Are False Imputations of Homosexuality Actionable?

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:

This Court’s decision to include homosexuality in the slander per se category should not be interpreted as endorsing prejudicial views against gays and lesbians. … Rather, this decision is based on the fact that the prejudice gays and lesbians experience is real and sufficiently widespread so that it would be premature to declare victory. If the degree of this widespread prejudice disappears, this Court welcomes the red flag that will attach to this decision.

(See Gallo v. Alitalia-Linee Aeree Italiane-Societa per Azioni, 585 F. Supp. 2d 520, 549–50 (S.D.N.Y. 2008))

The Restatement of Torts suggests that a statement should be deemed defamatory if it would injure one’s reputation in the mind of abstract-6297317_1280-300x200“a substantial and respectable minority” of the community, rather than in the mind of the general public as a whole. Virginia courts, however, have not formally adopted the Restatement approach.

Most courts seem to agree that the challenge in answering this question lies in that there is a disconnect between whether calling someone gay (or transgender) should expose that person to public hatred, contempt or ridicule, and whether such a statement does, in fact, cause such a reaction in a large segment of American society. Many courts have opted to take a pragmatic approach, finding that even if the LGBTQ+ community enjoys (or should enjoy) equal protection of the laws of their state, if the current reality is that a person inaccurately characterized as a member of that community would be subject to shunning, ridicule, and obloquy by a large segment of society, then the false statement should be considered defamatory whether or not the people doing the shunning are misguided or ignorant. In other words, the thinking goes, defamatory words are those that cause actual harm to a person’s reputation in the community, even if there is no valid reason those words should cause such a reaction in people.

Here in Virginia, the Fairfax Circuit Court recently had the opportunity to weigh in on whether false imputations of homosexuality could be deemed actionable as defamation per se. It answered that question in the negative. (It expressed no opinion, however, on whether “gay” could be actionable as defamation per quod, as the complaint alleged only defamation per se). In Charles Royall v. Maria Martinez, the plaintiff was a management accountant who alleged the President of the company he worked for damaged his reputation and career by calling him “homosexual” and “a gay.” Judge Shannon had no trouble concluding that these statements are not defamation per se in Virginia. There are only four categories of defamation per se and calling someone gay does not fall into any of them. Judge Shannon noted that “there have been significant developments in our protective laws regarding sexuality” and seemed to conclude that such an accusation would not prejudice a person in his profession or trade because “sexual orientation (including being gay) is included in the protected class of sex in the employment context.”



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