Is Gay a Four-Letter Word?
Jan. 16 -- Sticks and stones may break your bones, but some names may lead to lawsuits. At least that's true in most states if someone calls you gay, even if the name-calling did not result in major economic damage.
But that may be changing. The U.S. Supreme Court has the chance to hand down a milestone gay rights decision this spring when it considers Lawrence vs. Texas, a case that challenges Texas' same-sex sodomy law, which criminalizes sexual practices among gays that are legal between heterosexuals.
Sodomy laws, on the books in more than a dozen states, do not just regulate sexual behavior; they have also served as a basis for slander and libel lawsuits.
A Texas appellate court just upheld an argument last month made by a state inmate who says he was slandered by a corrections officer who allegedly called him "queer" within earshot of other prisoners.
In the Texas case, the inmate claimed he was automatically slandered and should not have to prove damages because being called gay is "defamatory per se." In laymen's terms, that means the phrase used is so well-understood to be damaging, that no damages need be proven.
If someone is called gay in a state where sodomy is a crime, they are by definition also being accused of criminality, which could be grounds for a defamation per se claim. Historically, other categories included being implicated to have a "loathsome disease," such as leprosy, having one's business or profession damaged and being accused of sexual misconduct.
Thinking Less of Being Gay
Legal experts say that even if the high court does not decriminalize sodomy when it rules on Lawrence this spring, individuals called "gay," "queer" or any similar name will still have a case for defamation per se because in most places, a significant percentage of the community still considers homosexuality to be a form of sexual misconduct.
"It has nothing to do with the fact that the American Psychiatric Association has declassified homosexuality as a disorder, nothing to do with the fact that you may be living in a community with a large number of gay people," said W. Wat Hopkins, a professor at Virginia Polytechnic Institute and State University. "The question is, would a significant minority of the community think less of the person?"
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