LESBIAN/GAY LAW NOTES
Lesbian & Gay Law Association of Greater New York
ISSN 8755 9021
December 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 Writers: Otis Damslet, Esq., New York; Steven Kolodny,
Esq., New York; Todd V. Lamb, Esq., New York; Michael S. Ryan,
Esq., New York; Mark N. Sperber, Esq., New York; Dirk Williams,
Esq., Boston; Robin Miller, Esq., Seattle; Robert Wintemute, Esq.,
London, England; 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    
$45/yr by subscription (Foreign Rate US$60)  

APPELLATE COURTS APPROVE CO-PARENT ADOPTION IN NEW YORK AND NEW
JERSEY

Within a week of each other, the New York Court of Appeals and the
Appellate Division of the New Jersey Superior Court interpreted the
state adoption laws to allow the domestic partner of a lesbian
birth mother to adopt her partner's children without cutting off
the birth mother's parental rights.  Sometimes referred to as
"second parent adoptions," these types of proceedings had
previously been approved by the highest courts in Vermont,
Massachusetts and the District of Columbia, and by numerous lower
level courts in other states (including the Illinois Court of
Appeals).  However, the Wisconsin Supreme Court has refused to
interpret the law to allow such adoptions, and some lower court
judges have followed suit (including those in the New York and New
Jersey cases described here).  

Interestingly, the New York and New Jersey courts reached their
results through different routes, New Jersey focusing on an
expansive interpretation of a "stepparent" adoption provision while
New York focused on a limiting interpretation of the "cut-
off"provision, which describes the effect of an adoption on the
rights and duties of birth parents.

The New Jersey case, Matter of Adoption of Two Children by H.N.R.,
1995 WL 649120, 22 Fam.L.Rep. (BNA) 1028 (Appellate Division, Oct.
27), involved a lesbian couple, "Hannah" and "Mary," who decided to
have a child through donor insemination.  Hannah, the elder, tried
to become pregnant first but was unsuccessful.  Mary then became
pregnant and bore twins.  Hannah petitioned to adopt the twins,
with Mary's consent.  The Children's Aid and Adoption Society home
study strongly supported the adoption, but the trial judge,
deciding that the adoption statute did not authorize such an
adoption, dismissed the petition without reaching the question
whether the adoption would be in the child's best interest.  

The appellate division panel was split 2-1, with Presiding Judge
Sylvia Pressler holding for the court that Hannah should be treated
analogously to a stepparent.  "As we understand the trial judge's
reasoning, he was of the view that since the plaintiff was not the
legal spouse of the natural mother, she could not qualify as a
stepparent and, consequently, her adoption petition could not be
granted since it would have the inevitable and unintended effect of
terminating the biological mother's parental rights.  We are,
however, persuaded that that statutory provision, read in context
and construed in light of both the liberal-construction mandate and
the best-interests test, does not support the trial judge's denial
of the petition.  In sum, we conclude that the stepparent exception
to the natural parent's termination of rights should not be read
literally and restrictively where to do so would defeat the best
interests of the children and would produce a wholly absurd and
untenable result."

In New York, the Appellate Division in the 4th Department, ruling
in Matter of Jacob, held that the male domestic partner of a single
mother could not adopt her child, and the Appellate Division in the
2nd Department, ruling in Matter of Dana, held that a lesbian co-
parent could not adopt her partner's child, conceived by agreement
of the couple through donor insemination.  The cases were
consolidated for review, so the issue facing the court was whether
the unmarried domestic partner of a birth mother, regardless of
gender or sexual orientation, could adopt the child without cutting
off the parental rights of the birth mother.  Although New York has
a stepparent provision similar to New Jersey's, the opinion for the
court by Chief Judge Judith Kaye in Matter of Jacob, 1995 WL 643833
(Nov. 2), focused on interpreting the "cut-off" provision, which
provides, in essence, that after an adoption the parental rights
and duties of birth parents are terminated.  Three members of the
seven-judge court dissented from the majority's interpretation of
the statute.

Judge Kaye began her analysis with a section devoted to "context,"
in which she established the basic premise for her opinion:
although adoption statutes are to be strictly construed since
adoption is "solely the creature of statute," it is the
"legislative purpose" as much as the "legislative language" that is
to be "applied rigorously."  "Thus," she asserted, "the adoption
statute must be applied in harmony with the humanitarian principle
that adoption is a means of securing the best possible home for a
child."  In that light, these two cases seemed to fall easily into
a best interests analysis supporting the adoption petitions: "This
policy would certainly be advanced in situations like those
presented here by allowing the two adults who actually function as
a child's parents to become the child's legal parents," wrote Kaye,
going on the describe some of the advantages to the child of
formalizing these relationships.

Another part of this "contextual" introduction to the analysis
focused on the history of New York's adoption statute, which is a
patchwork of old provisions and newer amendments rather than a
unified code.  "The statute today contains language from the 1870's
alongside language from the 1990's," Kaye found, thus countering
the dissent's contention that the statute is a "methodical and
meticulous" expression of legislative judgment.

Turning to interpretation, Kaye first rejected the argument that
sec. 110 of the N.Y. Domestic Relations Law, which provides that an
"an adult unmarried person or an adult husband and his adult wife
together may adopt another person," necessarily excludes adoptions
by the unmarried domestic partners of birth parents.  The lower
courts found that they were compelled to reject the adoption
petitions under this language.  Kaye saw no such compulsion,
pointing to modern amendments to the statute that had expanded the
circle of prospective adoptive parents (including the stepparent
provision), and concluded that recognizing standing by the
petitioners in these cases "is therefore consistent with the words
of the statute as well as the spirit behind the modern-day
amendments: encouraging the adoption of as many children as
possible regardless of the sexual orientation or marital status of
the individuals seeking to adopt them."

Turning to sec. 117, the "cut-off" provision, which provides that
after "the making of an order of adoption the natural parents of
the adoptive child shall be relieved of all parental duties toward
and of all responsibilities for and shall have no rights over such
adoptive child or to his property by descent or succession," Kaye
argued that "neither the language nor policy underlying section 117
dictates" that the birth mother's parental status would be
terminated by granting the adoption petitions in these cases. 
Focusing first on the language, Kaye contended that it was
concerned primarily with issues of descent and distribution,
pointing especially to a subsection of the provision added by
amendment after the initial enactment of sec. 117, which Kaye
contended "appears to limit the applicability of the entire first
half of section 117 -- including the language concerning
termination in subsection (1)(a) -- `only to the intestate descent
and distribution of real and personal property'" (emphasis supplied
by Judge Kaye).  Perhaps even more importantly, Kaye demonstrated
that a variety of amendments to sec. 117 over the years had created
quite a few internal inconsistencies and ambiguities.

In light of the ambiguities in the statute, Kaye sought to find an
overall theme or purpose to the section that could be used to give
it a rational interpretation.  She proposed that the overall
legislative purpose is to avoid the problem of the new family
created by an adoption suffering interference from the child's
former family, or, as she put it, "to prevent unwanted intrusion by
the child's former biological relatives to promote the stability of
the new adoptive family."  Given such a purpose, there would be no
reason to apply sec. 117 to the kinds of adoptive families that
would be created by granting the petitions in these cases, because
the child's only biological parent is the domestic partner of the
petitioner, and the adoptive family will include both of these
individuals as parent.  Kaye pointed to the 1951 amendment of sec.
117 that added the stepparent adoption provisions as an example of
legislative acknowledgement that the cut-off provision should not
apply when the purpose of sheltering an adoptive family from the
instability of intrusion from birth parents was no longer an issue. 
She also found other amendments, authorizing "open adoptions" and
"adoptions by minors," as further evidence of legislative openness
to exceptions to the cut-off policy under appropriate
circumstances.

While describing as a "statutory puzzle" the ambiguities and
contractions created by the various amendments to sec. 117, Kaye
drew one conclusion: "that section 117 does not invariably require
termination in the situation where the biological parent, having
consented to the adoption, has agreed to retain parental rights and
to raise the child together with the second parent," and that the
various exceptions contained in amendments provided this "common
denominator" that could guide the court in interpreting the
statute.  Since section 117 lent itself to various interpretations,
Kaye asserted that it should be construed in a way that advances
the legislature purpose.  She noted that this was particularly
appropriate in Dana, since the lesbian co-parents could not marry
to take advantage of section 117's specific authorization of joint
adoptions by married partners.  (And she suggested, without further
developing the point, that denying these adoptions might set up a
constitutional challenge to the adoption statute by same-sex
couples.)  

Unlike the New Jersey court, which determined that the factual
record was sufficient to grant the adoption, the New York court
remanded the two cases back to their respective family courts of
origin for the factual findings necessary to make a best interests
determination.  In his opinion for the dissenters, Judge Bellacosa
focused on the limited role of the court in a statutory
interpretation case, arguing that regardless of the merit of the
result reached in this case, the court should leave to the
legislature the task of unraveling any inconsistencies or
ambiguities in the law.

The New Jersey case was argued by Montclair attorney Barbara Fox,
with assistance from the ACLU of New Jersey.  In New York, Jacob
was argued by Nicholas S. Priore, and Dana was argued by Beatrice
Dohrn, Legal Director of Lambda Legal Defense & Education Fund,
which represented the petitioner on appeal.  Since these opinions
are premised on statutory interpretation, they are subject to
legislative reversal.  In New York, there were some rumblings of
discontent from the Republican governor and state senate majority
leader, so the story of co-parent adoption under New York law may
not be at an end.  In the District of Columbia, where the highest
appellate court authorized such an adoption earlier this year,
there were signs that the decision might be overruled by Congress
as part of the annual District of Columbia appropriations bill. 
A.S.L.

LESBIAN/GAY LEGAL NEWS 

Maine Voters Reject Stealth Amendment; Results on Gay Candidates
Mixed

Gays fared reasonably well at elections around the country on Nov.
7, with more than half of the openly gay candidates winning
election.  53% of the voters in Maine rejected a proposed state
constitutional amendment that would have barred political
subdivisions from prohibiting sexual orientation discrimination and
might have barred passage of a state gay rights bill by the
legislature.  Such a bill was passed in 1993 but vetoed by the
Republican governor.  The present governor, an independent, has
indicated he would sign such a bill if it passed, but gay advocates
in the state are hesitant about introducing a new bill until the
dust settles from the vigorous campaign waged around the
referendum.

In the most publicized gay election story, lesbian attorney Roberta
Achtenberg finished third in the San Francisco mayoral race, thus
being eliminated from a run-off between incumbent mayor Frank
Jordan and challenger Willie Brown.  Both Jordan and Brown are
seeking gay support in the December run-off.  Achtenberg has
endorsed Brown, but declined his post-election offer of a position
in his administration if he wins.  Openly gay mayoral candidates
were elected in Melbourne, Iowa (Bill Crews), and Carrboro, North
Carolina (Mike Nelson), and Cambridge, Mass. mayor Ken Reeves was
re-elected to the Council (with the Council's decision on whom to
elect major from among its members still pending).  But Sherry
Harris, the nation's only openly-lesbian African American woman,
was defeated for re-election to the Seattle City Council, while
another lesbian candidate, Tina Podlodowski, won election in a
different district.  

Supreme Court Will Review "Helms Amendment" to Cable TV Law

The U.S. Supreme Court announced on Nov. 13 that it will review
Alliance for Community Media v. FCC, 56 F3d 105 (1995), in which a
divided en banc D.C. Circuit Court of Appeals upheld provisions of
the 1992 Cable Television Consumer Protection and Competition Act
known as the "Helms Amendment."  Nos. 95-124 & 95-227.  

Under prior law, cable operators were prohibited from censoring
materials on their leased and public access channels, in exchange
for which they were given immunity from suit for such content.  The
Helms Amendment provisions did several things: Sec. 10(a) of the
Act authorized cable operators to prohibit "indecent" programs; and
Sec. 10(b) provided that if cable operators allowed the broadcast
of indecent programs, they were required to segregate them onto
specific channels which only viewers who had made written requests
would receive.  The new Act also removed cable operators' immunity
from suit for broadcasting obscene matter on leased or public
access channels. 

The court of appeals held that the First Amendment rights of
programmers and viewers were not implicated, because the government
was not itself prohibiting indecent broadcasts, but merely allowing
private parties, the cable operators, to do so, thus no "state
action" was involved.  The lower court also rejected the argument
that the term "indecent" used in the Act was too vague to survive
a due process challenge, relying on FCC v. Pacifica Foundation, 438
U.S. 726 (1978), in which it was said that the Supreme Court had
implicitly accepted the FCC's definition of "indecent" programming. 


The Supreme Court granted review to consider whether there was
state action, whether the provisions survive a vagueness challenge,
and, if the First Amendment is found to be implicated, whether the
statute survives challenge as being narrowly tailored to achieve a
compelling governmental interest.  

The case holds particular importance for the lesbian and gay
community.  Although not all lesbian and gay-related programming is
sexually explicit, sec. 10(a) may be seen by more conservative
cable broadcasters as an authorization to sharply limit what
lesbian and gay material can be broadcast on their systems.  Also,
most lesbian and gay cable programming, regardless of whether it is
sexually explicit, is likely to be assigned to the channels where
sexually explicit material is to be segregated under sec. 10(b),
where the statute's requirement that such material be scrambled and
only made available to viewers who request it in writing could
intimidate many potential viewers from seeing gay programming,
especially since the cable company would have to maintain a file of
those requesting such access.  (Time-Warner Cable of New York
announced it would put such an operation into effect, drawing a
lawsuit from a coalition of parties, including Gay Cable Network;
a district judge in the Southern District of New York issued an
order restraining Time-Warner from this action pending a
determination on constitutionality of the statute.)  In the past,
the Supreme Court has been critical of attempts to censor non-
obscene broadcasts by Congress, holding out hope that the Court
will side with the dissenters in the D.C. Circuit and strike down
this latest attempt by Senator Helms to purge gay material from
electronic media.  A.S.L.

