LESBIAN/GAY LAW NOTES
ISSN 8755-9021     September 1996

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
or aleonard@counsel.com

Contributing Writers: Otis Damslet, Esq., New York; Julia Herd,
Esq., Brooklyn; Steven Kolodny, Esq., New York; Todd V. Lamb, Esq.,
New York; Robin Miller, Esq., Seattle; Michael Shay Ryan, Esq., New
York; Paul Twarog, Esq., New York; Dirk Williams, Esq., Boston;
Charles Wertheimer, NY Law School Student.

Circulation: Daniel Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC
10003. 212-353-9118; e-mail: le-gal@interport.net

LeGaL Homepage:http://www.interport.net:80/~le-gal
Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln
(C) 1996 by Lesbian & Gay Law Association of Greater New York                        
$45/yr by subscription; Foreign Rate US$60                 

7th Circuit Finds Constitutional Protection for Gay Public School
Student

On July 31, the 7th Circuit Court of Appeals reversed a decision of
the United States District Court for the Western District of
Wisconsin, which had granted summary judgment against a high school
student who claimed that the school system discriminated against
him based on his homosexuality by failing to enforce its sexual
harassment policy on his behalf.  Nabozny v. Podlesny, 1996 WL
428031.  The decision, the first to find that a school district
might be liable for failing to address anti-gay harassment of
students, was rendered by an appellate panel of three judges
appointed by Republican presidents, William J. Bauer (Ford), Joel
M. Flaum and Jesse F. Eschbach (Reagan).   

Jamie Nabozny was a student in the Ashland Public School District
in Ashland, Wisconsin.  He acknowledged that he was homosexual in
the seventh grade.  From that time forward, he was continuously
harassed and physically abused by fellow students because of his
homosexuality.  On numerous occasions, Nabozny reported this
harassment and abuse to school officials and asked those officials
to protect him and punish his assailants.  His numerous requests
fell on deaf ears, and on more than one occasion he was mocked by
school officials due to his homosexuality or told he would have to
expect harassment because he was gay.  On one occasion, a group of
Nabozny's fellow students harassed him by performing a mock rape on
him.  When Nabozny complained to the Principal, Mrs. Podlesny's
alleged response was "Boys will be boys."  Nabozny twice attempted
suicide and eventually dropped out of school as a result of the
harassment.

Nabozny filed suit against several school officials and the school
district alleging that, among other things, the school district and
officials violated his 14th Amendment right to equal protection by
discriminating against him based on his gender and his sexual
orientation, and violated his right to due process by exacerbating
the risk that he would be harmed by fellow students and by
encouraging an environment in which he would be harmed.  The
defendants moved for summary judgment which the District Court
granted in its entirety.  On appeal, that decision was reversed in
part and affirmed in part.

Since at least 1988, the Ashland Public School District has had a
formal policy of prohibiting discrimination against students on the
basis of gender or sexual orientation.  The District's policy and
practice includes protecting students from student-on-student
sexual harassment.  Nabozny maintained that the defendants denied
him the equal protection of the law by denying him the protection
extended to other students, based on gender and sexual orientation. 
The district court found that Nabozny had proffered no evidence to
support his equal protection claims; and, in the alternative, the
court granted the defendants qualified immunity.  The Court of
Appeals disagreed.

Writing for the court, Judge Eschbach found that the evidence
suggests that Nabozny was treated differently from other students.
The defendants stipulated that they had a commendable record of
enforcing the District's anti-harassment policies when female
students were harassed by male students, but Nabozny provided ample
evidence that the District did not enforce their policies as
applied to him.  The court found it hard to believe that had a
female student been the subject of a mock rape the school
administration would have responded "Boys will be boys."   The
court reversed summary judgment on the gender discrimination issue,
finding that Nabozny, a male, was treated differently from female
students who brought harassment complaints.

The district court never specifically addressed Nabozny's sexual
orientation discrimination claim.  It appears that the district
court's intention was to fully dispose of all of Nabozny's claims. 
The appeals court found that there can be little doubt that
homosexuals are an identifiable minority subject to discrimination
in our society.  In addition, the Wisconsin legislature
specifically recognized the need to enact laws to protect
homosexuals from harassment.  In analyzing this issue, Judge
Eschbach applied the rational relationship test, the lowest form of
scrutiny in a 14th Amendment case, but the court was unable to
garner any rational basis for permitting one student to assault
another student based on the victim's sexual orientation and
reversed the district court's ruling on the sexual orientation
discrimination issue.  In a footnote to part of the opinion
rejecting the defendants' attempt to rely on Bowers v. Hardwick to
sustain their position that Nabozny could not state an equal
protection claim, the court noted that the recent decision in Romer
v. Evans, 116 S.Ct. 1620 (1996), suggested that Bowers would be of
limited relevance in equal protection cases in the future. 
However, the court did not rely on Romer in rendering its decision,
because in a suit against public officials who have qualified
constitutional immunity, the issue is whether they would have known
at the time of the incident that their action might violate the
constitution, so Romer could not be applied retroactively to judge
the defendants' conduct in this case.

On Nabozny's due process arguments, the court cited <MD>J.O. v.
Alton Community School District 11, 909 F.2d 267 (7th Cir. 1990),
in which the 7th Circuit found that school administrators do not
have a special relationship with students and absent that special
relationship, a state actor has no duty to protect a potential
victim.  The court found that the school district did nothing to
exacerbate Nabozny's risk of harm from his fellow students, and
affirmed the district court on this issue.  Nabozny also argued
that defendants violated his right to due process by acting with
deliberate indifference in maintaining a policy of failing to
punish his assailants, thereby encouraging a harmful environment. 
The court found that since the harm suffered by Nabozny was at the
hands of his fellow students and not perpetrated by school
employees, there was no state action.  The district court's
decision was affirmed on this issue. 

The case is being remanded to the district court on the equal
protection gender and sexual orientation discrimination claims.  Of
course, we will carefully follow this matter and report any future
developments.  T.V.L. 

LESBIAN/GAY LEGAL NEWS 

Oregon Judge Rules That State Must Extend Benefits to Domestic
Partners of Its Employees

In the first such ruling on the merits by a court, Oregon Circuit
Court Judge Stephen L. Gallagher ruled August 8 that the state must
extend insurance benefits to the domestic partners of state
employees on the same basis that benefits are made available to
spouses of such employees.  Tanner v. Oregon Health Sciences
University, No. 9201-00369 (Cir.Ct., Multnomah Co.) [full text
published in BNA Daily Lab. Rep. No. 156, Aug. 13, 1996, at E-11]. 
Gallagher's decision was premised on the state's employment
discrimination law and a provision of the state constitution.

The case was brought by three lesbian couples.  One member of each
couple is an employee of Oregon Health Sciences University, a
state-operated school, and applied for group insurance coverage for
their partners.  Each of them was denied coverage for their
partners, appealed, and were denied on appeal by the State
Employees' Benefit Board.  The case was tried in February 1995, and
then just sat there as Judge Gallagher mulled over the issues.  On
May 29, 1996, the plaintiffs submitted a letter attaching a Westlaw
printout of the Supreme Court's decision in Romer v. Evans to
bolster their equal protection claim, but Gallagher did not purport
to premise his decision on the state constitution.

After noting that he had "read and re-read, studied and re-studied
all written materials submitted by counsel, and the amicus
memorandum of the American Civil Liberties Union of Oregon, Inc.,"
and "had undertaken independent legal research involving both
Federal and State jurisprudence," Gallagher stated the following
premise for his decision:

"It is beyond debate that invidious and virulent discrimination has
been and is directed toward and suffered by the lesbian and gay men
[sic] communities in this state, and elsewhere. So pernicious and
pervasive has this odious activity become that it is incumbent upon
the judiciary to scrutinize, carefully and thoroughly, legislation
and administrative rules which ostensibly are facially balanced or
neutral, and hence appear to comport with constitutional mandates,
but which, in fact and in practical effect, merely disguise the
very discriminatory practices constitutional considerations
proscribe. Constitutional law may mandate, like it or not, that
customs change along with an evolving social order."

In his finding of facts, Gallagher noted the unequal costs for
medical coverage to which the plaintiffs and their partners were
subjected, and described their relationships as follows:  "At all
times relevant hereto, each of the three couples which filed this
action have each conducted themselves as members of a `family.' At
all times relevant hereto, each couple has enjoyed a long-term and
committed relationship identical to marriage, with the usual
indices of such a union. In all respects, each couple has
successfully maintained a loving, functional, cohesive family-type
relationship which they wish to maintain until parted by death. But
for state law prohibiting same sex marriages, each couple would
have at all times relevant hereto gladly and voluntarily exchanged
the vows of marriage between themselves to achieve that legal
status. Of this, the Court has no doubt."

Then Gallagher stated, without further explanation, that the
provisions limiting benefits to marital partners violate ORS
659.030(1)(b), which makes it unlawful for employers to
discriminate, inter alia, on the basis of the sex or marital status
of an employee, or the sex or marital status of "any other person
with whom the individual associates," and Article I, Section 20, of
the Oregon Constitution, which provides: "No law shall be passed
granting to any citizen or class of citizens privileges, or
immunities, which, upon the same terms, shall not equally belong to
all citizens."

In his order, Gallagher enjoins the state, the university, the
employees' benefits board, and the board of higher education from
continuing their practice of denying group life and group medical
and dental insurance coverage "to the domestic partners of its
homosexual employees when such employment-related benefits are
afforded to the spouses of its heterosexual employees," and defines
"domestic partner" as follows:

"For the purposes of this order, a `domestic partner' of a
homosexual employee shall be defined as someone of the same sex as
the employee, who shares a relationship with that employee which is
sufficiently similar to the relationship of the three couples in
this case to give that homosexual employee's partner an equal right
to being afforded employment-related benefits as the three domestic
partners in this case (pursuant to Article I, Section 20 of the
Oregon Constitution and/or ORS 659.030). To establish this
sufficient similarity of relationship, a truthful swearing by the
homosexual employee and his or her domestic partner which affirms
the following circumstances shall be sufficient. (a) They are not
related by blood closer than would bar marriage in the State of
Oregon (first cousins or nearer); (b) Neither is legally married;
(c) They have continuously lived together as a family and shared a
close personal relationship, which is exclusive and loving, for an
extended period of time, and they intend to maintain that family
and that relationship with each other for the rest of their lives;
(d) They have joint financial accounts and have agreed to be
jointly responsible for each other's common welfare, including
basic living expenses; (e) They would be married to each other if
the law permitted them to marry in  Oregon; (f) They are the sole
domestic partner of each other and have no other domestic partner;
(g) They are both 18 years of age or over; and (h) They are each
homosexual."

Gallagher awarded costs and attorneys fees to the plaintiffs.  At
press time, the state had not announced whether it would appeal the
decision.  The plaintiffs were represented by attorney Carl G.
Kiss.  A.S.L.

9th Circuit Passes on Gay Batson Motion

Finding that the circumstances wouldn't give rise to a Batson issue
even if it were to find that sexual orientation is covered by that
doctrine regarding jury selection, a panel of the U.S. Court of
Appeals for the 9th Circuit held that the trial court did not err
in declining to question a juror about his sexual orientation in
Johnson v. Arb Campbell, 1996 WL 452992.

Todd Johnson sued Arb Campbell, a police officer, claiming Campbell
had used excessive force in arresting him under circumstances not
described in the court's opinion.  The suit was brought in federal
court under 42 U.S.C. sec. 1983.  During jury selection, Johnson's
lawyer, suspecting that one of the potential jurors was gay, raised
an objection to the judge when the defense attorney used a
peremptory challenge to remove him from the panel.  The juror's
responses to voir dire indicated he was a single man who lived in
West Hollywood, worked as a freelance screenwriter and television
production company employee, had no children, and had earned a
degree in English from UCLA.  Johnson's attorney objected that the
defense was trying to keep gay people off the jury, and asked the
court to examine the juror concerning his sexual orientation.  The
judge refused, and sustained the peremptory challenge.

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held
that a prosecutor could not use peremptory challenges to keep
persons of a particular race off a jury.  The holding was
subsequently expanded by the court to defense peremptories and sex
as well as race issues, but no court has yet applied Batson to a
situation where one party is trying to exclude gays from a jury. 
Writing for the 9th Circuit panel, Judge William C. Canby, Jr.,
found that this case really did not provide a situation raising
Batson issues, even if the court assumed for purposes of analysis
that Batson did apply to sexual orientation.  This is because Canby
found that "nothing in the record suggested that sexual orientation
of any of the parties was in issue, nor did Johnson claim that any
form of discrimination motivated the alleged excessive force upon
which his complaint was based."  Furthermore, the juror in question
was one of two members of the panel who had previously served on a
jury in a case involving similar claims, which provided a rational
basis for the defense attorney to want to keep him off this jury. 
"The presence of this obvious reason for the defense's peremptory
challenge, along with the absence of any showing that the juror's
sexual orientation was known to the defense or was the reason for
the challenge, is sufficient to convince us that Yagman [the
plaintiff's attorney] did not establish his prima facie case under
Batson."  A.S.L.

South Carolina Appeals Court Rules in Property Dispute Involving
Lesbian Couple

Holding that, with respect to certain real property, neither a
constructive trust nor an equitable lien existed in favor of one of
the partners (Roe) of a lesbian couple that separated after 13
years, the South Carolina Court of Appeals, in Doe v. Roe, 1996 WL
408197 (July 22) reversed (in a per curiam opinion) a judgment in
favor of that partner on her counterclaim in a partition action
brought by the other partner (Doe).

When they became lovers in 1979, Roe was 27 and Doe 21.  Roe was 
employed and owned a house and several automobiles.  Doe was
unemployed and had no significant assets.  Doe did not begin
contributing financially to the partnership until she became
employed in 1985.  They purchased and jointly titled two pieces of
real property, a rental property in 1985 and a residence in 1989. 
Roe paid the down payment and the mortgage payments on the rental 
property, while on the residential property Roe contributed about
80 percent of the expenses and Doe the remainder.  They separated
in 1992.

Doe commenced this action to partition the two parcels of real 
property, and Roe did not appeal the trial court judgment ordering
partition.  Roe did, though, assert equitable title to the real
property in her counterclaim.

The court held that no constructive trust arose over the real
property in Roe's favor.  A constructive trust arises from fraud,
bad faith, abuse of confidence, or violation of a fiduciary duty,
the court said, and the only evidence supporting a constructive
trust was Doe's repeated questions to Roe asking what she (Doe) was
going to get out of the relationship.  The query was not an unusual
one in a long-term relationship, the court commented, and there 
was no suggestion that Doe entered the relationship simply to
acquire property from Roe or left the relationship after securing
an interest in the property.  Nor was there evidence that Doe
abused a confidential relationship with Roe, the court continued,
while expressly declining to determine whether a same-sex
partnership could create a confidential relationship.  The court 
emphasized that Roe had taken the lead in purchasing both
properties, and it was Roe who possessed the superior business
acumen.

Finally, the court found no equitable lien on the properties in
favor of Roe, since such a lien arose only to secure a debt, and
there was no evidence that Doe was indebted to Roe.  R.M.

Three More Federal Judges Find Fault With Internet Censorship Law

In Shea v. Reno, a second three-judge federal district court, this
time in New York, found section 223(d) of the Communications
Decency Act [47 U.S.C. section 223(d)], prohibiting the electronic
transmission of "patently offensive" materials, likely to be
unconstitutional and issued a preliminary injunction precluding its
enforcement.  1996 WL 421439 (S.D.N.Y., July 29).  In so doing the
court agreed with the Philadelphia district court's holding in ACLU
v. Reno, 1996 L.G.L.N. 96, issued two months earlier.  Unlike the
Philadelphia decision, the court's opinion was not fractured: the
three judges signed a 
common opinion by Circuit Judge Jose Cabranes, holding the CDA
overbroad, although not vague.

The CDA was facially overbroad, the court held, because, in 
restricting all "patently offensive" online communications, it had
the effect of chilling communication by adults that was protected
under the First Amendment.  In an important analysis, the court
declined to embrace a relaxed First Amendment standard articulated
in the plurality opinion of a recent Supreme Court decision, Denver
Area Consortium v. F.C.C., 116 S.Ct. 2374 (June 28, 1996), whether
a challenged regulation "properly addressed an extremely important
problem, without imposing, in light of the relevant interests, an
unnecessarily great restriction on speech."  This standard was
inappropriate in considering the CDA, the court held, because
Denver Area Consortium involved cable television, which, unlike
online communications, was uniquely pervasive in homes and highly
accessible to children.  Accordingly, the traditional strict
scrutiny standard applied.

