Trans Dehumanization Defense, A New Trans Panic Defense in Tennessee vs. Samuel Ward, Jr.
Trans Dehumanization Defense: A New Trans Panic Defense in Tennessee vs. Samuel Ward, Jr.¶
A man killed a woman he had been sexually involved with. At her home. After she asked him repeatedly to leave. The appeals court ruled that because the jury didn’t know she was trans, and the man staked an ultimatum that he would not testify if he could not divulge her transness, his conviction would be overturned and a retrial required.
This has many echoes of the LGBTQ+ Panic Defense, but there’s something a bit different about this one.
The LGBTQ+ Panic Defenses¶
The LGBTQ+ Bar lays out 3 defenses. These are typically dubious arguments that used to work more often historically to mitigate or reduce charges or even evade a guilty verdict.
The first two are essentially similar, the Panic Defense of insanity and the Panic Defense of Provocation. These argue that a romantic or sexual proposition from an LGBTQ+ person either causes the perpetrator to (1) panic or to feel (2) “reasonably” provoked, thus causing them to attack or murder the victim. Another framing of this is when the perpetrator claims not to have known their was transgender until after sexual contact, thus leading to the “panic”.
These types of panic defenses are not what was argued in court.
The third type is the Panic Defense of self-defense. Essentially, the perpetrator argues that an LGBTQ+ person is more threatening than a hypothetical straight or cisgender person would’ve been in the same situation. In other words, as we see with this case, treating the trans woman as a “biological male” and different from a cis woman and thus more threatening.
I won’t deny that the killer’s counsel and the appeals court leveraged this argument, it’s definitely part of this case. However, it’s also not the whole picture.
Samuel Ward, Jr. explicitly worried that the jury would think less of him for killing a woman presumed to be cis. This doesn’t really seem to rely on an idea that the victim was threatening at all. No, it relies instead on denying a trans woman her womanhood, and denying her value relative to a cis woman.
This should be thought of as an LGBTQ+ dehumanization defense.
The “Voluntary Manslaughter” in Trial Court¶
There are two major defenses in the appeals document that come up at different times, the “trans panic defense of self-defense” and Wade’s ultimatum that lead to him refusing to testify. These both come with separate expressions of concern from Wade, at least in how they’re presented in the appeals court document. But first, let’s clear up what happened.
The Killing¶
Before the night in question, Ward (the killer) and Paris Lee (the victim) were in some kind of previous romantic relationship. On that day, the two of them argued in her home until she asked him repeatedly to leave and he refused. She calls her friend Hunter (the witness), who overhears him yelling in the background, and asks him to come over and help her. Eventually, due to his repeated refusal to leave her home, she aims a gun at him to try to force him to leave. Instead, he shoots her 6 times, heads home and leaves her to die, then calls the police 30 minutes later.
The jury ruled that the facts were not consistent with Ward’s version of events and that this was not self-defense. He was sentenced to 6 years of incarceration.
The Trial Judge’s Determination on the Relevancy of Transness¶
The jury was not informed of Paris Lee’s trans status. Why? The defense argued the Trans Panic “Defense of self-defense”, that the victim’s transness made her a greater threat than a hypothetical equivalent-but-not-equivalent cis woman.
The state argued against on account of the weapons involved, and the judge agreed. “I don’t believe that gender is relevant here. A deadly weapon is a deadly weapon is a deadly weapon. Someone in possession of a firearm is in control of a deadly weapon... Whether that person has a vagina or a penis has no bearing on the deadliness of a firearm.”
This is how her trans status ended up excluded, and as we’ll talk about, was what the appeals’ court ended up disagreeing with.
The Killer’s Ultimatum¶
Wade made giving his own testimony conditional on being able to tell the jury his victim was trans. His counsel argued that omitting her trans status would put Wade “in a position to lie to the jury” (by omission or directly). So he refused to testify because this ultimatum was not met, and later decided to leverage that refusal for appeal.
From the appeals court document: “He went on to tell the trial court that he would testify if he could ‘add’ to his testimony the victim’s true biological sex. Defendant express his concern that if he were not allowed to testify as to the victim’s biological sex, the jury would hold it against him that ‘I just did something to a woman.’”
Analyzing the Appeals Court Ruling¶
The appeals court published its findings that overturned the conviction on three major reasons:
They believe that “biological sex” was relevant for self-defense (Trans Panic Defense of self-defense)
They believe that “biological sex” matters more than the risk that it’d prejudice the jury against the victim
They believe that Wade’s ultimatum is valid and blame the trial court for preventing him from defending himself to the jury by withholding evidence
I won’t comment much on matter 2 because it largely relies on legal language that looks plain to me but might mean things beyond the scope of my lay understanding. But I think there’s some strong things worth analyzing about 1 and 3, since they rest primarily on assumptions about trans people.
Size and Strength¶
“Size and strength” is a phrase that seems to particularly matter both in Tennessee (where this case was) and in Michigan, as it’s highlighted in both of their laws or case law regarding self-defense.
