LESBIAN/GAY LAW NOTES Lesbian & Gay Law Association of Greater New York ISSN 8755 9021 March 1995 Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: asleonard@aol.com Contributing Editor: Colin Crawford, Instructor, Brooklyn Law School Contributing Writers: Monica Barrett, Esq., New York; Otis Damslet, Esq., New York; Steven Kolodny, Esq., New York; Todd V. Lamb, Esq., New York; Michael S. Ryan, Esq., New York; Dirk Williams, Esq., Boston; Robin Miller, Esq., Seattle; Paul Twarog, Student, New York; Robert Bourguignon, Student, Brooklyn; Philip Friedman, Student, Brooklyn; Clarice B. Rabinowitz, Student, Brooklyn; Klayton Fennell, Student, Florida. Circulation: Audrey Hartmann, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118. (C) 1995 by Lesbian & Gay Law Association of Greater New York $30/yr by subscription (Foreign Rate US$35) SUPREME COURT WILL HEAR COLORADO APPEAL ON AMENDMENT The United States Supreme Court announced Feb. 21 that it had granted a writ of certiorari filed by Roy Romer, Governor of Colorado, to review the Colorado Supreme Court's decision in Evans v. Romer, 882 P.2d 1335 (1994), holding unconstitutional Amendment 2, an anti-gay ballot initiative passed by Colorado voters in 1992. At the same time, the Court granted motions by the Family Defense Council and Colorado for Family Values to filed amicus briefs in the case, supporting Romer's contention that Amendment 2 is constitutional. Romer v. Evans, No. 94-1039 (see 63 USLW 3609). If the Court affirms the decision below, it could put an end to the anti-gay initiative strategy pioneered anti-gay groups in Oregon and Colorado and exported to dozens of other state and local jurisdictions. If the Court reverses, the lesbian and gay rights movement will undoubtedly confront an escalation of such ballot measures. The argument will be held during the Court's Fall 1995 Term, which begins in October, on the following question: Does a popularly enacted state constitutional amendment precluding special state or local legal protecitons for homosexuals and bisexuals violate fundamental right of independently identifiable, yet non-suspect, classes to seek such special protections? Amendment 2, which was passed by a decisive margin at the general election in November 1992, invalidated existing sexual orientation discrimination ordinances in several Colorado municipalities, as well as invalidating a sexual orientation executive order by Governor Romer and various other non-discrimination policies that had been adopted administratively by state and local officials and agencies, to the extent that they prohibited discrimination against lesbian, gay or bisexual people. In addition, the measure prohibited the state or any of its subdivisions from adopting any policy that would provide protection against discrimination to lesbians, gay men or bisexuals. A coalition of plaintiffs obtained a court order staying Amendment 2 from going into effect, and successfully litigated against its constitutionality in the Colorado courts. In its opinion issued on October 11, the Colorado Supreme Court found that Amendment 2 violated the Equal Protection Clause of the 14th Amendment by depriving an identifiable group of citizens of an equal right to access the normal political process in pursuit of civil rights protection, which the court identified as a "fundamental right." An earlier decision, reported at 854 P.2d 1270 (1993), which the U.S. Supreme Court had refused to review, the Colorado court adopted this "equal right to participate in the political process theory" in preference to the theory adopted by the trial judge, who had preliminarily ruled that Amendment 2 violated the constitution by enacting as government policy the anti-gay prejudices of private citizens. In adopting the equal access theory, the Colorado Supreme Court relied on a line of U.S. Supreme Court cases invalidating various state and local initiative measures that had barred legislative bodies from passing a variety of civil rights measures. In its 1993 decision, the Colorado court remanded the case for trial to determine whether Amendment 2 would withstand strict scrutiny. On remand, the trial judge ruled that none of the state's asserted policy justifications for Amendment 2 withstood strict scrutiny, either because they did not constitute compelling state interests, or because Amendment 2 was not sufficiently narrow in its effect to achieve the asserted interests without unnecessarily abridging the rights of lesbian, gay or bisexual Coloradans. The Colorado Supreme Court affirmed this conclusion, one judge dissenting, and permanently enjoined Amendment 2 from going into effect. Prior to this ruling, and in partial reliance on the earlier Colorado decisions, the U.S. District Court in Cincinnati ruled in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 860 F.Supp. 417 (S.D.Ohio, Aug. 9, 1994), that a similar local initiative was unconstitutional. However, the federal district court alternatively relied on an analysis that premised heightened scrutiny on sexual orientation being a quasi- suspect classification, an issue that the Colorado Supreme Court did not decide because the trial court had decided the issue against the plaintiffs, who did not appeal as to that question. However, during the Colorado trial on the merits, the plaintiffs presented evidence to create a record on the suspect classification issue, so that there would be a factual basis for its discussion should the case get to the U.S. Supreme Court. The city of Cincinnati appealed the federal district court's ruling to the 6th Circuit Court of Appeals, where oral argument is scheduled for March 7 (incidentally, the same day that an anti-gay initiative vote will be held in a special election in Tampa, Florida). The opponents of Amendment 2 are represented by a coalition of volunteer lawyers from Colorado and attorneys with Lambda Legal Defense & Education Fund and the ACLU Lesbian and Gay Rights Project. A.S.L. LESBIAN/GAY LEGAL NEWS Supreme Court Holds On To Parade Case On Jan. 6, the U.S. Supreme Court granted certiorari in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 714 (No. 94-749), appealing 636 N.E.2d 1293 (Mass. 1994), presenting the question whether the South Boston Allied War Veterans Council, operators of the annual St. Patrick's Day/Evacuation Day Parade in South Boston, must comply with a court order to allow the Irish-American gay group to march under its own banner in the annual parade. Shortly after the grant of certiorari was announced, U.S. District Judge Mark Wolfe ruled in a separate proceeding that the proposed 1995 parade was distinguishable from the 1994 parade at issue in the Hurley case, because the organizers had incorporated a protest against the prior court decision into its parade; finding that now the parade had an expressive purpose, Wolfe ordered the city to give the Veterans group a permit for the 1995 parade and allow them to exclude the gay group. Reacting to Wolfe's decision, attorneys for the Irish-American gay group contacted the Supreme Court and suggested that the Hurley appeal be dismissed as moot. On Feb. 21, the Court issued a terse, one-line response: "Respondents' suggestion of mootness is rejected." So the case goes forward, at least for now. A.S.L. Tennessee Judge Rules on the Merits Against Anti-Gay Sodomy Law On Feb. 2, Judge Walter C. Kurtz of the Tennessee Fifth Circuit Court, Davidson County, issued an Order declaring Tenn. C.A.  39- 13-510 unconstitutional under the state constitution's right of privacy, granting a motion for summary judgment filed by the plaintiffs. Campbell v. Sundquist, No. 93C-1547. The statute reads: "Homosexual acts. - It is a Class C misdemeanor for any person to engage in consensual sexual penetration, as defined in  39-13-501(7), with a person of the same gender." The referenced section covers "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the victim's, the defendant's, or any other person's body, but emission of semen is not required." Judge Kurtz previously denied the defendants' motion for summary judgment on Dec. 7, and referred to the earlier decision for the bulk of his constitutional analysis. The brief opinion issued Feb. 2 was devoted largely to rejecting the feeble case made by the state to justify its same-sex sodomy law, in light of the constitutional interests previously identified by the court. The state sought to defend the statute without any expert witnesses, arguing that it would make its case through cross-examination of the plaintiff's experts. This was insufficient for Kurtz, who found that "the State's decision not to present expert witnesses at trial indicates its inability to carry its burden of showing a compelling state interest." Kurtz found "incongruous" the state's attempt to meet its evidentiary burden by submitting an affidavit from Dr. Charles Socarides, asserting that "Dr. Socarides' view that homosexuality is a psychiatric psychopathological condition is rejected by the psychiatric profession," and commenting further: "It escapes the Court why this view, which he expounds throughout the affidavit, is relevant to this case." The court also found inadmissible several articles that the state tried to submit as evidence. Although the court didn't list the articles in the opinion, one can guess that the name Paul Cameron probably pops up on the list, since the court then comments that "showing a connection between male homosexual activity and the spread of AIDS" does not invalidate the statute, because strict scrutiny requires that "a law which affects a fundamental right must be narrowly tailored to meet the proper state interest" and the statute, by penalizing lesbian sex, was clearly overbroad. "Secondly," Kurtz observed, "the statute prohibits sex acts between males which do not significantly contribute to the spread of AIDS." Kurtz also noted that the state had failed to present any evidence about the rationale of the legislature in adopting the statute. Although he said nothing further on the point, it raises a significant issue. Prior to Bowers v. Hardwick (1986), Tennessee had a sodomy law that prohibited all anal or oral intercourse, regardless of the gender of the participants. Responding to the public outcry after Hardwick, the legislature amended the law in 1989 to narrow its prohibition to same-sex couples. Any evidence about the legislative history of this recent amendment would show (if one recalls correctly from newspaper accounts at the time) that it was adopted in a frenzy of anti-gay rhetoric with no attempt at documenting any policy justification apart from bias. Kurtz noted that he had placed "great reliance" on the Kentucky Supreme Court's decision in Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992), striking down that state's sodomy law, which Kurtz characterized as having "correctly" found that the state failed to show a compelling interest in that case. After declaring the statute unconstitutional, Kurtz declined the plaintiffs' request to issue an injunction against state officials barring its enforcement, and commented that in light of his ruling, "it is unnecessary for the Court to reach the plaintiff's equal protection claim but this Court would be disinclined to find homosexuality a suspect classification." In Wasson, the court had found that Kentucky's sodomy law also violated equal protection. As we went to press, the state had not announced a decision on whether it would appeal, and it was uncertain whether the case would go directly to the state supreme court or would first have to go to the court of appeals. Abby R. Rubenfeld, a prominent Nashville attorney who is a former co-chair of the National Lesbian and Gay Law Association and former Legal Director of Lambda Legal Defense & Education Fund leads the volunteer attorney team challenging the statute, with the assistance of Christine Freeman