Assuming that the government had a compelling interest in
restricting minors' access to patently offensive communications,
the court posed the question as whether the CDA was narrowly
tailored to serve this interest without interfering with protected
communications.  Acknowledging the government's concession that the
CDA, aside from its two statutory defenses, failed to withstand
this scrutiny, the court assessed the effectiveness of those
defenses.

One defense, found in section 223(e)(5)(B), required the use of a 
verified credit card number or similar form of identification to
preclude minors' access to offensive materials, and the court
observed that this defense was effectively available only to some
fraction of the commercial content providers on the World Wide Web,
since (1) a credit card or similar requirement could be implemented
only on the Web, and (2) even among Web content providers, only
some could afford the costs of the implementation of such a
requirement.

The second defense, found in section 223(e)(5)(A), applied where a 
person, acting "in good faith," took "reasonable, effective, and
appropriate actions under the circumstances" to restrict minors'
access to offensive materials.  Determining, though, that there
were no feasible methods for precluding minors' access to most
online communications, the court emphasized that the statute did
not provide that the absence of any effective blocking methods
constituted a defense.

The court denied the government's request to uphold the CDA only as
applied to commercial content providers on the World Wide Web. 
There was no "wholly independent" portion of the act to save, the
court found, nor was there a legitimate narrowing construction of
the act to adopt.

As to vagueness, though, the court held that the CDA essentially 
codified the Federal Communication Commission's definition of 
"indecency", which the Supreme Court had sustained, in the
broadcasting context, in FCC v. Pacifica, 438 U.S. 726 (1978).  Had
that definition been vague, the court reasoned, the Supreme Court
would have said so.  R.M.

Federal Courts Remain Divided on Same-Sex Male Harassment Cases
Under Title VII of Federal Civil Rights Act

Federal courts continue to issue contradictory decisions on whether
male employees who are sexually harassed by supervisors and co-
workers of the same sex have a claim under Title VII of the Civil
Rights Act of 1964, which bans sex discrimination in the workplace. 
Federal courts have long held that female employees subjected to
unwanted sexual attention from male supervisors and co-workers, or
whose work environment is made unbearable due to sex-based
comments, may bring suit under this statute.

In contradictory decisions from circuit courts of appeals, the 8th
Circuit ruled in Quick v. Donaldson Company, Inc., 70 F.3d 1372
(July 29), that a male employee could maintain a sex discrimination
action under Title VII based on having been subjected to a practice
of "bagging" (i.e., rough crotch-grabbing) against his will by
other male employees.  Quick was also falsely labelled as
homosexual by other employees as part of a course of harassment. 
The court held that Quick's allegations were sufficient to
withstand dismissal, noting that there was no allegation by the
company that women were subjected to the same treatment, so Quick
could plausibly allege that his gender played a role in making him
a target for harassment.  The district court's dismissal of the
claim was reversed.

By contrast, the 4th Circuit ruled in Mayo v. Kiwest Corporation,
71 Fair Emp. Prac. Cases (BNA) 736, 1996 WL 460769 (Aug. 15) (not
officially published), that because plaintiff Mayo did not allege
that he and his male harassing supervisor were of different sexual
orientations, he could not maintain a Title VII cause of action for
sexual harassment.  Mayo had been discharged for refusing to sign
an employment contract that he believed to be illegal and unfair. 
When the company reinstated him, his supervisor allegedly initiated
a campaign of harassment calculated to get him to quit.  The
harassment consisted largely of verbal and physical conduct
treating Mayo as gay, such as fondling, name-calling, kissing, and
such comments as "you smell good enough to fuck," "blow me," "suck
me," and "lick my sack."  Sustaining the district court's dismissal
of the Title VII claim, the referred back to its earlier 1996
decision in McWilliams v. Fairfax County Bd. of Supervisors, 72
F.3d 1191, as to which a cert. petition (No. 95-1983, filed
6/10/96) is pending.  In McWilliams, the court reasoned that same-
sex harassment in the workplace would only violate Title VII if it
involved a homosexual harasser going after a heterosexual employee
of the same sex, because only in such a case would the court
believe that the harassment was motivated by the gender of the
victim.

Chief Judge Kovachevich, of the U.S. District Court for the Middle
District of Florida (Tampa), refused to dismiss a same-sex
harassment case on July 1.  In Marciano v. Kash N' Karry
Foodstores, Inc., 1996 WL 420879, the male plaintiff alleged that
his male supervisor created a hostile environment on the basis of
sex, exposing his genitals to Marciano, subjecting him to wolf
whistles and saying that Marciano had a "cute butt," and baiting
Marciano with comments such as "Suck it, Mark, you know you want
it" and "blow me."  Marciano alleged that these acts and comments
suggested that the supervisor, Cantlin, had homosexual tendencies,
and thus met the requirements of the 4th Circuit's McWilliams case,
because Marciano is heterosexual.  The employer argued that
actually Cantlin is heterosexual and was harassing Marciano because
a female acquaintance of Marciano refused to date Cantlin, and not
out of any motives of sexual interest in Marciano.  Finding that
the facts were controverted and that Marciano's allegations, if
true, could state a claim for sexual harassment, Kovachevich denied
motions for summary judgment by both sides.  Kovachevich commented:
"The fundamental policy of Title VII is to create an equal
employment work place where employees are not discriminated or
harassed solely because of their gender.  Sexual preference and
sexual orientation are incidental occurrences which this Court
finds irrelevant to hostile work environment cases."

Addressing a question of first impression within the 10th Circuit,
District Judge Babcock ruled in Gerd v. United Parcel Service,
Inc., 1996 WL 473605 (D.Colo., Aug. 19), that a claim for same-sex
harassment could be brought under Title VII.  Plaintiff Michael
Gerd alleged continuing comments and actions of a sexual nature
aimed at him by male managerial employees.  When Gerd complained to
management, he was told that since he was bigger than some of the
harassers, he should defend himself physically.  When Gerd
protested that he shouldn't have to do that on the job, he was told
that UPS was a trucking company "so such behavior was essentially
acceptable."  Judge Babcock, noting the recent 8th Circuit decision
in Quick discussed above, observed that a majority of district
courts that have dealt with such cases seem to have recognized a
cause of action for same-sex harassment where the plaintiff alleges
that he was singled out for such harassment due to his sex.  

Concluded Babcock: "If such conduct were directed at a female in
Gerd's position there would be a clear inference that the conduct
was motivated because of her sex.  Although the motive and
causation may be less evident in same-sex harassment actions, these
issues tend to be fact specific and should not be resolved under
Fed.R.Civ.P. 12.  Gerd has alleged sufficient facts to state a
claim that the conduct was directed at him because of his gender. 
Consequently, I conclude that he has stated a claim for relief for
sex discrimination under Title VII."

In a state case, the Ohio Court of Appeals, 3rd District, ruled in
Retterer v. Whirlpool Corporation, 1996 WL 429009 (July 5), that a
male employee had failed to state a claim for sexual harassment
based on a hostile environment theory.  In an opinion for the
court, Presiding Judge Hadley selectively cited federal cases
denying a cause of action under Title VII for same-sex harassment,
ignoring totally the mounting collection of cases taking a contrary
view.  Hadley also rejected a disability discrimination claim,
based on the plaintiff's allegations that AIDS was mentioned
several times in the course of harassing conduct against him.  * *
*  A labor arbitrator converted the discharges of two employees
guilty of same-sex harassment to suspensions.  Coca-Cola Bottling
Co., 106 Lab. Arb. (BNA) 776 (1996) (Borland, Arb.).  A male summer
employee at the company's warehouse was assaulted by two of the
company's regular employees.  One called him into an office where
the other one was waiting, the lights were turned off and the door
closed, and he was allegedly threatened with "sodomy," his pants
and underpants were "tugged at," and allegedly pulled down.  The
summer employee, who complained to his supervisor, quit a few days
later.  The company investigated the complaint and suspended, then
discharged, the perpetrators, who filed a grievance.  Arbitrator
Borland found that the grievants should be subjected to discipline,
but faulted the company, which apparently tolerated horseplay, even
of a "simulated sexual nature," more than the grievants.  Borland
also found the company failed to apply progressive discipline in
their cases, thus mitigating against sustaining the discharges.
A.S.L.

Federal Court Refuses to Dismiss Employment Discrimination Claim
Against N.Y. AIDS Institute

U.S. District Judge Peter Leisure has refused to dismiss a claim of
employment discrimination brought against New York State's AIDS
Institute by a heterosexual man.  O'Malley v. AIDS Institute, 1996
WL 447748 (S.D.N.Y. Aug. 7).  Roger O'Malley claimed that the
Institute was biased against heterosexual men, claiming that when
he was let go in a staff downsizing, three female employees whose
jobs were eliminated were all sent to other jobs in the agency.  He
also claimed that the Institute filled a lower level position for
which he would have been qualified with women and known homosexual
men.  Judge Leisure rejected the Institute's argument that O'Malley
failed to state a sex discrimination claim because he failed to
allege that the Institute refused to hire men as a class.  Leisure
did, however, dismiss O'Malley's claim of intentional infliction of
emotional distress, finding that the negative comments about
O'Malley's work described in the plaintiff's papers would not meet
the extraordinarily high threshold established by the New York
courts in considering such claims.  A.S.L.

Federal Court Allows Action for District Attorney's Alleged Anti-
Gay Discrimination to Proceed

U.S. District Judge Karlton ruled in Ortland v. County of Tehama,
1996 WL 480686 (E.D.Cal. Aug. 12), that Cal. Gov't Code sec.
815.3(a), which adopts precise rules for intentional tort actions
brought against state and local government officials, does not
apply retroactively to a suit based on events that predated its
enactment, thus allowing Leo Ortland, Jr., to proceed with his suit
against Tehama County based on claims of deliberate anti-gay
discrimination against him by District Attorney Dan Irving. 

Although the opinion by Judge Karlton is not particularly
enlightening about the underlying facts of the case, it appears
that Ortland sought assistance from county law enforcement
officials to deal with various crimes he claims were committed
against him by one John Charles Williams (also named as a co-
defendant), but that D.A. Irving refused assistance and told
Williams that Ortland's homosexuality justified commission of the
alleged crimes against Ortland.  Ortland sued for negligence,
negligent infliction of emotional distress, and a violation of his
civil rights, naming the county and Williams as defendants, but not
specifically naming Irving as a defendant.  The county moved to
dismiss the civil rights portion of the complaint, pointing to
recently enacted Cal. Govt. Code sec. 815(3)(a), which requires
that all intentional tort claims brought against the government
name as individual defendants the officials who are alleged to have
committed tortious acts, thus affording the court an opportunity to
determine whether the acts are covered by governmental immunity or
are outside the scope of official duties, subjecting the official
to personal liability.  

Karlton determined that the claim against the county was not a
statutory claim under the Unruh Civil Rights Act, as Ortland had
sought to conceptualize it, but rather a common law claim based on
the public policy articulated by the Unruh Act.  (The Act, Karlton
found, does not apply to government actions.)  Further, he found
that the public policy derived from the Unruh Act could only apply
to intentional discrimination, and thus the common law tort was an
intentional tort apparently covered by 815(3)(a).  However, taking
the analysis further, Karlton determined that 815(3)(a), as an
enactment affecting substantive rights and remedies, could not be
applied retroactively, and thus was not applicable to the case.

On another claim, Karlton found state precedents an uncertain
indicator of whether Ortland could base a claim directly on the
California Constitution's equal protection clause, but determined
that this issue need not be resolved since the public policy tort
claim would be allowed to proceed.  A.S.L.

Divorce Leads to Discharge of Gay Porn Star/Public School Teacher

Melanie Bruton, the wife of a public school physical education
teacher in Loudoun County, Virginia, learned from a friend that her
husband's picture appeared in an erotic magazine on an
advertisement for a pornographic video, Hot Day in L.A..  Mrs.
Bruton went to a video store, bought the video, and was surprised
to see her husband, under the name "Ty Fox," engaged in gay sex on
the small screen.  She filed for divorce.  When the court papers
were filed, the matter came to the attention of Jeffrey Bruton's
employer, and all hell broke loose in Loudoun County.  Two school
principals from the district then viewed the video in order to
determine that the star was, indeed, their beloved teacher and
boys' sports coach.  After several days of local media sensation,
Bruton/Fox quit his job and surrendered his Virginia teacher's
license rather than go through disciplinary and disaccreditation
proceedings.  If nothing else comes from this, at least two high
school principals in Virginia have now had their "introduction" to
gay porn!  Washington Blade, July 26.  There was no indication in
news reports what the principals thought about the quality of
Bruton's performance.  A.S.L.

Federal Court Awards Gay Prisoner $750,000 Damages in Sexual
Assaults by Prison Official

U.S. District Judge Spatt awarded Maurice J. Mathie, a prisoner
incarcerated for murder, $250,000 in compensatory damages and
$500,000 in punitive damages on charges of violation of Mathie's
constitutional rights by Roy Fries, now retired as Sergeant of
Security at the Suffolk County, N.Y., Correctional Facility. 
Mathie v. Fries, 1996 WL 447250 (E.D.N.Y., Aug. 5).  In a lengthy
opinion, Spatt reviews in detail the testimonial evidence and the
conclusion that Fries, self-described as bisexual, took advantage
of his position to induce Mathie, who had told Fries he was gay, to
have sex with Fries, culminating in an incident where Fries
handcuffed Mathie to some pipes in his office and engaged in anal
intercourse, causing physical injury to Mathie.  Spatt concluded
that Fries' actions violated Mathie's rights to due process of law. 
(At the time, Fries was in the jail as a pretrial detainee, and
thus the 8th Amendment does not apply to his treatment.)  

Rejecting Fries' claim of immunity from suit, Spatt found that "any
reasonable prison Director of Security knew that to try to force
unwanted and prohibited sexual acts on a powerless inmate is
objectively unreasonable and in violation of the inmate's rights." 
Spatt summarized the factual findings as follows:  "The sexual
abuse and sodomy perpetrated by the defendant, as Director of
Security of the prison, against the powerless inmate was applied
maliciously and sadistically in order to afford personal
gratification to Fries.  These malicious acts violated all
contemporary standards of decency.  Further, the Court finds that
these acts of sexual abuse were a competing producing cause of
physical and emotional injury."

In addition to anal injuries he sustained form the forced
intercourse, Mathie also suffered severe emotional injury as a
result of Fries' actions. Among other things, Spatt found as an
emotional injury that Mathie, "as a homosexual. . . became more
distrustful of men."  After reviewing damage awards in a variety of
settings, and noting that Suffolk County would be liable to
indemnify Fries for the damages in this case, Spatt concluded that
compensatory and punitive damages as specified above should be
awarded.  (Mathie subsequently pled guilty to a murder charge and
is presently incarcerated in a state prison on that charge.) 
A.S.L.

Georgia High Court Refuses Review in Custody Case

The Georgia Supreme Court let stand an Appeals Court decision that
allowed a gay father unsupervised visitation with his child.  In re
R.E.W., 1996 WL 403513 (Jul. 12).  (The Appeals Court decision is
reported at 220 Ga. App. 861, 471 S.E.2d 6, and is discussed at
1996 L/GLN 45.)  The court denied certiorari without a written
opinion, but Justice George Carley filed a written dissent.  Carley
would have allowed certiorari on this case of first impression in
Georgia, and would have affirmed the trial court's denial of
unsupervised visitation, out of deference to the trial court's
discretionary fact-finding concerning the child's best interests,
in light of the state's sodomy law which criminalized the father's
sex life, and based on cases from other jurisdictions holding that
it is not inappropriate to restrict custody and visitation with a
gay or lesbian parent.  D.W. 

Transsexual "Winner" in Custody Dispute

In an extraordinarily lengthy and detailed opinion setting out
factual findings concerning a complicated child custody proceeding,
Connecticut Superior Court Judge Dranginis has ordered that the two
children of a male-to-female transsexual live with her and her new
husband rather than with their mother during the school year, with
liberal weekend and vacation visitation rights for the mother.  M.
v. M.; U. v. U., 1996 WL 434302 (July 11).  

