LESBIAN/GAY LAW NOTES ISSN 8755-9021 April 1997 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@nyls.edu Contributing Writers: Otis Damslet, Esq., New York; Steven Kolodny, Esq., New York; Todd V. Lamb, Esq., New York; Mark Major, Esq., New York; K. Jacob Ruppert, Esq., New York; Dirk Williams, Esq., Boston; Charles Wertheimer, NY Law School Student; Robert Wintemute, Esq., London, England. 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) 1997 by Lesbian & Gay Law Association of Greater New York $45/yr by subscription; Foreign Rate US$60 Two State Appeals Courts Rule on Domestic Partner Benefits Claims Against Public Universities Within two days of each other, appellate courts in New Jersey and Alaska issued rulings on claims for domestic partnership benefits brought by lesbian and gay employees of state universities. In __Rutgers Council of AAUP Chapters v. Rutgers, The State University__, 1997 WL 106864 (March 12), a 3-judge panel of the New Jersey Appellate Division unanimously rejected the claim under state statutes and the state constitution. In __University of Alaska v. Tumeo and Wattum__, 1997 WL 112276 (March 14), the Alaska Supreme Court issued a 5-0 decision upholding the benefits claim under the state's Human Rights Act as it existed when the claims were brought, although a subsequent amendment of the Act in response to the trial court decision in this case may ultimately render it a merely theoretical victory. In the __Rutgers__ case, the plaintiffs based their claim on four distinct arguments: (1) that the State Health Benefits Plan (SHBP), which authorizes extension of benefits to dependents of employees, should be given a broad construction to include domestic partners; (2) that denial of domestic partner benefits violates the ban on marital status and sexual orientation discrimination in the state's Law Against Discrimination (LAD); (3) that denial of domestic partner benefits violates the right to equal protection under the state constitution; and (4) that a state executive order banning sexual orientation discrimination within state government mandates interpreting the Benefits Plan to cover domestic partners. Presiding Justice Shebell's decision for the court rejects each of these arguments. The SHBP was enacted in 1961. At that time, dependents was defined as an employee's spouse and unmarried children under the age of 23 living with the employee. The legislature included no definition of spouse. While recognizing that in recent years society's notions of family have changed to include unmarried couples, the court found that this change had not gone so far as to equate spouses with non-marital couples in the common use of the term "spouse." Turning to the LAD argument, the court noted that the legislature had apparently anticipated this sort of claim by including an express exception in the law: "Nothing contained in this act . . . shall be construed . . . to interfere with the operation of the terms or conditions and administration of any bona fide retirement, pension, employee benefit or insurance plan or program . ., provided that the provisions of those plans or programs are not used to establish an age for mandatory retirement." The court described this as an "unambiguous exception for benefit and insurance programs," and held that it bars any discrimination claim against the benefits plan under the LAD. Turning to the constitutional claim, the court found that New Jersey courts have taken a less rigid approach to equal protection than the federal courts, with their multi-tiered levels of scrutiny. The court noted that only intentional discrimination is prohibited by the New Jersey constitution, and that "close" scrutiny is given to discrimination based on "suspect classifications." New Jersey courts have not gone further than federal courts in defining suspect classifications, and the court noted that federal appeals courts have rejected claims that sexual orientation is a suspect classification. Thus, close scrutiny would not be applied here. Rather, the court would ask "whether there is an appropriate governmental interest suitably furthered by the differential treatment." Applying this test, the court found that the state's articulated interest of "creating a workable administration scheme that can be applied in a uniform and objective manner" outweighed the plaintiffs' interests, because it avoided the state "getting involved in a subjective analysis, and avoids that certain conflict that would arise from establishing and analyzing subjective criteria." Responding to the plaintiffs' claim of unfairness because they could not marry their partners to qualify for the benefits, the court briefly reviewed the history of same-sex marriage litigation, noting that with the singular exception of Hawaii, the courts of no state had been receptive to legal challenges seeking same-sex marriage licenses. The court noted, further, that same-sex couples were not the only couples excluded from marrying in New Jersey, pointing out that "cousins, parents, children over 23 years of age, siblings, or anyone related too closely by blood, including those persons legally married to another, cannot qualify for benefits because of the marriage requirement, no matter how dependent or emotionally bonded they may be." The court found no evidence that the legislature specifically intended to discriminate against "lesbian or gay male persons," but rather that such persons were part of a larger category of couples excluded from marriage who could not qualify for spousal benefits in the workplace. Accepting the administrative and financial policy reasons articulated by the state as sufficient to sustain the current scheme, the court opined that it was up the legislature to decide whether to alter those policies in order to accommodate same-sex couples. The court did note that there was nothing to stop same-sex public employees from seeking these benefits through collective bargaining. Turning last to the executive order, which covers only sexual orientation discrimination, the court noted that what was really at issue in this case is marital status discrimination, because a wide variety of non-gay couples are also excluded from marrying and obtaining benefits, and thus the executive order would not address this problem. Further, the court found that an executive order must cede priority to a statute -- in this instance, the LAD's specific exemption of employee benefit plans from the non- discrimination requirement. The Alaska Supreme Court was first faced with the issue of mootness. After Judge Greene of the Superior Court ruled that the marital status discrimination provisions of the state's Human Rights Act require the University to extend health insurance benefits to domestic partners of employees on the same basis as it is extended to legal spouses, the legislature reacted by amending the Human Rights Act as follows: "Notwithstanding the prohibition against employment discrimination on the basis of marital status or parenthood. . ., an employer may, without violating this chapter, provide greater health and retirement benefits to employees who have a spouse or dependent children than are provided to other employees." This would seem to end the controversy. However, the Supreme Court, in any opinion by Chief Justice Compton, held that there was still a live controversy for two reasons: (1) After Judge Green issued her order and requests to stay the order were unavailing, the University did extend domestic partnership benefits until the legislature had acted to overrule the decision, and it was conceivable that the University might now demand refunds from employees if the Supreme Court held that Judge Green's ruling was incorrect; and (2) Judge Green awarded attorney's fees to the prevailing party and, if her construction of the Act was correct at the time it was rendered, the plaintiffs should still be entitled to attorney's fees as prevailing parties. Satisfied that there remained a live controversy, the court turned to the merits and found that the unequivocal ban on marital status discrimination in terms and conditions of employment did extend to employee benefits at the University, and that in light of the broad construction previously given to the marital status provisions by the courts, the plaintiffs' claims were valid under the law prior to its amendment. Rejecting every attempt by the University to contend that some sort of exception should be read into the law, the court found that the non-discrimination requirement was unambiguous and not in any way modified by subsequent legislation authorizing the institution of employee benefit plans for public employees in Alaska. In a terse concluding paragraph, the court affirmed that the University had admitted discriminating on the basis of marital status, that the statute pre-amendment forbade such discrimination, and that the University had failed to meet its burden to show that the legislature's intent was in any way contrary to the language of the statute. Thus, the court affirmed the decision of the superior court and remanded the case "for further proceedings consistent with this opinion." It will be interesting to see what happens on remand in this case. Clearly, the plaintiffs will be entitled to resist any demand for refunds and will be entitled to their attorney's fees as prevailing parties. Less clear is whether the superior court could entertain a new argument based on the equal protection requirements of the state constitution, and whether in that context the type of administrative convenience argument that succeeded for the defendants in New Jersey would succeed in Alaska, whose courts have been notably receptive to a wide variety of discrimination claims consistent with the frontier ethos of the state. In the New Jersey case, plaintiffs were represented by Denise Reinhardt for Rutgers Counsel of AAUP Chapters, Rosemary DiSavino and Julie Goldscheid (ACLU) for individual named plaintiffs, and were assisted with amicus briefs from Lambda Legal Defense & Education Fund, the New Jersey Lesbian & Gay Law Association, and the New Jersey Education Association. In the Alaska case, William B. Schendel represented the plaintiffs, with amicus assistance from the Spectrum Institute (a non-profit organization based in Los Angeles concerned with non-traditional family issues), the National Lesbian and Gay Law Association, Lambda Legal Defense, and the National Organization for Women Legal Defense Fund. A.S.L. First Circuit Finds ADA Protection For HIV+ Dental Patient In a landmark decision issued on March 5, the U.S. Court of Appeals for the First Circuit upheld the granting of summary judgment in favor of an HIV+ woman who was refused routine service by her dentist due to her HIV-status. __Abbott v Bragdon__, 1997 WL 85096. This made the First Circuit the first federal appeals court to hold that an HIV+ asymptomatic individual is protected from discrimination by the Americans With Disabilities Act (ADA), which protects persons who suffer an impairment that significantly affects a major life activity. On Sept. 16, 1994, Sidney Abbott, a resident of Maine, went to the office of Dr. Randon Bragdon for a pre-scheduled dental appointment. On her patient registration form, Abbott indicated that she was infected with HIV. At the time of the incident, Abbott was asymptomatic and did not have AIDS. After a routine examination, Dr. Bragdon found a cavity in one of her teeth. Dr. Bragdon then told Abbott that, pursuant to his infectious disease policy, he would not fill her cavity in his office, but would only treat her in a hospital setting. Further, Dr. Bragdon informed Abbott that she would be responsible for the cost of whatever the hospital charged for the use of its facilities. Abbott refused the offer and instead filed a complaint against Abbott under the ADA, represented by the Gay & Lesbian Advocates & Defenders (GLAD). Both sides moved for summary judgment after pre-trial discovery. The district court ruled that Abbott was substantially limited in a major life activity (reproduction), and thus was disabled for the purposes of the ADA. __See Abbott v. Bragdon__, 912 F.Supp. 580, 587 (D.Me. 1995). The court further concluded that the routine treatment Abbott needed could have been provided safely in Dr. Bragdon's office; consequently, the court granted Abbott's motion for summary judgment and denied Bragdon's. __Id.__ at 595-96. Bragdon presented two questions to the court of appeals: first, whether Abbott, who was infected with HIV but was asymptomatic, had a disability cognizable under the ADA; and, second, whether Abbott's affliction posed a direct threat to the health and safety of others and therefore was an exception to the ADA. Addressing the first issue, Abbott alleged that her HIV infection was a disability that substantially interfered with her ability to reproduce. The court, in an opinion by Judge Selya, easily found that HIV+ status, whether symptomatic or asymptomatic, comprises a physical impairment under the ADA. For the second prong of the test, Abbott cited reproduction as her affected major life activity. Dr. Bragdon argued that reproduction was not a major life activity, and in the alternative, argued that Abbott could not cite reproduction as __her__ major life activity. The court found that Abbott's HIV+ status had a profound impact on her ability to engage in intimate sexual activity, which has been identified as a major life activity in prior cases. Further, the court found that, at a minimum, there was an 8% chance that Abbott would pass her infection on to any child she bore. Finally, the court found that, due to her HIV+ status, it was likely that Abbott would not live long enough to complete the duties of raising a child. Based on the foregoing, the court found that no reasonable juror could conclude that an 8% risk of passing an incurable, debilitating, and inevitably fatal disease to one's child is not a substantial restriction on reproductive activity. After finding that Abbott's condition triggered the protections of the ADA, the court was careful to note that its determinations were fact-specific to this case, referring to Abbott as a "fecund female" whose reproductive capacities had been significantly impaired by her HIV-status. Addressing the second issue, the court had to determine whether Abbott's HIV+ status posed a "direct threat" to the health and safety of others and therefore came under an express exception to the ADA's non-discrimination requirement. The court reviewed guidelines for dentists and other health care professionals for treating people with HIV. The court dismissed most of the studies suggested by Dr. Bragdon, because they dealt with transmission of HIV from the doctor to the patient. The court found that the doctor was in a better position to protect him or herself from HIV infection and therefore the case studies did not applying to the situation of a patient infecting a doctor. After so finding, the court upheld the district court's granting of summary judgment in Abbott's favor. GLAD's cooperating attorney, David G. Webbert, of Johnson, Webbert & Laubenstein in Augusta, Maine, stated: "This victory has enormous implications for people with HIV. People with HIV have experienced widespread discrimination in access to health care. If Dr. Bragdon's position in this case had prevailed, then any doctor or nurse could refuse to draw blood or insert an intravenous line for any patient with HIV." GLAD's press release announcing the decision identified two important legal precedents set by the opinion: "First, the court held that a dentist's fear of potential HIV transmission from the