Let’s imagine that Mary hears that John is gay, and is having same-sex relationships while dating Susie. Mary tells Jane in hopes of getting the message to Susie. (Jane is a close friend of Susie’s mom.) Mary believes that Susie should know what her boyfriend is up to, but doesn’t know Susie well enough to tell her personally. Susie, upon learning this news, breaks up with John. John sues Mary and Jane, on the grounds that being accused of being gay is defamatory.
This is the bare-bones outline of a case that actually came before a Broome County NY Supreme Court Justice, Phillip R Rumsey this month. The case is complicated by a lot of technical details that I will leave to the lawyers, but I am interested in one particular piece of a ruling regarding a defendant’s motion to dismiss the case. In that ruling, Justice Rumsey writes:
While the law may, at some point, change in response to evolving social attitudes regarding homosexuality, the existing law in New York, as expressed by the Appellate Divisions—which this court is bound to follow—is that imputation of homosexuality constitutes defamation per se (see Klepetko v. Reisman, 41 AD3d 551 , citing Matherson v. Marchello, 100 AD2d 233, 242 ; Nacinovich v. Tullet & Tokyo Forex, 257 AD2d 523 ; Dally v. Orange County Publ., 117 AD2d 577 ; see also Gallo v. Alitalia-Linee Aefee Italiane-Societa per Azioni, 585 F Supp 2d 520, 549 [SDNY 2008]; Elder, Defamation: A Lawyer’s Guide §1:13 ; see generally Tourge v. City of Albany, 285 AD2d 785 , quoting Privitera v. Town of Phelps, 79 AD2d 1, 3 , lv dismissed 53 NY2d 796 ). (Free registration required)
So, being falsely accused of being gay is defamatory. How insulting! Defamatory statements are those statements that are presumed to create a negative impression. Obviously homophobia and heterosexism are the sources of any negative impression that such a claim could create, yet if the courts declare that such claims are defamatory, that certainly reinforces, rather than undermines the homophobia which is the source of the problem. (This is akin to the Democratic leadership creating such a public fuss over Anthony Weiner’s tweeting that he had to resign because of the embarrassment they caused.)
Confused? Me too.
I’m also confused, given that the Gallup polling folks reported in May that “U.S adults, on average, estimate that 25% o Americans are gay or lesbian.” Estimates varied by category. Young adults (18-29) tended to estimate that 30% of the U.S. population was gay or lesbian. So did women. (Men tended to estimate 19%). Lower income was associated with higher estimates. Liberals estimated higher percentages than conservatives. Oddly, there was little variation at all based on attitudes toward legal recognition of same-sex relationships including marriage.
Meanwhile, the most recent National Health Statistics report on sexual behavior, attraction and identity in the U.S. indicates that only 12% of women and 6% of men between 25-44 have ever had any type of sex with a same-sex partner. (Sexual behavior, sexual identity, and sexual orientation are NOT all the same thing, of course, but this report finds them to be closely correlated. 85.7% of women and 92.25 of men reported having only opposite sex sexual attractions.)
So, we vastly overestimate the prevalence of same-sex activity and attraction, which could either indicate an increasing level of acceptance of gays and lesbians or an increasing fear of same. We can be sued for defamation if we falsely attribute such same-sex activity or attraction to others, yet, if we ARE queer, we can attend PRIDE parades all month long! We are now protected under federal hate crimes legislation, but woe to anyone who inaccurately claims that one of us is gay.
And, BREAKING NEWS: now we can get married in NY! New York is now among the elite club of states that allows same sex marriage. Even though it is also the law in NY that a straight person accused of being gay is potentially being defamed.
Confused? Just say “I am.”