Mrs. M. was married first to Mr. U., with whom she had two
children, then to Mr. M., with whom she had two more children prior
to divorcing Mr. M., who now lives with his parents.  Mr. U.
underwent a sex-change operation, becoming Ms. U., then married Mr.
O'N.  In this proceeding, the court had to determine and custody
and visitation rights for this blended family, taking into account
the recommendations of court-appointed experts that the four
children, who had bonded together as a sibling group, should have
their sibling tie preserved.  The court concluded that Mrs. M., Mr.
M., and Mrs. U. O'N. were all competent parents, but that Mr. M.
and Mrs. U. O'N. (the former Mr. U.) were the preferable parents to
have custody of their respective children.  The court found that
the U. children had adjusted to their father's sex-change, now
referring to her as "Mommy" but suffered tension over the need to
keep the fact of the sex-change operation a secret.  The court
found no other adverse effect on the children, and made no comments
about any potential adverse effect to children of being raised by
a post-operative transsexual parent.  (Quite an enlightened change
from some other opinions we've seen in the past concerning
transsexual parents.)  The opinion is sometimes confusing to read,
as the court's references to Mrs. U.O'N. change pronoun genders
frequently.  The court appears quite respectful of Mrs. U.O'N. and
treats the sex-change and her current status in a matter-of-fact
way.  A.S.L.

Federal Court Rejects Challenge to Military Policy by Lesbian
Reservist

U.S. District Judge Kovachevich (M.D.Fla.) has denied a lesbian
Naval reservist's challenge to the military's policy of discharging
servicemembers who state that they are homosexual and that they
engage in homosexual conduct.  Hrynda v. U.S., 1996 WL 419870 (July
5).  Plaintiff Bonita Rose Hrynda thus remains discharged from her
former position at the Naval Air Reserve in Jacksonville.  She had
served for 14 months in the Naval Reserve, during which her
academic, military, and leadership performances ranged from
excellent to outstanding.  However, in March 1992, during an
interview by the Naval Investigative Service ("NIS") regarding her
alleged homosexuality, she admitted that she was a lesbian and
signed a statement admitting her lesbianism and that she was in a
sexual relationship.  

She received an honorable discharge due to her homosexuality in
1992 under the "old policy" (Department of Defense Directive
1332.14 -- now replaced with the "Don't Ask, Don't Tell" policy)
which required the separation of any enlisted servicemember found
to have engaged in "homosexual conduct," defined as "a homosexual
act, a statement by a service member that demonstrates a propensity
or intent to engage in homosexual acts, or a homosexual marriage or
attempted marriage."  Under the old policy's directives
("Regulations"), servicemembers could be discharged based on their
preservice, prior service, or current service conduct or
statements. 

Hrynda challenged the Regulations on four constitutional grounds as
violating: (1) her 5th Amendment right to equal protection; (2) her
First Amendment right of free speech and expression; (3) her First
and Fifth Amendment rights to expressive and intimate association;
and (4) her First and Fifth Amendments rights because they are
vague and overbroad.  Kovachevich's judgment on the pleadings was
a case of first impression for the court.  The decision noted the
traditional deference granted by the courts to the military;
unfortunately, this court then deferred completely. 

Hrynda first argued that the Regulations violate her rights to
Equal Protection.  Various circuit courts have held that the
standard of review for equal protection claims in the military
context is "rational basis."  Steffan v. Perry, 41 F.3d 677 (D.C.
Cir. 1994) (en banc); Meinhold v. U.S. Dep't of Defense, 34 F.3d
1469 (9th Cir. 1994).  The plaintiff asserted that the military's
distinguishing of homosexuals as a group serves no legitimate or
rational government or military interest, but is based solely on
prejudices and presumed prejudices of heterosexual service members
and civilians.  She further contended that the military ban on
homosexuals is irrational and cannot withstand even rational basis
review.  The defendant argued that its "rational basis" was the
need to promote the legitimate state interest of preventing
proscribed homosexual acts and of protecting unit cohesion within
the military.  

The court found this persuasive, ironically citing Romer v. Evans,
116 S.Ct. 1620, 1627 (1996), for the proposition that although the
Constitution promises that no person shall be denied equal
protection under the law, most legislation classifies for one
reason or another, and may result in disadvantage to various groups
or persons.  Such a legislative classification will be upheld if it
neither burdens a fundamental right nor targets a suspect class,
and if it bears a rational relation to some legitimate goal. 
Kovachevich's judgment found that the classification of the
Regulations does not impact on a fundamental right or a suspect
group, citing Woodward v. U.S., 871 F.2d 1068 (Fed. Cir. 1989),
cert. denied, 494 U.S. 1003 (1990), which held that unlike suspect
classes which exhibit immutable characteristics, "homosexuality is
primarily behavioral in nature."  The court then found that the
Regulations are rationally related to a legitimate state interest,
sidestepping the plaintiff's claims of prejudice.  In order for the
plaintiff to have prevailed, she would have had to demonstrate that
the government could not possibly have relied upon its stated
purpose for the classification.  This, the court held, she failed
to do.

In her argument, the plaintiff relied on the Meinhold decision, in
part because Meinhold was an enlisted member of the Navy under the
old policy who made a statement on television that he was gay, for
which he was discharged.  The district court in the Southern
District of California had found the Navy's ban to be based on
status, not conduct, and thus violative of Equal Protection.  The
9th Circuit upheld the ruling of the lower court as to the
unconstitutionality of discharging him solely based on a statement
of sexual orientation devoid of any concrete desire or intent to
act on his propensity.  However, the 9th Circuit also held that the
Navy's policy was constitutionally permissible to the extent it
relates to homosexual conduct.  In the instant case, since Hrynda
not only stated she is a lesbian but, in her NIS statement, said
that she had engaged in homosexual conduct previously, during the
present time, and probably would do so in the future as she was
involved in an ongoing sexual relationship, the court found that
she was discharged not because of her statements, but rather
because her NIS statement affirmed her past and present conduct. 
Thus, Kovachevich found that Meinhold would have permitted her
discharge without raising any questions of equal protection
violation.  

Hrynda also argued that the Regulations distinguish between the
speech and behavior permissible for heterosexuals and that
permissible for lesbians and gay men.  It does this by proscribing,
punishing, and chilling all public and private speech and
expressive behavior that would tend to identify persons as
homosexuals on the basis of speech content and viewpoint.  The
court was not persuaded by this argument. Relying on Wisconsin v.
Mitchell, 113 S.Ct. 2194 (1993), where the Supreme Court affirmed
the validity under the First Amendment of the "evidentiary use of
speech to establish the elements of a crime or to prove motive or
intent," the court found that the Navy's use of Hrynda's spoken and
written speech as evidence that she violated the Navy's ban on
homosexuality was not a violation of her First Amendment rights. 

The plaintiff also argued that her right to exercise intimate
associations is similarly burdened because the regs broadly punish
any associational activity that might identify her as a lesbian. 
Kovachevich first noted that she offered no legal support for this
claim, then trumpeting the holdings of Bowers v. Hardwick, 478 U.S.
186 (1986) (no intimate association right to engage in homosexual
conduct) and Woodward v. U.S., 871 F.2d at 1075 (the extension of
privacy rights to homosexual conduct has not taken place) to find
her argument unpersuasive.  Instead, the court agreed with the
defendant's outrageous argument that the old policy did not
prohibit servicemembers from association with other homosexuals, or
politically supporting the furtherance of gay rights either in the
civilian or military venue, since its only aim was to prevent
proscribed homosexual conduct and preserve unit cohesion.  Of
course, the court also found persuasive the defendant's argument
that the right to intimate association may be circumscribed in the
military context to a degree not permitted in civilian society
since the essence of military service is the "subordination of the
desires and interests of the individual to the needs of the
service," Goldman, 475 U.S. at 507.  It also noted that because it
found that the regs do not violate the plaintiff's First Amendment
rights, then they would not violate her right of free association,
since that right is derived from the First Amendment.  

The plaintiff's final argument was that it is impossible to know
what actions would subject her to sanctions because the regs are
"unintelligible, inconsistent, and fail to give adequate notice"
concerning the type of speech, conduct, or behavior that is
proscribed or might trigger an NIS investigation.  The court again
disagreed, finding that the Regulations "unambiguously" require
discharge of anyone who engages in homosexual acts or who
demonstrates a propensity to do so.  The court noted that the
plaintiff herself did not deny that her conduct fell within the
ambit of the policy.  Because her actions fell under the coverage
of the regs, she cannot challenge them on vagueness grounds. 

The judge also disagreed with the plaintiff's assertion that the
regs were overbroad, finding that they do not require discharge for
a statement affirming homosexuality but rather for the inference
that can logically be drawn from such a statement, which is that
the speaker either engaged or was likely to engage in proscribed
homosexual conduct.  The court found the scope of the Regulations
to be "extremely narrow" and to exclude from the military only
those whose conduct included homosexual activities and who, by
their statements, demonstrated a propensity to practice homosexual
conduct.  

The court thus found that the plaintiff was unable to establish any
set of facts that would entitle her to relief on any of her
challenges to the Regulations.  Judgment on the merits was rendered
on consideration of the pleadings alone and found for the
defendant.  J.H.

Federal Court Dismisses Charges Against College Stemming From
Investigation of Anti-Gay Phone Calls

The United States District Court for the Southern District of New
York ruled in Fraad-Wolff v. Vassar College, 1996 WL 399800 (July
12) that Vassar College had complied with its established
disciplinary procedures in investigating and adjudicating an
anti-gay harassment charge against the plaintiff. It is also found
that the plaintiff had not established the necessary criteria for
his claim against Vassar of intentional infliction of emotional 
distress.

In September 1993, John Reinish, a Vassar student, received two
messages on his answering machine, consisting of statements made by
three different callers, containing abusive language and threats of
physical violence against Reinish because of his homosexuality. 
Reinish reported the incident to Pamela Neimeth, the Chair of the
Harassment Committee.  Neimeth conducted an investigation, and
several students named the plaintiff, Fraad-Wolff, as one of the
callers.  Fraad-Wolff contends that Neimeth told several students
that she believed he was involved in the incident, while Neimeth
stated that she spoke about the plaintiff only with those students
who came forward and said that plaintiff had participated in the
calls.  

In October 1993, Faith Nichols, the Chair of the College
Regulations Panel informed the plaintiff that he had been charged
with harassment and that a formal hearing was scheduled for
November.  At the hearing the Panel was unable to reach a
conclusion regarding the charges brought against the plaintiff, and
decided it would only reopen the hearing if new evidence against
the plaintiff came to light.  By mid-November, the plaintiff had
withdrawn from Vassar because his "physical and mental exhaustion
prevented him from continuing his studies."

This case came before Senior District Judge Conner on a motion for
summary judgment by the defendant, Vassar College.  Fraad-Wolff
contended that Vassar's failure to follow procedures outlined in
the student handbook and in the Panel's rules in investigating and 
adjudicating a charge against him violated a contract between the
plaintiff and the defendant, the terms of which were set out in the
student handbook.  He also stated that Vassar denied him a fair and
reasonable disciplinary hearing under New York law, and that the
defendant had acted arbitrarily, capriciously, and in bad faith. 

Despite Fraad-Wolff's protestations, Judge Conner viewed all of
this as one cause of action. Vassar pointed out that all of the
cases brought against universities and colleges by students
challenging disciplinary procedures had been brought by students
who had been suspended or expelled.  Fraad-Wolff argued that he was
constructively expelled from Vassar, contending that the
investigation and hearing made it impossible for him to continue
his studies there.  The court recognized that this theory was
unique under New York law, pointed out that it would be making
"new" law for New York if it accepted the plaintiff's theory, and
thus found that there was no evidence brought forth by Fraad-Wolff
which showed that Vassar constructively expelled him. The plaintiff
also contended that Vassar failed to follow  established procedures
in investigating and adjudicating the charge against him, most
notably in that they did not preserve confidentiality during the
investigation, and failed to declare him innocent once the Panel
had found him not-guilty.  

The court quickly disposed of all of the plaintiff's charges by
simply reviewing the language of the student handbook and
determining that the plaintiff had not raised a question of
material fact sufficient to defeat a motion for summary judgment.
Fraad-Wolff also asserted a claim of intentional infliction of
emotional distress against Vassar.  Under New York law, the party
making this claim must prove: 1) conduct that goes beyond all 
possible bounds of decency; 2) intention to cause distress, or
knowledge that defendant's conduct would result in emotional
distress; 3) severe emotional distress; and 4) a causal link
between the defendant's conduct and plaintiff's distress.  The
court found that as a threshold matter the conduct in question did
not satisfy the first element of the standard.  Giving all
reasonable inferences to the plaintiff, the court found that no
reasonable jury could conclude that Vassar's conduct went beyond
all possible bounds of decency.  Thus Vassar was granted summary
judgment on this claim as well, and the complaint against the
College was dismissed.  P.T.

4th Circuit Rejects Enforcement Action Against Christian Action
Network for Anti-Gay TV Advertisement

During the 1992 presidential campaign, the Christian Action
Network, Inc., sponsored a television advertisement describing
positions taken by candidates Bill Clinton and Al Gore on gay
issues.  The announcer stated: "Bill Clinton's vision for a better
American includes: job quotas for homosexuals; giving homosexuals
special civil rights; allowing homosexuals in the armed forces.  Al
Gore supports homosexual couples adopting children and becoming
foster parents.  Is this your vision for a better America?  For
more information on traditional family values, contact the
Christian Action Network."  Similar messages were conveyed in
newspaper advertisements sponsored at the same time.  

The Federal Election Commission brought an enforcement action
against the Christian Action Network, charging a violation of 42
U.S.C. sec. 441b(a), which makes it unlawful for any corporation
"to make a contribution or expenditure in connection with any
election" for federal office; if corporations set up political
action committees to make such expenditures, they are subjected to
various reporting requirements under 42 U.S.C. sec. 434(c).  The
FEC alleged, in effect, that the advertisements were in opposition
to the Clinton/Gore campaign in violation of the statute.

The district court dismissed the complaint, and the U.S. Court of
Appeals for the 4th Circuit affirmed on August 2, Federal Election
Commission v. Christian Action Network, Inc., 1996 WL 431996
(unpublished disposition).  The court commented, per curiam:
"Because the advertisements at issue here did not expressly
advocate the election or defeat of Clinton, Gore, or any other
candidate, the district court granted CAN's motion to dismiss. . . 
Finding no error in the thorough opinion of the court below. . .,
and believing that it would be inappropriate for us, as a court, to
even inquire whether the identification of a candidate as pro
homosexual constitutes advocacy for, or against, that candidate, we
affirm on the reasoning of the district court."  A.S.L.

Federal Court Dismisses Discrimination Complaint Against Mental
Health Organization

Earnest A. Darden, an African-American heterosexual man, charged
that he had been removed from the board of the Alameda County
(California) Network of Mental Health Clients because he opposed
the allegedly largely white gay male composition of the board. 
Darden v. Alameda County Network, 1996 WL 440545 (N.D.Cal., July
26).  In dismissing Darden's amended complaint, District Judge
Patel found that Darden had failed to allege facts sufficient to
state a cause of action under Title VI of the Civil Rights Act of
1964 or for a constitutional violation.  The opinion contains
little analysis, and Darden apparently was representing himself pro
se.  He claimed that the board was pursuing a "Gay agenda" that ill
served the service population of the agency.  Judge Patel did
observe that, regarding the race discrimination claim under Title
VI, it appeared that Darden was actual alleging a combination of
sexual orientation and race discrimination, but had not alleged
facts from which one could conclude that the agency was engaging in
race discrimination as such.  As to the constitutional claims,
Darden tried to proceed on a conspiracy theory, but Judge Patel
found that the factual allegations necessary to support such a
claim had not been made.  A.S.L.

Kansas Sodomy Solicitation Challenge Rebuffed Again

A challenge to a Topeka, Kansas, ordinance banning "sexual
solicitation" to engage in homosexual conduct was rejected by the
Shawnee County District Court on July 23.  Max Movsovitz, a Topeka
artist, was arrested in 1995 for engaging an undercover police
officer in conversation that included an invitation to engage in
oral sex in private.  The conversation took place in a public park
while Movsovitz was sitting in his parked car.  The police had
apparently targeted the park for a "crackdown" on gay solicitation. 
Movsovitz claimed that the ordinance violates equal protection and
freedom of speech, because a solicitation for heterosexual contact
(including oral sex) is not prohibited.  

District Judge James Buchele affirmed the Topeka Municipal Court's
conviction of Movsovitz.  (The court had fined Movsovitz $100 and
ordered him to stay out of the park for two years, but the sentence
is stayed pending appeal.)  Buchele ruled that in the absence of
appellate authority to the contrary, he was obligated to uphold the
statute, finding that the city of Topeka "has a legitimate interest
in prohibiting solicitation of illegal sex acts in public places.
. .  Further, it is my ruling that the ordinance should be upheld
under either the rational basis test or heightened scrutiny test
(for judicial review) so long as sodomy remains a criminal act." 
As to the free speech argument, Buchele stated: "Speech which
advocates violating the law is not protected." People v. Movsovitz,
Topeka Capital-Journal, July 24.

