LESBIAN/GAY LAW NOTES ISSN 8755-9021 June 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; Seth M. Rosen, NY Law School Student; K. Jacob Ruppert, Esq., New York; Ian Teran, Esq., New York; Dirk Williams, Esq., Boston; 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 11th Circuit Rules for Gay Student Groups; Alabama Law Violates First Amendment On April 29, the U.S. Court of Appeals for the 11th Circuit found unconstitutional, on its face and as applied, an Alabama statute prohibiting the use of public funds to promote a lifestyle or action prohibited by sodomy and sexual misconduct laws. __Gay Lesbian Bisexual Alliance v. Pryor__, 110 F.3d 1543. The Gay Lesbian Bisexual Alliance (GLBA) is an officially recognized student organization at the University of South Alabama (USA). GLBA's purpose is to "provide a foundation for unification for homosexual and non-homosexual people of the student population, in order to draw support to further our efforts in educating all members of the university community on the fears and dangers of homophobia and to provide a support system for the University of South Alabama's homosexual students." The statute in question, Ala. Code sec. 16-1-28, provides: (a) No public funds or public facilities shall be used by any college or university to, directly or indirectly, sanction, recognize, or support the activities or existence of any organization or group that fosters or promotes a lifestyle or actions prohibited by the sodomy and sexual misconduct laws of secs. 13A-6-63 to 13A-6-65, inclusive. (b) No organization or group that receives public funds or uses public facilities, directly or indirectly, at any college or university shall permit or encourage its members or encourage other persons to engage in such unlawful acts or provide information or materials that explain how such acts may be engaged in or performed. (c) This section shall not be construed to be a prior restraint of first amendment protected speech. It shall not apply to any organization or group whose activities are limited solely to political advocacy of a change in the sodomy and sexual misconduct laws of this state. The statutes referenced in part (a) criminalize sodomy or "deviate sexual intercourse," which Alabama law defines as "[a]ny act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another." Ala. Code sec, 13A-6-60(2) (1994). The case arose from two incidents. First, the district court found that USA effectively denied on-campus banking privileges to GLBA. Second, USA denied funding to GLBA to purchase posters in connection with "World AIDS Day." Dean Adams of USA refused to grant any funding to GLBA pending a ruling from the Attorney General on the application of sec. 16-1-28. In July, 1993, the Attorney General issued an opinion that USA could not fund any of GLBA's activities. The Attorney General's opinion did not specifically state how GLBA violated sec. 16-1-28. USA then established a fact-finding committee to determine whether GLBA violated 16-1-28 by fostering or promoting actions prohibited by the sodomy and sexual misconduct laws. Before the fact finding committee could begin its investigation, GLBA filed suit against the Attorney General seeking to have 16-1-28 declared unconstitutional. The District Court found that 16-1-28 violated the first amendment as applied to GLBA. Further, the District Court found that 16-1-28 violated the first amendment on its face. Judge Joel F. Dubina, writing for the Court of Appeals, affirmed the District Court's decision. The Court found that 16-1-28 constituted unconstitutional viewpoint discrimination. Specifically, the court found that "[t]he statute discriminates against one particular viewpoint because state funding of groups which foster or promote compliance with the sodomy or sexual misconduct laws remains permissible. This is blatant viewpoint discrimination." Further, the court denied the Attorney General's request to apply a lower level of scrutiny to this statute because the case arose in the university setting. The court, citing __Rosenberger v. Rector & Visitors of the Univ. of Virginia__, 115 S.Ct. 2510 (1995), found that the dangers of viewpoint discrimination are heightened in the university setting and therefore heightened scrutiny was required. The Court of Appeals also affirmed the District Court's finding that 16-1-28 violated the first amendment on its face. The court found that 16-1-28 was invalid on its face unless it could be interpreted as applying only to speech designated to incite or produce imminent