LESBIAN/GAY LAW NOTES Lesbian & Gay Law Association of Greater New York ISSN 8755 9021 November 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., Brooklyn Law School. Contributing Writers: 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; Eva G. Anthony, Patrick J. Henigan, Ross D. Levi, David Pumo, Clarice B. Rabinowitz, Students, Brooklyn Law School; Helen G. Ullrich, Student, New York Law School. Circulation: Daniel Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118. LeGaL Homepage: http://www.interport.net:80/~le-gal (C) 1995 by Lesbian & Gay Law Association of Greater New York $30/yr by subscription (Foreign Rate US$35) SUPREME COURT ARGUMENT ON AMENDMENT 2 SURPRISES GAY ADVOCATES AS KENNEDY QUESTIONS CONSTITUTIONALITY To the delighted surprise of lesbian and gay rights advocates observing the October 10 oral argument at the United States Supreme Court in Romer v. Evans, Justice Anthony Kennedy took the lead in raising critical questions about Amendment 2, the Colorado initiative measure that was declared unconstitutional by the state's Supreme Court. Amendment 2 would ban the state or any of its political subdivisions from adopting laws, rules or policies that specifically protect lesbians, gay men or bisexuals from discrimination; its broad and imprecise wording proved a major source of contention at the hearing. Colorado Solicitor General Tim Tymkovich had barely begun his argument when Justice Kennedy began the attack, stating "I have never seen anything like this" and rejecting Tymkovich's attempt to ground support for Amendment 2 in prior Supreme Court cases, asserting that it swept more broadly than any measure previously before the Court. Prognosticators had focused on Kennedy and Justice Sandra Day O'Connor as the crucial members of the Court for this case, assuming that the four more liberal-moderate members of the Court would probably support the Colorado Supreme Court's opinion. (Former Colorado Supreme Court Justice Jean Dubofsky, who argued on behalf of the Amendment 2 opponents, had stated several weeks ago that she was targeting her arguments at Kennedy, who she saw as the key "swing vote" in the case.) Justice O'Connor also appeared to have problems with Amendment 2, posing hypotheticals and failing to get substantive answers from Tymkovich as she speculated that under Amendment 2 gays could be deprived of normal redress under state laws of general application. Justice Ruth Bader Ginsburg piled on, suggesting that under Amendment 2 a gay patient denied treatment at a public hospital would have no redress, and Justice David Souter asked questions signalling his conclusion that there might be no rational basis for the measure, suggesting that the Court could strike it down as irrational without having to accept the lower court's theory of a "fundamental right of political participation." (Under the Equal Protection Clause, any measure that poses unequal treatment must be at minimum "rational," even if it does not affect a fundamental right or use a suspect classification.) The only member of the Court whose questions signalled vigorous support for Amendment 2 was, not unexpectedly, Justice Antonin Scalia, who, according to some newspaper reports had told a law student audience recently that "homosexuals" have "no constitutional rights" (prompting a call by the San Francisco Examiner for him to recuse himself in the Amendment 2 case). Chief Justice William Rehnquist, who apparently accelerated his return to the bench after back surgery in order to participate, also made a comment indicating some support for the argument that the state might legitimately seek to reserve issues of civil rights protection to be decided at the state level, rather than by individual municipalities, although Justice Souter pointedly responded that Colorado had not attempted to do that in a non- discriminatory way via Amendment 2, and Justice Stevens questioned whether Coloradans from outside Aspen had any legitimate interest in overriding a decision by Aspen residents to ban discrimination in their city. Most media accounts of the argument suggested that things had gone poorly for the defenders of Amendment 2. Rocky Mountain News Washington Bureau reporter John Brinkley quoted U.S. Rep. David Skaggs (D.-Colo.), a lawyer and opponent of Amendment 2 who attended the argument, predicting the state court would be upheld. "My assessment was 5-4 at worst, 6-3 is possible, and 7- 2 is conceivable," said Skaggs. Supporters of Amendment 2 agreed with this assessment. In his Oct. 12 article, Brinkley quoted Rhett Dehart, an aide to former U.S. Attorney General Ed Meese (who participated as an amicus in defense of Amendment 2), as follows: "It went pretty poorly. The general view of conservatives is that they're pretty disappointed with the questions [asked by the Justices]." Veteran Supreme Court observer Lyle Denniston of the Baltimore Morning Sun was more restrained in his assessment, opining in an Oct. 11 article that "Justice O'Connor didn't seem ready to join either side of the case, saying the Court knew too little about exactly how Amendment 2 affects legal rights of homosexuals," but also noting that Justice Scalia "was the only outright supporter of Amendment 2 at the hearing." Questions and comments by Justices Stevens and Stephen Breyer appeared to signal staunch opposition to the measure. As usual, Justice Clarence Thomas asked no questions and made no comments. Lesbian and gay rights litigators attending the argument seemed pleased. "The Justices really got it," said ACLU Lesbian & Gay Rights Project Director Matt Coles, who voiced hope at the outcome during an impromptu press conference on the Court's steps after the argument. "The Court sees that the amendment is absurd. Their questions pointed that out," said Suzanne Goldberg, a staff attorney at Lambda Legal Defense who is working with local attorneys in several states to challenge various initiative measures. In a discordant note, however, New Republic legal columnist Jeffrey Rosen published a lengthy argument in that magazine's Oct. 23 issue arguing that Amendment 2 (with which he disagrees) is a valid expression of the majoritarian political process, a point echoed by conservative columnist George Will in his syndicated column widely published during the week of the argument. (Will's column, obviously written prior to the argument, appeared from its tone to assume that a majority of the Court would vote to reverse the Colorado Supreme Court's opinion.) On the other hand, conservative legal commentator Bruce Fein, writing in the Washington Times on Oct. 24, took the position that Amendment 2 was probably unconstitutional as drafted due mainly to its potentially broad effect of denying any redress to gay people in Colorado for exclusion from routine participation in state-provided services, but that a less prejudicially-drafted measure (such as, presumably, the Maine initiative that Fein helped to draft) would be constitutional. Under its usual procedures, the Court discusses each argued case at a conference at the end of the argument week, and takes a preliminary vote leading to opinion assignments by the Chief Justice (if in the majority) or the senior Justice in the majority if the Chief Justice is in the minority. A decision could be forthcoming as early as December, although it seems more likely that the opinion will come early in 1996. The Court has yet to rule on a certiorari petition seeking review of the 6th Circuit Court of Appeals decision upholding Cincinnati's Issue 3, an Amendment 2 "clone" that had been held unconstitutional by the U.S. District Court in that city. It seems likely the Court will hold that petition until it disposes of the Colorado case. A.S.L. LESBIAN/GAY LEGAL NEWS Supreme Court Justice Refuses to Halt Co-Parent Visitation U.S. Supreme Court Justice John Paul Stevens denied a petition for an emergency stay in In re Custody of H.S.H.-K.: Holtzman v. Knott, 533 N.W.2d 419 (Wis. June 13, 1995). In that case, the Wisconsin Supreme Court ruled that Sandra Lyn Holtzman, the lesbian co-parent of a child borne by Elsbeth Knott, was entitled to court-ordered visitation after the relationship between the women ended. Knott is attempting to challenge the court's order, arguing that it violates her constitutionally-guaranteed parental rights to determine how to raise her child. The Wisconsin courts had ordered Knott to let Holtzman visit with the child, and Knott, who is trying to appeal the decision to the Supreme Court, wanted Stevens to terminate Holtzman's visitation rights while the appeal is pending. Stevens issued his decision on Oct. 3. (Based on an Associated Press story in the Palm Beach Post, Oct. 7.) A.S.L. Georgia Supreme Court Hears Argument on Sodomy Law The Georgia Supreme Court heard oral argument on Oct. 11 in Christensen v. State, a challenge to the notorious felony sodomy law that was upheld by the U.S. Supreme Court in Bowers v. Hardwick (1986). In this case, L. Chris Christensen, who was convicted of soliciting oral sex from a vice cop at a highway rest-stop, is arguing that his prosecution violates the right of privacy in the Georgia constitution, noting that the solicitation was to go somewhere private for the sexual activity. "This case is about who will enter one's circle of intimacy," argued Jane E. Fahey, representing Christensen. Assistant Rockdale District Attorney Michael M. Hawkins, defending the conviction, argued that members of the public had complained about sexual solicitation at the rest stop, which was public activity. (In other states, such as New York and California, courts have invalidated solicitation laws when they are used to solicit lawful private activity; thus, after striking down the New York sodomy law in People v. Onofre, 51 N.Y.2d 476 (1980), the N.Y. Court of Appeals subsequently struck down the solicitation law in People v. Uplinger, 58 N.Y.2d 936 (1983). The U.S. Supreme Court denied review in Onofre and dismissed certiorari as improvidently granted in Uplinger.) Christensen's case presents a scenario similar to that followed in Kentucky, where the state supreme court invalidated the sodomy law in case sparked by the prosecution of a gay man who solicited a vice cop to come home with him for oral sex. (See Commonwealth v. Wasson, 842 S.W.2d 487 (Ky.1992). Only one member of the Georgia court, Justice Leah Sears, gave any indication of views during the argument. Sears' appeared disfavor the state's arguments (but she is a frequent pro-gay dissenter in Georgia cases involving lesbian and gay rights). A.S.L. Washington Supreme Court Upholds Suspension Of Lesbian Social Worker Joan Heinmiller, a social worker, began to meet with her patient Marian Blair in November, 1985. During one therapy session, in response to Joan's question, Marian said she had never experienced sexual feelings for women. However, during their sessions Marian began to develop a romantic interest in Joan. After their last therapy session, Marian revealed her feelings for Joan and the two became romantically involved. In 1989, at the end of their two-year relationship, Marian filed both a malpractice action (eventually settled) and a complaint against Joan with the Washington State Department of Health. In its final administrative decision, the agency indefinitely suspended Joan's license, finding that she had engaged in unprofessional conduct. This decision was affirmed by the lower court, and Heinmiller appealed. In Heinmiller v. Department of Health, 1995 WL 584404 (Oct. 5), the Supreme Court of Washington affirmed. First, the court noted that Washington's Administrative Procedure Act requires that modification of an agency's decision should occur only if the agency "has erroneously interpreted or applied the law." Finding that most social workers view a sexual relationship between a social worker and a patient commenced just one day after therapy sessions end to constitute unacceptable behavior, the court agreed that Heinmiller had committed an act of "moral turpitude" for purposes of the agency's disciplinary act. Second, the court held that Heinmiller's sexual relationship violated the disciplinary act's prohibition against "sexual contact with a client or patient," finding that social workers, like physicians who have ongoing relationships with their patients, are also prohibited from