LESBIAN/GAY LAW NOTES ISSN 8755-9021 October 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; 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 Pennsylvania Appeals Court Says Lesbian Co-Parent Has Standing to Contest Custody Reversing a family court decision, a unanimous 3-judge panel of the Pennsylvania Superior Court in Philadelphia ruled that a lesbian co-parent has standing to seek partial custody and visitation rights with the child born to her former partner. The decision in J.A.L. v. E.P.H., 1996 WL 539760 (September 19), announced in an opinion by Judge Phyllis W. Beck, expressly recognizes the nontraditional family structure as a basis for using the in loco parentis theory to confer standing on the co-parent. J.A.L. and E.P.H. began their relationship in 1980, moved into an apartment together in 1982, and purchased a home together in 1988. The women jointly agreed to conceive a child through alternative insemination and to raise the child together. Their first attempt, in 1989, ended in a miscarriage, but a second attempt resulted in the birth of G.H. to E.P.H. in June 1991. On the birth certificate, E.P.H. gave J.A.L.'s surname to the child as its middle name. The women executed a variety of legal documents to solidify their relationship with each other and the child, including a Nomination of Guardian in which E.P.H. named J.A.L. as G.H.'s guardian in the case of E.P.H.'s death or disability, a document authorizing J.A.L. to make medical decisions for G.H., and a will in which E.P.H. designated J.A.L. as G.H.'s guardian. Their attorney also drafted a co-parenting agreement, which J.A.L. decided not to execute after the attorney opined that it was not enforceable under Pennsylvania law. By ten months after G.H.'s birth, the relationship between the parties had broken down and E.P.H. moved out of the house, proclaiming that she would raise G.H. as a single mother. However, she allowed liberal visitation for J.A.L. at first. During the second year of their separation, E.P.H. cut the visitation down, and in April 1994, she advised J.A.L. that she wanted no further contact with her and no further visits between J.A.L. and G.H. J.A.L. sought to continue seeing the child, but her attempts to negotiate visitation were unsuccessful and she filed suit in February 1995, seeking partial custody and visitation rights. E.P.H. objected to the complaint on standing grounds and, after a hearing, the trial court dismissed the complaint. The Superior Court found that the trial court had erred in applying Pennsylvania precedent. Pennsylvania has recognized the in loco parentis theory for conferring standing on third parties (non-relatives) in custody cases. Judge Beck contended that the trial court's factual findings, and the hearing record, supported the conclusion that J.A.L. had such a relationship with G.H. Although traditional family law doctrine places a heavy burden on persons other than biological parents who are seeking custody against the wishes of a biological parent, Beck noted that a much less demanding standard is appropriate in considering the standing of a petitioner than is appropriate for the final determination on the merits. She commented: "In today's society, where increased mobility, changes in social mores and increased individual freedom have created a wide spectrum of arrangements filling the role of the traditional nuclear family, flexibility in the application of standing principles is required in order to adapt those principles to the interests of each particular child. We do not suggest abandonment of the rule that a petitioner for custody who is not biologically related to the child in question must prove that a parent-like relationship has been forged through the parties' conduct. However, we hold that the fact that the petitioner lived with the child and the natural parent in a family setting, whether a traditional family or a nontraditional one, and developed a relationship with the child as a result of the participation and acquiescence of the natural parent must be an important factor in determining whether the petitioner has standing. Additionally, where only limited custody rights are sought, the limited nature of the intrusion into the biological family must be considered in deciding whether standing has been made out." Turning to the facts, Judge Beck emphasized that the women had formed a family unit and had jointly agreed to conceive and raise the child, as objectively evidenced by the legal documents they had drafted at the time. "The facts as found by the trial court clearly indicate that E.P.H. and J.A.L. had lived together not merely as roommates or friends, but as a nontraditional family, for many years before the birth of the child. E.P.H.'s own testimony establishes that although she had long wished to have a child, she did not do so until J.A.L. agreed, and thereafter the parties acted together to make arrangements for the artificial inseminations. The inescapable conclusion to be drawn from this evidence is that in both E.P.H.'s and J.A.L.'s minds, the child was to be a member of their nontraditional family, the child of both of them and not merely the offspring of E.P.H. as a single parent. This intention is borne out by the documents executed by the parties before the child's birth and by E.P.H.'s conduct in giving the child J.A.L.'s surname as a middle name on the birth certificate. Clearly, the parties contemplated that J.A.L. would be in a parent-like relationship with the child and took some pains to formalize that relationship to the extent legally possible." The court pointed out that some of the facts emphasized by the trial court, such as E.P.H.'s declaration on moving out of the joint home with G.H. that she intended to raise G.H. as a single parent, or J.A.L.'s failure to attempt to adopt G.H., were essentially irrelevant to the issue whether J.A.L. had standing under the in loco parentis theory. (Pennsylvania courts have not yet approved second-parent adoption petitions at the appellate level.) The case was remanded for a determination by the family court whether it would be in the interest of G.H. to have a continued relationship with J.A.L. as partial custodian. Judges John T. Kelly, Jr., and John G. Brosky joined in the opinion, which by its factual emphasis enforces the importance of legal planning in the context of non-traditional families with children. With this decision, the Pennsylvania Superior Court is the third state appellate court (joining New Mexico, A.C. v. C.B., 829 P.2d 660 (1992), and Wisconsin, Custody of H.S.H.-K.: Holtzman v. Knott, 533 N.W.2d 419 (1995)) to break from the more orthodox approach of treating same-sex co-parents as legal "strangers" lacking standing after the break-up of a relationship, as exemplified by Alison D. v. Virginia M., 77 N.Y.2d 651 (N.Y. 1991), and Curiale v. Reagan, 222 Cal. App. 3d 1597 (1990). Unfortunately, New York and California are probably the states with the largest number of same- sex couples raising children. Perhaps the newer trend represented by the later decisions in New Mexico, Wisconsin, and now Pennsylvania may prove persuasive in subsequent attempts to reform the law in New York and California. A.S.L. LESBIAN/GAY LEGAL NEWS Florida Appeals Court Favors Murderer Over Lesbian Mother in Custody Dispute A Florida District Court of Appeal recently upheld the modification of a custody award taking custody of a minor child away from its natural mother, a lesbian, and granting custody to the father who had formerly served eight and one-half years in prison for the murder of his first wife. Ward v. Ward, 1996 WL 491692 (Fla.App. 1 Dist., Aug. 20). Mary Frank Ward appealed an order modifying a final judgment of dissolution by transferring custody of Mary's 11 year-old daughter, C.W., from Mary to John Andrew Ward, her former husband. C.W. had been living with her Mary Ward and her lesbian lover. Also, living in the same house was Mary's 26 year-old daughter and her lesbian lover. Mary Ward alleged in her appeal that the trial court had erroneously based their decision on her sexual orientation. The District Court of Appeal disagreed. The trial court found that C.W. displayed problematic behavior and language sufficient to show a detrimental impact on C.W. Evidence was introduced before the trial court by John Ward and his current wife, Rita, that C.W.'s problematic behavior exhibited itself in a number of ways while visiting the father's home. During one visit, C.W. asked Rita if Rita had ever "been in love with a woman." On another visit, in reference to a particular part of the female anatomy, C.W. told Rita "I bet my daddy F--s you there." On another occasion, when Rita had purchased a back massager, C.W. informed her that "You won't need my daddy if you have that, will you." Mary Ward testified that C.W. was not aware of the sexual nature of the relationship between Mary and her partner. She further testified that C.W. had not been exposed to any sexual conduct while in her home. The trial court questioned John Ward extensively about the murder of his first wife and found that he had paid his debt to society and had not been charged with a criminal offense since leaving prison. Based on Rita's testimony about C.W. and the court's findings about the murder committed by John, the court found it was in the best interests of C.W. for custody to be granted to her father, John Ward. The trial court made no mention of section 61.13(2)(b)2 of the Florida Statutes which creates a rebuttable presumption that shared parental responsibility by a parent convicted of a felony of the second degree or higher involving domestic violence will be detrimental to the child. The District Court of Appeal affirmed, finding that the trial court had not abused its discretion in awarding custody to John Ward. To prevail on appeal, Mary Ward would have to demonstrate that the trial court's decision cannot be supported even when all the evidence and all reasonable inferences from the evidence are viewed in the light most favorable to John Ward. Mary Ward found such a high standard of review impossible to reach. The Court of Appeal would not consider the application of Fla. Stat. 61.13(2)(b)2 since it was not raised below. Mary Ward has filed an appeal to the Florida Supreme Court. Mary Ward was represented on the appeal by the National Center for Lesbian Rights, with amicus assistance from the Lambda Legal Defense & Education Fund. The Family Research Council, an anti-gay group, filed an amicus brief in support of John Ward. T.V.L. Federal Government Adopts Defense of Marriage Act The U.S. Senate passed the Defense of Marriage Act (DOMA) on September 10 by a vote of 85-14. President Bill Clinton signed it just before midnight on September 21, making it Public Law 104-199. The measure defines marriage for all federal law purposes as the legal union of a man and a woman (to be codified at 1 U.S.C. sec. 7), and purports to relieve states of any obligation under the full faith and credit clause of the constitution to recognize same-sex marriages lawfully solemnized in other jurisdictions (to be codified at 28 U.S.C. sec. 1738C). Because an agreement had been worked out between Senate Democrats and Republicans to exclude all amendments, the text was the same as that approved by the House, obviating the need for a conference committee. (Part of the deal was that the Employment Non- Discrimination Act, forbidding sexual orientation discrimination by all employers otherwise subject to federal employment discrimination laws, would also come up for a vote without amendments.) Some Senators who normally vote in favor of lesbian/gay rights voted for DOMA, rationalizing their vote by insisting that because same-sex couples are not presently entitled to marry anywhere in the United States and are not presently treated as spouses under federal programs, DOMA does not take away or modify any existing rights. However, in the event that a state does authorize same-sex marriages, DOMA will have the inevitable effect of treating those marriages as if they did not exist for purposes of federal programs, and will give other states a basis for arguing that they do not have to recognize such marriages performed elsewhere. Thus, for example, a same-sex couple lawfully married in one state but traveling in another could find themselves treated as