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.