engaging in sexual relationships with former clients. The court also affirmed the ruling that Heinmiller had interfered with the agency's disciplinary proceedings by sending harassing letters to Barry containing derogatory statements about the latter's therapists and attorneys. However, in so ruling the court chose to ignore expert testimony that such letters were written out of Heinmiller's love and concern. Finally, under the Department of Health's disciplinary act, the court held that Heinmiller acted unprofessionally by misrepresenting or concealing a material fact in her application for professional certification. In 1988, she responded negatively to a question as to whether "[w]ithin the past ten years, [you have] engaged in . . . the commission of any act involving moral turpitude . . . ." Heinmiller maintained that she did not actually know that her sexual relationship was an act of moral turpitude that could affect her certification. She further maintained that even assuming she should have known, she could not have violated this section "because constructive knowledge of a fact's materiality is an insufficient basis for a finding of misrepresentation or concealment within the meaning" of the disciplinary act. Conceding that the natural definition of misrepresentation required knowledge, the court nonetheless opined that "[m]isconduct is not less harmful to the public simply because the professional who engages in it fails to recognize it as such." In his concurring opinion, Judge Pekelis objected to the majority's holding that constructive knowledge was sufficient to warrant misrepresentation, since "to discipline a person not because she knew, but because she should have known that her conduct would be deemed by others to constitute an act of `moral turpitude' makes the Department's action almost Kafkaesque." Although the fact that this was a lesbian relationship was never directly mentioned as a reason for its holding, one has to wonder whether the court's concern for the public outweighed the common meaning of the word "misrepresentation" was primarily due its fear that a lesbian therapist poses a greater sexual threat to the public than would a heterosexual therapist. C.B.R. Oregon Supreme Court Confronts Ballot Questions In preparatory skirmishing over the next round of anti-gay ballot initiatives in Oregon, the Oregon Supreme Court issued several decisions on September 28. Rooney v. Kulongoski, 1995 WL 574337 (lead opinion); Mabon v. Kulongoski, 1995 WL 574328; Rooney v. Kulongoski, 1995 WL 574347; Rooney v. Kulongoski, 1995 WL 574318. The decisions deal with the summary statements and titles to appear on the ballot if sufficient signatures are obtained by the anti-gay petitioners. The lead decision involves a debate among the justices as to whether state law provisions authorizing the court to rewrite ballot summaries and questions violates the separation of powers, and describes the procedure that the majority of the court then uses in the other opinions to rule on particular measures. The upshot is that the ballot questions and summaries are revised from those proposed by the petitioners to be somewhat more objectively descriptive about the purposes and effects of the proposals. From news reports, it appears that the anti-gay petitioners are unhappy with the resulting ballot questions and summaries, but will proceed with them to secure a place on the 1996 ballot. A.S.L. Trend of Judicial Approval for Co-Parent Adoptions Advances; Judicial Victory Threatened in D.C. Courts in Colorado and New Jersey have approved adoption petitions that will allow lesbian partners and their children to establish legally recognized family units. In Colorado, the state District Court in Boulder County decided July 26 to approve a petition for a joint adoption pending in In re Adoption Petition of K.J. and R.Z., 21 Fam. L. Rep. (BNA) 1535. One of the petitioners is the birth mother of two children conceived through alternative insemination. The court relied on the "step- parent exception" to the normal rule that an adoption cuts off the parental rights of the birth parents. In this case, which involved a known sperm donor, the donor's consent had been obtained for the adoption, and the court found that it would be in the best interest of the children to have this legal tie to both their birth mother and the mother's partner. In New Jersey, we learned at our deadline, the Appellate Division on Oct. 27 overturned a decision by the Bergen County Family Court and approved an adoption petition filed by a lesbian co- parent to adopt twins borne by her partner three years ago. Writing for the court in the 2-1 decision, Judge Sylvia B. Pressler relied on a provision in the state's adoption law requiring that it be "liberally construed" to promote the best interests of children. Dissenting, Judge Dorothea Wefing argued that the statute's "step-parent exception" is only available to married couples. But Judge Pressler insisted that the law should recognize the reality of the situation, in which the lesbian partners were jointly raising the children: "They function together as a family. The twins are, by reason of their upbringing, daily lives, and ties of mutual affection, the children of both Mary and Hannah, and no court order granting or denying the adoption will change that." New York Times, Oct. 28. We hope to have a more detailed report on this case next month. The June 30 decision by the District of Columbia Court of Appeals in M.M.D. and B.H.M., 662 A.2d 837, authorizing joint adoptions by same-sex co-parents, is in danger from Congress. The House Appropriations Committee, giving final approval to the District of Columbia budget for the coming fiscal year, approved an amendment that bans all adoptions by unmarried couples, whether same-sex or opposite-sex. While this measure, if finally adopted, will not bar lesbians or gay men from adopting children, it would put an end to the legal recognition of same-sex families embodied in the recent court decision. Washington Times, Oct. 27. The appropriations bill would also continue the Congressional ban on use of district funds to provide employee benefits to domestic partners of city employees. The so-called "family values" Republican Congress seems dead set against lesbian and gay families. A.S.L. 9th Circuit Dismisses Claim Against Signature Gatherers For Oregon Anti-Gay Initiatives In Fred Meyer, Inc. v. Casey, 1995 WL 592804 (Oct. 5), a 9th Circuit Court of Appeals panel upheld a decision dismissing the plaintiff's claim against members of the No Special Rights Committee and Oregon Citizens Alliance who were gathering signatures outside the main entrances of various Fred Meyer stores in support of two proposed anti-gay charter and constitutional amendments. When the defendant groups began asking shoppers to sign their petitions to qualify the two initiatives for election, customers began complaining, threatening to boycott Fred Meyer stores and return prior purchases for refund. Fred Meyer responded by asking the petitioning groups to leave its property, or having the petitioners arrested for criminal trespass. Fred Meyer brought an action under 42 U.S.C sec. 1983. The court found, however, that Fred Meyer failed to satisfy the first requirement of the statute, since petitioning groups were not acting under color of state law. Although in a separate action the Oregon Court of Appeals previously had reversed criminal trespass convictions against similar groups arrested outside a Fred Meyer store entrance, the federal appellate panel chose to read that case (State v. Dameron, 853 P.2d 1285 (Or. 1993)) narrowly and explicitly confined it to its facts. The federal appeals court instead found the groups here to be private citizens and entities who were not receiving significant aid from the state, and so not state actors in violation of sec. 1983. By contrast, the court found that Fred Meyer had created a public forum via its broad invitation to the public. The court left Fred Meyer with the option of asking the State to prosecute for criminal trespass in each individual case of solicitation "if it could show substantial business interference with its property." Fred Meyer could also impose reasonable time, place and manner restrictions to petitioners using its property. R.D.L. Wisconsin Appeals Court Rejects Evidence of Consensual Homosexual Acts in Sexual Assault Case In Wisconsin v. Rushing, 1995 WL 592819 (Oct. 10), the Wisconsin Court of Appeals held that the trial court improperly permitted a 19-year old man to testify that Robert Rushing, the defendant, had fellated him in a park in the context of a subsequent prosecution for sexual assault of a child. The 19-year old witness stated that his encounter with the defendant had been consensual. The jury then convicted Rushing of second-degree sexual assault on a child for performing fellatio on a 15-year old (who was baby-sitting Rushing's children) who was asleep at the time. The 19-year old's testimony had been admitted under statutory exceptions to the general rule barring evidence of prior acts when such evidence shows motive, intent, or identity. The court, in any opinion by Presiding Judge Cane, rejected the motive or intent basis for admission because defendant was convicted under a strict liability statute. All that the prosecution had to prove was that defendant had intercourse with a person under the age of 16. (The statute included oral/genital contact in its definition of intercourse.) Since intent was not an element of the crime, it could not form the basis of admission. Nor did the court accept the identity rationale as a basis for admission. The two acts lacked "a concurrence of common features [and] points of similarity [such that] the park encounter and the assault on Michael [could] constitute Rushing's imprint." The court found many aspects of the two acts dissimilar. Most important to the court was its finding that a consensual gay encounter was nothing like an assault on a child. That alone took the prior act out of the identity exception. "Rushing's prior homosexual encounter cannot be introduced to suggest that because he has engaged in homosexual conduct, he is also likely to assault children," implicitly rejecting any automatic association of homosexuality with pedophilia. The court vacated the judgment and remitted for a new trial. Concurring, Judge Myse noted that most trial courts permit the introduction of prior acts under these exceptions so much that the general rule against it was being "overwhelmed." That judge said it was "time we restrain the introduction of this evidence as a matter of course." M.S.R. Wisconsin Appeals Court Rejects Subjective Role Model Standard for Teachers Ruling on an appeal by state teacher licensing authorities, the Wisconsin Court of Appeals voted 2-1 to reject a "role model" theory used by the state's superintendent of education to justify revoking the teaching license of a public school music teacher who was convicted of two gay public sex offenses. Thompson v. Wisconsin Department of Public Instruction, 1995 WL 606619 (Oct. 17). The relevant statute requires a determination whether particular "immoral conduct" by a teacher has a "nexus" with the "health, welfare or safety" of any pupil. A majority of the court found, in an opinion by Judge Myse, that the role model standard used by the superintendent effectively negated the nexus requirement. Ray Thompson, the teacher, was involved in two incidents that led to the license revocation proceeding. In the first, he was convicted of disorderly conduct when he groped a man in Rainbow Park, described by the court as "a known meeting place for gay men" in Oshkosh. In the second, he was convicted of fourth- degree sexual assault when he began to unbutton the shirt of a plainclothes police officer in an unlocked booth in an adult video store "that displayed pornographic movies and materials and served as a meeting place for homosexual men." The immediate consequence for Thompson was discharge from his full-time position in the Oshkosh schools. He continued to work in other Wisconsin districts as a substitute teacher while the state education department instituted a license revocation proceeding. The department's hearing officer decided that Thompson's conduct did not meet the nexus requirement, and recommended