19 June 2012


'"I'm Not Gay - Not that There's Anything Wrong with That!": Are Unwanted Imputations of Gayness Defamatory?' (Victoria University of Wellington Legal Research Paper No. 25/2012) by Dean R. Knight notes that -
 The question of whether unwanted imputations of gayness are defamatory continues to be controversial. This article considers whether a person can bring a defamation claim if they have been described as being gay or lesbian. In particular, this article addresses whether such an imputation is defamatory, including whether such an imputation tends to lower the reputation of a person in the estimation of “right-thinking” members of society, and the unique issues that this imputation presents for possible defences. In addition to assessing the present position, this article considers whether imputations of gayness ought to be defamatory, particularly in the context of today’s legal environment. It is argued that an imputation of gayness should not be treated as being defamatory in the light of the reforms of gay and lesbian rights, including the anti-discrimination and equality protections that are now commonplace in Anglo-Commonwealth societies.
Knight comments that -
The quotation in the title of this article is from one of the most well­known Seinfeld episodes, "The Outing". An eavesdropping reporter mistakenly assumes from the banter between Jerry and George that they are both gay and she subsequently comments on it in an article. Discovering that he and George have been "outed" in newspapers across the country, Jerry is then faced with the difficult task of correcting the gay label attributed to him – with the typical humorous consequences. His flippant humour, however, highlights a much more serious issue. How does the law react when a person is incorrectly and/or unwantedly described as gay (or of any other, presumably non­heterosexual, sexual orientation)? Perhaps more importantly, how should the law react? Although this question arises in the civil courts, the outcome of the question is an important litmus test of the place of gays in society and their citizenship status in today's legal framework. 
Discussion of these issues was prevalent in the late 1980s and early 1990s when outing was increasingly used by some gay groups, and in some cases conservative groups, to score political points. Since that time, there has been a slight shift in the practice; the high­profile outings or dialogue about people's sexuality has moved into the entertainment and sports industries, where the motivation seems to be more of "salacious gossip" rather than strictly political objectives. Musings about the sexuality of celebrities is common­place in gossip columns and message boards on the internet and in print media. In line with this trend, there are numerous recent examples of high­ profile people anxious to deny suggestions of gayness and to assert their heterosexuality. For example, in New Zealand a famous All Black demanded, and was granted, an apology and donation to a charity from a sports magazine for a reference in an editorial to a rumour that he was gay, despite the editorial criticising the existence of the rumour and clearly challenging its veracity. Later, in an autobiography, he said he was "furious" about the rumour and described the incident as "hurtful". In another example, Tom Cruise won a default judgment against Chad Slater, also known as wrestling porn star Kyle Bradford, for allegedly telling French magazine Actustar that he had had a gay affair with the actor. ... More recently, Robbie Williams filed a claim against two magazines which claimed he was gay, a claim which was ultimately settled in his favour. In addition, two soccer stars and a prominent DJ issued defamation proceedings (as yet unresolved) after a newspaper published claims that they had engaged in a gay orgy. The list goes on.
He goes on to argue that -
The track record of the right­thinking person demonstrates that they generally viewed imputations of gayness as tarnishing a person's reputation. There has been some softening in the position in recent years with doubts expressed about whether societal and legal changes render this conclusion untenable. Despite these doubts, often expressed in obiter terms, there has been an apparent unwillingness to definitively reject this conclusion. Of particular concern, though, is the shallowness of analysis of this issue or its implications. With one notable exception, Bell J's discussion in Rivkin v Amalgamated Television, the conclusion that an imputation of gayness tarnishes a person's reputation is made with little, if any, analysis. This notion has been accepted without argument or is made by simple assertion. It is notable that the only case that has considered this reasonably complex question in some detail concluded that such an imputation was not capable of being defamatory. 
Even if the more progressive stance of Bell J in Rivkin v Amalgamated Television was adopted, a distinction still needs to be drawn regarding the nature of the imputation of gayness. Imputations of "gayness per se" are where there is a mere assertion that someone is a homosexual, and "gayness plus" where there is an assertion that someone is a homosexual along with some other related assertion such as infidelity or representational dishonesty. Even if the former is not defamatory, the latter may still be so if the "plus" element is defamatory in its own right. However, this distinction may still prove problematic. It is possible that the same prejudice that underscores the conclusion that imputations of gayness per se are defamatory can still infiltrate the evaluation if the seriousness of the "plus" element effectively restates the allegation of homosexuality, or is coloured and exaggerated by the assertion of homosexuality. This manner in which the test can still be manipulated is demonstrated by Jason Donovan's successful defamation claim in the early 1990s against a magazine that published a photo of him wearing a shirt emblazoned with the words "Queer as Fuck". Donovan sued, not on the imputation of gayness (which he accepted was not defamatory), but on the imputation that he was "lying and deceitful about his sexuality" because he had previously stated he was not gay. While imputations of dishonesty and hypocrisy may found a claim, the almost irresistible inference is that the claim was in reality about the imputation of gayness, especially as he was ultimately awarded damages of £200,000. Further, claims of representational dishonesty are problematic because they implicitly adopt a monosexual perspective of sexual orientation and ignore the potential fluidity of sexual orientation. 
Bell J's progressive approach has not yet been universally accepted in Australia nor has it yet been considered in other jurisdictions. There remains the prospect of findings that an allegation of gayness lowers a person's reputation in the eyes of right­thinking people. The conclusion that imputations of gayness are defamatory is unsatisfactory in a number of respects and, in my view, ought to be avoided. First, the conclusion marks gay people out as inferior and reinforces homophobic attitudes towards gays. Second, the test has been misapplied to place undue emphasis on actual community views, ignoring the aspirational aspect of the test. Third, the outcome is out of step with today's vision of a contemporary, pluralistic society, highlighted particularly by the numerous reforms that seek to give gays equivalent citizenship rights to those of straights.
Knight concludes -
For many years the courts have accepted that unwanted imputations of gayness damage a person's reputation and entitle them to compensation through the tort of defamation. Despite one court ruling that this conclusion is no longer appropriate in today's society, there remains a reluctance on the part of the courts to definitively rule that the right­thinking person is now indifferent to imputations of gayness. The conclusion that an imputation of gayness is defamatory remains problematic. It reinforces the view that gays are inferior and perpetuates homophobic attitudes towards gays. Undue emphasis is placed on the realist view of community attitudes towards gays, ignoring the public policy factors, which direct that prejudicial attitudes should not be reinforced by the tort of defamation. Society, through its laws, now aspires to equal citizenship for gays and equivalent treatment under the law. The aspirations of our pluralistic society will not be achieved if our courts continue to send the message that gays are less desirable members of society by concluding that imputations of gayness are defamatory.