Changing perceptions of homosexuality as revealed by the law of defamation in Scotland

‘Defamation’ is a statement causing the subject to be lowered in the eyes of ‘right thinking members of society’, or making right-thinking persons less willing to associate with the subject (Sim v Stretch 1936). The usefulness of the test for the purposes of this chapter is that it reveals what is generally socially acceptable at any point in time, and thus allows us to trace changing social attitudes. Precisely 200 years separate the Drumsheugh school mistresses case, where the judges could not bring themselves even to name the ‘abomination’ the ladies were accused of from the action against Kezia Dugdale, where it was the attribution of anti-gay sentiment that met the defamation test. These cases, and those in the intervening years, reveal how judges assess what it is proper for people to think about homosexuality. While that change seems to be clear, it does not yet follow that the law discourages all forms of homophobia: the Supreme Court’s decision in Lee v Ashers Baking Company Ltd (the ‘gay cake case’) on anti-gay marriage views provides evidence to the contrary. The gradual change in judicial attitudes revealed through the defamation cases, and the tension between these two strands of thought are the topic of this chapter.