lawless action. The court found that such an interpretation could not be supported by the plain meaning of the statute. T.V.L. The plaintiffs were represented by Fern Singer of Watterson and Singer in Birmingham, Alabama (local counsel) and Ruth Harlow, Marc Elovitz, and Matthew Coles of the ACLU Lesbian and Gay Rights Project, based in New York. (Harlow and Elovitz have since left the ACLU, Harlow to become Managing Attorney in Lambda Legal Defense Fund's New York office, and Elovitz to private law practice in New York.) In a previous decision on attorneys fees in this case, __Gay Lesbian Bisexual Alliance v. Sessions__, 930 F.Supp. 1492 (M.D.Ala. Jun. 6, 1996),the district court highly praised Harlow and Singer for the quality of their representation of the plaintiffs. A.S.L. LESBIAN/GAY LEGAL NEWS Gay Rights Sweeps New England: New Hampshire and Maine Pass Laws Barring Sexual Orientation Discrimination; Other Legislative Developments Maine and New Hampshire have become the tenth and eleventh states to ban discrimination on the basis of sexual orientation, making a clean sweep of the New England states. Together with existing laws in Vermont, Massachusetts, Rhode Island, and Connecticut, the new laws make New England the first part of the United States to achieve region-wide protection against sexual orientation discrimination. In New Hampshire, HB 421 was approved by the state's House of Representatives on March 19 by a vote of 205-125; the Senate concurred on May 6, voting 13-9. Governor Jeanne Shaheen, a Democrat, had already announced her support of the bill prior to passage. The new law forbids discrimination in employment, housing, or access to public accommodations on the basis of sexual orientation, which is defined as "having or being perceived as having an orientation for heterosexuality, bisexuality, or homosexuality." The employment provision covers both public and private sectors. Other characteristics already covered under New Hampshire's civil rights law include age, race, sex, color, ethnicity, marital status, and disability. That such a bill would achieve passage in New Hampshire, a state with a reputation for conservatism where both houses of the legislature are controlled by Republicans, may be explained by the particular libertarian streak in the state's politics. Local Catholic Church leaders supported the bill, which includes an exemption for religious organizations, although Church support came after the House amended the original propose to state that the bill "does not intend to promote or endorse any sexual lifestyle other than the traditional marriage-based family." There is also a provision forbidding the bill to be interpreted to permit adoptions by homosexuals (which are specifically forbidden by a provision of the adoption law) or to allow same-sex marriage. The bill will take effect Jan. 1, 1998. The familiar political slogan is: As New Hampshire goes, so goes Maine. A sexual orientation discrimination proposal passed the Maine legislature four years ago, but it was vetoed by Governor John McKernan, a Republican. During the first week of May, a new bill passed both houses of the Maine legislature (Senate, 28-5; House, 84-61) just days after the New Hampshire enactment. Governor Angus King, an Independent, had announced his support during the pendency of the bill. After passage, Gov. King urged Maine citizens not to sign petitions for a referendum. Noting that Maine voters defeated a ballot measure in 1995 that would have banned local communities from adopting sexual orientation discrimination ordinances, King said: "I just hope people don't sign the petitions. We've had the referendum; let's not do it again. I think it's a mistake, and there's no reason to put the people through it." King ended up signing the bill before Gov. Shaheen, thus making Maine the 10th state to enact a gay rights bill and New Hampshire the 11th. The other states that forbid sexual orientation discrimination are: California, Connecticut, Hawaii, Massachusetts, Minnesota, New Jersey, Rhode Island, Vermont, and Wisconsin. Similar measures are pending in several other states, including Oregon, Washington, and New York. Most of the nation's largest cities, including the District of Columbia, have ordinances forbidding such discrimination. __BNA Daily Labor Report__ No. 88, A-10 (5/7/97); ACLU Press Release, 5/6/97; __USA Today__, May 9; __Rocky Mountain News__ (Reuters story), May 10. The Oregon gay rights bill, which only covers employment, got a big boost on April 29 when the state's House of