unrelated persons in the second state. The ACLU, denouncing the Senate's vote, vowed to bring suit challenging DOMA's constitutionality as soon as there is a married same-sex couple with standing to challenge the law. Transsexual rights groups reacted to the passage of DOMA with alarm, asserting that there are between 100 and 150 married couples in the U.S. whose marriages may not be rendered invalid for purposes of federal law because, having continued in marriage after a sex-reassignment procedure by one of the spouses, they may now be deemed to be "same-sex" marriages. Some transsexual lawyers proposed (with what appears to us an excess of confidence in the rationality of Congress when it comes to any issues concerning sexuality) introducing legislation to preserve the legal effect of such marriages. In any event, it seemed possible that the first legal challenge to DOMA might come not from a legally-married homosexual couple from Hawaii, but rather from a couple one of whose members has undergone sex-reassignment surgery and the attendant legal change of birth certificate and gender identity while preserving an existing marriage. A.S.L. Hawaii Trial Court Hears Arguments on Same-Sex Marriage On the same day that the Senate voted on DOMA, the trial began in Hawaii before Judge Kevin Chang in the case of Baehr v. Miike, in which the state has the burden to show that it has a compelling interest to refuse to grant marriage licenses to same-sex couples, and that the interest can only be satisfied by such a complete prohibition. The state's main argument, presented by Deputy Attorney General Rick Eichor, was that its compelling interest in encouraging procreation and the rearing of children by traditionally married opposite-sex couples justified its refusal to let same-sex couples marry. The logic of this argument is difficult to discern, since same-sex couples are busily rearing children in increasing numbers, and a significant portion of the children born in Hawaii and elsewhere are being raised by single parents; continuing the ban on same-sex marriages will not have any discernible effect on these phenomena. Eichor presented four expert witnesses, none of whom appeared to have any special expertise based on original research on the issue of child development in households headed by same-sex couples. (Indeed, since there are no reputable studies showing that same-sex couples make poor parents, these defense experts spent their time refuting published studies rather than relying on them, which is the more normal course of expert testimony on psychological issues.) While each of the experts testified that opposite-sex couples make the ideal parents, each of them conceded on cross- examination that same-sex couples can also do an adequate job of raising children, and none of them testified that the state should ban lesbians and gay men from having custody of their children. The challengers of the Hawaii marriage statute, represented by local attorney Dan Foley and the Lambda Legal Defense Fund attorney Evan Wolfson, presented their own expert witnesses who, by contrast with the defense experts, all had performed original research seeking to evaluate the impact on children of being raised by same- sex couples. While each of these experts testified on cross- examination that children raised by same-sex couples might experience particular stress during their childhood, they all testified that the children deal with the stress and generally turn out just fine. More significantly, the plaintiffs' experts testified that having access to marriage would assist same-sex couples in being better parents by providing societal reinforcement for their relationships and ensuring that their children have access to the same advantages that children of legally married parents have. (Eichor's attempt to depict same-sex couples as less stable than homosexual couples backfired, as the plaintiffs' experts pointed out that the lack of the legal bonds of marriage could explain any difference in the stability of relationships.) As his case appeared to weaken as it progressed, state's attorney Eichor departed from the courtly manner of the opening days and became, to judge by eyewitness reports posted to the Internet, increasingly harsh in questioning the witnesses and descending to homophobic characterizations in closing arguments. Surprisingly, the two-week trial appeared to focus exclusively on the issue of child-rearing because of the peculiar way the state decided to defend the statute, presenting no evidence about any other aspect of the marital relationship. Judge Chang set a post-hearing briefing schedule that guarantees there will not be a decision until November or later. Since Hawaii does not have intermediate appellate courts, any decision will be subject to appeal directly to the state's supreme court. If the plaintiffs win, it seems likely the state will seek and obtain a stay pending appeal, so nobody should be planning same-sex weddings in Hawaii for this Christmas. A.S.L. Other Domestic Partnership & Marriage Notes Private sector domestic partnership plans took a major step forward when International Business Machines (IBM) announced Sept. 19 that it would extend health insurance benefits to same-sex domestic partners of its employees in the United States. IBM is the largest employer to have taken this step, which goes a long way toward "mainstreaming" domestic partnership as a normal employee benefit. (Ironically, IBM, the largest employer in its industry, was late in getting on this bandwagon, as many of its younger competitors were among the leaders in adopting such benefit plans, recognizing the reality of a strong gay and lesbian presence in high technology industries.) IBM indicated that if a state allows for same-sex marriage, it will discontinue benefits for any covered employees who reside in that state and do not take advantage of the option to marry. This seemed consistent with IBM's statement that it was not extending benefits to opposite-sex partners because of the availability of marriage. New York Times, Chicago Sun-Times, Sept. 20. Oregon's Attorney General will appeal the Aug. 8 decision in Tanner v. Oregon Health Sciences University, a trial court ruling ordering the state to extend benefits eligibility to the lesbian or gay domestic partners of state employees. News reports indicated that the state was at first planning to comply with the ruling, in light of the minimal costs encountered in providing such benefits by several public and private employers in the state, but that the Attorney General felt that the court's decision was too controversial for the state not to appeal it. The result of the Attorney General's decision is that the matter may not be finally resolved for several years, through potentially two layers of appellate review. In the meantime, no benefits for the partners of Oregon state employees. BNA Daily Labor Report No. 171, A-4, Sept. 4. The text of the Tanner decision is now available at 22 Fam. L. Rep. (BNA) 1483. Monkey see, monkey do? (Sorry, I couldn't resist this.) A week after Mississippi Governor Kirk Fordice signed an executive order banning any recognition of same-sex marriage in his state, Alabama Governor Fob James, Jr., signed a similar order on Aug. 30. Los Angeles Times, Aug. 31. Such orders are of questionable validity in light of the Full Faith and Credit Clause of the Constitution, even as purportedly affected by Congress and the Clinton Administration in their so-called "Defense of Marriage" Act. Sandra Linebarier and Charlene Morris, a lesbian couple who sought to publish an announcement of their wedding ceremony in The Oregonian, a daily newspaper in Portland, Oregon, have dropped their state court suit seeking to compel the publication. A state trial judge had rejected their request for an injunction. The women agreed to drop their appeal of this decision in exchange for an agreement by the newspaper that it would not seek attorneys fees and costs from the women. Oregonian, Sept. 10. Atlanta Mayor Bill Campbell signed into law a local ordinance extending domestic partnership benefits to the city employees on Sept. 6. This was the second time around for Atlanta on this issue, the Georgia Supreme Court having invalidated the first attempt by holding that state laws defining family status for purposes of public employee benefits eligibility could not be overridden by a city ordinance. The same group that brought that lawsuit, the Southeastern Legal Foundation, has indicated it may bring another challenge against the new law, but a spokesperson for the mayor indicated he was satisfied that the bill had been redrafted to meet the Supreme Court's concerns. Instead of defining domestic partners as "family members," the new bill treats domestic partners as "dependents," thus attempting to bring them within one of the eligibility categories specified in the state law. Atlanta Journal-Constitution, Sept. 4 and Sept. 7. A.S.L. Opponents of domestic partnership in Santa Clara County, California, claim that they have gathered enough signatures to require a referendum on repealing the county's recently-passed domestic partnership registry ordinance. The San Jose Mercury News reported September 18 that the petitioners were required to gather about 45,000 valid voters' signatures in just 30 days. The campaign had been lagging, but a "last minute blitz" produced a surge of signatures just before the deadline. Supporters of the ordinance, who stimulated a "decline to sign" effort, were hopeful that enough signatures would be invalidated to halt the referendum. A.S.L. Clinton Administration Says Supreme Court Should Stay Out of Gays- In-Military Dispute The U.S. Justice Department filed a brief with the Supreme Court on September 23, urging the Court to deny a petition for certiorari in Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996), in which the 4th Circuit rejected constitutional challenges to the "don't ask, don't tell" military policy adopted by Congress in 1993. This was the first federal circuit case to rule dispositively on the merits of a challenge to the new military policy against service by openly lesbian, gay or bisexual persons. The administration argued that since there was not a split of circuit authority, it would be premature for the Court to inject itself into this controversy. The administration conceded that the current policy does raise important constitutional issues, but advised the court to wait for more decisions from the lower federal appeals courts before getting involved. The administration also argued that the Court's recent decision in Romer v. Evans, 116 S.Ct. 1620 (1996), would not affect the military policy, because the military policy placed a narrower restriction on gays than Colorado's Amendment 2. Baltimore Morning Sun, Sept. 24. A.S.L. Court Upholds Visitation Rights for Lesbian Godmother of Orphaned Child In Michelle G. v. Diana V, NYLJ, Sept. 4, 1996, p. 25, (col 1)(Queens Co. Family Court), Referee Croiter ruled in favor of a non-relative, allowing her to maintain visitation rights to the child of her deceased friend. In August 1995, the court granted primary guardianship to the child's maternal aunt, Michelle G., and gave visitation rights to the child's godmother, Diana V. Shortly after this ruling, the aunt alleged that Diana neglected the child during visitation and engaged in a "lifestyle that will badly influence the child." On the basis of these allegations, the court suspended visitation. The court subsequently reinstated visitation under a reduced schedule and referred the matter for a hearing before a referee. Diana V. and Michelle G. had been lovers until their relationship ended in 1987. Shortly thereafter, Michelle G.'s sister, Awilda, gave birth to Crystal and moved in with Diana V. In June 1995, Awilda died from AIDS-related complications. The court initially awarded temporary guardianship of Crystal to Diana V., who withdrew her guardianship petition after the child's aunt filed her own petition. The court awarded Michelle G. guardianship and granted Diana V. alternate weekend overnight visitation. Shortly after this arrangement commenced, Michelle G. charged that Crystal had returned from visitation with her godmother dirty, bruised and unfed. Petitioner further alleged that respondent's lifestyle was a bad influence on