and Kathleen G. Morris, both of Nashville. A.S.L. California Appeals Court Holds Anti-Gay Sting Violated Equal Protection A California appeals court dismissed disorderly conduct charges resulting from an anti-gay sting operation at an adult bookstore. Baluyut v. Santa Clara County, 1995 WL 34292 (6th Dist., Jan. 30). The court held, in an opinion by Judge Elia, that the police operation resulted from homophobia and thus violated state and federal equal protection guarantees. The sting took place at an adult bookstore that contains about 80% heterosexual materials and 20% homosexual materials. In 1990, police received complaints about events in the parking lot behind the store: sexual acts, a car backing into a fence, and public urination. None of the complaints identified the offenders as homosexuals, but the police responded with a series of undercover operations aimed at homosexual men. Typically, an attractive, casually dressed male police officer would wander around the parking lot making eye contact with male customers and engaging them in small talk. If a customer hinted that he might be interested in a sexual encounter with the officer, the decoy would ask for specifics, declining suggestions that they go to a private home. "At some point there would be a suggestion that the customer accompany the decoy to the decoy's car nearby. . . [A]t the car, the customer would be arrested for soliciting a lewd act to be performed in a public place, the car." The police ignored other illegal conduct (public urination) in the parking lot, but repeated the sting operation periodically despite receiving no further complaints. Defendants filed a motion to dismiss, contending that discriminatory enforcement violated their equal protection rights. The police chief denied that the officers had been discriminating against gays, adding that the police were trying to serve everyone in a community "rich in cultural diversity;" the prosecutors argued that the defendants were not even homosexuals because virtually all of them claimed to be heterosexuals experimenting. The trial court found that the police response to the complaints was motivated by subconscious homophobia, but not by a specific desire to punish the defendants for being homosexuals. Reading appellate precedent to require an intent to punish the defendants specifically for protected conduct (e.g., political activity) or group membership, the trial court denied the defendants' motion, stating that the matter required the attention of an appellate court with the authority to elucidate the constitutional principles at issue. The appellate court noted that soliciting sexual encounters, the target of the sting, was ubiquitous among heterosexuals in bars and other establishments. The officer in charge of the sting testified that, in twenty-five years of police work, he had never heard of an arrest for non-commercial heterosexual solicitation. Arresting officers said they didn't know that homosexual acts were legal. Observing the trial court's findings that the police decoys specifically ensnared petitioners into soliciting public homosexual acts, the court wrote that "[p]etitioners were deliberately selected for arrest on an invidious basis for acts which would not have been detected, prosecuted or even criminal had it not been for the police conduct." The court then analyzed discriminatory prosecution precedents. The trial court had drawn the "intent to punish" requirement from People v. Smith, 155 Cal.App.3d 1103 (1984), which in turn applied Murgia v. Municipal Court, 15 Cal.3d 286 (1975). Quoting Murgia, the court wrote, "If an individual can show that he would not have been prosecuted except for such invidious discrimination against him, a basic constitutional principle has been violated, and such a prosecution must collapse upon the sands of prejudice." The Murgia court suggested evidence of specific intent as one method of proof. Smith had required proof of specific intent because the defense alleged that the prosecution resulted from the prosecutor's personal and political motives, which could only be proved with evidence of his specific intent. Smith did not add specific intent as a required element of discriminatory prosecution cases. Elaborating, the court stated that where the defendants are members of a group that has been subjected to discriminatory enforcement over time, statistical evidence of discrimination can establish invidiousness. Noting that the trial court had found the police department's homophobia "subconscious," the appellate court wrote that to require conscious intent "would mean that the more deeply entrenched the bigotry, so that its application to enforcement decisions is automatic rather than reflective, the less relief a defendant would be afforded." The court cited the "pre-Freudian" case of Yick Wo v. Hopkins, 118 U.S. 356 (1886), which found clear statistical evidence of racial discrimination in the enforcement of commercial laundry regulations. Quoting Yick Wo, the court wrote, No reason for it is shown, and the conclusion cannot be resisted, that no reason for it exists except hostility to . . . the petitioners." The subsequent case of Hill v. Texas, 316 U.S. 400 (1942), which found that African-Americans had been impermissibly excluded from juries, reiterated that invidious intent could be inferred from statistical evidence, despite decisionmakers' denials of intentional discrimination. The court conceded that some reasonable degree of selective enforcement may be necessary, because police resources may not be capable of apprehending every law-breaker. The problem with the bookstore sting was that the selection was based on invidious discrimination rather than factors relevant to the general public welfare. Concluding that the trial court had found the necessary elements of a prosecution that would not have taken place but for invidious discrimination, and that no other elements were required, the appellate court granted the writ and ordered the charges dismissed. Judge Bamattre-Manoukian filed a separate opinion concurring with the reasoning of the court, but dissenting in the result because she believed the trial court, as trier of fact, had not found proof that the police intentionally discriminated against the defendants. Acting Presiding Judge Premo filed a separate concurring opinion to restate the trial court's findings that the police department's "method of operation was designed to ferret out homosexuals," the sting operations "were clearly focused solely upon those persons with a proclivity to engage in homosexual conduct," and the police "specifically sought out homosexual suspects." Premo concluded that these findings established intentional discrimination. O.R.D. Minnesota Appeals Court Holds Minneapolis Domestic Partners Benefits Plan Invalid The Court of Appeals of Minnesota in Lilly v. Minneapolis, 1995 WL 34048 (Jan. 31) dealt a serious blow when it upheld a lower court's ruling that permanently enjoined the City of Minneapolis from providing health insurance benefits for the same sex partners of city employees. The court based its decision on a narrow reading of the Minnesota statute that governs the state's public benefit plans and held that Minneapolis, a home rule charter city, did not have the power to expand the list of people who would be considered dependents of city employees for the purpose of providing health benefits. Two years after passing a domestic partnership registration ordinance, the Minneapolis City Council passed a resolution authorizing limited reimbursement to city employees for health care insurance costs for same-sex domestic partners and other qualified blood relatives. In 1993 the City Council passed an additional resolution extending health care coverage for the same-sex domestic partners of employees and directing that the city seek inclusion of the term "domestic partner" in state legislation on health care benefits. Subsequently, the city contracted with two HMOs to provide health insurance to same-sex domestic partners beginning January 1, 1994. James Lilly, a city resident and taxpayer, sued to enjoin the city from implementing the resolutions. The district court found that the health care coverage for same-sex domestic partners violated state law and was against state public policy. In upholding the district court, the court of appeals noted that the state statute authorizing local legislative bodies, including the city, to insure employees and their dependents defined "dependent" as a "spouse and minor unmarried children under the age of 18 years and dependent students under the age of 25 years actually dependent upon the employee." The court found that since the domestic partners and other relatives defined in the resolution did not conform to the state statute's definition, the city's action was beyond its power. The court found that "the statewide application of [the statute regarding benefits for public employees], and the legislature's prior amendments in accordance with the desires of state political subdivisions, indicates that the provision of insurance coverage for political subdivisions' employees and their dependents is a matter of statewide, not purely local, concern." The court cited to the legislative history of the sexual orientation amendment to the Minnesota Human Rights Act in support of its finding that combating such discrimination was a matter of statewide concern as well. According to the court, the legislative author of the bill pronounced that "(t)here is nothing in here about the domestic partners benefits. Nothing that could lead to it. . ." Based on this legislative history the court found that the legislature did not intend to extend health benefits to employees with same sex domestic partners. Consequently, the city could not go beyond its powers and grant such benefits to its employees. In a strongly worded dissent, Judge Schumacher asserted that the "majority's decision erodes the constitutionally recognized principle of home rule: local governance of areas of local concern." Schumacher found no basis for the court's decision to preempt a home rule charter city's power to provide compensation, even in the form of health benefits, to its employees. Since there was no language in the Minnesota statute that expressly prohibited the extension of health benefits to same- sex domestic partners of city employees, and the city's charter contained provisions regarding compensation of employees, Schumacher considered that the city was well within its power to extend the health benefits to domestic partners of city employees under the authority of its home rule charter. With regard to the finding that the resolutions infringed state law or policy concerning discrimination, Schumacher maintained that the fact that the state legislature did not intend to expand the definition of dependents was irrelevant. Unlike the two members of the majority, Schumacher would have reversed the lower court's permanent injunction and permitted the City to voluntarily offer health benefits to the same sex partners of City employees. M.B. Other Domestic Partnership Notes Before leaving office Dec. 31, New York Governor Mario Cuomo's administration negotiated domestic partnership benefits plans for union-represented state employees, and extended similar coverage to non-represented (mainly managerial) employees to be effective Jan. 25. Cuomo's order resulted in notices being sent to staff employees of the state Assembly and Senate as well as executive branch employees, but Cuomo apparently did not consult with state legislative leaders about the extension of benefits to their staffs. On Feb. 6, Republican Senate Majority Leader Joseph Bruno sent a notice to the 1,750 employees of the Senate, rescinding Cuomo's order for those employees. When questioned by the press, Bruno stated that the state should not subsidize