Representatives approved it by a 40-20 vote. Openly gay Republican House Member Chuck Carpenter forced the issue to the floor in the Republican- controlled House over the opposition of the relevant committee chair. Prospects for Senate passage are uncertain, as the Republican Majority Leader, Gene Derfier, announced the bill would not be released for a floor vote unless Carpenter can demonstrate that it has at least the 16 votes necessary for passage. Governor John Kitzhaber, a Democrat, is a supporter of the bill and would sign it if it passed the legislature. __Washington Blade__, May 9. The state Republican party put considerable pressure on Carpenter and one other Republican ally, Jim Hill, for pushing the measure. Hill said he might take up the party's invitation to change his registration to Democrat, which would cause disarray in the state House, where Republicans presently hold a 31-29 edge. __Washington Times__, May 21. In a surprising turnabout, Arizona Governor Fife Symington abandoned a veto threat and signed a bill enhancing penalties for bias-related crimes, including sexual orientation motivated bias, on April 28. Symington, who is facing trial on corruption charges, had vetoed a similar bill last year. In his signing statement, Symington proclaimed: "We are all different from each other in many ways. In a free society, we are not required to like or embrace these differences. However, society does require that the intolerant among us not express their beliefs through criminal conduct." Arizona becomes the 21st state to adopt a hate crimes law that specifically addresses bias on the basis of sexual orientation, according to the National Gay & Lesbian Task Force. __Washington Blade__, May 9. New Mexico has enacted a law banning employment discrimination by Native American casinos and their contractors, that includes sexual orientation among enumerated grounds for protection. This is a bit odd, since the state doesn't prohibit any other private employers from discrimination on this basis. Perhaps this bill is the prelude to a measure providing broader protection in New Mexico. A.S.L. Supreme Court Denies Review of Lesbian's Housing Discrimination Victory The U.S. Supreme Court declined on May 12 to hear the appeal of a woman who was fined for refusing to allow a lesbian to be her housemate and co-tenant. __Hacklander-Ready v. Wisconsin__, 1997 WL 120726. In denying certiorari, the Court let stand a Wisconsin court opinion, __State ex rel. Sprague v. City of Madison__, 555 N.W.2d 409 (table), 1996 WL 544099 (Wis.App. 1996) (not officially published) awarding Carol Sprague $300 in damages and approximately $10,000 in attorney's fees. Hacklander-Ready advertised in 1989 for housemates to share a four-bedroom apartment she was renting in Madison. She offered a room to Sprague, but withdrew the offer a day later after she and a second housemate decided they would not be comfortable living with a lesbian. Sprague filed a complaint with the Madison Equal Opportunity Commission, alleging that Hacklander-Ready had discriminated against her in violation of sec. 3.23(4)(a) of the Madison General Ordinances by denying her housing because of her sexual orientation. A Wisconsin appellate court concluded the statute was unambiguous and applied to shared housing. The court also held the ordinance was not unconstitutional as applied, ruling instead that any alleged right to privacy or first amendment protection had been waived by Hacklander-Ready's participation in the for-housing market. The Madison City Council amended its non-discrimination ordinance while Sprague's action was pending to exempt all decisions to share housing, by owners and tenants alike. Federal law [42 U.S.C. 3603(b)(2)] exempts certain house-sharing decisions by owners, but not tenants. I.T. Supreme Court Denies Review of Military Challenge Once again resisting the temptation to become embroiled in the "gays in the military" controversy, the U.S. Supreme Court denied a writ of certiorari in __Selland v. Cohen__, 96-1238, on May 12. Dirk Selland was attempting to overturn the 4th Circuit's ruling in __Selland v. Perry__, 100 F.3d 950 (4th Cir. 1996), which upheld the constitutionality of the "don't ask, don't tell, don't pursue" policy adopted by the Clinton Administration and Congress in 1993. So far, the Supreme Court has never granted a writ of certiorari for a full-scale review on the merits of any military policy concerning service by lesbians and gay men. Undiscouraged, however, yet another gay military dischargee has filed