Crystal. To support the latter claim, Michelle G. claimed that Diana V. kissed her same-sex lover on the mouth in front of the child and that on another occasion she handcuffed her lover to a bed. At the hearing, the respondent asserted that the petitioner was "repulsed" by her sister's AIDS and had very little contact with her sister during her illness. Although Crystal had recounted a list of complaints about Diana V., a psychologist, Dr. Kaiser, testified that the recitation was "contrived and rehearsed." Although critical of the handcuff incident, Dr. Kaiser stated that the child's recollection was vague and it did not have a negative impact upon the child. The court noted that there had been no testimony that the incident was sexual. With regard to Diana V. kissing her lesbian lover, Dr. Kaiser stated that such displays of affection would have no more effect than openly heterosexual behavior. The psychologist concluded that the child was still suffering from the loss of her mother and would benefit from continued contact with someone from her prior life. The court compared the feuding parties to estranged parents harmfully involving their children in their conflict. The court suggested that petitioner has brought the petition as a result of the hostility she feels toward the respondent and that petitioner's motivation is to remove respondent from her life. The court expressed concern about the potential harm to the child who is likely to be more traumatized by such hostility than by "witnessing an affectionate kiss between two loving adults." The court fully reinstated respondent's rights and suggested that the parties attend joint counselling sessions to help them to focus on the needs of the child. C.W. Louisiana Supreme Court Upholds Death Penalty Verdict of Man Who Sought to Use Homosexual Panic Defense Upholding a death penalty verdict against Marcus Hamilton, the Louisiana Supreme Court rejected various challenges to the verdict in State v. Hamilton, 1996 WL 502330 (Sept. 5). Hamilton, who confessed to the murder of Father Patrick McCarthy, a Catholic priest, indicated in his confession that he killed McCarthy because of McCarthy's alleged homosexual advances. The jury evidently either disbelieved Hamilton or believed that the situations described in Hamilton's confession would not justify a deadly response. (When rectory staff members found McCarthy dead on the floor of his room, he was bound with pieces of electrical extension cord, which was also wrapped around his neck, had been stabbed five times in the throat, had been hit eight times in the face, forehead and top of the skull with a heavy instrument like a claw hammer, and salt had been poured over his eyes and face and down his throat.) On appeal, the state Supreme Court rejected the argument that Hamilton's trial attorney had inadequate time to voir dire the potential jurors In reviewing the death sentence, the court considered the defendant's claim that the charges should have been reduced to manslaughter because of McCarthy's alleged homosexual advances. The court quoted the trial judge as follows: "In the opinion of this court, the death penalty should be reserved for those cases ... in which special circumstances of particular cruelty admit of no lesser punishment. This is one of those cases, perhaps the most compelling this judge has seen in over two decades of involvement with the criminal justice system. The defendant admits openly that he murdered Father McCarthy and shows no remorse whatsoever for his actions, justifying them on the grounds that the priest made a homosexual advance to him. Even if the truth of this matter were conceded (and this court regards it as an infamous lie) such an action would excuse nothing whatsoever. Marcus Hamilton was a large, muscular man, Father McCarthy a small one; Father McCarthy would have been utterly unable to force his attentions on anyone. Secondly, such an action would not have justified anything beyond minimal force, much less a murder committed under such horrifying circumstances. Thirdly, the fact that the prolonged torture and murder was incident to robbery -- gives the lie to any `justification' Marcus Hamilton might give." A.S.L. Louisiana Appeals Court Upholds Conviction of Man Who Targeted Elderly Gay Men The Louisiana court of appeal upheld the admissibility of prior bad acts evidence against a gay criminal defendant who targeted older gay men. State v. Langley, 1996 WL 506330 (Sept. 4). Robert Hatchcock (who had a heart condition) met Richard Langley through gay friends, and offered to let him stay in his apartment. One night Langley assaulted Hatchcock with a knife, tied him up and stole his wallet and automobile. Langley's defense was that he and Hatchcock had engaged in consensual sex involving bondage. At trial, the State introduced evidence of prior bad acts by Langley, namely that Langley had assaulted another older gay man with a screwdriver, tied him up in a similar manner, and stolen his car. Langley was found guilty of armed robbery, and as a third-time offender sentenced to 66 years. He challenged admission of the prior bad acts evidence. In an opinion by Judge Moon Landrieu, the Court of Appeal upheld the admission of the evidence, finding that the prosecution had established the prior bad acts by clear and convincing evidence, and met its burden of showing that the crimes were similar enough to be probative of Langley's intent. In both instances, the court was convinced, Langley met vulnerable gay victims through friends, tied them up similarly, and stole money and car keys from both. The prior bad acts evidence was relevant to an issue at trial, namely Langley's defense that Hatchcock had consented to being tied up. Also, the court was convinced that the probative value of the evidence (the bolstering of Hatchcock's version of the facts) outweighed its potential prejudicial effects. The court also denied two other arguments by Langley challenging his conviction and sentencing. D.W. Texas Appeals Court Rules for Defendant in Restroom Case Robert Henry Brown was arrested when policy officers who had staked out a men's room at the Sears store in Corpus Christi, Texas, discovered him masturbating in a locked stall. Somebody unknown had drilled a small hole in the wall between Brown's stall and the adjoining stall. An undercover police officer went into the adjacent stall and through the hole observed Brown masturbating. Then the officer stepped out of the adjacent stall and continued to observe Brown masturbating through the crack between the stall door and the stall wall. They made eye contact and Brown nodded at the officer, stood up, and opened the stall door while continuing to masturbate. The officer identified himself as a police officer and stated that Brown was under arrest. According to the court's opinion, "Brown said, `Oh shit.' That was Brown's only comment." The trial court granted Brown's pretrial motion to suppress "evidence and information seized and obtained" through this "search" after a hearing at which the trial judge examined a model of the stall in question. The state appealed the suppression ruling, which was affirmed by the Texas Court of Appeals, State v. Brown, 1996 WL 493034 (Aug. 29). In a 2-1 decision, the court held that Brown had a reasonable expectation of privacy in a locked restroom stall, and that it would not guess the trial judge who had examined the model of the stall in making this determination. A dissenting judge argued that the evidence was obtained through lawful observation and should not have been suppressed. A.S.L. Federal Court Refuses Preliminary Order for Treatment for Transsexual Prisoner Plaintiff J.P. ("Jacqueline") Brown, a self-identified transsexual prisoner incarcerated in Auburn Correctional Facility, has failed in her attempt to preliminarily enjoin the prison and the New York State Mental Health Services from refusing to provide hormone therapy to Brown as treatment for gender dysphoria (transsexualism). Brown, born a man, identifies as a woman; the decision, Brown v. Coombe 1996 WL 507118 (U.S.Dist.Ct., N.D.N.Y., Sept. 5), by Judge Rosemary Pooler, uses the feminine pronoun throughout. Brown was initially ridiculed when she brought the issue up with her prison therapist in 1995. She was then told that none of the prison mental workers was qualified to treat gender dysphoria. Further, she was told that the state Department of Correctional Services (DOCS) would not provide treatment for gender dysphoria. Brown's initial demand for a TRO and preliminary injunction ordering the defendants to provide adequate psychiatric and medical care was denied by Magistrate Judge Ralph Smith. Smith applied the standard for granting a preliminary injunction which requires that Brown demonstrate that she had suffered irreparable harm, and found that she had shown that she was deprived of her constitutional right to be free of cruel and unusual punishment, since deliberate indifference to serious medical needs of prisoners violates the Eighth Amendment. However, Smith found that Brown had not shown the likelihood of success on the merits, also required for the granting of an injunction, since a prisoner has no right to choose a specific form of medical treatment. Smith stated that there was no medical proof that hormonal treatment was the only appropriate treatment for her condition. In addition, Smith noted that the defendants pled that they were indeed providing some treatment. Brown objected to Smith's findings, and Judge Pooler agreed that the defendants had not shown they were providing any real treatment. Nonetheless, the judge adopted the magistrate judge's recommendation denying the TRO and preliminary injunction, finding that Brown had failed to establish likelihood of success on the issue of whether the defendants had been deliberately indifferent to her serious medical needs. First, the only evidence that Brown suffers from gender dysphoria is her own statements. The standard for diagnosing transsexualism is that the individual has experienced discomfort with the assigned gender for a period of over two years and that the discomfort is not traceable to another mental disorder. The record showed only that Brown told prison personnel in late 1995 of her condition. Second, there is as yet no set opinion on appropriate treatment for gender dysphoria. Brown cited only one case where the court ordered a prison to provide hormone therapy pending trial, Phillips v. Michigan Dep't of Corrections, 731 F. Supp. 792, 801 (W.D. Mich. 1990), aff'd without opn, 932 F.2d 969 (6th Cir. 1991), and in that case, the prisoner had already been receiving estrogen, the abrupt withdrawal of which would have reversed years of healing medical treatment. This was very different from Brown's situation since she has received no drug treatment whatsoever. Judge Pooler thus held that Brown failed to show a sufficient likelihood that she can establish a diagnosis of gender dysphoria or that she can establish that the defendants have failed to provide her with medically necessary treatment. On the secondary issue of appointment of counsel, the judge stated that Brown should get records of her own earlier treatment, if any, along with her records from DOCS. If her attempts prove unavailing, she may renew her request for counsel. J.H. Senate Defeats Employment Act in Narrow Vote Close, but no cigar. . . On the same day the Senate passed the Defense of Marriage Act (DOMA) by an overwhelming vote of 85-14, the Employment Non-Discrimination Act (ENDA) failed on a 49-50 vote. One Senator who was likely to have voted yes, Democrat David Pryer, was absent due to an illness in his family. There was speculation that this was set up to avoid having Vice President Albert Gore cast a tie-breaking vote on a controversial issue during the presidential election campaign. This was the first time that a law expressly prohibiting sexual orientation discrimination had ever come to a vote on the floor of either house of Congress, and the closeness of the vote tended to bolster the credibility of Human Rights Campaign, which had been predicting that the bill was within striking distance of a majority in the Senate, even though the number of co-sponsors was only about a third of the senators. The only reason ENDA came to a vote at this time was that several senators had proposed to offer