LESBIAN/GAY LAW NOTES
Lesbian & Gay Law Association of Greater New York
ISSN 8755 9021
May 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, Esq., New York
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;
Mark Sperber, J.D., New York; Paul Twarog, Student, New York; Robert
Bourguignon, Student, Brooklyn; Philip Friedman, Student, Brooklyn; Clarice B.
Rabinowitz, Student, Brooklyn; Klayton Fennell, Student, Florida State.
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)

VIRGINIA SUPREME COURT DEPRIVES BOTTOMS OF CUSTODY; FINDS "ACTIVE
LESBIANISM" A BAR

The Virginia Supreme Court voted 4-3 to reverse the state court of appeals and
confirm the decision of the Henrico County District Court awarding custody of
Tyler Doustou to his grandmother, Pamela Kay Bottoms, rather than his mother,
Sharon Lynne Bottoms, who is a lesbian.  Bottoms v. Bottoms, 1995 WL 234222
(April 21).  Grandmother, known as Kay Bottoms, instituted the action after her
daughter "came out" to her.

Justice A. Christian Compton's opinion sets the stage by acknowledging that the
court previously held that parental sexual orientation is not a per se basis for
finding unfitness, and that there is a rebuttable presumption that a biological parent
is entitled to custody in a dispute with a third party.  Contrary to the court of
appeals, the supreme court found that there was sufficient evidence of unfitness in
the record to sustain the trial court's finding.  Compton stated that on appeal the
trial court's findings of fact "are entitled to the weight accorded a jury verdict, and
these findings should not be disturbed by an appellate court unless they are plainly
wrong or without evidence to support them. . .  Absent clear evidence to the
contrary in the record, the judgment of a trial court comes to an appellate court
with a presumption that the law was correctly applied to the facts.  And, the
appellate court should view the facts in the light most favorable to the party
prevailing before the trial court.  Accordingly, we shall summarize the facts in the
light most favorable to the grandmother, resolving all conflicts in the evidence in
her favor."

Given this view of the court's role, its factual summary, crediting virtually all of
Kay Bottoms's negative allegations, provides an apparently damning bill of
particulars against Sharon, who is described, in sum, as a high school drop-out
ne'er-do-well, neglectful of her young son's welfare to the point of hitting the
infant so hard as to leave marks "on his person," conducting sexual relationships
with a variety of men and then her lover April Wade in the same room of the small
apartment as the baby's crib, and having no means of providing financial support
for the child apart from April's wages.  (Sharon's ex-husband has shown no
interest in Tyler and paid no child support, according to the court.)  The court
rehearsed in detail Kay's allegations that Tyler spent about 70 percent of the two
years prior to the trial in Kay's physical custody, that when returning from visits
with his mother Tyler engaged in foul language of a type not used in Kay's
household, and that Tyler was left with his grandmother so often that Sharon kept
a suitcase of Tyler's clothes permanently packed for the purpose.  The court also
repeated the allegation that Sharon's lover made physical threats against Kay when
arguments arose about visitation, and had admitted striking Tyler.  The court also
noted as significant that the guardian ad litem recommended giving custody to Kay,
reciting the guardian's trial testimony at some length.  The court asserted that
based on these findings it was plausible for the trial court to conclude that Sharon
was unfit.  The court never mentioned evidence introduced by Sharon about her
mother's conduct, or the abusive circumstances to which Sharon alleged her
mother subjected her.

The court specified as significant factors in determining unfitness "the parent's
misconduct that affects the child, neglect of the child, and a demonstrated
unwillingness and inability to promote the emotional and physical well-being of the
child.  Other important considerations include the nature of the home environment
and moral climate in which the child is to be raised." Repeating his prior
observation that a lesbian mother is not per se unfit, Compton asserted: "Conduct
inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth. . .;
thus, that conduct is another important consideration in determining custody." 
Compton spent several paragraphs repeating the bill of particulars against Sharon,
culminating in her lesbian relationship:

      And, we shall not overlook the mother's relationship with Wade, and the
environment in which the child would be raised if custody is awarded the mother. 
We have previously said that daily living under conditions stemming from active
lesbianism practiced in the home may impose a burden upon a child by reason of
the "social condemnation" attached to such an arrangement, which will inevitable
afflict the child's relationships with its "peers and with the community at large."
Roe v. Roe, 228 Va. 722, 728, 324 S.E.2d 691, 694 (1985).  We do not retreat
from that statement; such a result is likely under these facts.  Also, Wade has
struck the child and, when there was a dispute over visitation, she has threatened
violence when her views were not accepted.

Thus, the court infers that the child will be harmed solely on the basis of societal
disapproval of the mother's relationship, and not based on any direct evidence of
harm.  Holding that the trial court ruled correctly in light of the evidence when
viewed in a light most favorable to Kay Bottoms, the court reinstated the trial
court's custody order.

Justice Keenan dissented, joined by Justices Whiting and Lacy.  Keenan argued
that the court erred by presuming that a lesbian mother in a relationship was unfit,
without specific proof that her relationship negatively affected the child. 
Furthermore, since the trial court "applied the wrong rule of law in this custody
determination," argued Keenan, the case should be remanded for application of the
appropriate rule of law to the factual record.  Thus, Keenan would have affirmed
the court of appeals' holding that the trial court erred, but instead of entering
judgment ordering custody for Sharon would have remanded for further
determination by the trial court under the correct standard.

The damage done by this opinion might be limited by emphasizing the "factual
record" on which the court based its ruling, which -- as related by the court --
paints a negative picture of Sharon's parenting abilities apart from her sexuality. 
One might argue, trying to limit its precedential scope, that even a court which
concluded that Sharon's lesbianism did not have a negative effect on Tyler could
determine that she lacked the aptitude and personality traits to be a competent
mother, if the court believed Kay's factual allegations and was inclined to give
significant weight to the damning testimony of the guardian ad litem.  On the other
hand, the court makes quite clear that Sharon's "active lesbianism" (the very use
of the term in this context suggests that Compton views it as some sort of
affliction) is a major factor in its decision, and while disavowing a per se
disqualification of gay parents, as much as holds that if such parents have a sex
life, much less a live-in partner, they are unfit for custody.  As such, the opinion
puts Virginia among the most regressive jurisdictions on this issue.

Sharon Bottoms was represented on appeal by the ACLU of Virginia with amicus
assistance from Lambda Legal Defense Fund, National Center for Lesbian Rights,
and other advocacy groups.  The court's reliance on societal disapproval of
Bottoms' relationship as a significant factor in denying custody suggests a
constitutional ground for objection to the decision under Palmore v. Sidoti, 466
U.S. 429 (1984), but the total lack of discussion on this point in the court's
opinion (or, more significantly, in the dissent) leaves unclear whether this ground
was adequately preserved for appeal to the U.S. Supreme Court.  A.S.L.

LESBIAN/GAY LEGAL NEWS 

Partial Interim Victory in Challenge to Florida Adoption Ban

The Florida Supreme Court ruled unanimously April 27 that the district court of
appeal erred when it ruled that Fla. Stat. sec. 63.042(3), which bans adoptions by
"homosexuals," does not violate the equal protection rights of gay people as a
matter of law.  Cox v. Florida Department of Health and Rehabilitative Services,
1995 WL 242399.  The per curiam opinion joined by five members of the court
held, however, that the lower court correctly dismissed claims that the statute
offends the constitutional rights of privacy and due process, but without providing
any explanation for this conclusion.  Justice Kogan, joined by Justice Anstead
dissented from dismissal of the due process claim.

James Cox applied, along with his domestic partner, to qualify as an adoptive
parent of a "special needs" child, but was rejected when he indicated on the
application form that he is gay.  Cox sued to have the statutory basis for the
exclusion declared unconstitutional.  The trial judge granted summary judgment for
Cox on March 13, 1993, but the district court of appeal found that the trial record
(which consisted solely of briefs and exhibits) did not justify summary judgment for
the plaintiffs, and that the state was entitled to judgment as a matter of law on all
the plaintiff's claims.  

"The record is insufficient to determine that this statute can be sustained against
an attack as to its constitutional validity on the rational-basis standard for equal
protection under article I, section 2 of the Florida Constitution," wrote the court.
"Upon remand, the proceeding is limited to a factual completion of the record as to
this single constitutional issue and a decision as to this issue based upon the
completed record."  Thus, without further explanation, the court implicitly held that
equal protection claims brought by gay people are to be adjudicated under the
rational basis test rather than a heightened scrutiny standard used for suspect or
quasi-suspect classifications.  It remains to be seen whether further along in this
case the Florida courts will impose a more demanding rational basis test than is
currently endorsed by the U.S. Supreme Court under the federal constitution.

Kogan's partial dissent focuses on the due process issue, arguing, quite logically,
that a statute that fails the rational basis test for equal protection purposes would
also offend substantive due process due to its irrationality!  Consequently, it was
inappropriate to dismiss the due process claim prior to a trial on the merits. 
Furthermore, Kogan observed that the state's main argument in support of the
statute's validity was premised on Fla. Stat. section 800.02, which the state
contends outlaws homosexual acts.  (Section 800.02 provides: "Whoever commits
any unnatural and lascivious act with another person shall be guilty of a
misdemeanor of the second degree. . .")  But there is no reported case directly
holding that 800.02 applies to private acts between consenting adults, and some
authority suggests that in order to be "lascivious" an act must take place in public;
furthermore, the state does not make any inquiry into whether heterosexual
applicants have engaged in conduct forbidden by 800.02.  Kogan also notes that
the state does not automatically disqualify felons or those listed in the child abuse
registry from adopting children, raising a significant rationality question regarding
the absolute bar on homosexuals premised on a mere misdemeanor statute. 
Finally, Kogan observes that the same district court that upheld the gay ban in this
case subsequently "overturned an unwritten HRS incipient rule that was used to
deny two lesbians' applications to become foster parents" in Matthews v.
Weinberg, 645 So.2d 487 (Fla.Dist.Ct.App., 2nd Dist. 1994), and suggested that
on remand "the district court at least should reconcile this case with Matthews."

Cox is represented by the ACLU of Florida and the ACLU's national Gay & Lesbian
Rights Project, with amicus assistance from a variety of professional and civil rights
groups, including the National Association of Social Workers, Lambda Legal
Defense & Education Fund, National Center for Lesbian Rights and others.  The
religious right weighed in on the other side through the Rutherford Institute (which
instigates anti-gay litigation nationwide) and the Florida Catholic Conference. 
A.S.L.

Individual Liability for Same-Sex Harassment Found Under California Code

Ruling April 26, the California Court of Appeal, 2nd District, held in Matthews v.
Superior Court, 1995 WL 241694, that gay supervisors can be held personally
liable under the Fair Employment and Housing Code for sexual harassment of male
employees.  Scott Matthews was employed as an admitting clerk at the Emergency
Medical Center of the University of California in Los Angeles.  He alleges that all
the other male admitting clerks were gay, as was the supervisor, but Matthews is
heterosexual.  He claims he was subjected to continuous sexual harassment that
got even worse when he complained about it, and eventually got so bad that he
had to quit.  He sued the medical center and individual supervisors under the Fair
Employment and Housing Code's sex discrimination ban, as well as asserting
claims of intentional and negligent infliction of emotional distress and defamation. 
The individual supervisor defendants sought dismissal of the claims against them,
arguing both that they could not be held personally liable under the FEHC and that
Matthews' disparate treatment sex discrimination claim was not cognizable
because the FEHC does not cover sexual orientation discrimination.  The superior
court sustained their demurrer as to individual liability, and also agreed that
Matthews could not state a disparate treatment claim.