Movsovitz has filed an appeal to the Kansas Court of Appeals,
represented by the ACLU Lesbian and Gay Rights Project.  It is
interesting to note that the fact situation here is similar to that
of the defendant in Commonwealth v. Wasson, 842 S.W.2d 487 (Ky.
1992), in which the Kentucky Supreme Court declared that state's
sodomy law unconstitutional, but also similar to that in
Christiansen v. State, 468 S.E.2d 188 (Ga. 1996), in which the
Georgia Supreme Court rejected a challenge to the law.  A.S.L.

Virginia Judge Modifies Bottoms Visitation Schedule; Retains
Restrictions on "Exposure" to Partner

Sharon Bottoms, the lesbian mother whose fight for custody of her
son Tyler ended unsuccessfully in the Virginia Supreme Court, was
back in court recently seeking an expansion of her visitation
rights.  Under the existing order, Bottoms could not bring Tyler to
her home during visitation.  Although Bottoms has ended any attempt
to obtain custody, she sought the right to have Tyler visit in her
home while her partner, April Wade, is present.  But Henrico
Circuit Judge Buford Parsons ruled August 20 that, although Bottoms
could bring Tyler to her home, Wade could not be present and could
not have any contact with Tyler.  Also, the existing order
authorizing visitation every Monday and Tuesday was changed to
permit visitation on alternate weekends, in order to accommodate
Tyler's school schedule.  Bottoms will also have visitation for
four days at Thanksgiving, two and a half days at Christmas, and
one week in the summer.  Tyler lives with his grandmother, Kay
Bottoms, who had opposed Sharon's custody when she learned that
Sharon was living in a lesbian relationship with Wade.  Richmond
Times-Dispatch, Aug. 22.  A.S.L.

Confessed Murderer Admits Homophobic Motive

Robert James Acremant, awaiting trial on charges of aggravated
murder in the deaths of Roxanne Ellis and Michelle Abdill, a
politically active lesbian couple, stated in an Aug. 8 letter to
his hometown newspaper that he decided to kill Ellis and Abdill,
who were partners in a property management business, when he
deduced they were lesbians while they were showing him an apartment
for rent.  Acremant had previously confessed to shooting the women,
but had stated that the shooting was part of a robbery that went
awry.  Acremant also claimed that he had been sexually abused by
his father as a child; Kenneth Acremant denied the charge.  Chicago
Tribune, Aug. 21.  A.S.L.

Domestic Partnership & Marriage Notes

Several major employers have announced extension of domestic
partnership benefits to employees, including American Express,
Intel, Fox Television, and the American Speech-Language-Hearing
Association.  American Express also announced July 15 that it would
take account of the "emerging gay and lesbian market" by
recognizing the existence of lesbian/gay family units in its
various services.  For example, Amex will providing cultural
sensitivity training to its employees on gay issues, target
advertising to the gay community, sponsor community events, and
where requested treat gay partners the same as spouses in terms of
joint accounts and statements.  

Frustrated that state legislation to ban same-sex marriages and
deny recognition to out-of-state same-sex marriages was stalled in
the legislature, Mississippi Governor Kirk Fordice issued an
Executive Order on Aug. 22, directing county clerks not to issue
marriage licenses to same-sex couples and directing the state
government agencies subject to his authority not to recognize same-
sex marriages contracted elsewhere.  The director of the state
chapter of the ACLU told reporters that the governor's action
violated the state constitution, which gives the legislature, not
the governor, the authority to determine the duties of county
clerks.  New York Times, Aug. 24.  

The Career Service Board in Denver, Colorado, has endorsed adding
"spousal equivalents" of city employees to those eligible for city-
paid medical and dental benefits.  Rocky Mountain News, Aug. 22. 
City councilmembers supporting the recommendation predicted that it
would win approval from the full council, making Denver the first
city in Colorado to offer such benefits to city workers.  

Santa Clara County, California, supervisors voted Aug. 14 to
establish a registration system for unmarried same-sex and
opposite-sex couples.  Although the registry would afford no
concrete benefits, the action immediately drew fire from
conservatives in the County, who indicated they would attempt to
organize an effort for repeal by referendum under the leadership of
the Santa Clara County Taxpayers' Association.  San Francisco
Chronicle, Aug. 14; San Francisco Examiner, Aug. 23.  A.S.L.

The California legislature spent considerable time over the summer
dealing with legislative proposals banning same-sex marriage.  One
measure passed the Assembly, but was amended in the Senate to
include, in effect, the domestic partnership bill that had been
passed by the legislature last year but vetoed by Governor Pete
Wilson.  The Senate approved the measure on a narrow vote.  The
House proponent, dropping support for the amended bill, instead
sought to attach a ban on same-sex marriage to another, unrelated
bill, which seemed unlikely to survive Senate scrutiny.  Thus, it
seemed possible that California may not legislate on this matter
during the current legislative session.  Sacramento Bee, Aug. 21. 
A.S.L.

Military Jury Acquits Major of Sodomy Charges

In a case that focused national media attention on way in which the
"don't ask, don't tell" military policy is being used, a military
jury at Lackland Air Force Base in San Antonio acquitted Maj. Debra
L. Meeks of sodomy charges on Aug. 16.  Maj. Meeks, who has not
made any public statement about her sexual orientation, was accused
by a civilian of having engaged in a lesbian relationship with her
over a two-year period and having threatened her with a gun.  Maj.
Meeks was charged both with sodomy and conduct unbecoming an
officer.  The charges were brought shortly before Meeks intended to
retire from the Air Force.  If convicted, she would have faced the
loss of her pension and substantial prison time. Meeks' lawyers
argued that she was being subjected to selective prosecution,
because the military sodomy law does not distinguish between
heterosexual and homosexual conduct and the military appears
unconcerned about consensual heterosexual sodomy involving service
members. Newsday, Aug. 13; New York Times, Aug. 17. A.S.L.

Cincinnati Bookstore Pleads to Lesser Charge in Obscenity Case

George Vanover and Gary Allgeier, proprietors of the Pink Pyramid
Bookstore in Cincinnati, decided to plead guilty to lesser charges
of attempted pandering, in exchange for the prosecution dropping
charges of pandering obscenity.  Judge David Davis of Hamilton
County, Ohio, Municipal Court, imposed a $500 fine.  The charges
were brought when an undercover police officer rented the video
Salo: 120 Days of Sodom, an internationally acclaimed art film by
Pasolini, which law enforcement officials in Cincinnati considered
to be obscene.  The defendants told the press that they agreed to
plead guilty to the reduced charge because it would not, in their
opinion, constitute an admission that the work was obscene. 
Cincinnati Post, Aug. 3.  A.S.L.

Oregon Court Refuses to Order Newspaper to Print Wedding
Announcements for Same-Sex Couples

Asserting that "courts and legislatures cannot tell newspapers what
to print," Multnomah County, Oregon, District Judge Joe D. Bailey
ruled Aug. 5 against a suit brought by Sandra Linebarier and
Charlene Morris against The Oregonian, which refused to publish
their wedding announcement.  Portland has an ordinance forbidding
sexual orientation discrimination and sex discrimination, but
Bailey decided that he lacked authority to order the newspaper to
publish the notice.  "There is a rational basis for choosing to
have `wedding' mean `the marriage ceremony of persons of opposite
sexes," wrote Bailey.  Oregonian, Aug. 6.  A.S.L.

Federal Bill Might Protect Gays in Employment Cases

A first-term Republican Congressman, Rep. Brian P. Bilbray of
California, has proposed a bill called the Workplace Fairness Act
of 1996, H.R. 3784 (July 11, 1996).  This bill would change the
focus of federal employment discrimination law from group
characteristics to individual qualifications by prohibiting
discrimination in employment or employment opportunity "on any
basis other than an employee's individual merit," according to Mr.
Bilbray's statement introducing the bill.  142 Cong. Rec. E1271-01
(7/12/96).  

Section 2, the operative portion of the bill, provides: "A covered
entity shall not subject an individual to different standards or
treatment on any basis other than factors pertaining to job
performance in connection with employment or employment
opportunities, or beginning on the 91st day of employment following
hire or rehire, the compensation, terms, conditions, or privileges
of employment."

Section 14(8) lists the "factors pertaining to job performance"
that may be the basis for differential treatment.  Some are
obvious, such as employment history and referrals, education,
conflicts of interest, and observance of bona fide seniority
systems.  Others might prove problematic for lesbian and gay
employees.  These include "ability to work well with others (co-
operation and teamwork)" and "insubordination."  The former sounds
dangerously like the military's "unit cohesion" justification for
excluding openly gay members.

The bill exempts religious organizations, including schools and
colleges wholly owned by religious organizations or operated for
religious purposes, but covers the for-profit commercial activities
of businesses owned by religious organizations.

A spokesperson for Bilbray, questioned by the Washington Blade
(July 19), stated that Bilbray believes his bill would protect
lesbian, gay, bisexual and transgendered people who are otherwise
qualified for a job from being discriminated against.  The proposed
bill would authorize the Equal Employment Opportunity Commission to
take complaints from any person who believed they were
discriminated against, and would provide the same mechanisms and
remedies as Title VII of the Civil Rights Act of 1964.  (It would
also protect federal and Congressional employees, using the
administrative bodies that now enforce non-discrimination
requirements for those employees.)  

In his introductory remarks, Rep. Bilbray said that his bill would
be preferable to the piecemeal addition of categories to Title VII,
but would not supplant the existing federal, state or local
protection; individuals could continue to file complaints of
discrimination on the basis of race, religion, sex, national
origin, age or disability under federal, state or local laws. 
Bilbray did not mention the Employment Non-Discrimination Act
(ENDA), a pending bill to ban sexual orientation discrimination by
employers, when he introduced his bill.  Bilbray's office indicated
there were six original co-sponsors for the bill, all Republicans,
including openly gay Rep. Steve Gunderson (R-Wis.) and Rep. Jim
Kolbe (R-Ariz.), who "came out" subsequent to Bilbray's statement. 


On its face, it seems likely that the bill would outlaw voluntary
affirmative action programs, although Bilbray was careful to make
no claims in that direction.  Court-ordered affirmative action as
a remedy under federal or state laws would presumably not be
affected. A.S.L.

Law & Society Notes

For the first time, the highest-ranking Congressional member of a
major party has become a co-sponsor of legislation to ban anti-gay
discrimination.  Richard Gephardt (D-Mo.), Democratic leader in the
House of Representatives, has agreed to be a co-sponsor of the
Employment Non-Discrimination Act, which would ban sexual
orientation discrimination in employment.  With other recent
additions to the list of co-sponsors, ENDA now has 136 in the House
(out of 218 needed for passage) and 31 in the Senate (out of 51
needed for passage but, as a practical matter, probably 61 needed
to bring it to a vote).  Some Senators have proposed adding ENDA to
the "Defense of Marriage Act" as a strategic move either to defeat
DOMA or get ENDA enacted.  Watch the Senate carefully when
legislators return from the August break for the nominating
conventions.

Gays are coming out all over. . .  In Oklahoma, Democratic party
leaders prevailed on Paul M. Barby, a prominent businessman who has
served on the State Board of Regents of Oklahoma Colleges, to
contest the 6th Congressional District seat against freshman
Republican Congressman Frank Lucas.  Barby wrote to the press and
Democratic leaders on June 26 to tell them that he is gay and
wanted them to know before they made a final decision to place him
on the ballot.  The political leaders had no problem about that, so
Barby is the candidate.  The incumbent is considered the front-
runner, and Barby's biggest political problem in gun-loving
Oklahoma is seen as his support for gun control legislation. * * *
In Arizona, U.S. Rep. Jim Kolbe, who voted in support of the
"Defense of Marriage Act," reacted to reports that The Advocate
would be discussing his homosexuality in a forthcoming article
about the vote by preempting this press "outing" and calling a
press conference to announce his homosexuality after having
privately briefed Congressional colleagues and his family (to whom
he was not formally out of the closet).  Kolbe, a moderate
Republican with a fairly good voting record on gay and AIDS issues,
was widely known to be gay in Washington political circles.  He
explained his vote on DOMA by asserting that each state should be
entitled to make its own decision on whether to recognize same-sex
marriages without being forced to recognize those from other
states. * * *  Kolbe's action came after a group of gay activists
published an advertisement in the Washington Blade calling on
closeted members of Congress to "come out."  Without naming names,
some of those who collaborated on the ad insisted that there are
further closeted members of the House and the Senate. * * * The
article about the Washington, D.C., closet in the Sept. 3 issue of
The Advocate also mentioned House of Representatives member Mark
Foley (R.-Fla.), who had voted in support of DOMA and was being
questioned about his sexual orientation by gay journalists.  Foley
answered questions by stating that in his opinion a member of
Congress's sexual orientation was "irrelevant." * * *  In other
election news involving gay candidates, Rep. Steve Gunderson, after
briefly toying with running a write-in campaign, announced that he
would stick by his original intention not to seek re-election, even
though some changes in the House would have put him in line to
chair the Agriculture Committee.  Gunderson and his domestic
partner have co-authored a memoir that appeared in bookstores in
August. 

The platform adopted by the Republican National Convention in
August calls for passage of the Defense of Marriage Act, opposes
military service by openly lesbian or gay people, and characterizes
laws prohibiting "sexual preference" discrimination as a
"distortion" of civil rights law.  Also, without mentioning Romer
v. Evans, the platform criticizes the Supreme Court for declaring
unconstitutional laws enacted in referenda.   The platform also
calls for "generous funding" for AIDS medical research.  The
platform adopted by the Democratic National Convention calls for
passage of the Employment Non-Discrimination Act while avoiding
taking a position on the hot issues of same-sex marriage or
military service by openly lesbian and gay people.

On July 22, Massachusetts Governor William Weld signed into law a
hate crimes measure that enhances penalties for anti-gay crimes,
including restitution of up to three times the actual damages
suffered by victims.  The measure also adds to the existing
Massachusetts law protection against hate crimes for persons with
disabilities, including HIV/AIDS.  During the signing ceremony,
Gov. Weld criticized the U.S. House of Representatives for its
recent vote approving the so-called Defense of Marriage Act.  Weld,
while admitting he is not a supporter of same-sex marriages,
indicated that he felt DOMA violates the Full Faith and Credit
clause of the Constitution.

The California Department of Social Services is holding public
hearings on a proposed regulation that would give preference to
traditional married heterosexual couples in adoptions of children. 
Ironically, courts in many parts of the state have become very
receptive to child adoption petitions from lesbian and gay adults,
but Governor Wilson directed the Department to adopt regulations
that may have the effect of the state recommending against allowing
gays to adopt.  Final comments on the proposed regulations were due
by September 5.  San Jose Mercury News, Aug. 21.  

A Congressional conference committee on the Defense Authorization
Bill for 1997 removed provisions approved by the House that would
have mandated the discharge of all lesbian and gay military
personnel and all military personnel who tested HIV+.  Washington
Post, Aug. 1.  Congressman Robert Dornan (R.-Cal.), principal
sponsor of these provisions and Chair of the pertinent House
subcommittee, was unusually excluded from the conference committee
by Speaker Newt Gingrich.  

On Aug. 8, New York Governor George Pataki signed into law a
measure that toughens enforcement for domestic violence offenses,
and expands the definition of domestic violence situations to
include "companions" as well as spouses and close relatives. 
Washington Blade, Aug. 16.  A.S.L.

Miscellaneous Litigation Notes

The N.Y. Appellate Division, 2nd Department, reversed a decision by
the King's County Surrogate which had denied an adoption petition
by a lesbian co-parent.  Matter of Christine G., 1996 WL 416184
(July 22).  In a typical scenario, the lesbian couple planned to
have a child together, conceived a child through donor
insemination, and after the child was born, the birth mother's
partner petitioned to adopt as a co-parent.  The Appellate Division
cited last year's decision by the New York Court of Appeals in
Matter of Dana, 86 N.Y.2d 651 (1995) (finding lesbian co-parent
adoption could be approved under N.Y. law), and reversed and
remanded for further proceedings without further explanation. 