ENDA as an amendment to DOMA; countering that, several Republicans announced they would offer other amendments, and soon it appeared that DOMA might pass in a form that would require a conference committee and might produce a bill that President Clinton would have an excuse to veto. A deal was struck to allow a vote on the unamended version of DOMA as passed by the House, in exchange for allowing a floor vote on ENDA without amendments. ENDA will certainly be back for another run in the next Congress, no matter how the elections turn out this fall. A.S.L. Notes on Same-Sex Workplace Harassment Cases Adding to the growing body of Title VII case law on same-sex harassment, a U.S. District Court judge in Central Illinois has stated that such a claim would be possible but difficult to prove, and granted a defense motion for summary judgment due to insufficient evidence. Shermer v. Illinois Department of Transportation, 1996 WL 501511 (Aug. 30). Plaintiff James Shermer worked for the Illinois Department of Transportation (IDOT) as part of an all-male crew. He claimed to have been subjected to sexually offensive remarks by his male supervisor, who perceived him as gay and ridiculed him for having sex with other men. (Shermer did not state for the record whether he is in fact gay.) Shermer sued under Title VII, alleging sexual harassment that had the effect of creating a hostile environment. The defense moved for summary judgment, arguing that same-sex harassment is not actionable under Title VII. The District Court denied the motion, ruling that Title VII does prohibit same-sex harassment. The defense next moved for reconsideration, arguing that there was no evidence that the defendant discriminated against the plaintiff on the basis of his gender. Reviewing numerous cases in this area, Judge Richard Mills observed three schools of thought concerning the method by which a plaintiff must prove hostile environment sexual harassment in violation of Title VII. First, two 4th Circuit opinions appeared to emphasize that the plaintiff must prove homosexuality and sexual attraction on the part of the individual defendant(s) in order to prevail; Mills criticized this approach for relying on a trait not mentioned in the statute rather than on conduct that the statute prohibits. See Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745 (4th Cir. 1996); McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191 (4th Cir. 1996). Second, district court decisions had ruled that the plaintiff must prove the defendant treated members of one sex differently from the other; this approach was inapplicable to the all-male crew. The third line of cases requires the plaintiff to prove an anti-male or anti-female work environment, which would be virtually impossible for a male plaintiff in an all-male crew. (Mills described the difficulty as evidentiary rather than theoretical, and allowed that a plaintiff might prevail by proving the defendant hated his own gender.) Without completely endorsing any of these tests, Mills ultimately agreed with the conclusion in Hopkins that, without proof that a harasser acted out of sexual attraction, it is very difficult for a plaintiff to prove a hostile environment claim. Noting that Title VII does not apply to harassment based on sexual orientation, Mills ruled that Shermer had failed to present evidence that he had been discriminated against for being a man. O.R.D. U.S. District Judge Davis in Minnesota has refused to dismiss a sexual harassment claim brought by a male employee of John Alden Life Insurance Company predicated on harassment by a male supervisor. Grillo v. John Alden Life Insurance Co., 1996 WL 538891 (Sept. 23). Stephen Grillo alleged that his supervisor "repeatedly referred to him as a `cocksucker' . . . and demanded that plaintiff perform oral sex upon him." The supervisor also subjected Grillo to verbal abuse based on his ethnic origin, according to the complaint. Grillo alleged violations of Title VII and the Minnesota Human Rights Act, the latter based on "perceived sexual orientation." (The Minnesota statute forbids sexual orientation discrimination as well as sex discrimination.) Judge Davis noted that the 8th Circuit had recently found some forms of same-sex harassment to be actionable under Title VII, in Quick v. Donaldson, 1996 WL 420381, where it reversed a grant of summary judgment to the employer. "This Court also cannot determine whether Title VII or the MHRA provides a remedy here without the benefit of fully-developed factual record on which to base a decision in accordance with the factors outlined in Quick," wrote Davis. However, Davis did dismiss a supplementary defamation claim, based on the supervisor's verbal abuse. "The context in which these statements are alleged to have been made -- the workplace taunts of an infantile supervisor -- dispels any suggestion that they could be literally interpreted as provably false assertions of fact," wrote Davis. A.S.L. Dismissing a same-sex harassment claim under Title VII in Johnson v. Hondo, Inc., 1996 WL 531937 (E.D.Wis., Sept. 9), District Judge Warren recognized that same-sex harassment could be actionable, but found that the plaintiff's allegations were insufficient to make out a prima facie case sufficient to withstand a dismissal motion. Craig Johnson claimed that his supervisor, Ollie Hicks, began sexually harassing him in July, 1992. "Johnson states Hicks persistently came up to him and would brush against him. Hicks would `grab and manipulate his crotch' and state `[g]onna [sic] get my dick sucked.' Johnson's claim of sexual harassment consists of repeated comments by Hicks directed toward Johnson, for example, `I'm going to make you suck my dick.' Hicks also made comments about Johnson's girlfriend, stating that he would have her `suck his dick because she's got a nice ass.'" Johnson admitted that he responded to Hick's statements with anti-gay epithets, and that he believed that Hicks was gay. Ultimately, the negative feelings between the men escalated into a fight that put Hicks in the hospital and both men were discharged. Although Johnson complained to supervisors about Hicks' behavior, he never filed a formal grievance with the employer's Human Relations Department as required by its harassment policy. Judge Warren found that Johnson's allegations were not sufficient for a complaint of sexual harassment. Although Hicks' comments "were sexually explicit and offensive to Johnson, Title VII does not expect employers to purify the language in the workplace or remove all vulgarity or coarse comments. . . Conduct that is merely offensive is insufficient to implicate Title VII. . . The facts presented by Johnson indicate Johnson was subjected to the vulgar comments and gestures of a boorish co-worker, whose command of the English language was limited, singularly focused and clearly unrefined. This type of conduct does not cross `the line that separates the merely vulgar and mildly offensive from the deeply offensive and sexually harassing.'" Warren also found that there was some question whether Johnson gave his employer adequate notice of the problem to invoke Title VII liability, and also had failed adequately to allege that he was singled out for harassment, in this all-male workplace, because of his gender. Johnson's speculation that Hick's was homosexual was deemed insufficient on this point by the court. A.S.L. In Peric v. Board of Trustees of the University of Illinois, 1996 WL 515175 (N.D.Ill., Sept. 6), District Judge Conlon refused to dismiss a same-sex harassment claim under Title VII which alleged, in effect, that a homosexual supervisor had engaged in sexual harassment of the plaintiff, and that plaintiff's refusal to give in to sexual demands from the supervisor resulted in retaliation, including physically demanding menial assignments and unwarranted negative job evaluations. Addressing the split in authority among federal courts on whether same-sex harassment claims are actionable under Title VII, Judge Conlon specifically rejected the reasoning of Goluszek v. Smith, 697 F.Supp. 1452 (N.D.Ill. 1988), which has been followed by other courts in rejecting such claims, finding that the Goluszek decision is not supported by Title VII's plain language or its legislative history." Conlon found that Peric's allegations "suggest that Peric was harassed because he is male. Meyer demanded Peric engage in homosexual acts with him. Meyer could only have demanded such acts from another man." A.S.L. Sexual Orientation Laws Also Protect Heterosexuals Joanne Karpowicz, and avowed heterosexual, has charged that she was discharged by a gay male supervisor, Martin Tannenbaum, who is biased against straight women. Karpowicz v. Blue Cross and Blue Shield of Massachusetts, Inc., 1996 WL 528372 (U.S.Dist.Ct., D. Mass., Aug. 19). Karpowicz claimed that she was doing fine at work until her bumbling handling of a request by her gay supervisor to get a set of his keys to his alleged lover and roommate, Lee Ellenberg, who was locked out of their apartment. Karpowicz claimed that after this incident Tannenbaum soured toward her and soon fired her. She sued the employer, Tannenbaum, Ellenberg, in state court, claiming a violation of the Massachusetts Law Against Discrimination's prohibition on sexual orientation discrimination and ERISA (based on a denial of certain insurance benefits after her discharge). Ellenberg, with the consent of the other defendants, moved to remove the case to federal court. In this decision, District Judge Wolf granted Karpowicz's motion to return the case to state court, based on the technicality that the time for filing a removal motion with respect to the other two defendants had already run out when Ellenberg (who was served with the complaint later than the others) filed his motion. A.S.L. Court Departs Downward From Sentencing Guidelines in Cyberporn Case In a lengthy and detailed decision in U.S. v. Shasky, 1996 WL 511583 (U.S.D.C. Nebr., Sept.6), the trial court judge explained his downward departure under the U.S. Sentencing Guidelines for Michael Severin Shasky, who pled guilty to one count of receiving material via computer involving sexual exploitation of a minor. Had no departure been authorized, Shasky would have been liable for a prison sentence of 15 to 21 months, a period of supervised release of between two and three years, and a fine of between $4,000 and $40,000. The court imposed a sentence of three years probation, including special conditions that Shasky complete (at his own expense, roughly $21,000) a quasi-correctional sex offender program at the University of Minnesota Medical school, serve six months of his probation under home confinement with an electronic monitoring device (and pay for the costs of electronic monitoring), pay a fine of $30,000, avoid all contact with minors unless approved by the probation officer, and refrain from the use of "on-line" services. Shasky also consented to the forfeiture of his computer equipment. The reduction was granted over the vigorous objections of the U.S. Attorney. The court found that Shasky's case warranted departure from the "heartland" of the range of sentencing because Shasky, a slight-of- build former Nebraska State patrolman, was unusually susceptible to abuse in prison, and because he had "engaged in extraordinary post-offense efforts at rehabilitation." Moreover, there would be no alternatives for Shasky within the federal prison system, as the only such program available is not taking new applicant, and is designed, in any case, for "pederasts," which would mean that Shasky is ineligible, because Shasky was found not to be a pederast. In sum, the court granted a reduction in sentence which resulted in payments totaling over $52,000 in fines and costs of treatment, aside from the in home confinement and the probation, because, the Judge stated: "I thus thought it appropriate to select a sentence that sent a message to those who knowingly receive this bilge that there are very painful consequences to the consumption of this material." How much material is at issue? The judge states that both he and the director of Shasky's program examined the 534 images that were on Shasky's computer when his home was raided, and found that 90% of these images did not involve minors, and only 2% (roughly 10 images) involved pre-pubescent boys. Quite a