a certiorari petition: __Richenberg v. Cohen__, No. 96-1648 (filed 4/17/97), appealing __Richenberg v. Perry__, 97 F.3d 256 (8th Cir. 1995). A.S.L. Supreme Court Refuses Review to Gay Demonstrators On May 12, the U.S. Supreme Court refused to review a decision by the New York courts to allow prosecution of gay rights demonstrators arrested on St. Patrick's Day in 1994. __Arbeiter v. New York__, No. 96-1555, denying review of __People v. Arbeiter__, 650 N.Y.S.2d 915 (App. Term, 1st Dept., 1996), rev. denied, 677 N.E.2d 292, 654 N.Y.S.2d 720 (N.Y. 1996). The demonstrators, members of the Irish Lesbian and Gay Organization and their supporters, were arrested by police officers when they attempted to hold their own mini-St. Patrick's Day Parade on Fifth Avenue after being excluded from the "official" parade administered by the Ancient Order of Hibernians and being denied a police department permit to hold their own event on the Avenue. They argued to the state courts that their arrests should be dismissed in the interest of justice, and denied that their activities constituted resisting arrest. A divided panel of the Appellate Term ruled against them on June 19, 1996, one judge dissenting on the resisting arrest issue. The petitioners contended to the Supreme Court that the lower courts' rulings in the case violated their First Amendment rights of assembly and free speech. A.S.L. 9th Circuit Rules Against Gay Republicans In Dispute With County Committee The El Dorado County Republican Committee is a private organization and thus not amenable to suit under 42 U.S.C. sec. 1983, ruled the 9th Circuit on May 21 in __Johnson v. Knowles__, 1997 WL 266829. Furthermore, a Republican state legislator alleged to have taken steps to have two gay men removed from the committee was also immune from suit, since he was acting in his capacity as a party official rather than as a government official. Paul Johnson and Kevin Wadsworth, described in Circuit Judge Trott's decision as "a gay couple" and "exclusive life partners in a homosexual relationship," live together on a ranch in El Dorado county. They have been active in Republican politics, and were both elected to the county Republican committee in 1992 and 1994. In this suit, they allege that State Assemblyman David Knowles, an ex officio member of the committee, engineered their removal by vote of the committee because of his anti-gay bias against them. The committee purportedly removed them because they had rented their ranch to a Democrat's campaign organization for a fund- raising event which they did not attend, and because Wadsworth had allegedly made public remarks critical of the committee. The district court ruled that neither the actions of Knowles or the committee were subject to the federal civil rights law, 42 U.S.C. sec. 1983, because such actions were not taken "under color of state law." Although the members of the committee are elected in a process administered by the state, and Knowles is an elected public official, the district court found, and the court of appeals affirmed, that party organizations, and public officials when functioning as party officials, are not a part of the government. "Although the Committee conceivable could act under color of state law for some purposes, there is nothing tying the State of California to the particular decision that the Plaintiffs challenge, namely, the Committee's decision to oust Johnson and Wadsworth from the Committee on the basis of their sexual orientation. Every court that has considered similar section 1983 claims has reached this conclusion," wrote Trott. A.S.L. Florida Appeals Court Disqualifies Homophobic Judge A Florida District Court of Appeal disqualified a judge who referred to a lesbian household as a "sick situation" in a domestic violence hearing from any future role in the case. __Rucks v. State__, 1997 WL 208044 (Apr. 30). Robbyn Rucks was charged with domestic assault and battery following a physical altercation with the 17-year-old daughter of her live-in companion. Incurring this charge constituted a violation of Rucks' probation on a previous unrelated charge. Judge Bob Anderson, in sentencing Rucks for the probation violation, repeatedly referred to her living arrangement as a "sick situation" and concluded that "[i]f this is the family of 1997, heaven help us." Rucks moved to disqualify the judge based on these comments. The District Court of Appeal allowed the disqualification, finding that Rucks had a well grounded fear that she would not receive a fair trial from Judge Anderson