an "abnormal lifestyle," leading to protests from lesbian and gay political leaders. The Canadian Media Guild has won a ruling from an arbitrator that the Canadian Broadcasting Corporation must provide health and pension benefits for same-sex partners of Corporation employees on the same basis as such benefits are provided for spouses. The ruling on a grievance filed on behalf of an Edmonton-based employee last year is now being studied by CBC leaders to determine whether an appeal is possible, according to a press release issued on the Internet by a member of the union, who also noted that Bell Canada, the Globe and Mail newspaper, and Canadian Press/Broadcast News have recently announced they will offer domestic partnership benefits to employees. Those seeking more information about these developments can contact Dan Oldfield of the Canadian Media Guild at 416-591-5333. Last month we reported on an Alaska trial court decision holding that the University of Alaska was required to extend benefits to same-sex partners of employees. Tumeo and Wattum v. University of Alaska, No. 4FA-94-43 Civil (Super.Ct., 4th Jud. Dist., Jan. 11) (see 22 BNA Pension & Benefits Reporter 362). Judge Mary Green has since turned down a request for reconsideration by the university, which filed an appeal to the state's supreme court on Feb. 15. Plaintiffs Mark Tumeo and Kate Wattum, university employees, have established a "legal defense fund" to assist in their court battle, which has already cost them over $9,000 in legal fees. Donations to "The Tumeo/Wattum Defense Fund-Acct #42190" are welcome, addressed to: Northern Schools Federal Credit Union, 1417 Gilliam Way, Fairbanks, Alaska 99701. Add to the list of academic institutions now offering domestic partnership benefits to their staff: Antioch University (a geographically diverse institution with campuses in Seattle, Los Angeles, Santa Barbara, New Hampshire, and other places), Brooklyn Law School. Staff employees of the American Federation of Teachers will have domestic partnership benefits under a new collective bargaining agreement, according to the Washington Blade. The Washington Blade reports that the Australian Industrial Relations Commission decided Feb. 3 that gay federal employees could participate in a family leave program, under which employees who have health care responsibilities for the family members with whom they live may use their own sick leave to fulfill those responsibilities. A.S.L. New York, Maryland Courts Uphold Unsupervised Visitation for Gay Dads In the context of another unhappy Long Island couple landing in court, Justice Ralph Franco of N.Y. Supreme Court, Nassau county, ruled that sexual orientation should not deprive a party of visitation in a divorce and custody proceeding. Hart v. Hart, NYLJ, Feb. 8, at 31. In so ruling, Justice Franco awarded the defendant-husband liberal, unsupervised visitation. Mrs. Hart, 44, sought a judgment of divorce on grounds of adultery and cruel and inhuman treatment. Mr. Hart, 32, counterclaimed for divorce on the basis of cruel and inhuman treatment. Both parties admitted to a rocky 16 years of marriage, and the court established that Mr. Hart assaulted Mrs. Hart twice in the final year of their union. Mrs. Hart established, and Mr. Hart admitted, that he had cohabited with two male lovers at separate times in a homosexual relationship while married to Mrs. Hart, and as the court put it, "without the consent or forgiveness of the plaintiff," which constituted adultery. The court noted that Mrs. Hart had called Mr. Hart several names, including but not limited to: "[f]aggot, sissy-mary, adulterer, cheater, moron, idiot, asshole, and piece of shit." Further, the court found that on Halloween in 1989, Mrs. Hart approached Mr. Hart with a knife, causing him to flee the apartment in fear. Additionally, the record established that the plaintiff demeaned her husband over the course of their marriage, stating at least 75 times that she desired a divorce. The court found that as a result of this conduct, each party caused the other sufficient stress to render it unsafe and improper for them to continue to cohabit. The parties had one child, Christopher, born one year prior to their separation. Both parents sought custody, and each had no objection to liberal visitation with the other, except Mrs. Hart sought supervision of defendant's visitation. Mrs. Hart had been granted temporary custody of Christopher after the separation. Both parties were given a psychiatric evaluation by the county Probation Department, whose report the court relied on to conclude that Mrs. Hart should retain custody. However, the report also indicated that Mr. Hart's sexual orientation was not an issue in regard to visitation, and the court adhered to this in its decision. Finding that the defendant's sexual orientation should not deprive him of his right to visitation, Franco noted that sexual orientation of a party is relevant, if, and to the extent that the child is thereby affected or if it has an adverse effect upon the child. He found that no evidence was presented that Christopher was being detrimentally affected by Mr. Hart's homosexuality. Thus the court awarded the defendant liberal unsupervised visitation, including overnight every other weekend, and two weeks in the summer. Absent from the agreement was any limitation on whether Mr. Hart can have male partners over while Christopher is with him, which is sometimes a part of visitation agreements involving gay parents. P.T. In an unrelated, much-publicized case involving visitation rights for an HIV+ gay father, Prince George's County, Maryland, Circuit Judge Vincent Femia ruled Feb. 15 that David North may have unsupervised, overnight visitation of his young daughters (with North's domestic partner present) every other weekend in North's home. In earlier proceedings North's visitation rights had been restricted, on the ground that North could not be "trusted" with the children because he had continued to have unprotected sex with his wife at a time he knew he was HIV+, but the Maryland Court of Special Appeals had overturned that ruling on October 25, remanding to the trial court for reconsideration. (See North v. North, 648 A.2d 1025.) Reporting on the new ruling on Feb. 16, the Washington Times described Judge Femia as "obviously anguished over his decision." North's ex-wife, Kathryn Dionne North, had testified that she feared that North would place his daughters at risk of contracting HIV. A.S.L. Federal Litigation Notes In Fox v. Sierra Development Co., 1995 WL 39496 (Jan. 30), U.S. District Judge Reed (Nevada) held that a complaint alleging that supervisors wrote, drew, and discussed "homosexual sex acts, excrement, urine and other topics in a depraved manner" did not state a hostile environment sexual harassment claim under Title VII because it lacked allegations that this environment was discriminatory towards either men or women. The court initially found that allegations regarding the behavior directed at gay sex met the elements for a hostile environment claim under Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). The complaint nevertheless failed to state a Title VII action because it did not "allege facts from which men, such as plaintiffs, or women could reasonably conclude they were being intimated, ridiculed, or insulted because they were men or women" (relying on Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1994) and Meritor Savings Bank v. Vinson, 47 U.S. 57 (1986)). Indeed, the court refused to determine whether it was reasonable for these plaintiffs to perceive this environment as hostile, because they did not allege that they were heterosexual or were uncomfortable with homosexuality. Thus, the court found the homosexual aspect of the allegations irrelevant. The court rejected the analogy to successful harassment cases involving pornographic displays and derogatory language that established environments hostile to women. Since the conduct here involved homosexual pornography which did not treat any of its subjects with violence, hatred, humiliation, or ridicule as staight, male-oriented pornography might do, such conduct was not hostile to men, held the court. The court even noted a law review article which presented the argument that "for gay men, pornography becomes liberating." However, the court gave leave for the plaintiffs to amend their complaint before finally dismissing the case. M.S.R. Former Ashland, Wisconsin, High School student Jamie Nabozny filed suit against the Ashland School District in U.S. District Court in Madison on Feb. 6, claiming that school officials violated his constitutional rights by failing to deal with anti-gay harassment he suffered that caused him to drop out of school. Nabozny claims that the harassment began after word spread that he had been the victim of a sexual assault while enrolled in the district's Middle School; although Nabozny and his parents asked the principal to take some action, she refused and blamed the problem on Nabozny for acting "openly gay," according to the complaint. Nabozny seeks $350,000 in damages and a court order allowing him to graduate. (Chicago Tribune, Feb. 9) A.S.L. A post-operative female-to-male transsexual filed suit in U.S. District Court in Phoenix against Arizona Public Service Co. and its subcontractors, Bechtel Construction Co. and Bartlett Nuclear, alleging that he was subjected to sexual harassment in violation of Title VII of the Civil Rights Act of 1964 while employed at the Palo Verde Nuclear Generating Station. Seth Dyrcz (formerly Sandy Dyrcz) described a variety of incidents in his complaint involving name-calling, staring and offensive comments and graffiti. Dyrcz sued after obtaining a right to sue letter from the EEOC, but discharged his attorney on March 2 and feared the suit might expire if he could not obtain new counsel quickly. (Phoenix Gazette, Feb. 7) A.S.L. State Litigation Notes The Court of Criminal Appeals of Tennessee held that a defendant convicted of second degree murder and robbery does not qualify as a "dangerous offender" for purposes of consecutive sentencing. In a slip opinion issued in the case of Farmer v. State, 1995 WL 40286 (Tenn.Crim.App. Feb. 3.), the court described how the victim had been beaten with a slapjack and his throat was cut after he had been drinking and watching pornographic films with three defendants. Testimony at trial indicated that the victim may have made homosexual advances to one of the defendants. The trial court had imposed the maximum sentences on the defendants because of "enhancement" factors including the "exceptional cruelty" of the offense and the "use of a deadly weapon" during its commission. On appeal, Judge White agreed with the trial court that these factors were sufficient to support imposition of the maximum sentences. However, the appellate court reversed the imposition of consecutive sentences, finding that the aggravating factors used to impose the maximum sentence on the defendants were not sufficient to lead to the conclusion that the defendants had "adopted an anti-societal lifestyle" or that "the public requires additional protection from crimes [the defendant] may commit to further that lifestyle." The court was persuaded by the defendant's young age and lack of an extensive criminal record in reaching this conclusion, but also noted that the trial had not revealed which of the three defendants had actually killed the victim. The twenty-five year sentence was sufficient, in the appellate court's view, to punish the defendant. R.B. The N.Y. Appellate Division, 2nd Department, has reversed the murder convictions in one of the most closely watched gay-bashing cases in recent New York history, the Julio Rivera case. In People v. Bici, 1995 WL 35392 and People v. Brown, 1995 WL 35402, a 4- judge panel unanimously held Jan. 30 that