A federal jury in Denver has awarded $261,730 in damages to Phillip
Thornton, who had sued Metropolitan State College of Denver
claiming that he was denied tenure because he protested a decision
by his lesbian department chair not to hire an applicant who had
reportedly made negative comments about homosexuals. The bulk of
the damage award was for "emotional distress." A hearing is set for
Oct. 18 by District Judge Alan Johnson on whether to order the
College to reinstate Thornton.  Rocky Mountain News, Aug. 24.
A.S.L.

International Notes

The parliament of New South Wales, Australia, has passed a bill
amending a variety of state laws to accommodate the needs of
transgender persons.  The bill amends the Anti-Discrimination Act
of 1977 to outlaw discrimination and vilification on the ground
that a person is "transgender," bringing it into conformity with
similar laws in South Australia and the Australian Capital
Territory.  The bill amends other acts to allow alteration of birth
certificates for postoperative transsexuals, amends the Wills
Probate and Administration Act to protect transgender persons from
being barred from taking under a will on the basis of their status,
and places amendments in the criminal code to make clear that
transgender status does not remove protection against the
commission of certain sex crimes that are defined with respect to
the victim's gender.  

The United Kingdom's Immigration Appeals Adjudictor has overruled
the Home Office and found that compassionate grounds exist to waive
deportation of a 38-year-old Moroccan man who has lived with his
British partner for over ten years.  The Stonewall Immigration
Group (based in London) reported that they have now won sixteen
cases where immigration officials attempted to deport gay people
who were engaged in lengthy relationships with British subjects. 

The Belgian Official Journal published an announcement Aug. 14
stating that unemployment regulations have been amended to
recognize domestic partners on the same basis of spouses for
unemployment benefit entitlements.  The new rules will cover "an
(unrelated) person with whom the worker has established a de-facto
household and who is financially dependent on him or her,"
according to a report from Le Soir (Aug. 29) relayed via internet
by the International Lesbian and Gay Association.  A.S.L.

Professional Notes



Lavender Law V, a national conference on lesbian/gay law, will be
held in New Orleans Oct. 24-27 under the auspices of the National
Lesbian and Gay Law Association (NLGLA) at the Hotel Le Meridien.
For information about registration, hotel and travel arrangements,
contact the on-site chair, Regina Matthews, at 504-821-8428
(evening number) or ReginaM823@aol.com.

Oakland, California, attorney Frederick Hertz is writing a book
about the legal issues facing lesbian and gay couples in the
formation and dissolution of their relationships.  He is trying to
locate attorneys around the country who handle such matters in
order to interview them about the practical issues their clients
face and the methods used to resolve them.  Contact Hertz at 510-
451-4114 (office number) or fhertz@aol.com.

We regret to report the death of Marc A. Grinker, an openly gay
professor at Chicago-Kent College of Law who taught a course on
sexual orientation law as well as courses in appellate advocacy,
business organizations, and securities regulation.  Grinker, who
died from AIDS, had been named Professor of the Year this year by
the school's Student Bar Association.  Prior to embarking on his
teaching career, he had practiced at Davis, Polk & Wardwell in New
York City and taught at Hofstra University Law School.  Grinker was
39.  Chicago Tribune, July 25.  A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

11th Circuit Excludes Former Employees From ADA Coverage

The 11th Circuit Court of Appeals ruled that a former employee
whose post-employment health insurance was retroactively changed to
include a lifetime cap for AIDS-related benefits could not sue
under the Americans With Disabilities Act, opining that the ADA
does not protect former employees from discrimination.  Gonzales v.
Garner Food Services, Inc., 89 F.3d 1523 (11 Cir. Aug. 2).

Timothy Bourgeois worked at a Hardee's restaurant until 1991,
when the restaurant's parent corporation, Garner Food Services
(GFS), discovered he had AIDS and fired him to avoid paying future
medical claims. Following his termination, Bourgeois exercised his
right under COBRA to continue to subscribe to the company medical
plan, which provided coverage up to a $1 million lifetime limit. 
At least partly because of Bourgeois' continued participation, GFS
(later GFF) amended the plan to impose a $40,000 lifetime cap on
AIDS-related claims.  The ADA became effective in July 1992,
prohibiting employers from discriminating against a "qualified
individual with a disability" (QID).  The ADA defines a QID as "an
individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires." 
Covered disabilities include AIDS.  Before dying in September,
1992, Bourgeois exhausted the benefits available under the AIDS cap
and was denied $90,000 in excess claims.  Bourgeois' representative
sued, claiming the denial constituted a continuing violation of the
ADA.  The district court dismissed.

The 11th Circuit affirmed without deciding the continuing violation
issue, ruling instead that "Bourgeois does not satisfy the QID
requirement under the plain language of the ADA, because he neither
held nor desired to hold a position with GFF at or subsequent to
the time the alleged discriminatory conduct was committed.  Rather,
Bourgeois was a participant in the health benefit plan only by
virtue of his status as a former employee."  The EEOC, as Amicus
Curiae, argued the ADA language should be construed in accordance
with its interpretive guidelines and Title VII case law, citing
EEOC v. South Dakota Wheat Growers Ass'n, 683 F.Supp. 1302 (D.S.D.
1988), which ruled that Title VII applied to a health insurance
policy "provided after termination of employment, as a consequence
of such employment."  The 11th Circuit disagreed.  "The cardinal
rule of statutory construction is that the language of a statute
should be interpreted in accordance with its ordinary,
contemporary, and common meaning... [W]e find the plain language of
the ADA clearly demonstrates the intent of Congress to limit the
scope of the Act to only job applicants and current employees
capable of performing essential functions of available jobs.  We
find no clearly expressed legislative intent that former employees
such as Bourgeois should be covered under the Act as well."

Judge Anderson dissented, finding the plain meaning inconclusive
on this issue and noting evidence of a broader intent.   Judge
Anderson observed that the stated purpose of the statute is "to
provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities" (42 U.S.C. sec. 12101(b)(1)), and that the statute
was clearly a remedial statute enacted in the context
of a long line of court rulings "that remedial statutes are to be
construed liberally so as to promote the remedial purpose of the
statute."  Judge Anderson wrote, "It would be counter-intuitive,
and quite surprising, to suppose (as the majority nevertheless
does) that Congress intended to protect current employees' fringe
benefits, but intended to then abruptly terminate that protection
upon retirement or termination, at precisely the time that those
benefits are designed to materialize."  Judge Anderson also pointed
out that the legislative history and the statutory text, which
incorporate several Title VII provisions, indicate that the ADA
should be construed similarly to Title VII - i.e., to include
former employees like Bourgeois.  O.R.D. 

In an unrelated case involving a restaurant that discharged a
worker with AIDS, the U.S. Justice Department has announced
settlement of a lawsuit it brought against the Main Hangar
Restaurant in Decatur, Illinois.  The restaurant will pay $17,500
damages to the discharged employee, will educate its workers about
AIDS, and will add a non-discrimination policy with respect to AIDS
to its employee handbook.  The employee, who was hired Feb. 1,
1994, revealed his condition to his employer on Feb. 16 and was
discharged on Feb. 22.  According to the news report about this
case in BNA's Labor Law Reports - Employment Practices (Aug. 1, p.
3), the EEOC presently has over 1,000 HIV/AIDS discrimination
claims pending.  A.S.L.

US Immigration Service Deals With Asylum for PWA's

In developments over the past year only recently reported to the
immigration bar in the specialized publication Interpreter Releases
(July 8, 1996), the Immigration Service appears to be taking a
supportive position for HIV+ applicants for U.S. asylum from
countries where life is particularly difficult for PWA's.  

On October 31, 1995, an Immigration Judge (IJ) in New York issued
a decision granting asylum on the basis that the applicant, a
person infected with HIV, is a member of a "particular social
group" subject to persecution in his home country because of such
membership.  The applicant, a native and citizen of Ivory Coast &
Togo (Africa) who discovered his HIV+ status after suffering a
seizure while in the United States, was able to demonstrate to the
IJ's satisfaction that treatment for HIV-infection is scarce or
non-existent in Ivory Coast & Togo, that hospitals and families
shun HIV+ persons, and that they are generally isolated and
ostracized as a group.  The IJ granted asylum and withholding of
deportation, finding that the AIDS epidemic in Africa is a "serious
problem" and that the respondent "would in fact be persecuted
because of his membership in a social group."  Matter of
[Anonymous], A71 498 940 (IJ New York Oct. 31, 1995), summarized at
73 Interp. Rel. 901 (July 8, 1996).

Of perhaps wider significance, since individual IJ decisions have
no precedential value unless specifically designated as
precedential by direction of the Attorney General, is a memorandum
issued on February 16, 1996, by the General Counsel of the
Immigration Service, David A. Martin, directing that all cases
involving HIV+ claimants for relief from deportation should "be
handled in a humanitarian manner, consistent with our obligations
under international law and the INA.  Seropositive for HIV shall be
considered in requests for discretionary forms of relief from
deportation, and claims for asylum or withholding of deportation
based upon membership in a particular social group shall be handled
in accordance with the attached discussion on that subject,
prepared at the request of the White House."  The attachment
consists of a five paragraph response by the INS to a
recommendation from the President's Advisory Council on AIDS that
the President should direct the INS to treat people with AIDS as "a
social category protected under the asylum law."  The response
notes that INS's flexibility is limited by the statute under which
it operates, but then goes on to explain that in cases where it
could be shown that people with AIDS are subject to severe official
persecution by the government or "an entity the government cannot
or will not control" the INS could exercise its discretion to waive
the official exclusion of HIV+ people from immigrating to the U.S.
"for humanitarian purposes, to assure family unity, or when it is
in the public interest."

Thus, the GC's memorandum does not go so far as to recognize a
presumptive eligibility for asylum for HIV+ aliens who find
themselves in the United States, but does suggest that the Service
should be open and responsive to arguments in particular cases that
within a particular country HIV+ people may constitute a social
group subject to official or quasi-official persecution severe
enough to merit a waiver of deportation and grant of asylum.  The
memorandum and attachment are reproduced in full at 73 Interp. Rel.
909-910 (July 8, 1996). A.S.L.

9th Circuit Rejects Privacy Argument On HIV Test Record

In Roe v. Sherry, 1996 WL 426855 (9th Cir., July 31), the U.S.
Ninth Circuit Court of Appeals dismissed a Bivens action involving
the disclosure of the plaintiff's HIV test results.  The court
found that no constitutional violation occurred  under the Fourth
and Fifth Amendments when Naval officers searched,  seized and
disclosed the plaintiff's test results.                

The plaintiff, Robert "Roe" (apparently a civilian), and U.S. Petty
Navy Officer Michael Healy engaged in unprotected sexual relations. 
Prior to these relations, Healy had falsely represented to Roe that
he was HIV-. In fact, Healy had tested positive for HIV and was
under a military order not to engage in unprotected sex and to
inform any potential  partner of his HIV status.  After Roe learned
that Healy was HIV+, he contacted Healy's commanding officer and
reported Healy's misconduct.  Special Agent Sherry investigated;
Roe provided her with correspondence between himself and Healy, and
showed her a videotape of himself and Healy engaging in sexual
relations.  Roe represented to Sherry that he was HIV-.  As the
Navy was going to pursue criminal charges against Healy, Sherry
obtained a search warrant of Roe's apartment.  Sherry found a test
report in Roe's bedroom showing that he was HIV+, and against Roe's
protests, she seized the report.  The Navy decided  not to pursue
criminal charges against Healy, and he was administratively
discharged.  

Roe brought a Bivens action against Sherry and the other officer
who executed the search warrant.  He argued that the search and   
seizure of his HIV report violated his rights under the Fourth
Amendment, and the disclosure of the report violated his right to
privacy under the Fifth Amendment.  The officers contended that the
HIV report was in plain view while they were lawfully searching for
the letters and videotape, the items covered under the search
warrant.  Roe contends that the evidentiary value of the HIV report
was not readily apparent to the officers, a necessary qualification
for its seizure.  Evidence of a crime, in plain view, may be seized
during a lawful search even if the object is not listed in the
search warrant.  The court found that it was reasonable for the
officers to believe that Roe's HIV report was evidence of a crime. 
As Roe told Sherry that he was HIV- prior to engaging in sexual
relations with Healy, his HIV status would be relevant to determine
whether Healy had violated the military order for which he was
under investigation.  As the test results were positive, they could
prove evidence that Healy had not violated the order.   

The court also considered that had Roe been HIV negative, and Healy
infected him, the Navy might be able to prosecute Healy for
aggravated assault, as transmission of the virus would be likely 
to produce "death or grievous bodily harm."   And, the court
concluded, if Healy had communicated a fatal disease to Roe, the
Navy could charge Healy with even more serious crimes.  Thus Roe's
HIV status was a piece of evidence relevant to whether Healy had
violated a military order, and whether he had committed aggravated
assault or worse.  Thus it would have been immediately apparent to
the officers that Roe's HIV test results were relevant to the
investigation and could provide evidence of a crime.  The court
found that the seizure of the report was proper under the plain
view exception and that there was no Fourth Amendment violation. 

The court then considered whether the officers violated Roe's due
process right to privacy by searching, seizing and disclosing his
HIV test result.  It began by stating that "the privacy protection
afforded medical information is not absolute. Rather, it is a
conditional right which may be infringed upon a showing of a proper
government interest."  The court found quite simply that the Navy's
interest in collecting evidence of a serious crime and in
protecting the public clearly outweighed Roe's privacy interest in
his HIV test results.  The court concluded by stating that Roe's
results were not disclosed to anyone outside of the investigation,
and after the investigation concluded, all copies were returned to
Roe.  Thus no Fifth Amendment violation had occurred. P.T.

6th Circuit Rejects HIV Privacy Claim

In Doe v. Lockwood, 1996 WL 367046 (Jun. 27), the U.S. Court of
Appeals for the 6th Circuit upheld the dismissal of federal and
state claims brought by a man and his fiance after the man's HIV+
status was publicly disclosed.  In a per curiam decision, the court
held that the plaintiffs failed to state a claim that their
constitutional right of privacy was abridged when John Doe's
identity was first revealed in a police report and subsequently in
a newspaper article.

In August 1993, the couple were visited by an HIV test counselor
for the Ohio Department of Health.  He informed them that they had
been identified as having been exposed to HIV.  After this visit,
both John and Jane Doe tested HIV+.  The couple then received post-
test counseling and provided the counselor with the names of other
sexual partners so they could be notified.  Subsequently, the
counselor informed the local Deputy Health Commissioner that John
Doe had threatened to "infect unknowing female sexual partners." 
In September 1993, John Doe started serving a six month prison
sentence after being convicted for receiving stolen property. 
Because he continued to suffer HIV-related health problems, John
Doe requested that the sentencing court grant him medical leave so
that he could receive treatment outside of prison.  As a condition
for such leave, the court required that John Doe admit his
HIV-status in open court.

In December 1993, the local newspaper published a series of
articles describing the frustration of the local Deputy Health
Commissioner because the law prevented him from revealing John
Doe's identity.  At this time the local police filed a police
report pertaining to a domestic dispute involving a couple, neither
of whom were related to the plaintiffs.  The report stated that the
man had become upset because his girlfriend had a past sexual
relationship with John Doe.  Doe's actual name was disclosed in the
report.   On the following day, the local newspaper published an
article with the headline "AIDS carrier identified. . . ."  
The Does filed an action under 42 U.S.C. sec. 1983 in March 1984,
claiming that their procedural due process rights and substantive
due process rights to informational privacy had been violated by
persons acting under the color of the state law.

In its decision, the court asserted that in order to sustain a
claim that the defendants violated their constitutional right to
informational privacy, the plaintiffs must show that John Doe's
HIV-status was not a matter of public record.  Since John Doe had
revealed his HIV-status to the court in order to receive outside
medical treatment, the court reasoned that this information was in
the public realm.  The court rejected Doe's assertion that he was
forced to reveal this information, reasoning that he could have
received in-prison treatment without having to make an admission in
-court as to his HIV-status.  The court also stated that Doe had
the option to request that the court make a ruling based on a
sealed affidavit and medical records or he could have requested
that the information be kept confidential during the hearing. C.W.

3rd Circuit Remands Insurance Dispute for More Evidence

A divided panel of the U.S. Court of Appeals for the 3rd Circuit
has returned to the district court a dispute over whether the
liability insurance policy written by the General Star Indemnity
Company covers a tort claim against the insured gym by the estate
of a PWA who was barred from the gym under emotionally distressing
circumstances.  12th Street Gym, Inc. v. General Star Indemnity
Co., 1996 WL 489230 (Aug. 28).  Finding the disputed clause to be
ambiguous, the court remanded for the presentation of extrinsic
evidence to assist the district court in determining its meaning.

