NewsWrap for the week ending April 4th, 1998 (As broadcast on THIS WAY OUT Program #523, distributed 04-06-98) [Compiled & written by Cindy Friedman, with thanks to Graham Underhill, Brian Nunes, Jason Lin, Martin Rice, Rex Wockner, Greg Gordon, Lucia Chappelle, and Pacifica Network News] Anchored by Cindy Friedman and Greg Gordon The U.S. Supreme Court this week heard arguments in "Bragdon versus Abbott," its first-ever consideration of AIDS or of the Americans with Disabilities Act, ADA, which could have broad impact not only for people with HIV and AIDS but for those with a variety of disabilities. Sidney Abbott is a woman with HIV who in 1994 visited Randon Bragdon for dental treatment. Although there has never been a case in which a dentist was found to be infected with HIV in the course of treating a person with the virus, Bragdon was willing to fill a cavity for her only in a hospital setting, which would have cost Abbott another $150. With the help of the Boston-based Gay and Lesbian Advocates and Defenders, Abbott filed a lawsuit against Bragdon claiming discrimination based on a disability, and won in both trial and appellate courts. But here the case becomes complex. First of all, lower courts have been divided on the question of whether or not asymptomatic HIV constitutes a disability under the ADA. Although the ADA's Congressional sponsors had a specific concern for the treatment of people with HIV and AIDS, the law itself does not mention them. To qualify as a disability under ADA, a condition must substantially limit one or more "major life activities." Abbott claims that because of the risk of infection to a sex partner or fetus, she qualifies because HIV limits her reproduction, a life activity which is not one of those mentioned in the ADA. Finally, the court must decide whether Bragdon was justified in treating Abbott differently from other patients; the ADA does allow leeway for healthcare workers where a condition poses a "direct threat to the health or safety of others." During oral arguments, liberal Justice Stephen Breyer had an easy time with the reproduction question, asking, "Isn't reproduction and sexual activity usually seen as an ordinary part of human life?" But conservative Justices William Rehnquist and Antonin Scalia were concerned about imposing the powerful protections of ADA on a number of conditions relating to reproduction which are not otherwise disabling. Numerous groups supporting Abbott, including the American Medical Association, fear that failure to recognize HIV infection as a disability could result in substandard health care for those who have the virus. Even the American Dental Association believes that Bragdon should have treated Abbott in his office, but does not believe that people with HIV should always receive treatment identical to others. There were two encouraging scientific reports this week about AIDS, particularly about Kaposi's sarcoma, or KS, a disfiguring tumor which was rare before AIDS and which has disproportionately affected gay men in the course of the epidemic. One epidemiological study, by the University of California at San Francisco AIDS Research Institute, clearly confirmed that KS is caused by an unusual strain of the herpes virus known as HHV-8, with HIV acting as a co- factor. The study also showed that HHV-8 is transmitted between men by anal intercourse. It looked at gay and non-gay men who were positive and negative for HIV. None of the non-gay men had HHV-8 and about one in six of the HIV- negative gay men did. Almost half of the HIV-positive gay men were also infected with HHV-8, and about half of those infected with both viruses developed KS within a 10-year period, while others did not. Among the gay men with both viruses, the odds of an individual developing KS increased with the number of years he regularly engaged in intercourse, the number of his sex partners, and his history of other sexually transmitted diseases. Now that the cause has been confirmed, treatments can be tried against HHV-8, including treatments already in development for other forms of herpes virus. The other report comes from a team led by superstar scientist Robert Gallo and his Institute of Human Virology. For several years, scientists have been looking at a hormone found in the urine of pregnant women known as hCG, which seemed to be able to shrink KS tumors and even prevent them. Gallo's team has found that it's not the hCG itself which has the effect, but one or two small proteins which cling to it and appear as trace contaminants in hCG preparations. This substance Gallo has named HAF, for hCG-associated factor, shows terrific promise in three important aspects of AIDS: it's been shown to suppress HIV replication in cell cultures, mice, monkeys, and humans by almost 80%; it reduces KS tumors by almost 80%; and in cell cultures, it promotes bone marrow growth and increases production of blood cells by 150 to 300%. HAF also appears to be non-toxic in the doses used so far. Gallo believes the HAF can be completely identified and ready for human trials in as little as a year or two. The only catch is that it takes massive quantities of urine to isolate small