Supreme Court Decline Intervention in Wisconsin Visitation Case

On Nov. 13, the U.S. Supreme Court refused a petition by Elsbeth
Knott seeking a stay of the Wisconsin Supreme Court's ruling in
Custody of H.S.H.-K.: Holtzman v. Knott, 533 N.W.2d 419 (1995),
which authorized a trial court to entertain an action for
visitation with her child by Knott's ex-partner, Sandra Lynn
Holtzman.  The child was conceived through donor insemination by
agreement of the women during their relationship, and Holtzman
participated in parenting the child until their breakup.  The
Wisconsin Supreme Court decision was the first by a high court to
hold that a co-parent can seek visitation rights.  Knott has filed
suit in federal court, claiming that her parental rights would be
violated by any order to allow a non-relative such as Holtzman to
visit with her child.  St. Paul Pioneer Press, Nov. 14.  A.S.L.

Colorado Appeals Court Holds Off-Duty Conduct Law Protects Gay
Employee From Discharge

In Borquez v. Ozer, 1995 WL 656871 (Nov. 9), the Colorado Court of
Appeals upheld a verdict for the plaintiff in a wrongful discharge
claim based on sexual orientation.  The action was commenced when
the plaintiff was discharged from his position as an associate with
a law firm shortly after revealing in confidence to a partner that
he was gay and that his companion had been diagnosed with AIDS. 
The disclosed information was disseminated by the partner to stock-
holders and personnel of the firm.

The court found the wrongful discharge claim supportable under
C.R.S.  24-34-402.5(1), which provides that it shall be a
discriminatory or unfair employment practice to discharge an
employee because of the employee's engaging in any lawful activity
off the premises of the employer during non-working hours. 
Rejecting the defendant's assertion that the jury verdict was based
on the plaintiff's status rather than his conduct or activity, the
court pointed to testimony from the defendant which explicitly
referred to plaintiff's conduct and his having "engaged in a sexual
relationship with a person diagnosed with AIDS."  (The plaintiff
had also invoked a Denver ordinance forbidding sexual orientation
discrimination, but the court noted that the ordinance did not
provide a private right of action, which was available under the
off-duty conduct law.)

The court further found that the Restatement of Torts  652D
provided sufficient authority to support a charge of invasion of
privacy in the form of unreasonable publicity given to the private
life of another.  The Restatement provides for liability if the
publicized matter would be both highly offensive to a reasonable
person and not of concern to the general public.  The strong stigma
attached by some persons to both homosexuality and HIV status fit
both qualifications and gave the plaintiff a clear privacy interest
in the dissemination of this information to fellow employees with
whom he shared a "special relationship," a noted exception to the
requirement that the information be released to the general public.

The defendant next claimed that the information in question was
authorized by consent or qualified privilege.  The court found,
however, that the record clearly indicated that the plaintiff had
gone to great measures to keep these matters private, and had only
revealed the information to the defendant out of present necessity,
and with the express request that the information be kept
confidential.

Regarding defendant's assertion that plaintiff's claim was barred
by Colorado's Amendment 2, the court noted the Colorado Supreme
Court decision in Evans v. Romer, holding Amendment 2 to be
unconstitutional. Finally the court reversed the decision of the
lower court not to award costs to the plaintiff, remanding that
part of the decision with directions for reconsideration. D.P.   

Federal Court Rejects Selland's Challenge to Military Policy

In 1993, the United States Navy initiated a separation proceeding
against Lieutenant Richard Dirk Selland after Selland informed a
superior officer that he was homosexual and involved in a
monogamous relationship with another man.  Selland obtained a
preliminary injunction enjoining the Navy from proceeding with his
separation.  See Selland v. Aspin, 832 F. Supp. 12, 16 (D.D.C.
1993).  That suit was later dismissed by stipulation.
On November 30, 1993, the Military changed its policy concerning
homosexuality by enacting what is commonly called the "Don't Ask,
Don't Tell" policy.  Under the new policy, a servicemember can be
separated if it is found that the member (1) "has engaged in,
attempted to engage in, or solicited another to engage in a
homosexual act or acts," (2) "stated that he or she is a homosexual
or bisexual" or (3) "has married or attempted to marry a person
known to be of the same biological sex." 10 U.S.C. s 654(b).  The
Navy renewed separation proceedings against Selland under the new
policy in 1994.  A Board of Inquiry was convened to determine
whether Selland had violated the new policy.  During the voir dire
of the Board, it became evident that at least one Board member did
not feel that a homosexual could effectively serve in the Military. 
So much for objectivity.  On March 13, 1995, the Secretary of the
Navy approved Selland's discharge.
Selland appealed to the United States District Court for the
District of Maryland and on October 30, 1995, ruling on Defendant's
Motion for Summary Judgment, Justice Young upheld the discharge. 
Selland v. Perry, 1995 WL 642998.  

Selland challenged the policy on three grounds: First Amendment;
Status; and Equal Protection.  Selland claimed that his separation
violated his First Amendment right to free speech because the
separation was based on his statement declaring his homosexuality. 
Selland argued that policies that inhibit members from expressing
their homosexuality are unconstitutional.  See Hurley v. GLIB, 115
S.Ct. 2338, 2346 (1995) (finding that participation of a group in
a St. Patrick's Day parade was expressive because of their
self-identification as homosexual). However, Justice Young
dismissed this argument indicating that it was outweighed by the
deference that must be given to Military judgment.  Selland also
challenged the policy arguing that it unconstitutionally attempted
to regulate status.  In effect, he argued that he was not being
separated for committing a homosexual act but merely for having the
propensity to commit a homosexual act.  The court dismissed this
argument on grounds that since Selland admitted he was involved in
a homosexual relationship it was not an unreasonable conclusion to
find that he had committed homosexual acts.  Selland's final
argument was that the Navy denied him the equal protection of the
laws. Justice Young found no infringement of a fundamental right
and determined that homosexuals were not a suspect class so he
applied the "rational basis" standard of review to the policy.
Selland unsuccessfully argued that the policy was based solely on
hatred and prejudice against homosexuals.  However, the court found
that Selland had failed to negate all possible justifications for
the policy whether or not they were contained in the record.  With
this kind of standard how could Selland ever prevail? T.V.L. 

The 9th Circuit Court of Appeals was scheduled to hear the
government's appeal in Margarethe Cammermeyer's case on Dec. 4. 
The government is no longer contesting Cammermeyer's reinstatement
by the district court, but contends that the court's order finding
the former military policy unconstitutional should be vacated. * *
*  When the 4th Circuit hears on appeal on the military's policy by
Lt. Paul Thomasson on Dec. 5, an attorney for the Family Research
Council (FRC) will be allowed to participate in oral argument.  The
circuit granted a motion to intervene by the Council, which alleges
that the Pentagon, pursuant to orders from the Clinton
Administration, has misconstrued the statutory version of the
"don't ask, don't tell" policy in its implementing regulations
under which Thomasson was discharged.  Consequently, FRC argues,
Justice Department lawyers will be precluded from making some of
the arguments they should be making in defense of the policy. 
Attorney Michelle Benecke, director of the Servicemembers Legal
Defense Network, which is assisting in Thomasson's appeal,
characterized FRC's position as "outrageous." Washington Times,
Nov. 21.  That the court would grant FRC's motion to intervene is
hardly a good sign about the potential outcome of the case. A.S.L.

Challenge to U.K. Military Ban Dealt Another Setback

The challenge to the U.K. ban on gay, lesbian and bisexual military
personnel was rejected by the English Court of Appeal (by 3-0) on
Nov. 3 in R. v. Admiralty Board of the Defence Council, ex parte
Lustig-Prean & Beckett and R. v. Secretary of State for Defence, ex
parte Smith & Grady.  The Court of Appeal dismissed appeals from
the Divisional Court's decision in these cases (now reported sub
nom. R. v. Ministry of Defence, ex parte Smith, [1995] 4 All E.R.
427; see also [1995] L.G.L.N. 102).

The Court of Appeal made sympathetic remarks about the harshness of
the Armed Forces' policy, but held that it is not "irrational"
under the highly deferential Wednesbury test of U.K. administrative
law.  Sir Thomas Bingham M.R. noted that the policy is being
reviewed by the Ministry of Defence and will be reviewed by a House
of Commons Select Committee in 1996. "It was supported by both
Houses of Parliament and by those to whom the Ministry properly
looked for professional advice. ... Changes [in Australia, Canada
and New Zealand in 1992-93] ... had been adopted too recently to
yield much valuable experience."  Henry L.J. added that the fact
that policy makers "were faced with a rapidly changing scene on a
highly charged issue of great importance ... points against
precipitate action both by the policy maker ... and ... by the
reviewing court."

As for the E.C. Equal Treatment Directive (prohibiting sex 
discrimination in employment), the Court looked to "original
intent."  Sir Thomas Bingham M.R. found nothing in the 1976
Directive to suggest "that the draftsmen ... were addressing their
minds in any way to problems of discrimination on grounds of sexual
orientation.  Had it been intended to regulate discrimination on
that ground it could easily have been done, but ... it plainly was
not."  Thorpe L.J. said that "social attitudes and concerns 20
years ago when the Directive was in gestation were not focusing
upon sexual orientation discrimination," and suggested that new
E.C. legislation would be necessary.

If the House of Lords denies leave to appeal, this will be the end
of the road for the applicants' cases under U.K. and E.C. law (an
appeal to the European Court of Justice in Luxembourg is not
possible).  However, they will soon file applications with the
European Commission of Human Rights in Strasbourg, and will rely on
the express rights to "respect for ... private and family life" in
Article 8 of the European Convention on Human Rights. R.W.

Texas Appeals Court Vacates 99-Year Sentence of Gay Man on Child
Molestation Charge

Finding that the trial court committed harmful error by allowing
the state to introduce evidence through its first witness that the
defendant in a child molestation case was a gay man, a divided
Texas Court of Appeals panel set aside the conviction of Perry
Blakeney on Nov. 15.  Blakeney v. State, 1995 WL 675525.

Blakeney was charged with sexual abuse of a 7-year old boy.  During
questioning by police, but prior to being arrested, Blakeney
admitted that he was bisexual or gay.  At trial, the court admitted
testimony (over objection) about this statement by the state's
first witness, a police officer.  The jury convicted Blakeney and
assessed punishment at 99 years in prison and a fine of $10,000. 
On appeal, Blakeney argued that admission of this evidence, as well
as evidence that he had a prior unrelated criminal conviction, was
irrelevant and prejudicial.

In an opinion for the court, Justice Jones found that the evidence
about Blakeney's sexual orientation was relevant, but the evidence
about a past conviction was not.  "Because the sex of the child
victim in the present case is consistent with appellant's sexual
preference,. . . we will assume without deciding that reasonable
persons could differ when determining whether to accept an
inference that a bisexual/homosexual is likely to seek out same-sex
child partners.  Based on that assumption, we will not disturb the
trial court's ruling that this evidence had sufficient relevance.
. ."  However, the court found that this evidence was not
admissible under the rubric of character evidence as necessary to
explain the state's case to the jury. "The relevant events in the
case can be adequately explained without evidence of appellant's
bisexuality/homosexuality to render a complete and whole picture
for the jury.  Moreover, introduction of this evidence, in the
present case, could only serve to send the jury a message that all
homosexual men are also molesters of little boys.  Such an
inference, unsupported by evidence or logic, is an improper basis
for introducing evidence of an appellant's sexual preference. 
Because the evidence has an impermissible character component, we
conclude that the trial court abused its discretion in admitting
evidence of appellant's sexual preference."

Finally, the court held that introduction of this evidence was
prejudicial and not harmless error.  "We think the inadmissible
evidence may have carried substantial weight in the jury's decision
to convict.  From the very beginning of the trial, the inadmissible
evidence labeled appellant a criminal and, perhaps in some jurors'
minds, a sexual deviate.  Thus, all subsequent evidence was viewed
through a lens already obscured by references to appellant's prison
history and unconventional sexual preference.  Placed in the
context of a trial for aggravated sexual assault of a child, such
evidence was calculated to weigh heavily on the minds of the
jurors. . .  Evidence of a sexual preference and a prior prison
record can easily cast a negative light on an accused, so that a
weak case looks much stronger in the eyes of a jury."  The court
remanded for a new trial, over the dissent of Chief Justice
Carroll, who, while agreeing that the sexual orientation evidence
was inadmissable, found it to be harmless error on the ground that
the overall case against defendant was not weak.  A.S.L.

Federal Court Refuses to Dismiss Sexual Orientation Discrimination
Claim Against Prison Authorities

In Holmes v. Artuz, 1995 WL 634995 (S.D.N.Y., Oct. 27), Judge
Sotomayer denied defendant's motion to dismiss plaintiff's 42
U.S.C. sec. 1983 action, alleging that he was removed from his
prison food service job solely because he was a homosexual.  The
court permitted defendant an opportunity to replead after six
months so as to give the court's pro bono office time to locate a
lawyer.  The court felt the pro se plaintiff could use the services
of a lawyer "to explore fully the substantial questions raised by
this case."   The court also wanted to await the U.S. Supreme
Court's decision in Evans v Romer, 882 P.2d 1335 (Colo. 1994), for
further guidance on the scope of equal protection rights afforded
to lesbians and gay men.  Criticizing the defendant's argument that
removing the plaintiff from that job was rationally related to the
legitimate state interest of preserving mess hall security, the
court stated that a "person's sexual orientation, standing alone,
does not reasonably, rationally or self-evidently implicate mess
hall security."  Defendant would have to prove that "real threats"
to security existed and that an exclusionary policy was a rational
response to those threats. 