patient to the dentist is irrational and not based on scientific evidence and therefore is not a basis for exemption from the ADA's discrimination provisions. Second, the Court ruled that the ADA, which prohibits discrimination against disabled people in places of public accommodation (including dental and medical offices) - as well as in employment and public services - protects people who are HIV-positive, but do not yet have an AIDS diagnosis." At the end of its decision, the court again noted that this decision was fact-sensitive and that it might have ruled differently had the patient required a more invasive procedure. T.V.L. LESBIAN/GAY LEGAL NEWS Vermont Supreme Court Rules Against Lesbian Co-Parent in Visitation Dispute In a surprising change of stance for a gay-friendly jurisdiction, the Vermont Supreme Court rejected a lesbian partner's effort to establish visitation with her former partner's adopted child, holding that there is no legal right by which the court might fashion an equitable remedy, and that the court was unwilling to create a new legal right of "equitable parentage" for third parties seeking visitation, as was suggested by the firmly-worded dissent. Titchenal v. Dexter, 1997 WL 82730, 23 Fam. L. Rep. (BNA) 1224 (Feb. 28). The dispute arose from the breakup of a relationship between Chris Titchenal and Diane Dexter, who had both participated in raising a child adopted by Dexter. In 1985, the parties began an intimate relationship in which they jointly purchased a home, held joint bank accounts, and jointly owned their cars. They both contributed financially to their household, and regarded each other as life partners. At some point, they decided to have a child. When attempts to conceive via a sperm donor failed, they decided to adopt. In July 1991, defendant adopted a newborn girl, who was named Sarah Ruth Dexter-Titchenal. The parties held themselves out to Sarah and all others as her parents. For the first 3-1/2 years of Sarah's life, Titchenal cared for the child approximately 65 percent of the time. Plaintiff did not seek adoption of Sarah because the parties believed that the adoption statute would not allow both of them to do so. In 1994, the parties' relationship deteriorated and the defendant moved out, taking Sarah. For the next five months, Sarah stayed with Titchenal twice a week. By spring of 1995, defendant had severely curtailed plaintiff's contact with Sarah and refused plaintiff's offer of financial assistance. In October 1995, realizing that the family court lacks jurisdiction to adjudicate her claim, plaintiff requested the superior court to exercise its equitable jurisdiction to establish and enforce regular unsupervised visitation between her and Sarah. The court granted defendant's motion to dismiss, refusing to recognize a cause of action for parent-child contact absent a common law or statutory basis. Titchenal argued on appeal that the superior court has equitable jurisdiction under the state's __parens patriae__ authority to consider her claim, and that public policy and the doctrines of __in loco parentis__ and __de facto__ parenthood allow the court to exercise equitable authority in cases such as this. Chief Justice Allen, writing for the court, found no legal basis for the plaintiff's proposal, stating that the courts cannot exert equitable powers unless they first have jurisdiction over the subject matter and the parties. "[A] court may exert its equitable powers to grant appropriate relief only when a judicially cognizable right exists, and no adequate legal remedy is available." The inquiry then changed to whether there is an underlying legal basis for plaintiff's claim that would allow the superior court to apply its equitable powers, which courts may exert based on common-law, statutory, constitutional rights or on public policy considerations. The court found no legal basis for plaintiff's claimed as an equitable or de facto parent, nor for her argument that public policy compels such a result. "[T]here is no common-law history of Vermont courts interfering with the rights and responsibilities of fit parents absent statutory authority to do so." Making clear the exception of __parens patriae__ power to adjudicate custody matters in neglect petitions, the court topped its reasoning off with the common-law rule that "parents have the right to the custody, control and services of their minor children free from governmental interference." The court further explained that "persons affected by this decision [including same-sex couples] can protect their interests" by adoption, which Titchenal did not attempt because the parties believed that Vermont's adoption laws at the time would not permit it. Effectively telling the plaintiff that she brought this problem on herself, the court stated that she actually could have adopted Sarah since "as of December 1991, when Sarah was only five months old, at least one Vermont probate court had allowed the female partner of a child's adoptive mother to adopt the child as a second parent." Moreover, in June of 1993, more than a year before the end of the parties' relationship, the Vermont Supreme Court construed the adoption statute to allow same-sex couple adoptions, under which unmarried adoptive partners could petition the family court regarding parental rights and responsibilities or parent-child contact. On public policy considerations, the court further sank the plaintiff's case by citing cases on the dangers of forcing parents to defend third-party visitation claims and the risk of abuse of the process to continue unwanted relationships or to harass the legal parents. "[Nothing] would . . . prevent parents from having to defend themselves against the merits of petitions brought by a potentially wide range of third parties claiming a parent-like relationship with their child," citing as examples __In re Hood__, 847 P.2d 1300 (Kan.1993) (day-care provider); __L. v. G.__, 497 A.2d 215 (N.J.Super.Ct.Ch.Div.1985) (adult siblings); __Bessette v. Saratoga County Comm'r__, 619 N.Y.S.2d 359 (N.Y.App. Div. 1994) (former foster parents). However, in what seems to be an olive branch offering, the court insists that its opinion should not be read to impede same-sex partners from child-rearing (although it does respect the public policy concerns "in this age of the disintegrating nuclear family"), but absent statutory authority extending the family court's jurisdiction to adjudicate third-party visitation requests, legal parents retain the right to determine whether third-party visitation is in their child's best interest. The court concludes that equity will not aid those who fail to take advantage of a remedy available at law, and that if the plaintiff wanted to adopt Sarah, she should have attempted to do so. Instead, plaintiff made no such attempt, but now seeks equitable relief years later. The dissent, penned by Justice Morse and joined by Justice Johnson, suggests the doctrine of equitable adoption, as an alternative, well-established remedy that is well suited to the factual circumstances of this case. This "equitable-parentage" theory is based on the doctrine of equitable adoption used in cases of intestate succession to permit participation in the estate by a foster child who was never legally adopted by the decedent. Upon the foster parent's death, a court declares the child is entitled to share in the estate as of she were legally adopted. Across the country, this doctrine has been invoked to entitle a child to maintain an action for wrongful death, death benefits under workers' compensation statutes, and to support the parental rights of a non-biological father to the daughter born while he was married to the mother. Morse proposes applying the original Vermont equitable adoption concept established in __Whitchurch v. Perry__, 408 A.2d 627 (1979), but in a "novel factual context." Titchenal "contends that she would have adopted [Sarah] when she was born in 1991, but that the adoption statute then appeared to allow only one unmarried person to adopt, and defendant was designated as the adoptive parent." Given the subsequent rule changes, Plaintiff should be allowed to prove "an intent to establish an adoptive relationship with the child that was never formally consummated because of the then current state of the law" and Titchenal's relationship with the defendant. Family court would be the proper venue because it is expressly empowered to "hear and dispose of issues pertaining to parental rights and responsibilities [of] . . . two unmarried persons, who have adopted a minor child," 15A V.S.A. sec. 1-112, and is further vested with full `equitable . . . powers' to determine whether one of the parties is entitled to adoptive parent status. 4 V.S.A. sec. 453(a)." The five-page dissent concludes that the case should be remanded to the family court to determine if Titchenal would have adopted Sarah except for the legal impediment and, if so, she would be deemed the equitable adoptive mother and the court presumably could accord her all the rights of a legal adoptive parent. The court rejected this approach on several grounds. First, regarding family court jurisdiction, it argued that family court lacks the proper jurisdiction because, despite the dissent's analysis, the fact remains that the plaintiff never adopted the child, the fact that triggers family court jurisdiction. The court cannot "remand" to family court as the dissent suggests, since the appeal is from superior court and the plaintiff never claimed that family court has jurisdiction to adjudicate the dispute. Second, the court rather colorfully chides the dissent for "stretching the doctrine . . . beyond recognition in an effort to provide relief to this particular plaintiff" while providing no "principled" justification or limitation. To do so would foreclose all others having legitimate reasons for failing to adopt from seeking equitable relief. The majority acknowledges that not many courts have embraced the equitable-parent doctrine and of those that did, the court does not find that any have limited it in the manner proposed by the dissent. The dissent responds claiming that it is simply invoking an application much closer to the original equitable-adoption concept: to find, in retrospect, an intent to adopt by a person who had never formally done so, for the purpose of achieving a just result. Responding to the issue of "principled justification," the dissent argues that its proposal is no more "unprincipled" than any other equitable doctrine, "unless the court also considers equitable estoppel, equitable servitudes, constructive trusts, specific performance, and every other equitable remedy to be unprincipled." Finally, the court advances that the plaintiff somehow could, and should, have attempted to adopt the minor child prior to the couple's separation in 1994. The dissent states that it would be unfair to conclude that the plaintiff, or anyone similarly situated, should have known that she had the legal right to adopt prior to the effective date of the new adoption statute. "It is one thing to presume that parties are aware of, and bound by, general enactments of the Legislature that amend the law; it is quite another, however, to impute to a non-attorney specific knowledge of one probate decision and a later, confirming appellate court decision." Although the court denies the parties' presumed knowledge of the state of the law at a given time, it does contend that for the doctrine to apply, there must either be an agreement to adopt or an undertaking to effect a statutory adoption, neither of which took place. In addition, equitable adoption "merely confers a right of inheritance," not to be construed as an actual adoption. __Whitchurch__, 408 A.2d at 632. Julie A. Frame and Jennifer E. Nelson represented the plaintiff- appellant; John R. Durrance, Jr., represented the defendant-appellee. An amicus curie brief in support of plaintiff was filed by Gay & Lesbian Advocates & Defenders (GLAD) of Boston. K.J.R. Mississippi Supreme Court Says Learning That Parent Is Lesbian or Gay Is Most Hurtful Thing a Child Could Hear Rumors of a woman's sexual orientation affected a Mississippi court's decision concerning her divorce, custody of her children, and division of the marital estate. __Bowen v. Bowen__, 1997 WL 80925 (Feb. 27). Linda and David Bowen filed cross complaints for divorce on grounds of cruel and inhuman treatment. The parties had two boys who were 11 and 15 at the time of the trial. Suffusing the proceeding were rumors of Linda's sexual orientation, some of which David spread. Linda neither acknowledged that the rumors were true, nor denied them. Both Linda and David presented evidence that the other had engaged in physical abuse, abused alcohol, and threatened suicide. Linda appealed the trial court's decision denying both parties' complaints for divorce, awarding custody of one child to each parent and dividing the parties' property. The Mississippi Supreme Court let the trial court decision stand, finding no grounds to grant a divorce for cruel and inhuman treatment to either party. The court rejected Linda's argument that David's spreading of the rumor that she was a lesbian constituted "conduct so unnatural and infamous as to make the marriage revolting" to Linda, reasoning that the spreading of a rumor that was never proven true or false did not rise to the level of maliciousness required for a divorce on the basis of cruel and inhuman treatment. The court also rejected Linda's challenge of the trial court's custody decision. David testified that the 11-year-old had heard a rumor that his mother was a lesbian on the school bus and that he was upset by the rumor. The trial court could not "imagine anything that would hurt a boy more [than] for another child to tell him something like that [his mother's lesbianism] unless he was to tell him that his father was a homosexual." With little legal discussion, the court found that there was no error for the trial court to award custody of the child to his father, based on the father's own testimony of one comment made by another child. The court also upheld the award to David of the use and possession of the parties' home, finding that this did not serve to punish Linda, but rather to provide for the welfare of the parties' youngest child. As a final matter, the court rejected Linda's arguments concerning the inequity of the judge's division of property. D.W. N.C. Supreme Court Excludes Evidence of Victim's Reputation for Homosexuality; Upholds Life Penalty for Murder The North Carolina Supreme Court affirmed a life sentence for Brian Elgin Laws, convicted by a jury of the first-degree murder of Earl Handsome. __State v. Laws__, 1997 WL 96640 (March 7). Handsome's body was found by a neighbor, bearing multiple stab wounds. Handsome's car was missing; police tracked down the defendant through the missing car, and he confessed to the murder. At trial, the defendant contended that he was repulsing a sexual attack from the victim when he stabbed and bludgeoned him to death, and offered expert testimony that he could have been suffering from a "rage reaction" to the victim's sexual advances, causing him to lose control of his actions. Appealing his sentence, the defendant complained of the trial court's refusal to let the jury hear testimony about the reputation of the victim as being a homosexual. The defendant had offered the testimony of a private investigator who, although he had not formed his own opinion as to the victim's sexual orientation, was prepared to testify that "several of the victim's acquaintances assumed he was a homosexual because `he was not seen with very many females' and `he always seemed to be with males.'" Upholding the trial court's exclusion of this testimony, Justice Lake wrote for the court: "[It] is clear that the evidence offered by the defendant showing that the victim had a reputation for being a homosexual is not a pertinent character trait with the meaning of [the Rule governing reputation evidence]. A victim's homosexuality has no more tendency to prove that he would be likely to sexually assault a male than would a victim's heterosexuality show that he would be likely to assault a female. Because an individual's sexual orientation bears no relationship to the likelihood that one would threaten a sexual assault, it therefore can bear no relationship to defendant's claim that he killed in self-defense in response to a threatened sexual assault." The court also rejected a variety of other alleged errors urged by the defendant on appeal, and noted, contrary to the defendant's arguments, that the jury could have concluded based on the forensic evidence that the victim was killed while trying to escape from the defendant rather than that the defendant killed the victim while trying to rebuff his aggressive sexual advances. A.S.L. Missouri Appeals Court Reverses Custody Grant to Transsexual Father; Remands for Reconsideration of Visitation Order The Missouri Court of Appeals, Eastern District, reversed an award of joint custody to J.L.S. and D.K.S. (now known as S.D.S.), and remanded for reconsideration of the trial court's order that the transsexual father be allowed to exercise visitation rights one year after issuance of the order. __J.L.S. v. D.K.S.,n/k/a S.D.S.