(Toxic) Masculinities Theory and the Gay/Trans Panic Defense

This Article examines the gay/trans panic defense under a masculinities studies lens and advocates accordingly for its abolition. Overwhelmingly, this defense, whatever its variation, is raised by cisgender men. These men argue that their violent crimes against queer victims are, while regrettable, products of passion and insanity, not malice. They argue, very much in line with the findings of the field of masculinities studies, that they merely acted to protect their masculinity, which was threatened by the perceived homosexuality and/or femininity of their victims. This Article contends that it is a calamitous blunder for such toxic ideals of masculinity to be entrenched in the law by means of the gay/trans panic defense. This Article will utilize theories of masculinities studies and other feminist legal theories to identify five aspects of masculinity implicated by the gay/trans panic defense—non-femininity, non-homosexuality, aggressiveness, righteousness, and powerlessness—and argue that the law should no longer be infused with violent gender essentialist rhetoric through the use of the defense. Already, various areas of the law distort psychology and sociology to resolve complex matters of law and fact; to do so here, in the context of criminal justice, is particularly dangerous. It embeds not only in the minds of defendants and juries that violent crimes against queer people are justifiable, but also in the minds of the public that the motivations for these crimes are acceptable, and perhaps that queer people are inherently threatening to the dominant social order and thus deserve whatever retribution finds us.