Furthermore, the court rejected defendant's reliance on qualified 
immunity as a defense.  Qualified immunity shields government
officials only if their conduct does not violate clearly
established constitutional or statutory rights of which a
reasonable person would have known.  "The constitutional right not
to be discriminated against for any reason, including sexual
orientation, without a rational basis is an established proposition
of law."  M.S.R.

District Court Denies Damages for Harassment to Transsexual Inmate

A transsexual inmate who was denied permission to wear women's
undergarments and suffered harassment from male prisoners cannot
bring a suit under the Equal Protection Clause, ruled a federal
judge in Lucrecia v. Samples, 1995 WL 630016 (N.D. Cal., Oct. 16),
because the prison warden's decisions "reasonably related to
legitimate penological interests." 
Bianca Lucrecia was sentenced to 10 years in federal prison in
January 1986. Lucrecia's testicles had been removed, and as a
result of hormone therapy she had breasts and atrophic penile
tissue.  While incarcerated at two different prisons from 1986
through 1990, Lucrecia was permitted to live as a woman and wear
women's clothing.  In January 1991 Lucrecia was transferred to the
lower-security Federal Prison Camp in Boron, California, a facility
designed to house only men, and was placed in a cell with three
men.  Lucrecia was forbidden to wear women's undergarments and was
told to wear her clothing "in a particular manner" to conceal her
"physical characteristics." A month after arriving, Lucrecia
complained to the warden that she had suffered harassment, abuse,
and humiliation from prisoners and guards. The warden refused
Lucrecia's request to be treated as a woman, stating that the
pre-sentencing report referred to a "32-year-old Caucasian male." 
A complaint filed with the regional director of the Federal Bureau
of Prisons was also rebuffed.

Lucrecia sued in federal court, alleging violations of her civil
rights. She named Samuel Samples, the regional director of the
Federal Bureau of Prisons, the warden of the Boron facility, and
twenty "Doe" defendants.  The court ruled in favor of the
defendants' motion for summary judgment. Lucrecia's claims were
time-barred, noted the court, because an action under the Federal
Tort Claims Act must be brought within six months of the notice of
final denial by the federal agency involved. Here, the Federal
Bureau of Prisons rejected Lucrecia's complaint in September 1991. 
Lucrecia's claim that she was denied equal protection of the law as
a result of the prison warden's refusal to permit her to wear
women's undergarments must fail, noted District Judge Walker,
because the warden's action meets the test of "rational scrutiny"
for matters of sexual classification set out in Pruitt v. Cheney,
910 F.2d 1481 (9th Cir.), cert. denied, 113 S.Ct. 665 (1992).

"In light of existing case law, and the dearth of evidence
submitted by the plaintiff, we cannot second-guess the warden's
decision", wrote Walker. "Prison authorities must have discretion
over clothing, and denial of female clothing and cosmetics is not
a constitutional violation." Lucrecia's medical needs were looked
after, noted the court, and she did not establish "that the denial
of these undergarments was an abuse of the discretion granted
prison officials to formulate a treatment for plaintiff's
transsexualism." M.N.S.

Oklahoma Criminal Appeals Court Rejects Sodomy Solicitation
Challenge

In a case that gay rights advocates had hoped would lead the
Oklahoma Court of Criminal Appeals (the state's highest court for
criminal cases) to strike down Oklahoma's sodomy law, the court
ruled Nov. 21 that an Oklahoma City ordinance outlawing public
solicitation to engage in private consensual homosexual conduct did
not violate the federal or state constitutions.  Sawatzky v. City
of Oklahoma City, 1995 WL 687686.  

Kenneth B. Sawatzky was convicted under the ordinance of soliciting
a plainclothes police officer to come home with him to engage in
oral sex.  In an opinion for the court, Judge Chapel insisted that
the case "is neither about the regulation of conduct between
consenting adults in the privacy of their bedrooms, nor the legal
status to be provided to homosexual persons.  Fundamentally, this
case is about whether Oklahoma City may legally prohibit public
solicitations for private non-commercial acts of sodomy. Sawatzky
solicited an act of lewdness in a public place from a police
officer.  The act solicited was intended to take place in private
and Sawatzky and the officer are members of the same gender.  In
this context it is clear that Sawatzky is not entitled to relief."

Noting that in an earlier case the court had reserved judgment as
to whether Oklahoma's sodomy law violated the state constitutional
right of privacy, Chapel asserted that this case did not provide
the occasion for the court to rule on that question, because
Sawatzky's conduct was public.  Turning to an equal protection
issue raised by the ordinance's exemption from its criminal
prohibition of solicitations among married persons, Chapel found
that the discrimination between married and unmarried person,
involving neither fundamental rights nor suspect classifications,
was to be sustained if found rational.  Chapel found that marriage
implies consent to sexual solicitations by the marital partner;
thus, the state could rationally believe that there was no need to
outlaw such solicitations, when the ordinance was basically
intended to protect persons from unwanted public sexual
solicitations.  This reasoning earned a dissent from Judge
Strubhar, who noted that Sawatzky's solicitation "was not made
under circumstances which could reasonably have been perceived to
have been offensive. . .  Appellant was purposefully led to believe
that a sexual solicitation would be welcome."  Thus, the ordinance
was broader than necessary to achieve its purpose, consistent with
individual rights of free speech.  A.S.L.

NJ Trial Court Rejects Discrimination Claim Against Boy Scouts

New Jersey Superior Court Judge Patrick J. McGann ruled in Dale v.
Boy Scouts of America, No. MON-C-330-92 (Monmouth County, Nov. 3),
that the Boy Scouts organization is not a "place of public
accommodation" under the New Jersey human rights law, that an adult
volunteer scout leader is not an "employee," and that the
relationship between a volunteer and the organization does not
constitute "doing business."  Consequently, McGann found the law's
nondiscrimination requirements inapplicable to Dale's claim that he
had been unlawfully terminated as an adult scout leader due to his
sexual orientation.  In reaching his decision, McGann emphasized
the asserted religious orientation of the Boy Scouts.  McGann also
rejected claims that the way in which Dale's participation was
terminated should subject the Scouts to damages for emotional
distress, and that the Scouts should be estopped from terminating
Dale because Scout publications and handbooks fail to explicitly
state that homosexuals may not be members or leaders.

Dale was a youth member of the Scouts from age 8 until he reached
the organization's age limit of 18, at which time he had attained
the highest rank of Eagle scout.  Dale then applied to become an
adult Scout leader, and was given an assignment to a troop
sponsored by the Matawan First United Methodist Church.  (Many
Scout troops are sponsored by churches, synagogues, and other
religious associations.)  Meanwhile, Dale had enrolled at Rutgers
University, where he became co-president of the school's Lesbian
and Gay Alliance.  A newspaper report in 1990 on the Alliance's
activities mentioned Dale.  Shortly thereafter, he received a
letter from the Executive for the Scout's Monmouth Council,
revoking his registration with the Scouts and terminating his
position, on grounds that "the standards for leadership established
by the Boy Scouts of America . . . specifically forbid membership
to homosexuals."

In a long, rambling opinion that emphasized the "religious" nature
of Scouting, including the references to God and "traditional"
moral standards in the Scout oath and publications, McGann found
that not only were the Scouts a "private" association, with
selective membership requirements, but that their published
membership and leadership standards, by harping on the requirements
of moral conduct in the context of non-sectarian but religious
references, made reasonably clear that homosexuals would not be
welcome as members.  This, of course, rests on the notion that a
typical person would interpret a requirement that somebody be
"morally straight" as, indeed, including a rejection of
homosexuality.  

McGann reached this result by equating homosexuality with "sodomy,"
reciting the derivation of that term from the Biblical story of
Sodom and Gomorrah, asserting that in "the Judeo-Christian
tradition the act of sodomy has always been considered a gravely
serious moral wrong," noting the long history of criminalization of
sodomy (which continued in New Jersey until 1979), and noting that
the Supreme Court in Bowers v. Hardwick (1986) had upheld the right
of states to criminalize sodomy.  In light of this, and after
extensive quotes from the generalized but moralistic language of
Scout publications, McGann asserted: "To suggest that the BSA had
no policy against active homosexuality is nonsense.  It was an
organization which from its inception had a God-acknowledged moral
foundation.  It required its members, youth and adult, to take the
Scout Oath that they would be `morally straight.'  It is
unthinkable that in a society where there was universal
governmental condemnation of the act of sodomy as a crime, that the
BSA could or would tolerate active homosexuality if discovered in
any of its members.  In this State that is surely correct from 1910
to 1979.  BSA did not change its moral stance thereafter simply
because the criminal law changed."

Although criminal law has changed, wrote McGann, "The moral law -
as to the act of sodomy - has not."  Characterizing the Scouts as
a "moral organization," McGann concluded that the New Jersey civil
rights law did not require a "fundamental, court-imposed, change in
its policies."  He also contended that the Scouts' action against
Dale did not impose any tangible damages on him; he was not paid as
a volunteer Scout leader, and the BSA's action does not take away
from him his past status as an Eagle scout or the various awards
and honors he received.  BSA made no public announcements about its
actions, so, according to McGann, would not be responsible for any
adverse impact on Dale of publicity generated by the case.  (McGann
conveniently overlooked that terminating Dale's ongoing
participation with his troop would naturally publicize BSA's
decision to the members of the troop, their families, and the
community in which they lived.)  

Straining to find that the Scouts are not a public accommodation,
McGann rejected an analogy to Little League Baseball, which has
been held by the New Jersey courts to be a public accommodation, by
emphasizing the "religious" or "moral" goals of Scouting, and
treating the Scout Oath requirement as a selective membership
screening device of a type not used by the Little League.  McGann
also sought to distinguish a large body of caselaw holding such
membership clubs as Rotary and Kiwanis to be subject to state civil
rights laws, emphasizing the business orientation of those groups
as contrasted to the asserted religious-moral orientation of the
Scouts.  McGann found that requiring the Scouts to accept openly
gay people would change the nature of their organization in a way,
if compelled by court order, that would raise First Amendment
freedom of association issues.

Ironically, in light of recent biographies showing him to have been
a gay pedophile, McGann concluded his opinion by invoking the noble
aims of Lord Baden-Powell, the founder of world Scouting, to start
an organization that would mold young boys in a moral direction. 
Concluding that the BSA is a "quasi-religious" organization, McGann
dismissed all of Dale's claims.  Dale's attorneys, which include
Lambda Legal Defense and Education Fund, announced that they would
appeal the decision.  A.S.L.

Virginia Appeals Court Rejects Challenge to Testimony About
Sexuality and HIV-Status of Witness

In Kirk v. Commonwealth, 1995 WL 697578 (Nov. 28), the Virginia
Court of Appeals rejected a claim that admission of testimony about
the sexual orientation and AIDS status of a witness constituted
reversible error.  Kevin Kirk was convicted on counts of robbery
and firearms charges.  One of his alibi witnesses was Claude
Baldwin, who testified that Kirk lived with him and had been home
with him on the nights of the alleged robberies.  On cross-
examination, Baldwin testified (over objection) that he was Kirk's
"homosexual lover" and had AIDS, and that he "wanted Kirk to be
with him for moral and financial support," according to the court. 

On appeal, Kirk contended that admission of such evidence was
reversible error, arguing that "this evidence caused the jury to
focus on an irrelevant and controversial subject."  Kirk argued
that the prejudicial nature of this evidence outweighed any
probative value as to Baldwin's possible bias as a witness.  In an
opinion for the unanimous court, Judge Willis rejected this
argument.  Citing a decision from the 1960s that held that the
homosexuality of a witness could be adduced at trial as
"information of potential value to the trier of fact in the
assessment of credibility" and rejecting much more recent cases
cited by Kirk for the opposite contention, Willis asserted that the
trial court did not abuse its discretion when it struck the balance
in favor of admitting the evidence.  "The nature of Kirk's
relationship with Claude Baldwin was relevant to the witness's
testimonial motivation," concluded Willis.  A.S.L.

Is Sexual Orientation Relevant to Military Sodomy Prosecutions?

Upholding a conviction for homosexual sodomy of Naval Lt. Commander
Casey A. Gagan, the U.S. Court of Appeals for the Armed Forces
ruled Sept. 28 that it was error for the court martial to exclude
proffered evidence that Gagan was heterosexual.  U.S. v. Gagan,
1995 WL 656929.  Three different sailors alleged that on particular
occasions Gagan had socialized with them at bars or parties,
induced them to go home with them, and then made sexual advances
(usually after they had passed out and then awoke to find Gagan
sexually assaulting them).  Gagan, who denied the sexual elements
of these stories, offered to produce testimony by his fiancee, who
would testify that they had a "normal" heterosexual relationship
and thus it was less likely that his accusers' stories were
believable.  The court martial refused to hear this testimony,
finding it irrelevant.  The appeals court disagreed, but held that
even if the evidence was relevant, its exclusion in this case was
harmless error.  For one thing, the court found the evidence
against Gagan to be overwhelming.  For another, the court found
that the proffered evidence would not do much for Gagan's case,
because it could be consistent with Gagan being bisexual.  Gagan
was sentenced to dismissal from the service, confinement of one
year, and forfeiture of all benefits.  A.S.L.