against revocation. The superintendent rejected this recommendation and revoked Thompson's license. Thompson sought judicial review, and the trial court stayed the revocation and remanded to the department, finding that the superintendent failed to hear the case or review the record prior to issuing his decision, as required by statute. This time the superintendent appointed a special hearing officer to review the record and issue a proposed decision. This officer found that Thompson's license should be revoked because "Thompson could no longer be an effective role model for the students because the pupils, their parents and the public would lack confidence, respect and regard for Thompson." The superintendent accepted this recommendation. Thompson again sought judicial review, and the trial court reversed, finding that the department established an "impossibly high role model standard" and that the decision was not supported by substantial evidence. On the department's appeal, the court of appeals agreed with the trial court that the role model standard established by the superintendent was inappropriate, but premised its decision on the superintendent's improper reliance on public opinions and attitudes as opposed to a factual determination that Thompson would no longer be an effective teacher. The court remanded the case once more to the education department for a new determination. Explaining the court's opinion, Judge Myse wrote: "Applying a role model standard reflecting community attitudes effectively eliminates the nexus requirement. All cases of immoral conduct are by definition offensive to community standards. Because a role model rationale assumes all conduct offensive to the community standard hinders the educational process, nexus is subsumed in all cases involving immoral conduct. However, the plain meaning of Sec. PI 3.04 provides that not all immoral conduct should result in license revocation. The nexus requirement is there for a reason: to make sure there is a direct link between the immoral conduct and the health, welfare, safety or education of any pupil." On remand, the superintendent "is obligated to determine whether there is a direct relationship between the immoral conduct and the health, welfare, safety or education of any pupil. If the conduct is of such severity as to adversely affect the atmosphere in which education must exist to be effective, or to endanger the health, welfare or safety of any of the children, revocation is appropriate." Myse indicated that the record might well support such a determination, but it was for the superintendent to make the decision in the first instance. A.S.L. Massachusetts Appeals Court Vacates Homosexual Rape Conviction In a Sept. 29 decision, the Massachusetts Appeals Court reversed the conviction of Ernest M. McGregor for raping another prisoner. Commonwealth v. McGregor, 1995 WL 579229. According to the victim's testimony, after spending a pleasant social visit in McGregor's cell, he was forced to engage in oral sex against his will while McGregor held a razor blade to his neck. McGregor testified that their sexual encounter was entirely consensual, and that the victim was willing to have sex in order to get some "pot" from McGregor. The trial judge denied McGregor's motion for individual voir dire of jurors on their attitudes about homosexuality, and refused to admit evidence from the victim's hospital medical chart that would tend to show that the victim had in the past engaged in homosexual activity in exchange for money and drugs and considered himself to be bisexual, but wanted that information kept secret. On appeal, the court found that the trial judge's direction of a general question to the venire whether any among them could not be impartial in a case concerning homosexuality was adequate, but that the exclusion of the evidence from the victim's medical charges "created a substantial risk of a miscarriage of justice." Wrote Judge Murphy: "Exclusion of evidence showing that the victim did not want it known that he was willing to engage in sex with men for purposes of obtaining drugs and money `deprived the defendant of an opportunity to present sufficient information to the jury for them to make a discriminating appraisal of the complainant's motive to lie.'" A.S.L. Michigan Appeals Court Finds Surviving Lesbian Co-Parent Lacks Standing to Contest Custody In an illustration of the failure of existing laws to protect lesbian and gay families, the Michigan Court of Appeals ruled Oct. 20 that a lesbian co-parent lacks standing to challenge a biological father for custody of her deceased partner's children. McGuffin v. Overton, 1995 WL 621740. However, the court indicated that the plaintiff may continue to pursue her attempt to be appointed guardian of the minor children. Leigh Porter had two children out of wedlock, Jonathan in 1982 and Nathaniel in 1984. Leigh filed paternity actions in 1984 against Russell Overton, who stipulated he was the biological father. In both paternity cases, Leigh was given custody of the children and Russell was ordered to pay child support. In 1987, Leigh began to live with Carol Hess (who took Leigh's surname and is referred to in the opinion of the court as Carol Porter) in a "monogamous lesbian relationship," and the two boys lived with Leigh and Carol until Leigh's death in January 1995. Shortly before her death, Leigh executed a will which designated Carol as guardian of the boys and a power of attorney purporting to delegate her parental authority to Carol. The will specifically stated that Russell should not be named guardian because he had not established any relationship with the boys. As of March 1995, Russell's support payments were nearly $20,000 in arrears. After Leigh's death, Carol petitioned for guardianship, and was required by court rules to give notice to Russell. He reacted to this by filing motions seeking custody of the boys. The motions were filed in two different counties, since each of the original paternity proceedings were filed in different counties. Carol then sought to intervene in the custody proceedings to assert her own claims to custody. In one county, the court found that Carol had standing; in the other county, the court denied standing, and authorized Russell to take physical custody, which he did by picking up the boys from school and taking them to his home. In this per curiam opinion, a panel of the Court of Appeals held that Carol lacked standing to seek custody in the ongoing paternity action. A 1993 Michigan statute specifically delimits the circumstances under which "third parties" shall have standing to seek custody; one of those circumstances is when the third party is the legal guardian of the child, but Carol's guardianship petitions have not yet been granted. None of the other circumstances described in the statute, M.S.A. 25.312(1) et seq. (P.A. 1993, No. 259, M.C.L. sec. 722.21 et seq.), apply on their face to this situation, due to Carol's lack of a blood relationship to the boys. The court commented that Carol's attempt to participate in the case also flew in the face of Michigan Supreme Court precedent taking a narrow view of third party rights in custody contests. However, in finding that Carol lacks standing to participate in the custody proceeding, the court concluded: "Our ruling has no effect whatsoever on Carol Porter's standing if she should be successful in her attempts to be appointed guardian of the minor children." A.S.L. Louisiana Appeals Court Finds Tort Suit Based on Consensual Gay Affair Time-Barred The Louisiana Court of Appeals (1st Circuit) reversed a trial court verdict on timeliness grounds, barring a plaintiff from recovering against the dentist whom he alleged had sexually abused him while he was a minor. Doe v. Doe, 1995 WL 588347 (Oct. 6). The plaintiff alleged that he had a homosexual relationship with the defendant, his dentist, starting at age 17 and continuing until the plaintiff was 20 years old. After the jury found the defendant 15% at fault, but awarded the plaintiff no damages, the trial court entered a judgment notwithstanding the verdict, found the defendant 100% at fault and awarded the plaintiff money damages. The First Circuit reversed, finding that the plaintiff's claims were time-barred under Louisiana law. The court rejected the plaintiff's argument that the defendant's conduct constituted a continuing tort, finding each sexual act between the parties separate and distinct. Nor was the court convinced that the plaintiff's time for bringing the suit should be suspended or tolled. Although there was, the court acknowledged, a power imbalance between the plaintiff and defendant, the plaintiff was able to act independently, occasionally refusing to meet the defendant, and refusing to perform certain acts. The plaintiff also argued that he did not relate the defendant's acts to his injuries until he entered therapy. The court was not convinced by this argument because the plaintiff had testified that the relationship was emotionally problematic for him even before he started therapy. In sum, the court was not convinced that the plaintiff had shown that the alleged abuse impaired his mental capacity to file suit. The only incident alleged that was timely, the court said, did not state a claim because it occurred when the plaintiff was over the ages of majority an consent. (Interestingly, the court makes nothing of the fact that under Louisiana's sex crimes laws, the relationship between plaintiff and defendant was unlawful regardless of age or consent of the parties.) D.W. New York Housing Court Allows Same-Sex Partner To Thwart Eviction By Examining "Totality Of The Circumstances" Under Braschi In Arnie Realty Corp. v. Torres, N.Y.L.J, Oct. 4, at 27 (col. 3), the N.Y. City Civil Court, Housing Part 18-F, found that respondent/tenant Augustin Torres is a "remaining family member" of his deceased partner Ward Follette, the tenant of record, and thus has the right to succeed to his rent-controlled apartment. The petitioner/landlord brought a summary holdover proceeding against Torres following Follette's death in May 1994. The landlord claimed that Torres had no legal right to remain in the apartment as Follette was the tenant of record and Torres "was simply Mr. Follette's boarder." Torres asserted, as an affirmative defense, that he and Mr. Follette "resided in the apartment as a homosexual couple in a committed, long-term relationship from 1986 until Mr. Follette's death in April 1994," and that considering the totality of their relationship, he is a remaining family member within the meaning of the regulations and is thus entitled to succeed to Follette's rights in the apartment. In order to prevail under New York City Rent and Eviction Regulations, Torres had to show that he was a remaining family member of Follette, the tenant of record, and that he resided in the apartment for two years with Follette. Several factors first enunciated in the landmark decision Braschi v. Stahl Associates are considered in determining whether a survivor is a family member. They include "intermingling of finances, engaging in family-type activities, formalizing of legal obligations, [and] holding themselves out as family members, regularly performing family functions, and engaging in other behavior that shows intention of creating a long-term, emotionally-committed relationship." Torres argued that in order to prevail he need not prove all these factors but that the court must look to the "totality of the relationship" in determining whether he is a family member. The landlord argued that all the Braschi factors must be proved and that empirical evidence must be presented in addition to direct testimony, alleging that Torres neither proved any factors nor presented empirical evidence to support his claim. The court found no case law to support an empirical evidence requirement and agreed with the defendant that relevant cases look to "the totality of the evidence . . . in determining whether a remaining family member claim may be maintained." The court also rejected the landlord's claim that there was no financial commitment between Torres and Follette. Quoting from Braschi, the court stated that "it is the totality of the relationship as evidenced by the dedication, caring and self- sacrifice of the parties which should, in