stiff penalty for 10 gifs! S.K. Illinois Appeals Court Rejects Challenge to Hate-Crimes Law The Appellate Court of Illinois, 1st District, rejected a constitutional challenge to the state's hate crimes law in Vladimir P., 1996 WL 534679 (Sept. 20). Vladimir P., a minor, had been adjudicated a delinquent based on the commission of a hate crime against Levi Bergovoy -- an anti-Semitic assault. The Illinois hate crimes law forbids, inter alia, anti-gay hate crimes. Vladimir attacked the validity of the hate crimes law on a variety of federal free speech, due process and equal protection theories, all rejected by the court in Justice McNamara's opinion. The court also rejected an attack premised on the Illinois constitution. A.S.L. Law & Society Notes Opponents of a gay rights ordinance passed last year in Broward County, Florida, fell short of the signatures needed to place a repeal question on the ballot this November. The Miami Herald reported September 20 that the deadline for a petition with 46,311 signatures had passed without a single signature being filed. The head of "Take Back Broward," the petitioning group, asserted that they didn't have sufficient time, but County Commissioner Suzanne Gunzburger, a supporter of the measure, said: "If there had been a huge public outcry that Broward County had turned into Sodom and Gomorrah, then they would have had no problem getting the needed signatures. Obviously, there is not a public interest in repealing this law." The county has received nine complaints of sexual orientation discrimination since the law was passed in June 1995. Five were dismissed after investigation, and four are pending. Always in the vanguard, San Francisco Human Rights Commission staffers are looking into complaints by transsexuals that insurance companies are refusing to pay for sex-reassignment procedures. The San Francisco Chronicle reported September 23 that Human Rights Commission President Martha Knutzen has written to the city's Health Service System Board complaining that the refusal of the insurers to cover these procedures "perpetuated `a mean-spirited view of the transgender community'" and that such conduct by the insurers "has no place in San Francisco." San Francisco is one of only a handful of jurisdictions that has expressly outlawed discrimination on the basis of sexual identity (defined to include transsexualism). * * * On Sept. 26, the San Francisco Human Rights Commission and the city's Youth Commission held joint hearings on problems of gay, lesbian, bisexual and transgender youths. A spokesperson for the Human Rights Commission said that the agency had decided to make youth concerns a top priority, noting that a recent study in San Francisco showed that 29 percent of gay and bisexual young men surveyed had attempted suicide, and that more than a quarter of non-heterosexual youths are forced to leave home because of conflicts with their families about their sexual orientation. San Francisco Chronicle, Sept. 26. Dave Pallone, the openly-gay former Major League Baseball umpire, has sued a Boston area radio station, WEEI, for defamation based on reports that a talk show guest asserted that Pallone was probably the man on stilts who had exposed his genitals during the 1996 Boston Gay and Lesbian Pride Parade. Although Pallone, represented by Katherine Triantafillou, a Cambridge city official and openly lesbian activist attorney, did not himself hear the broadcast, he hoped to be able to show in Suffolk County Superior Court that the broadcast damaged his reputation, caused him emotional distress, and produced actual financial injury. Boston Globe, September 22. The first criminal defendant in New York City for whom the prosecutor will seek the death penalty under the state's new death penalty statute will be a gay man, Michael Shane Hale, who is charged with murdering and dismembering Stefan Tanner, an older man who was his lover. Kings County (Brooklyn) District Attorney Charles J. Hynes announced September 24 that he had an "obligation under the law" to seek the death penalty in Hale's case, even though Hynes was personally opposed to capital punishment, because the indictment included kidnapping and robbery as well as murder, which brought the case squarely within the scope of the death penalty statute. Christine Quinn, executive director of the New York City Gay and Lesbian Anti-Violence Project, commented to the New York Times (September 25): "I want this case prosecuted to the fullest extent, [but] it's hard to believe that the fact that the perpetrator was gay was not one of the factors that made this case more compelling to go for the death penalty." Robert James Acremant, the confessed killer of Michelle Abdill and Roxane Ellis, an Oregon lesbian couple, has announced that his actions were based on the victims' sexual orientation, and prosecutor John Bondurant announced at a court hearing on Sept. 11 that the death penalty will be sought in his case. The killings took place Dec. 4, 1995. Abdill and Ellis had been visible campaigners against anti-gay ballot measures in Oregon. Oregonian, Sept. 12. A study of hate crimes in the lesbian and gay community in Sacramento, California, by University of California at Davis researchers revealed interesting data about the lives of lesbians and gay men outside the major gay population centers. The UC-Davis researchers surveyed about 2300 self-identified gay people living in Sacramento, of whom about 1/4 of the men and 1/5 of the women reported having been victimized since the age of 16 because of their sexual orientation. The study also found that only about 1/3 of the victims had reported the incident to the police. In addition to hate crimes, more than half the respondents reported they had been subjected to anti-gay verbal abuse, almost 1/5 threatened with violence, chased, or both, and 16 percent had been targets of workplace discrimination. Sacramento Bee, Sept. 25. The Rocky Mountain News reported Sept. 5 that U.S. District Judge Edward W. Nottingham ruled that public colleges in Colorado had not violated the constitutional rights of the College Republicans of Colorado by requiring that organization to abide by school policies forbidding sexual orientation discrimination. Nottingham's written order, which has not yet appeared in legal databases but is quoted in the news report, stated that the school's policy "prevents College Republicans from excluding homosexuals solely on the basis of sexual orientation. It does not preclude the organization from rejecting homosexuals who espouse a `gay rights' philosophy in which a manner as to attribute the message to the College Republicans or otherwise. Thus, the policy does not impair the College Republicans' ability to further [their] purposes." Signing a statement agreeing to comply with the policy is a prerequisite to receiving funding and office space on campus. A.S.L. Political Notes U.S. Representative Jim Kolbe (R.-Ariz.), who announced that he is gay in a preemptive strike against being "outed" in an article in The Advocate, won his primary for renomination with 70 percent of the votes cast, down from his 80 percent margin in 1994. Kolbe is heavily favored for reelection in November. Washington Post, Sept. 17. The question of closeted Republican conservatives in Congress continued to simmer, as rumors about Senator Larry Pressler (R.- S.D.) came to the surface in his re-election campaign, Washington Post, Sept. 26, and gay journalist and "outing" proponent Michelangelo Signorile circulated a lengthy statement via Internet raising questions about Rep. John Kasich (R.-Oh.), chair of the House Budget Committee and a key player in the Gingrich leadership in the House. Signorile reported that Kasich's Democratic opponent, Cynthia Ruggia, "a pro-gay Democrat," has filed charges against Kasich with the House Ethics Committee, alleging a conflict-of-interest in Kasich's employment as his chief of staff of a man rumored to be his "domestic partner." (Kasich is unmarried.) So far, the mainstream press seems uninterested in the story, although Signorile reports that there was brief, intense interest when the Dole campaign was considering Kasich as a potential vice-presidential nominee. Sabrina Sojourner, an African-American lesbian, has received the Democratic nomination for the District of Columbia's "shadow seat" in the U.S. House of Representatives -- a nomination that is tantamount to election in the overwhelming Democratic District. Sojourner would not be able to vote in the House, but would have access to the floor and to committees and would be able to introduce legislation. Washington Blade, Sept. 13. A.S.L. International Notes The Canadian Human Rights Tribunal ruled Sept. 13 in Lassoe v. Air Canada that despite recent amendments to the Human Rights Act forbidding sexual orientation discrimination, employers subject to the Act were not required to extend survivor pension benefits to the same-sex domestic partners of their employees. The Tribunal noted that the government had expressly stated that adoption of the amendment was not intended to extend to the issue of partnership benefits, but in any event that the amendment was not in effect when this case was filed. Further, the Tribunal noted that amendments of the Income Tax Act and the Pension Act would be necessary to effect the changes sought by the plaintiffs, and called on the government to address the issue. Public pressure generated largely by Internet communication stimulating letters, e-mail, and phone calls, has apparently persuaded the Romanian government to back away from a proposal to toughen that nation's anti-gay laws. The lower house of the Parliament had approved a proposal on Sept. 10 that would have punished any homosexual activity with up to five years in prison. But the Associated Press reported Sept. 26 (Boston Globe) that the government had abandoned that proposal, leaving in place prison sentences for homosexual acts committed in public or causing a "public scandal" (a vague standard that has already been the target of censure from European Communities human rights agencies). Florida isn't the only jurisdiction where appellate judges have problems with lesbian mothers. Journalist Rex Wockner recently reported that Turkey's Supreme Court has ruled that lesbian mothers threaten the moral development of their children, and reversed a lower court ruling that had awarded custody of her two-year old daughter to a lesbian mother. The court described the mother's sexual "habit" as a "sickness." The proposed South African Constitution, which bans sexual orientation discrimination, has been rejected by the Constitutional Court, which took issue with some of the structural arrangements for the federal government. A new draft will be produced. The sexual orientation provision was not an issue in the case and will undoubtedly be included in the revised document. An interim constitution which also forbids sexual orientation discrimination continues in effect. Washington Blade, Sept. 20. The Buenos Aires Statutory Convention has approved adoption of an anti-discrimination provision for the city that includes "sexual orientation" with other prohibited grounds for discrimination, making Buenos Aires the first Spanish-speaking city in Latin America to ban anti-gay discrimination, according to an Internet posting by a resident of the city. Gay rights forces in the city are now taking aim at the "Police Edicts," an enforcement code under which the police are charged with arbitrarily harassing and arresting transvestites and other non-conformists on the streets. A.S.L. Professional Notes and Announcements Paul Feinman, a gay attorney who is president of the Lesbian and Gay Law Association of Greater New York, won a narrow victory in the Democratic primary for New York City Civil Court, Manhattan District 1, in the Sept. 10 primary; if elected in November, he will become the first openly-gay man to win election to the New York City Civil Court. (All prior openly gay men on that court have been appointees to interim vacancies by Mayors Koch, Dinkins or Giuliani.) In the same primary, openly lesbian attorney Eileen Rakower won the Democratic nomination in Manhattan District 4 over an incumbent, while openly lesbian attorney Karen Burstein lost a race for Surrogate's Court and openly lesbian attorney Sandra Russo lost the District 9 