__, 1997 WL 104514 (March 11). Mother and Father married in 1983, and had two sons, the oldest of whom was eight at the time of trial and the youngest of whom was five. Father ultimately determined that he was transsexual, and obtained treatment and sex-reassignment surgery after moving out of the family home. (Prior to marrying, Father had told Mother that he occasionally engaged in cross-dressing, but had assured her that his problems with this were "resolved." However, father struggled with the urge to cross-dress throughout his marriage.) The parties had separated at Father's request on August 1, 1992, while he began the trial process of living as a women prior to surgery. The sons were not told that this was the reason for the separation. They executed a separation agreement drafted by Father, which gave Mother sole, permanent care and custody of the children, and in which Father promised not to attempt visitation during his year of living as a woman. Mother filed for divorce in Maryland, where they lived, and filed a copy of the separation agreement with her divorce papers. Father opposed the divorce, stating his wish to continue living married to Mother and having his sons refer to him as "Aunt Sharon." Mother and sons moved to Missouri before the case was concluded, and the action was dismissed. Father has had no face-to-face contact with the sons since their move to Missouri. Mother filed for divorce in Missouri several months later, alleging that Father's lifestyle choices now made it impossible for the family to live together, and that it would be "extremely harmful" for the children to be placed in temporary custody or visitation with Father. Father denied the harmfulness allegations, and the statements in the divorce petition concerning his "choice" of a particular "lifestyle." The trial court appointed an expert to examine the children and the Father. Experts for both parties and the court's expert testified at trial. All of the experts agreed that immediate face-to-face contact between the boys and Father would be detrimental, since Father had undergone sex-reassignment surgery and was now a woman and the boys had not been prepared to deal with this. The trial court found that the father's expert, who testified that contact with the father would not be harmful to the boys after a suitable period of counseling, was the most credible, and awarded joint legal custody, the boys to live with Mother, and liberal visitation rights for father, after a period of one year, during which the court recommended that appropriate counseling be provided to prepare the sons to deal with their Father in her new status. (This was an extraordinarily enlightened decision, by contrast to most judicial rulings on parental claims by transsexual litigants, and the judge suffered for it, being defeated for re-election largely due to press coverage of this case.) Writing for the Court of Appeals, Judge Simon found implicit in the trial judge's decision a finding that "immediate contact between the children and father would impair the boys' emotional development." The twelve-month period for counseling specified in the trial court's order had expired, but there was no indication that the required counseling had taken place while the appeal was pending, and at oral argument Mother's attorney represented that the boys had still been told nothing about their Father's new status. "Clearly," wrote Simon, in the best interest of the children, a reevaluation of all parties must occur before the boys are exposed to a situation that father's experts deemed as harmful to them if they have not been correctly prepared." Simon characterized this as a "unique situation," and described the need for new evaluations before face-to-face contact as "imperative." "Thus, on remand the trial court should determine the mental and emotional status of the parents and children to determine what is in the best interest of the children. Based upon those findings the trial court should decide what remedial measures, if any, should be taken to insure the best interest of the children are served while working toward their reunification with father. Likewise, the trial court should structure a visitation schedule appropriate to the children's best interest." Responding to further argument from the Mother criticizing the trial court's order on counseling as too vague, Simon wrote that "the court should require evidence of successful counseling before implementing reunification. . . If the trial court finds, after the hearing, that the children are not emotionally and mentally suited for physical contact with their father, then the trial court should not order visitation until such time as the parties demonstrate it is in the children's best interest to do so." Turning to the joint custody award, the court agreed with Mother that the trial court erred in awarding joint legal custody. Missouri precedents provide that "joint legal custody is only appropriate where the parents show the willingness and ability to share the rights and responsibilities of raising their children," and the statutory preference for joint custody "is not that of a forced joint custody in order to induce the parents to find common ground." Here, the court found that the parents did not share a "commonality of beliefs" about how the children should be raised sufficient to support such a custody award, noting that the parents had not functioned together as a parental unit for several years and that Mother and children lived in Missouri and Father lived elsewhere. Father had cross-appealed part of the trial court's order, which restrict Father from cohabiting with other transsexuals or sleeping with another female person while exercising temporary custody during visitation with the children. Here, Father ran into the well-established practice of Missouri courts of restricting the living arrangements of gay parents exercising custody, and the court found "substantial evidence" to support the trial court's conclusion that such restrictions were necessary to protect the children's "moral development." In a separate opinion concurring in part and dissenting in part, Judge Karohl strongly disagreed with the court's decision to remand for a new visitation decree based on new evaluations of the parties and the children. Karohl observed that the trial judge was no longer on the bench, so the case would have to go to a new judge who did not have intimate familiarity with the parties and the situation, thus inevitably producing extended delay in the reunification of Father with the children. Karohl criticized the court's conclusion that the trial court had implicitly found that face-to-face reunification would be harmful to the children without extensive counseling preparation, and urged that reunification be allowed to proceed without further delay. However, Karohl agreed that a joint legal custody arrangement was not suitable for these parties, in light of their differences. Karohl found that the father's cross-appeal was flawed by failure to provide any case support for the legal points he was urging, in violation of the court's rules; in any event, Karohl found the restrictions imposed on the Father's living arrangements during visitation periods to be consistent with Missouri precedents. Although it is tempting to see the court of appeals' decision as a defeat for transsexual parents, actually the decision goes much further in acknowledging the parental interests of transsexuals than most prior cases. The reversal of the joint custody award seems reasonable in light of Missouri doctrine governing joint custody and the undisputed evidence that there were significant differences between the parents; significantly, the father was not requesting sole custody. While the court's remand order can be faulted on many grounds, it does not express overt hostility to the parental rights of the transsexual Father, as decisions by many other courts have done, and does not preclude reunification of the Father with the sons, as many courts in other jurisdictions would have done. In many contested cases of this type, the court's decision is to terminate the transsexual parent's parental rights and bar any contact with the children, so in that light, the court of appeals' decision can be viewed as progress on these issues, especially in light of the well-established reputation of Missouri courts as hostile to non-conforming parental sexuality. A.S.L. N.J. Appellate Division Upholds Restrictions On Adult Video Stores The New Jersey Appellate Division upheld the constitutionality of a state law criminalizing the operation of adult video stores that offer "booths, screens or other devices which facilitate sexual activity by patrons." __Chez Sez VIII, Inc. v. Poritz__, 688 A.2d 119 (N.J.App., Feb. 7). The stated rationale for the law was to prevent the spread of sexually-transmitted diseases, but the remedy is rather draconian: in addition to misdemeanor penalties, an owner convicted of violating the statute could be required to forfeit the store to the state. The Superior Court in Mercer County had granted a preliminary injunction against enforcement on constitutional grounds, but the Appellate Division reversed, contending that the lower court had misread the statute to ban all facilities in which sex videos were exhibited. Rather, said Judge Petrella for the court, the law only bans the operation of enclosed viewing areas where sex might take place, finding that the law was a content-neutral regulation of conduct rather than a violation of free speech rights. A.S.L. Alabama Federal District Court Rejects Same-Sex Harassment Claim In a brief discussion reflecting none of the concern about whether same-sex harassment claims are actionable under Title VII, U.S. District Judge Carroll dismissed such a claim in __Sneed v. Montgomery Housing Authority__, 1997 WL 121212 (M.D.Ala., Feb. 5) on the ground that the plaintiff had failed to prove harassment. Beverly Sneed, who represented herself pro se, alleged that after her supervisor, Carol Brown, and another employee had a discussion of lesbianism and lesbian activities, Brown put her arm around Sneed's shoulder and around her waist and ran her hand through her hair. Sneed claimed that when she brought this to management's attention, Brown was questioned and denied engaging in the activity; Brown's supervisor told her that such conduct would be unacceptable and should be avoided. Brown categorically denied having engaged in such activity at the non-jury trial held on Sneed's claims (which also included retaliation and sex discrimination). The court ruled against Sneed on credibility grounds. It is interesting that the opinion contains virtually no discussion of whether same-sex harassment is actionable, but merely provides as if it is and disposes of the claim on the merits. A.S.L. Illinois Federal District Court Sets Trial on Same-Sex Harassment Claim Denying a defense motion for summary judgment, U.S. District Judge Conlon set a trial date for a claim of same-sex hostile environment harassment brought by Nick Peric against the University of Illinois and his supervisor, Richard Meyer. __Peric v. Board of Trustees__, 1997 WL 112819 (N.D.Ill., March 10) (not officially published). Peric, a computer supervisor at the University, claimed that Meyer, the Assistant V.P. of Computer and Network Operations, began to make sexual overtures toward him after Peric was promoted to a manager position. Peric alleges a series of incidents culminating in unwanted genital groping following questioning about his views toward homosexuality, gays in the military, and anal sex. The University's attempt to get the claim dismissed on the ground that Title VII does not cover same sex harassment was rejected in a previous decision, reported at 1996 WL 515175. In this opinion, Judge Conlon denied the University's motion for summary judgment on the Title VII claim, finding that although the individual incidents described by Peric might not suffice for a finding of hostile environment, the sequence of events Peric alleged, if proved at trial, could cumulatively prove a hostile environment claim. However, Conlon granted summary judgment to the extent Peric also alleged a quid pro quo discrimination claim, finding that Peric failed to allege that Meyer's harassment affected a "tangible aspect of his employment." Ruling on another count of the complaint, Conlon found that Peric's tort claims of emotional distress and battery were preempted by his civil rights claim. The court also granted summary judgment on an Americans With Disabilities Act claim, finding that some back pain Peric experienced was not severe enough to meet the definition of a disability under the Act. A.S.L. Texas Supreme Court Explains Decision Against Log Cabin Republicans In __Republican Party of Texas v. Dietz__, 1997 WL 82740 (Feb 28), the Texas Supreme Court issued its opinion explaining why it had reversed a trial court decision granting an injunction directing the Republican Party of Texas to grant booth space and program advertising space to the Log Cabin Republicans of Texas and the Texas Log Cabin Republicans, Inc. (Log Cabin), an organization of lesbian and gay Republicans, at the 1996 state party convention. A per curiam opinion was issued on June 19, 1996, reversing the trial court decision, but the state supreme court reserved jurisdiction to issue a full opinion at a later time. In April of 1996, Log Cabin reserved and paid for space at the state convention, which would begin on June 20. The state party accepted and cashed the Log Cabin check. On May 15, Log Cabin submitted an advertisement for inclusion in the convention program, which described the group's position advocating equal rights for gay and lesbian individuals. On May 21, the state party executive director sent a letter to Log Cabin rejecting the ad, and returning the check submitted with it. The letter also stated that the group would be refused booth space at the convention, and refunded the money previously accepted for the booth. On