The court of appeal unanimously reversed in a decision by Judge Perez, who found
there was ample precedent to hold individual supervisors personally liable for
unlawful conduct under the FEHC, particularly in harassment cases.  More to the
point, Perez found that same-sex harassment does constitute sex discrimination
under the FEHC, thus differing from courts in some other jurisdictions that have
recently ruled against same-sex harassment claims.  The court of appeal issued a
peremptory writ directing the superior court to vacate its order and overrule the
demurrers.  A.S.L.

N.Y. Appellate Division Rejects Co-Parent Adoption Petition

The N.Y. Appellate Division, 2nd Department, ruled that the N.Y. Domestic
Relations Law prohibits adoptions by the gay or lesbian life partner of a biological
parent.  In the Matter of Dana (Anonymous); G.M. (Anonymous), 1995 WL
146213 (April 3).  The unsigned per curiam opinion upheld the ruling of the Putnam
County Family Court.

G.M. lived with her partner, P.I., since 1976.  P.I. underwent alternative
insemination from an anonymous donor in 1989, and in 1990, she gave birth to a
daughter, Dana.  The two women agreed that they would raise the child together,
and they both shared parenting responsibilities.  In 1993, G.M. sought to adopt
Dana.  Despite a favorable home study report, the Family Court denied the
adoption on two grounds.  It found that the petitioner did not have standing to
adopt pursuant to Domestic Relations Law sec. 110, and that the adoption
proceeding violated sec. 117 (1) (a).

 110 states that "[a]n adult unmarried person or an adult husband and his adult
wife may adopt another person."  The Family Court found that the petitioner did
not fall into either category and thus she lacked standing to bring the proceeding. 
The Appellate Division disagreed with that conclusion, finding that G.M. fit within
the definition of "an adult unmarried person." However, the Appellate Division
agreed with the lower court that the adoption proceeding violated sec. 117(1)(a) of
the Domestic Relations Law, which states in effect that after the adoption
proceeding goes through, the natural parents are relieved of all parental duties and
responsibilities of the child, and shall have no rights over him or her.  The Family
Court found that application of the statute to the case at bar would be "ludicrous"
since the natural mother did not want to give up her rights to Dana, and the
Appellate Division agreed.  The Family Court found that "[t]he intent of the
Legislature was to deny a single person the right to adopt another's child while the
natural parent, the single person, retains parental rights."  The Appellate Division
found that this holding was in "harmony" with several other New York State trial
courts and the Supreme Court of Wisconsin.

G.M. argued that the use of the words "shall be relieved" in the statute, meaning
the duties of the natural parents, implied that the provision was permissive and not
mandatory.  The court rejected that argument, finding that as the legislature
enumerated one exception to the rule in the statute, it meant to exclude all other
exceptions.  The exception is contained in sec. 117(1)(d), and states in effect that
a person who legally marries someone with children may adopt his or her new
spouse's children with the natural parent's consent.  This adoption will not effect
the rights of the natural parent.  The court found that "marriage" is required for
that exception, and the petitioner is precluded from marrying her partner as N.Y.
does not recognize same-sex marriages.

The court acknowledged that other courts in N.Y. and in other jurisdictions have
ruled that adoptions under these circumstances are permissible.  Specifically,
judges in Rochester and Manhattan have found that the best interests of the child
outweigh the statute's narrow construction.  Reporting on the decision, the N.Y.
Law Journal noted that unadopted the children have no right of support and
inheritance from the non-biological mother.  Children would have no right to Social
Security benefits should the partner become disabled, nor to parental visitation
should the couple separate.  In a similar case, Rochester Family Court Judge
Anthony J. Sciolino had found that "[t]o deny legal protection to the children would
clearly be inconsistent with their best interests, and therefore termination of the
biological mothers' rights was not required."  The Appellate Division found that
while these decisions were "well-intended," they disregarded the plain meaning of
the statute and are examples of impermissible judicial intervention into the role of
the legislature, whose job it is to write the adoption laws.

The court concluded by stating that it was not influenced or motivated by G.M.'s
"life-style," but rather that it firmly believed that changes in the Domestic Relations
Law must come from the legislature.  Petitioner was represented by Beatrice Dohrn
of the Lambda Legal Defense Fund, David Schacher of counsel, with amicus curiae
support from Center Kids of the Lesbian & Gay Community Services Center, Inc.,
the Gay & Lesbian Parents Coalition International, and the Association of the Bar of
the City of New York.  An application for appeal was expected. P.T.

Indiana Court Approves Lesbian Co-Parent Adoption Petition 

Finding that they are an "espoused couple" and thus that the petitioning lesbian
co-parent stands in the place of a step-parent for purposes of the adoption law,
White County, Indiana, Circuit Court Judge Robert W. Thacker approved a petition
by JANE DOE 1 to adopt the son borne by her partner, JANE DOE 2
, through alternative insemination.  In the Matter of the Adoption of
JOHN DOE, a Minor Male, No. 91CO1-9405-AD-009 (March 24). 
Thacker noted that the co-parents had been married in a church ceremony in
Muncie, Indiana, in 1991, had jointly applied to a sperm bank for the insemination
of JANE DOE 2 with sperm from an anonymous donor, and had obtained a court order
in December 1994 under which JANE DOE 1 and JANE DOE 2 both took the
same last name of [CENSORED].

"Based upon the evidence presented, the Court finds that the Petitioner, JANE DOE 1, is in loco parentis as to the child sought to be adopted, JOHN DOE
.  Further, JANE DOE 1. . . and the child's biological mother, JANE DOE 2
, are living together in an espoused relationship.  An appropriate
definition of an espoused relationship is found in our Federal Courts where an
espoused relationship is defined as `two people living together, sharing bed and
board, having children, sharing financial, recreational, and social activities together,
along with the normal cares and woes of raising a family without the benefit of a
marriage license or marriage ceremony.'  See Espinoza v. Thoma, 580 F.2d 346
(1978)."  

Thacker found that when unmarried co-parents are an "espoused" couple, the
non-biological parent should be treated the same as a step-parent, who may adopt
without cutting off the biological parent's parental status.  Thacker found that the
adoption had been endorsed by the Office of Family and Children in its home study
report, as well as by the guardian ad litem appointed by the court to represent
JOHN DOE.  Finding that JANE DOE 1 "loves this child as a parent, as does the biological
mother" and that "Petitioner and the biological mother love and care for one
another as parents do in an appropriate family unit," Thacker concluded: "It is
clearly in the child's best interests to have this espoused couple as his parents." 
The court relied on decisions from Massachusetts, Vermont, and New York as
authority, noting that Indiana cases forbid sexual orientation discrimination in
custody and visitation matters "absent proof that the parent's orientation would
adversely affect the child.  A similar standard should apply to same sex adoptions." 
A.S.L.

Georgia Appeals Court Rules on Dispute Between Administrator of Gay Man's
Estate and Surviving Partner

In Katz v. Harris, 1995 WL 221894 (Georgia Ct. of App., April 14), a case that
starkly demonstrates the necessity of wills for gay and lesbian couples, the
biological family of Ira Katz, a gay man who died intestate, brought suit against
Katz' partner of nine years, William Harris, challenging Harris' right to almost all of
his partner's funds and property.  The Administrator of Ira Katz' Estate, Seth Katz,
brought suit against Harris and claimed: 1) that Harris was inappropriately holding
funds given by Ira Katz to Harris; 2) that Harris was inappropriately holding
personal property given by Ira Katz to Harris; 3) that Harris owed the Estate a
formal accounting of all funds and property held by him and his partner; 4) that
Harris breached a duty to the Estate by failing to supply the requested accounting;
5) that Harris converted to his own use property the Estate was entitled to recover;
and 6) that the Estate was entitled to damages.  

Although the trial court granted Harris' motion for summary judgment and awarded
him attorneys fees, the Georgia Court of Appeals partially reversed the trial court
and ordered a trial on the issue of whether Harris inappropriately converted certain
property of Ira Katz to his own use.  The Court of Appeals also ordered the trial
court to reconsider the award of attorneys fees.  The court reached this decision
after sifting through almost all personal items of Ira Katz and William Harris,
including: the bank accounts of both men; extensive lists of jointly purchased
items, such as household furniture and furnishings; the sales contract for a house
the couple planned to purchase; joint vacation expenses; and, an accounting of the
couple's household expenses for rent, utilities and food.  After analyzing all of
William Harris' funds and property remaining after the death of his lover of nine
years, the appeals court found that there was an issue of fact requiring a trial
regarding certain "personal items largely of sentimental value" which Harris may
have been inappropriately holding and that belonged to the Estate.  M.B.

Oregon Appeals Court Upholds Law That Prevents Local Anti-Gay Referenda From
Taking Effect

In a brief opinion issued April 12, the Oregon Court of Appeals upheld the Oregon
statute (O.R.S. sec. 659.165) prohibiting local political subdivisions from enacting
or enforcing legislation that "singles out citizens or groups of citizens on account of
sexual orientation." deParrie v. State of Oregon, 1995 WL 217945.  The statute
also creates a private right of action for injunctive or declaratory relief to invalidate
offending measures.  In examining the priority of state and local governmental
authority, the court applied settled state jurisprudence that state law expressing
substantive policy displaced incompatible local law, despite the home rule principle
recognized in the Oregon constitution.  Since the parties agreed that a "substantive
policy" (the regulation of sexual orientation discrimination protection) was involved,
the decisive issue was whether the statute in fact expressed a policy.  Rejecting
the claim that the statute, in simply prohibiting local laws, did not actually express
any policy, but rather created a void, the court declared that the prohibition of local
regulation itself constituted an expression of policy by the state.  In further holding
that local enactments of the type described in the statute were "incompatible" with
the statute, so as to bring the rule of preemption into play, the court simply
observed that it was not possible for these local enactments to operate
concurrently with the statute, since the statute flatly prohibited them.  Stressing
that the state legislature possessed authority to preempt all local legislation,
whether enacted by a local legislative body or in a popular referendum, the court
rejected a characterization of the voting public as "co-legislators" (with the state
legislature) "attacked" by the latter body.  On two secondary matters, the court (1)
held that one plaintiff's status as a qualified voter was insufficient to confer
standing to challenge the statute, and (2) found no reason to consider the trial
court's statement in its letter opinion (not repeated in its judgment) that the statute
permitted what are "commonly referred to as pro-homosexual ordinances."  R.M.