Georgia Supreme Court Rejects Appeal in "Homosexual Panic" Case

In Tedder v. State, 1995 WL 688775 (Nov. 20), the Georgia Supreme
Court unanimously rejected an appeal of his life sentence by Troy
Stephen Tedder, who was convicted of the brutal murder.  At trial,
Tedder pleaded self-defense, asserting that he had killed the
victim after he "attempted to sodomize Tedder."  On appeal, Tedder
claimed that the trial court erred in denying his challenges to the
State's use of six peremptory strikes against male members of the
jury pool.  Tedder claimed that this violated Supreme Court
precedents against the use of gender as a basis to exclude jurors. 
Tedder argued that the state was proceeding based on a stereotype
that male jurors were more likely to be homophobic and thus
unsympathetic to the victim.  Rejecting this claim for the court,
Justice Leah Sears found in the trial record of the voir dire that
"several of the stricken male jurors expressed hostile attitudes
toward gay men, and thus may have been unsympathetic toward the
victim in this case.  Still other jurors expressed animus toward
the district attorney's office."  Thus, the state had reason to
strike them from the panel.  A.S.L.

District Courts Rejects Harassment Claims By Gay Public School
Students

In Nabozny v. Podlesny, an unreported Wisconsin federal district
court decision (No. 95-C-086-S), the court on October 5 granted
summary judgment for the defendants in an action to recover for
harassment suffered by the gay male plaintiff, Jamie Nabozny, when
he had been a student in public middle and high schools. 
Defendants included the school district and the schools' respective
principals.  Federal claims under 42 U.S.C. section 1982 were
rejected on the merits, while state law claims were dismissed for
failure to file the requisite administrative notice.

For purposes of the motion, the court accepted the plaintiff's
version of the facts: The plaintiff was both sexually harassed and
physically assaulted over a three-year period at each school, sixth
through eighth grades, and ninth through eleventh grades,
respectively, by other students.  The plaintiff was hit, kicked,
spit upon, and wrestled to the ground while attending middle
school.  On one occasion in high school, three boys pushed him to
the floor, beat him and urinated on him, and on another occasion
several students stopped him in the hallway, beat him, and
repeatedly kicked him in the stomach.  The plaintiff dropped out of
school in eleventh grade, although he apparently did not expressly
allege that this was caused by the harassment.

Although the plaintiff reported the abuse to the schools'
respective principals on a number of occasions, neither undertook
effective discipline.  Measures that were instituted generally
simply separated the plaintiff from his harassers: He was given
permission to use the home economics bathroom, rather than the
restroom in which he was being harassed, and seating on his 
school bus was rearranged.  At two meetings arranged by the
schools' principals, the alleged perpetrators denied the
plaintiff's allegations.  At various times his guidance counselors
were able to intervene and lessen the severity of the abuse.

The court rejected all the plaintiff's federal claims.  There was
no due process violation, the court held, because, absent a special
relationship, the state and its subdivisions had no affirmative
duty to protect their citizens.  DeShaney v. Winnebago County
Department of Social Services, 489 U.S. 189 (1989).  While such a
duty existed with respect to prisoners and involuntarily committed
mental patients, due to the state's restraining of their freedom,
the court observed, this duty had not been extended to public
school students, despite compulsory attendance laws.

Nor did any of the exceptions to the DeShaney special relationship
rule apply.  While a governmental entity could be liable for
injuries perpetrated by third parties where the entity took
affirmative steps to increase a person's exposure to danger, the
court noted, there was no evidence that either the defendants'
conduct or their inaction created or exacerbated the danger to the
plaintiff from the other students.  And, while liability could be
imposed upon a governmental entity whose custom, practice or policy
directly caused harm, the court held, this principle applied only 
where the entity's employees or agents caused the harm.  There was
no basis, the court reasoned, to extend this principle to harm
caused by third parties, such as the other students.

The court also found no equal protection violation.  There was no 
indication that the plaintiff was treated differently because of
his gender, the court held, and no case law supported the
plaintiff's contention that a violation inhered in the defendants'
failure to mete out the same punishment that would have resulted
had the victim of the abuse been female.  Even if there were a
violation, the court reasoned, the defendants were protected by 
qualified immunity, as the asserted constitutional right was not
clearly established.  (The court thereby implied, but did not
state, that the plaintiff failed to state a supportable claim of
malice so as to defeat qualified immunity.)

The plaintiff is represented on appeal by Lambda Legal Defense and 
Education Fund.  Other counsel represented plaintiff at trial. R.M.
* * *  In a case with almost identical facts to Nabozny, the U.S.
District Court for the Northern District of Illinois has also
dismissed a 42 U.S.C. sec. 1983 suit against a school board and
school administrators by a gay high school student alleging
harassment in school by other students and teachers.  Doe v.
Riverside-Brookfield Township High School District 208, 1995 WL
680749 (Nov. 14).  Judge Marovich found no due process or equal
protection violations, even though in this case, unlike Nabozny,
the plaintiff alleged that school administrators did nothing in
response to his complaints.  The court found that the school
district and school board members could only be liable if there was
a school policy of harassment, and that under DeShaney the school
had no special relationship with its students requiring affirmative
protection against harassment by "third parties."  

The court's treatment of the equal protection complaint is
particularly outrageous; because Doe did not allege that the school
was more protective of students who suffered harassment on racial
or ethnic grounds, he had not alleged a prima facie case of
violation of equal protection.  Doe did allege that the school held
educational seminars and gave special instructions to the faculty
with respect to a problem the school had with racial and
antisemitic graffiti written by skinheads, but refused to take
similar steps with respect to homophobia when gay groups approached
the administration with requests for such action.  The court found
that this allegation failed to state an equal protection violation,
because there was no indication that the racism and antisemitism
efforts were made in response to student requests.  "Indeed," wrote
the oblivious Marovich, "all that Doe has alleged is that the High
School maintains a low level of discipline.  This may be a
violation of state law, but it does not violate the Constitution." 

Marovich concluded the opinion with the usual pious statement one
finds in cases where courts are dismissive of gay rights claims
these days: "the Court in no way condones the behavior of Doe's
fellow students or that of the teachers and dean at the High
School.  Indeed, the Court wishes that the teachers and dean have
been more responsive to his complaints, if not because it was
constitutionally required, then because it was the right thing to
do.  However, this Court can evaluate the sufficiency of the
Complaint only as it pertains to the parties to the action and
whether they committed a constitutional tort."  A.S.L.

NY Judge Grants Lesbian Life-Partner Guardianship of Deceased
Partner's Child 

In Matter of Astonn H., NYLJ, 11/1/95, at 33, 22 Fam. L. Rep. (BNA)
1029, Judge Staton of New York City Family Court granted
guardianship of a deceased mother's child to her lesbian life-
partner, Sophia D.  The court held that the best interests of the
child, Astonn, were better served by awarding guardianship to
Sophia, than to Ms. Leora F., the mother of the deceased estranged
husband, Mr. Derrick F.  

Sophia and the deceased, Margo, met in 1987 and were lovers from
1989 to the time of Margo's death.  In 1990, the two women decided
to have a child.  They considered several options including a sperm
bank, but these efforts were fruitless.  Subsequently, Margo did
become pregnant.  The biological father is unknown.  On November 3,
1991, Astonn was born to Margo.  Sophia was at Margo's side during
the birth.  Sophia was also at Margo's side when, due to
complications from the birth, Margo died two days later.  When it
was time to take Astonn home, the hospital, with the consent of
Margo's mother, released him to Sophia. A short time later, Astonn
was diagnosed with serious medical problems which require daily
injections and an environment free of smoke and other environmental
irritants. 

On December 9, 1991, the maternal grandmother, Ms. C., filed for
custody of Astonn.  However, this petition was dropped when "after
considerable reflection, she was in favor of Sophia obtaining
custody."  On December 10, 1991, Sophia filed to be appointed
Astonn's guardian.  One month later Derrick F., Margo's ex-husband,
filed for custody, claiming to be the child's father.  A paternity
test showed that he was not the biological father.  In May 1992,
Mrs. F filed a writ of habeas corpus which was consolidated with
her son's claim.  They claimed that they should be awarded custody
of the child because they are in a better position to meet the
child's needs.  They questioned whether Sophia and Margo had been
in a committed relationship, and asserted that even if they had
been, this did not bestow on Sophia a "claim of right" greater than
any other unrelated petitioner.  The F's also argued that it is in
Astonn's best interests to be raised with his half-sister,
Adrienne, who lives with Ms. F, and to be raised in a two-parent
African-American home.  To further support their petition, the F's
presented the recommendation of the Child Welfare Administration
that the child be placed with Ms. F.  The CWA report did not
recommend that Derrick F. be granted custody because it was clear
to them that he did not want custody, but was merely supporting his
mother's petition. 

Sophia asserted that since Astonn's birth she had provided
stability for him and had been responsive to his special health
needs and that the F's had shown little understanding of the
seriousness of Astonn's condition and of the accommodations which
it requires.  Second, she argued that her position as the life
partner of Astonn's biological mother supports her petition. 
Lastly, she asserted that she could not constitutionally be denied
custody or guardianship solely on the basis of her race.

The court found that although neither party had a blood
relationship with Astonn, each had a right to petition for custody. 
The court rejected Sophia's assertion that her status as Margo's
life-partner supported her petition, finding that this fact neither
supported nor barred her petition.  Second, the court found that
Sophia's lesbianism was only a factor in determining custody if it
was "shown to be detrimental to the child's well-being."  The court
also stated that Sophia's and Margo's relationship and their plans
to have and care for a child were not determinative of custody.  On
the issue of race, the court found that "[it] is simply one of many
factors to be considered in determining custody."  After
consideration of these issues the court found that the controlling
issue in this case was "the relationship of these parties with the
child upon his birth and after Margo's death."
  
In finding that Sophia would be a better guardian, the court found
that Sophia and Margo had been involved in a lesbian relationship;
that there was no evidence that Sophia had ever done anything that
was harmful to Astonn; that in the time she lived with Margo she
contributed to household expenses, "including clothing and tuition
for Adrienne."  The court was especially swayed by Sophia's
"extraordinary care" for Astonn, including immediately removing
carpets and other deleterious conditions in her home and quitting
smoking when she learned of his medical condition.  Also, the court
noted that Sophia responded appropriately to every one of Astonn's
health crises, even having to take time off from work.  

The court found Mrs. F's responsiveness to Astonn's needs to be
inadequate.  She waited several months before removing her carpets,
thus preventing Astonn from visiting with her and Adrienne. 
Further, the court saw no support for her contention that Astonn
should be raised with his half-sister, Adrienne.  The court noted
that though Adrienne has lived with her for several years, Mrs. F
has never sought legal custody or guardianship of Adrienne, and
thus there is no guarantee that Adrienne will remain with Mrs. F.
Derrick F, Adrienne's biological father, could at any time file for
custody.  Also, the importance of the CWA recommendation was
undermined by the cross-examination of CWA supervisor Ms. Maye, who
acknowledged that it is the policy of the CWA to support custody
awards to "parties of the same racial, ethnic and cultural
background as the child." 

The court held that "[t]he only person here who has always been a
stable, loving presence in Astonn's life from the time he was born
is Sophia D."  Therefore it is in the best interests of Astonn to
remain with, as the Law Guardian argued, "the only mother this
child has ever known." E.G.A.

Iowa Supreme Court Suspends Male Attorney for Sexual Harassment of
Lesbian Client

In Board of Professional Ethics and Conduct v. Hill, 1995 WL 699611
(Nov. 22), the Iowa Supreme Court ordered indefinite suspension of
the license to practice law of Ralph William Hill, barring
reinstatement for at least twelve months.  Characterizing Hill as
a "slow learner" because he had previously suffered a three-month
suspension for having sexual relations with a client, the Court
detailed allegations that Hill had engaged in harassing comments
and unwanted sexual touching of a lesbian client who had informed
him on several occasions that his advances were unwelcome.  Hill
sought to justify his conduct by stating that he is a "hands-on"
counselor in his law practice.  The court was skeptical: "We
recognize that, in this changing world, conduct between consenting
adults that in former times would have been roundly condemned is
now widely thought to be entirely a private matter, beyond the
concern of any others.  We have nevertheless been consistent in
noting that the professional relationship renders it impossible for
the vulnerable layperson to be considered `consenting.'. . .  Hill
is now a repeated violator of this trust.  We cannot overemphasize
our determination that, if Hill is to be a member of the legal
profession, it will be as a `hands-off' counselor."  A.S.L.

Successful Settlement of Sexual Orientation Discrimination Claim
Against Maryland State Police

Attorneys for two lesbian police trooper candidates who claimed
they were illegally discriminated against due to their sexual
orientation and gender favorably settled the case in September. 
The plaintiffs and a third lesbian successfully completed their
training at the Maryland State Police Academy, but were not hired
as troopers because of alleged inconsistencies in their polygraph
examination questions concerning sexual orientation.  In June,
1994, the plaintiffs filed Doe v. Maryland State Police and Col.
Larry W. Tolliver in state court, requesting injunctive and
declaratory relief for discrimination in violation of the Maryland
Declaration of Rights, equal protection, due process, and a
Governor's Executive Order banning sexual orientation
discrimination by the state government.  The settlement gains the
injunctive relief requested in the complaint, and both plaintiffs
were offered the positions they sought.  This is one of the first
reported victories under Executive Order 01.01.1993.16.  Plaintiffs
are represented by Susan Silber, Elliott Andalman and Mandy
Rosenblum of Silber, Andalman, Perlman & Flynn, a Takoma Park,
Maryland, law firm. (Based on news release from Silber Andalman
firm) A.S.L.