primary race. Openly gay primary winners elsewhere in recent weeks included Ed Flanagan (Vermont State Auditor), David Curtis (Vermont Senate), Randy Kottwitz (New Hampshire House), incumbents Ken Cheuvront (Arizona House) and Deborah Glick (New York Assembly), Mike Pisaturo (Rhode Island House). The Committee on Sexual Orientation Discrimination of the State Bar of California has won approval from the state organization of a detailed report and recommendations that were submitted to the Bar in August. The Committee, chaired by Wayne Stephen Braveman of Heller Ehrman White & McAuliffe, recommended a variety of measures to make law firms a gay-friendly environment, including adoption and enforcement of non-discrimination policies, adoption of benefit plans inclusive of gay families, and ways to signal that attorneys do not have to be closeted in their workplaces. The Transgender Law Conference has announced that the 3rd National Transgender Event will be held in Washington, D.C., February 23-25, 1997. Discussion of legal issues concerned transgendered people is a major part of these national meetings, to which all transgendered people are invited. To obtain full details about how to attend and reserve hotel space, contact the Conference at 713-777-8452, or via e-mail at ictlepol.com. The University of Colorado School of Law hosted a conference on October 4 for a discussion on the Amendment 2 Controversy and the Supreme Court's decision in Romer v. Evans. The speakers included Law Professors Larry Alexander (San Diego), Ann Estin (Colorado), Thomas Grey (Stanford), Lynn Baker (Arizona), Lino Graglia (Texas), and Janet Halley (Stanford). Opening the discussion were statements from former Colorado Supreme Court Justice Jean Dubofsky and Colorado Assistant Attorney General tim Tymkovich, who were the opposing oralists before the Supreme Court in Romer. AIDS AND RELATED LEGAL NEWS BRIEFS 4th Circuit Reverses Dismissal of HIV-Discrimination Claim by Bank Executive A divided panel of the U.S. Court of Appeals for the 4th Circuit ruled September 19 in Runnebaum v. NationsBank of Maryland, N.A., 1996 WL 529541, that the district court erred in granting summary judgment to the employer in a discrimination case brought under the Americans With Disabilities Act (ADA) and the Employee Retirement Income Security Act (ERISA) by an HIV+ former employee. Finding disputed issues of material fact, the panel ordered a remand for trial in an opinion by Circuit Judge Michael, over the dissent of Circuit Judge Williams. William Runnebaum has known he was HIV+ since 1988. He was hired away from a competing bank by Nationsbank in June 1991. In his complaint, he alleged that he was receiving good employee ratings when he transferred to a sales job in Nationsbank's new trust department. Although he did not meet the initial sales goal set for him by the end of 1992, he brought in 18 times as much business as the other person hired as a salesman in the trust department at the same time. Runnebaum also was entrusted with the planning and execution of two large promotional events; at the second such event (a Christmas party to which apparently spouses of employees were invited), he invited his homosexual partner and introduced him to employees and customers. By this time, his immediate supervisor, Ann Petit, and Nationsbank's city manager (who was also gay), both knew that Runnebaum was HIV+ due to statements he had made to them, and he had already begun to receive reimbursement under the employer's health plan for AZT. Prior to assigning him the Christmas party project, Pettit sent Runnebaum a note saying she was "thrilled" to have him in her department and looked forward to his future success there. Nonetheless, early in 1993 Pettit discharged Runnebaum, claiming he had failed to meet his sales goals and raising other objections to his behavior. (The other salesman, whose performance was pitiful by comparison, was not discharged.) The district court granted summary judgment, ruling that Runnebaum had failed to "forecast" evidence sufficient to create a material issue of fact with respect to whether the employer's articulated reasons for the discharge were pretextual or untrue. Disagreeing with this result, the majority of the panel found that Runnebaum qualified for coverage under ADA as a person "regarded" as having a disability, that he had alleged facts from which a jury could conclude that he was performing up to the reasonable expectations of the employer, and that even though the employer had articulated non-discriminatory reasons for the discharge, Runnebaum's factual allegations raised a significant issue on the pretext point. In particular, the court focused on the treatment of Runnebaum compared to his fellow salesman, the timing of the discharge (shortly after the employer learned that Runnebaum was HIV+ and he received his first insurance reimbursement for AZT), and the incongruity of the discharge in light of the strongly positive comments about Runnebaum's work by his supervisor, Petit, little more than a month before the discharge. Dissenting, Circuit Judge Williams asserted that Runnebaum had failed to allege facts sufficient to make out a prima facie case, much less to prove pretext. Williams noted that the 4th Circuit has previously refused to consider HIV-infection a presumptively disabling condition in persons who are asymptomatic, and asserted that the main evidence the majority relied upon -- a statement about his reaction to news of Runnebaum's HIV-status by the gay city manager -- for the finding of the "regarded as" category of disability actually cut the other way; the manager saw himself as a "protector" of Runnebaum, and Runnebaum suggested no evidence about Petit's attitude in this regard. Williams also seized upon various negative comments about Runnebaum's work made both before and after he transferred into the trust department, and emphasized Runnebaum's failure to meet the sales goals established at the beginning of his job. Runnebaum's supervisor, Pettit, alleged that she had made the discharge decision well before learning about Runnebaum's HIV-status; Williams used this assertion to explain away the "thrilled" note as merely being an attempt by Pettit to inspire Runnebaum to better work. By contrast, Judge Michael used the same note as tending to cast doubt on Pettit's credibility in asserting that she had already decided to discharge Runnebaum before writing it. Runnebaum is represented by Gerard Patrick Martin, of the Baltimore firm of Martin, Junghans, Snyder & Bernstein. A.S.L. 9th Circuit Remands Suspension of Deportation Claim by HIV+ Nicaraguan to Board of Immigration Appeals In Maradiaga v INS, 1996 WL 473789 (Aug. 20), the U.S. Court of Appeals for the 9th Circuit overturned the Board of Immigration Appeals' determination that an HIV+ immigrant was not eligible for suspension of deportation and remanded the case to the Board for a determination of his moral character and the potential for extreme hardship if he were forced to return to his native Nicaragua. The court upheld the Board's determinations denying Maradiaga asylum and withholding of deportation. Maradiaga first came to the U.S. in 1983, married a legal permanent resident, and was continuously employed until he returned to Nicaragua in 1989 to obtain an immigrant visa from the U.S. Embassy. His application for an immigrant visa was denied because he tested positive for HIV. During his four months in Managua, Maradiaga was detained by the Sandinistas for two weeks, threatened with unlimited imprisonment, pushed to the floor, and denied access to lavatory facilities. The Sandinistas questioned him about his repeated visits to the U.S. Embassy and accused him of being a Contra sympathizer. About a month after his release, Maradiaga re-entered the U.S. illegally in August of 1989. Shortly after his re-entry his adoptive parents informed him that he was born Jewish. In 1990, the Sandinistas were defeated in the Nicaragua national elections. Maradiaga's claims for asylum on religious and political grounds were rejected. While Maradiaga might face anti-Semitic discrimination in Nicaragua, he had presented no evidence that he was persecuted because he was Jewish. His political asylum claim was rejected because he had not proved "systematic and continuous torture necessary to find the extreme past persecution which he [was] compelled to show." Nor had he proved that his two-week detention was based on his political opinion. According to the court, Maradiaga was detained because Sandinista officials were suspicious of his contact with the U.S. Embassy and believed he might have Contra connections. This evidence showed that Maradiaga "was clearly not imprisoned simply because of his political beliefs." Furthermore, the change in government had further reduced the risk that he would be a target for persecution. Nevertheless, the court rejected the Board's determination that Maradiaga would not be eligible for suspension of deportation if: (1) he was found to have been continuously in the U.S. for not less than seven years immediately preceding the date of the application; (2) he was a person of good moral character; and (3) his deportation would in the opinion of the Attorney General result in extreme hardship. The decision turns on the court's analysis of continuous presence. It rejected the Board's determination that Maradiaga's 4-month absence was not casual. Relying on Castrejon-Garcia v. I.N.S., 60 F.2d 1359 (9th Cir. 1995), the court held that Maradiaga's actions did not call "into question his commitment to living in this country." The Board had not reached the questions of whether Maradiaga was of good moral character or of whether he would face extreme hardship in returning to Nicaragua because of his HIV status. Nor had the parties briefed these issues. Thus, the court remanded the case to the Board, noting the plausibility of Maradiaga's assertions of hardship. M.S.R. Federal Court Finds California Assisted-Suicide Law Unconstitutional in Challenge by PWA A person with AIDS, joining with Dr. Jack Kevorkian as a co- plaintiff, has won a declaration from U.S. District Judge Consuelo B. Marshall, C.D.Cal., that Cal. Penal Code sec. 401, which makes it a felony for any person to deliberately aid, advise, or encourage another to commit a suicide, violates the Due Process Clause of the U.S. Constitution. Kevorkian v. Arnett, 1996 WL 539534 (Sept. 11). The John Doe plaintiff, a 35-year old PWA, was first diagnosed as probably HIV+ in July 1984 (before the availability of HIV-antibody testing), was diagnosed with AIDS in 1993, and is now in a terminal state, desiring assistance to commit suicide. Dr. Kevorkian is, of course, the well-known "suicide doctor," whose license to practice medicine in California was suspended in 1994 as a result of his publicized activities along these lines. Judge Marshall decided that Kevorkian, who is not presently licensed in California, does not have standing to bring this challenge, and so ruled only on Doe's claims. In this case, Marshall referred to the 9th Circuit's recent decision in Compassion in Dying v. State of Washington, 79 F.3d 790, stay granted sub nom. Washington v. Glucksberg, 116 S.Ct. 2494, rehearing en banc denied by full court denied, 85 F.3d 1440, petition for cert. filed, No. 94-35534 (1996), in which the court held that the State of Washington's law against assisting suicide was unconstitutional under the Due Process Clause as applied to physician-assisted suicide. Following the reasoning of the 9th Circuit, Marshall found that the California statute violates due process by imposing an "undue burden" on terminally ill patients because the statute "does not merely place some restrictions on the right to assisted suicide, but categorically prohibits all such conduct." Marshall refrained from ruling on Doe's Equal Protection Clause claim, observing that the 9th Circuit had avoided addressing this issue by premising its decision solely on the Due Process Clause. Lacking a California Supreme Court decision on point, Marshall noted that some California Court of Appeal rulings indicated the unlikelihood that the statute would be found to violate the state constitution. Marshall granted Doe's motion for summary judgment, and denied a similar motion by the state, while granting the state's motion to dismiss