In June 2016, the National Enquirer turned its typically overexcited attention to Richard Simmons, the fitness guru. Simmons had been out of the public eye for two years, and the Enquirer claimed to know why.
"RICHARD SIMMONS: HE'S NOW A WOMAN!" the newspaper blasted across its front page.
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.
Simmons, who says not a speck of that was true, filed a libel suit in Los Angeles County Superior Court against the newspaper's owner, American Media. This week, Judge Gregory Keosian issued a tentative ruling that could strike a major blow for gender equality before the law. 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.
Keosian's tentative ruling dismisses Simmons' lawsuit. It's still up to the judge to make his ruling final, but his meticulously argued 15-page opinion leaves scant room for doubt about what the final version will say. Keosian places sexual identity on the same plane where imputations about race and homosexuality have been for years — as not inherently defamatory.
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.
(Don't be fooled by Trump's claim that the medical needs of transgender service people are too expensive. A 2016 Rand Corp. study placed the annual cost at a "relatively low" $8.4 million a year, maximum — that's 10% of what the military spends on erectile dysfunction pills and a fraction of what the country spends ferrying Trump to Mar-a-Lago and his other weekend getaways.) Interestingly, Defense Secretary James N. Mattis seems to be slow-walking Trump's order by referring it to a study committee; that could be a sign that distaste for transgender discrimination is more widespread than Trump calculated. Negative reactions by businesses and individuals to anti-transgender laws in Indiana and North Carolina offer further indications that transgender discrimination is becoming socially unacceptable.
Neville Johnson, a lawyer for Simmons, says society hasn't reached that point yet. Transgender people are "still considered immoral and distasteful and looked at with disapprobation in much of the community," Johnson told me. "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," Johnson says. 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. (Simmons also introduced evidence that the supposed source for the Enquirer disavowed telling the publication Simmons was transgender.)
"The court can't legislate mores," Johnson says. 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. Attorneys for American Media weren't available for comment.
In his tentative ruling, the judge hewed closely to American Media's position that statements that someone is transgender or transitioning "do not impute the kind of inherently shameful or odious characteristic that can support a defamation claim in modern times."
Keosian further observed that the history of courts' allowing public prejudices to govern libel law is long and discreditable. At one time or another, judges have found that it's defamatory to accuse someone of having cancer or some other "loathsome disease," of having been born out of wedlock, of being black or being gay.
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. In New York, state and federal judges scrapped the imputation of homosexuality as grounds for defamation in 2012.
Keosian cites a 1989 Georgia ruling that "private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." The Massachusetts state Supreme Court, in its landmark 2003 ruling legalizing same-sex marriage, expressed much the same viewpoint — the court acknowledged that a segment of the community regarded homosexuality as immoral, but public opinion was irrelevant: "If this Court were to agree that calling someone a homosexual is defamatory per se," the judges ruled, "it would, in effect, validate that sentiment and legitimize relegating homosexuals to second-class status."
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.
But the principle the judge laid out is much more broadly applicable. "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."