Judge claims he is doing us a solid

Los Angeles County Judge Gregory Keosian dismissed Richard Simmons lawsuit against National Enquirer owner American Media, saying that "it is simply not libelous or defamatory to call someone transgender."

Misidentification of a person as transgender is not actionable defamation .... The court will not validate those prejudices by legally recognizing them.

--Judge Keosian

The ruling is potentially important for several reasons. As Keosian observes, it’s the first such ruling in California, which makes it seem like a harbinger of legal rulings to come nationwide. It also chips away at what may be the last legally acceptable standard of prejudice under the law, which is that directed at transgender persons and those exploring their gender identity.

There are plenty of signs that the impulse to discriminate in American society has moved from race and homosexuality to gender identity. That’s what underpins President Trump’s announced ban on transgender people serving in the military. Laws regulating which bathrooms transgender persons may use and which gender identity they must use on official documents such as drivers licenses are still on the books in some states and making their way through legislatures in others.

--Michael Hiltzik, LA Times

Transgender people are still considered immoral and distasteful and looked at with disapprobation in much of the community. There’s still a question about what bathrooms they can use, and they can’t serve in the military.

Those factors and others signify that labeling someone transgender is defamatory. A further indication is that the Enquirer’s own article was designed to humiliate and embarrass Simmons for allegedly transitioning gender, not to honor him for purportedly seeking out his true gender identity.

The court can’t legislate mores. The question the judge should weigh in deciding whether to let the lawsuit proceed is not what society should be, but what it is. He says he’s disappointed in the tentative ruling, but hopes Keosian may change his mind in the wake of a lengthy hearing held on Wednesday, and allow the question whether calling someone transgender is defamatory to be placed before a jury.

--Neville Johnson, Simmons' lawyer

Attorneys for American Media were not available for comment

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Comments

Meteor Man's picture

Some Judges are quite accomplished at masking prejudice with legal analysis. That's how they get chosen for the Appellate Bench. I tried to look him up with sparse results. Nothing at Martindale/ Hubbell and Ballotpedia only revealed that he graduated from UCLA Law School and was appointed by Gray Davis in 2002.

Hiltziger is one of the few L.A. Times reporters worth their salt. Perhaps the best reporter on homeless issues nationwide.

Thanks for the story Robyn.

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Cali Kush: a bowl a day keeps the doctor away.

SnappleBC's picture

I'd have to dig into this a lot further to understand what the original case was and what the potential ramifications are but at least at this point I agree with the Judge's statement.

Misidentification of a person as transgender is not actionable defamation .... The court will not validate those prejudices by legally recognizing them.

Anyone care to tell me what I'm missing?

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A lot of wanderers in the U.S. political desert recognize that all the duopoly has to offer is a choice of mirages. Come, let us trudge towards empty expanse of sand #1, littered with the bleached bones of Deaniacs and Hope and Changers.
-- lotlizard

Meteor Man's picture

@SnappleBC
I didn't read Hiltzig's article, but here goes nothing:

Supermarket shoppers who made it to the story inside were told that the then-67-year-old entertainer “has undergone shocking sex swap surgery” that included breast implants, and was “living as a gal named Fiona.” There were photos of Simmons in drag.

So because the story was false Simmons Sues. Now:

He found that whether it’s true or not that Simmons underwent the transition as the Enquirer reported, it’s simply not libelous or defamatory to call someone transgender.

Well The National Enquirer clearly did not attempt to contact Simmons for pre-publication comment.

Recognizing that such social prejudices are transitory, the courts have steadily moved away from accepting them as grounds for defamation judgments. Tom Cruise won a $10-million libel judgment in California against a gay porn actor who falsely said he’d had an affair with Cruise. But that was in 2003 and it’s not at all clear that he’d win now.

Okay, The National Enquirer likes to make up stories that are attention grabbers. The ruling states that:

“Even if there is a sizable portion of the population who hold prejudices against these characteristics, misidentification of a person as transgender is not actionable defamation,” he wrote. “The court will not validate those prejudices by legally recognizing them.

And:

Treating “transgender” as an actionable slur is especially problematic in California, Keosian ruled, because discrimination based on “gender identity and gender expression” is specifically outlawed. So, too, is the “trans panic” defense in murder cases, which would allow defendants to argue that discovery of the victim’s actual gender or gender identity in a romantic or sexual context was a reasonable provocation for homicide.

Okay! So discovering your sex partner did not have a natural born gender is not grounds for homicide. I will hazard a guess that, in California at least, homophobic slurs are not included in the "fighting words" exception to freedom of speech.

I think we can all agree that The Enquirer did not intend the false article to be flattering. An interesting question is whether false light invasion of privacy applies:

False light is a legal term that refers to a tort concerning privacy that is similar to the tort of defamation. The privacy laws in the United States include a non-public person's right to protection from publicity which puts the person in a false light to the public

The article claimed it had the inside scoop about why Simmons had been out of the public eye for two years.

Is the judge's ruling a blow against gender discrimination? Maybe and maybe not. The state of American journalism is so bad I don't know if they are held to any standard for truth in anything they publish.

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Cali Kush: a bowl a day keeps the doctor away.

TheOtherMaven's picture

@Meteor Man
Fox Noose fixed that, years ago. Blum 3

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There is no justice. There can be no peace.

Meteor Man's picture

@TheOtherMaven
I did a search to refresh my memory. Big mistake. The right to lie is even worse now than it was then.

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Cali Kush: a bowl a day keeps the doctor away.