May 30, Log Cabin filed suit in Travis County District Court seeking injunctive relief barring the state party from refusing them booth space or program space, and alleging that the state party had unconstitutionally infringed on Log Cabin's "rights to free speech, equal rights and due course of law under the Texas Constitution." Log Cabin also sought specific performance of its contract with the state party for booth and advertising space. The trial court granted a temporary injunction on June 14, barring the state party from excluding Log Cabin from the convention. The state party filed a "motion for leave to file a petition for writ of the district court's temporary injunction order" on June 17. Log Cabin requested a response on the next day, and a hearing was held on June 19. At the conclusion of this hearing, an emergency stay was granted to the state party. The Texas Supreme Court analyzed the issues in terms of whether a writ of mandamus would appropriately issue in favor of the State Republican Party, stating that this relief would be appropriate only to correct a clear abuse of discretion or violation of a duty imposed by law, and only if there is no other remedy available at law. The court ruled that mandamus would be available to the state party, because the trial court exceeded its jurisdiction by issuing the temporary injunction. The court ruled that the injunction sought by Log Cabin would be available only if the denial of booth and advertising space by the state party did constituted "state action." The state Supreme Court ruled that it did not in this context, even though actions by a political party might constitute "state action" in other contexts, such as determinations for eligibility to vote in primaries. The bill of rights found in the state constitution offered protection only against state action. Though the state parties were "state actors" for the purpose of determining eligibility to vote in primaries, they were not "state actors" for the purpose of conducting their internal affairs, which would include holding conventions or making determinations as to their platform. The stated purpose of Log Cabin's actions at the convention was to work towards changing the state party's platform on gay and lesbian issues. However, the court ruled, a party's platform is not part of the electoral process. A political party is not required to state a platform, nor are its candidates required to abide by any such platform stated. Thus, this denial of participation does not constitute state action. The court chose not to consider whether the fact that the convention was being held in a private facility which took on many of the attributes of a public facility (cf. the "shopping center cases") might have some impact on the decision, because neither side briefed or argued the issue. The Texas Supreme Court also rejected Log Cabin's contract claims, because the contract stated that the Party reserved the right to restrict exhibits which become "objectionable" because of undue noise, material, content, or for any other reason. Equivalent arguments applied to the advertising space. The court stated that the trial court granted Log Cabin more relief than Log Cabin was entitled to, even in terms of its contract claims. Finally, the Texas Supreme Court rejected Log Cabin's claim that mandamus was not an appropriate remedy for the state party because the tight time frames involved precluded appeal by normal means, while the initial determination affected the statewide convention and was thus of statewide importance (even though, a few pages before, the court appeared to state that such conventions were of no real importance. . .). Moreover, the Supreme Court ruled that the trial court decision infringed on the state party's first amendment rights. The supreme court then dismissed the state Republican Party's petition for mandamus as moot. In his concurring opinion, Justice Spector agreed with the court majority, but only on the grounds of mootness. Justice Spector disagreed with the majority's rationale in finding a requirement for state action under the state constitution, reading the same provisions of the state constitution as enhancing other sections of the state constitution. Justice Spector then argued that the majority's reliance on numerous federal cases disregarded the differences in language between the state and federal constitutions. The justice also disagreed as to the applicability of the shopping center cases because the convention was held in San Antonio's Alamodome, a public facility. Spector also rejected the majority's finding that the party was not a state actor in this context, because the majority opinion articulated no standard to determine where the threshold for state action lies. Justice Spector concluded that, based on the limited record of the hearing on a temporary injunction, the trial court observed that a "symbiotic relationship" existed between the state and a major political party, and that Log Cabin could probably prevail on the merits on its constitutional claims. On the same record, the state supreme court reached a contrary conclusion. Given the importance placed on political speech in our system, particularly in the context of a political convention, Justice Spector refused to join in an opinion which would shut off such debate. S.K. Tennessee Criminal Appeals Court Denies Post-Conviction Relief to Murderer of Gay Man Robert Lloyd Wiggins, found guilty of second degree murder in the brutal stabbing death of Bill White, a gay man, was denied post- conviction relief in __Wiggins v. State__, 1997 WL 124253 (Tenn.Crim.App., March 20). Wiggins was one of a group of three young men (ages ranging from 17 to 22) present in the home of White (then age 36) on the evening of September 6, 1990, when White was murdered. The co-defendants all presented different stories of what happened, a common element being that White, who had a reputation of sexual interest in male youths, made a sexual advance at one of the youths, who reacted by stabbing him to death. Then all of the youths joined in stealing some of White's property and removing his body to a nearby creek. In a criminal prosecution that generated a prior appeal to the Court of Criminal Appeals concerning, inter alia, whether proof of White's reputation could be admitted (a question answered in the affirmative by the court), Wiggins was ultimately sentenced to an effective term of 20 years. In this opinion by Judge Welles, the court denied Wiggins' pro se petition for post-conviction relief. One of the grounds Wiggins advanced was ineffective assistance of counsel, based on his lawyer's decision to use a "rage killing" theory to try to mitigate the severity of the crime. Wiggins contended that there was no evidence to support such a theory, and that his lawyer instead should have argued his total innocence. After reviewing the evidence, Judge Welles stated for the court: "We believe the record contains ample proof concerning the victim's reputation [as a homosexual who was fond of young men], and there is some evidence, albeit contradictory, of a homosexual advance during the evening. Accordingly, we conclude that there was evidence to support trial counsel's advancement of that theory at trial to refute proof that the killing of the victim was a planned endeavor." The court characterized as "even more important" that trial counsel used this theory as part of a three-fold strategy that involved attempting to separate Wiggins from the other co- defendants, to excuse the conduct Wiggins had admitted in helping the others to remove and hide the body, and to avoid a first degree murder charge "by showing the homicide to have been a rage killing provoked by a homosexual advance." It is interesting that the appeals court believes that, at least under Tennessee law, a "homosexual panic" defense remains a viable way to avoid liability for intentional murder. A.S.L. New Hampshire Federal Jury Awards $150,000 in Same-Sex Harassment Case An openly male gay employee who was allegedly subjected to a "pattern and practice of sexual harassment" by a female supervisor and other management employees won a jury trial under Title VII of the Civil Rights Act of 1964 on Feb. 28. __Provencher v. CVS Pharmacy Corp.__ (D.N.H.). According to a news report in the __Washington Blade__ (March 21) quoting Boston's __Bay Windows__, Provencher claimed that "his female supervisor repeatedly called him "faggot" and "queer" and that she exposed her breasts to him in an effort to make him a "real man." Provencher claimed that upper management brushed off his complaints and fired him in retaliation for filing a discrimination claim with the New Hampshire Human Rights Commission. According to the news report, District Judge Joseph Di Clerico ordered CBS to pay Provencher approximately $150,000 in back and front pay. A.S.L. Gay Officer Sues New York City Police Department For Constructive Discharge; City Argues Gays Lack Constitutional Rights A former police officer who alleges that he was constructively discharged by the New York City Police Department because he is gay beat back an attempt by the city to get his case dismissed, in __Tester v. City of New York__, 1997 WL 81662 (U.S.Dist.Ct., S.D.N.Y., Feb. 25). Incredibly, the city argued that his equal protection claim should be dismissed because gays are not entitled to protection under the Equal Protection Clause. After graduating from the New York City Police Academy in the top ten percent of his class, Plaintiff Michael Tester began working as a police officer at the 6th Precinct in Greenwich Village. He experienced harassment that was initially minor (for example, his locker was vandalized with smiley faces), but that became severe following an incident involving a street peddler who bit an officer. Although several officers were present at the scene, Tester was singled out for failing to assist; Tester argued that he was doing his job properly and that he was singled out because he is gay. Following this incident, Tester was given negative evaluations and disciplinary hearings, and was transferred twice. Feeling that his discrimination complaints were being ignored and that the harassment would continue, Tester resigned and sued the City of New York, the NYPD, former Police Commissioner Bratton, and Captain Kennedy of the 6th Precinct, alleging violations of 42 U.S.C. section 1983, the First, Fourth, and Fourteenth Amendments to the U.S. Constitution, and the Human Rights Laws of the State and City of New York. District Judge McKenna dismissed the First Amendment claim, ruling that, although Tester was "openly gay," he did not assert any specific statement on which to base a First Amendment claim. (Undermining his complaint, Tester argued in opposition to the motion to dismiss that his failure to act during the biting incident was a protest against the conduct of his fellow officers, but failed to state "any particular actions taken by the officers to which he objected.") McKenna also dismissed Tester's Fourth Amendment claim, because there was "no allegation that the unknown persons who allegedly vandalized Tester's locker [and removed its contents] were acting on behalf of the government." Bizarrely, the defendants moved to dismiss the Fourteenth Amendment claim on the basis that "in the absence of a fundamental right or suspect classification, homosexuals are not entitled to equal protection." McKenna rejected this argument, writing that rational basis review would still apply, and allowed the claim to proceed. McKenna also dismissed the New York State Human Rights Law claim, because that law does not prohibit sexual orientation discrimination, but allowed the claim under the New York City law, which does. McKenna dismissed all claims against Bratton, because there was no allegation that Bratton personally played any role in the conditions leading to Tester's leaving the Force, but allowed the claims against the remaining defendants to proceed. O.R.D. Marriage & Domestic Partnership Notes Same-sex marriage proponents in Hawaii breathed a sigh of relief when the state's Supreme Court ruled on March 24 in __Hawaii State AFL-CIO v. Yoshina__, 1997 WL 129427, that a ballot question concerning a potential state constitutional convention during the last general election did not pass. Although more voters cast "yes" ballots than "no" ballots, a large number of voters did not indicate their preference on this question. The court held that in order for the ballot question to pass, a majority of votes cast must be in favor, and blank ballots counted as "no" votes. As a clear majority of Hawaii voters have opposed same-sex marriage in public opinion polls, there was concern that a constitutional convention would overrule the state Supreme Court's decision in __Baehr v. Lewin__. The Nebraska Attorney General's explanation if why the state needs to pass a law against recognition of same-sex marriage in order to avoid having to honor same-sex marriages performed in other states has been published as an official Opinion of the Attorney General, No. 98090 (Dec. 30, 1996). See 23 Fam. L. Rep. (BNA) 1208 (March 4, 1997). Colorado legislators struggled through March with the problem of agreeing on an anti-gay marriage bill that Governor Roy Romer would sign. Last year, Romer vetoed a bill banning same-sex marriage, stating that he would not agree to such a measure if it did not establish a state body to study and recommend policies for accommodating the needs of same-sex couples. This year, reacting to the more immediate "threat" posed by the recent trial court ruling on the same-sex marriage case in Hawaii, Romer indicated willingness to sign an anti-gay marriage bill, provided it did not engage in gay-bashing or equate "gay and lesbian relationships with bigamy and incest, or [include] any equally divisive language." Romer's comments appeared to have little effect in the state House, but the Senate passed a carefully-worded bill tracking the governor's recommendation as to what he could sign. However, the House voted on March 21 to reject the Senate version of the bill, necessitating a conference committee effort. Opponents of the legislation were hopeful that a deadlock would ensue, or that the resulting compromise bill would be vetoed by Romer. __Rocky Mountain News__, March 22. On March 13, Romer stated that he would establish his own commission to study the needs of same-sex couples in long-term relationships and make recommendations for state policy. __Rocky Mountain News__, March 14. The Maine legislature passed an anti-same-sex marriage bill at the end of March. A spokesperson for Governor Angus King indicated he would not veto it, but had not decided whether to sign it or allow it to become law without his signature. King was not a proponent of the legislation. However, due to a successful petition drive by Concerned Maine Families, an anti-gay organization, failure by the legislature to pass the measure would have meant a ballot question at the next general election. The Maryland House Judiciary Committee rejected a variety of bills dealing with gay rights and same-sex marriages. One bill would have banned anti-gay discrimination in employment, housing and public accommodations; although the Committee voted 11-10 in favor of the bill, it fell short of the 12 votes needed for passage. Rejection was the fate suffered by a bill that would authorize same-sex marriages in Maryland; equally rejected was a bill that would ban the recognition of same-sex marriages performed out-of- state. __Washington Post__, March 20 and 22. To the surprise of nobody, Gordon Hinckley, president of the Church of Jesus