Federal Court Upholds Convictions for Public Sex at Valley Forge
Park

Disorderly conduct convictions of two men caught having sex in a
national park must stand, ruled U.S. District Judge Dalzell in U.S.
v. Mather and Linn, 1995 WL 630850 (E.D. Pa., Oct. 27), because
they "were aware that their actions could cause public alarm, and
thus acted recklessly."  A ranger at Valley Forge National Park in
Pennsylvania observed Gary Mather and Gregory Linn masturbating and
performing fellatio in the woods. The men were charged with
disorderly conduct and open lewdness. Federal regulations define
disorderly conduct as an action "with an intent to cause public
alarm, nuisance, jeopardy, or violence, or knowingly or recklessly
creates a risk thereof."

After a bench hearing before a federal magistrate, Mather and Linn
were each fined $400 and placed on one year probation, with the
proviso that they stay away from the park. On appeal, the
government withdrew the open lewdness charge. 

The Model Penal Code states that a person acts recklessly when he
"consciously disregards a substantial and unjustifiable risk."
Here, "Mather and Linn knew that their actions would cause public
alarm if they were seen, yet they proceeded nonetheless, thus
presenting a classic instance of reckless behavior under any
definition," noted Dalzell. Mather and Linn "made a very conscious
effort not to be seen. . . It is this very effort that demonstrates
appellants' subjective awareness of the risk of public alarm that
they created. . . . Furthermore, a national park is the
quintessential public space," noted the court. Money and effort are
expended to attract visitors, "including countless children. Those
visitors explore wherever they please in this park," said the
court, "and should be able to do so without concern of happening
upon an open sex act."

This case is "more compelling" than United States v. Lanen, 716
F.Supp. 208 (D. Md. 1989), noted the court. In Lanen the appellant
was convicted of disorderly conduct after he was seen masturbating
in the stall of a park restroom, "where arguably one might expect
considerably more privacy. . . . While some places in the park are
less visible or open than others, this distinction cannot change
the legal and practical reality that every square inch of the
park's grounds is public, and thus park grounds cannot supply a
venue for sex akin to the privacy of a room." M.N.S.

Same-Sex Harassment in the Workplace: Four District Courts Rule on
Title VII Claims

Four more federal district courts have ruled on the increasingly
popular issue of whether same-sex sexual harassment violates Title
VII.

In Sardinia v.  Dellwood Foods, 1995 WL 640502 (S.D.N.Y. Nov. 1),
plaintiff Richard Sardinia claimed he was subjected to repeated
verbal and physical sexual harassment by his male supervisors, at
least one of whom allegedly said he wanted to have sex with
Sardinia and often threatened to fire him.  Sardinia claimed he had
been grabbed repeatedly and called a "babe" and a "faggot," and
management laughed at him when he complained about how he was being
treated.  He was eventually hospitalized for "anxiety-related
paralysis," and sued his employer under both Title VII and the New
York State Human Rights Law.  Dellwood moved to dismiss, arguing
that Title VII does not apply to harassment within one gender.  In
perhaps the most thorough analysis yet of this issue, Judge Preska
refuted the defendant's argument by tracing it to its origin, a law
journal note which had been published prior to the Supreme Court
decision in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the
landmark case that established the sexual harassment theory of
discrimination under Title VII.  Applying the language of Title VII
and Vinson, as well as the EEOC Guidelines on Discrimination
Because of Sex, Judge Preska sided with the growing trend
nationwide to find that sexual harassment is actionable under Title
VII even when the perpetrator(s) and victim(s) are of the same
gender.

In Ecklund v.  Fruisz Technology, Ltd., 1995 WL 662391 (E.D.Va. 
Nov. 7), plaintiff Janice Ecklund alleged that she had been
constructively discharged from her job by repeated physical and
verbal sexual harassment by a female co-worker, and that management
ignored her complaints.  Observing that other districts have split
on the issue of whether same-sex harassment is actionable, Judge
Brinkema found the decisions upholding Title VII claims in same-sex
harassment cases more persuasive and so upheld the plaintiff's
claim.  Judge Brinkema also noted that a same-sex harassment case
is currently on appeal to the 4th Circuit, which indicates that a
circuit split on this issue may be imminent as the  only existing
circuit court ruling is the increasingly rejected Garcia v.  Elf
Atochem North America, 28 F.3d 446 (5th Cir.  1994), which held
that same-sex harassment does not violate Title VII.

In Easton v.  Crossland Mortgage Corp., 1995 WL 646364 (C.D.Cal.,
Oct. 12), the plaintiffs had worked in an office of fifteen
employees of whom thirteen were women, including the two
supervisors and the three plaintiffs.  Judge Real found that the
two supervisors ran the office like a "bawdy sorority," routinely
addressing the plaintiffs as "bitches," commenting on their bodies,
and lifting plaintiffs' clothing to examine their breast sizes and
underwear.  However, the plaintiffs had never complained while
employed in the office and never tried to find work elsewhere
(despite a strong job market and repeated calls from headhunters). 
In fact, they had willingly participated in some of the events they
later claimed were harassment, and one plaintiff testified that she
"loved" her job.  Noting that male employees were similarly
treated, and that both supervisors were heterosexual, Judge Real
created a counterpoint to the growing trend by ruling that same-sex
harassment could not be presumed discriminatory because "context is
everything" and, in
the context of the almost entirely female office, the allegations
did not establish a claim of sex discrimination.   Judge Real's
partial reliance on the perpetrators' sexual orientation may have
troubling implications for gay supervisors, as it implies that
liability depends not just on conduct, but also on the supervisor's
sexual orientation, and gay supervisors may be more likely than
heterosexual supervisors to be found culpable for identical
behavior.  O.R.D.

In a late-reported case, District Judge Sharp of the U.S. District
Court, Middle District of Florida, ruled Sept. 11 that a quid-pro-
quo sexual harassment claim brought by a male employee based on
harassment by a male supervisor did not state a claim under Title
VII.  Fredette v. BVP Management Associates, 68 Fair Empl. Prac.
Cases (BNA) 1335, 1995 WL 608562. Fredette alleged that he suffered
discrimination in the workplace because he rebuffed his male
manager's sexual advances.  The evidence gathered by a magistrate
judge in preparing a report on the defendant's summary judgment
motion indicated that Fredette would not have suffered
discrimination had he given in to the manager's advances.  Other
male restaurant employees informed Fredette that he could get any
table assignment or promotion he wanted by giving in to the
manager.  Thus, found Sharp, discriminatory treatment "stemmed not
from the fact that Fredette was a man, but rather from the fact
that Fredette refused the manager's propositions and did not share
the same sexual orientation or preferences as the manager.  Title
VII does not provide a cause of action for discrimination or
harassment leveled because of one's sexual orientation or
preference."  Sharp granted the summary judgment motion, overruling
the magistrate's recommendation.  However, Sharp allowed the case
to continue on a claim of violation of the Fair Labor Standards Act
based on the restaurant's practices in dealing with tips.  A.S.L.

Bankruptcy Court Rejects Joint Petition From Gay Couple

Bankruptcy Judge Armand David Kahn held that a gay couple could not
file a joint bankruptcy petition because they were not legally
married.  In re Allen, 186 B.R. 769 (Bankr. N.D. Ga. 1995).  When
they exchanged vows before a minister in 1993, Zachariah Allen and
Glen Favre most likely agreed to share life's joys and adversities. 
They could not, however, share the benefit of a joint bankruptcy
proceeding to deal with their joint debts, because they were not
legally married, and therefore were not one another's "spouse"
under the bankruptcy code.  

The court based its decision on the murky business of divining the
legislative intent behind the bankruptcy code.  Although the code
does not specifically define spouse to mean only legally married
partners, the term's common use presupposes a marriage, the court
reasoned.  Interestingly, the court distinguished a prior decision,
In re Tanner, 145 B.R> 672 (Bankr. W.D. Wash. 1992), which applied
an expansive and flexible definition of "insider" to include a
debtor's lesbian lover, and allowed the bankruptcy trustee to
recover a preference from the lover.  Congress intended "insider"
as a term of art with an expansive definition which begins,
"`insider' includes...."  Because Congress did not so define
spouse, the court believed, they must have intended the term to
have its common meaning.  

The court noted that if a state legalized same-gender marriages,
then gay and lesbian couples in that jurisdiction would be eligible
to proceed jointly in bankruptcy court.  The court abstained from
the issue of the constitutionality of Georgia's denial of
same-gender marriages.  D.W.

Studds to Retire From Congress

U.S. Representative Gerry Studds, a Democrat from Massachusetts,
announced Oct. 28 that he will not seek re-election next year. 
Studds is one of three openly-gay members of the House of
Representatives.  Another, Rep. Steve Gunderson (Rep.) of
Wisconsin, has also announced his retirement.  That leaves Rep.
Barney Frank, a Massachusetts Democrat, as the only openly gay
member of the House (assuming his re-election in 1996) unless
either somebody else "comes out" (as we are assured that there are
plenty of closeted members in both parties) or an openly gay
candidate wins election.  A.S.L.

Connecticut Court Applies Exhaustion Requirement and Dismisses
Sexual Orientation Discrimination Complaint

Connecticut Superior Court Judge Thompson ruled Nov. 14 that
exhaustion of administrative remedies is required by the
Connecticut statute barring employment discrimination on the basis
of sexual orientation.  Doe v. Ambrogio, 1995 WL 684786.  the
plaintiff brought a two-count complaint, premising the first count
on the state law, which defendants moved to dismiss on the ground
that plaintiff had previously filed a complaint with the Commission
on Human Resources and Opportunities, which had not completed
processing of the matter.  The plaintiff countered that he could
proceed because the court had jurisdiction to award greater relief
than was authorized for the Commission.  The court found that the
plaintiff was mistaken; its authority to order relief was limited
to the same range of remedies authorized for the Commission, and
exhaustion was required.  Thus, the first count was dismissed.  The
opinion does not discuss the second count.  A.S.L.

Virginia Judge Orders Resumption of Visitation for Bottoms

Henrico County, Virginia, Juvenile & Domestic Relations District
Court Judge William G. Boice has ordered that Pamela Kay Bottoms
comply with the visitation rights of her daughter, Sharon Bottoms. 
Earlier this year, the Virginia Supreme Court upheld Boice's
decision awarding custody of Sharon's 4-year old son to her mother,
finding, among other things, that by continuing to live in a
lesbian relationship with April Wade, Sharon rendered herself unfit
for custody.  However, the court also upheld Boice's order that
Sharon have visitation rights, which Sharon claims her mother is
disobeying.  Sharon had sought to have the court hold her mother in
contempt.  Boice set a Jan. 12 hearing date on those allegations. 
Richmond Times-Dispatch, Nov. 2.  A.S.L.

NY Civil Court Finds Gay Men Were Family Members

In a decision applying New York's Rent Stabilization Code family
succession regulations, New York County Civil Court Judge Walter
Strauss found that Harry Sullivan, the surviving life partner of
William Perkins, was entitled as a "family member" to succeed to
the leasehold of Perkins' apartment, in which the men had lived
together from 1988 until Perkins' death in 1994.  Although the men
did not have the kind of documentation normally introduced to prove
financial interdependence, Judge Strauss found this was due to
their status as blue collar workers with limited assets and
financial sophistication.  Strauss credited testimony by Sullivan
and a friend about the nature of the relationship, and concluded
that the men had a close emotional and financial relationship, as
required by the Code for a finding of family status.  West 40th
Street Realty Association v. Sullivan, NYLJ, 11/22/95, p. 26 (Civil
Ct., N.Y. Co.).  A.S.L.

Domestic Partnership & Marriage Notes

Northwestern University's trustees voted at a Nov. 13 meeting to
approve a proposal by the University's president to extend benefits
to same-sex domestic partners of staff members. * * * New York Law
School announced extension of eligibility for health insurance
coverage to same sex "spousal equivalents" of employees, effective
January 1.  Due to the small size of the full-time staff of the
independent law school, the benefit will only be available through
some of the school's insurance providers. * * * Jackson Laboratory
in Bar Harbor, Maine, will offer health benefits coverage to
domestic partners of its 700+ employees. * * * Although only 38
employees have enrolled their partners for domestic partnership
benefits in the two months that the University of Alaska's new
benefits policy has been in effect, Mike Kelly, a member of the
board of regents who opposes the program, indicated to the
Associated Press that his brother, State Representative Peter
Kelly, would reintroduce a bill in the state legislature that would
give employers a right to deny health-care benefits to unmarried
partners of state workers.  Of the 38 workers who signed up, 16 are
in same-sex relationships, mainly at the university's Fairbanks
campus.  Anchorage Daily News, Nov. 30. * * *  Reuters reported
Nov. 20 that more than 400 employers are now offering domestic
partnership benefits, based on a list compiled by Common Ground, a
consulting firm.  

Georgia State Insurance Commissioner John Oxendine denied
applications from two insurance companies, Prudential and Cigna,
for permission to sell policies in the state providing domestic
partnership coverage.  Oxendine said that approval of the policies
would be inappropriate because the state does not recognize same-
sex marriages.  Earlier this year, the Georgia Supreme Court struck
down as ultra vires an Atlanta ordinance extending such benefits to
domestic partners of city employees.  Oxendine's decision means
that only self-insured employers in Georgia can provide such
benefits to their employees.   

As we went to press, it appeared likely that the D.C.
Appropriations Bill for the federal fiscal year that began Oct. 1
will bar any use of District revenues to provide benefits for
domestic partners of District employees, and it was possible that
a House amendment totally repealing the District's domestic
partnership ordinance would be passed.  The House version of the
bill also overrules a recent D.C. Court of Appeals decision
allowing co-parent adoptions of children.  