reversal was mandated, even though it found that the trial evidence was "legally sufficient to establish the defendant's guilt beyond a reasonable doubt," because the trial judge had excluded the public from a portion of the jury voir dire without explanation, and had sent a court officer into the jury room with his response to a note from the jury, without notifying the prosecution or the defense or allowing them to address the isssues raised by the note. According to the New York Times (Feb. 2), the portion of voir dire that was closed to the public, over vigorous objection by the defense, dealt with questioning the potential jury's attitudes towards gay people. The appellate panel found that this closing of voir dire from public view deprived the defendants of their right to a "public trial." The court did reject the defendants' claims of errors in the grand jury proceedings, and remanded the cases for retrial. On Feb. 16, N.Y. Supreme Court Justice Philip J. Chetta denied a request by Bici and Brown to be released on bail pending the retrial. (Newday, Feb. 17.) A.S.L. In People v. Baker, 1995 WL 41326 (Jan. 31), the N.Y. Appellate Division, 1st Department, rejected an appeal of a jury verdict in a robbery case where the defendant protested the prosecutor's use of peremptory challenges to exclude gays from the jury. The per curiam panel held that this objection had not been properly preserved on appeal and, "in any case, in making a Batson challenge, counsel fo co-defendant failed to make a prima facie showing that the prosecutor had systematically excluded jurors in a discriminatory manner." Lurking in this cryptic treatment of the issue is the possibility that the New York courts might apply Batson, the U.S. Supreme Court's ruling that peremptories may not be used to exclude jurors on the basis of race, to a case where peremptories are used to exclude jurors on the basis of sexual orientation. A.S.L. The first trial of Marvin McClendon in Jones County, Mississippi, Circuit Court for the murders of Joseph Shoemake and Robert Walters was cut short during jury selection over the issue of jurors' moral views about homosexuality. A second attempt at jury selection began on Feb. 7 and the trial concluded on Feb. 9. Defense attorney J. Ronald Parrish argued that his client killed the two gay men in self-defense when they allegedly attempted to force him to have sex. Judge Billy Joe Landrum granted Parrish's motion to have posthumous HIV tests performed on the victims, and at trial allowed the test results to be entered in evidence. Shomake was negative, Walters positive. Parrish argued that this supported McClendon's claim that he was defending himself from a deadly assault, but the jury evidently disbelieved his testimony, because McClendon was convicted of murder on both counts and sentenced to life in prison. (Memphis Commercial Appeal, Feb. 7; New York Times, Feb. 10.) Attorney Parrish told reporters later that he would appeal the sentence, and questioned whether one of the jurors "may have been a person of rather perverse character." (New Orleans Times Picayune, Feb. 16.) A.S.L. The Ohio Attorney General's office has filed suit in Franklin County Common Pleas Court in Columbus against Phil Burress and Gilbert Bernhardt, respectively chairman and treasurer of Equal Rights Not Special Rights, the organization behind Cincinnati's anti-gay Issue 3. State v. Burress. The A.G.'s office seeks a contempt order against Burress and Bernhardt for refusing to answer questions posed by the Ohio Elections Commission about the sources of funding for the campaign in support of the measure. Allegations have been made that Ohioans who donated to the group laundered their donations through Coloradans for Family Values in order to keep them from being exposed to public scrutiny. A.S.L. The Court of Appeals of Virginia held that a bartender at a restaurant serving a primarily gay clientele may recover workers' compensation for injuries sustained when a 14 year-old boy fired a shot into the restaurant, hitting the bartender. In Bull Ring, Inc. v. Keppel, 1995 WL 55094 (Va. App., Feb. 7), the injured bartender had removed a group of boys from the establishment after they entered for the purpose of harassing the customers on the basis of their sexual orientation. The boys later returned and one fired a shot into the restaurant. The per curiam opinion affirmed the finding of the Virginia Workers' Compensation Commission, deciding that the bartender's injury was "directly related to his employment." Since the boys had attacked the restaurant because of the nature of its clientele, the bartender's injury had "its origin in a risk connected with his employment" and was therefore "causally connected to the conditions under which he was required to work." R.B. Tulane law student Donna Bird and her domestic partner, Leslie Nehring, filed charges with the New Orleans Human Relations Commission, alleging that The Times Picayune, a daily newspaper, violated the city's human rights ordinance by refusing to publish an article about the couple's commitment ceremony, which was held June 18, 1994, at the First Unitarian Universalist Church, Rev. Suzanne Meyer presiding. The newspaper, claiming that its decision about which stories to report are protected from government interference by the First Amendment, and that it offered to let the women purchase a paid advertisement, filed suit in U.S. District Court seeking an order barring the Commission from investigating the charge. On Feb. 16, U.S. District Judge Edith Brown Clement issued a restraining order, barring the Commission from applying the ordinance to the newspaper pending a Feb. 24 hearing on the merits. The newspaper routinely publishes articles about weddings without charging for advertising space. (Times Picayune, Feb. 7, Feb. 17.) A.S.L. Judge Marcy S. Friedman of New York City Civil Court (Housing Part) issued a stay until July 31, 1995, in a holdover proceeding against a gay couple. Mora v. DiBartolo, NYLJ, Feb. 8, p. 27, col. 2 (N.Y.Civ.Ct., N.Y.Co., M. Friedman, J.). Michael DiBartolo is the tenant of record in a Manhattan apartment where he lives with his domestic partner, Lester DeSouza. Apparently, sometime in 1993, DiBartolo began paying the rent on the apartment out of a joint checking account maintained by him and DeSouza rather than out of his individual account. The landlord refused to accept rent payments made from the joint account and refused to issue a renewal lease in both the men's names when requested to do so by DiBartolo. DiBartolo and DeSouza subsequently filed a complaint with the City of New York Commission on Human Rights. The complaint alleged that the landlord was discriminating against the couple based on their sexual orientation by refusing to accept the rent and renew the lease in both names. The matter before the Commission is still pending and a public hearing is scheduled for June 12, 1995. Shortly after the complaint was filed with the Commission, the landlord filed a holdover proceeding in Civil Court for "chronic delinquency." The petition alleged that proper tender of rent had not been made and the landlord rightfully refused to accept the rent because it might have exposed the landlord to a claim by DeSouza that he had tenancy rights in the apartment. Judge Friedman granted the stay in this action, finding that the issue is not whether there was legal ground for the landlord to refuse to accept the rent but whether such ground was the ground on which the landlord acted. If discrimination can be shown by the Commission's findings, it may provide an adequate defense to DiBartolo and DeSouza in this holdover proceeding. T.V.L. In Gottlieb v. Caldwell, the New York City Civil Court (Housing Part) refused to immunize the respondent, a Mr. Carroll, from eviction from his apartment, finding that he was not a family member of the legal tenant, Mr. Caldwell (N.Y.L.J. p. 28 col. 6, Feb. 8, 1995). Because Carroll was not legally related to Caldwell, to qualify for family eviction immunity under Rent and Eviction Regulation  2204.6(d)(1) and (d)(3) he had to prove that he resided with Caldwell and that they were emotionally and financially interdependent. The court held that Carroll did not sustain his burden of proof and rejected his affirmative defense that he could not be evicted from a rent-controlled apartment. Carroll was required to prove: (a) Caldwell had permanently vacated the apartment; (b) Carroll and Caldwell resided contemporaneously in the apartment as their primary residence for no less than two years; and (c) an emotional and financial commitment, and interdependence existed between Carroll and Caldwell. Carroll, an actor in his twenties, asserted that his father-son-like relationship with Caldwell, a successful businessman in his fifties, satisfied all the foregoing requirements. The court found that although Caldwell had permanently vacated the apartment, he did not reside there with Carroll during the critical period. Furthermore, while Carroll had occupied the apartment as his primary residence during the two years, Caldwell had primarily resided in East Hampton with his gay life partner. Caldwell and Carroll had met when Carroll worked in summer theater in East Hampton. At that time, the older, childless man befriended the younger man and showed him affection much like that demonstrated between blood relatives. In determining that Carroll did not have a sufficient financial and emotional commitment with Caldwell, the court relied on several factors. These factors include: (a) longevity of the relationship; (b) sharing of household expenses; (c) intermingling of finances; (d) engaging in family-type activities; (e) formalizing of legal obligations; (f) holding themselves out as family members; (g) regularly performing family functions; and (h) engaging in any other pattern of behavior which evidences the intention of creating a long-term relationship. Recognizing that there may have been a financial commitment and some familial affection between Caldwell and Carroll, the court held that there was no interdependence between them since Carroll was solely dependent on Caldwell. Therefore, the court ruled that Carroll had failed to establish that he was a family member entitled to protection from eviction. C.B.R. Tammy Redstone, a post-operative transsexual employed by Hackensack Medical Center as a maintenance technician, filed suit in New Jersey Superior Court in Hackensack seeking an order that the hospital be required to pay her legal and medical fees for the sex reassignment operation as well as psychological and gynecological services she has received. Debra Guston, former President of LeGal and Redstone's attorney, argues that Redstone's diagnosis of gender dysphoria made the various treatments medically necessary, and thus they should be covered under the hospital's employee benefits plan. (There are precedents under Medicare for requiring benefits plans to pay for such treatments.) (Bergen Record, Feb. 17.) A.S.L. New York City Human Rights Administrative Law Judge Steven E. Presberg issued a recommended decision and order on Feb. 15 in the case of Polster v. American Society for the Prevention of Cruelty to Animals, Complaint No. EM02423-02/16/90-DE, finding that "agents and investigators, who perform law enforcement functions, and who are armed peace officers, were permitted to carry out a campaign of harassment and humiliation against Anne Polster because they could not tolerate having a woman and a lesbian as a co-worker. Management paid scant attention to the problem, except when the agents -- the very agents who were behaving unprofessionally and unlawfully -- filed a grievance against Ms. Polster." Presberg found that rather than trying to solve the problem, ASPCA officials retaliated against Polster, a probationary worker, and discharged her pretextually. (Presberg