Irving Silverman, a person with AIDS who was a member of the gym,
approached the gym management with a suggestion of special rates
for people with AIDS.  After he submitted this proposal, a gym
employee told him he could not return to the gym without a note
from his doctor.  Silverman returned several days later with a
doctor's note stating he was fit to exercise.  After exercising,
Silverman nicked his finger on a gym locker and used a band-aid
given him by a gym employee, then showered and dressed in the
locker room.  As he was leaving, the proprietor of the gym
confronted him in the lobby, demanded to know whether he had AIDS,
yelled at him until he admitted he had AIDS, then, noticing the
bandage on his finger, shouted: "We don't want your kind in here. 
You're careless!  You could infect everybody!"  The proprietor told
Silverman never to return to the gym.

Silverman sued for violation of the Americans With Disabilities
Act, intentional and negligent infliction of emotional distress,
invasion of privacy, fraudulent misrepresentation, civil conspiracy
and defamation.  The gym turned to its liability insurer for
defense of the claim.  General Star, citing a provision of the
contract excluding coverage of any claims arising from sexually
transmitted diseases (known as the sexual transmitted disease
exclusion, or STDE), said it had no responsibility.  The gym then
filed this lawsuit seeking a determination of General Star's
liability under its insurance contract.  Pending outcome of this
suit, General Star provided the gym with representation in
Silverman's suit and forwarded the $35,000 that was necessary to
settle that underlying suit.

The STDE provides: "This insurance does not apply to `bodily
injury,' `property damage,' `personal injury,' `professional
liability' or `advertising injury' with respect to any claim, suit
or cause of action arising directly or indirectly out of instances,
occurrences or allegations involving sexually transmitted diseases,
including Acquired Immune Deficiency Syndrome (AIDS).  This
exclusion shall apply regardless of the legal form any claim may
take.  As an example, this insurance shall provide no coverage for
a claim alleging that any Insured was negligent or in breach of
contract by maintaining premises where the Insured knew, or should
have known, diseases might be sexually transmitted."

The district court found that the ADA claim was not covered under
the liability policy, but that the state law claims were covered as
"personal injury" claims and that the STDE did not apply.  The
district court judge opined that the STDE was concerned with claims
for transmission of STD's such as AIDS, which was not involved in
this case.

In an opinion for the majority of the panel, Judge Scirica held
that the STDE was ambiguous and that the trial judge should have
received extrinsic evidence to assist in construing it.  The only
evidence offered to the trial judge was an affidavit from General
Star's president asserting that the claim was not covered, without
any further information.  Scirica found that the STDE lent itself
to a variety of interpretations, and that the district court's
conclusion was only one of many that might be reached, and not even
necessarily the one most in accord with the language.

Dissenting, Judge Roth argued that the court should have reversed
the district court and held for the insurer.  Roth argued that any
claim arising from the existence of an STD was clearly within the
language of the exclusion, and that there was no basis for the
district court's finding that the STDE was intended to bar
liability solely for transmission claims.  Roth found the STDE
unambiguous on its face.  A.S.L.

2nd Circuit Orders New Hearing On Benefits Claim by PWA

Reversing a decision by the district court, the U.S. Court of
Appeals for the 2nd Circuit ruled in Pratts v. Chater, 1996 WL
455685 (May 14), that a Social Security Administration ALJ erred in
several crucial respects in determining that Edwind F. Pratts was
not eligible for disability benefits.  Pratts, an industrial
engineer and mechanic, tested HIV+ in 1988, began using AZT, and
suffered a variety of physical ailments, including significant
weight loss, headaches, dizziness, blurred vision, diarrhea,
sinusitis, nasal secretions and rashes.  He also suffered from
anemia and positional vertigo.  Nonetheless, the Social Security
Administration and its law judge concluded that he was not disabled
within the meaning of the statute, finding that he might still be
able to perform light work. 

In reviewing this determination, Senior Circuit Judge Oakes noted
that the law judge seemed to have made her decision based on an
incomplete record, with much documentation lacking and a portion of
the expert testimony missing from the transcript due to a recording
error.  In addition, the judge's findings seemed to contradict
clear entries in the medical record, and she had misplaced the
burden of proof on a crucial point; in light of Pratts' physical
symptoms as represented in the record, it was the burden of the
Commissioner of Social Security to show that Pratts was capable of
performing the range of light work necessary for him to be
employable, but the Commissioner had presented no evidence on this
point.  Oakes concluded that the judge's decision was not supported
by substantial evidence in the record, stating that remand was
appropriate because the court is "unable to fathom the ALJ's
rationale in relation to the evidence in the record."  A.S.L.

Federal Court Sanctions Attorney for Hiding Victim's HIV Status

U.S. District Judge Wolf (D. Mass.) has imposed a $15,000 penalty
on attorney Robert Griffith, Esq., for failing to disclose the HIV+
status of a victim of police brutality in a case where Griffith
represented the victim's estate.  Gonsalves v. City of New Bedford,
1996 WL 431838 (1996).

The jury found that in June 1990 "Morris Pina, Jr. was beaten in
his cell by employees of the New Bedford Police Department, denied
care for his serious medical needs and, as a result, died."  The
jury also found that a cover-up of these circumstances ensued,
making it impossible to pinpoint the individuals who were directly
responsible.  However, the jury found that the city was responsible
for $435,000 in damages to Pina's estate.  At the conclusion of
trial, Griffith filed a motion for over $800,000 in attorney's
fees.  Ultimately, the case was settled for $555,000 (damages and
fees inclusive).  However, the defendants moved to sanction
Griffith for his conduct in connection with the litigation.

It seems that about a year after Pina's death, when his sister,
Delores Gonsalves, executor, retained Griffith, the family informed
Griffith that they had unpaid medical bills from Dr. H. Ram
Chowdri, who was known in New Bedford as the local "AIDS doctor." 
Griffith wrote to Chowdri to get Pina's medical records, from which
he learned that Pina had been HIV+.  Thus, beginning in July 1991,
Griffith was aware that Pina had been HIV+, but he did not share
this information with the surviving members of Pina's family, and
throughout the pretrial process until early in 1996, Griffith
managed to keep this information from the defendants and the
plaintiffs.  As a result, interrogatory answers prepared by or
supervised by Griffith were inaccurate in responding to question
about the condition of Pina's health prior to his incarceration. 
Griffith even attempted to have longevity tables introduced that
pertained to normal expected lifespans, without disclosing to the
court or defendants that Pina was HIV+.  The information only came
to light when defendants' counsel began to question certain gaps in
the medical records they had obtained from St. Luke's Hospital in
New Bedford pursuant to subpoena.  (The Hospital, in compliance
with a state HIV confidentiality law, had redacted portions of the
records dealing with the HIV+ status of Pina in the records it
turned over to the defense; unredacted records were sent to
Griffith in 1991 because his request was accompanied by a release
signed by Pina's mother.)  This occurred shortly before trial, and
the court took steps to minimize disruption to the case.

Ruling on the sanctions motion, the court held that Griffith's
action constituted a deliberate violation of obligations imposed by
the discovery rules.   Judge Wolf ruled that Ms. Gonsalves, who had
actually signed the misleading interrogatory responses, was not
culpable for perjury, since Griffith had concealed the information
from Pina's family as well as the opposition.  Griffith had
suggested a sanction of $5,000, but Wolf declared that the
violation was serious and $5,000 was insufficient as a deterrent of
future misconduct, so imposed a $15,000 fine, to be paid out of
Griffith's fees in the case.  The court did not refer the matter to
the Board of Bar Overseers for state disciplinary proceedings
(although it observed that they could initiate their own action
upon publication of the court's opinion), because it felt that
Griffith's conduct in taking on a difficult case and exposing the
police cover-up through dogged litigation was itself a commendable
public service.  A.S.L.

Products Liability Suit Against Factor VIII Manufacturers Fails to
Survive Plaintiff's Death

In an unofficially reported decision, the 9th Circuit U.S. Court of
Appeals recently upheld dismissal of a products liability action
involving alleged HIV contamination of a blood product used by
hemophiliacs because, under Idaho common law, the death of
plaintiff John Doe rendered the case moot.  Doe v. Cutter
Biological, Inc., 1996 WL 344615 (June 24).

Doe brought the action in the U.S. District Court in Idaho in
October 1992, alleging that the defendants, which included Miles
Laboratories and Armour Pharmaceutical Corporation (which produce,
market, and sell a powdered blood product called Factor VIII) 
allowed an HIV-contaminated product to be sold on the market,
leading to his being infected.

The district court granted the defendants' motion for summary
judgment, stating that Doe had been unable to present a genuine
issue of material fact regarding which product contained HIV.  Doe
appealed but died during the pendency of the appeal.  The
defendants filed a joint motion to dismiss due to Doe's death. 
However, Doe's personal representative was granted the right to
substitute for Doe so that his action could continue.  The 9th
Circuit ruled on the viability of Doe's appeal in this decision,
finding that under Idaho law, tort causes of action abate upon the
pre-judgment death of the victim.  Thus, Doe's cause of action did
not survive his death.  Doe's personal representative attempted to
argue that Doe's claim should survive because the damages included
an injury which lessened the estate of the victim, i.e., the
existence of medical expenses.  The court, however, found that
Idaho case law established that medical expenses were of a personal
nature and termination of a decedent's tort cause of action
includes all consequential damages flowing from the tortious
conduct.  

The Court noted that although this suit cannot go forward, Doe's
representative could institute a wrongful death action.  The court
did not reach the merits of Doe's claims on appeal, which included
whether Idaho's Blood Shield Statute precludes causes of action
based upon strict liability and breach of implied warranty against
a Factor VIII manufacturer. J.H.

Federal Court Gives Preliminary Approval to Settlement of Claims
Against Clotting Products Manufacturers

U.S. District Judge John Grady (N.D.Ill.) gave preliminary approval
Aug. 14 to a proposed $640 million settlement of claims against
Bayer A.G., Baxter International, Armour Pharmaceutical, and Alpha
Therapeutic Corporation for allegedly selling HIV-tainted clotting
products to hemophiliacs between 1979 and 1985.  $600 million of
the proposed settlement would be paid to individual plaintiffs who
had joined the suit, while $40 million would go to compensate their
attorneys.  Grady set a Nov. 25 hearing date for testimony from
plaintiffs who oppose the settlement as inadequate.  New York
Times, Aug. 15.  A.S.L.

Federal Court Sustains Housing Discrimination Suit

U.S. District Judge Crone denied a motion to dismiss in Ryan v.
Ramsey, 1996 WL 465325 (S.D. Texas, Aug. 1), a case challenging a
refusal of rental housing under the disability discrimination
provisions of the federal Fair Housing Act, 42 U.S.C. sec. 3604 et
seq.  

Patrick Ryan, a person with AIDS, applied to rent an apartment at
Oasis Apartments in Houston.  On the application form he indicated
that he was "retired" and that his income was based on Social
Security disability benefits.  Gayle Ramsey, one of the owners of
the apartment building, showed him the apartment on July 9, and
told him that she would get back to him within two days of
receiving the application.  When Ryan didn't hear from Ramsey
within two days, he called and left a message on her answering
machine.  Several days later, Ramsey called and told Ryan she would
not rent him the apartment.  

Ryan transcribed the conversation, which included the following
statement by Ramsey: "I think that I really want to rent this to
somebody who actually has a job.  I'm just very nervous about this
disability thing because I went through a lot of this with Johnny
and then, of course that turned out so disastrously -- not that
that's the kind of thing which you're likely to do -- that is --
take up drugs and booze and everything else and spend the rent
money, but nevertheless I'm just not comfortable with this and I
guess at this point I'd rather go ahead and run another ad and
continue to interview tenants, but I do appreciate your interest.
. .  I really want someone to have a job and predictable income --
but good luck to you Pat."

In moving to dismiss the claim of disability discrimination, Ramsey
claimed she had no knowledge that Ryan had AIDS, and was concerned
only with whether he had adequate income for the apartment. 
(Ultimately Ryan rented an apartment elsewhere with a higher rent.) 
Rejecting Ramsey's motion to dismiss, Judge Crone found that the
allegations of the complaint, accompanied by Ryan's transcript of
the telephone conversation, created a sufficient factual basis for
a contested FHA discrimination claim.  Ramsey's telephone comments
suggested that Ryan's status as a Social Security disability
recipient was a basis for turning down his application, so Ryan was
covered under the part of the disability definition covering
persons who are perceived to have a disability; that Ramsey did not
know the precise nature of Ryan's disability was irrelevant.  Also,
Ramsey's preference to rent to employed people as opposed to people
receiving disability benefits might constitute a policy with a
disparate impact on persons with disabilities, an alternative
theory of liability under the FHA.  Finally, Crone discounted a
letter introduced in support of the motion by an HIV+ tenant of
Ramsey, who asserted that Ramsey did not discriminate on the basis
of HIV-status, as being somewhat beside the point of Ryan's theory
of the case.  The motion to dismiss was denied "as there exist
outstanding issues of material fact under both the `discriminatory
intent' and the `discriminatory impact' models for proving housing
discrimination under the FHA."  A.S.L.

Disability Benefits Recipient Barred from ADA Suit

Is an individual who has affirmed that he is permanently and
totally disabled in order to qualify for disability insurance
benefits then precluded from claiming that his employer
discriminated against because of his disability?  Apparently so,
according to the 3rd Circuit Court of Appeals which upheld a
district court's grant of summary judgment in McNemar v. Disney
Store, Inc., 1996 WL 426805 (Jul. 31).  Invoking the doctrine of
judicial estoppel, Judge Aldisert rejected Leonard C. McNemar's
assertion of claims under the Americans with Disabilities Act
(ADA), New Jersey Law Against Discrimination (NJLAD) and Employee
Retirement Income Security Act (ERISA).

McNemar was employed as an assistant store manager by the Disney
Store in Cherry Hill, New Jersey.  On October 12, 1993, McNemar was
hospitalized with pneumocystis pneumonia and diagnosed as HIV+.  In
early November 1993, when questioned by his superior, McNemar
denied rumors that he had tested HIV+.  About one week later, in
violation of company policy, McNemar took two dollars from the
store's cash register and asked another employee to buy a pack of
cigarettes for him.  The employee informed Disney authorities of
this infraction and an investigation was commenced which led to
McNemar's suspension and subsequent discharge.  Immediately after
his suspension, McNemar divulged that he was HIV+.

After being fired, McNemar applied for and received New Jersey
state disability benefits, Social Security Disability (SSDI)
benefits, and a disability-based exemption from repayment of an
educational loan.  In order to receive these benefits, McNemar had
to sign sworn statements affirming that he was totally and
permanently disabled.  He certified that he became unable to work
in October 1993, the month prior to his dismissal.

In November 1994, McNemar sued Disney under ADA, ERISA and several
state claims alleging unlawful discrimination.  In June 1995, the
district court grant Disney's motion for summary judgment, holding
that McNemar was judicially estopped from bringing his ADA, ERISA,
and NJLAD suits because he had been certified as being totally and
permanently disabled and unable to work.  In addition, the district
court also dismissed McNemar's claims for invasion of privacy and
intentional infliction of emotional stress.

In its decision, the 3rd Circuit maintained that the district
court's application of judicial estoppel was appropriate because
McNemar's present position was inconsistent with a previous one and
that he was asserting either or both in bad faith.  The court
pointed out that McNemar and his physicians had previously
certified that he was permanently and totally disabled.  McNemar,
in order to claim relief under the ADA, stated that he is "a
qualified person with a disability who, with or without reasonable
accommodation, can perform the essential functions of the job." 
The Court of Appeals stated that in maintaining these two
positions, McNemar was "speak[ing] out of both sides of [his]
mouth."
  
The court further held that the district court properly granted the
defendant's motion for summary judgment on the claims of invasion
of privacy and intentional infliction of emotional stress because
McNemar failed to state a prima facie case for both of these
claims.  C.W. 

On the same date as the McNemar decision, the U.S. Court of Appeals
for the 9th Circuit issued a similar decision in Kennedy v.
Applause, Inc., 1996 WL 426853, 96 Cal. Daily Op. Serv. 5647 (July
31), a case involving chronic fatigue syndrome.  Ms. Kennedy had
filed sworn statements on state disability benefit claim forms and
on a Social Security claim form indicating that she was completely
disabled for work-related purposes, but sought to pursue an ADA
claim against her employer.  The Social Security administration
ultimately found she was not qualified for benefits, but
nonetheless the court of appeals sustained the district court's
grant of summary judgment, pointing out that Kennedy did not submit
any evidence to the district court that would contradict the
assertions on her claim forms.  Consequently, Judge Thompson wrote
for the court, she had failed to create a genuine issue of material
fact, i.e., raised a colorable claim that she was "qualified" to
work and thus protected under the ADA.  A.S.L.

