Academic journal article Albany Law Review

The Tides of Transgressions: An Analysis of Defamation and the Rights of the Lgbt Community

Academic journal article Albany Law Review

The Tides of Transgressions: An Analysis of Defamation and the Rights of the Lgbt Community

Article excerpt

There is an apparent and ever-growing trend of acceptance of the LGBT community (Lesbian, Gay, Bisexual and Transgender) (1) in present-day American society. (2) LGBT activism has led to numerous legal and societal victories for LGBT rights in a relatively short period of time. (3) However, discrimination remains a pervasive threat. More work needs to be done to protect the rights and needs of the LGBT community. One recognized area in need of reform is within the legal realm of torts, in particular, defamation. (4) False accusations of homosexuality have historically been recognized as grounds for defamation. (5)

Many question whether this precedent should be allowed to persist given the rapid societal progress of the LGBT movement. (6) Arguments for and against each have nuanced and convincing points. (7) The main argument in favor of viewing an accusation of homosexuality as not defamatory is that being "gay" should not be considered something inherently wrong or an insult. (8) The opposing side posits that defamation for accusations of homosexuality is worthy of salvation because particular insular groups may suffer real and irreparable harm despite the growing acceptance of the LGBT movement. (9)

The purpose of this discussion is to examine the arguments, history, and possible solutions to considering a false imputation of homosexuality defamatory. It will show that the best solution is allowing this cause of action to continue under defamation per quod as opposed to defamation per se. In addition, it will examine whether a false accusation of being transgender or "mis-gendering" should be the basis of a defamation cause of action. The solution of defamation per quod will then be applied to determine if it will provide guidance in navigating these burgeoning transgender issues in defamation law.


In order for a statement to be considered defamatory, it must subject the person to scorn or ridicule. (10) Defamation can be simplified to "a false statement that harms... an individual's reputation in the eyes of his or her community." (11) But such a simple definition of defamation fails to strike at the heart of defamation. All intentional torts aim to reinforce and cement societal norms and mores while discouraging anti-social behaviors. (12) But unlike other torts, the immediate harm of defamation is not physical injury or direct psychological or emotional suffering. (13) Rather, the harm is more attenuated. It is hinged upon what the community will think about the statements and whether their views on the matter will cause the person emotional and psychological suffering. (14)

The most basic formulation of defamation can be found in the Second Restatement of Torts:

(a) a false and defamatory statement concerning another; (b) an
unprivileged publication to a third party; (c) fault amounting at least
to negligence on the part of the publisher; and (d) either
actionability of the statement irrespective of special harm or the
existence of special harm caused by the publication. (15)

Harm in defamation exists in two forms: irrespective of special harm, known as defamation per se, or with special harm, (16) known as defamation per quod. (11)

Defamation per se is based in specified categories and the party does not need to prove actual monetary damages. (18) These categories have historically included imputations: "(1)... of criminal behavior; (2)... of loathsome disease; (3)... of unchastity or that expose a plaintiff to public hatred, contempt or ridicule; and (4)... affecting a person in his or her business or profession." (19) Historically, homosexuality has either fallen under criminal behavior or exposure to public hatred. (20)

New York has a rather interesting history with respect to whether homosexuality should be categorized as defamation per se. (21) Perhaps the earliest case in New York involving imputations of homosexuality was Stein v. …

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