Kevorkian from the case. A.S.L. Federal Court Upholds "Controlled Housing" For HIV+ Transsexual Prisoner Rejecting an HIV+ inmate's claims of violation of due process and equal protection rights, U.S. District Judge Kessler granted the Director of U.S. Bureau of Prisons's (BOP) motion for summary judgment in Farmer v. Hawk, 1996 WL 525321 (D.D.C. Sep.5) (not officially reported). Dee Diedre Farmer, a pre-operative male to female transsexual prisoner, brought her action after being placed in controlled housing for over a year after she was found to be in violation of the BOP's HIV policy. This policy authorizes disciplinary action against inmates when there is evidence that prisoners "may engage in conduct posing a health risk to others." A correctional officer at the Medical Center for Federal Prisoners in Springfield, Missouri, allegedly observed Farmer engaging in oral sex with another inmate. Ms. Farmer was charged with violating 28 C.F.R. 541.60 et seq. and placed in controlled housing. During this disciplinary action, Ms. Farmer alleged that she was confined to her cell for nearly twenty-four hours a day and denied access to most privileges. Despite a status review every 90 days, Farmer remained in controlled housing for over a year. Farmer argued that the HIV policy violated her due process rights because the statute is unconstitutionally vague, ambiguous and did not give fair notice. She further asserted an equal protection violation because she was denied privileges that were given to similarly situated inmates in controlled housing. Before ruling on the constitutionality of BOP's HIV policy, the court considered whether segregated confinement of prisoners violated a prisoner's liberty interest under the due process clause. Citing Sandlin v. Conner, 115 S.Ct. 2293 (1995), the court held that controlled housing imposed neither an "atypical" nor "significant" hardship on inmates and such punishment was within the discretion of prison authorities. After holding that controlled housing did not violate an inmate's liberty interest, the court ruled that the HIV policy was not unconstitutionally vague. Although the policy failed to define the terms "health risk," "predatory or promiscuous" or "assaultive," the court stated that Farmer's behavior was clearly proscribed. Furthermore, the court asserted that since she had been previously disciplined two times for engaging in similar conduct, the plaintiff could not claim that she had insufficient notice under the HIV policy. The court also rejected the plaintiff's claim that the HIV policy violated her equal protection rights because she received fewer privileges than prisoners who were confined in controlled housing for other reasons. The court asserted that since the plaintiff was not a member of a suspect class the government need only show that its policy is rationally related to a legitimate interest. The court found such an interest in BOP's need to maintain a safe and orderly environment. C.W. New Mexico Supreme Court Upholds Emotional Distress Claim Despite Lack of Actual Exposure to HIV In a case of first impression for the jurisdiction, the New Mexico Supreme Court ruled in Madrid v. Lincoln County Medical Center, 1996 WL 511882 (Aug. 21), that a plaintiff exposed to blood through the negligence of the defendant could sue for negligent infliction of emotional distress based on fear of developing AIDS, without alleging that the blood actually contained HIV. Sonia Madrid was transporting medical samples from the defendant Medical Center to a laboratory when she was splashed with blood leaking from one or more of the packages she was carrying. She was advised by her doctor to be tested for HIV, and to not accept a negative test as final until she had repeatedly tested negative over a period of time. Madrid had unhealed paper cuts on her hands at the time of the incident. She sued the defendant medical center for emotional distress stemming from her fear of developing AIDS, but the trial court granted summary judgment to the medical center, holding that an allegation of actual exposure to HIV-infected blood was an essential element of her claim. This was reversed by the court of appeals. The opinion by Justice Ransom, affirming the court of appeals, found that actual exposure to HIV was not necessary in circumstances where a reasonable person would fear the possibility of HIV-infection. After reviewing decisions from other states, a majority of which do require an allegation of actual exposure, Ransom concluded: "Sound public policy supports recognition of a cause of action for emotional-distress damages in favor of one who fears that the negligence of another has caused him or her to contract HIV through a medically sound channel of transmission. Persons whose conduct may expose another to HIV virus should be encouraged to use reasonable care. Madrid presented evidence that she was exposed to bloody fluids through unhealed paper cuts on her hands. It is also unclear whether or when she may have received information about how many sample containers may have leaked and the HIV status of the samples in those containers. On this record summary judgment was therefore inappropriate." A.S.L. Texas Appeals Court Upholds Immunity Claim in Medical Malpractice Case In Hodgson v. University of Texas Medical Branch at Galveston, 1996 WL 499465 (Tex. App., Sept. 5), Hodgson appeals the grant of summary judgment in her medical malpractice action. Hodgson was 16 weeks pregnant when she was tested for HIV at a UTMB satellite clinic. Her blood was collected and forwarded to another facility for testing, and her positive test results were entered into the UTMB computer system in October 1988. Hodgson was not advised of the positive result of her test until late January, 1989, her 34th week of pregnancy. By that time, it was too late for her to elect an abortion. Hodgson sued for medical malpractice. The defense of sovereign immunity was interposed on behalf of the governmental entities, as it was alleged that her claim went beyond the limited waiver of sovereign immunity granted under the Texas Tort Claims Act. Summary judgment was granted in favor of UTMB, the UTMB Hospital, the County, and the state, and Hodgson's claims against these defendants were severed from those against the individual defendants. Under the Texas Tort Claims Act, governmental entities would only be liable for "personal injury and death . . . caused by a condition or use of tangible personal or real property if the governmental unit would, if it were a private person, be liable to the claimant under Texas law." The governmental entities argued, and, the trial court ruled, that Hodgson's claim was premised on the improper use of medical information, which is not tangible personal property. Hodgson argued that her suit was not premised on the use of the medical information, but on the improper control and misdirection of a logbook and lockbox used to maintain patient confidentiality in the transmission of HIV information. Had the logbook been timely forwarded to the correct clinic, she argued, she would have been advised of test results in a timely manner. The Court of Appeals affirmed, ruling that the crux of Hodgson's complaint was that while the medical information, as memorialized in a logbook, was improperly transmitted, medical information is not personal property as contemplated by the Texas Tort Claims Act. The memorialization of information in a log book, the court ruled, does not transform it into personal property. For whatever it is worth, the court does not reconcile its conclusion with its statement of the facts, which specifically find that the data was entered in the UTMB computer system, or the relevance it might have. S.K. D.C. Court Holds Government Has Claim on Tort Damages Won by HIV+ Medicaid Recipient In Walker v. District of Columbia, the District of Columbia Court of Appeals upheld the district's right to fully recover its Medicaid outlays for an AIDS patient from a subsequent tort recovery by the patient's estate. 1996 WL 490735 (Aug. 29). The estate asserted a claim against the American Red Cross, alleging that the patient contracted AIDS through an improper blood transfusion. The estate's $3 million claim was settled for $350,000, from which was subtracted attorney's fees and costs of litigation totalling $192,000. This left $158,000 prior to the reimbursement of the district, which had incurred $53,000 in Medicaid cost for the patient. The district declined to accept a lesser sum, and the court found no abuse of discretion in the district's decision. The court held that full reimbursement was the rule, even under provisions in the district's reimbursement statute permitting the mayor to waive reimbursement in whole or in part if reimbursement would cause undue hardship to the patient's survivors, or to contribute toward litigation costs. The court also held that equitable principles did not require the district to partially compromise its claim. R.M. NY Appellate Division Finds No Cause of Action in AIDS Fear Case Upholding a dismissal of a claim for negligent infliction of emotional distress by the spouse of a person with AIDS who was patient in a municipal hospital, the N.Y. Appellate Division, 2nd Department, in a cryptic memorandum decision, appeared to agree with the trial court that "no cognizable cause of action had been state." Lopez v. N.Y.C. Health & Hospitals Corp., 1996 WL 534693 (Sept. 9). Ana Lopez joined with her husband Oscar in suing the municipal hospital system, based on Oscar's malpractice claim of failure to properly diagnose and treat him for AIDS. Ana's claim for negligent infliction of emotional distress was based on her allegation that "she continued to have sexual relations with her husband and feared that she had become infected." Unfortunately, the Appellate Division did not reveal its analysis of this claim in upholding the dismissal. A.S.L. Idaho Court Finds Public Policy Violation in Discharge of AIDS Instructor In Hummer v. Evans, 1996 WL 490675 (Aug. 29), the Idaho Supreme Court held that the termination of an AIDS instructor by the state department of education in retaliation for the instructor's writing a letter to a court considering a sentence reduction for an HIV+ inmate, whom the instructor wanted to use as a spokesperson in AIDS prevention efforts, violated state public policy. The instructor had been subpoenaed, and the court concluded that there existed an overriding public policy in obtaining candid, truthful information for use in court proceedings. R.M. Connecticut Court Refuses to Strike Emotional Distress Claim Against Hospital by Nurse Who Feared AIDS Exposure Where a nurse-employee of a hospital was punctured with a needle used in surgery and followed the correct statutory procedures for reporting the incident and then requested the hospital to convene a committee to evaluate whether the surgical patient's blood should be tested for HIV, and where the hospital failed to timely convene such a committee, Connecticut's Superior Court has held that the plaintiff is not bound by the Worker's Compensation Act provisions but may bring a common law tort action for negligent infliction of emotional distress against her employer. Therrien v. Mount Sinai Hospital, 1996 WL 497411 (Conn. Super, Aug. 21). Connecticut law has attempted to balance patient privacy and the occasional need by those who care for people with AIDS and HIV to have access to patients' seropositive status. General Statute 19a- 582 requires informed consent by an individual prior to the performance of an HIV-related test; however, one exception is where a health care provider or other person in the course of work has had a significant exposure to that individual's blood. In order for an individual's blood to be tested without that person's consent, the statute provides that the worker must report the matter within 48 hours of exposure in an incident report, submit to a baseline HIV test within 72 hours of the exposure and be negative in that test; the patient's physician must seek voluntary consent to test and the patient must have refused; and an exposure evaluation group must determine that all these criteria have been met and that the worker has indeed had a significant exposure to the blood of a patient. In those circumstances, if the person is in a health care facility or other