A California state court has issued a tentative ruling dismissing Richard Simmons’ defamation suit against the National Enquirer. Simmons filed the suit in response to a National Enquirer story reporting that Simmons had transitioned to a female. The story included a photo of Simmons dressed as a woman. That photo had been taken while Simmons was performing several years ago in a burlesque show. It had literally nothing to do with the story. The National Enquirer of course, is not a slave to detail. Or decency. But that is for another day.

But despite the sloppy reporting, for now it appears Simmons is left without a remedy. And the reason reflects an intersection of reputational harm and prejudice that makes for a difficult decision.

In his complaint, Simmons did not point to any “special damages” – that is, he had no evidence of any specific harm inflicted by the article. No one cancelled an appearance or otherwise stopped doing business with him. Instead, Simmons claimed that his case was “per se” defamation – that the damage to his reputation could be presumed from the allegedly false statement. In other words, falsely saying that person was transgender would naturally harm that person’s reputation.

And that is where it gets complicated. Typically, “per se” defamation requires comments that allege truly reprehensible conduct – criminal conduct, infidelity, etc. Transitioning from one gender to another isn’t reprehensible. And so, viewed through that lens, it really doesn’t belong in this category.

But whether or not the conduct is reprehensible, there surely are people out there who wouldn’t be receptive to a transgender person. And Simmons would suffer from that attitude. So, his reputation, at least in certain circles, would indeed be harmed by the false reporting.

All of which begs the question – does a court effectively acknowledge the prejudice and put transgender into the per se category? Or does it refuse to buy into bigotry and find that Simmons did not suffer reputational harm?

There were cases decided decades ago where courts ruled it defamatory per se to falsely state that a white person was “a Negro” to use the terminology from back then. That seems like a pretty horrendous rule of law these days, doesn’t it? And there is no way to avoid the notion that such a ruling implicitly, if not explicitly, says that being black is bad. And the fact that a segment of the population believed that (and sadly still does in some circles) probably ought not be determinative.

The California court felt that the same logic applied here. Perhaps 20 years from now, this will seem like a no brainer. But in the transition, folks like Richard Simmons get left in the lurch. And that is unfortunate.