A domestic partnership ordinance in Northampton, Massachusetts, was
repealed in a close referendum vote on Nov. 7, although local
voters re-elected three openly gay candidates, two to the city
council and one to the county commission.  Washington Blade, Nov.
10.  

The Hawaii Commission on Sexual Orientation & the Law has voted to
recommend that the legislature authorize issuance of marriage
licenses to same-sex couples.  The Commission's report, due to be
issued in December, will reportedly suggest to legislators that if
they don't want to vote for same-sex marriage, they should pass a
domestic partnership law that would give same-sex couples an
opportunity to gain the same rights under state law as are accorded
to married couples.  The Commission was established by the
legislature in response to the pending lawsuit against the state by
a group of same-sex couples seeking marriage licenses.  The Hawaii
Supreme Court ruled in 1993 in Baehr v. Lewin that the state will
have to give licenses to same-sex couples unless it can persuade
the court that it has a compelling justification for refusing to do
so, finding that the failure to grant licenses to same-sex couples
violates the state constitution's ban on sex discrimination.  The
Commission issued a draft report for public comment on Nov. 27. 
The preliminary vote on the Commission was reportedly 5-2 in favor
of the same-sex marriage recommendation.  A.S.L.

Law & Society Notes

The U.S. Postal Service, a federal-government-owned corporation,
has announced a new policy that prohibits discrimination in the
workplace based on sexual orientation or identity.  In a release
distributed on the Internet, the International Conference on
Transgender Law and Employment Policy stated its view that the
announced policy would protect transsexual as well as lesbian, gay
and bisexual Postal Service employees.  In announcing the policy,
Postmaster General Marvin Runyon emphasized that the policy "does
not alter current standards of conduct and dress for postal
employees."  Time will tell how this policy will be construed if a
pre-operative transsexual wishes to 
dress suitably for his/her intended gender while on the job. 

The Judicial Council of the U.S. 9th Circuit reversed an earlier
decision and voted on Nov. 21 to include "sexual orientation" in
its anti-discrimination guidelines governing all courts in the
Circuit.  The 9th Circuit thus becomes the first federal circuit to
ban anti-gay discrimination in its employment policies.  The vote
came in response to a resolution passed by judges and lawyers
attending a 9th Circuit conference, which had been presented by San
Francisco attorney Nanci Clarence, according to an Associated Press
report.  Arizona Republic, Nov. 24.

The Tennessee Supreme Court heard oral arguments in November in a
challenge to the state's sodomy law.  A decision is expected early
in 1996. Abby Rubenfeld of Nashville represents the plaintiffs.

A Palm Beach County, Florida, Circuit Court jury convicted Ronald
Knight of the hate-crime slaying of a gay man, and on Nov. 17
recommended that the death penalty be imposed in the case.  Sun
Sentinel, Nov. 18.  

In an unofficially reported decision, U.S. District Judge Conti
held that the city of San Francisco did not violate the due process
rights of police officer Frank McCoy in its investigation of
charges that McCoy's investigation of the murder of a gay man was
tainted by homophobia.  McCoy v. City and County of San Francisco,
1995 WL 681263 (N.D.Cal., Nov. 8).  The court found that McCoy was
accorded much more in the way of due process by the city's
investigation than was minimally required by federal precedents.  

Associated Press reported late in November that U.S. District Judge
Thomas Van Beeber ruled that a local school board violated the
First Amendment when it removed a book from school libraries
because of its lesbian content.  "Although local school boards have
broad discretion in the management of school affairs, they must act
within fundamental constitutional limits," wrote Van Beeber.  We
hope to obtain the decision and include a full report in January
Law Notes.  

Human Rights Campaign (formerly the Human Rights Campaign Fund)
released an evaluation of the records of the nine announced
candidates for election as President in 1996.  According to HRC,
President Bill Clinton's record put him in first place among all
the candidates, despite criticisms of his performance on a variety
of issues; HRC summarized Clinton's record as "mixed."  HRC made
clear that these ratings were comparative, characterizing the
leading Republican candidate, Senator Bob Dole, as "tepid" on gay
issues, and observing that Senators Lugar and Specter and publisher
Steve Forbes might be better on gay issues than the front-runner. 

The American Musicological Society has decided to relocate its 1996
annual meeting away from Cincinnati, Ohio, where the city council
recently repealed a gay rights ordinance.  The ordinance had been
rendered invalid by a charter amendment passed by voters whose
constitutionality was upheld by the 6th Circuit Court of Appeals. 
Gay rights supporters have petitioned the Supreme Court to review
the case.  According to the Cincinnati Post, Nov. 7, the AMS was
the sixth major national group to cancel a Cincinnati convention
due to the gay rights controversy.  The group will meet in
Baltimore, instead.  Baltimore has a gay rights ordinance in force. 
A.S.L.

International Notes

The Canadian Treasury Board has instructed federal employment
managers in a Nov. 16 memo to extend all leave-related benefits to
same-sex partners of federal employees.  Although the Canadian
Supreme Court has rejected a claim that the government must treat
same-sex partners as spouses for purposes of insurance benefits
entitlements, the Court has held that the Charter of Rights forbids
sexual orientation discrimination by the government.  The new
policy announcement covers bereavement leave, leave for family-
related responsibilities, leave for relocation of spouse, foreign
service directives, isolated-post directives and relocation
directives, according to an Associated Press story of Nov. 23.
A.S.L.

Professional Notes

In October the members of the Lesbian and Gay Law Association of
Greater New York (LeGaL), the publisher of this newsletter, elected
the following persons to their board of directors: Randye F.
Bernfeld, Toby M.J. Butterfield, Norris H. Case, Lori Cohen, Paul
G. Feinman, James E. Hough, Cynthia S. Kern, Edward Liao, Greg
Lynch, Michael S. Ryan, and Angie Iglesia Martell.

Gay & Lesbian Lawyers of Washington (GAYLAW), based in the nation's
capital, presented three awards at their annual holiday reception
December 1: Ally for Justice Award to Robert N. Weiner, President
of the D.C. Bar; Distinguished National Service Award to Mark
Agrast, Sr. Legislative Assistant to Congressman Gerry Studds;
Distinguished Community Service Award to Dinah G. Wiley, former
Legal Director at Whitman-Walker Clinic.

On Dec. 1, World AIDS Day, the Lawyers Alliance of New York
presented a special certificate of appreciation to attorneys from
the New York firm of Skadden Arps Slate Meagher & Flom, for their
pro bono work on several non-profit projects to benefit people with
AIDS in need of housing.  Ironically, just two days earlier,
Skadden Arps partner Jonathan Bowie had died from AIDS.  Bowie, 44,
a Harvard Law School alumnus, was a real estate law specialist who
had done pro bono work for the Servicemembers Legal Defense
Network, defending lesbian and gay military servicemembers.

Lesbian & Gay Legal Issues will be high on the agenda when the
Association of American Law Schools holds its annual meeting in San
Antonio, Texas, January 4-7.  On January 4, there will be
presentations on gay & lesbian legal theory, teaching law &
sexuality issues, and a business meeting by the AALS Section on Gay
& Lesbian Legal Issues, followed by a reception with members of the
local lesbian and gay legal community.  On January 5,  there will
be a program on implied contract in cohabitation cases, jointly
presented by the Gay Issues section and the Contracts section, and
a program by the estates and trusts section on legal issues of non-
traditional couples.  On January 6, there will be a forum on the
future of same-sex marriage, and a program about involuntary mental
health treatments to "cure" gay and lesbian youth. A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

Ohio Appeals Court Denies AIDS Fear Claim

In Vogelsang v. Yeh, 1995 WL 675991 (Nov. 15), the Ohio Court of
Appeals held that a surgical patient failed to state a viable claim
for her surgeon's negligent infliction of severe emotional
distress.  The surgeon removed a herniated disc from the patient's
neck, as planned, but replaced it with a bone graft obtained from
the state tissue bank.  Claiming that she had instructed the
surgeon to use a graft of a piece of her own bone, the patient
alleged that she feared having contracted HIV.

The court felt constrained to follow a recent Ohio Supreme Court
ruling that no recovery was possible for the fear of a nonexistent
physical peril, although the court stated that "all members of this
panel are not pleased with the result."  This ruling dictated a
defense verdict, the court ruled, since the patient had
consistently tested negative for HIV, there was no evidence that
she had in fact been exposed to the virus, and there was no real
possibility that she would in the future demonstrate infection by
the virus.  Acknowledging that the patient's distress was
undisputed, the court nonetheless found no basis for the patient's
claim under existing law.  R.M.

Tennessee Appeals Court Orders Trial of Emotional Distress Claim by
Hospital Patient Whose Roommate Had AIDS

In a unanimous ruling, a panel of the Tennessee Court of Appeals
held on Nov. 29 that Jerry Bain, a former hospital patient, was
entitled to a trial of his claim of intentional infliction of
emotional distress, based on the claim that the hospital placed a
patient with AIDS in his room without revealing the nature of the
patient's infection.  Bain v. Wells, 1995 WL 700203.

In his complaint, Bain alleged that the hospital had a policy of
placing AIDS patients in rooms with other patients, without
disclosing to the other patients that their roommates had AIDS. 
Bain claims that he mistakenly used his roommates razor to shave,
and that he used the same toilet facilities while he had a cut on
his buttocks.  At the time, he was unconcerned about the razor
slip-up, but upon later being told by his roommate that he had
AIDS, Bain claims he suffered severe emotional distress and has had
to take HIV tests repeatedly. (He has always tested positive.)

The court found, based on affidavits in the record, that the
hospital had not engaged in wrongful conduct by placing an AIDS
patient in a room with a non-AIDS patient, but that there was an
issue of fact as to whether it was wrong to do so without
disclosure.  The court also found that there was a question of fact
about whether Bain had been "exposed" to HIV through the razor
incident, which required a jury trial to resolve.  Under Tennessee
precedents on "fear of AIDS" suits, the plaintiff must show actual
exposure to the virus to prevail on the claim.  Thus, the court
held that a trial was needed to resolve the plaintiff's claim, and
affirmed the circuit court's decision refusing to grant summary
judgment to the defendants.  A.S.L.

California Appeals Court Strictly Construes HIV Testing Statute

A unanimous panel of the California Court of Appeal, 6th District,
has strictly construed the state's law concerning compelled HIV-
testing, reversing a Superior Court order that the defendant be
tested, in People v. Guardado, 1995 WL 703768 (Nov. 30).  Peter
Guardado was convicted at trial of two counts of lewd and
lascivious conduct and one count of marijuana possession.  Guardado
was apprehended by a police officer while he was smoking marijuana
in a parked car and attempting to get a 12-year old girl to touch
his penis.  At trial, there was testimony by the girl and a police
officer concerning a previous incident where Guardado attempted to
french kiss her while she was asleep at a friend's house.  At the
conclusion of the trial, during the sentencing phase, the judge
inquired whether there was a "mandatory AIDS test that I have to
order."  The prosecutor responded that AIDS testing was not
mandatory in this case, but said, "Actually, Your Honor, we would
request AIDS testing because I can think of some conduct that may
have transferred AIDS if the victim could not relate specifically
what happened and specifically her inability to communicate.  To be
on the safe side, I would request AIDS testing."  The judge then
added AIDS testing to its order, which also sentenced the defendant
to 15 years in prison and to make restitution.  

On appeal, the court held that the judge's order violated state
law.  HIV testing is only authorized under specified circumstances,
none of which were met in this case.  Even had the victim requested
HIV testing, which is authorized by the statute, the court would be
required to hold a hearing for a determination whether there was
any conduct that posed a risk of transmission before ordering such
testing, which was not done in this case.  The court refused to
find that there was any exception to the requirement for a victim's
written request and a hearing, as specified in the statute. 
Furthermore, the court rejected the state's request for a remand to
the Superior Court to give the victim an opportunity to make a
written request and to convene a hearing, finding that the Health
& Safety Code section relied upon by the state, sec. 199.96, did
not authorize an appellate court to "create jurisdiction in the
superior court after an appeal solely for the purpose of allowing
the victim the opportunity to make the written request which the
statute requires."  A.S.L.

Federal Appeals Court Denies 8th Amendment Claims Against Prison
Authorities on Medical Treatment

In Campbell v. Sheahan, 1995 WL 649920 (Nov. 2), a panel of the
Seventh Circuit Court of Appeals affirmed the district court's
dismissal of a state prisoner's pro se 42 U.S.C. sec. 1983 action
alleging failure to provide medical treatment, in violation of the
8th and 14th Amendments.  Although tests performed within the
prison system revealed the prisoner to be HIV+ and to have been
exposed to tuberculosis, at least six months passed before he was
given any medical treatment.  The prisoner claimed that authorities
began providing medical treatment to the prison population only
after rumors began circulating that inmates were dying from lack of
medical care.

The county sheriff was not liable in his official capacity, the
court held, because there was no showing of an official policy or
custom by the county to deny prison inmates medical care in
"deliberate indifference" to their medical needs.  In fact, the
court observed, the prisoner claimed that the lack of medical
treatment resulted from understaffing and lack of funds, and these
allegations described negligence, rather than deliberate
indifference.

Nor was the county sheriff liable in his individual capacity, the 
court continued, as the prisoner alleged only that the sheriff
failed adequately to train prison personnel to respond to inmates'
medical needs, and this, once again, amounted only to negligence,
rather than deliberate indifference.  The court reached a similar
conclusion with respect to the prisoner's claim against the prison
system's medical director, who, the court said, at most acted
negligently in failing to refer the prisoner to a physician for
treatment.  Pointing to the prisoner's assertion that medical care
was provided in response to rumors of inmate deaths, the court
found this to negate an inference of deliberate indifference,
apparently on the basis that deliberately indifferent prison
officials would not have reacted to the rumors.  R.M.