Federal Appeals Court Upholds Deportation of Honduran Transsexual

The Immigration and Naturalization Service (INS) was justified in denying a
Honduran transsexual's request for asylum because the applicant could not make a
prima facie showing that she would face medical or social hardship if deported,
according to an April 4 ruling by the U.S. Court of Appeals, 8th Circuit.  Ruling per
curiam, the court held in Miranda v. Immigration and Naturalization Service, 1995
WL 142395, tha the Board of Immigration Appeals (BIA) did not abuse its
discretion when it upheld INS's deportation order, but rather "thoughtfully
considered the facts and arguments" presented by the appellant.

Ricardo Pabel Miranda entered the U.S. illegally in 1984.  The INS denied his
request for asylum and found him deportable.  Miranda appealed to the BIA, but
while the appeal was pending underwent sex reassignment surgery and became a
woman, known as Gina Ricarda Miranda.  BIA denied Miranda's appeal and ordered
her to leave the U.S.  She moved to reopen the proceeding to allow her to apply
for a suspension of the deportation order.  After BIA denied the motion, finding no
prima facie showing of hardship, Miranda appealed to the 8th Circuit.

She contended that BIA abused its discretion by failing to consider evidence about
the medical hardships she would face in Honduras.  The court noted that letters
submitted by American doctors indicated Miranda would only need periodic
checkups and hormone treatments.  A letter from two Honduran doctors stated
that an "integral" treatment for transsexualism is not available in Honduras. 
However, the court noted, "The Honduran doctors wrote these letters before
Miranda had her sexual reassignment surgery, and it is reasonable to assume
surgery is a major part of an `integrated' treatment.  Miranda no longer needs
surgery, and the Honduran doctors do not state that Miranda could not receive
hormone treatments or checkups in Honduras."  

The court also rejected Miranda's claim that the BIA failed to consider the social
hardship she would experience if deported.  The BIA "acknowledged Miranda will
face some social difficulties in Honduras as a result of her sexual reassignment
surgery," noted the court, but found that the potential hardship would not be
extreme because Miranda "lived as a woman in Honduras before she left. . . and
was able to be employed there [as a woman]."  The record showed that Miranda,
while still a man, dressed as a woman and did not lose her job.  Thus, the court
concluded, "BIA did not ignore or distort Miranda's evidence about social
hardship."  M.S.

Federal Court Dismisses Transsexual's Discrimination Case

The U.S. District Court for Kansas in James v. Ranch Mart Inc., 1995 WL 148366
(Feb. 22) awarded summary judgment to defendant in a Title VII sex discrimination
action, because  plaintiff, an anatomically male transsexual, made "no
allegations and provid[ed] no facts that Ranch Mart discriminates against males."
The award applied under the Kansas anti-discrimination statute as well.  James told
her supervisor on her day off that she wanted to begin reporting for work as a
woman.  The supervisor resisted the idea, but after James' protests told her he
would discuss the situation with the defendant's president.  The court had earlier
determined that no action could be stated under either statute for employment
discrimination based on transsexualism.  Thus, the plaintiff was required to state
her action under a reverse discrimination theory.  Under that theory, the plaintiff
failed to assert facts and allegations which would support the suspicion that the
defendant was the unusual employer who discriminates against the majority. 
M.S.R.

Federal Districts Split On Title VII Same-Sex Harassment Claims

Two federal district courts ruled during March that same-sex harassment
constitutes sexual harassment prohibited by Title VII, while a third reached the
opposite conclusion.  McCoy v. Johnson Controls World Services Inc., 1995 WL
113480 (S.D.Ga. March 10); Oncale v. Sundowner, 1995 WL 133349 (E.D.La.
March 24); Roe v. K-Mart Corp., No. 2:93-2372-18AJ (D.S.C. March 28).

In McCoy, the female plaintiff sued under both Title VII and 42 U.S.C. sec. 1981,
alleging that a female co-worker sexually attacked, fondled, and kissed her on
several occasions, routinely calling her a M169>white bitch;" the plaintiff further
alleged that, when she reported the incidents to her superiors, no action was taken
and the two women were continuously assigned to work together.  The employer
moved to dismiss, arguing that sexual harassment between persons of the same
gender is not actionable.  Citing Runyon v. McCrary, 427 U.S. 160, 167 (1976),
the court agreed that sexual harassment is not actionable under sec. 1981.  With
respect to Title VII, the court quoted Meritor Savings Bank v. Vinson, 477 U.S. 57,
64 (1986): "[U]nwelcome sexual advances that create an offensive or hostile
working environment violate Title VII."  The court observed that sexual advances
can be unwelcome regardless of the harasser's gender, and quoted Joyner v. AAA
Cooper Transp., 597 F.Supp. 537, 541 (M.D.Ala. 1983), aff'd without published
opinion, 749 F.2d 732, which held that "unwelcome homosexual harassment also
states a violation of Title VII."  Quoting circuit precedent in Henson v. Dundee, 682
F.2d 897 (11th Cir. 1982), the court further reasoned that sexual harassment is
always "based on sex,"" except in the "exceedingly atypical" case of a bisexual
who harasses both men and women equally.  Observing that the employer did not
contend male employees were similarly harassed, the court refused to dismiss the
Title VII claim.

In Oncale, the male plaintiff sued under Title VII, claiming that three male
co-workers sexually harassed him with physical acts and verbal assaults.  The
employer moved for summary judgment, arguing that same-sex harassment was
not actionable.  The court applied Garcia v. ELF Atochem North America, 28 F.3d
446 (5th Cir. 1994), the only published circuit court opinion on same-sex
harassment.  Quoting Garcia, the court wrote that same-sex harassment "does not
state a claim under Title VII.  Title VII addresses gender discrimination."  The court
did not attempt to explain the reasoning of Garcia, but concluded simply that the
circuit court's directive was clear and the district court was compelled to follow it. 
The court noted, however, that the alleged harassment would constitute
outrageous conduct under Louisiana tort law.

The full text of Roe is not officially reported, but the case is described and
excerpted in Daily Labor Report (BNA), April 10, 1995, at A-5.  The plaintiff, a gay
man, was fired after refusing the sexual advances of his male supervisor and filed
suit under Title VII claiming sexual harassment and retaliation.  The employer
moved for summary judgment.  Noting that Garcia was not binding outside the 5th
Circuit, the Magistrate Judge cited both Joyner and Wright v. Methodist Youth
Services, 25 FEP Ca.s 563 (N.D.Ill. 1981), for the proposition that unwelcome
homosexual advances necessarily involve gender discrimination because "an
employee of the nonpreferred gender would not inspire the same treatment."  The
magistrate recommended that the motion for summary judgment be denied, and the
employer reportedly did not file an objection within the 10 days allowed.  O.R.D.

To complicate things further, the U.S. District Court for the Eastern District of
Louisiana ruled April 25 that a female former employee could bring a sexual
harassment claim under Title VII against her former employer alleging harassment
by a lesbian supervisor.  Pritchett v. Sizeler Real Estate Mgt. Co., 1995 WL
241855.  Acknowledging that the 5th Circuit had stated in Garcia that Title VII
does not apply to a same-sex harassment claim, Judge Beer characterized that
statement by the appeals court as "dicta" and said, "it seems discriminatory that a
supervisor should be exempt from a Title VII sexual harassment claim solely
because of that supervisor's sexual orientation.  To deny a claim of same gender
sexual harassment allows a homosexual supervisor to sexually harass his or her
subordinates either on a quid pro quo basis or by creating a hostile work
environment, when a heterosexual supervisor may be sued under Title VII for
similar conduct.  Although it is clear that Title VII does not protect a homosexual
who is discriminated against based on his or her sexual orientation, here it is not
the homosexual who seeks to be protected.  To conclude that same gender
harassment is not actionable under Title VII is to exempt homosexuals from the
very laws that govern the workplace conduct of heterosexuals.  Title VII prohibits
gender discrimination.  Same gender harassment is clearly a form of gender
discrimination because `but for' the gender of the subordinate, she would not have
been subjected to the harassment."  So, Title VII can't protect a gay employee
from same-sex harassment, because Congress did not intend to protect gay people
in the workplace, but Title VII does protect non-gay employees when they complain
about harassment by gays.  This is equality?  A.S.L.

5th Circuit Allows Recovery Under Employee Insurance Benefit for "Accidental"
Death By Autoerotic Asphyxiation

The 5th Circuit Court of Appeals held that a beneficiary is entitled to recover
benefits under an employer-sponsored accidental death and dismemberment
insurance policy, where the covered employee dies as a result of autoerotic
asphyxiation, and where the policy falls within the ambit of the Employee
Retirement Income Security Act (ERISA).  Todd v. AIG Life Insurance Company, 47
F.3d 1448 (Mar. 29).  Writing for the appellate panel, Justice Byron R. White
(U.S.Sup.Ct., Retired), sitting by designation, upheld the determination of the
District Court for the Northern District of Texas that Nancy Todd, decedent's wife
and designated beneficiary, was entitled to recover where, as here, the death could
be deemed accidental.

Noting that this particular decedent was a married man with children, whose
sophistication in designing a system comprised of leashes and a studded dog collar
to control the flow of oxygen to the brain indicated that he had probably engaged
in this activity in the past, Justice White concluded that the deceased did have a
subjective expectation that only heightened sexual pleasure -- and not death or
other injury -- would result.  Moreover, citing expert testimony in prior cases as
well as treatises on autoerotic deaths, White concluded that death by autoerotic
asphyxiation, though not uncommon, is neither the expected nor inevitable result.

White preliminarily determined that federal common law is used in ERISA claims
litigation, both in terms of the various rights and obligations arising under individual
plans and in terms of the construction of specific policy provisions.  In this case,
the specific policy provision to be construed involved the meaning of the term
"accidental."  The insurance company urged that a per se rule be adopted
excluding death or other bodily injury by autoerotic activity from the meaning of
"accidental" as a matter of federal law.  White rejected this argument, endorsing
the reasoning of the lower court that the deceased must have had a subjective
expectation that neither death nor other bodily injury would result from his activity,
and that this belief was reasonable.

The insurance companies need not despair, however, that they will be forever
burdened with paying benefits because a court fails to strain the meaning of
"accident" to encompass situations where an insured seeks pleasure and winds up
dead instead.  Justice White pointed out that his words would be unlikely to have
any "longlasting significance" as "[t]he life insurance companies have ample ways
to avoid judgments like this one."  Presumably, that is, insurance companies are
free to exclude coverage for putatively risky behavior involving sexual gratification
merely by explicitly so providing in the policy.  P.F.

Virginia Lesbian Brings First Suit Under Arlington Ordinance

The first lawsuit ever brought under the Arlington County, Virginia, ban on sexual
orientation discrimination has been filed in state court March 21 by Carolyn Crisp
against the Eastman Kodak Company.  Crisp claimed she was targeted for
discrimination based on her sexual orientation, and alleged various comments and
incidents in her complaint that led her to believe a demotion and forced transfer
related to her lesbian status.  Crisp is represented by Mickey Wheatley, a former
Lambda Legal Defense Fund staff attorney who practices civil rights law in the
Washington, D.C., area.  Washington Blade, March 31.  A.S.L.