in light of his comments. D.W. California Court of Appeal Rejects Discrimination Claim Against Boy Scouts Finding that the Boy Scouts of America is not a "public accommodation" covered by California's Unruh Civil Rights Law, the California Court of Appeal for the 4th District rejected a discrimination claim by Chuck Merino, an El Cajon Police Officer who was dismissed from a volunteer leader position after he "came out." The opinion of the court in the __Merino v. Boy Scouts of America__ was not officially reported as we went to press, but was discussed at length in newspaper articles. See __Los Angeles Times__, May 23. Merino said he would appeal the case to the state supreme court, which is already considering an appeal in __Curran v. Mt. Diablo Council, Boy Scouts of America__, 29 Cal.App. 4th 192 (1994), in which an appellate panel in Los Angeles reached essentially the same decision. In a concurring opinion, Justice Richard Huffman said that even if the Boy Scouts was covered by the Unruh Act, he would rule against Merino's claim on the ground that the Boy Scouts have a 1st Amendment right to freedom of association that would shield them from having to employ a gay person as a volunteer leader. "The message (the Boy Scouts) seek to convey to its membership does not include approval of homosexual conduct by a person who is acting as an appropriate role model and moral example," wrote Huffman. "Moreover, some of the religious entities with which (Boy Scouts) is affiliated strongly disapprove of homosexual conduct." The court's opinion reverses a decision by Superior Court Judge Anthony Joseph, who had found an Unruh Act violation and ordered Merino's reinstatement by the Scouts. A.S.L. NY Appellate Division Reverses Conviction of Rambles Mugger In __People v. Moore,__ 1997 WL 197167 (N.Y. App, Div. 1st Dept, April 22), Anthony Moore appealed his conviction on one of two counts of robbery in the first degree. Both robberies charged were committed on January 23, 1993, in the Rambles of New York's Central Park. According to the dissent's statement of the facts, the defendant "specialized" in robbing homosexual men at knifepoint in the Rambles. By a 3-2 majority, the Appellate Division reversed the conviction in an unsigned memorandum and remanded for a new trial. The appeal turned on the trial court's modification during trial of its pretrial __Sandoval__ ruling. Under the rule of __People v. Sandoval__, 34 N.Y.2d 871, 618 N.Y.S.2d 16, when a defendant is charged with a crime which was of a nature similar to others for which he had previously been convicted, the State is limited as to the evidence which may be introduced as to the prior crimes, as the probative value of the past crimes must be balanced against the prejudice which may result from introduction of too many details of the prior acts. After the pretrial __Sandoval__ hearing, the trial court ruled that the fact that Moore had been convicted of two prior robberies could be introduced, but that both took place at knifepoint in the Rambles would not be related to the jury. During Moore's trial, the State cross-examined Moore about a conversation which he had with the victim, in which Moore spoke of being in the Rambles at night. The State asked Moore if he told the victim that the Rambles was dangerous at this time of night. Moore said, no he hadn't, but said that "anything could happen," and when asked if he said that a robbery at knifepoint could occur, said "Who's me to say?" On the basis of this cross-examination, the State moved to modify the __Sandoval__ ruling, arguing that this ambiguous answer was an abuse of the protection afforded by __Sandoval__ because it was unresponsive and misleading. The trial judge agreed, and the State was allowed to introduce particulars of the two prior convictions, to show that Moore would know that the Rambles was a dangerous place to be at night, because, in effect, he was one of the people who made it dangerous. The State used this response to its advantage, introducing evidence of the two prior convictions, and making this point during its closing arguments. The majority quoted this brief cross-examination verbatim, and decided that this was a situation where, by asking about robberies at knifepoint in Central Park, the State was indirectly suggesting that Moore would have personal knowledge about such crimes, and, in effect, baited Moore into an answer that justified the abrogation of __Sandoval__ protection. The dissenting justices, Eugene Nardelli and Betty Weinberg Ellerin, took a different