Christ of Latter-Day Saints (the Mormons), announced March 19 that the church would do everything it could to stop the recognition of same-sex marriage in the U.S. "We believe that marriage of a man and a woman is ordained by God for the procreation of children," Hinckley told the __San Francisco Chronicle__ (March 20) after addressing a meeting of the World forum of Silicon Valley in Santa Clara, California. Hinckley said that there were "gays in the church" who were "good people," but that the Mormon faith required gays and lesbians to be celibate. The Chicago City Council voted 32-18 in favor of a domestic partnership benefits ordinance for city employees that was proposed by Mayor Richard Daley. The new ordinance, Section 2-152-072 of the Chicago Municipal Code, provides that a "qualified domestic partner" (which is limited to same-sex partners) "shall be eligible for the same benefits, including but not limited to health coverage, as are available to the spouse of an individual employed by the city of Chicago." Domestic partners, who must be at least 18 years old, must satisfy at least two of the following four conditions to qualify: (1) residing together for at least 12 months before filing their DP certificate with the city clerk; (2) having common or joint ownership of a residence; (3) having at least two of the following arrangements: joint ownership of a motor vehicle, a joint credit account, a joint checking account, or a lease identifying both domestic partners as tenants; (4) the city employee declares that his/her partner a primary beneficiary in the employee's will. There is a 12-month waiting period between successive domestic partnerships. The Long Beach, California, city council voted 6-3 on March 18 to establish a domestic partnership program for city residents. The program will allow registration of couples with the city clerk, and recognition of the relationship for purposes of visitation in city jails or hospitals, but will not provide financial benefits for city employees. Several more votes will be required for final enactment of an ordinance implementing the policies approved on March 18. __Long Beach Press Telegram__, March 19. St. Louis Mayor Freeman Bosley, Jr., issued an executive order on March 1 establishing a domestic partnership registry for unmarried couples. Signing the order at the city's lesbian and gay community center, Bosley stated that "the next step is health-care benefits" for domestic partners, which he said "will be on the front burner" at the next negotiation of the city health plan. The executive order authorizes visitation rights for domestic partners at city health care facilities and penal institutions, and became effective March 10. __St. Louis Post Dispatch__, March 2. Bosley subsequently lost the Democratic primary election for renomination. Jay Dearing, the Republican candidate, announced he would rescind the order if elected. __St. Louis Post Dispatch__, March 8. Bank of America announced to its employees on March 1 that beginning Jan. 1, 1998, "active U.S. salaried employees can enroll one of the following qualified adult members of their household [in the company's medical, dental and vision coverage plans]: spouse, opposite or same-sex domestic partner, parent, grandparent, sister, brother or adult child. Domestic partners must be in a committed relationship that has existed for at least six months and must be responsible for each other's welfare on a continuing basis. All other qualified adults, except spouses, must be under age 65, must be the employee's dependent as defined by the IRS, and could have their eligibility affected by the availability of other health coverage. . ." We suspect that this plan may be vulnerable to challenge under the federal Age Discrimination in Employment Act due to the age 65 cap on enrollees, but otherwise it appears about the broadest domestic partnership eligibility plan we've seen. Bank of America's adoption of this plan is a major breakthrough for domestic partnership in an industry that has not previously gotten on this bandwagon. __San Francisco Chronicle__, March 11. The U.S. Supreme Court granted certiorari in __Baker v. General Motors__, 86 F.3d 811 (8th Cir. 1996), No. 96-653 (cert. granted, March 24, 1997), a case raising issues about the interpretation of the Constitution's Full Faith and Credit Clause, a provision at the heart of the national debate over same-sex marriages in light of the possibility that such marriages will become possible in Hawaii soon. __Baker__ raises the question whether a trial court violated the Full Faith and Credit Clause when it ordered an expert witness to testify against General Motors in a products liability case, even though a settlement order in another case against General Motors in a neighboring state included an agreement, enforced by an injunction, that the expert in question not testify against General Motors in any further proceeding. The 8th Circuit had reversed a jury verdict on the ground that allowing the expert to testify violated the Clause, which requires judges in one state to give full faith and credit to the judicial actions of another state's courts. Part of the question before the Court may be whether there is a public policy exception to the dictates of the Clause. This could be a significant issue when same-sex marital couples from Hawaii seek to assert their marital status in other states. See __Interstate Recognition of Court Decisions to be Weighed__, __N.Y. Times__, March 25. A.S.L. Ohio Appeals Court Applies Domestic Violence Statute to Same-Sex Couples Following the lead of two prior Ohio court decision, the Court of Appeals for the First District ruled March 5 in __State v. Yaden__, 1997 WL 106343, that domestic violence within a cohabiting same-sex couple would be covered by the state's criminal statute on domestic violence. The case arose from an incident in late April, 1996, when Ronnie Yaden allegedly threw a telephone at his ex-lover, Joe Fields, and punched Fields in the stomach. Although the men, who had cohabited until recently, were no longer lovers, Yaden continued to stay in Fields' apartment from time to time. The trial court found Yaden guilty of violating the domestic violence statute, sentencing him to 180 days in jail. On appeal, Yaden argued that the statute was intended only to apply to couples who were married or could be married, relying on the definition of "family or household member" in the statute: "[a] spouse, a person living as a spouse, or a former spouse of the offender." The statute also defines "living as a spouse" to mean "a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within one year prior to the date of the alleged commission of the act in question." The statute does not define "cohabitation" Yaden contended that the legal concept of "cohabitation" applies only to opposite-sex couples. The court, in an opinion by Judge Painter, reviewed the definition of cohabitation in other states' statutes and reviewed court decisions from many jurisdictions dealing with this concept, concluding that definitions tended to vary based on the context. Two prior Ohio cases have dealt with charges of domestic violence in same-sex relationships. In __State v. Hadinger__, 573 N.E.2d 1191 (1991), the 10th District Court of Appeal said that the common thread of statutory and judicial decisions dealing with cohabitation was "living together in an intimate relationship," and applied the statute in that case. A recent municipal court case from Hamilton County had taken essentially the same view. The court found these decision persuasive, commenting: "In short, definitions of `cohabitation' have two fact-specific prongs: financial support and consortium. Factors that establish financial support include shelter, food, clothing, utilities, and perhaps co-mingled assets. Factors that establish consortium include mutual respect, fidelity, emotional support, affection, society, cooperation, solace, comfort, aid of each other, friendship, conjugal relations and companionship. The facts that rise to the level of `cohabitation' are unique to each case, and can only be sifted on a case-by-case basis by triers of fact." The court also noted that the legislature had amended the domestic violence statute several times since the __Hadinger__ decision, without expressly overruling, and thus could be understood to have "implicitly endorsed" the application of the statute to same-sex cohabitants. The court concluded that the statute did apply, and that the trial court's decision was supported by the weight of the evidence. A.S.L. New York Judge Approves Cross-Adoption of Children by Lesbian Couple In what may be the first case of its kind in the U.S., a Suffolk County, New York, Family Court Judge, William Kent, approved a petition by a lesbian couple for each of them to adopt the daughter of their other, both daughters having been conceived by alternative insemination from the same sperm donor (thus making the daughters genetic half-sisters). Dee Hoole and Robin Shlakman, both 33, have lived together for the past six years. Their sperm donor, who agreed not to assert paternal rights, gave consent to both adoptions, and called the mothers to congratulate them on moving one step forward to being recognized as a legal family unit. After returning home from the court proceeding on March 7, Shlakman immediately called her employer to put her newly adopted daughter on her health insurance plan, the first tangible benefit of the adoption. __Newsweek__, March 8. A.S.L. Federal Guidelines on Sexual Harassment in Schools Include Same-Sex Harassment On March 13, the U.S. Department of Education Office of Civil Rights (OCR) issued guidelines interpreting Title IX's ban on sex discrimination in schools receiving federal financial assistance with particular reference to claims of sexual harassment. 62 Fed. Reg. 12034, 1997 WL 108921. Most of the media attention to this issue was directed to a handful of well-publicized cases in which very young male elementary school students were disciplined for kissing their female schoolmates. What went unremarked by the general media was the Education Department's discussion of same-sex harassment of students, in which OCR asserted that Title IX's prohibition of sexual harassment applies regardless of the sex of the harassed student or of the sex of the alleged harasser. In explaining this principle, OCR commented: "The Guidance has been clarified to indicate that if harassment is based on conduct of a sexual nature, it may be sexual harassment prohibited by Title IX even if the harasser and the harassed are the same sex or the victim of harassment is gay or lesbian. If, for example, harassing conduct of a sexual nature is directed at gay or lesbian students, it may create a sexually hostile environment and may constitute a violation of Title IX in the same way that it may for heterosexual students. The Guidance provides examples to illustrate the difference between this type of conduct, which may be prohibited by Title IX, and conduct constituting discrimination on the basis of sexual orientation, which is not prohibited by Title IX. The Guidance also indicates that some State or local laws or other Federal authority may prohibit discrimination on the basis of sexual orientation." The examples included targeting a lesbian student for physical sexual advances, and also noted that "under certain circumstances, courts may permit redress for harassment on the basis of sexual orientation under other Federal legal authority." David Buckel of Lambda Legal Defense and Craig Bowman, executive director of D.C.'s Sexual Minority Youth Assistance League, hailed the new guidelines as a major breakthrough for lesbian and gay youth in statements published in the __Washington Blade__, March 21. A.S.L. Prison Official Qualifiedly Immune From Same-Sex Harassment Charge by Inmate In __Blueford v. Prunty__, 1997 WL 94024 (Mar. 6), the U.S. Court of Appeals for the 9th Circuit upheld the district court's summary judgment, finding that a prison official has a qualified immunity defense against a same-gender sexual harassment suit by an inmate. Bishop Moses supervised Herman Blueford, an inmate worker in the laundry at Calipatria State Prison. Blueford alleged that Moses would make sexual suggestions accompanied by actions including: grabbing and pulling inmates' hands toward Moses' genitals, grabbing his genitals while referring to oral sex, pulling his pants up tightly and demanding anal sex, and feigning martial arts blows toward the groin and other areas of inmates' bodies. While Blueford was subject to Moses' feigned martial arts strikes and was uncomfortable with Moses' physical conduct, Moses never touched Blueford in a sexually offensive way. Judge Lay characterized Moses' intent as "playful," noting that "even Blueford" referred to the grabbing incidents as "play." Blueford asserts the belief that some of Moses' statements were literal requests for oral sex. A February 1994 dispute between the two, apparently unrelated to sexual harassment, resulted in a disciplinary hearing in which Blueford was found to have committed a rules violation. Part of the penalty imposed was Blueford's discharge from the laundry job. Blueford brought the present action against various prison employees under 42 U.S.C. sec. 1983, charging sexual harassment, deprivation of due process, and other claims. The court affirmed the dismissal on summary judgment of Blueford's other claims, and affirmed the finding that Moses is qualifiedly immune from liability. Judge Lay reasoned that because Moses didn't touch Blueford and Blueford can't stand in the shoes of inmates who were assaulted by Moses, Blueford "claims a right under federal law to be free of puerile and vulgar same-sex trash talk." The first part of the test of a qualified immunity defense is "whether the right at issue is clearly established." Judge Lay discussed the division, in dicta, amongst federal courts as to whether any employee could sustain a claim of same-gender sexual harassment under federal law, and affirmed the district court's conclusion: that the holding in __Garcia v. Elf Atochem__, 28 F.3d 446 (5th Cir. 1994), that a male could not bring a harassment claim against his male supervisor under Title VII, was the only federal appellate decision on point at that time. Therefore, while "the pendulum seems recently to have swung in favor of permitting" such claims, "government officials are `not charged with predicting the future course of constitutional law'" and Blueford's right to be free of Moses' conduct was not "clearly established" at the pertinent time. M.M. Florida Panel Rejects Bias Charge Against Judge The Florida Judicial Qualifications Commission has rejected a complaint filed by retired attorney Allan Terl against Circuit Judge Joseph Q. Tarbuck of Pensacola. Tarbuck was charged with anti-gay bias in violation of the Code of Judicial Conduct, based on comments he made during a custody proceeding between John and Mary Ward. Tarbuck granted custody to John Ward, who had previously served eight years in prison for the murder of a prior wife, opining that the child in question "should be given the opportunity and the option to live in a nonlesbian world." Mary Ward, with whom the child had lived from birth until age 11, had begun to live with another woman before John Ward demanded the change in custody, apparently in retaliation to Mary's attempts to get a higher child support award. Mary died suddenly of a heart attack while an appeal was pending, rendering the case moot. Terl revealed the Commission's decision by making public a letter he wrote to Florida Supreme Court Chief