institution, that institution may test the blood, if a sample is available. Plaintiff Therrien is a registered nurse employed at Mt. Sinai. In December, 1992, she was punctured with a surgical needle. She followed procedure, completing an incident report that day and submitting to a baseline HIV test. The hospital also had a blood sample from the surgical patient. However, when Therrien requested the next day that the hospital convene an exposure evaluation group pursuant to law to determine whether the circumstances would require a testing of the patient's blood for HIV, the hospital refused her request without a court order. Upon the initiation of this suit, two years after the incident, the patient consented to a blood test. Therrien alleged that the hospital breached its duty in that it knew or should have known that its failure to properly and timely begin the statutory procedure needed to test the surgical patient's blood caused her to suffer severe emotional distress. In this motion to strike by the defendant-hospital, the hospital argued that Therrien's pricked finger was an on-the-job injury, and that this injury is the subject of her claim and thus falls under the exclusivity provision of the Workers Compensation Act. The Act's purpose is to compensate workers for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer. The court disagreed, stating that the injury to Therrien's finger was not the proximate cause of her claim of distress. Rather, her alleged emotional injuries arose as a direct result of the hospital's delay in failing properly to exercise its statutory duty to create an exposure committee. Under Connecticut law, an employee may bring a tort action for a mental or emotional impairment arising out of and in the course of employment that does not arise from physical injury or occupational disease. Since Therrien's injury did not arise out of the personal injury, she may therefore bring a common-law tort action against her employer. Defendant's motion to strike was denied. J.H. AIDS Law & Society Notes The get-tough-on-immigrants mood in Congress has intruded into federal AIDS policy. The conference committee on an immigration bill pending at the end of September included a provision that would prevent legal immigrants infected with HIV from receiving publicly-financed health treatment. A decision by conferees to remove from the bill a provision barring the children of illegal immigrants from public schools made it more likely that President Clinton will sign the final measure, although some within the administration were lobbying hard for a veto due to several regressive provisions in the bill, including the AIDS measure. New York Times, Sept. 25. Federal public health officials published a call for prisons to offer condoms and clean needles to prisoners in an effort to curtail the spread of HIV in prisons. The publication on Sept. 19 in the American Journal of Public Health, part of an article by Nancy Mahon, director of the Center on Crime, Communities and Culture of the Open Society Institute in New York, stated that focus groups of prisoners and former prisoners in New York indicated a wide range of consensual and non-consensual sex inside correctional facilities. St. Paul Pioneer Press, Sept. 20. AIDS activists nationwide were alarmed to learn that a list of 4,000 persons with AIDS was leaked from the Pinellas County, Florida, Health Unit. Public health officials nationwide are custodians of considerable confidential information about the identity of people with AIDS and, in 26 states where test results are reportable, people with HIV who do not meet the clinical definition for AIDS. The news about this leak surfaced in anonymous letters to the editor of newspapers in Tampa and St. Petersburg, reporting that an employee of the Health Unit had been bragging about his possession of the missing computer disk at a gay bar. The disk later turned up in the possession of the St. Petersburg Times, which placed it in a sealed envelope and gave it to the newspaper's attorney for safe keeping. St. Petersburg Times, Sept. 20. A Medicaid fraud trial in Columbus, Ohio, ended in a mistrial Sept. 17 when the first prosecution witness said that the defendant doctor and his male co-defendant were homosexual lovers. U.S. District Judge George C. Smith granted a defense motion for mistrial, concluding that the testimony was irrelevant to the case and prejudicial to the defendants' ability to get a fair trial. U.S. v. Neufeld and Mickle. Columbus Dispatch, Sept. 18. A.S.L. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: Aguilar, Shella M., Los Angeles Asian Pacific Islander Sisters, 5 So. Cal. Rev. L. & Women's Studies 75 (Fall 1995) (from symposium on lesbians in the law, comment on community activism). Beatty, David M., The Canadian Conception of Equality, XLVI U. Toronto L.J. 349 (Summer 1996). Carpenter, Dale, Same-Sex Sexual Harassment Under Title VII, 37 So. Tex. L. Rev. 699 (June 1996). Costa-Santos, J., and R. Madeira, Transsexualism in Portugal, 36 Med., Science & L. 221 (July 1996). Cox, Barbara J., "Coming Out": The Practical Battle of Being Visible as a Lesbian, 5 So. Cal. Rev. L. & Women's Studies 89 (Fall 1995). Craig, Amelia A., Musing About Discrimination Based on Sex and Sexual Orientation as "Gender Role" Discrimination, 5 So. Cal. Rev. L. & Women's Studies 105 (Fall 1995). Farrington-Domingue, Sandra, The Intersection of Race and Gender and Its Effects in the Workplace, 5 So. Cal. Rev. L. & Women's Studies 187 (Fall 1995) (from symposium on lesbians in the law). Goldberg, Jackie, Fighting the Battles in the Public Sector, 5 So. Cal. Rev. L. & Women's Studies 119 (Fall 1995) (from symposium on lesbians in the law). Gunning, Isabelle R., Stories From Home: Tales from the Intersection of Race, Gender and Sexual Orientation, 5 So. Cal. Rev. L. & Women's Studies 143 (Fall 1995). Hanafin, P., Reproductive Rights and the Irish Constitution: From the Sanctity of Life to the Sanctity of Autonomy?, 3 European J. Health L. 179 (June 1996). Helfer, Laurence R., & Alice M. Miller, Sexual Orientation and Human Rights: Toward a United States and Transnational Jurisprudence, 9 Harv. Hum. Rts. J. 61 (Spring 1996). Howarth, Joan W., First and Last Chance: Looking for Lesbians in Fifties Bar Cases, 5 So. Cal. Rev. L. & Women's Studies 153 (Fall 1995). Iglesias, Elizabeth M., Rape, Race, and Representation: The Power of Discourse, Discourses of Power, and the Reconstruction of Heterosexuality, 49 Vanderbilt L. Rev. 869 (May 1996). Kadidal, Shayana, Obscenity in the Age of Mechanical Reproduction, XLIV Am. J. Comp. L. 353 (Spring 1996). Leonard, Arthur S., Supreme Court Rejects Anti-Gay Colorado Ballot Measure, 5 Emp. Testing L. & Policy Rep. 135 (September 1996). Locke, Steven S., The Equal Opportunity Harasser as a Paradigm for Recognizing Sexual Harassment of Homosexuals Under Title VII, 27 Rutgers L. J. 383 (Winter 1996). Mannheimer, Michael J., Equal Protection Principles and the Establishment Clause: Equal Participation in the Community as the Central Link, 69 Temple L. Rev. 95 (Spring 1996). Powell, D. Lisa, United Lesbians of African Heritage, 5 So. Cal. Rev. L. & Women's Studies 81 (Fall 1995) (from symposium on lesbians in the law, comment on community activism). Reidinger, Paul, Politically Expedient, ABA J., Oct. 1996, p. 78 (discussion of enactment of bills widely believed to be unconstitutional, including specific discussion of DOMA). Rhode, Deborah L., Sex-Based Discrimination: Common Legacies and Common Challenges, 5 So. Cal. Rev. L. & Women's Studies 11 (Fall 1995) (introduction to symposium on lesbians in the law). Robson, Ruthann, To Market, To Market: Considering Class in the Context of Lesbian Legal Theories and Reforms, 5 So. Cal. Rev. L. & Women's Studies 173 (Fall 1995). Shafer, B. Kaye, Hate Crimes and Other Practical Battles, 5 So. Cal. Rev. L. & Women's Studies 131 (Fall 1995) (from symposium on lesbians in the law). Singer, Joseph William, No Right to Exclude: Public Accommodations and Private Property, 90 N'western U. L. Rev. 1283 (Summer 1996). Valdes, Francisco, Sex and Race in Queer Legal Culture: Ruminations on Identities & Inter-Connectivities, 5 So. Cal. Rev. L. & Women's Studies 25 (Fall 1995). Woolner, Ann, The Family That Wasn't, American Lawyer, September 1996, pp. 58-59 (sensible explanation of why the Defense of Marriage Act has nothing to do with defending marriage, and why the various state laws against same-sex marriage recognition may undermine efforts of same-sex couples to use a variety of contracts and other legal devices to obtain stability and security for their relationships). Student Notes & Comments: Bassi, Dennis G., It's All Relative: A Graphical Reasoning Model for Liberalizing Recovery for Negligent Infliction of Emotional Distress Beyond the Immediate Family, 30 Valparaiso U. L. Rev. 913 (Summer 1996). Neu, Beth, Family Law - Visitation - Wisconsin Brings Child Visitation Out of the Closet by Granting Standing to Nonparents in Custody of H.S.H.-K., 533 N.W.2d 419 (Wis.), cert. denied, 116 S.Ct. 475 (1995), 37 So. Tex. L. Rev. 911 (June 1996). Rosenman, Andrew S., Babies Jessica, Richard, and Emily: The Need for Legislative Reform of Adoption Laws, 70 Chicago-Kent L. Rev. 1851 (1995). Shiff, Sean Adam, The Good, the Bad and the Ugly: Criminal Liability for Obscene and Indecent Speech on the Internet, 22 Wm. Mitchell L. Rev. 731 (1996). Symposia: Lesbians in the Law: Symposium Issue, 5 So. Cal. Rev. L. & Women's Studies No. 1 (Fall 1995) (individual articles listed separately above). Specially Noted: The September/October 1996 issue of Linguafranca: The Review of Academic Life, includes a fascinating account of the academic controversy stirred up by some expert testimony offered in the Colorado Amendment 2 case, Romer v. Evans. Daniel Mendelssohn, The Stand: Expert Witnesses and Ancient Mysteries in the Colorado Gay Rights Trial, p. 34. John Finnis, a prominent British-Catholic philosopher, submitted written testimony by affidavit at the request of the state to illustrate that moral opposition to homosexuality did not originate with Judaeo-Christian thought, but actually can be documented from pre-Christian Greek sources such as Plato and Aristotle. This testimony was offered to bolster the state's argument that there was a rational basis for Amendment 2, which prohibited the state or its subdivisions from treating homosexuality or bisexuality as the basis for civil rights or discrimination claims. The state anticipated that the challengers would claim that the anti-gay attitudes behind Amendment 2 were primarily religious in derivation. In response to Finnis's testimony, University of Chicago Professor Martha Nussbaum, a classics scholar, testified that Finnis's interpretation of ancient Greek texts was based on defective English translations. Nussbaum contended that the references to homosexuality could be translated in a way that avoided pejorative connotations. A Princeton professor, Robert George, offered reply testimony accusing Nussbaum of distorting the sources and contending that a consensus of scholarly works on ancient Greek would support Finnis's reading. The controversy survives the lawsuit (even though the Supreme Court's decision declaring Amendment 2 unconstitutional seems not to have turned on this issue). Fascinating reading. A.S.L. AIDS & RELATED LEGAL ISSUES: Chadwick, Karen L., Fear of AIDS: The Catalyst for Expanding Judicial Recognition of a Duty to Prevent Emotional Distress Beyond Traditional Bounds, 25 N. Mex. L. Rev. 143 (Spring 1995). Siegel, Richard Lewis, AIDS and Human Rights, 18 Hum. Rts. Q. 612 (Aug. 1996). Specially Noted: The Law of Disability Discrimination: Cases and Materials, by Ruth Colker (Anderson, 1995) (ISBN 0-87084-146-7), is the first full- length law school textbook on the emerging law of disability discrimination. As supplemented with an ADA Handbook and paperbound updates for 1996, it would make a useful reference work for attorneys dealing with AIDS-related discrimination issues, covering the areas of employment, housing, public services and public accommodations. The book and supplementation together sell for $49; the book without the ADA Handbook is $42. The book is also available on disk. The publisher can be contacted at 1-800- 582-7295. A.S.L. 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.