N.C. Appeals Court Rejects ACT-UP Challenge to New Testing Policy

In a decision which the North Carolina Supreme Court has stayed
pending review (see Charlotte Observer, Aug. 2), the North Carolina
Court of Appeals in ACT-UP TRIANGLE v. Commission For Health
Services, 472 S.E.2d 605 (July 16), upheld a change by the State
Health Commission of an administrative rule governing HIV testing
by local health departments from anonymous testing to confidential
testing. The ruling came partly on substantive grounds, and
partially on procedural grounds.

The matter began in April 22, 1994, when the North Carolina chapter
of ACT-UP filed a petition to amend a proposed administrative
regulation with the state's Commission for Health Services.  The
regulation being challenged would have eliminated anonymous testing
for HIV by local health departments by September 1994.  ACT-UP's
proposed rule would have extended anonymous HIV testing
indefinitely and repealed the provision which would have terminated
anonymous testing.  The Commission rejected ACT-UP's proposed rule
on April 27. 

In June 1994, ACT-UP filed suit in Wake County Superior Court,
seeking to enjoin enforcement of the Commission's proposed
regulation, and to reverse the Commission's final determination
approving the move to confidential testing, on the provision that
the temporary rule would expire on June 15, 1995, if not replaced
by a permanent rule.  Through the enactment of the temporary rule,
ACT-UP partially obtained the relief sought, and was granted
attorneys' fees as a prevailing party under state law at a hearing
on December 12, 1994.

The commission voted to repeal the temporary regulation on Feb. 9,
1995, thereby eliminating anonymous testing at local health
departments, in accordance with its original rule change.  The
Commission's order stated that ACT-UP's petition was "denied," and
ACT-UP went back to the trial court, seeking to amend its original
complaint to include additional facts subsequent to the grant of
the original complaint. The trial court granted the petition to
amend and then, subsequently, denied the relief sought, affirming
the final Commission decision.  This decision was stayed by the
trial court pending appeal.

The Court of Appeals ruled that the Superior Court had no
jurisdiction to review the Commission's rulemaking authority,
because North Carolina law simply does not provide for judicial
review of administrative rulemaking.  The Court of Appeals cited a
North Carolina Supreme Court case which it acknowledged was handed
down after issuance of the decision being appealed from.  The Court
of Appeals also ruled that the trial court should not have allowed
amendment of the initial complaint, as this was a case where the
trial court had previously awarded attorneys' fees, which meant
that the matter had been finally disposed of. Under these
circumstances, amendment of the original complaint was
inappropriate.

The text of the order of the North Carolina Supreme Court staying
enforcement of the Court of Appeals decision is not available as of
press date.  S.K.

N.J. Appellate Division Refuses to Require Actual Exposure to HIV
for Emotional Distress Claim

Karen Williamson suffered a puncture wound from a lancet when, "as
an employee of a cleaning subcontractor, she attempted to remove
EKG stickers from a trash can in the defendants' medical offices." 
Although she has repeatedly tested HIV- over three and a half years
since the incident, she claims to have suffered severe emotional
distress over whether she might contract AIDS or hepatitis, and
sued the defendants, who concededly violated health and safety
regulations in the manner in which they disposed of used lancets. 
The N.J. Superior Court dismissed Williamson's claim, holding that
her failure to allege actual exposure to HIV or HBV was fatal to
the claim.  Reversing, a unanimous panel of the Appellate Division
ruled on July 2 that actual exposure was not required as a matter
of law.  Williamson v. Waldman, 677 A.2d 1179.

Explaining the court's decision, Judge Kestin wrote: "It cannot
validly be said, as a matter of law, in the light of common
knowledge, that a person who receives a puncture wound from medical
waste reacts unreasonably in suffering serious psychic injury from
contemplating the possibility of developing AIDS, even if only for
some period of time, until it is no longer reasonable, following a
series of negative tests, to apprehend that result.  Indeed, one
need not have actually acquired the HIV virus to be so affected by
such a fear for a period, especially since some time must pass
before an accurate test can be administered.  We know of no reason,
given existing circumstances and the realities of the times, as
well as the policies that underlie tort law doctrine in this state,
to require as a prerequisite to recovery for infliction of
emotional distress that the plaintiff first establish actual
exposure to the feared disease.  The cause of action is "based on
a reasonable concern that [the claimant] has an enhanced risk of
... disease . . .         Surely, the reaction of any claimant who
receives a puncture wound from medical waste will be subjective. 
It will vary in character and intensity with the individual.  But
the fear of contracting disease cannot be seen as excessive for
those reasons alone.  Some persons of greater suggestibility or
sensitivity may be more intensely affected than others without
being regarded as vessels so frail as to be, as a matter of law,
ineligible to make a tort claim."  The court held that a jury
question was created as to whether Ms. Williamson's reaction was
reasonable under the circumstances and remanded for trial.  A.S.L.

Maryland High Court Reverses HIV+ Rapist's Attempted Murder
Conviction 

Reversing lower court decisions, Maryland's highest court ruled
that a rapist's knowledge that he had HIV was not, by itself,
sufficient evidence to sustain an attempted murder conviction. 
Smallwood v. State of Maryland, 1996 WL 428978 (Md., Aug. 1) (see
also 1995 Law Notes at 126, col. 3).  The defendant continues to
serve a life sentence for attempted rape.

While incarcerated in 1991, appellant Smallwood was diagnosed HIV+
and said that he would practice safe sex in order to avoid
transmitting the virus.  In 1993, Smallwood and an accomplice
robbed a woman at gunpoint; Smallwood then sexually assaulted the
woman, causing "slight penetration," without a condom.  Convicted
in a bench trial, Smallwood received concurrent sentences for armed
robbery and attempted rape.  Based on his HIV status, Smallwood
also received concurrent sentences for attempted murder, assault
with intent to murder, and reckless endangerment.  Smallwood argued
that the evidence could not support a conviction of attempted
murder or assault with intent to murder.

The intermediate appeals court, per Justice Bishop, noted that its
role was to determine "whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt."   The court also observed that the crime of
attempt "consists of a specific intent to commit a particular
offense coupled with some overt act in furtherance of the intent
that goes beyond mere preparation," and that specific intent to
murder is established by "the specific intent to kill under
circumstances that would not legally justify the killing or
mitigate it to manslaughter;" the trier of fact may infer intent
from the circumstances.  The court stated that Smallwood knew he
could transmit a lethal virus by committing rape without a condom,
and ruled that the trier of fact could infer that he had intended
the foreseeable consequences of his actions.  The appeals court
thus upheld the convictions, despite a strong dissent from Justice
Bloom.

The Court of Appeals (Maryland's highest court) reversed. 
Distinguishing the cases on which the intermediate appeals court's
majority had relied, the Court of Appeals observed, as Justice
Bloom had done, that each of those cases involved defendants with
a clearly manifested intent to kill. See, e.g., State v. Haines,
545 N.E.2d 834 (Ind.Ct.App. 1989) (bloody assault accompanied by
statements that the defendant wanted to give the victim AIDS).  In
contrast, the risk of HIV transmission in this case, although real,
did not by itself rise to the level required to prove a specific
intent to kill, i.e., that transmission of HIV was probable. 
Absent that intent, the judgments for attempted murder and assault
with intent to murder had to be reversed.  O.R.D.

Arizona Appeals Court Rules on HIV-Testing Situations

In Arizona v. Superior Court, 1996 WL 408688 (July 23), the Arizona
Court of Appeals held that A.R.S. 8-241(N),  which permits HIV
testing of a juvenile adjudicated delinquent  upon the victim's
request, did not violate the 4th Amendment  prohibition against
unreasonable searches and seizures.  The juvenile was adjudicated
delinquent because he attempted anal  intercourse with a child. 
Since the statute required that a  juvenile court judge issue an
"order," it was  "constitutionally insignificant that the
authorizing document  is denominated a judicial `order', not a
`warrant'," said the court.

Nor was the statute infirm because it lacked a probable cause 
requirement.  The individualized suspicion component of probable 
cause analysis was "awkward in this context" because the  sexual
contact by the juvenile was proved beyond a reasonable  doubt.  The
court also found a "special need" under  Skinner v. Railway Labor
Executives' Assoc., 489 U.S. 602  (1989) and National Treasury
Employee's Union v. Von Raab,  489 U.S. 656 (1989), to dispense
with a showing of probable cause  that the juvenile was infected. 
Since the privacy invasion was  limited by the statute's
requirement that the test results be  disclosed only to the
juvenile, the victim, and their guardians,  the State's interest in
assisting the victim outweighed the  privacy interest.          

In a bit of somewhat tortured analysis, the court recognized that
the offender's test results would not necessarily be a reliable
indicator of the victim's status, but found that the statute bore
a close and substantial relationship to the state's interest in
helping victims.  The offender's results could "assist the victim
in taking potential exposure into account in matters `such as
changes in diet and exercise, as well as whether it is necessary to
take precautions in intimate relationships'."  The court deferred
to legislative prerogative on the obvious point that the better
practice would be for the victim to be tested.  Without analysis,
the court held that the statute was not overbroad because it was
not limited to cases of "significant exposure" and did not conflict
with A.R.S. 36-665(A)'s requirement that orders of  this nature
confine disclosure to those with a need for the  information.

In a related decision, In re Juvenile Action JV-511237  (July 23),
the same court held that a juvenile court may not order the HIV
testing of a juvenile adjudicated delinquent as a term of
probation.  Here, the 14-year-old juvenile was adjudicated
delinquent because he admitted he rubbed his 5-year-old brother's
penis while they were watching an X-rated video.  Upon the plain
reading of the statute, A.R.S. 8-241(N), such testing may be
conducted only upon the request of the victim or the victim's
guardian.  The victim's mother, who was also the offender's mother,
did not request the test.  The court refused to reach the question
whether the statute could be constitutionally applied where there
was no risk of HIV exposure.  Since the "extended record" showed
that the "juvenile made a broader admission to the juvenile
probation officer than he provided by way of factual basis in open
court, including acts that may have exposed the victim to his
bodily fluids," the issue was not framed for decision.  Finally,
the court found a term of probation prohibiting the juvenile from
"patronizing any place" where sexually explicit material could be
found was impermissibly vague.  That term would have prohibited the
juvenile from patronizing movie theaters or grocery stores where
such material was available. M.S.R.

Connecticut Supreme Court Rejects Prisoner Complaints on Phone-
Monitoring

The Connecticut Supreme Court has rejected an attempt by prisons to
end monitoring of nonprivileged inmate phone calls.  Washington v.
Meachum, 1996 WL 421413 (Aug. 6).  The plaintiffs had relied on the
state's HIV confidentiality statute as one basis for their
argument, claiming that monitoring would result in revealing
prisoners' HIV status against their will.  The court rejected their
argument that being subjected to monitoring of their telephone
calls could be construed to come within the prohibition on
"compelling" somebody to disclose their HIV status.  The court
quoted with approval the trial court's statement that "the only
`compulsion' to disclose . . . that the plaintiffs can identify is
an internal compulsion that compels them to disclose their
erstwhile [sic] confidential information to others over the
telephone."  Wrote Justice Callahan: "We cannot conclude that any
inmate has in any sense been compelled by department regulations
either to use a monitored telephone or to disclose any HIV-related
information over such a telephone line."  A.S.L.

AIDS Held Not an Occupational Hazard for Nurse's Aide

A panel of the N.Y. Appellate Division, 3rd Dep't., ruled in
Artiste v. Kingsbrook Jewish Medical Center, 1996 WL 410430 (July
18), that infection with HIV is not an occupational hazard
associated with a nurse's aide working in a nursing home, reversing
a decision by the state Workers Compensation Board.  Carolyn
Artiste, employed as a nurse's aide, suffered an accidental
needlestick injury on March 30, 1989, with a needle that was
previously used to administer insulin to an elderly diabetic
patient.  Artiste, whose ex-husband died from AIDS in 1985 (they
had divorced in 1976, and Artiste claimed to have had no sexual
contact with him since 1973), subsequently tested positive for HIV,
and filed a workers compensation claim.  An administrative judge,
and subsequently a panel of the Workers Compensation Board,
determined that Artiste had suffered a work-related compensable
injury due to occupational exposure to HIV, even though there was
no evidence that the elderly diabetic patient was HIV+.  Artiste
claimed that she had in the recent past suffered several
needlestick injuries while using hypodermics to draw urine from
incontinent patients.  In reversing the decision of the Workers
Compensation Board, the Appellate Division, in a decision by
Justice White, found that the Board's decision was not supported by
the evidence in the record "since the proof establishes that
contraction of AIDS is not an occupational disease within the
meaning of the Workers' Compensation Law insofar as nurse's aides
are concerned since the exposure to HIV via objects contaminated
with blood or blood products is not a generally recognized risk of
such occupation.  We further note that claimant's assertion that
urine is a transmitting agent for HIV, which the Board accepted,
lacks scientific support."  A.S.L.

Delaware Family Court Rejects Termination of Parental Rights of
HIV+ Mother

In a lengthy fact-laden opinion, Delaware Family Court Judge
Chapman denied a petition by the Division of Family Services to
terminate the parental rights of an HIV+ mother, Joyce Bryant, over
her son Ra'Shien.  DSCYF/DFS v. Bryant, 1996 WL 436439 (May 30). 
Bryant gave birth to Ra'Shien, who is also HIV+, was born while
Bryant was incarcerated pending sentencing after conviction for
robbery in the first degree and kidnapping in the second degree. 
She had a drug problem, as well as depression and suicide attempts,
and over the five years since Ra'Shien's birth has been in and out
of trouble as a result of probation violations and other matters. 
Ra'Shien was never allowed to be in his mother's custody, living
with two successive foster families, the first of which expressed
a desire to adopt him.  However, under DFS supervision contact was
maintained between Ra'Shien and his mother through supervised
visitation, and Bryant vigorously opposed DFS's attempts to have
her rights terminated so that Ra'Shien could be adopted.  The court
found that DFS had not adequately proven some of the crucial
elements to support its petition, and that some of the
unsatisfactory conditions specified in its petition had been
abated.  That both mother and child are HIV+ was not seen by the
court as justification to terminate parental rights.  A.S.L.

D.C. District Court Rules on Peace Corps' Discharge of Doctor

In a ruling focusing on complex questions of federal administrative
personnel law, U.S. District Judge Flannery (D.D.C.) has dismissed
constitutional claims against the Peace Corps brought by a Corpsman
who was dismissed eight months prior to the expiration of his
appointment, allegedly because of his unpopular views on AIDS
prevention policy, but has refused to dismiss the plaintiff's
claims under the Administrative Procedure Act.  Polsdorfer v.
Gearan, 1996 WL 451051 (Aug. 1).  

Dr. Polsdorfer began serving a 30-month term as a Peace Corps
medical officer in Zimbabwe in 1993.  Part of his responsibility
was to counsel Peace Corps personnel on AIDS prevention.  According
to the court's opinion, Polsdorfer's advice was as follows:
"Abstinence from sexual activity and mutual lifelong sexual
monogamy among partners is a 100% effective way to prevent
contracting AIDS.  The use of condoms is a distant second place as
a means of preventing the contracting of AIDS.  According to
`various researchers,' condoms have an unacceptable failure rate
ranging from 18 to 31%.  Having sex with local nationals, when the
sexually-active population of Zimbabwe is 25-50% HIV-positive, is
`stupid.' The sexual revolution is over; it committed suicide."

Polsdorfer's supervisor wrote a negative review, saying his "most
serious problem" was his "very rigid stance" on AIDS prevention,
and that he had "undermined" the use of condoms to prevent AIDS and
lost his credibility with the Peace Corps volunteers because of his
"unrealistic" approach.  Ultimately, Polsdorfer's assignment was
terminated eight months early.  He sued the Peace Corps, claiming
a free speech violation and violations of the APA.

