Good news. Telling someone “you’re so gay” will no longer get you hit with a defamation suit in New York. (Source). At the end of May, the Third Department of the New York Appellate Court held that because of changing attitudes about homosexuality, calling someone gay who isn’t is no longer defamation per se.
Per se categories of defamation include “statements (i) charging [a] plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that a plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman.” Id. According to the decision, the Appellate Division Courts in dicta had included a fifth category of statements “falsely imputing homosexuality.” Id. The defendant and amici in the case argued, and the court agreed, that including under defamation a category for falsely accusing someone of being gay is based upon the premise that being gay, lesbian, or bisexual is shameful. The appellate court found that this idea was inconsistent with the U.S. Supreme Court’s view in Lawrence v. Texas, the landmark case that held that laws criminalizing homosexual acts violated the Due Process Clause.
This case reflects a change in attitude that is finally occurring for gay rights. New York already was ahead of the curve in allowing gay marriage. This decision is one step closer to equality.