The Eisner award-winning “Half a Life” storyline comprises Gotham Central # 6-10, and was first published in 2003. Rather than focusing on a crime, this story is mostly about the outing of Detective Renee Montoya as a lesbian and the consequences that has.
First of all, the whole story is pretty rife with blatant examples of sexual harassment. Anti-harassment laws are largely blind—in text if not in implementation—as to gender and orientation, and though men don’t generally make many harassment claims and most sexual harassment claims are heterosexual in nature, any intimidation, bullying, coercion, or other acts which create a hostile work environment in any way related to sexuality can generally serve as the basis for a sexual harassment suit in most jurisdictions. Unfortunately, this kind of thing is reportedly pretty common in many work environments, especially police departments, so it’s pretty realistic that the people picking on Montoya could get away with it.
But as to the outing itself… that’s not necessarily illegal. It’s certainly not defamation—it’s true, after all—and there are no laws against publicizing someone’s sexual orientation. It is, however, almost certainly grounds for an invasion of privacy lawsuit, specifically one based on the public disclosure of private facts. This is a recognized tort, but there isn’t all that much precedent on the specific subject of the revelation of another’s sexual orientation without their consent. The case most on point is Sipple v. Chronicle Pub. Co., 154 Cal. App. 3d 1040 (Cal. Ct. App. 1984), in which a plaintiff sued a newspaper for revealing his homosexuality. The court ruled for the paper, not because there wasn’t a claim to be made in principle, but because the plaintiff was already “out,” so there couldn’t be any damages. Publication of true, non-private facts isn’t grounds for a lawsuit. But the implication is that if the plaintiff hadn’t been “out,” things might have gone differently.
Sterling v. Borough of Minersville, 232 F.3d 190 (3rd Cir. 2000) is a more recent case that dealt with involuntary outing by (rather than of) a police officer. Because the defendant was a police officer, the case was a § 1983 suit for a violation of civil rights rather than a typical tort lawsuit, but the court noted that “It is difficult to imagine a more private matter than one’s sexuality … The Supreme Court … and our court have clearly spoken that matters of personal intimacy are safeguarded against unwarranted disclosure.” Sterling, 232 F.3d at 196. The Supreme Court’s later decision in Lawrence v. Texas supports that view.
So Montoya could potentially sue the person who outed her. . . except that the person happens to be Two-Face, making service kind of interesting and the likelihood of collection just about zero. Which is probably why there tends not to be much in the way of lawsuits related to outing. Most people who are outed involuntarily don’t have that happen via newspaper, it happens via word-of-mouth or other interpersonal means. Which means there aren’t big corporate pockets available to satisfy a judgment, just individuals. Not really worth suing if there’s no money to be had.
That’s really about all we’ve got this time around. We’ll be coming back to Gotham Central in future posts.