Starting Gay Rumors Isn’t Necessarily Slander

(CN) - Claiming that someone is gay or bisexual is no longer automatically considered slander, a New York appeals court ruled.

Mark Yonaty had claimed that his girlfriend dumped him after Jean Mincolla spread a rumor that Yonaty was gay or bisexual.

After hearing the rumor from Mincolla, Ruthanne Koffman allegedly shared it with Yonaty's girlfriend, with whom Koffman had been close.

Yonaty had sued Mincolla, and Mincolla brought a third-party action against Koffman, seeking indemnification based upon the republication of the statements.

A judge in Binghamton, N.Y., dismissed Yonaty's emotional distress and tort claims, but refused to dismiss the slander claim. The judge also refused to dismiss the third-party complaint against Koffman.

That decision relied on precedent holding that false accusations of homosexuality are defamatory per se.

Finding that the precedent no longer holds up, however, the Appellate Division's Albany-based Third Judicial Department New York dismissed the complaint and the third-party action in their entirety.

"Given this state's well-defined public policy of protection and respect for the civil rights of people who are lesbian, gay or bisexual, we now overrule our prior case to the contrary and hold that such statements are not defamatory per se," Justice Thomas Mercure wrote for the court.

Previously, homosexuality was one of five categories of defamatory statements per se, along with accusing someone of having committed a crime, damaging someone's business reputation, claiming someone has a "loathsome" disease, or calling a woman unchaste.

Mercure cited the 2003 U.S. Supreme Court case of Lawrence v. Texas, which declared that criminalizing homosexual conduct was an unconstitutional violation of due-process rights.

"These statements of the Supreme Court simply cannot be reconciled with the prior line of Appellate Division cases concluding that being described as lesbian, gay or bisexual is so self-evidently injurious that the law will presume that pecuniary damages have resulted," he wrote.

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