LEGALLY SPEAKING, IT DEPENDS: LGBTQ Part 3 – Hollywood’s Cracked Mirror

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. Follow Chris on Twitter @chrisschiller.

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And then, a man walked into a club.

A simple act and yet there are no simple answers. The entire LGBTQ community has to deal with these issues each and every day. Understanding won't stop it. Perspective won't solve it. Recognition won't be the last step. But it will be a step forward. And it's a start.

That's what these columns have attempted to do. To start.

So as we follow up on parts 1and 2 of this three part series on the LGBTQ community as an attempt to start that understanding, we turn our focus on how the LGBTQ community is dealt with in Hollywood both in front of the camera and behind.

Hollywood has a strange relationship with LGBTQ issues. On the one hand, it has found that some life stories can make great drama. Whether it is portraying dramatic lives lived directly from the headlines like in Milk (2008) or Philadelphia (1993) or using LGBTQ issues as backdrop for their stories as in Dallas Buyers Club (2013)and The Crying Game (1992) Hollywood has shown it can shine a light on LGBTQ life with a compassionate eye.

But like every other subject matter the industry doesn't always handle the issues with care. Countless movies portray the community through callously drawn stereotypes or as the butt of jokes (as in the famous last line in Some Like It Hot (1959)).

They occasionally do try to be better (sometimes dragged kicking and screaming). Television has come a long way in that regard. Consider how long and hard the decision was debated to allow Ellen Degeneres' lead character on the hit series Ellen (1994-98)to actually be lesbian. It was a high water mark in the acceptance levels of TV executives and audiences for the time. There were gays being portrayed with respect on television before this time (for example, Billie Crystal's character on Soap (1977-81)) , but, for a lead character to confront LGBTQ issues as main plot lines taken seriously, it was groundbreaking. We now have highly acclaimed series like Transparent (2014-)on Amazon and the filming now BBC's Doctor Who spinoff series Class announced that there will be an LGBTQ lead character.

The industry has a long history of people playing characters that are not true to their real lives. So the fact that Jeffrey Tambor or Eddie Redmayne in The Danish Girl (2015) played trans characters or that Billie Crystal played gay or Neil Patrick Harris played the hyper-heterosexual Barney Stinson on How I Met Your Mother (2005-14) is not unusual. In fact Linda Hunt won an Oscar for playing the male character Billy Kwan in Year of Living Dangerously(1982).

It would be nice if Hollywood acknowledged that an actors sexual orientation might inform how the part should be played so that more LGBTQ actors could be employed. Alas, Hollywood has that problem with a lot of areas of minority representation in the industry. (See just about any headline about lack of diversity in Hollywood.)

It's one thing to acknowledge a part of society as a focus of a dramatic storyline. It is completely another thing to acknowledge that part of society actually exists in the day-to-day existence of the industry. And it hasn't always been easy for the community to be who they really are behind the camera.

There was a time in the history of Hollywood that even the rumor of moral turpitude, or conduct considered contrary to the believed community standards of the day, was enough to end a career or even a life. For far too long being a member of any branch of the LGBTQ spectrum would fall into that category. Studios were so scared of upsetting the John Q. Public family's “good morals” that extremely strict morals clauses were added to contracts restricting the act or appearance of acting or participation in any “bad behavior” as specifically set out within the language of the clause, often in great detail.

This was a time when the legal qualifications of defamation per se (as discussed in a previous article on rumors) still included homosexuality. This presumption of harm in just being accused of such a thing shows how little understanding society of the day had for some of its own members. Even the whiff of a so called scandal would be devastating to a career, a studio and the personal life of the person of interest. Gossip columnists thrived on these stories to keep their readership up and pocket books lined. Studio PR staff worked overtime to keep the good rumors going and squash the bad ones at least until the picture was done.

There wasn't much consideration whether the rumor was true or false, be it about drug use, adultery or closeted sexuality. The studios quashed and attempted to control, the gossip columnists dug and tried to reveal. How the individual was supposed to handle it, especially when everyone around them was telling them to be someone they were not, wasn't discussed. We will never know the full accounting of the costs of this “moral” whitewashing. I suspect that much of the covered up alcoholism and drug use stemmed at least in part from some putting on a public face far different than the one they owned. Sadly many suicides and murders may have been the end result.

With a large part of society set to prejudge normal LGBTQ behavior as bad many chose to keep their orientation private to all but a select, trusted few, even without a morals clause to uphold. These in the closet people have made a tough choice, to attempt to avoid the social repercussions of coming out and to live their true lives in guarded secrecy. All too often, and as we've seen recently with devastating consequences, being out around people who do not understand or accept who you are can be difficult sometimes to the extreme.

For those who have chosen to keep their private lives private, there are issues about that secrecy that have legal ramifications. If someone were to tell a story about the closeted individual either in the newspaper or in a film, the storyteller might dig up all kinds of facts to support the conclusion that the subject is a member of the LGBTQ community despite all outward appearances. Going forward with that information in any public forum runs into an area of defamation called public disclosure of private facts. Even if the information is true, it isn't publicly known and when exposing that information can potentially harm the reputation of the subject then that act violates the individual's rights.

It is not a complete bar from telling, though. If the private information is pertinent to a newsworthy event of public interest then the exposure may be allowed to proceed. Also, there is precedent establishing that the definition of “public” needs to be considered. Usually a closeted person is out to some people in their inner circle. If that circle extends wide, say to a gay neighborhood or whole city, then to some extent the making public to a broader audience of the information has less of an impact on the person's reputation. There is a tipping point where being out to enough people is the equivalent of being out to all, from a legal standpoint.

How does Hollywood handle its LGBTQ community issues currently? It's a mixed bag, but, there are bright spots. You can look to the way the industry reacted to the announcements made by the Wachowski siblings. Though the timing was somewhat forced for Lilly by the potential of a reporter seeking a scoop, the announcements pretty much changed nothing about their esteem in the industry.

Recently people like actress Ellen Page have found being out a refreshing change and a challenge for new avenues in their career. And when it comes to how far announcements about LGBTQ issues have come I point you to Jordan Raskopoulos of the Australian comedy band Axis of Awesome as an awesome example.

I don't want to leave you with the idea that everything is now rosy in Hollywood. There is still plenty of bias against LGBTQ actors and others to overcome. But there are bright spots letting the rainbow shine through a little. Chinese director Zhang Wei is making China's first transgender-themed mainstream film. Whoopi Goldberg is producing a series on Oxygen about transgender models.

And changes are afoot in the online and gaming arenas too. The EA video game Sims 4 is getting a gender neutral update. And the online app Tinder is going transgender friendly as well.

These are just a few of the types of stories that are popping up more and more frequently every day. It seems that if we are diligent in keeping it going, society may just be changing.

As I conclude this series of articles it occurs to me that some of you might be wondering just why I chose to write on this topic. Good question.

I've been writing this column here for over three years now. Over that time I have found the columns that resound best with readers go beyond the cold letter of the law or business and get to the heart of things, even just a little bit. Because I have this forum, I have some mind space not afforded to others, a bit of a leash to explore things, if you will. I hope that my columns have had a levelheadedness, and that I've brought that same perspective to this topic. It is an important one to me. Though I am a cisgender male heterosexual, I can count many of my dearest friends and family filling out every single color in the LGBTQ rainbow. I want the world I inhabit to be open to all. If I can wedge the door open a little wider in that regard, I thought I'd try. Have I succeeded? It depends… on you.

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