Simmons sued the publications in May over a story alleging that he was in the process of becoming a woman. While affirming his support for trans people, Simmons has vehemently rejected the claim.
But in his tentative ruling, Judge Gregory Keosian ruled that being misidentified as transgender does not inherently expose someone to “hatred, contempt, ridicule or obloquy,” and therefore does not rise to the level of defamation.
“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,” Keosian ruled.
The ruling appears to be the first to address the question of whether being labeled as transgender is sufficiently harmful to one’s reputation to be libelous. Courts have long ruled that misidentifying someone’s race is not defamatory, and Keosian argued that the transgender classification should operate in the same way. He is set to issue a final ruling in the coming days.
At a hearing on Wednesday, Simmons’ attorneys argued that the court should confront the reality of the harms that transgender people face, rather than assume an ideal world where such harms do not exist.
“There are giant segments of society in this country who endorse the kind of prejudice and hatred and shunning of transgender persons in a way that is dramatically different than the way we treat race in this country,” argued attorney Rodney Smolla, on behalf of Simmons.
“The object of the National Enquirer was to do everything they could to humiliate this person,” added attorney Neville Johnson, also representing Simmons. “They made it up entirely out of whole cloth. I submit that when you make something up intentionally… and put it on the cover, there’s an inference you can make that somebody’s reputation is going to be harmed.”
Arguing for the defendants, attorney Kelli Sager called the suit “a case essentially in search of a legal theory.”
“It’s not something that is actionable,” Sager said. “There is nothing inherently bad about being transgender.”