In searching for precedent regarding “gender and self-defense”, the Tennessee appeals court only found a self-defense case in Michigan (itself worth a read). In it, a woman was in an escalating and violent fight with her husband before he choked her and then went digging in the couch cushions. Unsure what could be in the cushions, she started digging too and found a handgun. He then walked toward her yelling “No” when she shot and killed him. She was convicted of voluntary manslaughter and related crimes.
In her appeal, she argued that the prosecution having said she should be considered as if she were a “man” was meant to erase the size and strength differences between her and her husband. The appeals court instead found this statement to be about gender-neutrality, that the jury should not bias themselves in favor of her on account of her womanhood, but should still consider the relevant size and strength differences. This court argues that women and females are capable of being bigger and stronger than men and males, and vice versa, and because of the lack of gender consideration in self-defense law, the gender here should not matter.
When Tennessee cites this, they quote the court “Nowhere in the [self-defense] statute or the jury instructions is the jury prompted to consider the genders of the parties involved when addressing the question of self-defense.” They then immediately write (no longer quoting), “There was no dispute regarding biological sex.”
“There was no dispute regarding biological sex” seems to me to either mean there was no dispute regarding “biological sex” in the Michigan case, or that “gender” would for some reason be interpreted as duplicitously unrelated to “biological sex” in this case. I’ll assume the former, in Tennessee’s favor, that they’re simply stating that the husband and wife were probably both cisgender.
So, they’ve decided to cite Michigan’s appeal opinion that says gender (and presumably “biological sex”) do not matter, but size and strength does.
They highlight that “size and strength” is a factor to consider for self-defense. They quote the defense, “differences in strength and power between a biological man and a woman of the same weight cannot be denied”. The appeals court then rephrases this, saying “In other words, there are physical differences between a biological male who is five-feet-eleven and 262 pounds and a biological female who is five-feet-eleven and 262 pounds.”
They then completely undermine this. “While a gun might equalize differences in physical strength and size, there are other inherent physiological differences between the sexes that science continues to reveal and that we choose not to ignore.”
Some immediate questions raise!
What other differences? “A detailed discussion is not necessary for our analysis; it suffices to acknowledge that these differences exist. However significant or insignificant these differences are...” None that they’ll even bother to state! They’re the ones mentioning strength and size, they’re the ones quoting Michigan’s gender-neutrality opinion, but now it’s suddenly enough that there’s any insignificant difference!
If not strength and size, then what? Seemingly, the only remaining related self-defense consideration cited is “The genuineness of a defendant’s fear may be demonstrated by examining the circumstances surrounding his self-defense claim.”
If the Defendant was bringing it up for strength, why rephrase it and then say even an insignificant difference is sufficient?
If an insignificant difference is sufficient, wouldn’t two individuals who were both cis or both trans also have inherent physiological differences between them? Since strength doesn’t matter, we’re to believe the physiological differences between a cis bodybuilder and an unathletic cis person do not matter but anything about a trans woman compared to a cis woman might? All this when a gun is involved?
Analysis: Misogyny and Male Privilege¶
The gun somehow removes everything from consideration except her transness.
When a cis woman is choked by her husband who then (presumably) searches for a handgun to kill or threaten her with, but she finds it first and fires in self-defense, the Michigan court rules that she must be treated as a “man”, which gets translated by the court to “gender-neutrally”. Her strength and size matter, but her gender is made a “man”. When she defends herself against a man and he dies, she’s a “man” (the “neutral” gender).
When a trans woman is killed by a cis man yelling at her and refusing to leave her home for extensive time until so much time passes she (allegedly) escalates to ask him to leave at gunpoint*, the Tennessee court conjures a hypothetical cis woman victim to compare against her and the trans woman is made a “man” (a “biological male”) instead.
Whether killing in “self-defense” or being killed in “self-defense”, these women were made “men” on equal gender footing with their violent opposite. Gender dynamics cannot be used when they might reduce a woman’s sentence for self-defense, but gender dynamics must be used when they might reduce a man’s sentence for self-defense.
(Another question raised is whether the appeals court would consider a trans man who takes testosterone to be a “biological female” in considering any self-defense case. The answer seems like it would be “no”.)
*Consider the castle doctrine, and the general right of people to defend themselves, their home, and their property from trespassers who refuse to leave.
Male Behavior and the Phone Call¶
When Wade (the killer) repeatedly refused to leave and continued yelling at her, Paris Lee used a time-honored tactic many women use in dangerous situations: call a friend and act like you already have plans, or hope that the man harassing you will respect or fear another man and decide to leave you alone.
He continued yelling at her over the phone while she tried to remain calm and essentially ask Mr. Hunter (the witness) to come over soon, or at least act like he would.
Mr. Hunter interpreted this as her needing a man to get a man to back off. The Tennessee court leverages this extremely common behavior among women living through misogyny against her. “Notably, the victim’s friend, Mr. Hunter, testified the victim called him because the victim thought he could provide some level of intimidation as a male. These societal views on the differences between male and female behaviors only strengthen our belief that a person’s biological sex has relevance to certain issues.”