Federal Litigation Notes

The Supreme Court heard oral argument April 25 in Hurley v. Irish-American Gay,
Lesbian & Bisexual Group of Boston, 636 N.E.2d 1293 (Mass. 1994), cert.
granted, 115 S.Ct. 714 (Jan. 6) (No. 94-749).  The Massachusetts Supreme
Judicial Court found that the annual St. Patrick's Day/Evacuation Day Parade in
Boston, which is run by the South Boston Allied War Veterans Council, is a "public
accommodation" subject to the state's ban on sexual orientation discrimination. 
The Council argued that compelling inclusion of the Irish-American Gay, Lesbian
and Bisexual Group of Boston, marching under a banner bearing its name, would
violate the Council's 1st Amendment right to determine the message of its activity. 
The Massachusetts court found that the parade had no particular message, being
rather a general celebratory event of St. Patrick's Day and Evacuation Day (a
celebration of the British army's evacuation from Boston during the Revolutionary
War).  According to press reports of the oral argument, the justices seemed
particularly concerned over whether the gay group marching under a banner itself
generated a particular message that the Council would have a right not to be seen
as endorsing.  A decision is expected within ten weeks.  A.S.L.

The 9th Circuit rejected an argument by a convicted bank robber that his trial
counsel erred by arguing to the court that the robber was involved in a same-sex
relationship with a co-defendant who had confessed his own role in the robbery. 
U.S. v. Pearce, 1995 WL 128044 (March 23) (not officially published).  Defense
counsel had argued that Pearce's co-defendant was the dominant partner in the
relationship and thus the more culpable participant in the robbery.  The trial court
sentenced Pearce to 25 years in prison.  Rejecting Pearce's appeal grounded on a
claim of "ineffective assistance of counsel," the court characterized the attorney's
conduct as "a reasonable strategic decision that did not prejudice Pearce,"
concluding that nothing in the record suggested that the trial court "used Pearce's
sexual orientation against him."  The sentence was justified by the usual factors
considered in sentencing bank robbers with significant criminal records.  A.S.L.

The Justice Department announced it would appeal U.S. District Judge Nickerson's
ruling that the "don't ask, don't tell" military policy is unconstitutional to the
Second Circuit, but meanwhile it is continuing to affect the debate about the
policy.  In Baltimore, U.S. District Judge Joseph Young issued a preliminary
injunction on April 27, blocking the discharge of Navy Lieutenant Dirk Selland for a
period of six months while the court considers the merits of Selland's pending
challenge to the policy.  Selland is serving as deputy director of the Fleet Industrial
Supply Center in Norfolk, Virginia, and is evidently highly regarded within his unit. 
Several of Selland's co-workers and superiors testified last summer in a military
court hearing that they had no problems working with him and that his status had
not created any workplace problems, according to coverage in the Norfolk
Virginian-Pilot (April 19).  Meanwhile, Major Joyce Walmer, who was scheduled to
be discharged after acknowledging to a board of inquiry that she is a lesbian and
had participated in a relationship while serving at Fort Leavenworth, suffered a
setback when the 10th Circuit ruled against her on April 4; however, her discharge
was delayed for unexplained medical reasons, according to the Wichita Eagle (April
20). * * *  In U.S. v. Purdy, 1995 WL 232671 (April 19), the U.S. Army Court of
Criminal Appeals rejected a challenge by Oscar Purdy to his conviction for
consensual sodomy under Art. 125 of the Uniform Code of Military Justice.  Purdy
contended that he received ineffective assistance of counsel, and that at least one
of the judges was revealed by his comments to be biased against gays.  In a
peculiarly extended opinion, the court rejected Purdy's contentions.  This was a
case with particularly bad facts, since Purdy seems to have been apprehended
soliciting underage teenagers for sex.  A.S.L.

A federal district court jury in Manhattan awarded $111,000 damages to two gay
men who were beaten up by Drug Enforcement Agency agents in a 1988 incident. 
Anderson & Grubb v. Branen, Kindestin & Wisniefsky, 90 Civ. 7014 (R.O.) (April
12).  As recounted in the New York Times (April 13), the plaintiffs claimed that
they were singled out by the defendants for physical abuse because of their sexual
orientation, who used excessive force and improperly arrested them in connection
with a minor traffic incident.  The jury concluded that the agents did use excessive
force and the plaintiffs' arrests were improper, but that the agents did not act out
of anti-gay bias.  However, the award of punitive and compensatory damages was
seen by Ruth Harlow, ACLU staff attorney who was co-counsel, as sending a
message to government agents, and another lawyer for the plaintiffs, Joseph F.
Tringali of Simpson Thacher & Bartlett, told the Times that the verdict was not
specifically a finding that there was no homophobia; rather, the jurors did not know
based on the evidence whether homophobia was involved.  A.S.L.

Minnesota Extortionist Preying On Gay Men Convicted of Murder

The Supreme Court of Minnesota dismissed all objections to a sentence of life
imprisonment without parole for a murderer who took advantage of gay men.  In
State v. Bolte, 1995 WL 217676 (Apr. 14), the defendant was convicted of first
degree murder after the body of a man who had been held for ransom was found
buried on defendant's premises.  The police traced the defendant through phone
calls to the victim's mother.  The prosecution introduced evidence of other crimes,
including a 1977 conviction for aggravated rape, two 1987 convictions for false
representation as an officer to extort money from gay men, and a 1992 incident
where the defendant induced a friend of his to brandish and fire a pistol at a man
defendant had recently met through a personal ad.  On appeal, the defendant
challenged the introduction of evidence relating to the 1977 conviction and the
1992 incident.

Justice Stringer concluded that it was error for the trial court to permit the
introduction of evidence of the 1977 aggravated rape conviction, because of the
time lapse since the crime and the lack of similarity to the offense charged. 
However, the court found that the  error was not prejudicial; given the
overwhelming evidence linking the defendant to the murder, the weakness of
defendant's case, the omission of the 1977 crime from closing argument, and a
cautionary instruction to the jury, there was no reasonable possibility that the error
affected the verdict.  The court also rejected defendant's argument that the
prosecution had failed to inform the defense about introducing evidence as to the
1992 incident, finding "substantial compliance with the notice requirements and
lack of prejudice to the defendant."  Finally, the court disposed of defendant's
complaints about a jury instruction on reasonable doubt, about the prosecution's
failure to disclose its intent to introduce an audio tape recording of the defendant,
and about the inadequacy of his representation.  R.B.

Lesbian Reporter Vindicated in Discrimination Case

Julie Brienza was a reporter for United Press International (UPI) who also did
freelance reporting for gay periodicals.  She was discharged in 1990 after a
religious broadcaster, Rev. Vic Eliason of Milwaukee, who she sought to interview
for a story she was writing for the Washington Blade, discovered she was a UPI
reporter and urged his radio listeners to flood UPI with complaints about Brienza's
credibility being compromised by her gay journalism.  Brienza sued both Eliason and
UPI, represented by Lambda Legal Defense Fund.  On April 5, Brienza announced
settlement of the claim against Eliason for $255,000 and a formal apology for his
actions in interfering with her contractual relationship with UPI.  UPI having
defaulted on the claims against it, U.S. District Judge Joyce Hens Green signed an
order in Brienza v. United Press International, C.A. No. 90-2925 (U.S.Dist.Ct.,
D.D.C.), declaring that UPI had violated the D.C. Human Rights Law when it
terminated Brienza and requiring expungement of any personnel records reflecting
this unlawful termination.  Brienza had not asserted a damage claim against UPI,
which was in dire financial straits at the time and was subsequently sold to new
owners.  A.S.L.

Pennsylvania Cleans Up Its Sex Crimes Laws

On March 29, Gov. Tom Ridge of Pennsylvania signed into law Act No. 1995-10
(S.B.2), a Sexual Offenses statute that amends relevant provisions of Titles 18, 23
and 42 of the Pennsylvania Consolidated Statutes to modernize the state's sex
crimes laws.  Among other things, the enactment repeals Title 18, sec. 3124, the
criminal prohibition of voluntary deviate sexual intercourse, which had been
declared unconstitutional in Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980),
and replaces it with constitutionally sound prohibitions on involuntary deviate
sexual intercourse and publicly performed sexual intercourse.  A major innovation
of the new law is to make the various sex offenses gender neutral.  The enactment
also includes strict penalties in connection with child pornography.  A.S.L.

Kentucky Court Questions Juror Bias Against Gays

The Louisville Courier-Journal reported March 24 that the Kentucky Supreme Court
had the previous day vacated the conviction of one Edward Shelton of "sodomizing
a child" because the trial judge did not excuse potential jurors who had said they
would lean toward conviction solely because the defendant was gay.  We have
been unable to locate a report of this case on either Westlaw or Lexis.  According
to the newspaper story, the court criticized the trial judge for "comparing
homosexuality and child abuse to alcohol intoxication," warning him to avoid such
comments at the retrial.  The court also said the judge should have excused
another juror who had said he would find a gay person's testimony less credible
than other people.  A.S.L.

Lesbian Co-Parent Gains Trial of Visitation Demand

The San Francisco Sentinel reported April 19 that a lesbian co-parent in New
Hampshire has won the right to contest visitation with the young child of her
former partner.  New Hampshire Superior Court Judge Edward Fitzgerald scheduled
a hearing for May 16 on Joan Comeau's claim that her "close, extra-parental"
relationship with the child justifies a visitation order.  Comeau and Lucinda Grondin
decided about six years ago that Grondin would bear a child whom they would
jointly raise as co-parents.  The women ended their relationship in 1991, but
Grondin permitted Comeau to have continued contact until last October.  Comeau
sued for custody and visitation.  Ruling on Grondin's dismissal motion, Fitzgerald
held that Comeau could not seek custody because Comeau and Grondin were
never married and custody is determined in a divorce proceeding.  However,
Fitzgerald found that Comeau's allegation sufficed to make a prima facie claim for
visitation under New Hampshire law, and scheduled the hearing to give Comeau an
opportunity to prove her claim.  A.S.L.

Domestic Partnership Notes

The Minnesota Supreme Court has refused to review the state court of appeals'
January decision finding that the city of Minneapolis lacked authority under state
law to extend domestic partnership insurance benefits to its municipal employees. 
Lilly v. City of Minneapolis, 527 N.W.2d 107, rev. denied, March 31, 1995.

The Town Council of Chapel Hill, North Carolina, voted April 24 to establish a
domestic partnership registry and to redefine "family" in its various municipal
policies and practices to include registered partners.  The only area where equal
treatment was not extended, for now, is health insurance benefits, the Council
finding that further study of the legal issues is necessary.  However, the indication
was that the Council will extend such coverage if it is determined that it can do so. 
(Recent court decisions in Georgia and Minnesota casting doubt on the authority of
local governments to extend benefits have apparently raised a red flag on this
issue.  Those decisions relied heavily on state laws dealing with public sector
employee benefit plans.) 

The burning question whether unmarried heterosexual couples should be treated as
domestic partners roiled the waters in San Mateo County, California, where the
public school system extended family leave benefits to gay couples but balked at
extending them to unmarried non-gay couples.  The teachers union took the matter
up, and a new collective agreement will extend the benefit to all domestic partners,
gay or non-gay.  San Francisco Chronicle (April 8).