the final analysis, control." The court reasoned that the presence or absence of any of the enumerated factors was not dispositive: "Mr. Follette's financial support was equaled by [Torres'] domestic support," and such an "arrangement is of no less value in a homosexual household than it would be in a heterosexual one." In addition, the court found that a Holy Union ceremony for the couple, performed at the Cathedral of St. John the Divine in 1988, was sufficient to prove that they held themselves out as family members. The court therefore concluded that Torres proved that he was a family member within the meaning of the statute and has a right "to remain in the apartment as a tenant." E.G.A. Military Update Lt. Dirk Selland is back in court, protesting the Navy's refusal to promote him despite an excellent service record. Selland is serving pursuant to an injunction requiring the Navy to keep him on duty until his court challenge to the "don't ask, don't tell" policy is resolved. The Virginian-Pilot in Norfolk, Virginia, where Selland is serving as a supply officer, reported Oct. 6 that Selland was one of 3 denied promotion out of a group of 203 officers. Selland claims the denial of promotion was based on his sexual orientation. (Notably, several other openly-gay service members who were continuing to serve under similar court orders have been promoted.) A.S.L. Federal Court Finds Same-Sex Harassment Actionable Ruling on a question of first impression in the 3rd Circuit, and extending a growing trend around the country, the U.S. District Court for the Eastern District of Pennsylvania held that same-sex harassment in the workplace is actionable under Title VII. King v. M.R. Brown, Inc., 1995 WL 574308 (Sept. 22). Plaintiff Ilene King, an employee at Ruth's Chris Steak House in Philadelphia, claimed that a lesbian co-worker, Karen Leader, harassed her with physical touching, verbal abuse, and intimidation. King complained to the restaurant's owner, who delegated the matter to the general manager, Curt Gaither. Gaither arranged a meeting with King and Leader; management then warned both King and Leader that sexual harassment violated company policy and would not be tolerated. King objected that she had been given the warning as retaliation for having complained, and notified the restaurant's parent company of the harassment. King then skipped two scheduled shifts at work, claiming that Leader posed a physical danger to her. Maintaining that there was no such danger, the company suspended King for two weeks. King filed a Charge of Discrimination with the EEOC and the Pennsylvania Human Rights Commission (PHRC), alleging harassment and retaliation. Gaither then fired King as "a result of warning and suspension of [sic] confrontation with Karen Leader." King filed a second claim with the EEOC and the PHRC alleging retaliatory discharge. King later sued in the district court, adding allegations of quid pro quo sexual harassment and a hostile environment based on race, religion, and sex. Regarding the same-sex harassment claim, the court observed that some decisions dismissed these claims on the theory that the sex discrimination prohibition in Title VII was intended solely to prevent a dominant gender group from abusing a weaker gender group, and thus did not apply to sexual harassment within one gender group; the court rejected this argument, reasoning that there was no legislative history to support it and, more importantly, it was untenable given the fact that "reverse discrimination" is actionable under Title VII. The court dismissed the plaintiff's breach of contract claims, ruling that these were based on the discrimination claim and thus were preempted by the Pennsylvania Human Rights Act. Regarding the additional allegations, the court ruled that it lacked subject matter jurisdiction to review claims not first presented to the EEOC, and thus granted the defendant's motion to dismiss the quid pro quo claim, but held that the additional hostile environment evidence fell within the scope of the plaintiff's original complaint, even though some of it did not pertain to sex, because it contributed to the "totality of the circumstances." O.R.D. Federal Court Distinguishes Between Same-Sex Harassment by Co- Worker and by Supervisor Under Mass. Law In Messina v. Araserve, Inc., No. 94-CV-10632 (reported at 24 Mass. Lawyers Weekly 301, Oct. 23), the U.S. District Court in Massachusetts dismissed a claim of same-sex harassment under the Massachusetts Law Against Discrimination against the plaintiff's co-worker, but found that the law provides strict liability for harassment by a supervisor, regardless of the employer's remediation efforts after the problem is brought to the attention of higher authorities in the company. Plaintiff Charles Messina is a gay man who was working for Aramark (now Araserve, Inc.), a contractor providing dining services at MIT. Messina claimed to have been subjected to hostile environment sexual harassment by a male co-worker and a supervisor. Messina reported the harassment to a higher-level supervisor, and the company investigated the situation and took action against the harassers, subsequently transferring Messina to another location. Messina quit shortly after the transfer, a filed a diversity action in federal court, based on the state law forbidding both sex and sexual orientation discrimination. Ruling on the defendant's motion to dismiss, District Judge Lasker found that there was a jury question as to whether the conduct involved amounted to an actionable hostile environment. However, it was clear based on Messina's own allegations that the company took steps to remedy the situation once it was informed about the problem. This provided a basis to dispose of the claim based on the co-worker's alleged harassment. However, Lasker noted, although federal courts under Title VII have also found that adequate remediation bars a sexual harassment claim based on supervisory misconduct, Massachusetts has taken a different approach, holding employers unconditionally liable for sexual harassment by their supervisors. Remaining as a factual issue is whether the alleged harasser was actually Messina's supervisor. As to this, Lasker found that Messina's allegations were sufficient to create a triable issue for the factfinder, precluding summary judgment. William J. McLeod of Boston represents Messina. A.S.L. Connecticut Fire Fighter Loses Conspiracy Claim Against Union The U.S. District Court in Connecticut granted summary judgement to Local 801, Danbury Fire Fighters Association, on a 42 U.S.C. sec. 1985(3) civil rights conspiracy claim brought against the Union by William David, a gay fire fighter, in David v. Local 801, 1995 WL 590637 (D.Conn, Sept. 11). When David was promoted to captain, the Union brought an action challenging the temporary lieutenant's status to sit for promotional exams. After accepting a disability leave, David brought this action claiming that the Union's challenge was motivated by bias, that during his employment he had been subject to harassment due to his homosexuality and his relationship with a person with AIDS, and that the Union and the City continued to harass him by attacking his pension rights. Granting summary judgment, the District Court relied on the Supreme Court's decision in Griffin v. Breckenridge, 403 U.S. 88 (1971), which narrowly construed sec. 1985(3) to apply only in cases of racial or otherwise class-based discrimination, and on the widely-accepted Ninth Circuit premise outlined in Schultz v. Sunberg, 759 F.2d 714 (9th Cir. 1985) that the statute should only extend beyond racial parameters in the case of a suspect or quasi-suspect classification, or other classifications identified in federal statutes. Homosexuals have never been held to constitute a suspect or quasi-suspect class and are only entitled to rational basis scrutiny review, held the court. Arguably, the court erred in this decision in not considering 42 U.S.C. sec. 12112(b)(4) of the Americans with Disabilities Act (ADA), which prohibits "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association," inasmuch as AIDS discrimination is covered by the ADA. D.P. Federal Court Refuses to Dismiss Section 1983 Claim Against Sears Roebuck in Rest-Room Crackdown Case Denying in part a motion for summary judgment by the defendant in Gilbert v. Sears, Roebuck & Co., 1995 WL 608185 (M.D.Fla. 1995), U.S. District Judge Kovachevich found questions of material fact as to whether Sears Roebuck took on the identity of a state actor when it invited the Tampa, Florida, Police Department to assist it in attempting to crack down on alleged "homosexual activity" taking place in the men's room at Sears' Tampa Bay Mall store. Sears contacted the police department for help when its own efforts were unable to stop the alleged activity, and granted the police access and cooperation, including use of video surveillance equipment. Timothy Gilbert, the plaintiff, was arrested in the men's room while being watched by a police officer from a ceiling vent and another plainclothes officer located in the men's room. Gilbert sued both Sears and the City of Tampa under 42 U.S.C. sec. 1983 and the state constitution, claiming a violation of his civil rights, including his state constitutional right of privacy as well as a right to be free of false arrest. Sears moved to dismiss the claims against it on jurisdictional grounds, arguing that sec. 1983 requires that defendant have acted under color of state law and that the state constitutional privacy right could not apply to any action taken by Sears, a private-sector business. Judge Kovachevich agreed with Sears on the state constitutional point, citing an intermediate appellate decision from Florida holding that "the privacy provision of the Florida Constitution obviously creates no cause of action against private persons." However, Kovachevich found sufficient factual allegations in the complaint to create a triable issue on the "color of state law" claim under sec. 1983, noting the close cooperation between Sears and the police department in monitoring the men's room situation. Thus, Sears' motion to dismiss the sec. 1983 and false imprisonment claims was denied. A.S.L. Tennessee Appeals Court Finds Prostitution Law Creates Due Process Problems While declining to hold that the Tennessee prostitution statute is void for vagueness per se, the Tennessee Court of Criminal Appeals ruled in State v. Boyd, 1995 WL 623781 (Oct. 25), that the lack of definition of "sexual relations" in the statute created an ambiguity raising due process concerns about the instant prosecution, where the alleged prostitutes staged a sexual performance that involved no genital contact with the "customers" (who were, of course, undercover police officers). During its deliberations, the jury, confused about how to proceed under the statute, submitted a question to the court: "Is there a definition for sexual relations?" The court's response was: "The Tennessee legislature has provided no statutory definition for sexual relations. It is your duty as jurors to define this." After their conviction, the defendants claimed on appeal that there was not sufficient evidence in the record to support a conviction and that the statute was unconstitutionally vague. Writing for the court, Judge Welles noted the principle that "if an offense is not defined so as to afford persons of ordinary intelligence fair notice of what conduct is prohibited, it violates due process." Addressing the factual problem presented by the case, Welles explained: "There was some contact between the dancers and between the dancer and the patron, but there was no touching of the genitals between the dancers and only the finger of the patron was touched. The question is whether the statute gave the dancers adequate warning that their conduct amounted to `sexual relations.'" The company that offered this service continued to operate after these arrests, performing essentially the same routine, in some cases for other police officers, with no arrests. "While there is no doubt that the dancers intend for their act to be sexually arousing and suggestive of more intimate acts," wrote Welles, "we conclude that the language of the statute did not give them or anyone else sufficient warning that those acts would constitute `sexual