prejudices of the attackers (and jurors) to rule the day in American courts. And it’s absurd. Just imagine how many murders of straight men there would be if every lesbian could kill straight men who make sexual advances toward them.

It’s time for the California Legislature to prohibit this kind of evidence – whether it involves gay panic or transgender panic – in a murder trial.