New private employers with domestic partnership policies include Xerox
Corporation and Springfield College (Massachusetts).  Xerox will provide up to
$1,000 monetary assistance to employees to help purchase health insurance for
their partners.  Springfield College will recognize partners named in an affidavit filed
with the school for a variety of purposes, including insurance coverage.  

The federal interior department denied a claim for relocation expenses on behalf of
the domestic partner of an employee who had been transferred from
Massachusetts to West Virginia, according to Federal Times, April 17.  Gloria
LaDouceur received reimbursement for only half her claim for financial assistance in
purchasing a new home at her new work relocation, since she purchased the home
with someone not recognized as her spouse.  LaDouceur argued that the agency
should apply the definitions contained in Family and Medical Leave Act regulations,
which would include same-sex domestic partners, but the agency is taking the
position that FMLA only applies to leaves, not to other agency policies. 
Bureaucrats!  A.S.L.

Scouts Sued Again

Keith Richardson is suing the Boy Scouts of America in the Chicago Commission on
Human Rights, claiming that the organization's refusal to allow him to apply for a
professional position with the organization based on his sexual orientation violates
Chicago's sexual orientation discrimination ordinance.  His lawyer, ACLU staff
attorney Geoffrey Kors, was quoted in the Chicago Tribune (April 6) as saying
"This is the first case I'm aware of in the country where a company acknowledges
they have a policy of refusing to hire lesbians or gay men in spite of a law
forbidding it."  A.S.L.

Congress Won't Discriminate

Repeating an exercise that had been very successful in the last session of
Congress, the Human Rights Campaign Fund surveyed all members to determine
whether they would discriminate against gays in their own office hiring policies. 
287 members of Congress wrote that they would not discriminate, down from 296
in the last Congress, but still a majority of the 535 members.  Putting a positive
spin on the numbers, HRCF Executive Director Elizabeth Birch said, "It is
encouraging that the critical bloc of moderate swing votes in this Congress
supports the concept of equal treatment for gay Americans."  Associated Press,
April 14.  * * *  Somebody else who says he won't discriminate: It was reported
on America On-Line on April 14 that the mayor of Fort Wayne, Indiana (not named
in the posting) had issued an executive order banning discrimination in sexual
orientation in city agencies.  A.S.L.

Clinton to Ban Sexual Orientation Discrimination in Security Clearances

A draft is circulating in Washington, D.C., of a proposed executive order to revise
the procedures governing security clearances.  Most of the press comment about
the draft order has concerned the increased intrusiveness of security investigations
in response to recent security scandals, most notably the Aldrich Ames CIA
incident.  But also part of the revision will be an express ban on discrimination on
the basis of sexual orientation.  President Clinton is expected to issue the order
within the next month or so.  It would be the first presidential executive order to
ban sexual orientation discrimination, and would in effect override an executive
order by Dwight Eisenhower that barred federal employment of "sex perverts" and
that has never been officially revoked.  A.S.L.

International Notes

Will Poland be the next country to ban sexual orientation discrimination in its
constitution?  The constitutional committee on April 11 proposed a human rights
clause that would include sexual orientation in the list of characteristics that may
not be the basis of discrimination (Art. 22, para. 2), but the proposal stirred
considerable dissent, according to an article in the April 24 Warsaw Voice titled
"Homosexual Rights Provision: Love's Close-Call Clause," by Piotr Dukaczewski
and Grzegorz Witkowski (distributed on the Queerlaw listserver on the Internet). 
The proposal closely followed one by President Lech Walesa two years ago for a
human rights provision in Poland's proposed fundamental law. 

The Amsterdam City Council has sent a formal letter to the Dutch government,
urging it to enact legislation on "long-term relationships between persons" that
would provide legal recognition for same-sex couples.  Many smaller cities and
towns in the Netherlands now offer the opportunity for partnership registration, but
this is largely symbolic and the Amsterdam Council has refrained from enacting
such a measure, prefering to hold out for something more akin to same-sex
marriage on the Scandinavian model, according to a posting to the Euro-Queer
listserver on the Internet.  

More on the outing campaign by OutRage, the British activist gay rights group. 
Evidently, outing religious figures in England doesn't necessarily hurt the outee, as
Prime Minister John Major has nominated David Hope, Bishop of London, who
announced he was "sexually ambiguous" in response to the outing campaign, to be
the next Archbishop of York.  A.S.L.A.S.L.

Professional Notes

Roberta Achtenberg has resigned as Assistant Secretary of Housing and Urban
Development for Civil Rights in order to run for mayor of San Francisco.

Jon Davidson has resigned from the staff of the ACLU of Southern California's
Lesbian and Gay Rights Project to become supervising attorney in the Los Angeles
office of Lambda Legal Defense and Education Fund.

AIDS AND RELATED LEGAL NEWS BRIEFS 

4th Circuit Upholds Restricting HIV+ Surgeon From Practice

In Doe v. University of Maryland Medical System Corporation, 1995 WL 138993
(4th Cir., Apr. 3), the Fourth Circuit Court of Appeals affirmed a district court
decision that an HIV+ surgeon is not otherwise qualified under the ADA or the
Rehabilitation Act, concluding that he poses a significant risk to patients that
cannot be eliminated by reasonable accommodation.  The parties did not dispute
that infection with HIV is a disability, that the surgeon, a neurological resident, is
HIV+ and but for this condition would be qualified to continue his residency at
UMMSC, and that the surgeon was terminated because he is HIV+.  Rather, the
issue was whether reasonable accommodations could be made, and thus whether
he could be otherwise qualified to work.  For this analysis, the court examined
whether the surgeon met the second requirement for establishing an ADA or
Rehabilitation Act violation.  Under the second requirement, an individual is not
otherwise qualified if he poses a "significant" health or safety risk to others by
virtue of the disability that cannot be eliminated by reasonable accommodation.

The surgeon asserted that according to reasonable medical judgment of public
health officials, reasonable accommodations could be made that would prevent him
from posing a significant health or safety risk.  As proof, he offered statistics from
the Centers for Disease Control and Prevention showing the small probabilities of
transmission; the risk to a single patient from an HIV+ surgeon ranges from one in
42,000 to one in 417,000.  The appellant also asserted the CDC's conclusion that
based on current available data, a health care worker following universal
precautions (hand-washing, wearing gloves and masks, and care in the use of
needles and other sharp instruments) should not be restricted from performing
invasive procedures.  Furthermore, the surgeon argued that UMMSC's own panel
of experts on blood pathogens concluded that reasonable accommodations could
be made to prevent him from being a significant health risk, including: returning to
surgical practice except for one procedure; rigorously following infection control
procedures; notifying parties if his blood ever contacts a patient's non-intact skin;
and providing a blood specimen for use in DNA comparisons should a claim of
transmission arise.

The UMMSC administration maintained that the appellant was not otherwise
qualified for his current residency program, claiming he poses a significant health
risk which cannot be eliminated by reasonable accommodations.  UMMSC
supported their argument with Nassau County v. Arline, 480 U.S. 273 (1987), and
a recommendation from the CDC.  In Arline, the Court set out a four-prong test to
determine when there is a significant health risk so as to preclude one from being
otherwise qualified.  The four-prong test examines the nature, duration, and
severity of the risk along with the probabilities that the disease will be transmitted. 
In UMMSC, only the fourth prong was in dispute.  The appellant argued that the
probability of  transmitting HIV to a patient is infinitesimal, but UMMSC maintained
that they alone determine the severity of the risk.  For while the CDC concluded
that the transmission risk between surgeon and patient is minimal, the CDC also
recommended that individual health-care organizations should determine what
procedures are a risk, and when to restrict health care workers from performing
such risky procedures.  Thus, the court gave deference to UMMSC's determination
and held that while there are no documented cases of sugeon-to-patient
transmission, the risk of transmission is omnipresent.  The court found therefore
that since no reasonable accommodations could remove all risk of transmission, the
surgeon was a significant health risk, and thus not otherwise qualified.

The court also held against the surgeon in his equal protection claim.  The surgeon
claimed that only HIV+ health care workers whose statuses are known are
restricted from invasive procedures.  Yet, the court reasoned that since those with
disabilities receive only rational basis scrutiny, it is presumed that UMMSC's
treatment of known HIV+ health care workers is rationally related to a legitimate
state interest.  The court found this state interest to be the protection of the health
of UMMSC patients. K.F.       

District Court Rules for Government in Transfusion Case

The U.S. government, through the Armed Forces, did not breach acceptable
standards of care in screening blood donated in a military blood bank in January of
1985, according to Kipp v. United States, 1995 WL 152791 (D.Neb., March 17). 
Judge Shanahan made the following findings of fact.  Darryl Bonner, a soldier
going through basic training in Ft. Knox, Kentucky, donated blood on January 16,
1985.  At the time, Bonner was interviewed by Sergeant Rachel Demaree.  The
interview was confidential and designed to review answers Bonner had given on a
questionnaire to determine whether Bonner was at high risk of acquiring AIDS.  In
addition, Demaree performed a physical exam on Bonner checking his blood
pressure and looking for signs of Kaposi's sarcoma.  Based on the answers to the
questions and the physical exam, Demaree did not think that Bonner was at risk of
acquiring AIDS.  

Subsequently, the donated blood was infused in Cheryl Kipp.  After infusion it was
discovered that Bonner's blood was infected with HIV and Kipp subsequently died
of AIDS.  Judge Shanahan also found that the FDA did not license the first tests to
identify HIV antibodies in blood until March of 1985.  Through expert testimony it
was determined that the screening Bonner went through was the appropriate
standard of care for screening blood donors in January of 1985.  Based on these
facts the Judge dismissed the Kipp's claim against the government.

Under normal circumstances, the writer would agree with this decision.  However,
the facts of this case raise unanswered questions.  Because blood screening tests
do not detect recently infected blood, we must be able to rely on the honesty of
blood donors as to whether they have engaged in high-risk behavior. When the
blood is collected from military personnel by military personnel, the honesty of the
donors must come into question.  Even though a donor's response concerning high
risk behavior is supposed to be kept confidential, the military's past ban on
homosexuality, as well as today's "don't ask, don't tell" policy, give military
personnel a strong incentive to lie about high risk behavior.  This raises the
question whether the military's policies concerning homosexuality are putting the
blood supply at risk by giving service members an incentive to lie about high risk
behavior.  T.V.L.

New York Appellate Division Revives Gay Man's HIV-Transmission Suit Against
Deceased Lover's Estate

On April 25 a unanimous panel of the N.Y. Appellate Division, 1st Department,
partially revived Jose Manuel Plaza's lawsuit against the Estate of his deceased
lover, Scott Allen Wisser, finding contrary to the trial court that some of the claims
were not time-barred and that the complaint stated cognizable claims in negligence. 
Matter of Plaza, NYLJ, April 27, p.25.  At the same time, the court sustained
dismissal of a battery claim against the estate, as well as various claims against
Wisser's parents, both personally and as administrators of Wisser's estate.

