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Saturday, February 11, 2006

Fighting 'trans panic' through laws, disclosure

Southern Voice Online
Friday, February 10, 2006

When to reveal status remains tough subject in biased society, experts say.

Gwen Araujo died a brutal death.

After partying with a group of friends in September 2002, including having sexual contact with several young men, Araujo, 17, was invited to party with them again on Oct. 3, 2002.

But when the young men learned that night that Araujo had male genitalia, they beat and strangled her, leaving her body in a shallow grave. And when Araujo''''s attackers went on trial, they claimed their discovery justified their actions.

Late last month, the California Assembly approved a first-of-its-kind bill putting the state on record against the so-called "trans panic" and "gay panic" defenses used by some killers to receive lighter prison sentences.

Passed by the Assembly Jan. 26 and now pending before the state Senate, the bill is named for Araujo, and its approval came just one day before her assailants received the longest sentences allowed by law.

Michael Magidson, 25, and Jose Merel, 26, were sentenced to the mandatory terms of 15 years-to-life for second-degree murder. Jason Cazares, 26, pleaded no contest to manslaughter in a plea bargain and was sentenced to six years.

As part of their defense, the assailants said they believed Araujo to be female, had sexual contact with her, and then snapped when they found out she was biologically male. One defendant cried over and over, "I can''''t be gay, I can''''t be gay," according to court testimony.

California Assemblywoman Sally Lieber (D-San Jose), who authored the Gwen Araujo Justice for Victims Act, said her bill is dedicated to leveling the judicial playing field.

"It was exclusively Gwen''''s trans status that made her a target," Lieber said in an interview Feb. 8. "This murder was something we in the Bay Area thought only happened in rural, isolated places, and this crime really stuck with me and the residents here."

Obligation to tell?

Cole Thaler, staff attorney for transgender rights with the gay litigation group Lambda Legal, said the jury''''s decision to bestow the harshest punishments in the Gwen Araujo case is a hopeful sign the tide is beginning to turn against "trans panic" and "gay panic" defenses.

"These kinds of defenses are ''''heat of passion'''' defenses," Thaler said. "And the heat of passion defense results from how we as a society expect reasonable people to react in certain ways. When these kinds of defenses are successful, they are simply confirmation of homophobia and transphobia as being part of our values — and I argue that we don''''t want these as our societal values."

Courts haven''''t found that transgender people have any legal obligation to disclose their status to potential sex partners, Thaler said, tending to side against any kind of "sexual fraud" defense made in cases involving trans victims.

Society needs to be educated that trans people are who they say they are, regardless of their genitalia, he added.

"If you meet someone at a bar and decide to go home with them, there is no obligation to reveal your racial ethnicity or your religion," Thaler said. "A trans woman is accurately representing herself as a woman … The fact Gwen Araujo was born with male genitalia did not make her any less of a woman."

Disclosure ''''really big issue''''

Rachael St. Claire, a transsexual psychologist from Colorado, has experienced disclosure issues both personally and professionally, particularly with male-to-female clients.

"Disclosure is a really big issue for them," she said. "Male-to-female transgender people who are attracted to heterosexual men have a difficult time. And generally what I counsel is for the person to identify what their values are and what their intentions are," St. Claire said.

If a trans person is going to disclose to a partner for the first time, they may want to do it in a public place or even over the telephone to be safer, she said.

And as a transsexual woman who has faced disclosure many times in dating relationships, St. Claire said it''''s often a "relationship killer" with the heterosexual men to whom she is attracted.

"I don''''t think it is very safe to be having a relationship with a heterosexual man without telling them because of the potential violence," she said.

But even if a transgender person doesn''''t disclose her status to a date, it doesn''''t justify a physical attack, St. Claire stressed.

"That''''s like equaling a woman''''s responsibility for not being raped," she said.

Randi Ettner, a Chicago therapist and transgender specialist whose books include "Gender Loving Care: A Guide to Counseling Gender-Variant Clients," said the issue of disclosure is the most frequently asked question in her practice.

"Unfortunately, there is so much ignorance and prejudice about this condition that trans people have to be very careful who and how they tell someone," she said.

There is no "universal answer" when it comes to disclosure, she added.

"This is the most personal and private information about someone. You have to have some sort of trust," she said.

Ettner said she understands transgender people often walk a fine line, but she advises not waiting very long to disclose being transgender to someone you are dating.

"You don''''t want to let too much time go by so that the other person feels blindsided," Ettner said. "But in casual dating, there''''s also not the responsibility to bring up such a personal issue. I do think for pre-operative people engaging in sex who are not honest, they may be putting themselves in unsafe situations."

Still, revealing transgender status is not a first-date conversation, either, Ettner warned. Instead, she advocates getting to know a person and having that person get to know you, as well as trusting intuition about how the partner might react.

"You want them to know you have more value than just your genitals," she said.

No ''''100 percent protection''''

Gordene MacKenzie co-hosts and produces "GenderTalk" radio with her partner, Nancy Nangeroni, a transgender woman. MacKenzie said trans women, especially trans women of color, are particularly vulnerable to violence.

Education on every level — in schools, in state legislatures, with federal lawmakers — needs to occur to make the world safer for trans people as well as for people are simply different, MacKenzie said.

"We are dealing with a human rights and civil rights issue here," she said.

"Trans panic" defenses simply shift the blame to the victim, she added. "These strategies are defending bigotry and saying that because someone is of a certain gender, their deaths don''''t matter as much. We need to change our way of thinking."

Gwen Smith, a trans activist and writer, said she still faces some fear living openly as a transgender woman, and she has had friends murdered simply because of their gender identity.

"Being trans threatens a lot of people. It''''s the most visible form of homophobia, and it frightens people," she said.

In Araujo''''s case, she was simply living her life as honestly as she knew how, Smith said. Perhaps precautions could have been made, but the truth is there is no universal way to be safe in today''''s world for trans people.

"You can take self-defense courses, you can be more forthcoming with partners and be more careful about who you are with, but that does not guarantee 100 percent protection," she said.

Balancing safety, honesty

Law student Victoria Steinberg examined the Gwen Araujo case in an article titled "Heat of Passion Offense: Emotions & Bias in ''''Trans Panic'''' Mitigation Claims," published in the 2004-2005 Boston College Third World Law Journal.

Blaming trans crime victims for not disclosing their status removes responsibility from their attackers, Steinberg wrote.

Araujo "did not wear a sign on her forehead that said, ''''I am transgender, this is what my genitalia look like,''''" Steinberg argued. "But her killers didn''''t wear a sign on their foreheads saying, ''''We might look like nice high school boys, but really, we are transphobic and are planning to kill you.'''' That would have been a helpful disclosure."

A very deep distrust of gender non-conformity pervades our society, Steinberg observed, and that distrust is often acted out through violence against transgender people.

"We do not currently live in a society that is very tolerant of transgender identities, and so the transgender community is stuck with the difficult task of balancing two essential goals: safety and honesty.

"To this tricky balancing act is added the problem that even when a transgender person feels that he or she is honestly expressing their identity, that expression might feel to someone else like a lie or a surprise," she said.

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