Justice Gerald Kogan, in which he suggested that the Commission was not competent to handle discrimination charges due to lack of training. Terl noted that the canon against discrimination was adopted only 18 months prior to these charges being filed, and no specific training had taken place to assist the Commission in evaluating such charges. __Orlando Sentinel__, March 21. A.S.L. Military Notes The __San Jose Mercury News__ (Feb. 28) reported that although several San Francisco Bay area colleges and universities have caved in and allowed ROTC and/or military recruiters back on campus as a result of the latest Solomon Amendment, which prohibits federal financial assistance to schools where the military is unwelcome on campus, at least two schools, San Jose State University and the City College of San Francisco, were holding firm against letting the military on campus in light of current military discrimination against open lesbians and gay men. When a military member leaves the service within five years of graduation from a government military academy, the government routinely attempts to collect reimbursement from the individual for the free college education he or she received. But the Army has reportedly backed down from an attempt to collect $76,000 in tuition from Clayce Rodamer, a West Point graduate who resigned rather than being discharged after he revealed he was gay while stationed at Ft. Bliss, Texas, in 1988. (Actually, the amount in question is nearly $175,000, including interest and penalties accrued from the time the Army asserted its claim against Rodamer two years after his resignation.) "I never broke a contract with the military," said Rodamer. "They broke it with me." Rodamer had been about to appear on ABC's "Nightline" to discuss the unfairness of the Army's action when Army officials called the show to announce they were dropping their claim. __Chicago Tribune__, March 26. At the Massachusetts Institute of Technology (MIT), the administration announced that the school will guarantee financial aid packages to students in ROTC who lose their military scholarships when they come out of the closet. "There are two principles at MIT that we hold dear," said a spokesperson for University President Charles Vest. "One is our long-standing and deep commitment to national service. . . an equally important principle for us is to promote an environment of nondiscrimination." __Los Angeles Times__, March 22. The __New York Times__ (March 26) reported that U.S. District Judge Joseph L. McGlynn, Jr. (E.D.Pa.) ruled March 25 against John Hoffman in his suit to retain his job as a civilian aircraft mechanic at the Air Reserve Station in Willow Grove, PA. Hoffman, married and the father of eight children, had been a weekend member of the Air Force Reserve, which was a prerequisite to holding the civilian job at the base. After he told his supervisor that he is gay, he was threatened with dismissal from the Reserve unless he resigned. After he resigned from the Reserve, he was terminated from his civilian post. Hoffman was not challenging the military's exclusion of openly gay members in this lawsuit, merely arguing that the rationale for the military policy did not apply to the civilian post. But Judge McGlynn ruled, in an opinion not published as we went to press, that because military policy required the occupant of the mechanic's position on the post to be a Reserve member, Hoffman was no longer qualified for the position. Stefan Presser, an ACLU of Pennsylvania attorney representing Hoffman, said the decision will be appealed. A.S.L. Law & Society Notes The Presbyterian Church (U.S.A.) will amend its Book of Order, the church's constitution, to require chastity of all single ministers, thus effectively excluding non-celibate lesbians and gay men from being ordained as ministers of the church. This action will codify a policy reaffirmed by the denomination's General Assembly in 1993, according to an Associated Press story published in newspapers on March 19. The annual protest by lesbian and gay Irish-Americans over their exclusion from the New York City St. Patrick's Day Parade resulted in the arrest of about three dozen demonstrators in front of the New York Public Library on March 17. The demonstrators were arrested for refusing police orders to disperse because no permit had been issued for the demonstration. The Police Department has consistently refused to grant the permit application, taking the position that allowing a demonstration on Fifth Avenue in addition to the already scheduled parade would be unduly disruptive. __N.Y. Times__, March 18. Colorado for Family Values (CFV), the organization behind Amendment 2, violated Colorado election laws when it engaged in fundraising for an "Amendment 2 Legal Defense Fund" in anticipation of an attempt to repeal Amendment 2 by voter initiative, but neglected to file disclosure reports as required by the state law. The Colorado Court of Appeals ruled March 20 in __Colorado for Family Values v. Meyer__, 1997 WL 129096, that even though proponents of the repeal initiative suspended their efforts in light of the quick success of __Evans v. Romer__, the lawsuit challenging Amendment 2, in securing interim injunctive relief against Amendment 2 going into effect, nonetheless CFV's fundraising did concern an "issue" within the meaning of the state law, thus triggering the disclosure and reporting requirements. A bill to ban anti-gay discrimination in California schools sponsored by openly lesbian Assemblywoman Sheila Kuehl won approval in the California Assembly's Higher Education Committee by an 8-6 vote on March 18. The bill next goes to the Education Committee. __Los Angeles Times__, March 19. Massachusetts passed similar legislation a few years ago, but other states have been slow to follow. The New Hampshire House of Representatives and the New York State Assembly have passed bills to ban discrimination on the basis of sexual orientation in housing, employment and public accommodations. In both cases, the houses in question had passed similar bills before, but they died in the respective State Senates. There is more hope in both states now. In New Hampshire, the previous bill died because of stated objections from the governor. The current governor has not taken a position against the bill, and the Catholic Diocese of Manchester, an opponent last time around, has endorsed the current bill. In New York, Governor George Pataki (R.) has indicated he would sign the bill (which has passed the Assembly for five consecutive years), but the main roadblock is Senate Majority Leader Joseph Bruno (R.), an avowed opponent of gay rights. (Bruno refused to join with the Assembly leadership in extending domestic partnership benefits shortly after he was elected majority leader, even though the Pataki Administration decided to go along with the domestic partnership plans negotiated with labor organizations by the Cuomo Administration.) The lead sponsors in the House of Representatives for this year's version of the federal Employment Non-Discrimination bill will be Barney Frank (D.-Mass.) and Christopher Shays (R.-Conn.). Both men represent districts in states that have banned sexual orientation discrimination. The lead Senate sponsors this year are James Jeffords (R.-Vt.) and Edward Kennedy (D.-Mass.). A new sponsor this year is Alphonse D'Amato (R.-N.Y.), who is running for re- election next year and has been taking progressively more pro-gay positions over the last several years. According to Human Rights Campaign, 47 members of the current Senate have committed to supporting the bill so far this session. The San Francisco Human Rights Commission admonished a gay bar in the Castro District, The Cafe, for forbidding kissing between heterosexuals on the premises. The city's human rights ordinance forbids sexual orientation discrimination in places of public accommodation. Responding to the Commission, the bar now forbids all kissing on the premises. __Newsday__, March 10. A.S.L. European Law Developments __European Court of Human Rights Rules on Sado-Masochism__: The unanimous (9-0) decision of the Strasbourg-based European Court of Human Rights in __Laskey, Jaggard & Brown v. U.K.__ (Feb. 19) (see 1997 L.G.L.N. 28) was a disappointment, if not a surprise, after the 11-7 decision of the European Commission of Human Rights in its Report of 26 Oct. 1995 (Applications Nos. 21627/93, 21826/93, 21974/93). The seven dissenting members of the Commission would have found a violation of the right to respect for private life in Article 8 of the European Convention on Human Rights. They stressed that there was no evidence of serious injury, or of a real risk of serious injury, and that "[t]he risk of activities getting out of hand could be met effectively by the existing provisions of the criminal law because in such a situation either there will be no consent or serious harm will be caused." As for the risk of HIV transmission, it "arises in lawful adult heterosexual and homosexual acts and cannot by itself be used as a ground for prohibiting private sexual activities." They also cited the legality of boxing, cosmetic surgery and tattooing, and said that "it is not enough for the acts to shock, disturb or offend." The Court preferred the reasoning of the majority of the Commission. While affirming that "there can be no doubt that sexual orientation and activity concern an intimate aspect of private life," the Court observed that "not every sexual activity carried out behind closed doors necessarily falls within the scope of Article 8," and doubted whether, in view of the number of persons involved, the applicants' activities "fell entirely within the notion of `private life.'" Accepting the U.K. government's concession that there had been an interference with the applicants' Article 8(1) right to respect for their private life, the Court then considered whether the interference could be justified under Article 8(2) as "necessary in a democratic society" for the "protection of health." The Court held that "the State is ... entitled ... to regulate ... activities which involve the infliction of physical harm ... whether ... in the course of sexual conduct or otherwise," and that "[t]he determination of the level of harm that should be tolerated ... where the victim consents is in the first instance a matter for the State concerned." Because __Laskey__ involved injury that was not "trifling or transient," it could be distinguished from __Dudgeon v. U.K.__ (1981), Eur. Ct. H.R. Ser. A, No. 45 (striking down laws prohibiting all sexual activity between consenting adult men). It did not matter that the injuries were not severe and required no medical treatment, because "the State authorities were entitled to have regard ... to the potential for harm inherent in the acts." And the facts of __Laskey__ were not "comparable in seriousness" to those of __R. v. Wilson__ [1996], 3 W.L.R. 125 (C.A.) (consent is a defense where husband branded his initials on his wife's buttocks with a hot knife). It would seem that the Court decided to defer to national authorities on the complex issue of when a person may consent to physical harm, and found insufficient evidence of discriminatory prosecution of gay men. European Court of Justice to Hear Military Ban and Same-Sex Couple Cases: On March 13, in __R. v. Secretary of State for Defence, ex parte Perkins__, No. CO 279-96 (High Court, Queen's Bench Division), Judge Lightman referred a challenge to the U.K. armed forces' ban on gay, lesbian and bisexual employees to the European Court of Justice (ECJ) in Luxembourg. The ECJ will be asked to decide whether the ban constitutes sex discrimination in employment contrary to the European Community's Equal Treatment Directive (9 Feb. 1976, 76/207/EEC), whether Article 224 of the EC Treaty exempts the armed forces, and whether the discrimination can be justified under Article 2(2) of the Directive ("occupational activities ... for which ...the sex of the worker constitutes a determining factor"). The case could be heard in the fall of 1997 at the same time as __Grant v. South-West Trains Ltd.__, Case C-249/96, which was referred to the ECJ by a Southampton, England industrial tribunal on 19 July 1996 (No. 1784/96). In __Grant__, a lesbian employee is arguing that her employer's failure to extend to her unmarried female partner the free rail travel benefits that unmarried female partners of male employees receive is sex discrimination with regard to "pay," contrary to Article 119 of the EC Treaty and the Equal Pay Directive (10 Feb. 1975, 75/117/EEC). Both cases have been referred to the ECJ because of the ECJ's decision in __P. v. S. & Cornwall County Council__, Case C-13/94, [1996] E.C.R. I-2143 (see 1996 L.G.L.N. 82), holding that the dismissal of a transsexual employee "for a reason related to a gender reassignment" violated the Equal Treatment Directive. R.W. The Polish Parliament has approved a new constitution to be submitted to the president and then a public vote on May 25. The document is heavily influenced by the demands of the Roman Catholic Church, including a ban on same-sex marriages. __Associated Press__, March 24. A.S.L. Perhaps acknowledging likely defeat on appeal, the Dutch Railways (NR) system announced on Feb. 13 that it would extend foreign travel benefits to domestic partners (and partners' children) of their employees on the same basis that such benefits are given to spouses. NR had previously announced that it would appeal a ruling by the European court at Utrecht which had ordered it to extend such benefits in December 1996 in time for the Christmas travel season. (From a Press Release posted to the Internet's Queerlaw Listserve on March 6.) A.S.L. Professional Notes The GAYLAW Education Fund, the not-for-profit educational foundation of Washington's lesbian and gay bar association, will award a $2500 grant to a law student working in a non-profit organization dealing with lesbian and gay rights or the rights of persons living with HIV/AIDS this summer. The deadline for applications is April 15; applications can be obtained from Paul Wolfson at 202-667-6161. The National Employment Law Project is accepting applications for a staff attorney position in their New York office. This is a public interest law firm representing low wage workers, the poor, the unemployment and other groups that face significant obstacles to employment and government systems of support. The position involves litigation, writing publications, worker training, police work, and resource development. 