In dismissing the free speech claim, Flannery found that Polsdorfer
could not bring a Bivens-type action against the Peace Corps
because, as a federal employee, his recourse was limited to
administrative procedures under the Civil Service Reform Act, the
comprehensive remedial system for federal employee grievances;
furthermore, Polsdorfer's claims were also subject to the Foreign
Service Act, which has its own administrative mechanisms. 
Polsdorfer had argued that his claim was outside either the CSRA or
the FSA because neither act provided a remedy for his
constitutional claims, but Flannery concluded that Polsdorfer was
out of luck, because the lack of a remedy was irrelevant to the
jurisdictional issue of the court's authority in a case where a
federal employee is a plaintiff.  

However, Flannery refused to dismiss the APA claim seeking
reinstatement and equitable relief.  Although the 30th anniversary
date of Polsdorfer's appointment has come and gone, Flannery opined
that a "more complete factual record" was needed to determine
whether the Peace Corps could find a comparable position elsewhere
for Polsdorfer.  Flannery also noted that the record lacked a copy
of Polsdorfer's appointment, which was necessary to determine his
rights under the APA.  A.S.L.

Tax On Viatical Payouts Repealed

The Health Insurance Portability and Accountability Act approved by
Congress and signed by President Clinton includes a provision (to
be codified as new sec. 101(g) of the tax code) repealing the
imposition of income tax on the money received by individuals who
sell the right to collect their life insurance proceeds to viatical
companies.   

Viatical companies normally offer to purchase the right to collect
proceeds only from individuals who are considered to be terminally
ill, but the new statute authorizes the exclusion from gross income
as long as the seller is either "terminally ill" or "chronically
ill." "Chronically ill" refers to a person who has been certified
by a licensed doctor with the previous 12 months as being unable to
perform at least two daily living activities without assistance, or
alternatively to a person whose severe cognitive impairment or
similar disability requires substantial supervision for the
person's own protection.  "Terminally ill" refers to a person who
has been certified by a doctor as having a condition that can
reasonably be expected to result in death within two years of the
certification.

The federal action will also remove state and local tax liability,
which normally follows upon federal tax liability.  The repeal
becomes effective January 1, 1997.  Experts in the field advised
PWA's against entering viatication agreements earlier than Jan. 1
if they can afford to put it off that long, pointing out that in
addition to the tax benefits of waiting, they may get higher
returns later because viatical settlement amounts are currently
depressed as a result of the optimistic treatment news from the
recent international AIDS conference in Vancouver.  (Note: As a
result of the recent news, some doctors may be unwilling to certify
that a PWA will likely die within two years if they are presently
responding well to new medications; however, PWA's whose physical
or mental abilities are significantly impaired might qualify under
the chronically ill category.)  Washington Blade, Aug. 9; Kess,
Sidney, "Changes in Relation to Medical Expenses," NYLJ, Aug. 19,
p. 3.  A.S.L.

AIDS Law & Society Notes

San Francisco Attorney Andrew Mead has withdrawn his AIDS
discrimination suit against the law firm of Heller Ehrman White &
McAuliffe.  According to a brief statement issued by the parties,
the dispute between Mead and Heller Ehrman was due to
"misunderstandings."  The Recorder, Aug. 23.  

President Bill Clinton made funding of the Ryan White Care Act a
key element of his goals for a second term during his address
accepting the Democratic nomination for re-election.  

Japanese prosecutors have arrested a prominent doctor who is blamed
for contributing to the failure to protect Japanese hemophiliacs
from exposure to HIV during the critical period in the mid-1980s
before the HIV-antibody test was licensed for screening blood.  For
a few years before the test was licenses, manufacturers of clotting
medication made from whole blood products in other countries had
been using heat treatment to try to kill the suspected viral agent. 
Japanese companies did not do so. New York Times, Aug. 30. A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Ball, Carlos A., The Making of a Transnational Capitalist Society:
The Court of Justice, Social Policy, and Individual Rights Under
the European Community's Legal Order, 37 Harv. Int'l L. Rev. 307
(Spring 1996) (includes discussion of lesbian/gay decisions by
European Court of Justice).

Becker, Susan J., Being Out and Fitting In, 46 J. Leg. Ed. 269
(June 1996).

Cate, Fred H., Cybersex: Regulating Sexually Explicit Expression on
the Internet, 14 Behavior Sciences & L. 145 (Spring 1996).

Conant, Michael, Federalism, the Mann Act, and the Imperative to
Decriminalize Prostitution, 5 Cornell J. L. & Pub. Pol. 99 (Winter
1996).

Connolly, Catherine, An Analysis of Judicial Opinions in Same-Sex
Visitation and Adoption Cases, 14 Behavioral Sciences & L. 187
(Spring 1996).

Duncan, Richard F., Homosexual Marriage and the Myth of Tolerance:
Is Cardinal O'Connor a "Homophobe"?, 10 Notre dame J. L. Ethics &
Pub. Pol. 587 (1996).

Dworkin, Ronald, Sex, Death, and the Courts, NY Review of Books,
August 8, 1996, pp. 44-50 (penetrating analysis of Romer v. Evans).

Gibson, Jeffrey G., To Love, Honor, and Build a Life: A Case for
Same-Gender Marriage, 23 Hum. Rts. No. 3, 22-24 (Summer 1996).

Guthiel, Thomas G., and David N. Weisstub, Sexuality in the Mental
Health System: Patients and Practitioners, 19 Int'l J. L. &
Psychiatry 183 (Spring 1996).

Harel, Alon, Gay Rights in Israel: A New Era?, 1 Int'l J. Discrim.
& L. 261 (1996).

Ihrig, Scott N., Sexual Orientation in Law School: Experiences of
Gay, Lesbian, and Bisexual Law Students, 14 L. & Inequality 555
(June 1996)(poignant recounting of student experiences). 

Kirk, Delaney J., and Maria M. Clapham, `Bagging' or `Goosing': How
the Courts Are Ruling in Same-Sex Sexual Harassment Claims, 47 Lab.
L. J. 403 (July 1996) (includes tables summarizing cases).

Mahoney, Kathleen E., David C. Baum Memorial Lecture: Hate Speech:
Affirmation or Contradiction of Freedom of Expression, 1996 U. Ill.
L. Rev. 789.

O'Keeffe, David, Judicial Protection of the Individual by the
European Court of Justice, 19 Fordham Int'l L. J. 901 (February
1996).

Petersen, Carole J., Equality as a Human Right: The Development of
Anti-Discrimination Law in Hong Kong, 34 Col. J. Transnational L.
335 (1996).

Polikoff, Nancy D., Am I My Client?: The Role Confusion of a Lawyer
Activist, 31 Harv. Civ. Rts. - Civ. Lib. L. Rev. 443 (Summer 1996).

Petersen, Maxine, Judith Stephens, Robert Dickey, and Wendy Lewis,
Transsexuals within the Prison System: An International Survey of
Correctional Services Policies, 14 Behavioral Sciences & L. 219
(Spring 1996).

Salomone, Rosemary C., Common Schools, Uncommon Values: Listening
to the Voices of Dissent, 14 Yale L. & Pol. Rev. 169 (1996).

Scoccia, Danny, Can Liberals Support a Ban on Violent Pornography?,
106 Ethics 776 (July 1996).

Sergent, Randolph Stuart, The "Hamlet" Fallacy: Computer Networks
and the Geographic Roots of Obscenity Regulation, 23 Hastings
Const. L. Q. 671 (Spring 1996).

Sullivan, Kathleen M., Parades, Public Squares & Voucher Payments:
Problems of Government Neutrality, 28 Conn. L. Rev. 243 (Winter
1996) (with responsive articles by Thomas Morawetz and Jeremy
Paul).

Talarico, Susette M., Bowers v. Hardwick Revisited, 59 Albany L.
Rev. 1751 (1996) (Essays: The Most Noteworthy State Constitutional
Decisions).

Walters, Suzanna Danuta, From Here to Queer: Radical Feminism,
Postmodernism, and the Lesbian Menace (Or, Why Can't a Woman Be
More Like a Fag?), 21 Signs 830 (Summer 1996).

Whitney, Sharon G., The State, Homosexual Practices, and Moral
Choices, 59 Albany L. Rev. 1757 (1996) (Essays: The Most Noteworthy
State Constitutional Decisions).

Student Notes & Comments: 

Bystander Emotional Distress: Missing an Opportunity to Strengthen
the Ties that Bind, 61 Brooklyn L. Rev. 1399 (1995).

Civil Rights -- Work Environment; Sexual Harassment: "Sexual
Harassment by a Supervisor of the Same Sex, is it Actionable? Equal
Employment Opportunity Comm'n v. Walden Books Co., 885 F. Supp.
1100 (M.D. Tenn. 1995), 72 N. Dak. L. Rev. 397 (1996).

Farabee, Lisa M., Marriage, Equal Protection, and the New Judicial
Federalism: The View from the States, 14 Yale L. & Pol. Rev. 237
(1996) (examines use of state constitutions to litigate for same-
sex marriage).

Ferenchak, Brett, Regulating Indecent Broadcasting: Setting Sail
From Safe Harbors or Sunk by the V-Chip?, 20 U. Richmond L. Rev.
831 (May 1996).

Holdowsky, Jonathan M., Out of the Ashes of the Cross: The Legacy
of R.A.V. v. City of St. Paul, 30 N. Eng. L. Rev. 1115 (Summer
1996).

Levay, Renee, Employment Law -- Equal Employment Opportunity
Commission v. Walden Book Co.: Does/Should Title VII Apply to Same-
Gender Sexual Harassment?, 26 U. Memphis L. Rev. 1601 (Summer
1996).

Metcalf, J. Todd, Obscenity Prosecutions in Cyberspace: The Miller
Test Cannot "Go Where No [Porn] Has Gone Before", 74 Wash. U. L. Q.
481 (Spring 1996).

Pride, Prejudice or Political Correctness?: An Analysis of Hurley
v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 29
Col. J. L. & Social Prob. 507 (Summer 1996).

Responses to the International Child Sex Tourism Trade, 19 Boston
Coll. Int'l & Comp. L. Rev. 397 (Summer 1996).

Shahan, Amy, Determining Whether Title VII Provides a Cause of
Action for Same-Sex Sexual Harassment, 48 Baylor L. Rev. 507
(1996).

Smith, Marcia B., Judith S. Kaye: Progressive Decisionmaking Rooted
in the Common Law, 59 Albany L. Rev. 1763 (1996) (discussion of NY
Chief Judge Kaye's jurisprudence, with focus on her opinions in
lesbian/gay family law cases).

Wiener, Scott D., Recent Development: Same-Sex Intimate and
Expression Association: The Pickering Balancing Test or Strict
Scrutiny? -- Shahar v. Bowers, 70 F.3d 1218 (11th Cir. 1995),
vacated for reh'g, 78 F.3d 499 (11th Cir. 1996) (en banc), 31
Harv.Civ.Rts.-Civ.Lib. L. Rev. 561 (Summer 1996).

Wolfman, Eric, The Criminalization of Hate Propaganda: A Clash of
Ideals Between Canada and the United States, 2 ILSA J. Int'l &
Comp. L. 543 (Winter 1996).

Book Reviews:

Felthous, Alan R., Review of Sex in America: A Definitive Survey,
by Robert T. Michael, John H. Gagnon, Edward O. Laumann, and Gina
Kolata, 23 J. Psych. & L. 585 (Winter 1995).

Luckenbill, David F., Review of The Times Square Hustler: Male
Prostitution in New York City, by McNamara, 20 Crim. Justice Rev.
201 (Autumn 1995).

Specially Noted:

Professor Susan J. Becker of Cleveland-Marshall College of Law has
written an essay about her experience of "coming out" as a law
professor in the June 1996 issue of the Journal of Legal Education,
published by the Association of American Law Schools.  She makes a
cogent argument for the importance of lesbian and gay professors
being "out" at their schools.  Susan J. Becker, Being Out and
Fitting In, 46 J. Leg. Ed. 269 (June 1996).

The Summer 1996 issue of the Harvard Civil Rights - Civil Liberties
Law Review features a symposium on "Political Lawyering."  Of
principal interest to Law Notes readers will be Nancy D. Polikoff's
article about representing lesbian/gay demonstrators.  See
Polikoff, Nancy D., Am I My Client?: The Role Confusion of a Lawyer
Activist, 31 Harv. Civ. Rts. - Civ. Lib. L. Rev. 443 (Summer 1996).

The Bar Association of San Francisco's Committee on Sexual
Orientation Issues has prepared a Model Domestic Partner Health
Benefits Policy which has been approved by the Association.  Copies
of the Model Policy, which also documents and supporting materials,
may be obtained from: Ruth N. Borenstein, Morrison & Foerster, 345
California St., San Francisco, CA 94104-2675.

Vol. 23, No. 3 of the Northern Kentucky Law Review is a symposium
edition on the topic Political Correctness in the 1990's and
Beyond.  It includes several discussions of hate speech issues, as
well as pornography and sexual harassment issues.

Vol. 14, No. 2 (Spring 1996) of the journal Behavioral Sciences &
the Law is dedicated to the subject of Sex and the Law, and
includes several articles on sexual orientation topics,
individually noted above.

The Harvard Educational Review has published a special issue on
Lesbian, Gay, Bisexual, and Transgender People and Education. 
Copies may be obtained for $12 plus $2.95 shipping and handling for
one copy, $1.00 shipping and handling for each additional copy,
from the Review by calling 1-800-513-0763 to place credit card
orders.  Checks can be mailed to Harvard Educational Review, Gutman
Library 349, 6 Appian Way, Cambridge, MA 02138.

AIDS & RELATED LEGAL ISSUES: 

Crowley, Leon T., Disabilities Act Plaintiffs Face Estoppel Issues,
NYLJ, Aug. 29, 1996, p. 3 (commentary on cases where ADA plaintiffs
are held "estopped" due to disability benefit claims).

Greenlaw, Paul, and John P. Kohl, Proving ADA Discrimination: The
Court's View, 47 Lab. L. J. 376 (June 1996).

Katner, David R., The Ethical Dilemma Awaiting Counsel Who
Represent Adolescents with HIV/AIDS: Criminal Law and Tort Suits
Pressure Counsel to Breach the Confidentiality of the Clients'
Medical Status, 70 Tulane L. Rev. 2311 (June 1996).

Mayer, Connie, HIV-Infected Prisoners: What Mental Health Services
Are Constitutionally Mandated?, 23 J. Psychiatry & L. 517 (Winter
1995).

Peloso, John F.X., and Stuart M. Sarnoff, Viatical Settlements:
Another Form of Unregulated Investment, NYLJ, Aug. 15, 1996, p. 3
(column on Securities and Commodities Litigation).

Siegel, Richard Lewis, AIDS and Human Rights, 19 Hum. Rts. Q. 612
(Aug. 1996).

Tamayo, Yvonne, Sex, Sectarians and Secularists: Condoms and the
Interests of Children, 29 Indiana L. Rev. 593 (1996).

Student Notes & Comments: 

Arbuckle, Anne N., The Condom Crisis: An Application of Feminist
Legal Theory to AIDS Prevention in African Women, 3 Indiana J.
Global Leg. Stud. 413 (Spring 1996).

Caruso, Jeffrey F., Sex Education and Condom Distribution: John,
Susan, Parents, and Schools, 10 Notre Dame J. L. Ethics & Pub. Pol.
663 (1996).

Jenkins, Rhonda K., Square Pegs, Round Holes: HIV and the Americans
With Disabilities Act, 20 S. Ill. U. L. J. 637 (Spring 1996) (uses
Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310 (E.D.Pa. 1994) to
argue that ADA should be amended explicitly to ban discrimination
based on HIV status).

Ozmer, Joseph W., II, Who's Raising the Kids: The Exclusion of
Parental Authority in Condom Distribution at Public Schools, 30
Georgia L. Rev. 887 (Spring 1996).

Perry, Miranda, Kids and Condoms: Parental Involvement in School
Condom-Distribution Programs, 63 U. Chi. L. Rev. 727 (Spring 1996).

Sitcoff, Jeremy A., Death With Dignity: AIDS and a Call for
Legislation Securing the Right to Assisted Suicide, 29 John
Marshall L. Rev. 677 (Spring 1996).

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. Please address correspondence to the
Editor or send by e-mail. A.S.L. * * * CORRECTION: Abby Rubenfeld,
the Nashville attorney who was lead counsel in the successful
Tennessee sodomy law challenge, informs us that the Hardwick
decision was not a factor in Tennessee's action in 1989 in
narrowing its sodomy law to apply only to same-sex conduct. 
Rather, the legislature was considering a total penal law reform,
during which the Sentencing Commission recommended deleting the
sodomy statute, but conservatives forced a compromise that retained
the ban on same-sex conduct.