found that the incident that allegedly led to the discharge was not a credible basis for disciplinary action against Polster.) However, Presberg refused to find personal liability on the part of two officers of ASPCA who were individually named in the complaint, holding that they were merely negligent in their supervisory functions. Presberg recommended a backpay award plus compensatory damages for mental anguish of $60,000, affirmative relief requiring ASPCA to upgrade its policies to prevent sexual harassment in the future, and requiring ASPCA to offer Polster reinstatement as a probationary employee. Polster is represented by Commission attorney Liz Schalet and her private counsel, Randye F. Bernfeld. A.S.L. Legislative & Administrative Notes The Hawaii Senate voted Feb. 6 to create a new 7-member commission to study the issue of same-sex couples and marriage. This commission, which was expected to be approved by the House, would replace one that was declared unconstitutional by the federal district court because of a legislative mandate to provide representatives from certain specified religious groups. The new commission will be appointed by the governor from lists of nominees prepared by the legislative houses. Its mission is to make recommendations for legislation, presumably along the lines of a domestic partnership statute, which the legislators hope will somehow forestall a court decision ordering the state to let same- sex couples marry. According to a report by Tom Ramsey, secretary of a Hawaii organization supporting the pending same-sex marriage litigation, the Senate will not address the issue of same-sex marriage for the duration of this session. The trial in Baehr v. Lewin, the same-sex marriage case, has now been scheduled for September 25. * * * Meanwhile, anticipating a possible gay victory in the Hawaii case, legislators in South Dakota and Utah have introduced bills declaring same-sex marriage violative of their states' public policy, thus giving their courts an explicit basis to refuse to apply the Full Faith and Credit Clause to require recognition of Hawaiian same-sex marriages. The South Dakota measure was approved 54-13 in the state House and sent to the Senate. The Utah measure has been approved in committee. In 1980, New York State Attorney General Robert Abrams became one of the first elected law enforcement officials in the U.S. to issue an executive order banning sexual orientation discrimination in his department, and the policy was reaffirmed by his successor, Oliver Koppell. In February, New York's new attorney general, Republican Dennis Vacco, issued his own executive order reiterating the ban against discrimination, but only for the classifications contained in the state's Human Rights Law, which does not include sexual orientation. Vacco's spokesperson claimed the A.G. felt that his policy should track the state law, and that Vacco did not consider sexual orientation to be an issue in his office. No mention was made of last year's amendment to the New York Code of Professional Responsibility by the state's court system, making sexual orientation discrimination by lawyers an ethical offense; perhaps Vacco was unaware of it or did not feel bound by its requirements. Controversial victories in the courts sometimes backfire in the legislative chambers. The Washington State House of Representatives is now considering H.B. 1171, which would forbid homosexuals, bisexuals, transsexuals, or transvestites from being adoptive or foster parents, or having any minor children placed with them by the state in that capacity. The bill, which is co- sponsored by sixteen legislators, would require state agencies to include a "written finding" concerning the sexuality of all prospective adoptive, foster or placement parents. The legislation is apparently a reaction to a case last year in which the courts upheld the adoption of a minor child by a gay male couple over the protests of the birth mother, who had initially given up the child for adoption and subsequently tried -- too late -- to rescind her action when she learned the child was to be placed with a gay couple. * * * In neighboring British Columbia, the government changed its adoption rules to allow single adults - including lesbians and gay men - to adopt children. Prior policy limited adoption to married couples. (Seattle Times, Feb. 17.) Anti-gay bills filed by Senator Jesse Helms (R.-N.C.) in January have been refiled by Helms in an attempt to get them assigned to the committee on government operations. On the House side, companion bills have been filed by Rep. Robert Dornan (R.-Cal.). The bills would place substantial barriers in the way of continued operation of lesbian and gay employee groups in the federal workforce, and would forbid disciplining federal employees for taking public positions in opposition to gay rights. Legislators in Colorado and Virginia rejected an attempt to include protection from anti-gay violence in pending hate crimes legislation. In Texas, the leader of a coalition of conservative legislators announced he would attempt to remove sexual orientation from hate crimes legislation that is being redrafted to comply with the Supreme Court's Wisconsin decision of two years ago. A.S.L. Law & Society Notes California judges are debating whether being involved in Boy Scouts activities is consistent with their ethical duties, in light of the Scouts' anti-gay membership and employment policies. Although California Judges Association members voted by secret ballot, 745- 415, against adopting an ethical rule requiring judges to eschew membership in anti-gay organizations, the courts have adopted a rule that arguably would apply such a requirement to court clerks. In Proposition 190, passed by California voters last year, the responsibility for promulgating the code of ethics for judges was taken from the Association and given to the state's supreme court, which is presently considering two cases in which the Scouts are charged with violating the Unruh Act, California's public accommodations law. On Feb. 8, the Los Angeles Times contained comments by openly gay judges calling for judges who actively participated in Scouts activities to resign from the bench, and quoting some of the judges involved in Scouting as firmly refusing to step down and rejecting criticism of their off-duty activities. The Lesbian and Gay Immigration Rights Task Force, Inc., a recently incorporated national not-for-profit organization based in New York City which has been operating for the past two years under the guidance of Lambda Legal Defense Fund and the International Lesbian and Gay Association, announced in a Feb. 8 press release that the Immigration and Naturalization Service has granted asylum Feb. 7 to a Nicaraguan gay man on the grounds that he would suffer persecution for being gay if returned to his country. The recent action of the Nicaraguan Supreme Court in upholding sweeping anti- gay laws passed by the National Assembly in 1992 helped to convince the INS that the Nicaraguan government would be unwilling or unable to protect him from anti-gay persecution if he returned. Before fleeing the country in 1987, the applicant had been subjected to police harassment, inappropriate arrest and threats of violence, and had suffered a brutal beating by anti-gay civilians. The applicant was represented on his asylum petition by San Francisco attorney Robert B. Jobe, who can be contacted at 415-956-5513 for further information about the case. Those seeking information about the Task Force can call 212-802-7264, write P.O. Box 7741, NY, NY 10116-7741, or e-mail LGIRTF@dorsai.org. The state of Nebraska has adopted a policy prohibiting placement of foster children with lesbian or gay parents, or licensing lesbians or gay men to be foster parents. State Director of Social Services Mary Dean Harvey explained the policy in a memorandum issued to Social Services staff on Jan. 31, which had been approved by Governor Ben Nelson, according to a report in the New York Times. * * * In Washington, state legislators are considering a proposal to prohibit gays from being adoptive or foster parents. A similar proposal was contained in a failed initiative attempt last year. The New York City Board of Education voted 4-3 at the instigation of Board President Carol Gresser to replace its existing multicultural curriculum with a new curriculum that deletes religion and sexual orientation. Gresser argued that a separate curriculum on discrimination would adequately deal with these issues, and that multicultural education should focus solely on race and ethnicity. Homosexuality hit the national (and international) headlines big- time after House of Representatives Majority Leader Richard Armey (R.-Tex.) referred to openly-gay House member Barney Frank (D.- Mass.) as "Barney Fag" during a press briefing on Jan. 27. Armey later insisted that his slip was unintentional, but has resolutely refused a direct apology. Frank pointed out that it was probably indicative of how some House members refer to him in private, and thus very revealing of the attitudes. Frank has become one of the principal spokespersons for the minority party in the House. Is this one serious? An op-ed article published in the Feb. 15 San Francisco Sentinel cites a 1990 British medical study finding lower levels of prostate cancer among men aged 60 to 80 who had ejaculated at least 5 to 7 times a week, either from sexual intercourse or masturbation, during their most sexually active years, age 13 through 30 (as compared to an abstemious control group). Under the headline "Does masturbation prevent cancer?", writer Paul Kangas argues that Joycelyn Elders was merely giving good public health advice when she suggested that perhaps public school sex education should include instruction in masturbation. More biology? A study by researchers at Columbia University released Jan. 31 showed that exposure in the womb to DES correlates with lesbianism or bisexuality in women. So far, most of the studies suggesting a biological link to homosexual orientation have dealt solely with gay men. A.S.L. Professional Notes We sadly note the death from AIDS of John R. Hammell, a brilliant attorney who served as director of the ACLU of Illinois's AIDS and Civil Liberties and Gay and Lesbian Rights Projects from 1988 to 1994. Hammell successfully litigated precedent-setting cases on PWA rights under the federal Fair Housing Act and Illinois and Chicago civil rights laws, and was selected in 1993 as the first openly gay member of the Illinois Nominating Commission, which recommends nominees for federal judgeships. He was a graduate of Northwestern University and Harvard Law School. Donations in his memory can be directed to the Roger Baldwin Foundation of ACLU, 203 N. LaSalle St., Suite 1405, Chicago, IL 60601, earmarked for the AIDS and Civil Liberties Project. (Chicago Tribune, Feb. 5). New York University School of Law held a reception Feb. 21 to inaugurate the Tom Stoddard Fellowship in its Arthur Garfield Hays Civil Liberties Program. The fellowship, which will provide financial assistance to students pursuing public interest careers, honors Stoddard for his years of leadership in the lesbian and gay legal movement. Honorees at the LeGaL Annual Dinner on March 20 will include: U.S. District Judge Deborah Batts, former Family Court Judge Karen Burstein (New York's first openly lesbian or gay candidate for statewide office last year); Prof. Martin Duberman, Director of the Center for Lesbian and Gay Studies at City University of New York; Anita Sher, Director of the New York Office of the Anti-Defamation League of B'Nai B'Rith; Evan Wolfson, Director of the Lesbian and Gay Family Project at Lambda Legal Defense & Education Fund. For information about the dinner, call LeGaL President Aubrey Lees at 212-477-1899. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS Minnesota Supreme Court Denies Damages In Suit Against HIV+ Gynecologist by Uninfected Patient The Minnesota Supreme Court further defined when an uninfected patient may recover tort damages from an HIV+ physician in K.A.C. v. Benson, 1995 WL 51407 (Feb. 10). The plaintiff claimed of negligent infliction of emotional distress, intentional infliction of emotional distress, battery, negligent non-disclosure, and misrepresentation under the Consumer Fraud Act. The claims arose after the plaintiff received a letter from her ob./gyn. stating that he was HIV+ and suffered from exudative dermatitis (a skin rash) when he performed two gloved invasive procedures. The defendant discovered he was HIV positive in September 1990. A month later, he made an agreement with the Minnesota Board of Medical Examiners that he would wear two pairs of gloves while treating patients, refrain from surgery, and voluntarily cease from delivering babies. After this, the defendant performed two invasive gynecological exams on the plaintiff. After the plaintiff's last exam, the defendant again met with the Med. Board and entered into a Stipulation and Order, restricting him from delivering babies, performing surgery, or performing invasive procedures with a sharp instrument. The Board and the Dept. of Health then also decided to notify 336 patients for whom defendant performed gloved invasive procedures during the time when he suffered from exudative dermatitis. The court found that the plaintiff failed to show she was within a "zone of danger" of physical impact, a necessary element to sustain a claim of negligent infliction of emotional distress. The court stated that a "zone of danger" determination is an objective determination. Therefore, since resource materials suggest that the type of contact exchanged between the defendant and the plaintiff would result in only a remote possibility of danger, the court held that a jury could not find a reasonable anxiety arising in the plaintiff, with attendant physical manifestation, and also reasoned that public policy considerations such as the negative impact a subjective standard would have on the affordability and availability of medical, dental, and malpractice insurance, medical and dental care, prescription drugs, and blood products require an objective rather than a subjective standard. The court also held that the plaintiff's claim for intentional infliction of emotional distress could not be sustained because the plaintiff did not offer evidence that the Dr.'s acts were extreme and outrageous. The doctor's cooperation with the Med. Board evinced the contrary. The court also held that the plaintiff's battery claim was not sustainable, since she failed to offer any evidence that she was actually exposed to HIV. The court considered whether the claim should be sustained on grounds that a material aspect of the nature of the procedure was not disclosed. However, the court held that because the defendant's conduct didn't significantly increase the plaintiff's risk of HIV infection the battery claim could not be sustained. Finally, the plaintiff's claim under the Consumer Fraud Act was also rejected. The plaintiff asserted that because the doctor failed to disclose his HIV status he misrepresented his services. However, in order to sustain the claim a plaintiff has the burden of showing that she sustained an injury, which she could not do. A dissent argues that the majority ignored the patient's rights. In fact, the dissent makes a persuasive argument that the duty previously attached to a physician by its prior decision in Kiniken v. Heupel, 305 N.W. 2d 589, 595 (Minn. 1981) was ignored by the court. In Kiniken, the court held that a physician must disclose (1) risks of death or serious bodily harm that are of significant probability, (2) risks which a skilled practitioner of good standing in the community would reveal, and (3) risks that a reasonable physician would think would be of particular significance to a patient. In the instant case, the dissent argues that a reasonable physician would recognize that possible exposure to the AIDS virus would be of significant importance even if exposure was limited. Without this information, the dissent reasons that a patient may not accurately assess their health care choices. Once it is found that a reasonable physician would have known that the plaintiff attached particular significance to the risk, the plaintiff must then, according to Kiniken, prove that an informed and reasonable patient would have opted against the medical procedure and that the undisclosed risk resulted in harm. The harm recognized by the dissent in the instant case is emotional distress. Thus, the dissent argues that it is a jury question as to whether the plaintiff consented to the gynecological exams based on the doctor's misrepresentations. K.F. Connecticut Supreme Court: No Tort Remedy for AIDS Fear Without HIV Exposure Affirming a trial court decision, the Connecticut Supreme Court ruled 4-1 in Barrett v. Danbury Hospital, 232 Conn. 242, 1995 WL 71525 (Feb. 21), that a hospital patient had no cause of action for negligence or medical malpractice on the basis of exposure to blood while lying on an emergency room stretcher. (The patient did not become infected as a result of the exposure.) Finding that the trial court had erred neither in its rulings on the admissibility of expert affidavits nor in its finding that there were no issues of material fact left for determination at trial, the court concluded on the merits: "The plaintiffs have offered no evidence whatsoever, beyond mere assertion, to suggest that Barrett was placed in any risk as a result of the alleged negligence of the hospital" in a situation where Barrett was lying on an emergency room stretcher on top of some blood from an undetermined source. The court relied on prior cases holding that for fear to be compensable, it must be reasonable under the circumstances. "Although we do not adopt the `actual exposure' test in this case, and thereby require the plaintiffs to prove actual exposure to a disease causing agent in order to maintain their cause of action, we are convinced that the plaintiffs have not established a case for emotional distress . . . because they have failed to show any contact with the blood in the manner that they claimed to have caused their fear." In short, there was no credible allegation that Barrett's contact with the blood on the stretcher was of a type that could have caused infection. Justice Berdon dissented, arguing that "this is a simple case of medical malpractice in which the plaintiff . . . suffered a physical impact upon his body and contemporaneous emotional distress. The law, under such circumstances, has always allowed such plaintiffs to recover damages for their emotional distress. Whether there is a rational basis for this claim of damages. . . is not an issue that is before us on this appeal." Berdon asserted that plaintiffs' allegation that Barrett was left lying on "a hospital stretcher where the cushion was oozing blood" was sufficient grounding for the emotional distress claim. A.S.L. Minnesota Appeals Court Allows Forcible Medication of Mentally Ill Patient with HIV The Court of Appeals of Minnesota held that when confronted with conflicting expert testimony regarding neuroleptic medication treatment for an HIV-positive patient previously committed as mentally ill, a trial court's determination will not be overturned unless clearly erroneous. In the Matter of Keith Gilbert, 1995 WL 46269 (Feb. 7, 1995). Gilbert initially refused the medication, prompting the medical director of the Anoka Metro Regional Treatment Center, to which Gilbert had been committed, to petition the court for authorization to administer it. The unpublished slip opinion was written by Judge Jack Davies, who once ruled that a court may not make independent medical determinations unsupported by the record in approving Karen Thompson's petition to be appointed legal guardian for her severely disabled lesbian lover, In Re Guardianship of [Sharon] Kowalski, 478 N.W.2d 790 (Minn. App. 1991). The medical expert apparently testifying on behalf of the hospital reported that Gilbert had been diagnosed with schizophrenia and schizoaffective disorder and therefore recommended "medication," but in a "smaller dosage than requested by the hospital." This expert further testified that he did not know how the proposed neuroleptic medication might react with either HIV or other medications the patient might need to combat it, but that he had "not heard of any adverse reactions." He did know, however, that neuroleptics are prescribed for patients suffering from HIV-induced dementia, once they become psychotic and delusional. By contrast, the court-appointed expert found no evidence of schizophrenic thinking, recommended far less intrusive means of dealing with any subsequent "outbursts" by Gilbert, and cautioned that because patients with HIV-induced brain damage "cannot tolerate medication well, the neuroleptics, if ordered, should be given in low dosages." Judge Davies applied the clearly-erroneous standard of review to each of the trial court's findings and affirmed. Gilbert's first argument, that the diagnosis of schizoaffective disorder was incorrect, was rejected on the procedural ground that the focus of the hearing was on treatment and not diagnosis. Without elaboration, the court added that the trial court's findings were supported by the record. As to Gilbert's second challenge, involving his not being competent to refuse the medication, the court applied a three-pronged test, under which Gilbert would have to prove "(1) an awareness of having a mental disorder; (2) sufficient knowledge about medication and the mental disorder; and (3) a refusal that is not based upon delusional beliefs." The court noted that "[t]hose advocating the involuntary administration of neuroleptics need not disprove all three in order to prevail." Because Gilbert sometimes admitted and sometimes denied that he is mentally ill, the court suggested that the trial court was correct to conclude that he had failed the awareness factor. Second, because of Gilbert's inconsistent responses with respect to the potential risks and drawbacks associated with administering the drug, the court concluded that the trial court was not incorrect in its conclusion that he did not have sufficient knowledge about the medication and his disorder. Finally, the court held that the clear and convincing standard required to meet the necessary and reasonableness test for imposition of neuroleptic treatment was satisfied. "The trial court was required to make a judgement based upon conflicting testimony from the mental health experts." In such cases, the trial court's evaluation of witness credibility is of "'particular significance.'"