3-5 years of legal experience required, at least 3 years membership in a state bar (preferably N.Y.). Salary range starts at $32,000 and up depending on experience, with a benefits package. Send a resume (with references) and a legal writing sample by April 18 to: Staff Attorney Search, National Employment Law Project, Inc., 55 John St., 7th Floor, New York NY 10038. The HIV & AIDS Legal Services Alliance (HALSA) in Los Angeles County is seeking a full-time Director who will oversee the operation of a collaborative, coordinated system for delivery of legal services to all the diverse communities affected by HIV/AIDS in Los Angeles County, California. The Director supervises a staff of 6 attorneys, support staff and volunteers. Applicants should be admitted to practice (and, if not admitted in California, willing to take the California bar), have at least six years experience in legal services (with at least two years of management experience), and experience working with people with HIV/AIDS, people of color, and people of limited means is preferred. Compensation range begins at $55,000 and up depending on qualifications, and the job carries a full benefit package. Cover letters and resumes should be sent to: Human Resources, APLA, 1313 N. Vine St., LA, CA 90028. The North Carolina Gay and Lesbian Attorneys (NC GALA) will hold their third annual continuing legal education program on Saturday, April 19, 1997, in Greensboro. For information, call John Boddie at 910-379-0079. President Clinton has appointed openly-gay attorney Richard Socarides to the position of White House Special Assistant to the President and senior advisor for public liaison. Socarides is the first openly-gay person to be appointed a Special Assistant to the President in the White House, and will have responsibilities for liaison with the gay community. A Feb. 24 press release stated that he would "serve the gay and lesbian communities as well as additional constituencies." __Washington Blade__, Feb. 28. Lesbian activist attorney Roberta Achtenberg, former San Francisco city supervisor and Assistant Secretary of the U.S. Dept. of Housing and Urban Development, has accepted a position as senior vice president for public policy at the San Francisco Chamber of Commerce. Achtenberg, who unsuccessfully contended against Willie Brown and several other candidates in a primary campaign for the mayoralty of San Francisco a few years ago, will work on welfare reform and job-creation programs for the Chamber, an association of about 1900 mostly small business enterprises. __San Francisco Chronicle__, March 17. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS California Appeals Court: Employer Has Affirmative Duty to Accommodate PWA In an important ruling of first impression, the California Court of Appeal, 2nd District, held on March 25 that an employer subject to the state's Fair Employment and Housing Act (FEHA) has an affirmative duty to find a reasonable accommodation for an employee with AIDS who is no longer able to perform his normal job function. The court also found that the employee was not estopped from bringing his disability discrimination claim, even though he had received disability benefits. Reversing a grant of summary judgment in __Prilliman v. United Air Lines, Inc.__, 1997 WL 133250, the court remanded for trial a claim by United Pilot Ronald C. Prilliman that United violated his state statutory rights by putting him on permanent disability leave after he lost his FAA medical certification. The court's opinion, by Judge Lillie, actually dealt with appeals by two United pilots who had been involuntarily placed on permanent disability leave after the airline learned that they had AIDS. Both Prilliman and Rafalowski started as flight officers with United in June 1985. Rafalowski tested HIV+ that same year; Prilliman tested HIV+ in 1990. Neither man informed United of their HIV-status; in both cases, United first learned of their medical conditions when both men were suffering from full-blown AIDS around 1984. Federal Aviation Administration regulations prohibit persons with full-blown AIDS from piloting a commercial aircraft. When their AIDS status was revealed and both lost their FAA medical certification, United put both pilots on disability status (at approximately half pay) and made no attempt to find other work for them. Both pilots eventually filed various claims for disability benefits, entailing statements that they were disabled from working. At the time he was placed on disability status, Rafalowski's doctor had stated that he was no longer able to work a normal shift due to the effects of full-blown AIDS. However, it appeared that Prilliman continued in relatively good health for a substantial period of time after United grounded him for loss of his FAA certification. Both pilots sued under the FEHA, also asserting a claim that United was negligent in not training its personnel how to comply with its responsibilities under disability discrimination law. The Superior Court granted summary judgment to United on all claims, finding that neither pilot had specifically requested an accommodation at the time he was placed on disability status, and thus that United could not be faulted for failing to consider alternative jobs for them. The Court of Appeal disagreed with this analysis. After reviewing federal and state law precedents on the duty of reasonable accommodation, Judge Lillie concluded "that an employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees." Because Rafalowski's doctor had indicated that at the relevant time he was actually "incapable of performing any alternative job position," wrote Lillie, it was appropriate to grant summary judgment against his claim, since no reasonable accommodation other than placing him on disability status was possible, leaving no triable issues of fact in his case. (Rafalowski died in 1996 and the claim is now being pressed by his estate.) As to Prilliman, however, there was testimony in the pretrial record that he continued to function "well within normal limits as to intellectual ability and motor skills" for more than a year after he was grounded by United. Consequently, summary judgment was inappropriate as to his claim, because there is a triable issue of fact as to whether United could have reasonably accommodated him in a position that did not require FAA medical certification. Similarly, the court found that there was a triable issue as to Prilliman's negligence claim. United had raised another defense. In filing for benefits when he was placed on disability leave, Prilliman had asserted his eligibility for disability benefits based on a statement that he was disabled, and United contended that this would estop him from asserting a claim that he was capable of working. Federal courts are split over whether such estoppel should be used in cases under the Rehabilitation Act and the ADA. The court of appeals held that this is an issue of state law under the FEHA, and thus the court was not bound by any of the federal rulings. After reviewing California precedents, the court concluded that no estoppel theory applied in this case. "Respondents rely upon the facts that Prilliman was receiving a disability benefit from United and government social security benefits, facts which he admitted in his deposition; however, these facts alone do not establish any defense, and in particular a defense based on the inability of Prilliman to perform an alternative job position with United." The court found that Prilliman had not made "any representations inconsistent with his present claims under the FEHA. . . Moreover, inasmuch as the concept of judicial estoppel is an equitable doctrine, it must also be considered in this case that it was a United benefits coordinator who advised Prilliman to apply for such government disability benefits. This factor, and its impact on the applicability of the judicial estoppel doctrine, appears to be one which is not addressed in any cases cited by respondents." Prilliman and Rafalowski were represented by David Anthony Neal and Beth A. Fox of Neal & Fox. A.S.L. Indiana Appeals Court Affirms Conviction of HIV+ Prostitute for "Battery by Body Waste" Against Police Officer In __Newman v. State__, 1997 WL 104563 (Mar. 11), the Indiana Court of Appeals affirmed the conviction of an HIV+ woman for battery by body waste and resisting law enforcement. On Sept. 25, 1995, an Indianapolis Police Department undercover vice officer was informed that Constance Newman, known to be a prostitute and HIV+, was observed first standing on a street corner and then getting into a vehicle. After a chase, the police pulled the vehicle over and informed Newman that she was under arrest for prostitution. A struggle ensued after Newman protested her arrest. The arresting police officers testified that Newman, her face covered with saliva and tears, ignored their warning to avert her face and flailed it in their direction. She was charged with battery by body waste, a class C felony, and resisting law enforcement, a Class A misdemeanor. Additionally, she was charged with prostitution, a Class D felony due to two prior convictions of prostitution. After a bench trial, the court sentenced Newman to three years for the battery by body waste, one year for resisting law enforcement and three years for prostitution. She was ordered to serve the prostitution sentence consecutively with the battery with body waste charge and concurrently with the resisting law enforcement sentence. On appeal, Newman argued that her convictions on the battery by body waste and resisting law enforcement charges subjected her to double jeopardy since both crimes arose from the same set of operative facts. Newman also challenged the sufficiency of the evidence leading to her conviction on the battery by body waste charge. Rejecting Newman's double jeopardy claim, Judge Patricia Riley applied a two-part test. She first determined that each charge required proof of an added fact. Second, she established that each offense is based on different factual allegations. The court explained that battery by body waste involves placing blood or other bodily fluids on an officer in the course of an arrest. Resisting law enforcement charges arises when a person "resists, obstructs, or interferes" with an officer who is carrying out his duties. The court found that Newman both attempted to "spray" the arresting officers with her bodily fluids and stated that she was not going to jail while physically resisting the police. The court concluded that Newman's convictions based on these actions did not constitute double jeopardy. Additionally the appellate court denied Newman's claim that the evidence was insufficient to support her conviction of the Class D felony, battery by body waste. In dicta, the court indicated that it disagreed with the lower court's decision to reduce the offense from a Class C felony, rejecting the trial court's statutory interpretation based on its conclusion that "it's medically impossible to transfer HIV and AIDS by spitting." C.W. Washington Appeals Court Upholds Dismissal of Tort Claims by Corrections Officer Bitten by HIV+ Inmate The Court of Appeals of Washington has affirmed a decision by the Superior Court of Snohomish County, which dismissed on summary judgment various tort claims against the State Department of Corrections asserted by Michael and Cheryle Caspary. __Caspary v. State__, 1997 WL 103688 (March 10) (not officially published). Caspary, a corrections officer at the Washington State Reformatory, was bitten by J.M., an inmate, who later proved to be HIV+. News of J.M.'s HIV-status spread throughout the institution and the community, resulting in ostracization of Caspary and severely affecting his marriage. Caspary sued the State on several claims: outrage (focusing on the way in which corrections officials handled the information about J.M.'s HIV-status and communicated it to Caspary and his wife), invasion of privacy/false light, violation of physician-patient privilege, and breach of a duty to discover and warn of the inmate's HIV-status. In an opinion for the court, Judge Kennedy explained that most of Caspary's claims were preempted by the Workers Compensation law, which provides no-fault compensation for various work-related injuries. Analyzing the various claims asserted by Caspary, Kennedy found that they related to injuries that naturally arose from his work environment. However, some of the claims were held not to be barred by the compensation statute. As to those, Kennedy found that Caspary's allegations were deficient to make out a prima facie case. Indeed, from the description of what happened, it appears that corrections officials behaved about as one might expect in light of all the circumstances, and that most of the injury suffered by Caspary (who has tested HIV-negative ever since the biting incident ten years ago) was due to rumor in the community and lack of sufficient education about HIV transmission among prison staff. The heart of the opinion is a discussion of Caspary's privacy claims, as to which the court concludes that Caspary's assertions are contradictory: on the one hand, he wants the state to test inmates believed to be at risk for HIV-infection and communicate their status to corrections officers, but on the other hand he wants the state to be liable because corrections officers learned of J.M.'s HIV-status and, knowing about the biting incident (which occurred in the presence of several other corrections officers), came to believe that Caspary might be HIV+. Conceding that Caspary and his wife suffered emotional hardship as a result of the incidents related in the case, and court noted that for some injuries there is just no legal remedy, and stressed that Workers Compensation would cover the expenses Caspary incurred for at least some of the physical and emotional injuries requiring treatment. A.S.L. Large Jury Verdict May Imperil Settlement of Hemophiliac Claims Settlement of a national class action suit involving over 6,000 hemophiliacs infected with HIV as a result of tainted blood clotting medication has been jeopardized by a second $2 million jury verdict for plaintiffs who opted out of the class action. A jury in Indianapolis awarded $2 million to John and Vicky Barnes, surviving parents of John Barnes, Jr., who died from AIDS in 1991 after having tested HIV+ in 1985. The award against Cutter Laboratories, the manufacturer with the largest market share of clotting medication, is the second large jury award on behalf of individual plaintiffs. A previous $2 million award was set aside on appeal in a Florida case. Individual suits are also pending in Houston and Philadelphia. Meanwhile, class action settlement negotiations in federal district court in Chicago are stalled over an attempt by the federal government to claim priority for reimbursement for health benefits paid out to plaintiffs. Under the terms of the settlement, each plaintiff will be entitled to about $100,000. In the wake of the Indianapolis verdict, plaintiffs' lawyers speculated that more members of the class might opt out and take their chances at trial. __Associated Press__, March 22. In these cases, plaintiffs are contending that manufacturers of clotting medication violated a duty to the plaintiffs by continuing to use donated plasma from intravenous drug users, prison inmates and gay men during the period 1983-1985 without adopting federally recommended (but not mandated) procedures to reduce the risk of HIV transmission. Federal officials convened a meeting of representatives of the blood industry early in 1983 to report their conclusion that AIDS was due to a blood-borne infection and that the industry should take steps to cut risk by screening donors and testing donations for hepatitis-B antibodies (which studies showed to be present in about 80% of those diagnosed with AIDS). The industry balked at taking such steps, and some gay organizations protested any measures to stigmatize gay men as unfit to be blood donors. At the end of March 1985 the Food and Drug Administration licensed an HIV-antibody test for use in blood screening, and the problem of identifying tainted blood was largely solved. A.S.L. New York Federal District Court Refuses to Dismiss Emotional Distress Claim by HIV+ Plaintiff Against Former Employer Ruling on a motion to dismiss two counts of the complaint in __Forbes v. Merrill, Lynch, Fenner & Smith, Inc.