relations' such as is prohibited by the prostitution statute." The court ordered the prostitution convictions reversed and those charges dismissed (while affirming convictions and sentences against one of the defendants for drug possession). A.S.L. Domestic Partnership Notes The Disney Company announced it will offer health benefits coverage for same-sex domestic partners of its employees, effective January 1, following the lead of other major entertainment companies such as Universal, Paramount, Sony, and Warner Brothers. Industry observers predicted that Disney's move would lead inspire other major employers to follow suit. New York Times, Oct. 8. The Associated Press reported that fifteen Florida state legislators, outraged over the announcement, wrote to Disney executive Michael Eisner protesting the move. * * * The University of Denver's trustees voted to extend health insurance benefit eligibility to same-sex partners of university employees. Employees will have to pay a premium for the coverage, just as employees currently pay premiums to insure spouses and opposite- sex partners. Rocky Mountain News, Oct. 7. * * * NYNEX Corporation, the main provider of local telephone service in the Northeastern United States, announced to employees in an October newsletter that it will extend health care and other benefits to same-sex partners of employees effective January 1. Opposite-sex domestic partners are excluded from the program because they have the opportunity to marry in order to qualify for benefits. Newsday, Oct. 13. * * * Barnes & Noble Booksellers and all of its subsidiaries (B. Dalton, Bookstop, Bookstar, Babbages, and Software ETC) have extended medical and dental coverage, bereavement leave, and spousal discounts on purchases to domestic partners of employees, effective September 1, according to an Internet posting. A.S.L. Sixth Circuit Requires Trial of Prison Rape Case The U.S. Court of Appeals for the 6th Circuit reversed a grant of summary judgment and ordered that the U.S. District Court in Michigan hold a trial on a claim that the Michigan Department of Corrections is in violation of the 8th Amendment by not having a procedural for protecting vulnerable prisoners from rape. Taylor v. Michigan Department of Corrections, 1995 WL 625406 (Oct. 26). Timothy Taylor, a five-foot, 120 pound prisoner with youthful features and an IQ of 66, was imprisoned for larceny in a minimum security prison. The court presentencing report recommended that prison personnel review an attached evaluation from the Social Security Administration (concerning Taylor's psychological disabilities) and carefully review several sources of medical information on Taylor. Taylor was initially assigned to a setting where he had an individual cell. However, he was transferred, possibly due to prison space needs, into a dormitory-type setting where he was housed in a large room with 60 other prisoners, and was raped. The district court found that Taylor's complaint had insufficient factual allegations to present a jury question under Farmer v. Brennan, 114 S.Ct. 1970 (1994), which requires a showing that prison officials "acted or failed to act despite. . . knowledge of a substantial risk of serious harm." In a 2-1 decision, the Circuit panel reversed, finding that Taylor's allegations raised three jury questions: (1) whether the warden knew that conditions in the prison system posed a substantial risk of serious harms to prisoners like Taylor; (2) whether the warden knew that there was effectively no procedure in place to protect vulnerable inmates from being transferred into dangerous conditions; and (3) whether in light of his knowledge, the warden acted with deliberate indifference in failing to adopt policies that would protect inmates like Taylor. The court also held that the district court erred by refusing to consider a report from a court-appointed expert before deciding the Corrections Department's motion to dismiss. A.S.L. Law & Society Notes Trying to mend fences with the lesbian and gay community, President Clinton announced on Oct. 19 that his administration supports passage of the Employment Non-Discrimination Act, a bill pending in Congress that would create a federal ban on sexual orientation discrimination by employers of fifteen or more employees. Some version of ENDA has been pending for a year and a half. At hearings on ENDA shortly after its first introduction, a letter from the Justice Department was submitted supporting the bill, but this is the first time the White House has directly announced its support, ironically just a week after the Supreme Court argument in Romer v. Evans (see above), in which the Administration decided not to file an amicus brief after intense internal debate. * * * President Clinton's order establishing uniform guidelines for federal agencies dealing with security clearances and incidentally barring sexual orientation discrimination in the security clearance process has been assigned an official designation: E.O. 12968 (August 7, 1995). Setting up a court battle over access to lesbian and gay erotica, the New York City Council approved a measure proposed by Mayor Rudolph Giuliani's administration that would sharply restrict the locations where sex-oriented businesses can operate. Totally excluded from the permissible areas is the heart of gay Greenwich Village. According to a map published in the New York Times on Oct. 26, half a dozen such businesses located along Christopher Street and West Street in the West Village will have to relocate or go out of business. A small industrial strip along West Street a few blocks south of Christopher, where no such businesses are presently located, would be the only place in the Village for sexually oriented businesses, and the other businesses located on that site make such relocation unlikely. Noting that some of the businesses that will be forced to close are long-established and have aroused no neighborhood complaints, the New York Civil Liberties Union was expected to file suit shortly to block the new zoning rules. Earnest Darden, a non-gay African-American, filed suit against the Alameda County Network of Mental Health Clients, of which he was a member from 1992 to early 1995, claiming racial and sexual orientation discrimination. Darden v. ACNMHC, 1995 WL 616633 (N.D.Cal., Oct. 4). Darden claims he was removed from the board for "advocating better representation of heterosexual minorities on the board and for resisting the `Gay agenda' that the board pursued." In dismissing his claim of sexual orientation discrimination, District Judge Patel pointed out that federal laws have been construed not to protect gays from sexual orientation discrimination; consequently, non-gay people also lack such protection. Sharon Bottoms, a lesbian mother, is back in court seeking custody of her son. In a petition filed Oct. 26 in Henrico County Juvenile and Domestic Relations Court, she asserts that her mother, Kay Bottoms, who was awarded custody by order of the Virginia Supreme Court, is providing an inferior living environment for Sharon's son, Tyler Dustou. Kay has moved into a trailor home and, alleges Sharon, "has no visible means of support." By contrast, Sharon's "living situation has improved dramatically over the last couple of years. She has lived in a stable relationship, in the same place, and she has a job." Virginian-Pilot, Oct. 27. College Republicans of Colorado, a group that describes itself as an "auxiliary" of the Republican National Committee, filed a lawsuit on Oct. 25 against three Colorado colleges, claiming that the requirement imposed by the colleges that officially recognized student groups not discriminate on the basis of sexual orientation violates the plaintiffs' First Amendment rights of free speech, debate and assembly. The defendants are Metropolitan State College of Denver, Colorado State University, and the University of Northern Colorado. The suit is pending in U.S. District Court in Denver. In a much-watched trial, a West Palm Beach, Florida, jury convicted Ronald Knight of first-degree murder, armed robbery and grand theft enhanced as a hate crime in a case arising from the murder of Brenden Scott Meehan, a gay man Knight and another person picked up at a gay dance club with the specific purpose of robbing and killing a gay man. Meehan was shot once in the head and his car, wallet, credit cards, necklace, pager and shoes were stolen before his body was dumped in a wooded area. Knight's co- conspirator, Sean Stephens, pleaded guilty to second-degree murder and received a ten-year sentence in exchange for testifying against Knight. Sun Sentinel, Sept. 30. California State University at Northridge has authorized creation of an Institute on Gay, Lesbian, Bisexual and Transgender Studies, which will sponsor lectures and roundtable discussions and provide resources for instructor who wish to incorporate gay studies into their courses. Los Angeles Times, Oct. 10. Kansas City is the site of a federal district court trial over a decision by the suburban Olathe school board to ban the book, "Annie On My Mind" from school libraries in the district. School Board President Robert Drummond, testifying at the trial as to his reasons for supporting the ban, said, "I believe what the Bible says about homosexuality, and the Bible says homosexuality is a sin." Drummond characterized the book as glorifying the homosexual lifestyle. The school board's vote came when a gay- advocacy group, Project 21, donated copies of "Annie" and "All- American Boy" to the Olathe schools in 1993. School librarians rejected "All-American Boy" purportedly on literary grounds, but wanted to accept "Annie." The A.C.L.U. brought suit on behalf of several students and their parents who claim their First Amendment rights were violated by the school board's action. Wichita Eagle, Sept. 23. St. Patrick's Day is Coming Again!! In Irish Lesbian and Gay Organization v. Bratton, 1995 WL 575330 (S.D.N.Y., Sept. 29), District Judge Keenan rejected an attempt by ILGO to obtain an amendment of Judge Keenan's order of last spring denying an injunction against Police Commissioner Bratton to compel Bratton to issue ILGO a 5th Avenue parade permit for St. Patrick's Day. Keenan said there had been no precipitating event, such as a new refusal of a permit by Bratton, to justify his revisiting the issues contained in the prior order. A.S.L. International Notes The Toronto Globe & Mail reported Oct. 27 that the Nova Scotia, Canada, government has changed its definition of spouse to extend benefits to partners of lesbian and gay civil servants, effective immediately. The government took the step in response to a joint request from the union representing its employees and the Civil Service Commission. A poll commissioned by a gay newspaper in the Netherlands reveals that nearly three-quarters of Dutch adults believe that lesbian and gay couples should be allowed to marry, according to a Reuters report that appeared in newspapers on Oct. 8. The Dutch Parliament is considering a same-sex marriage proposal. A.S.L. Professional Notes Anti-gay discrimination in the legal profession receiving differing treatment of appellate courts. The 9th Circuit backed away from a proposal to forbid sexual orientation discrimination within the circuit's courts, prompting a letter of protest from the American Bar Association's Governmental Affairs Director, Robert D. Evans. But on September 22, the Kentucky Supreme Court, by contrast, approved new rules effective November 1 that will require judges in the Kentucky courts to avoid sexual orientation discrimination in the administration of justice in the state's courts. The rule is based on provisions in the ABA's Model Rules of Judicial Conduct, which include the sexual orientation provisions. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS First Circuit Rejects Challenge to Safe-Sex School Program In an important decision about the conflicting rights of parents, students, and school administrators, the U.S. Court of Appeals for the First Circuit rejected a challenge by some Chelmsford, Massachusetts, high school students and their parents to a safer- sex program presented at the local high school. The unanimous ruling in Brown v. Hot, Sexy and Safer Productions, Inc., 1995 WL 610915 (Oct. 23), provides an important precedent for other schools contemplating presenting such programs. The case grew out of an April 8, 1992, assembly program at Chelmsford High School featuring Suzi Landolphi, a safer-sex educator who, to judge by the court's description, uses smutty humor and an informal, very sexually explicit approach to encourage high school students to use barrier contraceptives when they have sex. Her program also treats homosexuality as a normal phenomenon. Attendance at the program was mandatory for all students at the school, and no advance notice was given to parents about the nature of the program. In their lawsuit, the students and parents claimed that their constitutional rights had been violated. The parents argued that they have a constitutionally protected right to determine what their children will be exposed to in school, and to protect them from sexually offensive speech. They also claimed that requiring their children to attend the assembly violated their free exercise of religion. The students charged that the sexually explicit atmosphere created by the program constituted "sexual harassment" in violation of Title IX of the Education Amendments of 1972, which forbids sex discrimination in schools receiving federal financial assistance. The court, in an opinion by Chief Judge Torruella, rejected all the plaintiffs' arguments. Although the U.S. Supreme Court has recognized a constitutional basis for parental rights in cases challenging state attempts to require public school attendance or forbid private school instruction in particular subjects, the First Circuit rejected the argument that such rights extend to the details of public school curriculum. "We think it is fundamentally different for the state to say to a parent, `You can't teach your child German or send him to a parochial school,' than for the parent to say to the state, `You can't teach my child subjects that are morally offensive to me.'. . . If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school's choice of subject matter." The court refused to place such a burden on the public school system. The court also rejected on similar reasoning the argument that the students have some sort of constitutional right to be protected from "offensive speech," or that the school program violated the free exercise of religion by the students or their parents. Parents retain the right to send their children to private schools under the Supreme Court's precedents, if they disagree with what is presented in the public schools, but their ability to affect public school curricula is limited to the democratic processes of school governance, such as school board elections. Turning to the sexual harassment charge, the court rejected the argument that Landolphi's presentation created "an objectively hostile environment" on the basis of sex. Reporting on the serious introduction that the students were given to Landolphi's program, the court concluded that "an objective person would understand that Landolphi's allegedly vulgar sexual commentary was intended to educate the students about the AIDS virus rather than to create a sexually hostile environment." Also, the court noted the absence of any discrimination on the basis of sex in Landolphi's presentation, finding that her sexually explicit comments were directed to all students equally, regardless of gender. Gay and Lesbian Advocates and Defenders and the Massachusetts Civil Liberties Union assisted in defending the school district in this case. The plaintiffs, whose litigation is apparently being financed by the anti-gay Rutherford Institute, indicated they would seek further review in the U.S. Supreme Court. A.S.L. New York High Court Rejects Discrimination Claims Against Dental Care Providers Ruling unanimously on appeals from two of the appellate divisions, the New York Court of Appeals held Oct. 24 that dental care facilities that conditioned treatment of patients believed to be at risk for AIDS on the use of extraordinary precautions during the early years of the epidemic had not violated the state's Human Rights Law. North Shore University Hospital v. Rosa, 1995 WL 619789. Writing for the court, Judge George Bundy Smith rejected as "not supported by substantial evidence" the determination by the State Division of Human Rights that the imposition of extraordinary precautions was discrimination on the basis of perceived handicap, thus affirming a decision by the Appellate Division for the 2nd Department reported at 600 N.Y.S.2d 90 (1993). In the lead case, David Martell, a dental patient at North Shore, was questioned about risk factors and, despite his denials about risky behavior, was treated "in an isolated room located at the end of a dark hallway, with all of the equipment draped in plastic, a small `x' on the door and the treating physician and staff outfitted in protective clothing" including face masks, double gloves and goggles. While such precautions today might seem laughably extreme, the court decided that in the context of 1985, when this incident took place, the imposition of such measures was not unjustified. According to Smith, North Shore showed "that at the relevant time, its protocol was reasonable, medically warranted and consistent with its desire to protect patients and staff from the spread of infectious diseases." The court emphasized that at that time the Centers for Disease Control had yet to issue its guidelines for infection control in health care settings. Considering that during the 1980s many dentists were refusing outright to treat AIDS patients, the willingness of North Shore to provide treatment (and State Division found that Martell was not actually denied treatment), albeit under extreme precautions, was noteworthy. In addition to ruling on North Shore's appeal, the court affirmed without opinion a similar ruling by the Appellate Division for the 4th Department in Syracuse Community Health Center v. Wendi A.M., 1995 WL 620100, affirming 604 N.Y.S.2d 406 (1993). A.S.L. Uninfected Nurse Collects for Fear and Emotional Distress The Tennessee Supreme Court affirmed the findings of a Special Workers Compensation Appeals Panel that a nurse who had suffered extreme emotional distress after being accidentally exposed to HIV through a needlestick injury was entitled to a lump-sum compensation award even though she never tested positive for HIV. In Stout v. Johnson City Medical Center Hospital, Inc., 1995 WL 599708 (Oct. 11), the court based its opinion on findings that after Marcia Stout, a critical care nurse, pricked her finger with a needle that she had just used to anesthetize an HIV+ patient, she became so disturbed that she was unable to continue to work. She suffered from severe depression, including daily crying spells, insomnia, loss of appetite and loss of sex drive, decreased energy and feelings of hopelessness. Two psychiatrists testified to the severity of her impairment. Her husband reported his alarm at his wife's condition, including increased handwashing, sleeplessness, crying, inability to cope, fearfulness, and difficulty concentrating. A third psychiatrist, hired by the employer, found Stout to have a pre-existing obsessive compulsive disorder and to suffer from mild impairment from depression. The employer argued that because the plaintiff was, after more than one year of negative test results, long past the time for infection, her impairment had no scientific basis. The court rejected this argument, stating that the plaintiff was unable to accept scientific assurances of her HIV negative status. "To her, perception is reality," it stated. Acknowledging that cases dealing with job-related mental illnesses require a "go-slow approach" because there is so much uncertainty in the field, the court nevertheless found Stout's mental illness "clearly" job-related. It awarded her compensation based upon a finding of a 62.5% impairment. H.G.U. D.C. Circuit Finds Consulting Physician Has Limited Duty in HIV- Transmission Case A consulting physician hired by a doctor to provide quality control in reviewing lab tests ordered by the doctor did not assume the full duties of a physician-patient relationship to all the doctor's patients, ruled the D.C. Circuit Court of Appeals on Oct. 27 in In re: Sealed Case, 1995 WL 627906. Mr. B. was a patient of Doctor who tested HIV+ and then tested negative on a follow-up test and was told by the doctor that he was not infected. However, Mr. B. apparently was infected and subsequently infected Mrs. B. through sexual intercourse. Doctor had retained consultant at a later date to review laboratory results and bring to Doctor's attention any problems, as well as making treatment recommendations. Consultant did review some later lab tests from Mr. B., and made recommendations to Doctor based on those tests. In this suit by Mr. and Mrs. B against Doctor and Consultant, Mrs. B was appealing the district court's dismissal of her action against Consultant. Mrs. B contended that Consultant, as part of a physician-patient relationship with Mr. B., had a duty to review Mr. B's full medical file before making treatment recommendations to Doctor; on reviewing the file, Consultant would have seen the record of Mr. B's first HIV test and the fact that he was married and, having such knowledge, would be under a duty to warn Mrs. B. The Court of Appeals found that the Consultant did not have a duty to go beyond his assignment from the doctor of reviewing specific lab tests referred to him, and did not have an independent physician- patient relationship with Mr. B that would impose any greater duty. The court refrained from taking a position on whether a physician has a duty to notify third parties about their patients' HIV infection, a question not yet decided by the courts of the District of Columbia, whose substantive law governs this case. A.S.L. Nebraska Court Restores Child to HIV+ Foster Mom Removing a three and one-half year old child from his foster parents, due to the foster mother's having AIDS, was not in the child's best interests, the Nebraska Court of Appeals ruled on October 3. In Re John T.; State v. Carraher, 1995 WL 578022. John had been placed with his foster parents at the age of three months. The placement was of the "fos-adopt" variety, in which the foster placement was expected to lead to adoption by the foster parents when John was available for adoption. After learning that the foster mother was HIV+, the state department of social services decided that it would be in John's best interest to place him with a different foster family. The department's reasoning was that, in his current placement, John would in all likelihood watch his foster mother die. The department thought it preferable that John be transferred to a "healthy" set of foster parents. Medical experts offered conflicting testimony. Two witnesses testified that removing John from his foster parents created a risk of damage to John's personality greater than that of the "ordinary life event" of a parent's death. A psychiatric consultant for the department testified, however, that John's removal would do him no harm. Another concern for the consultant was John's risk of developing schizophrenia, with which at least one of his biological parents was afflicted. Observing that the future course of the mother's illness was speculative, and that death was, in any event, a natural, if painful, part of the life cycle, the court found it improper to attempt to save John from one possible tragedy, his mother's death, by visiting upon him another tragedy, the loss of both his mother and his father. The court noted that the mother's parenting abilities were presently unimpaired, there was no risk of John's contracting HIV from his mother, and the family was strongly bonded. Discussing the mother's failure to disclose her HIV+ status when the parents originally applied for John's foster placement, the court held that punishing the parents for the admitted deception should not be a factor in assessing John's best interests. R.M. NY Appellate Court Affirms Finding that Employer Lawfully Transferred Worker With HIV Affirming a finding by the State Division of Human Rights that a medical college did not violate the human rights law when it transferred an HIV+ phlebotomist from a patient-contact position to a position in the billing department, the New York Appellate Division, 1st Department, noted