view of the case, arguing that the majority took this piece of cross-examination out of context. Moore testified on direct that the victim had solicited him for sex in the Rambles, but Moore had refused. The victim then gave Moore money, his watch, and a gold chain. He then continued, stating that he laughed at the victim, and told him that the victim should not be in the park, playing these types of games, whereupon the victim left. The dissenters pointed to this as the foundation for the cross-examination, arguing that taken in this context, the response "who's me to say?" went beyond a mere denial, and instead of using __Sandoval__ as a "shield" to prevent inquiry into prejudicial matters, became an affirmative assertion that Moore wouldn't know about such things as knifepoint robberies in Central Park. The dissenters then argued that this "gratuitous" comment opened the door for the State's inquiry on point, because it went beyond mere denial of the accusation. In a heated opinion by Nardelli, the dissenters described the scenarios for robbery in the Rambles, which provide for cover, multiple routes for escape, victims who are often loathe to report the crime, and a context of robbery where, even if the crime is reported, the accused could claim that the items allegedly robbed were in fact, gifts from the victim in exchange for sex. The dissenters said Moore's testimony in this case "accused the victim of malicious, deliberate perjury." Citing a prior case, the dissenters argued that the fact that a defendant specializes in a particular type of criminal activity should not insulate him from impeachment for such activity. S.K. N.Y. Appellate Division Reverses Sodomy Conviction of Prominent Attorney The N.Y. Appellate Division, 3rd Department, reversed the sodomy conviction of John T. Seaman, a prominent New Windsor, N.Y., attorney, based on trial errors, even though the court concluded that the verdict was not "against the weight of the evidence." __People v. Seaman__, 1997 WL 236045 (May 8). Seaman was automatically disbarred as a result of his conviction, according to a news report in the __New York Law Journal__ (May 12). According to the trial record, Seaman, 53, had sex with a teenage boy, a friend of his son, and was charged with sodomy in the third degree. The appellate court found objectionable the introduction of testimony about the "sexual climate" in Seaman's home and vacation cabin, including nudity, sexy magazines, and skinny- dipping in the hot tub, none of which bore directly on the charged offense, according to the court. One dissenting justice argued that the sexual climate testimony was relevant, in light of the attempt by Seaman's attorney to paint a picture of Seaman as a highly reputable pillar of the community. The court also found improper the admission of "expert" and corroboratory lay testimony about "abused child syndrome," which it found was clearly introduced for the purpose of bolstering the prosecution's case that the offense was committed, not merely (and permissibly) to help explain the victim's delay in reporting the offense. The court found that the erroneously admitted evidence resulted in "enormous prejudice" to the defendant, thus mandating a reversal. The dissenting justice argued that Seaman's attorney had failed to preserve this issue of appeal, and in any event that she could not see the "enormous prejudice" described by the majority of the court. Amid speculation about whether Seaman would be retried, his attorney, Prof. Michael Hutter of Albany Law School, indicated that Seaman would seek reinstatement in the bar. A.S.L. Airlines Challenge S.F. Contractor Benefits Ordinance; Claim Federal Preemption of Benefits Regulations The Air Transport Association, an industry association that "represents 22 domestic carriers that fly 95 percent of the nation's cargo and passenger traffic," according to the Associated Press, filed suit May 13 against the City of San Francisco in U.S. District Court for the Northern District of California, claiming that a municipal ordinance requiring city contractors to provide domestic partnership benefits to their employees may not be validly applied to the airlines. The suit rests on three statutory preemption arguments, two of which are specific to the airline industry and one having much broader application. The ATA argues that the ordinance is preempted by the federal Airline Deregulation Act, which bars localities from attempting to regulate airline operations, and by the Railway Labor Act, which governs collective