Plaza alleged that when he met Wisser in 1986 and their relationship began, Wisser
said he had no prior gay relationships involving penetrative sex.  Plaza alleged that
it was not until 1990, after Wisser was diagnosed HIV+ and subsequently
informed Plaza, that Wisser also indicated he did have a prior gay relationship with
a "very wild, promiscuous, person" who had "killed" him, and with whom he had
broken off the relationship because of his former partner's promiscuity.  Plaza
remained with Wisser until Wisser's death in December 1992.  Plaza tested HIV+
a few months after Wisser died, in March 1993, and filed claims against the Estate
and Wisser's parents in August 1993, about six months later.  The claims against
the parents involved their treatment of Plaza in connection with Wisser's funeral,
and their action in having Wisser's property sold without notice to Plaza, despite an
alleged oral agreement with Wisser under which Plaza was to be allowed to
continue to live on the property and to receive monetary support from the estate. 
The claims against the Estate included fraud, battery, negligence, breach of
contract, and violation of N.Y. Public Health Law sec. 2307, which forbids people
with contagious venereal diseases from having sexual intercourse.  

The trial court found the fraud and battery claims time-barred, and also found that
Plaza had conceded various items of knowledge that belied his claim that he had
been deceived by Wisser.  Various other claims were dismissed for mootness. 
Since the court dismissed all the claims, it never ruled on Plaza's discovery demand
for Wisser's medical records.

On appeal, the court agreed that intentional tort claims were time-barred under the
circumstances, but found that Plaza had alleged facts sufficient to get a trial on the
negligence claims against the Estate, noting that New York courts have found
negligent HIV-transmission claims to be governed by a rule that starts the time
clock running when the plaintiff discovered or should by reasonable diligence have
discovered his injury.  The court agreed with the trial court that claims against the
parents should be dismissed.  While conceding that the Wissers' treatment of Plaza
in connection with the funeral (Plaza alleged that they "prevented" him from
"openly attending" Wisser's funeral) "may have caused distress and anxiety to
plaintiff," wrote Justice Sullivan for the court, "they can hardly be said to allege
conduct which is `so outrageous in character and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community," which would be necessary to sustain
an emotional distress claim.  The court also found Plaza's claims about continued
residence and the sale of the property to be faulty (not least on statute of frauds
grounds).  As to the alleged Public Health Law violation, the court noted that AIDS
has not been treated as a venereal disease for purposes of New York public health
law, and thus the statute was inapplicable.

Since the negligence claims were revived for trial, the court addressed Plaza's
discovery request, holding that it fell within the authorization of the Public Health
Law for courts to compel release of medical records that are necessary to pursue a
civil action.  Looking to the policy of Article 27-F, which governs AIDS
confidentiality, the court observed that this provision was intended to preserve
confidentiality in order to encourage voluntary testing, but that such considerations
"are not implicated in this case, where the medical records are those of a deceased
person."  Since Plaza would have to prove that Wisser knew or had reason to
know that he was HIV+ at a time when Wisser was continuing to engage in
unprotected sex with Plaza in order to prevail on his claims, he has a "compelling
need" for the records, since otherwise he might be foreclosed from any possibility
of recovery.  A.S.L.                                                                                          
  New York City Moves Against Sex-Related Businesses in HIV Prevention
Campaign

New York City and its Department of Health took action against three sex-related
businesses patronized by gay men, for the avowed purpose of seeking to prevent
HIV transmission.  The Earle Theatre, in Jackson Heights, Queens, was temporarily
closed by court order on February 8, the New David Cinema in the Times Square
area of Manhattan was closed on March 29, and the West Side Club, a bathhouse
that had opened just months earlier, was closed April 5, but reopened April 10
after a judge vacated the closing order which had been premised on a zoning
violation involving lack of a license to operate a health club on the premises. New
York Times, April 16, p.23.  The government moves came in the wake of formation
of Gay and Lesbian H.I.V. Prevention Activists (GLHPA), a group that has been
urging the city to take steps to require sex-related businesses to enforce the Public
Health Code rules against provision of accommodations for unsafe sexual activities,
defined as anal or oral intercourse.  (The Public Health Code provisions do not on
their face recognize any distinction based on condom use.)  There had also been
criticism in the mainstream press of the failure of the city government to move
against such establishments despite mounting evidence that activities in violation
of the Public Health Code were occurring and stories that the rate of new HIV
infection among younger gay men has been rising.

In City of New York v. Zohar, Index No. 2825/95 (N.Y.Sup.Ct., Queens Co.),
Justice Golar signed an order by which the city and the Earle Theatre operators and
landlord stipulated to terms for reopening the theater.  The agreement requires,
among other things, close monitoring by uniformed guards of patrons' activities in
the theater, surprise inspections by agents of the landlord, active safe-sex
education activities in the theater (including running safe-sex public service
announcements for at least 3 minutes of every hour), and mandatory training for all
theater personnel.  The agreement also provides for unrestricted entry for Health
Department inspectors to check up on compliance, and allows the Health
Department to renew its application for stricter measures (including closure) if the
agreed-upon measures do not put an end to the Health Code violations. 
Significantly, the agreement requires the theater to eject patrons who engage in
activities, such as "exposing genitalia," that "might lead" to unsafe activities, so
even solitary masturbation in the theater is apparently prohibited under the name of
preventing HIV transmission.

Contrary to Justice Golar, in Manhattan Justice Diamond ruled in City of New York
v. Dana, NYLJ, April 20, p. 29 (N.Y.Sup.Ct., N.Y. County), that the New David
Cinema should not be allowed to reopen because there did not lie "a course of
state action that would abate the nuisance without closing the Cinema. . .  No
principal of the Cinema offered a sworn affidavit or appeared at trial to testify with
respect to any proposal to eliminate the offending activity while remaining open." 
Diamond found that the past conduct of the Cinema in reaction to repeated written
warnings from the Health Department destroyed the credibility of testimony by its
employees about how they monitored customer activity.  Diamond rejected the
defendants' attempt to rely on Arcara v. Cloud Books, 68 N.Y.2d 552, in which
the N.Y. Court of Appeals had voided the closing of an adult bookstore on First
Amendment grounds.  In Arcara, the local prosecutor argued that the bookstore
was a public nuisance because of prostitution and drug sales activity by patrons of
the establishment.  The court held that closing a bookstore should be a last resort
after other attempts to deal with unlawful activity, such as arresting individual
offenders, fails to end the nuisance.  Diamond emphasized that the Cinema had
received repeated threats of action from the Health Department, and stressed the
seriousness of HIV-transmission and the traditional latitude given to public health
officials (as opposed to anti-vice prosecutors), in seeking to distinguish the cases.  

According to a report in the New York Law Journal, attorney Carl Kaminsky, who
represents the operators of both the Earle and the New David, was "not optimistic"
that the city would offer the New David an opportunity to reopen under terms
similar to the Earle, and indicated he would institute an appeal of Diamond's
decision.  Some opposition within the gay community to the city's actions has led
to the formation of one or more other groups concerned with HIV-transmission
issues which distinguish themselves from GLHPA by opposing forced closures and
some aspects of the Earle theater agreement.  * * *  In a similar story emanating
from Washington, D.C., an agreement was negotiated between community leaders
and the owner of The Crew Club, a gay club where it was alleged that unsafe
sexual activity was allowed to take place, under which the club will restrict
activities on the premises.  An expose in the Washington Post reporting in tandem
about the New York City developments and the Crew Club controversy in
Washington may have helped persuade the club owners to agree to restrict their
operations. A.S.L.

Discriminatory Dentist Entitled to Jury

In a very belatedly published decision, the U.S. District Court in Maine (Brody, J.)
ruled April 17, 1994, that a dentist charged with unlawful discrimination against an
HIV+ patient is entitled to a jury trial in the combined ADA/Maine Human Rights
Act action in federal court, because of the possibility of obtaining compensatory
damages under the Maine law.  The court rejected the plaintiff's argument that no
jury was needed because her claim for relief was equitable in nature.  Abbott v.
Bragdon, 1994 WL 792497.  A.S.L.

Campbell University Settles Discrimination Claim; Agrees to Reinstate Phys Ed
Teacher With AIDS

Campbell University in Raleigh, North Carolina, has agreed to settle an action
brought by the EEOC on behalf of a physical education instructor with AIDS who
was discharged out of fear that he might spread the disease to students.  EEOC v.
Campbell University, No. 5:94-CIV-301-BO(3), U.S.Dist.Ct.,  E.D.N.C.  The
settlement agreement, approved March 29 by District Judge Terrence W. Boyle,
provides for reinstatement with full benefits, including future disability benefits. 
Boyle had entered a preliminary injunction last year while the case was pending. 
The EEOC's attorney claimed that the University settled after evaluating expert
testimony indicating the lack of significant risk of HIV transmission in the work
setting.  See BNA Daily Labor Report No. 66, 4/6/95, A-10.  A.S.L.

Ohio Court Upholds Negligence Award For Woman Who Had Hysterectomy After
Receiving False HIV+ Result

In Kennedy v. University of Cincinnati Hospital, 1995 WL 141348 (Mar. 30), the
Ohio Court of Appeals ruled that once a hospital admits negligence in disclosing
erroneous HIV test results, the plaintiff need not prove proximate cause.  In 1990,
the plaintiff, Andrea Kennedy, then working as a nursing assistant for defendant,
pricked herself with a needle that had been used to draw blood from another
patient.  After a blood test, defendant informed Andrea that she had tested HIV+. 
During a counseling session with a doctor from the hospital, Andrea was told that
due to "certain aspects of her lifestyle," she had placed herself at an increased risk
of HIV infection.  After stressing the importance of another blood test, the doctor
drew a new blood sample.

For some time prior to this incident, Andrea had suffered urinary tract infections,
pelvic inflammatory disease, and chronic depression.  Before the second test
results were reported, Andrea visited her gynecologist, complaining of pelvic pain. 
Andrea informed her doctor that she was awaiting the results of her second HIV
test.  Although hysterectomies are not recommended for women with HIV, due to
the risk of infection, the doctor permitted Andrea to undergo a hysterectomy.  Her
doctor testified that the hysterectomy had been medically necessary for some time. 
However, Andrea had previously withheld consent because she desired to have
more children.  Her doctor further testified that it was Andrea's belief regarding her
HIV status that had been the determining factor in her decision to undergo the
hysterectomy.

After the hysterectomy, Andrea was informed that her second blood sample had
tested negative.  Andrea then filed a complaint against the hospital, alleging
medical negligence and claiming damages resulting from a full hysterectomy,
medical bills, lost wages, and pain and suffering.  During discovery, after the
hospital learned that the false positive had resulted from contamination of Andrea's
blood sample, it admitted liability.  After a trial on the sole issue of damages, the
hospital appealed the trial court's judgment in favor of the plaintiff.