Federal District Court Rejects Mistreatment Claims By HIV+ Prisoner

In a decision noteworthy for its lack of compassion, its "connect
the dots" approach to the law and its careless grammar, U.S.
District Court Judge Michael affirmed a Magistrate's report in
Parker v. Profitt, 1995 WL 631993 (W.D.Va., Oct 27) which
recommended dismissal of four of the five counts of HIV+ prisoner
Afnan Parker's complaint alleging violations of his civil rights
under 42 U.S.C. sec. 1983 against Superintendent of Virginia
Prisons Sterling Profitt, leaving standing only that portion of
Parker's complaint relating to claims of assault by some prison
guards.

Parker was arrested in December 1991 and was detained in the
Central Virginia Regional Prison, where, on December 30, he was
advised that he was HIV+.  Parker alleged that he was beaten by
guards in early January 1992, shackled to his bunk for two days,
placed in a segregated unit, verbally abused, stripped of his
clothing and forced to wear disposable plastic jump suits and masks
and rubber gloves, and forced to eat off plastic utensils marked as
being used by an HIV+ person.  Parker also alleged that he was
deprived of medical treatment for two months after his diagnosis
and denied access to Grievance Forms to seek administrative relief.

Counts I and II were dismissed on res judicata and collateral
estoppel grounds.  Count IV, alleging a tort claim for invasion of
privacy relating to disclosure of Parker's HIV status to
non-medical personnel and for his placement in administrative
segregation, was dismissed as having no basis in Virginia law. 
Count III alleged unconstitutional deprivation of civil rights due
to deprivation of access to grievance forms, law library materials,
and face to face contact with inmate law clerks or others 
knowledgeable in the law based solely on his HIV status.  Parker
could clearly have used such assistance, as both his complaint and
his objections to the Magistrate's report presented confused and
conflicting statements.  This Count was dismissed on these grounds
and, in addition,  because "an ad hoc policy [of depriving a
particular prisoner access to the courts] is not unconstitutional
per se, especially when it involves a segregated inmate. . . ," 
and because Parker "did not allege a specific injury arising from
any alleged deprivation of his right to access to the courts." 

Parker's Count V was divided into five separate claims. The first,
relating to deprivation of privileges resulting from his placement 
in administrative segregation, was partially denied on account of
res judicata, and partly because the Fourth Circuit has held that
"`isolation from companionship,' `restriction on intellectual
stimulation,' inescapable accompaniments of segregated confinement
will not render segregated confinement unlawful absent other
illegitimate deprivations."  Judge Michael did not consider
plaintiff's allegations to rise to the level of "illegitimate
deprivations." Count V, claim 2, alleging verbal abuse, was
dismissed because "verbal abuse by guards, even that which
threatens violence, cannot rise to the level of cruel and unusual
punishment." 

Count V, claim 3, alleging denial of medical treatment,
particularly AZT, was denied because the prisoner did not have a
protected interest in selecting the treatment he will receive. The
constitutional standard for this claim is that the correctional
authorities must display deliberate indifference to the medical
need of the prisoner; such treatment violates the Eighth Amendment
only when it is so grossly incompetent, inadequate or excessive as
to shock the conscience or to be intolerable to fundamental
fairness.  A disagreement between prison and inmate does not state
a claim for cruel and unusual punishment.  The court considered the
question to be whether the two month deprivation of AZT rose to a
concern of constitutional dimensions, and then ruled that it did
not.  While the court acknowledged that AZT has been recognized as
the most effective drug for treatment of HIV, the court also stated
that many patients using AZT had reported suffering from
significant side effects, and further stated that "the efficacy of
prescribing the drug AZT to treat HIV+ and AIDS patients was not as
conclusive in 1991 and 1992 as perhaps it is in 1995" and therefore
concluded that the 57-day delay in beginning a course of treatment
was not cruel and unusual punishment.

Count V, claim 4, related to the requirement of wearing the
disposable clothing.  The court affirmed the magistrate's finding
that this was not a violation of Parker's rights under the Eighth
Amendment, noting "[t]he plaintiff was in Jail in late 1991 and
early 1992 and there existed considerable amount of trepidation in
the general population about contact with HIV-positive and
AIDS-infected persons." The disposable clothing "may not have
encouraged the dignity of the plaintiff," but it was not a
constitutional violation.  Count V, claim 5, relating to physical
assaults by certain of the Jail's guards, was allowed to stand
without objection by  the prison authorities.  In light of all of
this, it is quite a surprise that the court denied the defendants'
motion for sanctions.  S.K.

Federal Court Orders Trial on "Deliberate Indifference" Claim
Against Deputy Sheriff By Pre-Trial Detainee With AIDS; Rejects
Privacy Claim

Ruling on Nov. 15, U.S. District Judge Doumar rejected a claim that
jail officials violated a pre-trial detainees constitutional right
of privacy by dispensing medications in such a way that other
inmates could learn about a detainee's HIV status, but ordered a
trial of the claim that a deputy sheriff in the jail violated the
detainee's due process rights by failing to protect him from an
assault by other inmates.  Adams v. Drew, 1995 WL 699206 (E.D.Va.). 
The action was brought by Annie Adams, administratrix of the estate
of F. Lee Weiss.  Prior to his sentencing on tax charges, Weiss
filed a complaint that during his pretrial detention at Virginia
Beach Correctional Center, he was denied adequate medical
treatment, had his privacy invaded when other inmates learned his
HIV status, and was beaten up by other inmates in an incident that
could have been prevented had officials headed his plea to be moved
after news of his HIV status was spread.  On the privacy claim,
Weiss alleged that medication was dispensed in a line-up situation,
where it was easy for the prisoner who was next on line to learn
what medication was being dispensed to Weiss.  Weiss subsequently
died from AIDS.

The parties stipulated to dismissal of the inadequate treatment
claim.  On the privacy claim, Judge Doumar found that while many
district courts had upheld constitutional privacy claims in HIV-
related information, there was no controlling appellate precedent
in the 4th Circuit recognizing such a claim.  The judge also
asserted that Supreme Court privacy decisions did not provide a
controlling precedent on point, and opined: "The adoption of the
rule urged by plaintiff would enmesh the court in second-guessing
the prison officials' decision about whether the prisoners should
line up as a group to receive their medicine, or should receive it
based on individual appointments.  The courts are ill-suited for
such a role."  Thus, Doumar was unwilling to hold that there was a
constitutional right of privacy in medical information, and granted
summary judgment.  

However, on the final claim, Weiss had alleged that he informed
Deputy Goss that other prisoners were threatening him with violence
if he was not moved.  Weiss also claimed that other prisoners
shouted such threats when Goss was present.  Goss denied these
allegations.  Doumar found that the allegations, if true, stated a
"deliberate indifference" claim.  Since there was a dispute about
these facts, Weiss's allegations were sufficient to justify a
trial, so Goss's summary judgment was denied.  However, summary
judgment motions by the other defendants on this claim were
granted, since Weiss did not allege that any of the other prison
officials had direct knowledge of the alleged threats.  A.S.L.

Federal Court Rejects Injunctive Relief Against Discriminatory
Surgeon

In Hoepel v. Barlow, 1995 WL 656389 (Nov. 2), a Virginia federal
district court granted a physician's motion to dismiss a would-be
patient's claim under the Americans with Disabilities Act for
discrimination against the patient due to her HIV-positive status. 
After discovering that her breast implants had ruptured, the
patient began searching for a surgeon to remove them.  She was
referred to the defendant. When she, at some point during her
initial consultation, revealed her HIV status, he replied that he
"would not touch an HIV patient with a ten-foot pole."  (The court
did not describe the physician as disputing the accuracy of the
quotation.) The patient alleged that she suffered severe emotional
distress as a consequence of the physician's remark and his failure
to take her case.  Although another surgeon performed the surgery
three or four months later, in the interim the patient experienced
extreme anxiety over the possibility of the surgery's becoming more
risky as her T-cell count dropped.  She also continued to suffer
pain from the effects of the implants.  The anxiety led to insomnia
and depression, which eventually required counselling.

The patient's claim fell under the "public accommodations" chapter
of the ADA, the court determined, since that term encompassed
doctors' offices.  That chapter adopts the remedies provided under
the public accommodations discrimination provisions of the federal
Civil Rights Act of 1964, which, for private plaintiffs, are
limited to injunctive relief.  Accordingly, the patient requested
an injunction ordering the physician not to discriminate against
disabled individuals in the future.  She also asserted claims under
the Rehabilitation Act of 1973 (29 U.S.C. sec. 701 et seq.) and
under state law for intentional and negligent infliction of
emotional distress, though these claims were not addressed in the
instant order.

The court held that because the patient would not herself suffer
any future discrimination at the hands of the physician, she had no
standing, under Article III of the federal constitution, to assert
her ADA claim.  The constitutional "case or controversy" limitation
translated into a requirement that the patient face a threat of
present or future harm that could be addressed by the remedy
sought, the court stressed.  While the patient's knowledge that the
physician was subject to an injunction might give the patient some
sense of personal satisfaction, the court reasoned, an injunction
would not, and could not, provide her with a remedy for the pain
and anxiety she suffered as she watched her T-cell count drop while
she searched for another surgeon.

The court rejected the patient's assertion that Congress, in
enacting the ADA, intended to confer standing on all those
suffering discrimination under the Act.  The creation of an
injunctive remedy did not necessarily have this effect, the court
reasoned, nor could it, as Congress lacked authority to circumvent
Article III standing requirements.  Acknowledging that, under
certain narrowly-defined circumstances, a plaintiff was permitted
to assert the rights of third parties, the court observed that this
was possible only where the plaintiff herself had suffered an
Article III injury.  Accordingly, this principle did not assist the
patient.

Also rejecting the patient's claim that her knowledge that the
physician might discriminate against other disabled individuals in
the future caused her pain and constituted a cognizable injury, the
court characterized the claim as the sort of "generalized
grievance" that had consistently been held insufficient to confer
standing.  And, although the patient asserted that the court's
decision would leave her without a remedy for the physician's past
discrimination, the court replied that the ADA authorized the
Attorney General to seek monetary damages to redress past
discrimination.  While agreeing with the patient that this avenue
of relief might be impractical or unrealistic, the court described
it as the one Congress chose to create.  R.M.

Florida Appeals Court Revives HIV Misdiagnosis Claim

In Jones v. Department of Health and Human Rehabilitative Services,
1995 WL 638241 (Fla. App., 4th Dist., Nov.1), the Florida Court of
Appeals reversed the dismissal of plaintiff's negligent HIV
misdiagnosis claim.  Plaintiff claimed he suffered bodily harm from
an incorrect diagnosis that he was HIV+.  The court relied on the
Florida Supreme Court's ruling in RJ v. Humana of Florida, Inc.,
652 So.2d 360 (Fla. 1995) (noted here in April 1995) which
permitted a plaintiff to amend a substantially similar complaint. 
In RJ, the court held that the impact rule applied in misdiagnosis
cases.  Plaintiff in RJ alleged only emotional damages from a false
HIV+ diagnosis.  Plaintiff  would have to show an impact, like an
invasive medical treatment, that would include such things as the
prescribing of "caustic medication such as AZT."  Since the
complaint here was filed during the pendency of RJ, the court
remanded to allow plaintiff the opportunity to amend his complaint.
M.S.R.

NJ Court Upholds AIDS Fear Damages Against Negligent Defendant

Judge Wolfson of the New Jersey Superior Court held in De Milio v.
Schrager, 1995 WL 649084 (July 14), that a plaintiff may recover
for emotional distress arising from a fear of AIDS, and that the
courts will allow the plaintiff to survive a motion of summary
judgment by drawing a rebuttable presumption of exposure to the
virus, when a defendant displays wrongful conduct that is
intentional or recklessly indifferent.  

Carmen De Milio was impaled by a dental instrument while collecting
trash from the North Brunswick office of Dr. Philip Schrager.  A
later investigation by the Waste Management Division of the State
Department of Environmental Protection revealed that the doctor had
been improperly disposing of dental instruments and medical waste
in violation of state regulations.  Although De Milio repeatedly
tested negative for HIV over five years, the judge ruled he may
seek compensation for the severe emotional distress caused by his
fear of contracting AIDS from the time of possible exposure until
he knew or should reasonably have known that he was not infected
with HIV.

The judge held that by circumventing the Department regulations,
Schrager had breached an affirmative duty to protect persons from
improper exposure to possible toxic agents, such as HIV.  After an
extensive survey on the state of the law regarding fear-of-AIDS as
a legally cognizable injury, the judge held that severe emotional
distress is recoverable when reasonable and tantamount to physical
harm, and thus the plaintiff's fear of AIDS claim could not be
rejected as a matter of law.  While normally there must be proof of
actual exposure to a toxic agent, such as HIV, the court presumed
exposure because Schrager had ignored the regulations regarding
disposal of medical waste.  "It would be the antithesis of justice
to deny the full range of recovery to an innocent plaintiff who has
been physically injured in the circumstances of this case," the
judge ruled.  R.D.L.

