LGBTQ+ People

Overview

The death penalty has been a tool for discrimination against LGBTQ+ people in America since before the country’s founding, when the British colonies punished queer sex with execution. The states removed these laws from the books by the late 1800s, but continued to punish queer sex with fines and prison time until 2003, when the Supreme Court ruled the practice unconstitutional.  

In capital murder cases, bias and discrimination by jurors, prosecutors, defense attorneys, and judges has led to death sentences for queer defendants. Many have been executed and some remain on death row. Other defendants have used the “Gay or Trans Panic” defense to avoid the death penalty in cases with queer victims, a defense that is grounded in validating hatred or fear of gay people, though states have begun to ban its use.  

Queer people also face heightened risks of victimization and sexual assault in prison, including on death row. Many states forbid trans prisoners from being housed based on their gender identity. However, the tide is turning as more states support prisoners’ gender identities and provide for medical transitions in prison. Some defense counsel have also begun to include gender dysphoria as an essential aspect of their client’s life story that is told in the mitigation process.

At Issue

Public acceptance of LGBTQ+ people and support for LGBTQ+ rights has increased exponentially in the past two decades. However, use of the death penalty in the United States continues to affect queer people in unique ways. In some countries, queer people face the death penalty based solely because of their identity. 

Note on Terminology: We use the words “LGBTQ+” and “queer” as umbrella terms to refer to people who identify as lesbian, gay, bisexual, transgender, or another non-heterosexual sexual orientation or non-cisgender identity. We are mindful of the history of the word “queer” as a slur and recognize that not everyone feels comfortable with its use. We have decided to use “queer” based on its growing positive use among people with these identities and its frequent use in the scholarly sources we relied on in our research. We intend it as a neutral, respectful descriptor only.