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Richard Simmons’ lawsuit about a series of false National Enquirer stories that claim he’s had a sex-change survives another day, but a California judge’s ruling is in favor of the publication and makes bold statements about what it means to be transgender in the eyes of the law.
Simmons sued National Enquirer, Radar Online and American Media, Inc. in May, alleging that the “cruel and malicious” articles that suggested he was transitioning from a male to a female were false and infringed on his legal right to “not be portrayed as someone he is not.” AMI fired back with an anti-SLAPP motion to strike the complaint, arguing it was protected speech and it’s not defamatory because statements that someone is transgender aren’t inherently shameful.
It was undisputed that Simmons is a public figure and writing the article about him qualifies as a protected activity under the anti-SLAPP statute, so, in a tentative ruling issued ahead of an Aug. 30 hearing, L.A. Superior Court Judge Gregory Keosian focused on Simmons’ likelihood of prevailing on his claims.
“[A]lthough it is true that Simmons would not need to introduce any evidence of reputational damage to proceed in a defamation cause of action seeking only the emotional damages caused by the allegedly defamatory statement, Simmons must be able to show, as a threshold matter, that the allegedly defamatory statement on its face was the type of statement that would ‘naturally tend’ to injure one’s reputation,” writes Keosian.
The court acknowledges that the key issue of whether “falsely reporting that a person is transgender has a natural tendency to injure one’s reputation” is one of first impression in California.
“This court finds that because courts have long held that a misidentification of certain immutable characteristics do not naturally tend to injure one’s reputation, even if there is a sizeable portion of the population who hold prejudices against those characteristics, misidentification of a person as transgender is not actionable defamation absent special damages,” writes Keosian.
He explains that as societal perceptions have changed over the decades so too has whether false statements based on things like sexuality, race and illness are libelous.
“Here, the court notes that neither a medical condition, nor race, nor sexuality are a perfect analogy to the issue we address today, but acknowledges that being transgender shares several important characteristics with all three,” writes Keosian. “Being transgender is an issue that often (although not always) requires a medical diagnosis and medical intervention. Like race, being transgender is an immutable characteristic. Although there is no connection between homosexuality and being transgender, both characteristics relate to sex and gender.”
Keosian also found that being transgender may subject a person to hatred, contempt or ridicule from a portion of the population, but “the court will not validate those prejudices by legally recognizing them.”
Therefore the court granted AMI’s special motion to strike as to each of Simmons’ claims.
During the hearing, Simmons’ attorney Rodney Smolla argued that a transgender person doesn’t have the same protections as those who are discriminated against based on race, and these kinds of claims expose Simmons to “diminishment of his dignity.”
Smolla also argued that even if the court strikes the libel claims “for social policy reasons” it should allow the false light claim to proceed. “Let a jury decided these exercises in realism,” he said.
Neville Johnson briefly followed Smolla and focused on the falsity of the story. “They made it up entirely,” he said. “I submit that when you make something up intentionally and put it on the cover there’s an inference you can certainly make that somebody’s reputation is going to be harmed.”
AMI attorney Kelli Sager noted that whether the claims were true or false is “irrelevant” at this stage and Johnson’s argument was intended to distract from the real issue.
“Falsity is not enough,” Sager said. “It has to be defamatory. Bigotry and prejudice aren’t the same thing as defamation.”
Keosian took the matter under submission and later issued a written ruling that added a few paragraphs on the false light claim, but otherwise was his tentative ruling verbatim. (Read it below.) Any claims dismissed under the anti-SLAPP statute are automatically eligible for appeal, so this battle could be far from over.
Sept. 7, 4:50 p.m. Updated to reflect that Keosian’s final ruling is consistent with his tentative.
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