For centuries, some insults have been considered so offensive that a plaintiff didn’t have to prove harm in a defamation lawsuit. Someone who falsely reports that a woman is unchaste, for instance, is automatically presumed to have hurt her reputation.
The same has been true of calling someone “gay.” Spreading false rumors that someone is homosexual has long been part of the same small legal category known as “defamation per se.” Defamation refers to reporting or repeating false allegations that harm someone’s reputation in writing (libel) or in speech (slander).
Now, however, a New York state appeals court has followed other courts and rejected that rule, citing “this state’s well-defined public policy of protection and respect for the civil rights of people who are lesbian, gay or bisexual.”
The court’s decision came after a man in Binghamton, New York, sued a woman who repeated a rumor that he was gay in the hopes his girlfriend would break up with him. Mark Yonaty said the rumors destroyed his relationship with his girlfriend.
The issue for the appeals court is whether “gay” should still be considered automatically harmful to someone’s reputation. The New York court said that “gay” should no longer be included alongside the other four categories of per se defamation: saying someone is unchaste or a criminal; that they have a “loathsome disease”; or saying something injures a person’s business or trade.
In a 1984 case, New York court upheld the defamation rule by citing laws against homosexuals in everything from “immigration to military service.” The new ruling rejects this because:
In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease
Here’s the rest of the ruling:
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