amounts of HAF, and that urine should be taken within the first ten weeks of pregnancy, before many women even realize they are pregnant. Briefly, in other news: Almost all of the Democrats in the U.S. Senate wrote a letter to Republican House Majority Leader Trent Lott this week begging him to schedule a floor vote on the nomination of open gay James Hormel to serve as ambassador to Luxembourg. A handful of Republicans have held up that vote for six months with an archaic procedural maneuver, because they fear that if Hormel becomes the nation's first openly gay ambassador, he’d use the post to further the so- called "gay agenda." Lott shrugged off the request, claiming the Senate didn't have the time to debate it right now, and left little hope for a floor vote any time soon. Bella Abzug, the former U.S. Congressmember who in 1975 sponsored the U.S.' first federal bill to protect gays and lesbians from discrimination, died this week at the age of 77. Here's what she said about the civil rights of gays and lesbians in 1971: Bella Abzug: "I believe in the civil liberties and the rights of all human beings to have a right to a job. I've stood for that all of my life, starting as a young labor lawyer. I do not believe that the question of sex should become the basis upon which a person should be determined to be fit or unfit for a job ... I believe that every human being has a right to be what kind of sex he or she is, and a right to have a job and make a livelihood, and that's my position." Although some form of gay and lesbian civil rights legislation has been introduced in every Congressional session since, it only made it to a floor vote once, when it was defeated by a single vote in the U.S. Senate in 1996. In New Zealand, transsexual Jacqui Grant was elected to the Grey District Council, the nation's second transsexual to hold such a post. Grant, who was awarded the New Zealand Order of Merit this year, is affectionately known to her constituents as the "Tranny Granny" for having been a foster parent to more than 50 children. A Tokyo District Court this week stopped the publication of a biography of the late gay writer Yukio Mishima by one of his many lovers. Mishima's children won the case because distinguished biographer Jiro Fukushima included 15 personal letters he'd received from Mishima without obtaining their permission. The children denied that they were concerned about the presentation of their father's homosexuality, but after Mishima's famous seppuku ritual suicide, their now-deceased mother actively suppressed books and films that outed him. Thai transgender kickboxer Parinya Kietbusaba won his second fight in the big time this week by a unanimous decision. Wildly popular with the fans when he appears in the ring in face powder and lipstick, Parinya's professional record now stands at 22 wins and 2 losses, with 17 knockouts. U.S. professional golfer Patty Sheehan has publicly identified herself as a lesbian in a first-person column in the magazine "Golfworld." The two-time U.S. Women's Open winner, who has already qualified for the Ladies Professional Golf Association Hall of Fame, last year adopted a daughter with her partner of 12 years, and says she's never been more content or happier. The distinguished George M. Peabody Awards for broadcast excellence were distributed this week. One went to the coming-out episode of the ABC sitcom "Ellen", which judges called "a landmark moment in television history." They praised it for its humor and for "portraying the importance of tenderness and caring in all relationships." GLAAD, the Gay and Lesbian Alliance Against Defamation, distributed some its 9th annual media awards this week in New York in the first of three ceremonies. Special awards went to singer k.d. lang and film distributor Miramax. Other awards went to the French film "Ma Vie en Rose," the Lifetime cable network's docudrama "Any Mother's Son," the ABC soap opera "All My Children," the syndicated TV show "Entertainment Tonight," "TIME" magazine, "Advertising Age" magazine, and the New York stage production "Gross Indecency: The Three Trials of Oscar Wilde." And finally ... among this year's April Fool's pranks was the distribution of a phony news item, ostensibly from the Associated Press, which had the religious right groups the Family Research Council, Americans for Truth About Homosexuality and the Christian Coalition urging their members to stop using the King James Version of the Bible. The reason given was that King James, who commissioned the translation, was gay, something many believe to be true. The ersatz news story reported that, rather than use this tainted text, they suggested the "Good News Bible," a paraphrase so homophobically careful that it has Judas betray Jesus with a handshake instead of a kiss. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Judgment Day For Discrimination in Alberta written and reported by Lucia Chappelle John Fisher: “Let's be clear, Alberta has no time to respond to this ruling, this decision takes effect immediately ... [DROP-IN ID:] John Fisher of Equality for Gays And Lesbians Everwhere ... “... As of right now, lesbians and gays in Alberta have the ability, the right to bring complaints of discrimination to their Human Rights Commission. The judgment makes it very very clear that Alberta has stalled, it has dithered for long enough already, and time's run out for them. The courts considered whether they should suspend the remedy and give Alberta some time to react, and they said, ‘No. There is no basis upon which we can believe that the outcome would be any different if Alberta takes 1 year or 10 years.’ And that's why the court has come to the rescue of gays and lesbians in Alberta and has acted to protect their constitutional rights.” The Canadian Supreme Court's April 2nd decision in Delwin Vriend's suit against the province of Alberta did indeed order the government to stop practicing discrimination by omitting sexual orientation from its human rights laws. However, there is one constitutional loophole that could still effectively invalidate the ruling. Delwin Vriend lost his teaching position at a Christian college in Edmonton because he is gay. Since sexual orientation was not included as a protected category under Albertan law, his attempt to file a complaint with the Human Rights Commission was turned away. Thus began the seven-year lawsuit that culminated with a unamimous Supreme Court ruling in his favor. Several hundred supporters gathered on the steps of the provincial legislature to hear Vriend's victory message to the government ... Delwin Vriend: “ ... that you are not a government of the people, you are a government against the people ... and I think they have a lot of soul- searching to do in that ... ummmm ... and ha ha, I win!” Alberta Premier Ralph Klein was quick to agree that the high court decision was incontrovertible: Alberta Premier Ralph Klein: “It's pretty hard to go against that kind of judgment and that kind of consideration, which was given about five months by the Supreme Court of Canada, the highest court in the land.” Premier Klein could hardly overstate the emphatic nature of the ruling or its far-reaching implications. It states that the exclusion of sexual orientation as a protected category "... sends a message to all Albertans that it is permissible, and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation”, telling gays and lesbians protection from discrimination is not available to them. The court found that, "deprived of any legal redress they must accept and live in constant fear of discrimination. These are burdens which are not imposed on heterosexuals." The text of the decision went on to observe that, "fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection. This is clearly an example of a distinction which demeans the individual and strengthens and perpetuates the view that gays and lesbians are less worthy of protection as individuals in Canada's society. The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination." Despite Klein's concession, pressure is building for the legislature to invoke a constitutional provision that would sidestep the ruling. The “notwithstanding” clause of the constitution counterbalances the Canadian judiciary's power to strike down any laws which conflict with federal civil rights protections. Roy Beyer: “This here is a classic example of when the ‘notwithstanding’ clause should be used.” Roy Beyer of the Canadian Family Action Coalition is only one of the voices calling for the “notwithstanding” clause. Earlier in the week, Premier Klein assigned four members of his cabinet to consider such an action in planning a response to the expected court loss. One of them, Treasurer Stockwell Day, says his office is being overwhelmed with calls on the issue, and other conservative politicians are also feeling the heat. While Klein insists that the “notwithstanding” clause is not a possibility, Day has declined to rule it out. Gays and lesbians are not letting up the pressure on the Albertan government either, however, and they're not wasting any time to test the impact of the court ruling. Eleven human rights complaints that have been pending the Vriend decision are expected to be heard by the commission this week. Meanwhile, Murray Billet of Edmonton's Gay And Lesbian Awareness Society, or GALA, says his group has a continuing agenda: Murray Billet: “Much work is yet to be done, because legislation doesn't change the heart, it simply stops the heartless.” The first "heartless" official Billet plans to confront with the decision is Edmonton Mayor Bill Smith. For two years, Smith has denied GALA’s requests for a Gay Pride Day proclamation. They now believe that the Court's forced addition of sexual orientation to Alberta's human rights laws will make Smith vulnerable to a discrimination complaint. Reporting for This Way Out, I’m Lucia Chappelle. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Life Imitates Art at the U.S. Supreme Court written and reported by Greg Gordon While Canada’s high court was preparing to issue its landmark ruling on lesbigay rights, the U.S. Supreme Court was considering whether government funding of the arts should be determined by “general standards of decency and respect for the diverse beliefs and values of the American public.” Conservative Republican outrage over the controversial works of National Endowment for the Arts-funded artists, such as the late openly-gay photographer Robert Mapplethorpe, led to Congressional legislation in 1990 which explicitly bans federal funding for projects which are determined to be not only “obscene”, but which are sadomasochistic or homoerotic. The specific case now before the Supreme Court involves the so-called “NEA 4” -- performance artists who had been approved by the standard review process for National Endowment for the Arts grants in 1992, only to have their funding withdrawn under the Congressional “indecency” provision. Three of the “NEA 4”, seemingly by no coincidence, are gay or lesbian: Tim Miller, the founder of the primarily lesbian/gay/bisexual/transgender “Highways” performance space in Los Angeles ... the hilarious Holly Hughes ... and John Fleck, who went on to portray the perfect legal secretary during the first season of ABC-TV’s critically-acclaimed “Murder One”. The fourth artist, Karen Finley, who attended the Court hearing, offered a unique perspective on the issue: her chocolate nude scene depicting abuse of women became a rallying cry for NEA critics, especially homophobic North Carolina Senator Jesse Helms: Karen Finley: "8 years ago when he went on the Senate floor and took my work and sexually depicted it, and eroticized my work ... and took my professional work, and my profession, and my livelihood, he sexually harassed me." During the high court hearing on March 31st, the definition of “indecency” seemed to be at the heart of the matter. That question has lead lower courts to strike down the Congressional ban because, as one appellate court ruling stated, “Since it is not susceptible to objective definition, the 'decency and respect' standard gives rise to the danger of arbitrary and discriminatory application ... Where First Amendment liberties are at stake, such a grant of authority violates fundamental principles of due process." The main precedent for the artists' side of this case was cited successfully in winning recognition and funding for campus lesbian and gay organizations. It's a 1995 Supreme Court decision finding that a university's policy of withholding funds from a religion-oriented student publication, while subsidizing other student publications, was unlawful discrimination based on content. The Supreme Court justices seemed to be divided in their perception of the free speech issues involved in this case, however. Some noted that the federal government pays for the dissemination of some messages, such as those against drug use, but not others, such as those which might be put forth by white supremacists; some Justices thought it seemed reasonable to be equally selective in choosing how arts funding should be awarded. That approach was encouraging to Walter Weber of the American Center for Law & Justice, a conservative legal group which filed a friend of the court brief in support of the 1990 law: Walter Weber: "The position that a lot of the Justices seemed to have -- for example Justice O'Connor particularly was asking -- can't the government, if it decides it wants to buy some artwork, say to decorate its offices, can't it decide where to spend the money, using relatively subjective judgment in deciding among different forms of art ... and why doesn't that same rule apply to a funding program? And the Justices did not seem to be convinced at all of the argument that this was somehow a cover or a pretext for viewpoint discrimination." But while Solicitor General Seth Waxman called the indecency provision "innocuous", Justice Antonin Scalia* said, "I think you will have a hard time persuading me the statute is meaningless," calling the clause a "wink, wink, nudge, nudge approach" to selective funding. (*it was subsequently discovered that original source material attributed this quote incorrectly; these comments were, in fact, made by Justice Anthony Kennedy.) Attorney David Cole, who represented the artists before the Court, told reporters that First Amendment free speech rights are the essence of the case: David Cole: "We only retain that if we require the government, when it funds private free expression in those situations, it must not discriminate on the basis of viewpoint, and everybody knows that was what this statute was about, was discriminating against artists who, while meritorious, created art that people might find offensive." Asked if his argument wouldn’t then force funding for a Ku Klux Klan project that otherwise met NEA artistic standards, Cole responded: "We can't let government officials start discriminating based on political viewpoint. That may mean that in some situations we have to tolerate offensive speech." The National Endowment for the Arts itself is a mere shadow of what it once was, after years of funding cuts and concerted attacks by Republican lawmakers determined to eliminate it altogether. In the process of bargaining for its continued existence, the NEA has all but ceased making any grants to individual artists. The justices are expected to hand down a ruling in the "NEA 4" case in July. Reporting for This Way Out, I’m Greg Gordon.