that record evidence showed the petitioner had repeatedly violated a work rule requiring that employees wear gloves on both hands when drawing blood, and that petitioner failed to show that the employer had knowingly tolerated violations of this rule by other employees. Friedel v. N.Y. State Div. of Hum. Rts., 1995 WL 593091 (Sept. 26). A.S.L. Court Orders Supervision of Visitation for Father Married to HIV+ Woman In D. v K., 1995 WL 574406 (Tenn. App., Sept. 29), the parties had divorced after the Father had been found to be involved in an adulterous relationship with a woman who had HIV (whom he later married). The parties had agreed that the Mother would have custody of their two children, who were five year old twins suffering from some impairment of their immune systems. The Father agreed that he would have unsupervised visitation outside the "presence . . . or close proximity. . ." of his current wife, that the children would not be permitted to sleep in the same bed which he had used, and that he would submit results of periodic blood tests to his wife. This agreement, embodied in the final decree of divorce, was reached after hearings before a Chancellor who placed eight restrictions (including those set forth above) based on the tenuous condition of the children's immune systems and ". . . the defendant [Father]'s irrational behavior putting himself at risk." Shortly after the divorce decree became final, the Mother found that the children were sleeping with the Father during visitation, so she hired a private investigator. The investigator found that during subsequent visitation, the Father allowed the children to engage in unsupervised play in the parking lot of the motel for hours at a time, including unsupervised play in and around a swimming pool where there was no adult or lifeguard supervision. On this basis, and because the Father had failed to submit results of his blood tests, the Mother filed a petition for contempt and attorney's fees, and would not permit the Father to have unsupervised visitation until her petition was heard. The Father cross-moved for contempt as a result of the denial of visitation. After a hearing, the trial court found both parties in technical violation of their agreement, denied the Mother's request that the Father's visitation be supervised, and denied findings of contempt as to both parties and attorneys fees for the mother. At issue in the Mother's appeal was whether the evidence 1) "preponderate[d]" against a finding of contempt against the mother, 2) "preponderate[d]" against the trial court's finding that the Father's visitation should not be supervised and 3) whether the Mother was entitled to attorneys' fees. The appellate court found that the Mother was in contempt for not allowing unsupervised visitation pursuant to the final divorce decree, but, after noting that no sanction was imposed for this "technical violation," found in the Mother's favor on the remaining two issues. The trial court found that the Father had given the children unsupervised run of the premises, which were within 100 yards of an interstate ramp, in a nearby restaurant parking lot, and in and around the motel pool. The Father's testimony at trial indicated that he could not understand what the problem was. The Court of Appeals found that in "this day and age of child abductions and the like" and "considering potential problems associated with the children's immunodeficiency," the Father's "conduct and attitude" was "totally unacceptable" and vacated the trial court's determination that third party supervision was unnecessary and unfeasible. Third party supervision of the Father's visitation would be required until further court order, or agreement of the parties. In light of this ruling, the award of attorney's fees to the wife was no surprise. S.K. Litigation Settlement Will Change N.Y. Policy on HIV-Testing of Newborns Under the terms of a settlement agreement in Baby Girl Doe v. Pataki, No. 10661-95 (N.Y. Sup. Ct., N.Y. Co.), announced Oct. 10, the administration of New York Governor George Pataki has agreed to promulgate regulations and guidelines that will change procedures governing HIV-testing of newborn infants in the state. Presently, all newborns are tested for HIV anonymously, with the results used only for epidemiological analysis. The Association to Benefit Children, a non-profit organization, brought suit on behalf of infant children in New York State, seeking a policy change to mandate disclosing test results to the mothers of newborns. A New York statute, Public Health Law Article 27-F, requires informed consent for all HIV-testing (with narrow legislatively specified exceptions) and that test results be treated with strict confidentiality. Legislation has been introduced and passed by the state Senate, but blocked in the Assembly, that would accomplish what the Association sought in its lawsuit. Attorney General Dennis Vacco's office negotiated the settlement agreement with the Association (which was assisted by volunteer counsel Colin Crawford of Brooklyn Law School and Margaret A. Keane of LeBoeuf, Lamb, Greene & MacRae). The following changes (which the parties assert will not require modification of Article 27-F) will be made to current procedures. First, all pregnant women who come into contact with health care facilities for prenatal care will be counselled and encouraged to submit voluntarily to HIV-testing, with the goal of trying to prevent transmission of HIV to their offspring in utero by AZT treatment during pregnancy. (Experimental results suggest that the likelihood of HIV transmission during pregnancy is significantly reduced by AZT therapy, although the studies are controversial on the issue of side-effects of such therapy on mother and newborn.) Second, upon giving birth, new mothers will be counselled about HIV testing for their newborns and offered a consent form. If they consent, a test will be performed by the quickest means available and results reported back to them through their doctors. The state also agrees to establish a mechanism for ensuring appropriate treatment in case of positive tests (although neither the agreement nor the Governor's press release specifies how such treatment will be funded for indigent mothers and infants). The written agreement is somewhat ambiguous on what happens if the mother specifically declines consent. However, it provides that a doctor "shall determine whether the presence of one or more risk factors constitutes an emergency that requires an HIV test to be performed on the infant." Thus, it appears that obtaining written consent from a mother may be an unnecessary formality if the doctor determines that the infant comes from a group perceived as being "at risk" for AIDS. In announcing the settlement, both the Association and the Governor's office emphasized that their agreement did not commit the state to mandatory testing of newborns without their mothers' consent. However, the provision on "emergency" testing might be interpreted to establish "de facto" mandatory testing for infants born in hospitals that serve largely racial minority populations. Any conclusions on this score must await publication of proposed regulations and guidelines, which will be subject to public comment before they can go into effect. It seemed likely that any scheme providing a significant loophole in the consent requirement would attract litigation from groups concerned with civil liberties issues around HIV testing. Assemblymember Nettie Mayersohn, sponsor of the newborn testing bill, announced her dissatisfaction with the settlement and indicated she would reintroduce her bill at the next legislative session. Governor Pataki indicated he would sign it if it passed the legislature, expressing frustration at being blocked by Article 27-F from agreeing to all of the Association's litigation demands. A.S.L. Federal Magistrate Approves Settlement of Privacy Claim Against New York City The City of New York settled a lawsuit brought by four members of a family, three of whom were minors, after various agencies and officials violated the family's constitutional and state-law rights by disclosing confidential HIV-related information about the family. Since at the time of settlement two of the plaintiffs were still minors, U.S. Magistrate Judge Michael H. Dolinger was called upon to approve the settlement in an infants' compromise proceeding. Doe v. New York City Dept. of Social Services, 1995 WL 619864 (S.D.N.Y., Oct. 23). In their suit, the plaintiffs alleged that the New York City Child Welfare Administration and the Police Department had improperly disclosed the HIV status of members of the plaintiffs' family to other employees of the agencies and to other residents in the building where plaintiffs lived. The settlement involves a lump sum payment of $25,000.00, which will be divided equally among the three plaintiff children. The fourth plaintiff, who was the mother of the children, is deceased. Judge Dolinger noted in his ruling that the City had strengthened its policies and training regarding HIV disclosure since this case was filed. He also noted that since one plaintiff had died and one of the children was diagnosed with AIDS, a delay caused by taking the case to trial would not be in the best interests of the minor children. Judge Dolinger found the proposed settlement terms to be reasonable and concluded that they adequately protected the interests of the children T.V.L. Texas Appeals Court Upholds Conviction for Showing Gay Safe Sex Video on Cable Television The Texas Court of Appeals in Austin has upheld prison terms of 180 days and fines of $2,000 for the producer and on-screen presenter of a cable television program titled "Infosex" broadcast between midnight and 2:00 a.m. on Austin Community Television Cable's public access channel. The defendants in Rees v. State and Johnson v. State, 1995 WL 608150 (Oct. 18), were convicted of "promotion of obscenity" based on the exhibition of a short sex film titled "Midnight Snack," which Gareth Rees, the on-screen presenter, described to viewers as a film produced by Gay Men's Health Crisis in New York. As described in the indictment, the unlawful item is a "video tape depicting a man with the penis of another man in his mouth, a man placing his finger in the anus of another, a man licking with his tongue the anus of another and two men masturbating each other." The defendants were convicted by a jury, but were acquitted of a companion charge of "harmful display of obscene material to minors." On appeal, the defendants claim the trial court erred by failing to consider "Midnight Snack" in the context of the entire Infosex program. Justice Dally's opinion for the court summarizes the entire content of the two-hour broadcast, which sounds like a program produced to make safe sex attractive and erotic for gay men. Harking back to language in some of the U.S. Supreme Court's obscenity cases, the defendants argued that the individual video could not be judged in isolation, but rather the entire Infosex program had to be judged "as a whole," and could not be found obscene due to its educational value for viewers. The Texas appeals court disagreed, noting that some cases had held that individual articles or photographs unrelated to other content in the same periodical, for example, could be found obscene, and thus that each segment of the Infosex program could be separately judged. Finding that the trial court had properly instructed the jury, and that the content of Midnight Snack came within the broad parameters of obscenity as described in the Supreme Court's Miller v. California (1973) doctrine, the court upheld the sentences. The opinion reflects no consideration whatsoever of public health concerns about AIDS, treating any such concerns as mere pretexts to justify the broadcast of a sexually explicit gay video. A.S.L. Knowledge That AIDS Inevitably Results From HIV Is Required To Toll Federal Tort Statute Of Limitations In Beckley v. U.S., 1995 WL 590658 (S.D.N.Y., Oct. 5), U.S. District Judge Kimba Wood held that in order to begin tolling a statute of limitations for a claim of HIV infection under the Federal Tort Claims Act, 28 U.S.C. sec. 1346(b), 2671-80, the claimant must be aware of definitive medical knowledge that AIDS inevitably results from HIV. In denying