(citing In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). Therefore, the appellate court indicated, the trial court's decision to credit the testimony of one expert who believed in the benefit of such drugs, but, on the recommendation of another expert, limiting the permissible dosages because Gilbert is HIV- positive, was an acceptable compromise. P.F. California Appeals Court Imposes Tarasoff Duty on Doctors in HIV Sexual-Transmission Case In an opinion by Justice Miriam Vogel, a California Court of Appeal reversed the dismissal of an HIV+ plaintiff's negligence claim against his girlfriend's doctors, holding that the doctors had a duty, even to an unidentified third party, to take reasonable steps to protect his safety. Reisner v. Regents of the University of California, 1995 WL 29397 (2nd Dist., Jan. 26). Plaintiff Daniel Reisner was the boyfriend of Jennifer Lawson, who was a patient of the defendants at UCLA Medical Center. During surgery in 1988, when she was 12, Lawson received a blood transfusion containing HIV antibodies. The doctors learned that the blood was tainted the following day, but told neither Lawson nor her parents. Approximately 3 years later, Lawson began dating Reisner, with whom she eventually had sex. Lawson learned she had AIDS in 1990 and informed Reisner that he was at risk. Lawson died a month later and Reisner learned he was HIV+. The court based its finding of a duty between the defendants and Reisner on Tarasoff v. Regents of the Univ. of Calif., 17 Cal. 3d 425 (1976), which held that a doctor has a duty to take "steps . . . necessary under the circumstances<170) to protect third parties from injury, and Myers v. Quesenberry, 144 Cal. App. 3d 888 (1983), which held that doctors who allowed a distraught diabetic patient to drive could be liable to foreseeable though not readily identifiable third parties injured when the patient crashed her car. The court held that a warning to Lawson or her parents would have been a reasonable step for the doctors to take with regard to their duty to Reisner, and other third parties. The holding is therefore relative narrow in that it explicitly rejects the notion that the defendants' duty would require them to seek out and warn unknown and unknowable third parties. Nor will floodgates of litigation open, the court reasons, because the plaintiff carries a heavy burden in showing causation. (Here, Reisner would have to show that a warning to Lawson would have been transmitted to him, that he would have abstained from sex with Lawson and that he could not have acquired the disease elsewhere.) Notably, the court avoids two traps: it does not vilify Reisner and Lawson for being sexually active at a young age, nor does it demonize people with HIV and AIDS as latter day "Typhoid Marys." We are not completely out of the woods, however. The court's discomfort with writing about sex is apparent in its use of the euphemism, "becoming intimate." D.W. Federal Court Rejects Damage Suit on Safer Sex Education In Brown v. Hot, Sexy and Safer Productions, Inc., No. 93-11842-REK (U.S.Dist.Ct., D.Mass., Jan. 19) (not officially published), District Judge Robert Keeton dismissed a federal damage suit brought by Chelmsford, Massachusetts, high school students and their parents asserting constitutional claims against the school, administrators, teachers, and a contractor (the first-named defendant) that presented a safer-sex program to an assembly of students at the high school. The plaintiffs asserted that this exposure to sexually explicit materials violated the rights of the students and of their parents to privacy, due process, equal protection, and religious freedom. They also made pendent state law claims, as to which Keeton didn't rule as a result of dismissing all the federal claims. Keeton found that mere exposure on a one-time basis to a safer-sex demonstration implicated none of the constitutional concerns asserted by the plaintiffs. "Parents who send their children to public schools. . . daily risk their children's exposure, both inside and outside the classroom, to ideas and values that the parents and the children find offensive. Mere exposure to offensive ideas. . . does not support a parent's claim of violation of rights of substantive due process or free exercise." Keeton noted that there was an exception to this general principle, for situations involving strict religious sects, such as the Amish, but that the exception was not applicable to this case. Keeton also found distinguishable the 1993 decision in Alfonso v. Fernandez, 606 N.Y.S.2d 259 (App.Div., 2nd Dept.), in which a New York court held that a school condom distribution program without parental opt-out violated due process, observing that the instant case merely involved "talk," as opposed to the actual distribution of devices that would facilitate sexual activity in the New York case. Keeton also dismissed as unfounded the assertion that public schools are supposed to be a safe "emotional harbor" in which students are not to be exposed to any material they might find offensive, or that a decision by school administrators to present a sexually explicit AIDS prevention program is conduct that "shocks the conscience" and thus creates tort liability. Keeton rejected the idea that presenting such a program constituted governmental interference with free exercise of religion by the children or their parents. "Government actions that only offend religious believers, and cast doubt upon the veracity of their religious beliefs, do not burden religion unless they penalize faith," he argued. And he also rejected the argument that the school had violated Title IX of the Secondary Education Act, which has been held to reach the issue of sexual harassment in schools, on some sort of hostile environment theory. Such a theory would only support a case alleging an environment hostile to students of one sex or the other, which clearly was not the case in plaintiff's complaint. Keeton dismissed the case conditionally, giving the plaintiffs a month to file an amended complaint stating valid federal claims before the dismissal would be final. Gay & Lesbian Advocates & Defenders (Boston) appeared on behalf of the safer-sex organization. A.S.L. Minnesota Appeals Court Rules Out Tort Damages For Estate for Emotional Injuries of Doctor Who Died From AIDS In Estate of Benson v. Minnesota Board of Medical Practice, 1995 WL 3054 (Minn.App., Jan. 31), the court had to decide whether a cause of action for invasion of privacy under the Minnesota Government Data Practices Act survived the claimant's death from AIDS. The court ruled that it does not. Dr. Benson began to notice lesions on his body in June 1990, and was diagnosed with HIV infection in September. Benson and the Board of Medical Practice agreed on certain restrictions to his practice in February 1991 after the Department received reports about active dermititis on his hands, and the Board undertook an epidemiological investigation. In May, Benson and the board agreed on further restrictions, including notice to his patients of his HIV status. Benson also signed a health data release waiver, permitting the Board to make public his HIV status, and agreed to hold press conferences on the matter. Letters were sent out and press conferences held in June 1991, and the matter was heavily covered by the press. The epidemiological study showed that none of his patients contracted HIV from him. The Department of Health reported the investigation in the New England Journal of Medicine and in the Department's Disease Control Newsletter, published in November and December of 1991. Benson died in September 1992. His estate sued the Board, the Department of Health, and the individuals who wrote the published articles, claiming that their publication violated Benson's statutory privacy rights and caused him emotional and physical devastation and professional humiliation and ostracism. The estate dismissed the individual defendants prior to the trial court's entry of summary judgment in favor of the remaining defendants. The court of appeals ruled that only causes of action for wrongful death and pecuniary losses to a decedent's estate survive the decedent. Because publication occurred prior to death, any injury was personal to the decedent and not a violation of property interests under the statute. The court found that Minnesota does not alternatively recognize a cause of action for invasion of privacy as a matter of general tort law, and found no such right in general law outside Minnesota. Finally, the court found that the nature of the damages sought by the estated showed the personal nature of the alleged injury, noting that actions for emotional distress are disfavored even when the claimant is alive. The court raised the practical concerns of such a lawsuit, stating that this cause of action would require a jury to speculate on the extent and nature of the decedent's emotional devastation, humiliation and ostracism without his presence and testimony at trial. S.K. AIDS Federal Litigation Notes In a non-AIDS-related decision that may prove useful to attorneys representing PWAs, the 4th Circuit Court of Appeals ruled Jan. 18 (Stiltner v. Beretta U.S.A. Corporation, 1995 WL 25643) that an employer violated ERISA  510 when it conditioned continuation of a former employee's health insurance benefits on the employee's waiver of rights in a pending disability insurance proceeding. Under the employer's health benefit plan, benefits ceased if the employment terminated. In this case, the employment had terminated but the employer had voluntarily continued to provide benefits to the former employee after he was laid off in a force reduction. The employee filed suit when the employer sought to condition continuation of the benefits on the employee dropping a claim for disability benefits. In Marcella v. Brandywine Hospital, 1995 WL 60798 (3rd Cir., Feb. 15), the court held that the American Red Cross does not have governmental immunity shielding it from a jury trial in an HIV transfusion case from 1985 that it had removed to federal court. The court noted that it was the first federal appeals court to address this issue in a published opinion, and the district courts were divided. Determination of the issue depended on the degree to which the Red Cross, a federally-chartered association whose activities closely coordinate with the government in many respects, was intended by Congress to be treated like a government agency for purposes of determining tort liability. In the instant case, the trial judge had refused a jury demand by the plaintiff on claims against the Red Cross, and ruled in defendant's favor. The appeals court found that the trial record might have supported such a ruling on the merits, but that a reasonable jury could have come to a different conclusion on causation, and so the case had to be remanded for a jury trial. The court also addressed the issue of deposing the blood donor (apparently still alive since the 1985 transfusion incident), finding that so long as the donor's anonymity was preserved, he could be deposed and used as a witness at trial, since his testimony was directly relevant to the question of whether the Red Cross's negligence in failing to revise printed materials used in the blood collection process was the proximate cause of the plaintiff's injury. Suggesting how the trial court might pick a jury in this case, the court opined that prospective jurors could be shown a photograph of the donor without being told what the case is about, and anyone who recognized him or lived in his community could be excluded; the donor would subsequently testify anonymously. In R.G.H. v. Abbott Laboratories, 1995 WL 68830 (N.D. Ill., Feb. 16) (not officially published), District Judge Castillo granted a motion for summary judgment by the defendant employer on claims of HIV-related discrimination brought by a former research scientist under the Americans With Disabilities Act. R.G.H. was infected with HIV as a result of an accident at work on May 28, 1985. His subsequent career at Abbott involved a series of disappointments in his applications for transfers and promotions. He filed charges with the EEOC claiming that most of these disappointments were due to his HIV status, and subsequently sought to amend his district court complaint to allege wrongful discharge after Abbott fired him rather than allow him to return from a medical leave. The court found his motion to amend untimely, and granted summary judgment to Abbott on R.G.H.'s substantive claims under ADA, finding that in each instance Abbott had a legitimate non-discriminatory reason for its actions, and that in some instances the persons charged with discriminating had been unaware of R.G.H.'s HIV status. In the course of the decision, Judge Castillo also held that incidents predating the effective date of the ADA could not be relied upon by R.G.H. to