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.”
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.”