On appeal, the court affirmed judgment for plaintiff.  First, since liability had been
admitted, the plaintiff was relieved of proving proximate cause.  Second, the court
concluded that the evidence was sufficient to support the trial court's conclusion
that the hospital's negligence had been a proximate cause of Andrea's
hysterectomy.  Because in Ohio a plaintiff's <160>supersensitivities" do not
generally relieve defendants of liability, the court found that it was reasonable for
Andrea to undergo the hysterectomy after being given the false positive result. 
Although defendants argued that Andrea's doctor had breached the duty to refrain
from performing the surgery while the results of the HIV retest were pending, and
although defendants' assertion of this breach as an intervening and superseding
cause might normally be a defense to liability, defendants never raised the issue of
intervening or superseding cause.  Therefore, the court refused to consider the
defense on appeal.

Third, the court rejected the doctrine of avoidable consequences, concluding that
Andrea's decision to undergo a hysterectomy was reasonable under the
circumstances and, thus, resulting damages could not have been reasonably
avoided.  Lastly, the court rejected plaintiff's appeal and ruled that the trial court's
decision to award $100,000 in damages was not insufficient as against the weight
of the evidence.  C.B.R.

Louisiana Court Rules in Complex Liability Insurance Matter

 In the context of a negligent transfusion case, the Court of Appeal of Louisiana,
4th Circuit, declined to resolve the issue of whether an original tortfeasor may seek
indemnification from a medical care provider for that portion of the injured party's
damages that are directly attributable to the negligence of the medical care
provider.  Finding that resolution of the issue was not necessary, the court affirmed
a ruling granting the medical care provider summary judgment, and dismissed the
original tortfeasor's third-party demand for indemnity.  Futch v. Commercial Union
Insurance Co., 1995 WL 217911 (Apr. 13).  The opinion was written by Judge
Plotkin.

In December 1984, Thomas Futch, President of Manna International
Manufacturing, suffered numerous serious injuries, including permanent brain
damage, in an automobile accident with one Thanh Vu.  Futch was treated at
Pendleton Hospital for several days, during which time he received several
transfusions with blood supplied by the Blood Center for Southeast Louisiana.  In
1985, Futch sued Vu and several insurance companies for his injuries.  One of the
companies was Commercial Union Insurance (CU), which Futch claimed had issued
two liability policies to Manna, Futch's employer.  In 1989, Futch learned that he
was HIV+ as a result of the transfusions.  He filed a separate suit against the
Blood Center, which was eventually compromised.  In settling the claim, Futch
dismissed his suit against the Blood Center and executed a full release.   

Futch then petitioned to amend the complaint in his original 1985 suit to seek
additional damages resulting from his having contracted HIV.  In response, in 1991
CU filed a third-party demand against the Blood Center and its insurer, seeking
indemnification from the Blood Center over the Center's full release, in the result
that CU is forced to compensate Futch because he contracted HIV.  In 1994, the
Blood Center sought summary judgement, arguing that Futch's release acted as a
full and complete release of any third-party demands by CU based on
indemnification.  The trial court granted the Blood Center's motion.

The appeals court stated:  "Louisiana law is clear that a tortfeasor takes his victim
as he finds him and that he is responsible for all the natural and probable
consequences of his act. . . . The duty to refrain from negligent automobile
operation encompasses the risk that an accident victim's medical treatment may
cause him further damage."  Under Louisiana law, Vu, the original tortfeasor, is
liable to Futch for any damages Futch suffered as a result of contracting HIV due to
the Blood Center's negligence.  Thus CU, as Manna's alleged uninsured motorist
(UM) insurer, is solidarily liable with Vu for those same damages.  Therefore CU
provides insurance coverage to accommodate the insufficiency of Vu's insurance to
compensate Futch adequately for his damages.  Another principle the trial court
relied on in granting the Blood Center's motion is that the release by the
obligee-victim of one solidary obligor-tortfeasor effectively releases any and all
claims against all other solidary obligor-tortfeasors.  CU claimed that this rule only
applies to cases in which contribution is sought, and does not apply to demands
for indemnity.  That principle formed the basis of CU's appeal.

The court declined to resolve that issue because it was unnecessary due to the
position CU occupied under the facts of this case.  CU, as an UM provider, has no
rights against the original tortfeasor other than those it obtains from its insured
after making payment under the UM policy, i.e., only through subrogation (an
equitable remedy in which one party, not a volunteer, is substituted to pay the debt
of another as the debt truly belonged to the first as a matter of good conscience). 
Further, "[w]hen the UM carrier makes payment to the insured after the insured has
already released the tortfeasor from liability pursuant to lawful compromise, the
carrier has no rights against the tortfeasor."  The principle behind this position is
that the law favors compromise, and without a full release, an underinsured
motorist and his liability carrier would never agree to compromise.  The UM
carrier's interest in subrogation must be subordinated to the recovery of damages
by the injured person.  The court concluded that CU is limited solely to the right of
subrogation, which right does not come into evidence until CU makes payment, if
at all, to Futch.  Absent such payment, CU has no subrogation rights, and further,
whatever rights they might have obtained are extinguished by Futch's release of
the Blood Center.  Thus, the court found, the trial court was correct in dismissing
CU's third-party demand.  P.T.

Group Sues to Compel HIV Testing of Newborns

A New York City organization called Association to Benefit Children (ABC) has filed
suit against the state of New York, seeking to compel the state to begin
HIV-testing of newborn infants.  Baby Girl Doe v. Pataki, No. 106661-95 (N.Y.
Sup. Ct., N.Y. County, filed 3/17/95).  ABC is a non-profit association that
provides housing, day care and medical assistance to infants and families in need. 
The organization contends that mandatory testing of newborn infants is necessary
to detect those who are HIV+ in order to commence immediate prophylaxis
against opportunistic infections.  Arguing that the New York Constitution, art. 17,
sec. 3, imposes an affirmative obligation on the state to provide for the health of
its inhabitants, and that Public Health Law sec. 2500 requires the state's Health
Commissioner to set minimum standards in line with current medical information,
the plaintiff points to other mandatory testing programs for syphillis, hepatitis-B,
and a variety of other medical conditions as a precedent for HIV testing.  Claiming
that failure to adopt mandatory testing programs constitutes an equal protection
violation against newborns, ABC's complaint seeks declaratory and injunctive relief
ordering the establishment of a testing program accompanied by counseling and
medical treatment.  A.S.L.

Court Dismisses Criminal Charges Against PWA

Finding that AIDS dementia and other debilitating conditions justified a dismissal in
the interest of justice, Justice Charles J. Thomas of Queens County, N.Y.,
Supreme Court dismissed charges of grand larceny and criminal possession of
stolen property against Michael Seifert. People v. Seifert, NYLJ, April 7, p. 34. 
The charges were dismissed over the objection of the Queens County District
Attorney's Office, which alleged that Seifert's helath "has not deteriorated
sufficiently to warrant dismissal of the charges" but presented no evidence to
controvert the medical testimony or the request by the Department of Correctional
Services to let Seifert be released on his own recognizance so he could be
transferred to the non-custodial part of the hospital.  The court had medical
evidence that Seifert was in "a nearly vegetative state where intellectual and social
comprehension and output are rudimentary with near or absolute muteness,
paraplegia or paraparesis, and double incontinence."  Indeed, well before the
instant motion a doctor had noted in his chart that Seifert was confused, had
stopped walking, and laid in bed all the time unless assisted in moving by the
medical staff.  One wonders at the prosecutor's contention that such an individual
was capable of participating in a trial or presented any danger to the community. 
While acknowledging awareness of the great number of petitions for dismissals by
HIV+ defendants and the need to handle such matters with care, Justice Thomas
could see "absolutely no point in the continued prosecution of this case and further
incarceration of defendant should he be convicted."  Somebody wake up in the
Queens County District Attorney's Office!  A.S.L.

AIDS State Litigation Notes

The Washington Court of Appeals affirmed summary judgment dismissing a
spouse's negligence claim based on fear of contracting HIV in In re the Marriage of
J.T. v. M.J., 1995 WL 136041 (Mar. 30).  M.J. alleged negligent infliction of
emotional distress based on learning that her ex-husband had had sexual contact
with another woman during their marriage.  The court was unconvinced that there
was a legally cognizable duty between the spouses.  M.J. had argued that the
couple's marriage
vows established the duty.  The court distinguished factually other fear-of-HIV
cases which had to do with health care settings.  D.W.

The Florida District Court of Appeal, 4th District, held that a woman had
prematurely attempted to appeal dismissal of her negligence claim for fear of AIDS,
since it arose out of the same set of facts at the heart of other claims that had yet
to go to trial in the same lawsuit.  Biasetti v. Palm Beach Blood Bank, 1995 WL
238651 (April 26).  Mr. Biasetti alleges he was infected with HIV through a
transfusion due to the negligence of the defendant blood bank.  His suit for
negligence and breach of warranty against the blood bank has yet to go to trial. 
Mrs. Biasetti, in the same action, brought a derivative claim of loss of consortium
and a separate negligence claim of fear of developing AIDS as a result of having
had unprotected sex with her husband until he was notified about his HIV status. 
The blood bank moved to dismiss this negligence claim, alleging it had no separate
legal duty to Mrs. Biasetti, and its motion was granted.  Mrs. Biasetti appealed this
dismissal.  The court found that her claims were "interdependent" with Mr.
Biasetti's claims, so it was inappropriate to deal with her claim at an appellate level
until there had been a trial of the underlying negligence claim against the blood
bank on behalf of Mr. Biasetti.  The court dismissed the appeal without prejudice,
noting that Mrs. Biasetti's appeal could be raised after conclusion of the trial, and
that her loss of consortium claim remained part of the case.  A.S.L.

Riverside, California, Superior Court Judge Robert J. McIntyre has imposed a four
year prison term on Brenda Colson, who was convicted by a jury of endangering a
child and accessory after the fact in an incident where her HIV+ husband raped
their 7-year old daughter, resulting in HIV transmission.  Prosecutors had
recommended probation for Colson, whose husband, Frank Bridges, is serving a
38-year sentence after pleading guilty to five felony counts of rape and child
molestation.  10 AIDS Policy & Law No. 7, at 2 (April 21).  A.S.L.

International Notes
     
The Russian Federation has enacted legislation requiring HIV testing of all
foreigners living in Russia and ordering deportation of HIV+ persons.  President
Boris Yeltsin had vetoed an earlier version of the law, which would have imposed
HIV testing even on temporary visitors and tourists.  The law conditions issuance
of visas on HIV status, and will go into effect in August.  Los Angeles Times, April
4.  

The San Francisco Sentinel (April 5) reports that a Tokyo court ruled in a case of
first impression that a Japanese business who was fired when his employer learned
he was HIV+ was entitled to reinstatement and back pay.  The March 28 ruling
was hailed by the plaintiff's attorney as signaling a requirement for a change of
corporate attitudes toward AIDS in Japan.  A.S.L. 

PUBLICATIONS NOTED & ANNOUNCEMENTS

ANNOUNCEMENTS

The Massachusetts Lesbian and Gay Bar Association's annual dinner will take place
May 19 at 6 p.m. at the MIT Faculty Club in Cambridge.  The keynote address will
be given by The Honorable Roberta Achtenberg, and a public service award will be
presented to Preston Horton, founder of the New England Chapter of Gay Officers
Action League.  Admission is $50 ($25 for students).  RSVP by May 12 to Jennifer
Post, Esq., at 617-248-7273.

