Richard Simmons Loss Will Be Transgender Rights’ Gain

In May, Richard Simmons filed a libel suit in the Los Angeles Superior Court against National Enquirer and Radar Online over several stories published by both outlets. They claimed he was transitioning to female. He claimed they were lying. Now a ruling in the case is imminent, and though Simmons will likely lose, it could prove an unlikely legal victory for transgender-rights advocates. In what might be the first—and certainly the most high-profile—defamation lawsuit to ask whether labeling a person as “transgender” is harmful enough to qualify as libel, Judge Gregory Keosian, of the Los Angeles Superior Court, is set to rule that it is not.

In the suit, Simmons claims that Mauro Oliveira, a former assistant, has blackmailed him for years and fed the stories of his transition to the outlets. They printed them in summer 2016 under headlines such as “Richard Simmons: He’s Now a Woman!” The National Enquirer wrote that Simmons has “slowly transformed into a female with breast implants, hormone treatment, and medical consultations on castration” and that he is “now living as a gal named Fiona.” Interest in Simmons was especially elevated at the time considering he had not appeared in public since 2014; his disappearance became the subject of a buzzy podcast, Missing Richard Simmons, which debuted in February of this year.

Simmons claimed that the Enquirer “cynically calculated” that, in order to sue, he would have to choose between batting down a false claim and appearing “to maintain that there is something wrong with transitioning from one gender to another.” In a tentative ruling (the final ruling is due in a few days), Judge Keosian has determined that the latter is the more harmful concern here. Keosian writes that being called transgender, however falsely applied, does not meet the criteria for libel because, in the words of California law, the claim doesn’t “expose any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” In other words, transgender is not a shameful designation, and Keosian won’t risk making it one by ruling in Simmons’s favor.

Transgender, then, will be treated the same way that race has been traditionally treated before the law—that is, that misidentifying a person’s race is not inherently 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,” Keosian clarifies. “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.”

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Judge Keosian added, “While, as a practical matter, the characteristic may be held in contempt by a portion of the population, the court will not validate those prejudices by legally recognizing them.”

Both the National Enquirer and Simmons are claiming the moral high ground on behalf of trans rights. The former maintains that being labeled transgender should not be considered shameful. Plus, in a statement posted to its Web site at the time of the filing in May, the National Enquirer wrote, “Our story was based on credible sources who were in Mr. Simmons’ inner circle. The photos provided to The ENQUIRER are real—and speak for themselves. We stand by our reporting about Mr. Simmons, and intend to vigorously defend this lawsuit and win public vindication of our reports.”

Simmons’s lawyers wrote in the initial filing, however, that the publications’ actions “cheaply and crassly commercialized and sensationalized an issue that ought to be treated with respect and sensitivity.”

Though this is the first time that a defamation suit has centered on a claim of changing gender, past courts have been forced to determine whether being deemed gay tarnishes a reputation. Howard Stern and Tom Cruise are among high-profile names to have sued for libel after being called gay in a public forum. Stern settled in 2011 and the terms remained confidential, while Cruise won his case and was awarded $10 million by a court in Los Angeles in 2003. After both lawsuits, a New York appeals court ruled it “no longer slander” to be described as “L,” “G,” or “B” in a 2012 decision. Judge Keosian’s official decision on “T” will likely align with this latter reasoning, and pave the way for other courts to do the same. There is no set federal ruling on what does and doesn’t qualify as libel, but by setting precedents, judges like Keosian help shift goalposts, providing a small step forward for transgender rights that may help de-stigmatize the community.

The ruling will also arrive at a time when transgender rights are in flux nationally. The Obama-era protections on military service for trans servicemen and women are still up in the air, and many states don’t have laws on the books that outright ban discrimination against transgender people when it comes to housing, employment, public accommodations, and other entities that rule day-to-day life (California, notably, does have extensive protections). While Judge Keosian is siding with the National Enquirer, whose owner is a close friend of President Donald Trump, his decision could be the latest example of the judiciary standing up against the goals of the current administration.

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Neville Johnson, who is representing Simmons, has declined to comment other than to note, “We are hoping the court will rule in Mr. Simmons’s favor in this righteous case.”

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