the government's summary judgment motion against Richard Beckley, who claims he was infected with HIV through a blood transfusion at a public hospital, Judge Wood rejected the government's argument that Mr. Beckley was barred by the statute of limitations because he filed his claim over three years after he discovered he was HIV- positive. Beckley received ten blood transfusions at the Bronx Veterans Hospital in July and August 1984 and tested positive for HIV in February 1988. Although at the time of his HIV test Beckley had reason to suspect that he was infected with HIV through the transfusions at the Bronx Veteran's Hospital, he did not then file a claim against the government. After learning of similar lawsuits initiated by individuals who were infected with HIV in the mid-1980s, Beckley filed an administrative claim against the hospital with the Department of Veteran's Affairs on July 26, 1991. After this claim was denied, he filed the present lawsuit. The government argued that because Beckley did not file an administrative claim until July 1991, nearly three and a half years after his HIV test, his claim was barred by a two-year statute of limitations. The court acknowledged that Beckley became aware of his HIV-injury in February 1988, but further maintained that Beckley did not necessarily become aware of his AIDS-injury at that time, observing that 1988 medical knowledge was insufficient for Beckley to conclude that he would inevitably contract AIDS from his HIV infection. The court emphasized, however, that its opinion does not hold that Beckley's cause of action did not accrue until he actually acquired AIDS. Rather, the court found that, based on the evidence presented, it could not "determine either the time when the medical community knew with reasonable certainty that AIDS would result from an HIV infection, or the time when a layman such as Beckley could have discovered that in all probability he would contract AIDS." Therefore, because an issue of material fact existed as to when the statute of limitation began to toll, the court denied summary judgment. P.J.H. Federal Court Dismisses Pendent State Privacy Claim in AIDS Discrimination Litigation In Doe v. Montgomery Hospital, 1995 WL 622887 (E.D.Pa., Oct. 18), the federal district court ruled that state tort claims against a hairstylist who spread information about the plaintiff's HIV status, allegedly resulting in the plaintiff's loss of his job and causing him extreme emotional distress, could not be appended to a federal discrimination claim (under the Americans with Disabilities Act) against the hospital where the plaintiff was receiving medical treatment, even though it was allegedly a breach of privacy by the hospital that led the hairstylist to obtain this information. "John Doe" went to Montgomery Hospital for treatment for two broken wrists sustained when he was mugged. He informed the doctor and nurse that he was HIV+, and claims that as a result of this revelation he received discriminatory treatment. He also alleges that hospital staff members failed to treat this information about his HIV status as confidential, and that an unidentified nurse told one Anne Venezia (named as a codefendant), a hairstylist who is not employed by the hospital, who thereafter told her boyfriend and "the public at large," resulting in injuries to Doe. Venezia moved to have the state tort claims against her dismissed, both on jurisdictional and substantive (failure to state a claim) grounds. District Judge Kelly acknowledged that there were common issues of fact in the state law tort claims against the hospital and against Venezia, but concluded that there were no common issues of fact as to the ADA claim, so the court's supplementary jurisdiction would be limited to those state tort claims asserted against the hospital. Having disposed of the case on jurisdictional grounds, Kelly refrained from ruling on whether Doe had stated a valid claim against Venezia under state law. A.S.L. New York Court Rejects Time-Bar Argument in Transfusion-AIDS Litigation In an unpublished decision recently reported by Westlaw, Otero v. Presbyterian Hospital, 1995 WL 542504 (June 26), Justice Anne E. Targum, New York Supreme Court, Bronx County, refused to dismiss a lawsuit against Presbyterian Hospital and Montefiore Medical Center arising from the death of the plaintiff's son, Wilfredo Otero, from AIDS. Otero, born with sickle cell disease, received numerous blood transfusions at Montefiore beginning in September 1982 and continuing until he ceased treatment there late in 1992 after doctors informed his mother that he had contracted hepatitis from a contaminated blood transfusion. In 1987, as a result of a "lookback program," the Oteros were informed that Wilfredo had been exposed to HIV in a 1983 transfusion. Wilfredo died in January of 1993, and this action was filed in December of that year. Moving to dismiss the negligence action on statute of limitation grounds, Montefiore argued that the time to file suit ran three years after Wilfredo was informed by the hospital in 1987 about his HIV exposure. Justice Targum denied all pending motions, ordering expansive discovery, and noting that New York courts have afforded considerable flexibility to transfusion-AIDS plaintiffs to conduct discovery necessary to support the legal theories in their cases. She also noted that New York courts have previously allowed such plaintiffs to calculate their time to sue from the development of AIDS symptoms rather than from the time they learned of their HIV infection. A.S.L. AIDS Law & Society Notes Sen. Jesse Helms (R.-N.C.) got more than he bargained for when he wrote to syndicated columnist Ann Lander to protest the assertion in a previous Ann Landers column that he wanted to "reduce federal AIDS funding" and that he "vigorously support[s] taxpayer subsidies for the tobacco industries." Replying in a column published in the Chicago Tribune on October 15, Landers characterized Helms's statements about the origin of AIDS as "patently incorrect," and cited chapter and verse on various Helms amendments intended to reduce funding for AIDS prevention and treatment. "Sen. Helms, are you aware that AIDS is the leading killer of Americans from 25 to 44 years of age?" she wrote. "It will account for more than 40,000 deaths in 1995. AIDS kills the youngest and most talented and productive members of our society. Fifteen years ago, no one had heard of AIDS. It grew from zero reported deaths in 1980 to being the eighth leading cause of death in 1992. People with AIDS have lost their jobs, their health insurance and their homes. Please remember these chilling facts the next time a vote for AIDS funding comes along." A junior high school health teacher in Union County, South Carolina, has been suspended and placed on probation for showing the film "Philadelphia" as part of an AIDS education lesson without obtaining advanced approval from school administrators. Columbia State, Oct. 22. The school superintendent said the action was taken after complaints from parents at a school board meeting that they had not been given the option of refusing consent for their children to view the film, which they characterized as "vulgar and favoring a homosexual lifestyle." (The film centers on a gay lawyer with AIDS who is discharged by his firm and sues for discrimination; the lawyer dies in the end.) A.S.L. Mark LaBonte, a healthy uninfected gay man whose partner has AIDS, is suing Minnesota Mutual Life Insurance Co. for refusing to sell him a life insurance policy. San Francisco Examiner, Oct. 24. The suit, filed Oct. 23 in San Francisco Superior Court, alleges violations of the California Unruh Civil Rights Act, the California Insurance Code, and the Americans With Disabilities Act, according to LaBonte's lawyer, prominent San Francisco gay litigator Paul Wotman. LaBonte had applied for a $150,000 policy, and tested negative for HIV on the test required by the insurer. LaBonte alleges that the insurer misconstrued notes by his doctor on his medical records to indicate that he was engaging in unsafe sex with his partner, and refused to accept his explanation that the notes were incorrect. At last, some common sense on spitting! Martin County, Florida, Judge David Harper threw out an attempted murder charge against a homeless man who spit on a store manager while being accused of shoplifting and later told police that he was HIV+. Harper commented that he suspected "there was some crime committed, but from what I saw, I couldn't find (probable cause) for attempted murder," reported the Palm Beach Post, Oct. 3. However, Harper said he would reconsider if prosecutors could come up with case law or medical evidence showing that spitting can transmit HIV. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS ANNOUNCEMENT DEADLINE EXTENDED FOR LEGAL DIRECTORY. The deadline has been extended for those seeking to be listed in the Lesbian & Gay Legal Resource Guide and Attorney Directory, to be published by the National Educational Foundation for Individual Rights. More than 2,000 attorneys have already submitted their directory information for inclusion. If you are interested in being listed, send your name, firm name (if any), address, phone number, fax number, e-mail address, and areas of practice, in a signed letter authorizing publication, to: Legal Directory, c/o Peter Kearns, 630 Alvarado St., #205, San Francisco, CA 94114. LESBIAN & GAY & RELATED LEGAL ISSUES: Arriola, Elvia R., Faeries, Marimachas, Queens, and Lezzies: The Construction of Homosexuality Before the 1969 Stonewall Riots, 5 Col. J. Gender & L. 33 (1995). Healy, Patrick, Statutory Prohibitions and the Regulation of New Reproductive Technologies under Federal Law in Canada, 40 McGill L.J. 905 (Aug. 1995). Itzin, Catherine, Pornography, Harm and Human Rights -- The European Context, 16 Tolley's J. Media L. & Prac. 107 (1995). McTeer, Maureen A., A Role for Law in Matters of Morality, 40 McGill L.J. 893 (Aug. 1995). Valdes, Francisco, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 Cal. L. Rev. 1 (Jan. 1995) (378 article to be published in book form next year). Wilets, James D., The Human Rights of Sexual Minorities, 22 Hum. Rts. (ABA) No. 4, 22 (Fall 1995). Book Reviews: Bowley, Martin, Didi Herman: Rights of Passage: Struggles for Lesbian and Gay Equality, 22 J. L. & Society (UK) 426 (Sept. 1995). Student Notes & Comments: Deitrich, Jonathan, The Lessons of the Law: Same-Sex Marriage and Baehr v. Lewin, 78 Marquette L. Rev. 121 (Fall 1994). Eckel, Kelly D., Legitimate Limitation of a Landlord's Rights -- A New Dawn for Unmarried Cohabitants, 68 Temple L. Rev. 811 (Summer 1995). Huelster, Pamela A., Cybersex and Community Standards, 75 Boston U. L. Rev. 865 (May 1995). Joseph, Sarah, Toonen v. Australia: Gay Rights Under the ICCPR, 13 U. Tasmania L. Rev. 392 (Oct. 1994). Mendenhall, Lawrence Kent, Misters Korematsu and Steffan: The Japanese Internment and the Military's Ban on Gays in the Armed Forces, 70 N.Y.U. L. Rev. 196 (April 1995). O'Callaghan, William, Cameras in the Restroom: Police Surveillance and the Fourth Amendment, 22 Hastings Const. L. Q. 867 (Spring 1995). AIDS & RELATED LEGAL ISSUES: Lee, Elaine, Lee Woon Shiu & Margaret Law Yuh Tyng, Law and Medicine: AIDS and the Law, Singapore L. Rev. No. 259/06/94, 213- 243. Shelton, Deborah L., AIDS Orphans: The Forgotten Victims, 22 Hum. Rts. (ABA) No. 4, 18 (Fall 1995). Specially Noted: In an op-ed article published in the New York Times on Oct. 26, John Marshall Law School Professor Michael Closen harshly criticizes the Supreme Court for having refused to grant review in any case presenting AIDS legal issues. Closen notes that at least half a dozen significant AIDS legal issues have been presented to the Court for review, but it has routinely denied certiorari. (To date, the only significant Supreme Court ruling on AIDS is the by-product of a Rehabilitation Act case from 1987 in which the Court held that a discharged public school teacher with tuberculosis had stated a claim of handicap discrimination; the decision provided the doctrinal underpinning for protecting people with HIV/AIDS from discrimination, but the court pointedly refrained from directly addressing AIDS issues raised in amicus briefs on both sides of the case.) 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.