Federal Magistrate Approves Settlement of HIV-Confidentiality
Claims

In Estate of Mary Doe v. NYC Department of Social Services, 1995 WL
619864 (S.D.N.Y., Oct. 23) (not officially published), Magistrate
Judge Dolinger approved a settlement of claims that the defendant
agency unlawfully revealed HIV-related information about the
plaintiff's family to various employees of city agencies and to
residents in the building where the plaintiffs lived.  The
complaint alleged violations of the state's HIV confidentiality
law, as well as the constitutional right of privacy.  Under the
settlement agreement, the city agreed to pay $25,000 to the
plaintiffs (the estate of Mary Doe and her three surviving
children, one of whom has AIDS).  Magistrate Dolinger expressed
some caution in approving the settlement, in light of the small
amount of money being offered, but noted stipulations that the city
had improved its procedures for handling sensitive HIV-related
information since the incidents giving rise to this claim in 1990
and 1991.  The judge also noted that there was a benefit to the
plaintiffs in receiving some payment now rather than having to go
through time-consuming litigation, especially in light of the AIDS
status of one of the plaintiffs.  A.S.L.

Federal Court Dismisses Claim That Publication of Court Opinion
Violated Prisoner's Privacy Rights

Sebe Tron Woody, a federal prisoner, filed a motion with the court
seeking a downward departure from sentencing guidelines due to his
HIV status.  The court published an opinion ruling on the motion in
which Woody's HIV status was discussed, without concealing his
identity.  See U.S. v. Woody, 55 F.3d 1257 (7th Cir. 1995), cert.
denied, 116 U.S. 234 (1995).  Woody then filed suit against West
Publishing Co., the court reporters, court clerks, prosecutors and
judges on the appellate panel, claiming that the publication
violated his right of privacy, noting that he had submitted the
information about his HIV status to the court in a sealed document
to preserve his confidentiality.  Rejecting his claim in Woody v.
West Publishing Co., 1995 WL 686028 (N.D.Ill., Nov. 13), District
Judge Hart said the only allegations of wrongdoing in the complaint
pertained to the appellate panel's decision to include mention of
the Woody's HIV status in their opinion, and West's publication of
it.  Hart found that the judges have absolute immunity for anything
published in their opinions, which would also extend to the court
clerks handling the opinion.  Furthermore, West as an official
publisher of the court's opinions would share in the immunity of
the court.  Hart dismissed the complaint.  A.S.L.

Courts Rule on Motions Seeking Dismissal of Criminal Charges
Against PWAs "In the Interest of Justice"

Westchester County (N.Y.) Court Judge Mary Smith dismissed burglary
and larceny charges against Billy Ray Wilson "in the interest of
justice" based on Wilson's current condition from AIDS.  People v.
Wilson, NYLJ, 11/13/95, p.30, col.2.  Smith found that Wilson's rap
sheet, although long, consisted entirely of non-violent crimes,
concluding "it is clear from the defendant's criminal record as
well as his current condition that drug abuse has led him to a
career as a low-level thief.  While the path this defendant has
chosen to follow may be reprehensible, further prosecution of this
case would be unjust, as even the minimum sentence for the crimes
charged (i.e., two to four years as a Second Felony Offender) would
inevitably result in the defendant's death behind prison bars." 
Smith noted from a physician's report and her own observations of
the defendant in court that he was "extremely debilitated.  His
frailty is so marked that this court is satisfied that he is
physically incapable of engaging in any further criminal conduct."
* * *  By contrast, Nassau County (N.Y.) Court Judge Donald DeRiggi
refused to dismiss a felony charge of Driving While Intoxicated
against Daniel Horan.  People v. Horan, NYLJ, 12/1/95, p. 35. 
Police officers observed Horan's car inching into an intersection
against a red traffic light, and, on closer inspection, saw that
Horan was asleep at the wheel.  They woke him and detected heavy
alcohol fumes on his breath.  He refused a breathalyzer test. 
Horan was found to be HIV+ about three years before this incident,
and apparently developed full-blown AIDS two years ago, but is not
particularly debilitated or bed-ridden.  In denying the motion,
DeRiggi noted that most cases dismissing charges against PWAs
described the defendants as literally "at death's door."  A
complicating factor in Horan's case was a lengthy criminal record,
including arrests and convictions that had occurred subsequent to
his AIDS diagnosis.  DeRiggi concluded that Horan should be
required to stand trial.  A.S.L.

Order to Compel Production of Prisoners' HIV Status Vacated

In Lampart v. State of Connecticut, 1995 WL 643152 (Oct. 17), a
workers compensation action, the Connecticut Superior Court granted
a motion to vacate a discovery order to compel production of the
names of inmates of the Bridgeport Correctional Facility known to
have AIDS or the HIV virus.  (The Facility is the claimant's
employer.)  The application for production had originally been
granted when the defendant commissioner of corrections did not
appear due to a clerical error as to the pendency of the action. 
The court determined that the defendant's attorney would have
appeared had it not it been for the erroneous information received
from the clerk, and that even if this clerical error were not
"compelling" reason to vacate the order, the relief sought
implicated an "important public interest." The legislature in
General Statutes secs. 19a-583, 19a-584 and 19a-535 has mandated
that the release of confidential HIV related information be
narrowly circumscribed. D.P.

NY Court Closes Another Porn Theater in AIDS Prevention Campaign

New York State Acting Supreme Court Justice Marylin Diamond ordered
a theater that exhibits heterosexual pornography in the Times
Square area to be closed in response to a petition from the New
York City Health Department.  City of New York v. Capri Cinema,
Inc., NYLJ, 11/27/95, p. 26 (Sup.Ct., N.Y. Co.).  City health
inspectors testified that after inspections showed that patrons of
the theater were engaging in fellatio and anal intercourse and
using drugs, they sent a letter to the theater owner warning about
the possibility of closure if the owner did not take steps to end
such activities.  Subsequent inspections showed that no effective
steps had been taken.  Rejecting the defendants' argument that it
had not been established that fellatio is a high risk sexual
activity for transmitting HIV, the court held that it must defer to
the findings of the state's public health council, which mentioned
fellatio in a regulation authorizing closure of public
accommodations that make their premises available for such
activities.  The court's opinion does not specify the gender of the
patrons who were engaged in the sexual activities seen by
inspectors, but emphasizes that the films shown by the theater all
depicted solely heterosexual conduct.  A.S.L.

AIDS Law & Society Notes

Lambda Legal Defense Fund announced settlement of a suit brought by
a bartender who was discharged when his employer learned that he
was HIV-positive.  The EEOC filed suit against the bartender's
employer under the Americans With Disabilities Act.  Under the
terms of the consent decree that settles the suit, the employer
must make a significant monetary payment to the plaintiff and
provide HIV transmission and sensitivity training for all
employees, as well as adopt a policy on confidentiality of employee
medical information.  The plaintiff, who has obtained other
employment, is not seeking reinstatement.  The plaintiff was
represented by attorneys from Lambda's Chicago office and the
Indiana HIV Advocacy Program.  

New York State and City announced AIDS policy changes in November
that caused some consternation among PWAs and AIDS advocacy
organizations in the state.  First, the City announced that its
Division of AIDS Services (DAS) would no longer provide routine
case management for its PWA clients; instead, clients would be
provided with initial case management, and then if the agency
determined that case management was needed past the initial
establishment of benefits, the matter would be referred to
community-based organizations.  Reaction to this announcement was
mixed, which many AIDS organizations being critical, but Gay Men's
Health Crisis taken a moderately optimistic tone, pointing out that
DAS had not been an ideal case manager and perhaps community
organizations, if adequately funded, could do a better job. 
Whether funding for this initiative would be adequate remains
questionable.  Then, the AIDS Institute of the state Health
Department announced that due to federal and state funding cuts, it
would cease paying for non-AIDS specific medications for indigent
PWAs in the state.  Earlier in the month, there were reports that
the Health Department had transferred or dismissed many of the top
officials in the AIDS Institute, apparently preparatory to ending
its independent existence within the Health Department as an
advocacy center for AIDS policies.  Virtually all AIDS advocacy
groups were critical of these developments. A.S.L.

PUBLICATIONS NOTED & ANNOUNCEMENTS

ANNOUNCEMENTS

Report Issued on Lesbians and Gay Men in the Courts: In March 1994,
the Special Committee on Lesbians and Gay Men in the Profession of
the Association of the Bar of the City of New York distributed a
questionnaire to Legal Aid Society attorneys concerning "Barriers
and Opportunities Related to Sexual Orientation" in the courts. 
The results of that survey have now been published by the Committee
in a report.  The report reflects the responses of over 229 Legal
Aid attorneys (out of 1,099 distributed) practicing in the criminal
and civil courts of New York City.  Among the issues addressed in
the report are: the pervasive hostility to lesbians and gay men by
court officers, the role of judges in reprimanding and censoring
hostile and biased behavior, and the wide acceptance of homophobic
jokes, remarks, and ridicule in the courts.  Based on the survey
responses, the Committee proposes several recommendations in the
Report to address homophobia and bias in the court system.  Copies
of the Committee's Report and Recommendations are available from:
Peter J. Sherwin, Esq., Proskauer, Rose, Goetz & Mendelsohn, 1585
Broadway, New York, NY 10036, 212-969-3261 (voice), 212-969-2900
(fax).

The John Marshall Law School in Chicago, Illinois, will host a
conference March 14-16, 1996 on the 10th Anniversary of the Supreme
Court's decision in Bowers v. Hardwick upholding the power of state
governments to outlaw "homosexual sodomy."  This interdisciplinary
conference will survey the effect of the decision on sodomy law
reform, gay and lesbian liberation, constitutional law generally,
and other fields including anthropology, political science,
linguistics, philosophy, and AIDS education.  Anyone interested in
submitting papers and making conference presentations should
contact Prof. Mark E. Wojcik, John Marshall Law School, 315 S.
Plymouth Court, Chicago, IL 60604 (Tel. 312-987-2391; Fax. 312-427-
8307; E-mail 7wojcik@jmls.edu).  Selected articles and short essays
from the conference will be published in the Law & Sexuality
Journal published by Tulane University Law School.

The University of Cincinnati Center for Women's Studies and
Lesbian, Gay, Bisexual, Transgender Task Force announce a
conference on Sex, Gender, and Transgression, to be held April 13,
1996.  Papers are invited from a wide variety of disciplines.  For
information, contact Chris J. Cuomo, Department of Philosophy at
the University of Cincinnati, e-mail address
cuomocj@ucbeh.san.uc.edu, or write to Catherine Raissiguier, Center
for Women's Studies, 155 McMicken Hall, University of Cincinnati,
Cincinnati OH 45221-0164.

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Brandes, Joel R., and Carole L. Weidman, The `Child's Best
Interests' in Adoption Cases, New York Law Journal, Nov. 28, 1995,
p.3. (commentary on recent New York Court of Appeals decision
permitting unmarried couples to adopt children, reported above). 

Carrasquillo, Evelyn Quinones, Gays in the Military: Catch 22
Situation, 34 Revista de Derecho Puertorriqueno 215 (1994-95).

Florescu, Leonard G., An Expanded Definition: Who Can Adopt?,
N.Y.L.J., Nov. 13, 1995, p.3 (Supportive analysis of NY Court of
Appeals decision in Matter of Jacob, reported above).

Garb, Sarah H., Sex for Money is Sex for Money: The Illegality of
Pornographic Film as Prostitution, 13 L. & Inequality 281 (June
1995).

Gonzalez, Pedro J. Morales, Custodia y Homosexualidad: Binomio
Juridico Hecho Realidad, 34 Revista de Derecho Puertorriqueno 361
(1994-95).

Jax, Christine, Same-Sex Marriage -- Why Not?, 4 Widener J. Pub. L.
461 (1995).

Johnson, Elizabeth Pryor, Employment Discrimination and Private
Clubs: What Is a Bona Fide Private Membership Club?, 46 Labor L. J.
632 (Oct. 1995).

Lence, David E., Coding Desire: Sadism, Masochism and the Law, 19
Legal Studies Forum 3 (1995).

Mello, Jeffrey A., Personality Screening in Employment: Balancing
Information Gathering and the Law, 46 Labor L. J. 622 (Oct. 1995).

O'Brien, Raymond C., Domestic Partnership: Recognition and
Responsibility, 32 San Diego L. Rev. 163 (Winter 1995).

Pla Rodriguez, Americo, The Protection of Workers' Privacy: The
Situation in the Americas, 134 Int'l Lab. Rev. 297 (1995).

Russell, Margaret M., Lesbian, Gay and Bisexual Rights and "The
Civil Rights Agenda", 1 African-American L. & Pol. Rep. 33 (1994).

Student Notes & Comments: 

Fowler, Judith G., Homosexual Parents: Implications for Custody
Cases, 33 Fam. & Conciliation Cts. Rev. 361 (July 1995).

Karner, Jessica M., Political Speech, Sexual Harassment, and a
Captive Workforce, 83 Cal. L. Rev. 637 (March 1995).

Ma, Alice K., Campus Hate Speech Codes: Affirmative Action in the
Allocation of Speech Rights, 83 Cal. L. Rev. 693 (March 1995).

Proposals for Progress: Sodomy Laws and the European Convention on
Human Rights, 21 Bklyn J. Int'l L. 425 (1995).

AIDS & RELATED LEGAL ISSUES: 



Brodie, Kyle S., The Obviously Impossible Attempt: A Proposed
Revision to the Model Penal Code, 14 N. Ill. U. L. Rev. 237 (Spring
1995) (proposal to add "reasonableness" element, which might affect
prosecutions of people for spitting as "attempted transmission of
HIV").

Mariner, Wendy K., AIDS Phobia, Public Health Warnings, and
Lawsuits: Deterring Harm or Rewarding Ignorance?, 85 Am. J. Pub.
Health 1562 (Nov. 1995).

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. * * *  A case table for the 1995
edition of Law Notes will be compiled for distribution early in
1996.  Those who save and bind annual volumes are advised to wait
until an announcement is made about availability of the case table.
A.S.L.