__, 1997 WL 109435 (S.D.N.Y., March 12), Senior U.S. District Judge Constance Baker Motley held that the plaintiff had satisfied the pleading requirements for a claim of intentional infliction of emotional distress supplementary to an HIV-related employment discrimination claim. In so holding, Judge Motley also held that the statute of limitations governing the tort claim was tolled while the NY City Human Rights Commission was considering the plaintiff's discrimination claim. Ernesto Forbes was hired as a mail clerk by Merrill Lynch in 1986, and was subsequently promoted to processing clerk. He claimed that he had good evaluations and was promoted, and had a good relationship with his supervisor until he told her in the fall of 1992 that he was HIV+. "However, plaintiff alleges that after he told [the supervisor] . . . that he had contracted the AIDS virus, her attitude toward him changed dramatically. Plaintiff claims that from that time forward, she screamed at him repeatedly in front of vendors and Merrill Lynch employees, sprayed Lysol in her office and on telephones used by plaintiff, and also requested the cleaning staff to use disinfectant when cleaning plaintiff's work area, none of which she had done prior to learning of plaintiff's disability. Plaintiff also alleges that over the course of the next several months, [she] made repeated derogatory comments about homosexuals and people infected with the AIDS virus and that she asked other Merrill Lynch employees whether or not plaintiff was a homosexual." The supervisor put the plaintiff on a 90-day probation warning on April 20, 1993, and discharged him in September of that year. Forbes filed a discrimination charge with the New York City Human Rights Commission, claiming a violation of the ADA and the NY City Human Rights Law based on his physical disability of HIV-infection. The Commission concluded that he was discharged for misbehavior rather than for discriminatory reasons, but issued him a right to sue letter on August 7, 1996, and he filed suit on October 1, 1996, alleging violations of the ADA and the New York state human rights law and asserting his supplemental torts claim. Merrill Lynch moved to dismiss the state law claim and the torts claim. Judge Motley dismissed the state law claim on the ground urged by the defendant, that collateral estoppel should be raised because the issues that would have to be decided on the state law claim were identical to those investigated and decided by the City Human Rights Commission in its consideration of his city law claim. Motley found against Forbes's allegations that the city's investigation of his claim was so defective that he should not be precluded from now asserting the state law claim as part of his federal suit. However, turning to the tort claim, Motley rejected the defendants' arguments that the claim was barred by the statute of limitations or that the factual allegations were insufficient to support an intentional infliction of emotional distress claim. Motley recognized that the district courts in the Southern District of New York are split over whether supplemental state law tort claims are tolled while an administrative agency is considering a discrimination claim, but indicated that the decisions supporting tolling were more persuasive, since the plaintiff could not have filed his tort suit in federal court independently of a federal action under the ADA, and the ADA requires exhaustion of administrative remedies before a lawsuit can be filed. Additionally, it made little sense to require plaintiffs to file state court actions on tort claims arising out of the same facts as federal discrimination claims, and then to have to pursue lawsuits about both types of claims simultaneously in two separate forums. Turning to the merits of the claim, Motley concluded that Forbes's factual allegations were sufficiently outrageous to withstand the motion to dismiss. Referring to her prior recitation of the plaintiff's factual allegations, Motley concluded: "Such conduct, if indeed it occurred, amply satisfies the standard of extreme and outrageous conduct." Thus, Forbes's claims under the ADA and his tort claim are preserved for trial. A.S.L. New York Court Refuses To Dismiss Criminal Charges Against HIV+ Defendant; New Medical Treatments Defeat "Life Sentence" Argument Following a large accumulation of similar decision by New York courts, Supreme Court Justice Louis J. Marrero (Kings County) denied a motion to dismiss an indictment in the interest of justice in __People v. A.F.__, NYLJ, 3/25/97, p.29, col.4. The sole basis for the motion was the defendant's HIV status. The indictment includes four felonies and one misdemeanor. "The arrest involved a high speed chase in a stolen vehicle during which defendant ran several red lights and after abandoning the stolen van he sought to avoid capture by jumping off a building roof at which time he was injured." Justice Marrero described the defendant as a "career criminal with a record going back nearly two decades." The District Attorney has offered a plea bargain with a prison term of 1-1/2 to 3 years. A.F.'s attorney argued that this was virtually a life sentence for the defendant, who was diagnosed HIV+ in 1996. Rejecting the defendant's argument, Marrero pointed to newly successful AIDS treatments to counter the "life sentence" contention: "While it is well known that in the early years of this epidemic the life expectancy of infected individuals was very short, that situation is now the exception; with proper medical attention HIV+ and even AIDS patients can live productive lives ten and even fifteen years after the first diagnosis." Of course, Marrero makes these assertions without any knowledge reflected in the opinion of whether the individual defendant would have access to this quality of treatment in prison, or whether he would prove to be one of those whose infection is not susceptible to treatment by the new medications, either due to intolerable side effects or viral resistance. Marrero concluded that none of the factors listed in the relevant statute for dismissals in the interest of justice were present in this case. A.S.L. Texas Supreme Court Holds Trial Court Properly Excluded Plaintiff's Expert's Testimony on Blood Bank Operations Reversing a decision of the state court of appeals, the Texas Supreme Court ruled in __United Blood Services v. Longoria__, 938 S.W.2d 29 (Tx., Jan. 31), that the district court had not abused its discretion in disallowing proffered expert testimony concerning the procedures to screen blood used by defendant blood bank in 1982. The Longorias' daughter died at age 4 as a result of HIV infection contracted in a transfusion at birth in 1982. The trial court granted summary judgment against the plaintiffs, finding that as of 1982 there was insufficient knowledge about the cause of AIDS to impose any particular responsibility on the blood bank. This decision was reversed by the court of appeals, which held that the plaintiffs had raised a fact issue about the failure to screen for other pathogens, such as CMV, which might have prevented the transmission that took place. On retrial, the defendant challenged the credentials of plaintiff's expert witness, who had no experience in the blood banking industry and had earned his PhD in a correspondence course from an unaccredited California college. The trial court excluded the expert's testimony, again granted summary judgment to the defendants, and again was reversed by the court of appeals, which held that the expert should have been allowed to take the stand, at which time the defendant could have challenged his bona fides through examination. The Supreme Court chided the court of appeals for assuming what was properly the role of the trial court: to exercise its discretion about the admissibility of expert testimony. A.S.L. South Africa Abandons HIV-Screening of Job Applicants The South African government decided in a cabinet meeting on March 25 to abolish immediately all screening for HIV/AIDS as a prerequisite for government employment, including the military service, according to a report in __The Citizen__, March 26, a South African newspaper, that was posted to an HIV-law discussion group on the Internet. A.S.L. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: Backer, Larry Cata, __Constructing a "Homosexual" for Constitutional Theory: Sodomy Narrative, Jurisprudence, and Antipathy in United States and British Courts__, 71 Tulane L. Rev. 529 (December 1996). Chetcuti, Joseph Carmel, __The Dismembered Body Case: Gay Panic Defence in a Civil Law Legal System__, 6 Australasian Gay & Lesbian L.J. 68 (1997). Cunneen, Chris, David Fraser and Stephen Tomsen (eds.), __Faces of Hate: Essays on the Incidence and Nature of Hate Crime in Australia__ (Federation Press [Australia] 1997). Duncan, Richard F., __Wigstock and the Kulturkampf: Supreme Court Storytelling, the Culture War, and__ Romer v. Evans, 72 Notre Dame L. Rev. 345 (1997) (__Romer__ was wrong, wrong, wrong; Scalia was right, right, right, asserts prominent anti-gay academic). Freedman, Eric M., __A Lot More Comes Into Focus When You Remove the Lens Cap: Why Proliferating New Communications Technologies Make it Particularly Urgent for the Supreme court to Abandon its Inside-Out Approach to Freedom of Speech and Bring Obscenity, Fighting Words, and Group Libel Within the First Amendment__, 81 Iowa L. Rev. 883 (May 1996). Gentles, Jenny, __Sexuality In Our Society: Rape and Sexual Intimacy__, 6 Australasian Gay & Lesbian L.J. 49 (1997). Jowitt, Anita, __The Legal Recognition of Relationships Between Couples of the Same Sex: A New Zealand Perspective__, 6 Australasian Gay & Lesbian L.J. 30 (1997). Kirby, Justice Michael, __Homosexual Law Reform: The Road of Enlightenment__, 6 Australasian Gay & Lesbian L.J. 1 (1997) (Justice Kirby is a member of the high court of Australia). Littleton, Christine A., __Double and Nothing: Lesbian As Category__, 7 UCLA Women's L. J. 1 (Fall/Winter 1996). Mason, Gail, and Stephen Tomsen (eds.), __Homophobic Violence__ (Federation Press [Australia], 1997). Massaro, Toni M., __Gay Rights, Thick and Thin__, 49 Stanford L. Rev. 45 (November 1996). McNaron, T.A.H., __Poisoned Ivy: Lesbian and Gay Academics Confronting Homophobia__ (Temple Univ. Press, 1997) (based on a wide-ranging survey of lesbian and gay academics). Nicholson, Justice Alastair, __The Changing Concept of Family: The Significance of Recognition and Protection__, 6 Australasian Gay & Lesbian L.J. 13 (1997) (Justice Nicholson is chief Justice of the Family Court of Australia. Of special note is the following excerpt: "One of the most politically potent but patently false ideas is that the recognition of lesbian and gay men's relationships will somehow encourage those who would otherwise be heterosexual to opt instead for a same-sex relationship. To the degree that sexuality is a fluid human characteristic, it strikes me as absurd to imagine that the achievement of limited legal protections would induce someone to reorient their sexuality. It seems to me that politicians take themselves far too seriously if they really believe that any legislation they pass will have any effect, one way or the other, upon this issue. All that such legislation will do, and this is reason enough for it, is to provide that people whose sexual orientation is towards a same-sex relationship will be treated equally with the rest of the community so far as the law is concerned."). __Student Notes & Comments:__ Cardiff, David, __Virtual Prostitution: New Technologies and the World's Oldest Profession__, 18 Comm/Ent 869 (Summer 1996). Hayes, Christopher J., __Married Filing Jointly: Federal Recognition of Same-Sex Marriages Under the Internal Revenue Code__, 47 Hastings L.J. 1593 (July/Aug. 1996). Keane, William P., __Impact of the Communications Decency Act of 1996 on Federal Prosecutions of Computer Dissemination of Obscenity, Indecency, and Child Pornography__, 18 Comm/Ent 853 (Summer 1996). Knutson, Stephanie Hammond, __The Religious Landlord and the Conflict Between Free Exercise Rights and Housing Discrimination Laws -- Which Interest Prevails?__, 47 Hastings L.J. 1669 (July/Aug. 1996). Richardson, Robert E.L., __A Police Officer's Legal, Consensual, Off-Duty Sexual Relationship is Not Protected by the Right of Privacy Under Either the Federal or Texas Constitutions:__ City of Sherman v. Henry, 28 Tex. Tech. L. Rev. 187 (1997). Stone-Harris, Regina L., __Same-Sex Harassment -- The Next Step in the Evolution of Sexual Harassment Law Under Title VII__, 28 St. Mary's L. J. 269 (1996). Sunder, Madhavi, __Authorship and Autonomy as Rites of Exclusion: The Intellectual Propertization of Free Speech in__ Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 49 Stanford L. Rev. 143 (November 1996). __Specially Noted:__ The Foundation Press has announced the Spring 1997 publication of __Sexuality, Gender, and the Law__, by William N. Eskridge, Jr., and Nan D. Hunter. This law school casebook is designed for use primarily in courses and seminars on sexuality and law, incorporating materials on sexual privacy (contraception & abortion), theories of sexuality and sexual orientation, and lesbian and gay legal issues. The co-authors, both law professors, are prominent scholars in the relevant fields covered by the book. This is the second book by a major legal textbook publisher to address these issues, the first being __Sexual Orientation and the Law__ by William B. Rubenstein (West, 1997), which is itself a second edition of __Lesbians, Gay Men, and the Law__ (The New Press, 1993). * * * __Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter__, by Robert Wintemute of the School of Law, King's College London, England (and a LeGaL member of long standing), has now been published in paperback in the U.S. by Oxford University Press (ISBN 0-19-826488-7, $19.95). Call 1-800-451-7556 (9-5 EST), fax 1-919-677-1303, or write to Order Dept., Oxford University Press, 2001 Evans Rd., Cary, NC 27513. * * * CQ Press has announced publication of __Private Lives, Public Conflicts: Battles Over Gay Rights in American Communities__, by James W. Button, Barbara A. Rienzo, and Kenneth D. Wald. The book is intended as a text for college-level gay studies courses in the political science area. It is available in paperback; ISBN 1- 56802-278-6. (CQ Press is the publishing division of Congressional Quarterly, Inc., in Washington, D.C.; 1-800-638-1710.) AIDS & RELATED LEGAL ISSUES: Locke, Steven S., __The Incredible Shrinking Protected Class: Redefining the Scope of Disability Under the Americans With Disabilities Act__, 68 U. Colo. L. Rev. 107 (1997). Salbu, Steve R., __AIDS and the Blood Supply: An Analysis of Law, Regulation, and Public Policy__, 74 Wash. U. L. Q. 913 (Winter 1996). __Book Reviews:__ Bartlett, John A., Review of __The Search for an AIDS Vaccine: Ethical Issues in the Development and Testing of a Preventive AIDS Vaccine__, by Christine Grady, 22 J. Health Politics, Policy & L. 261 (Feb. 1997). __Student Notes & Comments:__ Beaumont, Anne E., __This Estoppel Has Got to Stop: Judicial Estoppel and the Americans With Disabilities Act__, 71 NYU L. Rev. 1529 (Dec. 1996). Luepke, Ellen L., __HIV Misdiagnosis: Negligent Infliction of Emotional Distress and the False-Positive__, 81 Iowa L. Rev. 1229 (May 1996). Ramos, Pilar S., __The Condom Controversy in the Public Schools: Respecting a Minor's Right to Privacy__, 145 U. Penn. L. Rev. 149 (November 1996). __Specially Noted:__ __Ethics and Law in the Study of AIDS__ has been published by the Pan American Health Organization. The 284 page book deals with the ethical and legal considerations surrounding the epidemic, attempting to explore these dimensions with regard to issues that not only generate public controversy but also are decisive factors in the design of public health policies in the Americas. ISBN No. 92-7511530-3. Available from PAHO's Publications Office, 202-874- 3067. 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.