prove his case. Judge DuBois of the U.S. District Court in Philadelphia has approved a settlement in a lawsuit challenging conditions in prisons operated by the Pennsylvania Department of Corrections, under which the Department agrees to a major overhaul of its policies. Austin v. Pennsylvania Department of Corrections, 1995 WL 65458 (Jan. 17). A major component of the lawsuit was a challenge to policies governing HIV+ prisoners. Under the settlement, the Department will substantially upgrade its confidentiality policies, significantly lessen work-assignment restrictions on HIV+ prisoners, and attempt to negotiate an agreement with the union representing prison staff that will significantly reduce staff access to HIV-related information about prisoners. Most of the lengthy opinion describing the settlement is not concerned with HIV-related issues. The Chicago police department has agreed not to conduct HIV and AIDS testing of applicants for employment, settling a pending federal court suit. Last year, the court refused the city's motion to dismiss the case. Doe v. City of Chicago, 1994 WL 654492 (N.D.Ill., Nov. 17, 1994). The class action was brought by the ACLU AIDS and Civil Liberties Project's Chicago office. (Chicago Tribune, Feb. 15). A.S.L. AIDS State Litigation Notes A Denver, Colorado, jury absolved the blood-banking industry of negligence in its approach to screening donated blood for HIV infection in 1983. Ruling for the defendant American Association of Blood Banks in an HIV-transfusion suit brought by Joseph and Barbara Beaton, the jury apparently accepted the argument that the Association acted with appropriate care in advising its member blood banks on standards to be followed for collecting blood at a time when HIV had not been isolated and identified with AIDS. The Beatons had previously settled their claims against Belle Bonfils Memorial Blood Center for an undisclosed amount, in a case that had already gone to the Colorado Supreme Court on discovery issues. (See Belle Bonfils Memorial Blood Center v. Denver District Court, 763 P.2d 1003 (Colo. 1988).) Their attorney indicated that an appeal of the jury's verdict was likely. (Rocky Mountain News, Feb. 9.). Ruling in a non-AIDS-related case on a point of law that may prove important for PWA's, the New Jersey Appellate Division held Jan. 31 (Granziel v. City of Plainfield, 1995 WL 44276) that reinstatement was an appropriate remedy in a disability discrimination case, even if that meant "bumping" an innocent employee out of a position in order to re-employ the plaintiff. A.S.L. AIDS Law & Society Notes The U.S. Centers for Disease Control and Prevention announced Jan. 30 that based on preliminary analysis of data for 1993, AIDS has become the leading cause of death in the U.S. for persons aged 25 to 44. AIDS had become the leading cause of death for men in that age bracket in 1992. As of 1993 it was the fourth ranking cause of death among women, although it was first overall for the entire population in that age bracket. AIDS is the leading cause of death for women in that age group, however, in 15 of the 135 largest cities. Since the epidemic began, the CDC has counted more than 440,000 cases of AIDS in the U.S., and more than 250,000 AIDS- attributed deaths. NY Times, Jan. 31. Under legislation proposed by Senator Nancy Kassebaum (R-Kan.), chair of the Senate Committee on Labor and Human Resources, a variety of federal AIDS and tuberculosis control programs would be consolidated into a block grant program, leaving to the states the decision about how to spend AIDS-targeted federal money. AIDS Action Council announced Feb. 22 that it had learned of plans to amend the Ryan White Care Act to condition federal money for local treatment programs on the requirement that all pregnant women be tested for HIV. Cleveland, Ohio, Mayor Michael R. White announced Jan. 28 that the city would establish a Free Clinic needle exchange program this spring in response to the AIDS emergency among IV drug users in the city. The action came in response to news that the annual number of newly diagnosed cases among IV drug users had more than doubled from 1990 to 1994. (Cleveland Plain Dealer, Jan. 29). Iowa legislators are considering a measure that would make it unlawful for an HIV+ person to have sex with anybody without disclosing their HIV status to their sexual partner. The Senate approved the measure 47-0 and it is now before the House, according to the Washington Blade. In Michigan, James DeFoy has been convicted of failing to notify a sexual partner that he was HIV+, and is appealing to the Court of Appeals. DeFoy's attorney, Damian Nunzio, claims that prosecutors were improperly relying on a 1988 statute, and that, in any event, DeFoy's sexual partner was already HIV-infected when the men met, according to the Blade. Washington State's openly gay state senator Cal Anderson revealed that he has AIDS in February, as did Olympic champion diver Greg Louganis. The Anderson revelation mainly made a local splash in Washington, where Anderson has been a prominent member of the state's House from 1987 until his election to the Senate last year. The Louganis announcement caused a furor in the sports pages internationally, accompanied by recollection of an incident during the 1988 Olympics when Louganis injured himself while diving and received attention for his bleeding head wound from an ungloved physician who was unaware of his HIV status. Louganis notified the physician subsequently, and he is not infected. The International Olympic Committee reiterated that it will not require competitors to be tested or reveal their HIV status, and follows the practice of taking appropriate precautions for all blood exposures. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS ANNOUNCEMENTS The 1994 Case Table for Law Notes is in finishing stages of preparation and will soon be reading for distribution. Readers who are interested in receiving a copy should send a stamped, self- addressed business size envelope to: Law Notes Case Table, LeGaL, 799 Broadway, Room 340, New York, N.Y. 10003. The envelope should have at least 55 cents postage affixed. A call for papers has been issue for the "Legal Queeries" conference to be held at University of Lancaster, England, on September 22-24, 1995. Those interested in presenting a paper at the conference should send a 100 word synopsis to Leslie Moran, Department of Law, University of Lancaster, Lancaster LA1 4YN, U.K. Contributions from legal scholars in other countries are most welcome. In addition, Moran is co-editing for publication a series of essays to be devoted to the topic "The Legalities of Oscar Wilde." There is a preliminary commitment for publication of submitted essays in the first 1996 issue of the journal Law and Critique, and the potential for subsequent book publication depending upon interest. Inquiries and proposals should be sent to Leslie Moran at the above address. The spring meeting of the North Carolina Gay & Lesbian Attorneys will be held April 29. For information, call John Boddie or Sina Anahita at 910-379-0079 or write Sharon Thompson, President, at P.O. Box 2164, Durham, NC 27702. LESBIAN & GAY & RELATED LEGAL ISSUES: Bainbridge, Stephen M., Student Religious Organizations and University Policies Against Discrimination on the Basis of Sexual Orientation: Implications of the Religious Freedom Restoration Act, 21 J. Coll. & Univ. L. 369 (Fall 1994). Buchanan, Rosemarie, Young, Homeless and Gay, 22 Hum. Rts. No. 1, 42 (Winter 1995). Cole, David, Playing by Pornography's Rules: The Regulation of Sexual Expression, 143 U. Pa. L. Rev. 111 (Nov. 1994). DelGado, Richard and David Yun, The Neoconservative Case Against Hate-Speech Regulation -- Lively, D'Souza, Gates, Carter and the Toughlove Crowd, 47 Vanderbilt L. Rev. 1807 (Nov. 1994). Dolgin, Janet, The `Intent' of Reproduction: Reproductive Technologies and the Parent-Child Bond, 26 Conn. L. Rev. 1261 (Summer 1994). Eberle, Edward J., Hate Speech, Offensive Speech, and Public Discourse in America, 29 Wake Forest L. Rev. 1135 (1994). Green, Richard, Transsexualism and the Law, 22 Bull. of the Amer. Acad. Psych. & L. 511 (1994). Koppelman, Andrew, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (May 1994). Laird, Michael J., The Constitutionality of Political Correctness, 16 Communications & the L. No. 3, 43 (Sept. 1994). Newman, Stephen A., Assessing the Quality of Expert Testimony in Cases Involving Children, 22 J. Psych. & L. 181 (Summer 1994). O'Brien, Raymond C., An Analysis of Realistic Due Process Rights of Children Versus Parents, 26 Conn. L. Rev. 1209 (Summer 1994). Robson, Ruthann, Third Parties and the Third Sex: Child Custody and Lesbian Legal Theory, 26 Conn. L. Rev. 1377 (Summer 1994). Shanley, Mary I., Unwed Fathers' Rights, Adoption, and Sex Equality: Gender-Neutrality and the Perpetuation of Patriarchy, 95 Col. L. Rev. 60 (Jan. 1995). Wilcots, Rosalyn L., Employee Discipline for Off-Duty Conduct: Constitutional Challenges and the Public Policy Exception, 46 Lab. L. J. 3 (Jan. 1995). Student Notes & Comments: Carr, Maureen M., The Effect of Prior Criminal Conduct on the Admission to Practice Law: The Move to More Flexible Admissions Standards, 8 Georgetown J. Legal Ethics 367 (Summer 1994). Selvanera, George, Gays in Private: The Problems With the Privacy Analysis in Furthering Human Rights, 16 Adelaide L. Rev. 331 (1994). VanderHeide, Jeanne M., Is "Don't Ask, Don't Tell" Constitutional? Legislative and Judicial Reform of the Military's Ban on Gay Men and Lesbians, 40 Wayne L. Rev. 1273 (Spring 1994). Specially Noted: You, too, can now own full-text copies of subversive documents proving that the military ban is irrational. Homosexuality and the Military: A Sourcebook of Official, Uncensored U.S. Government Documents, is published by Diane Publishing Co., 600 Upland Avenue, Upland, PA 19015 (610-499-7415). It contains the complete text of the Crittendon Report (a 1950s internal DoD study), the General Accounting Office Study commissioned by Congress during its debate on the ban in 1993, and the Defense Personnel Security Research and Education Center (PERSEREC) Study of 1991, commissioned by DoD for its contingency planning in the event the ban is declared unconstitutional by the courts. Total cost of this volume: $34.95 plus $4 shipping and handling. Be the first on your block. . . A group of lesbian and gay lawyers in Auckland, New Zealand, has published a legal guide titled "OutLaw: A Guide for Lesbian and Gay Men in New Zealand." The Auckland Gay & Lesbian Lawyers Group can be contacted at P.O. Box 5918, Wellesly Street, Auckland, New Zealand. AIDS & RELATED LEGAL ISSUES: Delaney, Mary Guinn, Migration and Health: Crossing Borders: HIV/AIDS and Migrant Communities, 22 Migrationworld Magazine No. 5, 31 (1995). DeWolfe, Ruthanne, The Rights of Non-HIV - and HIV-Positive Prisoners, 28 Clearinghouse Rev. 1079 (Jan. 1995). Greenspan, Judy, Struggle for Compassion: The Fight for Quality Care for Women with AIDS at Central California Women's Facility, 6 Yale J. L. & Feminism 383 (Summer 1994) (introduction followed by brief statements by five female inmates with AIDS). Margulies, Peter, Asylum, Intersectionality, and AIDS: Women With HIV as a Persecuted Social Group, 8 Georgetown Immigration L.J. 512 (1994). McNutt, Briar, The Under-Enrollment of HIV-Infected Foster Children in Clinical Trials and Protocols and the Need for Corrective State Action, 20 Am. J. L. & Med. 231 (1994). Student Notes & Comments: Cipriani, Jean Kephart, The Limits of the Autonomy Principle: Refusal of Life-Sustaining Medical Treatment for Incompetent Persons, 22 Hofstra L. Rev. 703 (Spring 1994). EDITOR'S NOTES All points of view 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 New York. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in Law Notes is welcome and will be published subject to editing.