Lambda Legal Defense Fund will present its New York Liberty Awards ceremony for
1995 on May 22.  Honorees include Law Notes Editor Art Leonard, New York State
Assemblywoman Deborah Glick, Public Theater Executive Director George Wolfe
(who directed the Angels in America plays on Broadway), and God's Love We
Deliver, an AIDS service organization.  For information contact Margaret Brown at
212-370-5804.

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Baker, Lynn A., Constitutional Change and Direct Democracy, 66 Colorado L. Rev.
143 (1995) (reacting to issues raised by Amendment 2, considers proposal
requiring super-majority to amend state constitution by initiative).

Blackburn, John D., Elliot I. Klayman and Richard O. Nathan, Invasion of Privacy:
Refocusing the Tort in Private Sector Employment, 6 DePaul Bus. L. J. 41
(Fall/Winter 1993).

Burke, Alafair S.R., A Few Straight Men: Homosexuals in the Military and Equal
Protection, 6 Stanford L. & Pol. Rev. No. 1, 109 (1994).

Colker, Ruth, An Embodied Bisexual Perspective, 7 Yale J. L. & the Humanities 163
(Winter 1995) (argues that a bisexual perspective provides a powerful analytical
framework for challenging anti-gay government policies).

Colker, Ruth, Bi: Race, Sexual Orientation, Gender, and Disability, 56 Ohio St. L.J.
1 (1995) (a more wide-ranging development of themes suggested by the above
listing).

Epstein, Julia, The Pregnant Imagination, Fetal Rights, and Women's Bodies: A
Historical Inquiry, 7 Yale J. L. & the Humanities 139 (Winter 1995).

Garet, Ronald R., Gnostic Due Process, 7 Yale J. L. & the Humanities 97 (Winter
1995) (privacy law).

McClain, Linda C., Inviolability and Privacy: The Castle, the Sanctuary, and the
Body, 7 Yale J. L. & the Humanities 195 (Winter 1995).

Milani, Adam A., Harassing Speech in the Public Schools: The Validity of Schools'
Regulation of Fighting Words and the Consequences If They Do Not, 28 Akron L.
Rev. 187 (Fall-Winter 1995).

Murphy, Arthur A., Leslie M. MacRae and William A. Woodruff, Gays in the
Military: What About Morality, Ethics, Character and Honor?, 99 Dickinson L. Rev.
331 (Winter 1995) (It's not what you think; former military lawyers defend the
exclusionary policy on morality grounds).

Murphy, Jeffrie G., Legal Moralism and Liberalism, 37 Arizona L. Rev. 73 (1995)
(Part of a tribute volume to legal philosophy Joel Feinberg; this article considers
Feinberg's contribution to the debate over sodomy law reform, and is followed by
commentaries by Herbert Morris and Jean Hampton).

Nunan, Richard, Militant Gays, Gays in the Military, and Privacy as Social Freedom,
13 L. & Phil. 481 (Nov. 1994).

Rambuss, Richard, Christ's Ganymede, 7 Yale J. L. & the Humanities 77 (Winter
1995) (musings on legal concept of the body sparked by gay porn film).

Rifkin, Marjorie, Farmer v. Brennan: Spotlight on an Obvious Risk of Rape in a
Hidden World, 26 Col. Hum. Rts. L. Rev. 273 (Winter 1995).

Sangree, Suzanne, Title VII Prohibitions Against Hostile Environment Sexual
Harassment and the First Amendment: No Collision in Sight, 47 Rutgers L. Rev.
461 (Winter 1995) (with responsive articles by Eugene Volokh and Kingsley R.
Browne, and a reply to their critiques by Prof. Sangree).

Shifrin, Steven H., Racist Speech, Outsider Jurisprudence, and the Meaning of
America, 80 Cornell L. Rev. 43 (Nov. 1994).

Sullivan, Kathleen M., Resurrecting Free Speech, 63 Fordham L. Rev. 971 (March
1995).

Wolfson, Nicholas, Eroticism, Obscenity, Pornography and Free Speech, 60
Brooklyn L. Rev. 1037 (1994).

Symposia:

Governing by Initiative, 66 Colorado L. Rev. No. 1 (1995) (includes an article
specifically on the Amendment 2 issues, noted above). * * * The Sacred Body in
Law and Literature, 7 Yale J. L. & the Humanities No. 1 (Winter 1995) (individual
articles noted above). * * * Symposium on John A. Robertson's Children of
Choice, 52 Wash. & Lee L. Rev. No. 1 (1995) (articles about new reproductive
technology).

Student Notes & Comments: 

 Balian, Habib A., 'Til Death Do Us Part: Granting Full Faith and Credit to Marital
Status, 68 So. Cal. L. Rev. 397 (Jan. 1995).

Boston, John, David C. Fathi, and Elizabeth Alexander, Farmer v. Brennan: Defining
Deliberate Indifference Under the Eighth Amendment, 14 St. Louis U. Pub. L. Rev.
83 (1994).

Bussian, James R., Anatomy of the Campus Speech Code: An Examination of
Prevailing Regulations, 36 So. Texas L. Rev. 153 (February 1995).

Douglas, John, HIV Disease and Disparate Impact Under the Americans With
Disabilities Act: A Federal Prohibition of Discrimination on the Basis of Sexual
Orientation?, 16 Berkeley J. Emp. & Lab. L. 288 (1995) (author says yes, fulfilling
Jesse Helms' worst fears).

Hilton, Seth, Restrains on Homosexual Rights Legislation: Is There a Fundamental
Right to Participate in the Political Process?, 28 U.C. Davis L. Rev. 445 (Winter
1995).

Kozuma, Scott K., Baehr v. Lewin and Same-Sex Marriage: The Continued Struggle
for Social, Political and Human Legitimacy, 30 Willamette L. Rev. 891 (Fall 1994).

Murray, Leanne E., Davis v. Davis: The Embryonic Stages of Procreational Privacy,
14 Pace L. Rev. 567 (Summer 1994).

Parhms, Carlton L., Fighting Words and R.A.V. v. City of St. Paul, Minnesota, 19
Southern U. L. Rev. 461 (Fall 1992).

Stamps, Ron-Christopher, Domestic Partnership Legislation: Recognizing
Non-Traditional Families, 19 Southern U. L. Rev. 441 (Fall 1992).

Steele, Jeffrey A., Fighting the Devil with a Double-Edged Sword: Is the
Speech-Invoked Hostile Work Environment Hostile to O'Brien?, 72 U. Detroit Mercy
L. Rev. 83 (Fall 1994).

Specially Noted:

The Canadian Journal of Women and the Law has published a 350-page special
issue devoted to the topic "Lesbianism, Feminism, and Law."  Single copies can be
obtained from the Journal.  Call Lucille Beland at the Journal to inquire about price,
at 613-562-5800, ext. 3473.  (This info was gleaned from an Internet posting that
gave prices in Canadian dollars.)  The Journal's address is 575 King Edward Ave.,
Ottawa, Canada K1N 6N5. 

The May 8 issue of The New Republic includes a review of "Chickenhawk," a
documentary about the North American Man/Boy Love Association, by Hanna
Rosin, one of their staff writers, which is about the least hysterical discussion of
the subject of male pedophilia that we've seen in a mainstream journal.

The January/February 1995 issue of the British journal, Index of Censorship (vol.
24, no. 1), includes an extended section of short articles on the situation of gay
people in Eastern Europe, and a compilation by Laura Bruni of statutes on gay
rights and liberties.

The Rev. "Pat" Robertson's Regent University Law School has begun publishing a
law review called Liberty, Life and Family.  Vol. 1, No. 1 (1994) contains several
diatribes about natural law and the definition of the family.  There is surprisingly
little reference to homosexuality, although one of the authors writes dismissively of
Justice Blackmun's dissent in Hardwick in the course of deconstructing the
constitutional right of privacy.

AIDS & RELATED LEGAL ISSUES: 

Baumgart, Bradley J., and Jane A. DeJong, AIDS Exclusions in Group Health Care
Plans, 37 For the Defense No. 4, 2 (April 1995) (magazine for defense, insurance
and corporate counsel).

Bayer, Ronald, Lawrence O. Gostin and Deven C. McGraw, Trades, AIDS, and the
Public's Health: The Limits of Economic Analysis (Review of Private Choices and
Public Health: The AIDS Epidemic in an Economic Perspective, by Tomas J.
Philipson & Richard A. Posner), 83 Georgetown L.J. 79 (Nov. 1994).

Colella, Ugo, HIV-Related Information and the Tension Between Confidentiality and
Liberal Discovery, 16 J. Legal Med. 33 (March 1995).

Epstein, Steven B., In Search of a Bright Line: Determining When An Employer's
Financial Hardship Becomes "Undue" Under the Americans With Disabilities Act, 48
Vanderbilt L. Rev. 391 (March 1995) (Congress said no, and the EEOC said no, but
this legal scholar insists there must be a bright-line test based on cost to determine
what is a "undue hardship" on an employer under the ADA).

Gostin, Lawrence O., The Resurgent Tuberculosis Epidemic in the Era of AIDS:
Reflections on Public Health, Law, and Society, 54 Maryland L. Rev. 1 (1995).

Hodges, Ann C., The Americans With Disabilities Act in the Unionized Workplace,
48 U. Miami L. Rev. 567 (Jan. 1994) (no specific mention of AIDS issues, but a
useful analysis for those dealing with AIDS issues in unionized workplaces).

Johnson, Creola, Quarantining HIV-Infected Haitians: United States' Violation of
International Law at Guantanamo Bay, 37 Howard L. J. 305 (Winter 1994).

Meyer, Cheryl L., The Transmission of HIV Through Donor Semen, 15 Women's
Rts. L. Rep. 115 (Winter/Spring 1993-94).

Spelfogel, Evan J., The Interaction of ERISA and the Americans With Disabilities
Act, 68 St. John's L. Rev. 459 (Spring 1994) (extended consideration of the AIDS
caps and exclusions controversy).

Young, Bless S., and Kimberly R. Wells, Managing AIDS in the Workplace, 41
Practical Lawyer No. 3, 41 (April 1995).

Student Notes & Comments:

 Cheifec, Charles, Disclosure of an Adoptee's HIV Status: A Return to Orphanages
and Leper Colonies?, 13 John Marshall J. Computer & Inf. L. 343 (Winter 1995).

Douglas, John, HIV Disease and Disparate Impact Under the Americans With
Disabilities Act: A Federal Prohibition of Discrimination on the Basis of Sexual
Orientation?, 16 Berkeley J. Emp. & Lab. L. 288 (1995).

Savoie, AIDS Phobia - Recovery for Emotional Distress Based on Exposure to AIDS,
Johnson v. West Virginia Hospitals, Inc., 19 Southern U. L. Rev. 477 (Fall 1992).

Editor's Note

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.  Back numbers of Law Notes from the
beginning of 1994 are now available on-line in the Queer Resources Directory,
archived in the pub/QRD/usa/legal/lgln/1994 directory.