The court here suddenly conflates sociological “behaviors” as reinforcements for “biological sex” mattering. This makes apparent the dog whistle, while calling her a “biological male” they do not grant her any amount of social or behavioral femaleness. She lacks the “male intimidation”, that’s the very reason she’s calling him! She’s engaging in the stereotypical survival-savvy female behavior of calling a man to do the “male intimidation” that she cannot!
Her “behaviors” reinforce that her “biological sex” should not matter in this case and did not matter to her killer!
Analysis: Transmisogyny and Granularity¶
It seems obvious that Wade did not view her as a man when he was yelling at her, refusing to leave her home, and sustaining this harassment throughout a phone call where she did her best to remain outwardly calm. Her instinct to call an actual man and get his help shows this. But the appeals court twists this in order to make a man out of her.
This happens often with cases involving trans women. They’re much more likely to be the victims of crime, but their “biological maleness” is used to imply that they’re more dangerous rather than more likely to be victimized. Anti-trans arguments often roll out statistics about men and then insist they apply to trans women as well (as “biological men”), refusing to consider any more granularity to demographics than that because the statistics undermines the rhetoric the moment trans women are appropriately considered separately.
It goes similarly for the granularity of how our bodies are viewed. All of the differences caused by hormones and/or surgeries are blurred out so trans women can be included with the “biological males”, despite the ways their bodies frequently come to resemble cis women more than cis men, and despite the fact that out trans women are frequently treated more like cis women than like cis men in their private and public lives.
The court denied her womanhood twice by leveraging her desperation against her. They denied her bodily womanhood by calling her a “biological male” and denied her social womanhood by cherry-picking the friend’s “male behavior” as evidence of her own “biological maleness” mattering. In this way, the “biological male” dog whistle hides that the actual intention is to bind her to the sociological construction of “biological male”, the social group of cis men and people they want to equivocate with cis men when it suits their purpose.
Since they’ve removed strength and size from consideration, they’re forced to pivot to “male and female behavior” as a reference to our unknown but assumed “physiological differences”. Her transness becomes relevant because her behavior might be interpreted as male and come with the baggage of maleness while she’s holding the gun. They make her need to brandish a weapon in order to even start becoming serious enough for this harassing man to leave her home, her inability to do “male intimidation”, into a “male” intimidation.
The Icky Defense¶
Before I get into my final point in all of this, I need to raise one more piece of context. As we know, the State and trial court ruled that the transgender status of Paris Lee could lead to unfair prejudice, which is why this information was excluded from the trial. However, Wade’s counsel argued “any prejudices the jury might have against the victim for being transgender could very well be applied to [Wade] for being in a sexual relationship with the transgender victim”.
And the appeals court agreed, stating “We recognize that societal biases exist... The danger of bias, however, ran both ways in this case.”
In other words, biases against transgender people cannot protect Paris Lee from being outed to the jury because a bias against people who sleep with transgender people may exist in the jury. Yet, they argue that Paris Lee must be outed because of any biological differences between her and a cis woman, however “insignificant”. So her transness offers herself no protection, but offers him the ability to say he’ll be judged too even as he seeks to leverage the jury’s biases against her.
How do I know that was his goal, to leverage the jury’s biases, beyond the fact that it was the defendant’s counsel making this reasoning in order to facilitate part of Wade’s defense?
“I just did something to a woman.”¶
Wade’s refusal to testify because of the exclusion of Paris Lee’s trans status from the evidence has a few quotes that I think bear scrutinizing.
“Defendant expressly stated, ‘I would like to testify if I could tell the whole truth.’ When ask by his counsel what he meant by ‘the whole truth’, Defendant stated that ‘Ms. Lee was born a male.’[1] He went on to tell the trial court that he would testify if he could ‘add’ to his testimony the victim’s true biological sex[2]. Defendant express his concern that if he were not allowed to testify as to the victim’s biological sex, the jury would hold it against him that ‘I just did something to a woman.’[3]”
Here, in a moment where the killer is under no obligation to refer to Ms. Lee as “Ms.”[1] Lee because he’s discussing her trans status and how he wants to refer to as a “biological male”[2], he still shows that he views her as a woman through that “Ms.” honorific. But he also views her, and knows the jury will likely view her, as less than a woman. His explicitly stated concern her is not her strength, not her size, not her biological or physiological differences, not her behavioral differences, no. None of these.
His explicit concern is that he doesn’t want the jury to think he killed a woman, a cis woman, a “real” woman.
That is the core prejudice that he wants to leverage. He doesn’t want the jury to think of him as a woman killer, but as a trans woman killer. Not fully woman nor meaningfully a man for the killer, but a man to the appeals court.
She’s a trans woman who has unspecified and at minimum insignificant biological differences to a hypothetical cis woman that don’t amount to strength and size differences in a case where a gun nullified even significant strength and size differences from mattering, because they imply her behavior might be male. The reasoning is circular: any biological difference implies a possible social-behavioral difference, which implies the biological difference matters.
He’s going for a trans dehumanization defense. It’s the appeals court laundering that into a trans panic defense.
PS: I hate the idea that “including a photo depicting the victim as a female... misled the jury” into “the impression that a male defendant killed a female victim”. Any random photo of a trans woman living her life is going to depict her as female.