It’s still distressingly common for insults, whether hurled by schoolkids or celebrities, to hinge on the premise that being gay is shameful and unacceptable, so being called gay is embarrassing. It’s logic that we’re all so familiar with, it doesn’t even need to be articulated. In fact, for decades, being called gay can be battled in court as slander. But some people think that’s changing — a court in New York has ruled that it’s no longer slander to call someone gay, because that would be “based on a false premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual.”
hulk hogan filed a defamation lawsuit against his ex-wife in 2011 after she claimed he was gay in a tell-all book
The case that brought the issue up was from Binghamton, where a man claimed that a rumor he was gay damaged and ultimately ended his relationship with his girlfriend, and sued for defamation. But the court ruled that even if it’s false, claiming someone isn’t straight doesn’t constitute being defamatory. In a fascinatingly nuanced decision, the court recognizes that their ruling doesn’t necessarily reflect an on-the-ground reality; they know that to many people, maybe even a majority, being called gay is still an insult, and something to defend one’s reputation against. For many people, being labeled gay is an invitation to physical violence. But the law makes proclamations not based on how things are or should be in the real world, but on objective legal truths as the justices see them. And in a historic ruling, they’re claiming that the objective legal truth is that there’s nothing embarrassing about being gay.
This development is interesting in that while its premise seems unassailable — who would argue that being gay (or perceived as such) should, in fact, be occasion for humiliation? — it’s unclear whether its real-world consequences will be helpful. For most people, legal action isn’t a realistic response to being perceived as gay or being called gay as an insult, but it’s hard to ignore the fact that this ruling would mean that people trying to hurt other people based on antigay sentiment wouldn’t be held accountable for it. (Although there are still situations, like in a workplace where harassment can be punished, where that would remain the case.) Suing (or at least threatening to sue) for defamation is also a way in which people can respond to being outed against their will, in cases where they’re not actually just perceived as being gay. While the New York court’s ruling won’t immediately mean change for similar cases across America, it’s worth wondering what it will mean for people who need to enforce a level of discretion about their sexual orientation.
It’s hard to go a week or two without a new story about how public perception of the queer community is changing in some way, and perhaps this ruling is one of the more important milestones in that regard. With many movements of social justice, either public opinion and legislative fact have lagged far behind the other. In some respects, however, the movement for gay equality seems like, in fits and starts, it’s pulling both the people on the ground and the people in Congress and on judge’s benches along with it. There are still a lot of steps forward to be made, but maybe it’s not impossible for us to see a world where it’s universally understood to be “a false premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual.”
One day at a time I guess. Nothing is impossible. #outandproud
“the law makes proclamations… based on… objective legal truths as the justices see them”
The more involved I get in the law the less I believe in ‘objective legal truths’, but anyway.
I’m in two minds about this issue. On the one hand I completely agree that it’s not shameful or insulting to be described as gay or lesbian. On the other hand I was under the impression that defamation allowed the law to compensate people who had suffered harm or loss as a result of false claims made about them. And sadly being called gay or lesbian in today’s society can still expose you to harm, so I don’t see why people should be without recourse to the law if that happens to them. If someone starts talking trash about a person’s sexuality to hurt them then I’m quite fine with that person being sued for any loss they cause.
Interestingly, in some of the Scandinavian countries, defamation isn’t so much about whether the defamatory statement is true or not but rather whether it was made with a) an intent to vilify the and b) exposes them to hate, disrespect etc. So an actual gay person would be able to sue for defamation if the defamer was out to hurt them and they had been exposed to discrimination as a result. So would a straight person if the comments had been made about them. I tend to think this approach is way better than the one adopted by the legal systems of the Anglosphere.
Defamation in our system is simply harm to a person’s reputation based on the lies someone else says about them to other people. You can sue and get money for it because harm to your rep can hurt you financially. As in you wont get hired for a job, people wont come to your business.
Its really not about hurt feelings. Its about how society views what that person said about you. So, even if you are really sensitive about being called gay, if the rest of society doesnt see it as a negative then you wont be paid money for the supposed financial harm it has caused you.
There’s a case in Australia about a female doctor being called an abortionist, and it being wrong not because there was anything wrong about performing abortions but because a substantial proportion of society would judge her on that basis. I think it’s sort of the middle ground between the American and Scandinavian approaches as you name them, Dizzy.
But you can’t really compare Australia and the US because we don’t a bill of rights which calls for freedom of speech, and that changes everything.
Hi Annie D, thank you for that example! That perfectly illustrates the point I was trying to make.
Now that you point it out it’s so obvious / crucial that I’m embarrassed I didn’t think about the way the different constitutions would impact on defamation law.
Hi K, I agree with your characterisation of defamation law in the US. Since I come from another common law system defamation works similarly in my jurisdiction too. What I was trying to get at is that being called gay can cause a person to suffer financial loss. If that happens to a person then I’ve got no objections to the person who suffers the loss being able to sue for defamation.
Very cool. It’s something I’ve often thought about, so it’s great to see it actually being addressed in a court in a meaningful way.
Someday maybe it wont even be considered shameful or disgraceful to be called trans! Always poignent when they leave that off the end…