To be actionable as defamation in Virginia, the words used must be more harmful to a person’s reputation than a common insult or an accusation that most people would consider harmless or unimportant in evaluating a person’s character. Defamatory words are those which “tend so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” (See Bryant-Shannon v. Hampton Roads Cmty. Action Program, Inc., 299 Va. 579, 585 (2021)). But who, exactly, is this “community”? Who are these third persons in whose eyes defamatory meaning is to be measured? These questions become important when there is a lack of consensus among the general public about whether certain personal characteristics reflect poorly on a person’s character or whether they carry any negative connotations at all. Consider an accusation that another person is gay or transgender. If these statements are false, has the person’s reputation been lowered in the estimation of the community? Clearly, the answer depends on whom you ask. As to how the courts are dealing with this issue, a consensus has yet to emerge.
On the one hand, some courts have held that an allegation of homosexuality is defamatory per se because it implies immoral or criminal conduct. Other courts have pointed out that the Supreme Court invalidated sodomy laws with its decision in Lawrence v. Texas and that gay marriage is permitted in all 50 states, concluding that false accusations of homosexuality cannot be considered defamatory. Other courts have expressed concern that to find “gay” defamatory might be interpreted by the public as a validation of anti-gay sentiment. This is what a federal judge in New York had to say after ruling that false imputations of homosexuality are indeed actionable as defamation per se: