LESBIAN/GAY LAW NOTES January 1994 Lesbian & Gay Law Association of Greater New York Editor-in-Chief: Professor Arthur S. Leonard, New York Law School, 57 Worth Street, New York, N.Y. 10013 ASLeonard@aol.com Circulation: Audrey Hartmann, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118 (C) 1994 by Lesbian & Gay Law Association of Greater New York ISSN 8755-9021 Contributing Editor: Colin Crawford, Instructor, Brooklyn Law School. Contributing Writers: Paula L. Ettelbrick, Policy Director, National Center for Lesbian Rights & Adjunct Professor, NY Law School; Kenneth Rutman, Adjunct Professor, New York Law School; Steven Kolodny, Esq.; Barnaby Millard, Esq.; Robert Bourguignon, Angela Thompson, Students, Brooklyn Law School; Dirk Williams, Student, Northeastern Law School. Colorado Court Makes Amendment 2 Injunction Permanent Colorado District Court Judge H. Jeffrey Bayless ruled Dec. 14 that Amendment 2, enacted by the state's voters in 1992, violates fundamental rights of lesbian, gay and bisexual Coloradans and lacks the requisite justification under strict scrutiny mandated by the 14th Amendment of the United States Constitution. As a remedy in Evans v. Romer, 1993 WL 518586, Bayless ruled that the preliminary injunction he issued last January against Amendment 2 going into effect should be made permanent. Amendment 2 would prevent the state or any of its political subdivisions from adopting or enforcing laws or policies protecting lesbians, gay men or bisexuals from public or private sector discrimination. Bayless held several days of hearings in October, receiving the testimony of many witnesses in support and opposition. As commanded by the Colorado Supreme Court last summer, 854 P.2d 1270, the purpose of the trial was to determine whether the state could demonstrate a compelling interest, and that Amendment 2 was narrowly tailored to meet that interest without unduly abridging the plaintiffs' fundamental rights. The state's Supreme Court determined in its opinion that a constitutional provision singling out homosexuals and bisexuals and disabling them from seeking protective government policies through the normal legislative process implicated a fundamental right of political participation protected by the 1st and 14th Amendments. The Supreme Court did not purport to base its decision on a "suspect class" analysis, grounding the ruling on the "fundamental rights" branch of equal protection theory. Bayless systematically disposed of the asserted "compelling interests" advanced by the state, explaining either that particular interests were not truly "compelling" or that, even if they were, Amendment 2 was too broadly drawn to meet the "narrowly tailored" requirement. Bayless decisively rejected the argument that Amendment 2 was necessary to prevent dilution of resources to enforce civil rights; unrebutted testimony showed that in jurisdictions where gay rights laws are adopted, they do not bust the budgets of civil rights agencies or even require substantial expansion of staff. Bayless also rejected the argument that Amendment 2 was necessary to promote physical and psychological well-being of children. "If the compelling interest relates to protecting children physically from pedophiles," he commented, the evidence showed that "pedophiles are predominately heterosexuals, not homosexuals. If the compelling interest is in protecting the psychological well being of homosexual youth, the Court is unable to discern how allowing discrimination against them by virtue of the Colorado Constitution promotes their welfare." Indeed, Bayless was scornful of the general claim that Amendment 2 was necessary to promote "family values," observing that "if one wished to promote family values, action would be taken that is pro-family rather than anti some other group." Bayless did find that the state has a compelling interest in protecting free exercise of religion, but did not see how Amendment 2 was necessary for that. While proponents claimed during the election that churches might be required to hire gay people as ministers or Sunday school teachers under gay rights laws, Bayless noted that most laws include provisions specifically exempting religious institutions from compliance (and, he might have observed, although he didn't, that where such provisions are lacking courts have judicially exempted the religious organizations on 1st Amendment theories). The opinion could have stopped there, but the plaintiffs, hedging their bets, sought to build a record supporting an alternative theory that Amendment 2 should be subjected to heightened scrutiny because sexual orientation is a "suspect classification," or alternatively that Amendment 2 would be unconstitutional even under the less demanding rationality review used to evaluate commercial regulations. Bayless reviewed the growing body of appellate case law rejecting the claim of heightened scrutiny for anti-gay government policies. Adhering to a rigid, mechanistic application of a list of "tests" to determine whether a particular classification is "suspect," Bayless concluded that gays fail to qualify as a politically powerless minority that needs special protection in the political process. He observed that 42% of Coloradans voted against Amendment 2, whereas expert witnesses estimated the gay population as about 4% of the Colorado electorate. "If 4% of the population gathers the support of an additional 42% of the population, that is a demonstration of power, not powerlessness," he asserted, also noting that eight states and more than a hundred political subdivisions have passed gay rights legislation. The legislative successes of the gay rights movement make it increasingly difficult to argue for "heightened scrutiny" based on a "suspect classification" before judges who misconceive the equal protection analysis as being based solely on the mechanistic application of a list of all-or-nothing "tests" rather than a deeper analysis of the purpose of the Equal Protection Clause and the relatively more fluid way the Supreme Court has used it in particular cases. After reviewing expert testimony on the etiology of human sexual orientation, Bayless declined to make a factual finding as to the "cause" of homosexuality, and also declined to speculate about whether Amendment 2 would pass muster under rationality review, since neither was necessary for him to decide the case. Governor Roy Romer and Attorney General Gale Norton announced they would appeal the decision to the state's Supreme Court. Assuming that court greets the case with the skepticism that marked its decision last summer, that would seem to be the end of Amendment 2 unless the U.S. Supreme Court decides it is time to get involved. In recognition of this likely outcome, groups maintaining Boycott Colorado activities announced that the boycott would be suspended. The attorneys whose appearances are noted on the final page of the opinion are too many to reproduce here, other than to note that the case attracted amicus participation from major gay rights and civil liberties organizations that were noted in previous reports in this publication. A.S.L. News of Other Initiatives & Referenda U.S. District Judge S. Arthur Spiegel (S.D. Ohio), who announced Nov. 16 that he would issue a preliminary injunction to stop Cincinnati's Issue 3 from taking effect, has issued a written opinion in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 1993 WL 492181, 63 Fair Empl. Prac. Cases (BNA) 562 (Nov. 19). Issue 3 would have amended Cincinnati's charter to make unenforceable the provisions of the city's civil rights ordinance to the extent that the ordinance protects lesbian, gay and bisexual people, and prevented any future enactments or policies that might treat gays or bisexuals as a protected class. It was passed decisively in the November election. Spiegel relies on the same reasoning as the Colorado Supreme Court in Evans v. Romer, mandating strict scrutiny for Issue 3 because it infringes the rights of political participation of an identifiable group. After a detailed summary of the U.S. Supreme Court precedents on electoral rights, Spiegel asserted, "[We] conclude that there is a strong likelihood that under the Issue 3 Amendment, all citizens, with the express exception of gay, lesbian and bisexual citizens, have the right to appeal directly to the members of city council for legislation, while only members of the Plaintiffs identifiable group must proceed via the exceptionally arduous and costly route of amending the city charter before they may obtain any legislation bearing on their sexual orientation. Thus, there is a substantial likelihood that the Issue 3 Amendment `fences out' an identifiable group of citizens -- gay, lesbian and bisexuals [sic] -- from the political process by imposing upon them an added and significant burden on [sic] their quest for favorable legislation, regulation and policy from the City Council and city administration." Spiegel also found that Issue 3 places a significant burden on advocacy rights of the plaintiffs, because "their advocacy may expose them to discrimination for which they will have no recourse even remotely comparable to that of other groups, to obtain protection, thereby increasing the risks of, and consequently chilling, such expression." Spiegel found it to be "especially significant" that Issue 3 does not remove "sexual orientation" from the human rights ordinance, but rather prohibits using that provision to protect gays while leaving it to protect heterosexuals. "This only reinforces our conclusion that the Defendants have proffered no compelling justification to single out gay, lesbian and bisexual citizens for the additional and substantial burdens. . ." Spiegel found the necessary irreparable harm to support preliminary relief, given the likelihood that fundamental rights would be abridged by allowing Issue 3 to go into effect, and concluded that "maintaining the status quo under the existing City Human Rights Ordinance and EEO Ordinance is the far more prudent course of action in light of the nature of the threat faced by the Plaintiffs in, among other things, their employment and housing situations." The plaintiffs in the Cincinnati case include several individuals who have complaints of discrimination pending at the Human Rights Commission, thus presenting the strongest possible case for irreparable harm. The importance of Spiegel's decision was highlighted by the Nov. 1 filing of a sexual orientation discrimination charge in Hamilton County, Ohio, Common Pleas Court by gay attorney Scott Greenwood against one of Cincinnati's prominent firms, Taft, Stettinius & Hollister. Greenwood, a board member of the group that led the campaign against Issue 3, claims he was constructively discharged when a member of the firm's management told him to stop doing pro bono work against Issue 3 or he would be fired. Greenwood, represented by Alphonse Gerhardstein (an attorney involved in the Issue 3 case), seeks reinstatement with backpay plus compensatory and punitive damages, according to BNA's Individual Employment Rights newsletter (Dec. 7). Because the Cincinnati ordinance does not specifically authorize court suits, Greenwood's case is framed as a wrongful discharge in violation of public policy, relying on the human rights ordinance for the articulation of public policy. The Florida Supreme Court is considering arguments in opposition to a proposed statewide ballot measure that would ban enactment of gay rights laws and repeal those that exist in the state. In re Advisory Opinion to the Attorney General - Restricting Laws Related to Discrimination, No. 82-674. The proposed amendment was developed by anti-gay activists to avoid constitutional faults found by the Colorado Supreme Court in Amendment 2. Instead of singling out gay people by name, it states that "the state, political subdivisions of the state, municipalities or any other governmental entity shall not enact or adopt any law regarding discrimination against persons which creates, establishes, or recognizes any right, privilege or protection for any person based upon any characteristic, trait, status or condition other than race, color, religion, sex, national origin, age, handicap, ethnic background, marital status or familial status." Its proponents claim that this evenhandedly excludes all new claimants for civil rights protection, not just gays, and thus does not violate the Equal Protection Clause. A joint brief filed by Lambda Legal Defense Fund (through Florida cooperating attorney William E. Adams, Jr.), the Gay and Lesbian Lawyers Association of Florida, and Chesterfield Smith, a former president of the American Bar Association on behalf of a dozen public interest groups, forcefully asserts that the proposed Amendment violates a variety of Florida statutory and constitutional requirements for ballot measures and, more significantly, is "palpably unconstitutional," despite its neutral-sounding language. Anchoring its constitutional argument in long-standing precedents where innocuous-sounding initiatives or statutes were found to violate Equal Protection because of their legislative history demonstrating an intent to discriminate, the brief shows that the proponents have targeted repeal and prevention of laws protecting gays from discrimination as their principal motivation, and have made opposition to gay rights the organizing principle of their campaign to secure funds and political support. A.S.L. On Nov. 26, the Oregon Citizens Alliance (OCA) gained ground in its latest effort to insert an anti-gay-rights amendment into the state constitution when the Oregon Supreme Court approved a ballot title for OCA's new initiative. OCA is mobilizing to have its new measure, "The Minority Status and Child Protection Act," placed on the general election ballot in Nov. 1994 for consideration as a constitutional amendment. The measure is similar to one that Oregon voters rejected in 1992. Stating that homosexuality is "wrongful sexual behavior," it would prohibit state and local governments from giving sexual orientation "legitimate minority status." It would outlaw classifications based on sexual orientation, forbid recognition of domestic partnerships or extension of spousal benefits to gay partners, keep governments from teaching that sexual orientation is equivalent to statuses such as race, gender and religion, and prevent public funds from being spent in a manner "expressing approval of homosexuality." Employees' private sexual behavior could violate the amendment if it is deemed to "disrupt the workplace." If OCA collects 89,028 petition signatures by July 8, the amendment will be on the November ballot. The petition drive could not begin until the initiative had an approved ballot title, consisting of a caption, a question to be answered by voters, and a summary statement. Ballot titles are prepared by the state attorney general. Litigation arose after OCA contended that the attorney general's title for the measure was prejudicial because it unfairly characterized the measure's purposes. The Oregon Supreme Court, in DeParrie v. Keisling, 318 Or. 62, agreed with OCA and rewrote the title. The attorney general's title pointed out that the measure would allow governments to pass anti-gay laws and would prohibit laws upholding gays' civil rights. The court found these concerns missed the measure's "main thrust." The court's ballot title asks whether the state constitution should be amended to "declare homosexuality wrongful sexual behavior, forbid laws establishing homosexuality as a protected status, [and] prohibit public spending promoting [or] approving homosexuality." The measure is a reworking of Measure 9, defeated by a margin of 56-44 percent in 1992. The principal differences are that the language condemning homosexuality is toned down and the new measure stops short of requiring that local governments actively discourage homosexuality. K.R. LESBIAN/GAY LEGAL NEWS Ohio and Illinois Appellate Courts Affirm Parental Rights of Lesbian Mothers After successive losses in the lesbian custody/visitation front in opinions handed down by appellate courts, we now have two wonderful successive victories. Each represents not just a victory for lesbian and gay parents, but, it seems, a shift in the way the courts have viewed the issue of maternal lesbianism. In the first, the Ohio Court of Appeals refused to overturn a trial court's award of sole residential custody of three children to their lesbian mother in the face of the father's assertion that the court "neglected to recognize traditional family values and standards which have been deviated from by appellee." In Large v. Large, 1993 WL 498127 (Ohio App., 10th Dist., Dec. 2), the court held that there was "no evidence indicating that appellee's sexual orientation has had any negative affect on the children." Given the father's negative feelings about the mother's sexual orientation, the trial court was concerned that he would not facilitate the children's involvement with their mother should he have residential custody. The court reiterated prior cases holding that a parent's sexual orientation was only one factor to consider, and "that the court is not required to find that the mother's lesbian relationship will have an adverse impact" on the child. Only conduct that actually has a harmful effect will justify a custody change. In one of those subtle but important language transitions, the court referred repeatedly to the mother's lesbian partner simply as her "significant other." More astonishingly, given the Illinois courts' generally negative attitude about gay and lesbian people, an Illinois Appellate Court overturned a trial court's restrictions on visitation by a lesbian mother, held that it was irrelevant that the mother lives with her lesbian partner, and stated that it was "disturbed by the judge's numerous homophobic comments." The court declared in Pleasant v. Pleasant, 1993 WL 504439 (Ill. App., 1st Dist., Dec. 8), that "[s]exual orientation is not relevant to a parent's visitation rights," and that to restrict or deny a parent's rightful visitation it must be shown that visits would actually endanger the child. The trial judge had ordered that the mother's visitation be supervised by heterosexual employees of the Dept. of Children and Family Services. According to the opinion, the trial judge had been obsessed with the mother's sleeping arrangements with her lover when the child was with them, and included in one of his findings that the mother "is a defiant and hostile admitted lesbian," a finding apparently premised on the mother's statement that she would not promise that she and her son would not socialize with other lesbians, since most of her friends were gay. The relative unimportance that the mother lived with her partner through most of the relevant time period is a big change for Illinois, given the Illinois Supreme Court's 1980 ruling taking custody away from a straight mother who lived with her boyfriend. Again, in another subtle change, the appellate court noted that nothing in the evidence indicated that the 8-year old boy was upset by the lesbian and gay pride parade to which his mother had taken him. "Instead," stated the court without further comment, "he greatly enjoyed himself." Happy New Year! P.L.E. Florida Appeal Court Upholds State Ban on Gays Adopting Children In Dep't. of Health and Rehab. Services v. Cox, 1993 WL 496042 (Fla. App., 2d Dist., Dec. 1), an appellate court has ruled on one of the challenges to the Florida law forbidding adoptions of children by "homosexuals, and it is bad news. All eleven judges on the en banc panel rejected, in a single opinion, each constitutional claim raised against the statute. In overturning a trial court decision that found the statute unconstitutional, the court started by chastising the plaintiffs' counsel for engaging in a "trial by photocopy" (meaning that they raised a facial constitutional challenge and presented no live factual or expert testimony), and discounted all of the expert materials and studies presented. The case was brought by a gay male couple who were denied the right to training and certification to be adoptive parents. The Anita Bryant-era statute says: "No person eligible to adopt under this statute may adopt if that person is a homosexual." The court rejected a vagueness argument, stating that HRS intends only to bar adoption "when it knows of current, voluntary homosexual activity," not those who engaged in gay sex in the past, "who merely have some degree of homosexual orientation," or who merely have a homosexual orientation. As to the couple's privacy claim, particularly where the couple voluntarily admitted they were gay, the court held that the statute does not constitute a governmental intrusion into their private lives. Inexplicably, although it is aware that the HRS application form asks whether the applicant is homosexual or bisexual, the court found that the statute does not mandate any specific inquiry into the applicant's background that would constitute an unwarranted inquiry concerning private matters. Nor does the law intrude into any zone of personal decisionmaking, since the decision to adopt is not a private decision. The court likewise rejected the parties' due process denial of liberty claim, citing to a 1987 New Hampshire Supreme Court advisory decision finding no constitutional flaws in a subsequently enacted anti-gay adoption law -- a case which was clearly a "trial by photocopy" as there was no factual record either -- and to Bowers v. Hardwick. In citing Hardwick, the court declined the ability to depart from the rule announced by the Supreme Court by resort to state constitutional law. Finally, the court held that the couple had neither established a valid claim to strict scrutiny nor that the statute fails the rational basis test, either of which would be required to win an equal protection challenge. In what might be interpreted as a punitive gesture, the court acknowledged that intermediate level scrutiny is available in certain contexts, but refused to use that standard of analysis since the trial court did not rely on it and the parties did not argue it. The state's articulated rational basis, as accepted by the court, is the statistical likelihood that most children placed for adoption will be heterosexual, that they will need parental guidance regarding relationships with the opposite sex at some point in their lives, and that because most parents impart this by telling their children of their own experiences with the opposite sex, gay and lesbian parents could not serve the children's interests in this important regard. In other words, it is reasonable for the state to presume that only heterosexuals are capable of guiding heterosexual adoptive children through the shoals of puberty to sexual maturity. (This, in the face of numerous published studies showing that children raised by gay parents are as well- adjusted psycho-sexually as children raised by non-gay parents.) This one may be headed for the Florida Supreme Court. P.L.E. Same Gender Harassment Suit Upheld in California The California Court of Appeal, 2nd District, held Dec. 10 that same gender sexual harassment may provide a cause of action under the Fair Employment and Housing Code, sec. 12940(h), disagreeing with a prior California precedent. Mogilefsky v. Superior Court, 1993 WL 505524. Wayne Mogilefsky alleged he was subjected to sexual harassment and discrimination by Michael Levy, his supervisor during the course of his employment as creative editor for co-defendants Silver Pictures, Warner Brothers and Joel Silver. Mogilefsky claimed that Levy twice demanded he stay overnight in Levy's hotel suite, informing Mogilefsky that he would receive more money if he cooperated, ordered Mogilefsky to play a pornographic film on the VCR, made lewd and lascivious comments about the film, and asked Mogilefsky how much he would charge to perform similar acts. On another occasion, Levy allegedly referred to Mogilefsky in a degrading manner, and, at one point, woke Mogilefsky, requested him to undress, and told him he wanted to sleep next to him. Mogilefsky went to Levy's hotel suite the second time because other employees told him that a male employee had been fired for refusing Levy's demands. Levy demurred, asserting contradictory facts and arguing that Mogilefsky had not stated a cause of action. The other defendants also demurred, contending that sexually suggestive remarks by one male to another with no physical contact did not constitute an unfair employment practice. The trial court granted the defendants' motions. The court of appeal opinion by Judge Woods noted that sec. 12940 expressly prohibits both sex discrimination and sexual harassment. The distinction is that sex discrimination in compensation or in terms, conditions or privileges must be alleged, whereas an employee alleging a violation of subdivision (h) (sexual harassment) need not allege loss of tangible job benefits. Mogilefsky advanced two sexual harassment claims: quid pro quo, alleging that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor's unwelcome sexual advances, or hostile work environment, which does not require allegations of sexual advances. The court described a prior case, Hart v. National Mortgage & Land Co., 189 Cal.App.3d 1420 (1987), which held that sec. 12940 did not apply as between members of the same sex, as "of questionable value as a legal precedent." The court found no basis in the statutory language for defendants' contention that the legislature intended to limit coverage to male-female harassment, citing decisions by the Fair Employment and Housing Commission and similar decisions under Title VII of the Civil Rights Act of 1964. The court rejected defendants' "remarkable" argument that the legislature did not intend to protect members of the empowered majority (men) from one another, holding that Mogilefsky alleged harassment "because of sex," and that "such behavior in California is entitled to the protection provided by Government Code sec. 12940." Finally, the court rejected defendant's policy arguments that (1) freeing everyone from sexual remarks and conduct would violate the 1st Amendment right of free speech; and (2) allowing a cause of action for same gender sexual harassment will make an inquiry into the sexual orientation of the male supervisor a necessity. The matter was sent back to the trial court. B.M. Boston Judge Rules Gay Irish Can Join Parade Justice J. Harold Flannery of the Suffolk County, Massachusetts, Superior Court ruled Dec. 15 that an organization of lesbian, gay and bisexual Irish-Americans is entitled to march in the St. Patrick's/Evacuation Day Parade on March 17 on the same basis as other groups. Irish-American Gay, Lesbian and Bisexual Group of Boston v. City of Boston, No. 92-1518. Flannery found that this case presented a distinctly different set of issues from the New York City dispute over participation of the Irish Lesbian and Gay Organization in the St. Patrick's Day parade administered by the Ancient Order of Hibernians. (See 814 F.Supp. 358 (S.D.N.Y. 1993), holding that ILGO was not entitled to march.) In Boston, the March 17 parade is a combined commemoration of St. Patrick's Day and Evacuation Day, a patriotic celebration of the withdrawal of occupying British troops from Boston during the Revolutionary War. In contrast to New York's parade, which is purely a St. Patrick's Day observance run by an Irish-Catholic organization, the Boston parade was originally run by the city as a patriotic commemoration; earlier in this century, the city delegated to the South Boston Allied War Veterans Council the administrative task of running the parade, which, due to the coincidence of dates, also became identified as a St. Patrick's Day observance. Flannery found that the parade had traditionally been open non- selectively to a wide range of groups, and apart from its celebratory nature did not have any ideological component. Analyzing the issues under the Massachusetts Law Against Discrimination, which forbids discrimination in places of public accommodation on the basis of sexual orientation, Flannery found that the Boston parade is a place of public accommodation, inasmuch as it takes place on the city streets and is generally open to members of the public on a non-selective basis. However, Flannery concluded that the city had so far distanced itself from the running of the parade that the parade organizers' determination to exclude the gay group was not "state action." Consequently, the plaintiffs' rights to participate were determined solely on the basis of the public accommodations statute, and constitutional claims were dismissed. Flannery also had to deal with the argument on which ILGO lost its New York case: that ordering the parade organizers to let a gay group march would violate 1st Amendment rights of the organizers. Flannery found this argument unavailing, finding that claims to a right of expressive association on the part of the organizers were weakened by the non-selectivity of parade participation, the lack of a strong ideological component to the parade that would be harmed in any way by the inclusion of gay people, and the strong public policy interest in preventing sexual orientation discrimination in public accommodations. The Irish-American gay group was represented by Boston attorneys Philip M. Cronin, Elsie Kappler, Gretchen Van Ness and John Ward with Gay and Lesbian Advocates and Defenders. An appeal by the South Boston Allied Veterans Council seems likely. A.S.L. Transsexual Railroad Worker Loses Discrimination Case A federal court ruled that a transsexual may not state a claim for sex discrimination under Title VII of the Civil Rights Act and, in a case of first impression, that the plaintiff could not state a claim for sex or disability discrimination under the Pennsylvania Human Rights Act. Dobre v. National Railroad Passenger Corp., 1993 WL 498217 (E.D.Pa., Dec. 1) (not officially published). Andria Dobre presented herself as a man when hired by AMTRAK, but subsequently informed her supervisors that she was receiving hormone treatments to begin sex-reassignment. She was told that she would need a doctor's note if she wanted to dress as a woman on the job and that she could not use the women's restroom. Her supervisors refused to refer to her by her female name and moved her desk out of public view. She filed suit charging sex and disability discrimination. Judge Hutton found substantial precedent that Dobre had not stated a Title VII claim, observing that "the acts of discrimination alleged by the plaintiff were not due to stereotypical concepts about a woman's ability to perform a job nor were they due to a condition common to women alone. If the plaintiff was discriminated against at all, it was because she was perceived as a male who wanted to become a female." Turning to state law, Hutton found no basis in Pennsylvania precedent to treat the sex discrimination provision in the state law as any broader than the federal law. Hutton found no Pennsylvania cases deciding whether transsexualism is a physical or mental impairment under Pennsylvania law, but noted Sommers v. Iowa Civil Rights Commission, 47 FEP Cases (BNA) 1217 (Iowa 1983), which rejected a claim by an Iowa transsexual for disability discrimination. Hutton asserted that "the fact that transsexualism is a diagnosable condition does not necessarily lead to the conclusion that it is an `impairment'. . ." The judge noted that the Americans With Disabilities Act and concurrent amendments to the federal Rehabilitation Act specifically excluded transsexuals from the definition of persons with disabilities. And, the Pennsylvania Supreme Court, in Civil Service Commission v. Pennsylvania Human Relations Commission, 591 A.2d 281 (1991), narrowly construed the category of "perceived handicap" under Pennsylvania law in such a way as to preclude its application in this case. Consequently, Hutton dismissed the case. A.S.L. NY Off-Duty Conduct Law May Apply to Dating New York Labor Law sec. 201-d may protect employees and job applicants from discrimination on the basis of their off-duty, lawful dating activities, according to Justice Robert P. Best, New York Supreme Court, Fulton County, in State v. Wal-Mart Stores, Inc., No. 80737/93 (Dec. 16). Denying in part a motion to dismiss, Best held that the State may have stated a valid claim against Wal-Mart, which discharged Laural Allen and Samuel Johnson for maintaining a dating relationship while Allen was separated and living apart from her husband. At the time, Wal- Mart had a policy of dismissing any employees who had "a dating relationship between a married associate and another associate other than his or her own spouse. . ." The statute makes it unlawful for employers to refuse to hire, employ or license, or to discharge or discriminate against employees because of, inter alia, "an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property. . ." The statute defines recreational activities to mean "any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material." Wal-Mart claimed that its policy concerned social rather than recreational activities. The court disagreed: "The question must be whether the conduct engaged in by Allen and Johnson was `leisure time activity' as defined in sec. 201-d. Each of them, Allen and Johnson, have a right under the statute to engage in the leisure time activities permitted, including sports, games, hobbies, etc. The fact that they did do it together does not vitiate their rights under the law." The court dismissed as moot a claim attacking the policy on its face, finding that Wal-Mart had since changed its policy. However, Wal-Mart's new policy was also attacked in the amended complaint, and Best held that further argument would be necessary on this claim. Thus, the matter was set for trial on the claim that the discharges of Allen and Johnson violated the statute, and summary judgment consideration on whether Wal-Mart's new policy violates the statute on its face. Off-duty conduct laws of this type are the result of heavy lobbying by the tobacco industry to protect smokers from workplace discrimination, but due to their broad wording might be stretched to be quasi-gay rights laws in those states that do not outlaw consensual gay sex. It was reported during 1993 that a gay man in Colorado won significant damages in a suit brought under an off-duty conduct law for unlawful employment discharge. The State is represented by Assistant Attorney General James M. Williams, who also happens to be President of the Lesbian and Gay Law Association of Greater New York. A.S.L. Federal Judge Sustains Conviction in S/M Murder U.S. District Judge Peter Leisure upheld the conviction of William Jett for the murder of Earl Quidley, who died in the course of having sex with Jett. Jett v. Mitchell, 1993 WL 478395 (S.D.N.Y., Nov. 15). The murder took place in the context of an S/M encounter, with which the opinion deals obliquely. It is impossible to know if the decision gives the whole story, and difficult to interpret the story we are told. On one level, the case vindicates the violence done Earl Quidley. On another, it reminds us of the ways the criminal justice system dehumanizes defendants who travel through it. Jett argued his confession should have been suppressed because he did not fully understand his Miranda warnings and because police questioning was coercive. Although Jett argued that he misunderstood that his right to an attorney was dependent on a showing of indigence, and that he did not understand that he could have an attorney during police questioning, the court found that the warnings "reasonably conveyed" to Jett his constitutional rights. Turning to whether the confession was coerced, the court discounted several factors which weighed in Jett's favor: the police detained Jett for three hours before questioning him; the interrogation lasted another hour and a half; one of the two police officers opined that gays were "sick and deviate" and offered to help Jett in return for a confession; Jett feared physical violence from his questioners. But the court found that Jett voluntarily waived his constitutional rights because of his "familiarity with the criminal process and some education," and because there was neither actual violence nor overt threats of violence. Jett also argued that the evidence was insufficient to support a conviction for second degree murder and that the conviction should be reduced to criminally negligent homicide or second degree manslaughter. Jett's statements to the police were the main evidence against him at trial. During the course of a sexual encounter, Jett said, Quidley asked him to put a belt around his neck and tighten it. Jett felt repulsed by the acts in which Quidley wanted to engage. Quidley threatened to return Jett to the shelter (where Jett was apparently living) unless he participated. Jett confessed to feeling anger toward Quidley and wanting to kill him. This evidence, the court found, sufficiently established that Jett, under circumstances evincing a depraved indifference to human life, recklessly created a grave risk of death to Quidley and thereby caused the death of Quidley. D.W. New York High Court Upholds Tenant Succession Regulations; Lower Courts Grapple With Application of Regs The New York Court of Appeals unanimously voted to sustain regulations adopted by the State Division of Housing and Community Renewal that allow domestic partners of tenants in rent stabilized apartments to be treated the same as spouses if the named tenants vacate the apartments by leaving or dying. Rent Stabilization Association v. Higgins, 1993 WL 524208 (Dec. 21). (One judge who sat on the case while in the Appellate Division recused himself.) In an opinion by Chief Judge Judith Kaye, the court held that the Division acted within the scope of its regulatory authority by deciding to extend the court's 1989 ruling in Braschi v. Stahl Associates Co., 74 N.Y.2d 201, from the smaller rent control system to the much broader rent stabilization system (which affects about ten times as many apartments). Braschi was the revolutionary case in which the Court of Appeals became the first appellate court in the nation to extend formal recognition to lesbian and gay couples as members of each other's family. In addition to challenging the Division's authority to issue the regulation, the landlord group that brought suit also claimed that the regulation constituted an unconstitutional "taking" of their property without due process of law. The court rejected this, noting that the landlords had never challenged a prior regulation that granted lease succession rights to spouses and that the new regulation was really just more of the same in terms of its effects on the landlords' property rights. Observing that the regulation still allows landlords to evict tenants who don't pay the rent or refuse to comply with other lease terms, and to remove the property entirely from the rental market for other uses, the court concluded that no "taking" had occurred. * * * Ruling on a claim that John Randall should be considered a family member of Marcia Wallace, with whom he lived in a rent stabilized apartment for ten years, N.Y.C. Civil Court Judge Jack Dubinsky took a restrictive view of tenant succession regulations and denied Randall's claim. Eberhart v. Randall, NYLJ, 12/1/93, p. 23, col. 1 (Civ. Ct., N.Y. Co., Housing Part). Randall testified that he and Wallace shared the same bed, jointly contributed to expenses, and held themselves out as a couple to friends and family. Several of Randall's family members and friends also testified that Randall and Wallace presented themselves as a couple. However, they did not establish a joint bank account, and there was no evidence of any other formal documents, such as wills, powers of attorney, or insurance beneficiary designations, and no testimony by Wallace, the named tenant on the lease, who had moved out of the apartment and formally surrendered her leasehold to the landlord. Dubinsky's opinion recites a detailed, neutral-sounding summary of the evidence, and then concludes: "In the totality of the circumstances presented, respondent failed to sustain his burden of proof that he was a family member of Marcia Wallace" within the regulatory definition. The regulation lists a variety of factors to be considered, but states that "no single fact shall be solely determinative." Dubinsky's opinion, without explanation or analysis, appears to elevate the more formal types of proof over the less formal, impressionistic factors listed in the regulation. * * * Judge Ellis Sheila Franke of Queens County, New York, Civil Court, found that a female same-sex couple counted as family members under rent control regulations in O'Malley v. Silva, NYLJ, 12/15/93, p. 25. Phyllis Ammirati was the tenant of record in the rent-controlled apartment when the building converted to a cooperative in 1983. She chose not to buy under the non-eviction plan. Her partner, the respondent Silva, had been living with her in the apartment since 1975. In 1985, an investor, O'Malley, bought the shares for the apartment. He visited the apartment in 1986; Silva was present, and O'Malley claims she was introduced as Ammirati's friend who was just visiting. Ammirati died in 1991, and O'Malley tried to evict Silva. Judge Franke stated that there "was substantial credible testimony that Ms. Silva and Ms. Ammirati had an exclusive, intimate, loving family relationship from 1975 to the date of Ms. Ammirati's death in 1991; that Ms. Silva had lived continuously and exclusively in the subject apartment with Ms. Ammirati during that entire sixteen year period; that they spent holidays together; that they attended family parties, picnics, celebrations, visits with each other's relatives and children; and that ultimately they shared illness and tragedy. Each was responsible for the other's health care and medical decisions in case of emergency." A cousin of Silva testified about the nature of the relationship. The women had pooled their income in joint accounts and designated each other beneficiaries in their wills. The court concluded this was an easy case for succession rights under Braschi v. Stahl Associates, 74 N.Y.2d 201 (1989). A.S.L. Defense Department Issues New Regs; Government Appeals Steffan Decision The Pentagon announced a new regulation on military service by gays Dec. 22, to become effective Feb. 5, 1994. The new regulation, implementing the "don't ask, don't tell, don't pursue" policy announced in July and enacted in different form by Congress, provides that service members will not be questioned about their sexual orientation, but mandates discharge for any member who is both gay and engages in "homosexual" conduct, which in the eyes of the Pentagon includes holding hands with another member of the same sex but does not include marching in gay rights parades or visiting gay bars. (Military logic is to logic as military music is to music. . .) According to Defense Department General Counsel Jamie Gorelick, the rule lets gays "stay off the radar screen" and avoid discharge by keeping quiet about their sexual orientation. If a member's orientation comes to the official notice of a commanding officer, the member can remain in the military by "proving" a negative -- i.e., that he or she is not engaging in homosexual conduct -- thus turning on its head the standard evidentiary burdens. And lawyers negotiated this "compromise." Go figure. . . * * * The Clinton Administration announced Dec. 29 it would file a motion with the D.C. Circuit Court of Appeals for en banc review in Steffan v. Aspin, 8 F.3d 57 (Nov. 16), in which the three Democratic appointees on the court held that regulations under which Joe Steffan was forced to resign from the Naval Academy after admitting he is gay lacked any rational basis and were unconstitutional. According to press reports, the Justice Department does not plan to tackle the court's reasoning head-on, but rather to urge the circuit to find that the panel exceeded its authority by ordering the Navy to award Steffan his officer's commission. There was heavy debate between the Pentagon and the Justice Department over what to do with the case, since the court had refrained from any comments over the validity of the "don't ask, don't tell" policy. A.S.L. Domestic Partnership News Municipal legislators in Los Angeles and Baltimore voted to extend employee benefits to domestic partners of city employees. Under the Dec. 15 vote by the Baltimore Board of Estimate, partners must be registered with the city by September 1994 in order to be eligible when the plan goes into effect Jan. 1, 1995. The Los Angeles Council vote Nov. 23 was followed by speculation that Mayor Riordan might veto the measure on financial grounds. Domestic partners of Los Angeles city employees already enjoy certain non-economic benefits under prior city council actions. * * * The New York University administration circulated a memorandum Dec. 2 describing the university's domestic partnership policy, which covers unionized employees as part of a new collective agreement with the United Staff Association and non-union employees by voluntary university action. The policy covers only same-sex domestic partners, and includes health insurance, university housing eligibility, use of university facilities (including gym and library), family tuition remission, and all leave policies. Insurance coverage will go into effect Feb. 1, 1994. * * * The trustees of the University of Pennsylvania voted Dec. 10 to extend health, tuition and other benefits eligibility to same-sex domestic partners of university employees on the same basis as spouses, according to BNA's Daily Labor Report (No. 241, 12/17). A task force that evaluated feasibility projected no significant impact on benefit costs. Pending agreements with the university's insurance carriers, it is expected that the plan will go into effect with the annual open enrollment period in April, with benefits effective in May 1994. * * * We reported that Williamson County, Texas, commissioners voted to deny tax breaks to a new facility being planned by Apple Computer due to opposition to Apple's domestic partnership policy. After a major uproar locally, the swing voter on the five-member commission changed his mind and devised a face-saving strategy of a different tax rebate program that would be of the same value to Apple but give the commissioner "political cover" to say (incredibly) that tax money would not be used to subsidize gay couples. The new proposal passed, and Apple said it would go forward with its plans for the operation. A.S.L. Miscellaneous Lesbian & Gay Litigation Notes In People v. Baker, 1993 WL 518655 (Cal.App., 4th Dist., Dec. 15), the court upheld California's hate crimes penalty enhancement law against a constitutional attack. The California Supreme Court is considering a similar attack on the statute in a pending appeal. A.S.L. * * * Overlooked Opinions, Inc., a gay polling organization, planned to conduct a poll during the 1993 National March on Washington. It contracted with firms in the District of Columbia to handle distribution of survey materials. According to Overlooked Opinions, the defendants breached their contracts by engaging in a skimpy effort that resulted in distribution of only a small percentage of the forms. Overlooked filed a diversity action in the U.S. District Court in Chicago. The defendants moved to transfer venue to the District of Columbia. The plaintiff noted that its witnesses came from all over the U.S., making Chicago a conveniently central venue for trial. Furthermore, the plaintiff, headquartered in Chicago, argued that transfer to Washington would "virtually shut it down for the length of the trial." On the other hand, defendants argued that all of their staff people and workers who would be called as witnesses lived in or near the District of Columbia, the locus of the dispute, and pointed out that Overlooked had nine employees, only two of whom were expected to testify. District Judge Nordberg ruled that the case should be transferred to Washington, noting that D.C. was the jurisdiction whose law would apply to the dispute, performance of the contract was to take place there, and most of the witnesses would come from there. Overlooked Opinions, Inc. v. ADIA Services, Inc., 1993 WL 498350 (N.D.Ill, Nov. 30) (not officially published). A.S.L. * * * John Zebrowski was convicted of murder in the second degree for the death of Kenneth Tuczynski. Zebrowski met Tuczynski at a gay bar and went to the latter's apartment when the bar closed. Tuczynski was later found naked and dead on his bedroom floor -- the victim of at least nine hammer blows to the head. Zebrowski stole Tuczynski's VCR and sold it to purchase cocaine. At trial, several witnesses testified about their knowledge of the events that night. There were many inconsistencies in the testimony, but Zebrowski's claim was that he acted in self-defense when Tuczynski attempted to sodomize him. Among various objections Zebrowski raised on appeal was an objection to the defense calling the case a "gay-bashing" during its summation. However, because evidence had been presented that Tuczynski was a frequent customer of the gay bar where he and defendant met, that defendant had been to the bar before, and that defendant testified he had acted in self-defense when Tuczynski attempted forcefully to sodomize him, the court concluded that the remark was not so inflammatory as to be unduly prejudicial to defendant. The conviction was affirmed. State v. Zebrowski, 1993 WL 485906 (N.Y.A.D. 3rd Dep't., Nov. 24) A.T. Law & Society Notes On Nov. 24, the federal Office of Personnel Management (OPM) became the first federal agency to extend formal recognition to a gay, lesbian and bisexual employee organization, in a letter from the Office's Director, James King, to OPM employees. The letter stated that OPM has added sexual orientation to its non- discrimination policy. Early in December, U.S. Rep. Barney Frank (D.-Mass.) issued a press release indicating that the Clinton Administration had decided not to issue a presidential executive order banning anti-gay discrimination, but rather to request that the heads of each federal department or agency adopt their own gay-affirmative anti-discrimination policy, as a few departments in addition to OPM already have done. (See related items below on the Justice Department and FBI, and the Department of Health and Human Services). The Administration's strategy was to avoid a direct confrontation with Congress, which it was feared a presidential executive order might provoke. Frank expressed his expectation that the policies would extend to a reform of the security clearance process to remove the use of consensual gay sex as a disqualifying factor. * * * California judges voted in a mail ballot to reject a proposal to amend their ethical code to require judges to refrain from joining clubs or organizations that discriminate on the basis of sexual orientation. According to San Francisco's Daily Journal (Nov. 23), the vote was 745-415, and a main point of argument against the proposal was that it could require judges to drop affiliations with the Boy Scouts of America, which adamantly sticks to its discriminatory policy. * * * The U.S. Department of Justice and the Federal Bureau of Investigation (an agency of DOJ) have announced new policies with respect to homosexuality. The FBI announced that it was adding "sexual orientation" to its official non-discrimination policy and would no longer discriminate against lesbians and gay men in hiring. We're not holding our breath on this one. The Justice Department indicated it will no longer treat homosexuality as a reason for special investigation in granting security clearances to employees or applicants, stating that "no inference concerning susceptibility to coercion may be raised solely on the basis of race, color, religion, sex, national origin, disability, or sexual orientation of the applicant or employee." Shortly after these announcements, the government announced Dec. 11 that a settlement had been negotiated in Frank Buttino's discrimination suit against the FBI; under the settlement, Buttino will receive damages but not reinstatement, the Bureau will adopt a written policy against anti-gay discrimination that will not disqualify applicants or agents based on their off-duty, consensual sexual conduct, and a lesbian applicant from San Francisco who had been turned down for employment will be hired. The settlement is subject to court approval, since it came just as the trial of the case was beginning. * * * U.S. Secretary of Health and Human Services Donna Shalala issued a policy statement in December banning sexual orientation discrimination in her department, and authorizing departmental equal opportunity officers to process complaints of sexual orientation discrimination, according to a Dec. 17 report in The Washington Blade. * * * Massachusetts is apparently the first state to pass a law specifically outlawing discrimination against gay and lesbian students in the public schools. The law, which passed after earnest lobbying by high school students, was signed by Governor William Weld on Dec. 10. Weld had appointed a Task Force to study the situation facing lesbian and gay youth, and supported the Task Force's recommendation to enact such a law, which was in the form of an amendment to existing rules forbidding race, color, sex, religious, and national origin discrimination. According to the Boston Globe, the Catholic League for Religious and Civil Rights condemned the law, claiming that it was intended to advance "homosexual ideology and empowerment." Right on! * * * The National Gay and Lesbian Task Force Policy Institute announced preliminary results from a survey of the Fortune 1000 (1000 largest U.S. corporations) on gay rights and AIDS issues. 243 chief executive officers responded to the Task Force's survey, but only 98 agreed to participate in the survey. Of those 98, 71 stated that sexual orientation is included in their company's non-discrimination policy. Only five of the responding companies give domestic partnership benefits, 21 percent recognize lesbian/gay employee groups, and 71 percent provide AIDS education and/or special AIDS awareness training for employees or managers. The Task Force expects to issue a formal report on the survey next spring, according to BNA's Daily Labor Report (No. 242, Dec. 20). * * * In an important affirmance of constitutional protection for the privacy and liberty interests of pregnant women, the Illinois courts upheld the right of a woman nearing the end of pregnancy to refuse a Caesarian section, which doctors said was necessary to save her fetus from likely death or severe brain damage on delivery. The woman determined to refuse the procedure on religious grounds. Cook County, Illinois, Public Guardian Patrick T. Murphy brought an action in the interest of the fetus to have a court order the woman to submit to the procedure, but the Illinois courts upheld her refusal and the U.S. Supreme Court denied an emergency petition to intervene. The case of the anonymous woman received nationwide media exposure during the second week of December. * * * In Dec. 14 balloting, voters in Canby, Oregon, removed two city council members who opposed an anti-gay rights measure passed by voters last spring. Joe Driggers and Maureen Miltenberg were each removed by a margin of about 350 votes out of less than 3,000 votes cast. The two had joined a lawsuit attempting to block the anti-gay measure. The next day, Jackson Country, Oregon, Circuit Judge L.L. Sawyer issued an injunction blocking the effectuation of Ballot Measure 15-1, approved by 59% of the voters in Jackson County on Sept. 21. Measure 15-1 would have banned the county from enacting or enforcing any policy of protecting gay people from discrimination. The judge found Measure 15-1 in violation of a state law passed over the summer. A similar ballot measure in Josephine County was invalidated earlier, according to the San Francisco Sentinel. * * * The United Way of Greater New Haven, Conn., voted to discontinue funding agencies that discriminate on the basis of sexual orientation, effective with its 1995 funding year. The stimulus was discrimination by the local Boy Scouts of America council against a gay volunteer scout leader. United Way is a major funder of scout troops. A.S.L. International Notes The constitution agreed upon by the South African government and the African National Congress has a non-discrimination provision that includes "sexual orientation." * * * New South Wales, Australia's most populous state, passed a gay rights law Nov. 17, according to the Washington Blade. * * * On Dec. 12, the National Labor Court in Israel affirmed a trial court's ruling that El Al Airlines must treat the domestic partner of Jonathan Danilowitz, a gay flight attendant, as equivalent to a spouse with respect to the airline's practice of providing one free flight a year for the spouses of employees. The court based its ruling on a law forbidding sexual orientation discrimination in employment, according to the Jerusalem Post. However, the court rejected an alternative argument that gay couples be considered common law spouses, according to Dan Yakir, Legal Director of the Tel Aviv Chapter of the Association for Civil Rights in Israel, who sent us the Post clipping. * * * According to press reports, the U.S. State Department has backed down from its threat to have the International Lesbian and Gay Association's UN status revoked due to NAMBLA's membership in ILGA. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS Will HIV-Infected Physicians Be Barred From Invasive Procedures by Tort Law Developments? A Dec. 14 decision by the Court of Appeals of Minnesota in K.A.C. v. Benson, 1993 WL 515825, adds fuel to the fire generated by Maryland's highest court in Faya v. Almaraz, 620 A.2d 327 (1993) and the California Court of Appeal in Kerins v. Hartley, 21 Cal. Rptr. 2d 621 (1993), all three courts upholding tort actions by non-HIV-infected patients against HIV-infected physicians who performed "invasive procedures" without disclosing their HIV- status. Meanwhile, the California Supreme Court granted review in Kerins on Oct. 28; in California, a grant of review has the effect of vacating the Court of Appeal decision, which thus has no precedential effect. This body of appellate decisions proceeds on the theory that a patient who learns that his or her physician was HIV-infected at the time of treatment may have a cause of action for intentional or negligent infliction of emotional distress (depending upon the circumstances), at least from the time they gain such knowledge until such time that they can receive a firm assurance that they are not themselves infected. These cases also support the theory that if the physician fails to disclose his or her HIV status upon the request of the patient prior to performance of the medical procedure, then the procedure has been performed without informed consent, subjecting the physician to potential liability for battery. The Minnesota court of appeals in K.A.C. also held that plaintiffs stated a potential claim for negligent non- disclosure and consumer fraud. The Minnesota case was complicated by bad facts, as the defendant, Dr. Philip D. Benson, a gynecologist who is apparently still practicing and eventually disclosed his HIV-status to patients in a letter, developed "oozing sores on his hands and arms" while continuing to perform gynecological examinations. There was a dispute as to whether the Minnesota Board of Medical Examiners instructed him not to perform gynecological exams, even while wearing gloves, under these circumstances. The court of appeals held that if he was directly disobeying the instructions of the Board, he could be sued for intentional infliction of emotional distress. This developing trend seems certain to alarm medical malpractice insurers, who might be moved to demand HIV testing of health care workers who perform invasive procedures (as broadly defined by the Centers for Disease Control and Prevention) before the insurers will be willing to write malpractice policies, particularly if these cases eventuate in significant damage awards. Although there continues to be a lack of scientific proof of any tangible risk of HIV transmission from physicians to patients during surgery or gynecological examinations, liability based on fear is becoming popular. Perhaps a more sober evaluation by the California Supreme Court in Kerins will stem the tide. A.S.L. 3rd Circuit Revives Disability Benefits Case In a unanimous decision Dec. 15, the U.S. Court of Appeals for the 3rd Circuit revived a suit by several persons with HIV- infection against the Social Security Administration (SSA), concerning the way SSA determines applications for disability benefits. Rosetti v. Shalala, 1993 WL 515675. The case was dismissed by the district court on a variety of non-substantive grounds, including mootness. The court of appeals determined that the trial court has jurisdiction to determine whether to certify a class action, and, if such certification occurs, to consider whether any class members have live claims sufficient to support adjudication on the merits. Eligibility for Social Security Disability benefits is determined by evaluating the claimant's impairments against a list of qualifying impairments. When SSA began to receive disability claims from PWAs in the early 1980s, many of their impairments were not on the list. SSA issued informal guidelines beginning in 1983 to instruct local offices on how to deal with AIDS- related claims. By the late 1980s, the varieties of HIV-related claims were expanding, but SSA internal guidelines were lagging behind. According to the complaint filed by several HIV-infected persons whose claims had been denied, SSA relied on early studies by the CDC that focused on HIV-related impairments in white, middle-class gay men; as a result, the guidelines failed to take account of impairments that affect HIV-infected women, children, IV-drug users and people of color. The plaintiffs sought certification of a class of all HIV-infected persons within the 3rd Circuit, a declaration that SSA's guidelines were adopted in violation of the Administrative Procedure Act's notice and comment requirements (which would, they allege, have ameliorated the problem by confronting SSA with evidence of other HIV-related impairments), an order that SSA adopt formal regulations following APA procedures, and an order that plaintiffs be granted benefits to which they were entitled. While the plaintiffs' motion for class certification was pending, SSA judges granted appeals awarding them benefits, and SSA commenced formal rule- making proceedings (undoubtedly spurred, in part, by the pendency of this case). SSA moved to dismiss the case as moot. The trial judge found that the named class members no longer had a personal stake, since they obtained the benefits they sought, and dismissed the case for failure to state a claim, asserting that SSA's commencement of rulemaking gave the plaintiffs the relief they sought. The court of appeals held that the district court misconstrued 3rd Circuit precedents on an intricate point of federal procedure: A plaintiff who is seeking class certification retains standing to obtain a determination of the appropriateness of class certification even after his or her individual claim becomes moot. Once the district judge decided that the plaintiff's claims were moot, he lacked jurisdiction to make any other decisions in the case until after determining the claim for class certification; consequently, the decision dismissing the case was beyond the jurisdiction of the district court. Furthermore, deciding whether to certify a class is not a meaningless exercise, because after class certification it may be that there are many class members who would still have a claim for benefits denied under the old guidelines before the new regulations went into effect, so the district court would have to determine whether those guidelines were adopted in violation of the APA and whether to order SSA to reconsider those denied claims using the newer regulatory standards (which do take account of some HIV-related impairments affecting a broader population). This opinion will make fascinating reading for federal jurisdiction mavens. More importantly, it holds out the promise of important financial relief for HIV-infected people who may have been wrongly denied disability benefits (or, through their estates, to their surviving heirs). A.S.L. Life Imitates Art Imitating Life On Dec. 22, the first major film studio release on AIDS discrimination, Philadelphia, opened in several cities. The film is partly inspired by Cain v. Hyatt, 734 F.Supp. 671 (E.D.Pa. 1990), in which a federal court awarded damages under a state disability discrimination law to an attorney with AIDS who was discharged from employment. The Philadelphia setting of Cain gave the film its setting and title, although the dramatic setting was drastically modified. Ironically, as the film was receiving its pre-release publicity, an attorney with AIDS in Philadelphia was suing the firm of Kohn, Nast & Graf, P.C., alleging he had been discharged in violation of the Americans With Disabilities Act, in a case that more closely resembles the film plot than Cain. The coincidence did not escape the press: The Philadelphia Inquirer ran a lengthy article Nov. 16, and there was full-page treatment in the National Law Journal on Dec. 20. Doe v. Kohn, Nast & Graf P.C., No. 93-CV-4510, is pending in the U.S. District Court for the Eastern District of Pennsylvania. The parties have come to blows over the defendants' objection to the plaintiff proceeding anonymously; the defendants twice used the plaintiff's name in papers submitted to the court, but U.S. District Judge Robert S. Gawthrop 3d warned them that if it happened again "sanctions will rain so hard as to make Noah look as though he was on the Sahara," according to the Inquirer. Stay tuned for developments. Might this trial be a candidate for Court TV (which Doe suitably obscured by the camera)? A.S.L. Court Denies Request for Discovery of HIV-Status in Products Liability Case U.S. District Judge Bowler (D. Mass.) denied requests by products liability defendants to discover the HIV status of the plaintiff in a case where future earnings damages were at stake. Sacramona v. Bridgestone/Firestone, Inc., 1993 WL 522831 (Dec. 3). Plaintiff Robert Sacramona was injured in an explosion while mounting a tire manufactured by one defendant on a rim manufactured by another defendant. In the products liability litigation, plaintiff claims lost future earnings as an element of damages. During discovery, defendants learned that the plaintiff is a former drug abuser and a bisexual who admitted engaging in unprotected homosexual activity. Although Sacramona's doctor urged him to take an HIV test, he refused to do so. Defendants moved to compel Sacramona to take the test and disclose the result as data relevant to his claim for lost future earnings; in the alternative, they moved that he be precluded from offering evidence at trial of his life expectancy or future earnings. Judge Bowler denied the defendants' motion. While noting that broad discovery of relevant information is normally allowed under Federal Rule of Civil Procedure 26, and physical exams are specifically authorized under Rule 35(a) when a party puts his or her physical condition in issue, the rule puts the burden of showing "good cause" to justify such an intrusive discovery demand on the defendants. Said Bowler, "The relevance of the results from a compelled blood test to plaintiff's cause of action is too attenuated. In essence, defendants are asking this court to take extraordinary measures because plaintiff's admitted lifestyle is relevant to the possibility that plaintiff might be infected with AIDS, which is relevant to plaintiff's life expectancy, which is relevant to future damages in plaintiff's underlying cause of action. Defendants essentially seek to engage in `wholly exploratory operations in the vague hope that something helpful will turn up.' See Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179 (1st Cir. 1989). As such, the information defendants seek, which is not yet in existence, is not relevant under Rule 26 and this court exercises its discretion to limit defendants' discovery." Bowler specifically declined to follow the precedent of Pettyjohn v. Goodyear Tire and Rubber Co., 1992 WL 105162 (E.D.Pa. 1992), a similar case where an HIV test of the plaintiff was ordered, noting that in a recent unpublished decision, another Massachusetts district judge had denied a similar discovery request. This opinion is scheduled for publication in Federal Rules Decisions. A.S.L. HIV Employment & Benefits Litigation Updates Labor Arbitrator Don J. Harr ruled in Ogden Allied Plant Maintenance Co., 101 Lab. Arb. (BNA) 467 (1993), that he was without authority to order an employer to create a "light duty" job to accommodate an employee who sustained a mildly disabling on-the-job injury. Harr rejected the argument that he had authority derived from the Americans With Disabilities Act, relying on established labor arbitration precedents that an arbitrator's authority is limited to enforcing the collective bargaining agreement. Evidently, the agreement in question did not incorporate federal or state civil rights laws by reference. There is a minority view among labor arbitrators that they do have such authority. A.S.L. * * * On Dec. 21, U.S. District Judge Richard H. Kyle approved a consent decree in Estate of Kadinger v. International Brotherhood of Electrical Workers Local 110, No. CIV 3-93-159 (D.Minn.), under which the defendant union's health plan will remove a $50,000 lifetime cap on AIDS-related benefits and pay $100,000 to the estate of a union member, Mark Kadinger, who died from AIDS. The action was brought under the Americans With Disabilities Act. The union plan claimed it was not subject to the employment provisions of ADA, but apparently decided to settle in light of the EEOC's announced position that AIDS caps are not actuarially justified. As part of the settlement, the union must provide educational seminars on ADA requirements for all fund trustees, and donate $2,000 in Kadinger's memory to the Minnesota AIDS Project, according to BNA's Daily Labor Report (No. 244, 12/22/93). A.S.L. * * * In County of Fauquier Emergency Services v. Clayton, 1993 WL 479766 (Va. App., Nov. 23), appellants contended that the state Workers' Compensation Commission erred in finding that immunoglobulin shots and testing for Hepatitis B (HBV) and HIV constituted reasonable and necessary medical treatment for which the employer is responsible. The claimant was an EMS worker who suffered a needle stick while treating a patient. At the time of the incident, it was unknown whether the patient had HIV or HBV. The court ruled that the appeal was without merit after a review of the record and the briefs. S.K. * * * U.S. District Judge Joyce Hens Green ruled Dec. 21 that the District of Columbia Fire Department violated sec. 504 of the Rehabilitation Act when it restricted a hepatitis-B infected firefighter from performing mouth-to-mouth resuscitation for which he was certified. Roe v. District of Columbia, 1993 U.S. Dist. LEXIS 18071. She relied on expert testimony that HBV transmission through saliva has yet to be documented, and thus found that "significant risk" of transmission is lacking. A.S.L. HIV Torts Litigation Updates In Bramer v. Dotson, 1993 WL 486022 (Nov. 23), the West Virginia Supreme Court ruled that a cause of action for negligent infliction of emotional distress was stated where the defendants were alleged to have misdiagnosed the plaintiff's illness as HIV- infection, that the record was not ripe for determination whether a cause of action for reckless infliction of emotional distress was stated, and that claims for mental or emotional injuries arising from severe emotional distress are injuries to the person warranting consideration under a two-year statute of limitations. The alternative would have been suit under West Virginia's one- year statute governing torts not actionable at common law, which would have required dismissal of the action. S.K. * * * In Carroll v. Sisters of Saint Francis Health Services, Inc., 1993 Tenn. LEXIS 447 (Dec. 20), the Tennessee Supreme Court lined up with jurisdictions that will deny a cause of action for negligent infliction of emotional distress based on fear of contracting AIDS unless the plaintiff can show he or she was actually exposed to HIV. The plaintiff was visiting her sister in the hospital. After washing her hands, she reached into an unlabelled container for a paper towel and pricked herself on a sharp object. She was later told the container was for "contaminated needles." She repeatedly tested negative for HIV, but sued the hospital claiming severe emotional distress. After reviewing cases from other jurisdictions going in all different directions on the basic issue, Justice Frank F. Drowota III concluded that Tennessee should adhere to its established approach of requiring a plaintiff to prove actual exposure (although not requiring proof of transmission). Because the appeal was on a summary judgment ruling, the matter was remanded to the trial court. A.S.L. * * * Gina Seimon appealed from a trial court's order granting summary judgment to the manufacturer of hospital syringes. Seimon, a nurse, instructed an outpatient how to self-inject insulin. The patient injected herself, capped the syringe and handed it to Seimon, who was pricked because the needle penetrated the side of the needle cap. Seimon became "emotionally upset due to her belief that she was exposed to the AIDS virus" and "sought counseling to cope with her fears that she had contracted a deadly, incurable disease." On appeal, Seimon v. Becton Dickinson & Co., 1993 WL 483769 (Ohio App., Nov. 18), appellant argued that the defective needle cap was the proximate cause of her emotional suffering. The court observed that "where the appellant has failed to provide any evidence on the issue of causation, no question of fact is present. The appellant here has failed to produce any evidence that she was, in fact, exposed to HIV . . . [a]bsent some showing that the defective cap was the proximate cause of her emotional distress, the appellant cannot recover." Because there had been no such showing, the court overruled appellant's assignment of error. C.C. * * * In Doe v. McNulty, 1993 WL 496109 (Dec. 3), the Louisiana Court of Appeal, 4th Circuit, considered whether the jury committed "manifest error" in awarding plaintiff Jane Doe $700,000 in general damages and $314,000 in medical and special damages, based on her claim that the doctors' delay in informing her that she was HIV- positive was negligent. Doe was exposed to HIV through sexual contact in 1980. She first consulted the defendants in August 1990, but they failed to diagnose her as either HIV+ or as having AIDS. In November 1990, she was diagnosed with "active AIDS," having contracted pneumocystis carinii pneumonia (PCP). Doe said that the doctors' negligent delay caused her to lose one year of life AIDS-free, one year of her life expectancy, and one year of her ability to work. Although the court concluded that the general damage award of $700,000 was excessive, it was upheld under the limited power of the court to disturb general damage awards. The court adjusted the special damage award to reflect only Doe's actual medical expenses in the amount of $76,337.62. A.T. * * * The Judicial Panel on Multidistrict Litigation announced Dec. 7 that it will consolidate cases pending all over the country against manufacturers of blood clotting medication brought by HIV-infected hemophiliacs into one trial in the U.S. District Court for the Northern District of Illinois, under the title In re "Factor VIII or IX Concentrate Blood Products" Products Liability Litigation. See 1993 Westlaw 518621. The consolidation order was opposed by the manufacturers. A.S.L. * * * Despite negligence by a local chapter of the Red Cross, a federal district court ruled that when a blood donor does not heed a warning urging members of high risk groups to refrain from donating blood, the necessary chain of causation is broken and the recipient of the donor's HIV-contaminated blood is precluded from recovering against the blood bank. Marcella v. Brandywine Hospital, 1993 WL 515468 (E.D.Pa., Nov. 29). Plaintiff brought suit against the Red Cross and its Penn-Jersey regional office, claiming that they failed to provide the HIV+ donor whose blood she received with the generally accepted definition of high risk groups. In December 1984, the federal government changed this definition from "sexually active homosexuals or bisexuals with multiple partners" to "homosexual and bisexual males having more than one partner at any time since 1979". In January 1985, the donor gave the first unit of HIV-infected blood received by plaintiff, on which date the Penn-Jersey regional office provided the donor with literature using the pre-December 1984 risk group definitions because they had not yet exhausted their supply. When the donor gave blood in June 1985, he was given the post- December 1984 literature, although he continued to believe that he was not within an HIV risk group. On the theory that the donor might have hesitated to give blood had the definition included "more than one partner at any time since 1979," Judge Fullam determined that the Penn-Jersey office's "unreasonable turgidity" in distributing the outdated literature constituted negligence. However, the court denied plaintiff's request for recovery because she had received another blood donation made by the same donor six months later, at which time he had been advised that those who had more than one homosexual or bisexual partner "since 1979" were considered high risk. Thus, even if the Red Cross had provided the donor with the proper definition of high risk groups before the earlier donation, he probably would have donated the infected blood which ultimately was used during plaintiff's transfusion. R.B. * * * The 8th Circuit Court of Appeals ruled Dec. 10 that a military reservist, his wife and child could not sue the government for negligence in connection with HIV infection acquired by the reservist during a surgical procedure in 1983. C.R.S. v. U.S., 1993 WL 503496. The reservist claimed he was infected as a result of negligent screening of donated blood at Martin Army Community Hospital in Georgia. After his surgery and completion of his training, the reservist returned to his home in Minnesota, married and had a child. In 1989, the reservist discovered that he, his wife and child were all HIV+. Subsequently, during a military look-back program, a donor whose blood was used for the transfusion also tested positive. The suit was brought on claims of negligence in the original blood transfusion process, and negligent failure of the military to notify the reservist of his infection, resulting in subsequent infection of his wife and child. The trial court dismissed the case on motion by the government, which contended that suit was barred by the "discretionary function" exception to the Federal Torts Claims Act (FTCA). The FTCA waives the government's sovereign immunity in torts cases, with specified exceptions. One is for discretionary functions, such as adopting policies for governmental purposes. Affirming the district court, the court of appeals found that the decision to adopt particular procedures for blood transfusions in government hospitals was a discretionary function, as was the decision to adopt particular procedures for identifying and notifying persons infected in government hospitals. Dissenting from the later conclusion, Circuit Judge John R. Gibson contended that the failure-to-warn claim turned on negligent lack of compliance with a 1986 Surgeon General directive, and thus was not within the discretionary function exception. A.S.L. * * * Answering a certified question posed by the U.S. District Court for the District of South Carolina, the South Carolina Supreme Court held Dec. 6 that an action against the Red Cross for supplying HIV- infected blood for transfusion was governed by the general negligence statute of limitations (6 years) rather than the medical malpractice statute of limitations (3 years), Swanigan v. American National Red Cross, 1993 WL 511792, thus joining a growing list of state courts so holding in HIV-transmission cases in Florida, Maryland, Minnesota, and Wisconsin. Red Cross has consistently argued, usually but not always unsuccessfully, that supplying blood is "medical service," thus making Red Cross a "health care provider" bringing it within the scope of special statutes adopting short limitations period for medical malpractice cases. Just a few days earlier, the U.S. District Court for the Northern District of Illinois made a similar ruling under Illinois law in Nigohosian v. American Red Cross, 1993 WL 499220 (Dec. 3). Although there is no Illinois appellate decision on point, District Judge Shadur found persuasive the Wisconsin Supreme Court's decision to the same effect in Doe v. American National Red Cross, 500 N.W.2d 264 (1993), in which the Wisconsin court was answering a certified question from the 7th Circuit. A.S.L. * * * The New York Law Journal reported Dec. 21 that New York State Court of Claims Judge Israel Margolis denied a request by a Jane Doe plaintiff to accelerate the payment of damages awarded to her against the State of New York in an HIV transmission case. The plaintiff, a nurse who was found to have been infected through the negligence of state prison guards who failed to intervene as she struggled with an HIV-infected prisoner, asserted that the normal timetable dictated by state law for paying out large damage awards would deprive her of most of her recovery, given her HIV-infected condition. Margolis pointed out that the bulk of the award was to compensate plaintiff for pain and suffering due to her infection. If she dies sooner, she will have had less time of pain and suffering. The award was not for the benefit of her heirs, who would get most of the money if it was paid out now and she died soon thereafter. A.S.L. Miscellaneous AIDS Litigation Briefs In an unpublished order, the U.S. Court of Appeals for the 5th Circuit denied a motion by the defendant in Doe v. Celtic Life Insurance Co., No. 93-4276 (Dec. 7) to require the plaintiff to shed his anonymity in bringing suit over a claim that the defendant unlawfully canceled his health insurance policy when it found out he was HIV+. A.S.L. * * * The U.S. District Court in Wyoming dismissed the claim of a state prison inmate that the prison has a constitutional duty to segregate HIV+ inmates who might present a danger to other inmates. Goss v. Sullivan, 1993 WL 522856 (D.Wy., Dec. 6). The plaintiff was in a fight with another inmate in which blood was shed. A guard refused to get involved, stating that the other inmate had AIDS. The plaintiff was subsequently notified by prison authorities that he should be tested, because the other inmate was a confirmed HIV-carrier. The plaintiff claimed that prison officials had an obligation to identify to other prisoners and to segregate all HIV+ prisoners. In response to the state's motion to dismiss, the plaintiff narrowed his claim, asserting that the state has a duty to protect inmates from HIV exposure in circumstances where the state knew that an inmate prone to violence was HIV+. Evaluating this narrowed contention, District Judge Johnson held, "Allegations of a generalized fear of contracting AIDS from allegedly aggressive HIV-positive inmates and conclusory allegations that prison officials were or are aware of such intentions but have done nothing to intervene, are insufficient to state a constitutionally inhumane condition of confinement or a culpable state of mind. . ." A.S.L. * * * The N.Y. Appellate Division, 4th Department, ruled Nov. 19 in Syracuse Community Health Center v. Wendi A.M., 1993 WL 477339, that the Health Center did not unlawfully discriminate against an HIV+ patient when white paper toweling was draped on exposed surfaces in the treatment room prior to performing a dental procedure. The Human Rights Commissioner found that this "differential" treatment was discriminatory. Reversing the Commissioner, the court commented: "Although OSHA guidelines suggest that dental care providers treat every patient as if he or she were infected, in our view it does not rationally follow that a dental care provider that takes an extra precaution in the privacy of the treatment room in the case of an identified HIV positive patient has unlawfully discriminated against that patient." The court emphasized that these precautions would not be visible from the waiting room and that only the patient and clinic staff were aware that the extra precautions were taken. A.S.L. * * * The Court of Appeal of Louisiana, 5th Circuit, upheld a trial judge's order that a gay, HIV+ father be denied contact with his 6-year-old son, over whom his ex-wife has sole custody. Manale v. Manale, 1993 WL 481827 (Nov. 24). The trial court received testimony from a court- appointed psychiatrist that Manale was "a pathological liar" with "an anti-social personality disorder with strong narcissistic features." Manale is on probation after pleading guilty to felony theft; the criminal court judge ordered him to avoid all contact with his wife or "her family" as a condition of probation. The appeals court opined that the record supported the "obvious finding that either joint custody or visitation would be detrimental to [the son's] best interest." A.S.L. * * * The New York Law Journal reported Dec. 21 that N.Y. Supreme Court Justice George Cobb (Albany County) ruled in Board of Education v. Sobel that the N.Y. State Education Department had properly voided Resolution 33 of the N.Y. City Board of Education, which had mandated that a majority of all AIDS education time in the city's public schools be spent on teaching about abstinence as the only sure way to prevent HIV transmission. We had not obtained the decision by presstime, but will provide details next month. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS JOB ANNOUNCEMENT Lambda Legal Defense & Education Fund is accepting applications for the position of AIDS Project Director, based in its N.Y. City office. Qualifications include "five years of legal experience, preferably with extensive litigation experience, significant leadership skills, excellent speaking and writing abilities, demonstrated commitment to the concerns of lesbians, gay men, and people with HIV/AIDS, and a firm commitment to multiculturalism." Beginning salary is low to mid 40s, depending on experience, plus benefits. Send resume and writing sample by January 31, 1994, to Beatrice Dohrn, Legal Director, Lambda Legal Defense Fund, 666 Broadway, 12th Floor, New York, NY 10012. LESBIAN & GAY & RELATED LEGAL ISSUES: Fineman, Martha Albertson, Our Sacred Institution: The Ideal of the Family in American Law and Society, 1993 Utah L. Rev. 387 (1993). Kagan, Elena, Regulation of Hate Speech and Pornography After R.A.V., 60 U. Chi. L. Rev. 873 (Summer/Fall 1993). Murphy, Arthur A., Homosexuality and the Law: Tolerance and Containment II, 97 Dickinson L. Rev. 693 (Summer 1993) (Proceeding from the premise that society has a legitimate interest to deter homosexual practice by all those whose sexual orientation is not entirely gay, Murphy suggests reforming sodomy laws to decriminalize same-sex contact only between "true homosexuals" -- ditto with respect to discrimination laws, etc. Pity the poor bisexual in his "tolerant" universe!). Nestlerode, Jana, Re-"Righting" the Right to Privacy: The Supreme Court and the Constitutional Right to Privacy in Criminal Law, 41 Cleveland State L. Rev. 59 (1993). Perkins, Juliette, Sexual Orientation and Good Moral Character -- Is Inquiry Permissible?, 62 The Bar Examiner No. 4, 14 (Nov. 1993). Sunstein, Cass R., Words, Conduct, Caste, 60 U. Chi. L. Rev. 795 (Summer/Fall 1993). Wesson, Marianne, Girls Should Bring Lawsuits Everywhere. . . Nothing Will Be Corrupted: Pornography as Speech and Product, 60 U. Chi. L. Rev. 845 (Summer/Fall 1993). Student Notes & Comments: Burke, Craig Cassin, Fencing Out Politically Unpopular Groups from the Normal Political Processes: The Equal Protection Concerns of Colorado Amendment Two, 69 Ind. L. J. 275 (Winter 1993). Hunt, Rosina L., Natural Law v. Positive Law: Interpreting Morality, 28 N. Eng. L. Rev. 231 (Fall 1993). Justice, J. Steven, Ethnic Intimidation Statutes Post-R.A.V.: Will They Withstand Constitutional Scrutiny?, 62 U. Cin. L. Rev. 113 (Summer 1993). Meyers, Felicia, Gay Custody and Adoption: An Unequal Application of the Law, 14 Whittier L. Rev. 839 (1993). Peluso, Marie Elena, Tempering Title VII's Straight Arrow Approach: Recognizing and Protecting Gay Victims of Employment Discrimination, 46 Vanderbilt L. Rev. 1533 (Nov. 1993). Sabey, Clark W., Scalpels and Meat Cleavers: Carving a Public Policy Limitation to the At-Will Employment Policy, 1993 Utah L. Rev. 597 (1993). Salmon, Katharine A., Child Custody Modification Based on a Parent's Non-Marital Cohabitation: Protecting the Best Interests of the Child in Virginia, 27 U. Rich. L. Rev. 915 (Summer 1993). Whitaker, Elise M., Pornographer Liability for Physical Harms Caused by Obscenity and Child Pornography: A Tort Analysis, 27 Geo. L. Rev. 849 (Spring 1993). R.A.V. v. City of St. Paul: How the Supreme Court Missed the Writing on the Wall, 34 Boston Col. L. Rev. 771 (July 1993). The Social Group That Dare Not Speak Its Name: Should Homosexuals Constitute a Particular Social Group for Purposes of Obtaining Refugee Status? Comment on Re: Inaudi, 17 Fordham Int'l L. J. 229 (1993). Book Reviews: Arriola, Elvia R., Coming Out and Coming to Terms with Sexual Identity, 68 Tulane L. Rev. 283 (Nov. 1993) (review of works by Faderman, Fajer, and Robson). Specially Noted: The Women's Rights Law Reporter celebrates its 20th anniversary in vol. 14, Nos. 2&3 (Spring/Fall 1992) with a retrospective of significant articles, including several of special interest to Law Notes readers: Nancy Polikoff, Why Are Mothers Losing: A Brief Analysis of Criteria Used in Child Custody Determinations; Annamay Sheppard, Lesbian Mothers II: Long Night's Journey Into Day; Elvia Rosales Arriola, Sexual Identity and the Constitution: Homosexual Persons as a Discrete and Insular Minority; Ruth Bader Ginsburg, Sex Equality and the Constitution. * * * The September/October 1993 issue of The Trademark Reporter (vol. 83, no. 5) includes articles exploring the clash of First Amendment free speech rights with the rights of trademark holders. Of particular interest is Arlen W. Langvardt, Trademark Rights and First Amendment Wrongs: Protecting the Former Without Committing the Latter (at p. 633), which is critical of the federal court decision holding that the gay Pink Panther Patrol had infringed MGM's trademark. * * * A letter to Sen. Sam Nunn urging complete lifting of the ban on military service by open lesbians and gay men by the Committees on Federal Legislation and Sex and Law of the Association of the Bar of the City of New York is in 48 The Record of the Association of the Bar of the City of New York 645 (June 1993). Symposia: Emerging Issues in State Constitutional Law, 66 Temple L. Rev. No. 4 (Winter 1993). AIDS & RELATED LEGAL ISSUES: Crossley, Mary A., Of Diagnoses and Discrimination: Discriminatory Nontreatment of Infants With HIV Infection, 93 Col. L. Rev. 1581 (Nov. 1993). Engel, Daniel A., and Sherri I. Giffin, Hot Employee Benefits Issues: Vested Coverages, Retaliation, and Americans with Disabilities Act, 28 Tort & Ins. L. J. 711 (Summer 1993) (claims that ADA allows employers to cap or eliminate HIV-related benefits). Fox, Glenn D., and Alan L. Frank, Estate Planning for Terminally Ill Taxpayers, 51 Taxation for Accountants 340 (Dec. 1993). Harris, John and Soren Holm, If Only AIDS Were Different!, 23 Hastings Center Rep. No. 6, 6 (Nov-Dec 1993). Jacobs, Daniel J., AIDS: A Selective Bibliography of Legal, Social, and Medical Aspects; Update 8, 48 Record of the Assoc'n of the Bar of the City of N.Y. 512 (May 1993). Oddi, A. Samuel, Reverse Informed Consent: The Unreasonably Dangerous Patient, 46 Vanderbilt L. Rev. 1417 (Nov. 1993) (argument for patient liability in HIV transmission). Student Notes & Comments: Becker, Arthur J., Jr., The Competing Interests in HIV Disclosure for Infected Health Care Workers: The Judicial and Legislative Responses, 97 Dickinson L. Rev. 777 (Summer 1993). Glick, Shanah D., Are Viatical Settlements Securities Within the Regulatory Control of the Securities Act of 1933?, 60 U. Chi. L. Rev. 957 (Summer/Fall 1993). Huebner, Christine, Mandatory Testing of Health-Care Workers for AIDS: When Positive Results Lead to Negative Consequences, 37 NYLS L. Rev. 339 (1992). Wells, John B., Providing Relief to the Victims of Military Medicine: A New Challenge to the Application of the Feres Doctrine in Military Medical Malpractice Cases, 32 Duquesne L. Rev. 109 (Fall 1993) (no explicit discussion of AIDS; Feres doctrine has been major barrier to recovery for military personnel). Specially Noted: The ACLU's AIDS & Civil Liberties Project has published a "briefing book" titled The Americans With Disabilities Act: What It Means for People Living With HIV Disease. It includes statutory text, regulations and commentary on ADA and question and answer sections on the employment and public accommodations requirements, prepared by Prof. Chai Feldblum of Georgetown University. The book also includes a reprint of an article by Prof. Feldblum about medical testing of employees. An appendix summarizes disability discrimination laws of the states as of March 1990. Copies are available to legal advocates for PWAs from the ACLU AIDS Project, 132 W. 43rd St., New York NY 10036. Copies are available for sale to members of the public who are not legal advocates for PWAs at $35 per copy. * * * He's at it again: 7th Circuit Judge Richard Posner, with University of Chicago Professor Thomas Philipson, has co-authored Private Choices and Public Health: The AIDS Epidemic in an Economic Perspective (Harvard University Press). We have not seen the book, but based on a review in the ABA Journal by Paul Reidinger, we suspect it will make disheartening reading. According to Reidinger's review, the authors suggest that government has a negative incentive to invest in finding treatments for AIDS that prolong life, because it costs more to care for PWAs if they live longer, and that, to quote Reidinger's summary, "most government intervention in the AIDS epidemic is wasteful, useless or even counterproductive." One bright note: they apparently argue in favor of something akin to same-sex marriage as a way of reducing sexual promiscuity and the spread of HIV. ANNOUNCEMENTS Law Notes OnLine An abbreviated version of Law Notes is available in the Gay & Lesbian Community Forum Resource Library of America OnLine, under the title LeGaL Lesbian & Gay Law Notes in the text and archival folders. Contributing Writer Barnaby Millard edits each monthly issue for the general reader. Editor's Notes: All viewpoints expressed in Lesbian/Gay Law Notes are those of identified writers, and are not official positions of the Lesbian and Gay Law Association of Greater N.Y. Correspondence is welcome and will be published subject to editing. * * * A reader notes that our parenthetical comment in discussing a Wisconsin child custody case on page 82 of the Nov. 1993 Law Notes should have used the term "former spouse" rather than "ex-wife" in reference to the strategic use of homosexuality in such disputes.