bargaining between railroads and airlines and their employees. If ATA succeeds on these two claims, the court will declare that the ordinance cannot be applied to ATA's members. However, the wider-ranging argument is that the ordinance is preempted by the Employee Retirement Income Security Act (ERISA), which broadly preempts state and local laws relating to employee benefit plans. The Supreme Court has traditionally interpreted ERISA preemption quite broadly, although it has not always found local enactments to be preempted. (For example, the Court has upheld a state law governing plant-closing issues that necessarily included employee benefits issues.) Supporters of the San Francisco ordinance had argued against ERISA preemption by asserting that the ordinance did not regulate employee benefits, but merely adopted a policy for the city of not contracting with employers who failed to give such benefits to their employees; thus, employers are free to adopt or not adopt employee benefit plans. Whether the federal courts will accept this reasoning is a matter of some speculation. The case has been assigned to District Judge Claudia Wilken. The ATA has asked the city to suspend the June 1 effective date of the ordinance pending a decision by the court, and may seek a restraining order if the city does not agree. United Airlines, whose contract at San Francisco's airport is up for renewal this year, had previously agreed to extend domestic partnership benefits as a condition of renewal, but now says it is supporting the ATA suit on the ground that the ordinance is "illegal." __Associated Press__, May 14. A.S.L. Hawaii Compromise Produces Far-Reaching Partnership Bill The most far-reaching domestic partnership legislation ever passed in the United States was approved by the Hawaii legislature on April 29, as part of an effort to block efforts toward same-sex marriage in the state. Under a "compromise" negotiated in a House-Senate conference committee, both houses approved a bill calling for a ballot measure for a state constitutional amendment authorizing the legislature to restrict marriage to same-sex couples; both houses also passed the domestic partnership (DP) bill. (Under Hawaii procedures, the amendment resolution must be passed again in the next legislative session, and would then be put on the general election ballot in November 1998). The DP measure, which adopts the terminology of "reciprocal beneficiaries" for unmarried couples who register their relationships with the state, covers approximately sixty rights or benefits, including medical benefits for same-sex partners of public employees. (The state cannot legislate on benefits for private sector employees due to ERISA preemption under federal law.) According to the __Los Angeles Times__ (April 30), eligibility is restricted to couples who cannot marry under Hawaiian law; thus, same-sex couples may register, but only some opposite-sex couples may register. The main benefits of registration include survivorship rights (inheritance, workers compensation, employee retirement benefits), hospital visitation, a variety of public sector employee benefits, property rights, and legal standing for wrongful death and victim's rights litigation. The bill does not extend recognition to reciprocal beneficiaries for state tax purposes. The effective date of the legislation will be July 1, 1997. Meanwhile, the state has asked the Hawaii Supreme Court to delay its ruling in __Baehr v. Miike__, the pending same-sex marriage lawsuit, until after the November 1998 balloting. At press time, there was no word whether Gov. Cayetano has signed the DP bill. A.S.L. Eleven-Year Relationship Not Good Enough For Succession Rights According to N.Y. Appellate Division, 1st Department Finding that a surviving partner in an eleven-year relationship had not provided sufficient evidence of interdependence, the New York Appellate Division, 1st Department, upheld a ruling by the Appellate Term in favor of a landlord seeking to evict the partner after the tenant's death. __GSL Enterprises, Inc. v. Lopez__, 1997 WL 216834 (May 1). According to the court's opinion, the only evidence before the trial court was "respondent's testimony that he and the deceased tenant shared expenses, held some credit cards jointly, and vacationed together on some five occasions over their 11-year relationship, and that he helped to care for the tenant in his illness." The court found lacking any testimony from "friends, neighbors, or family members corroborating a family-type, as opposed to close-friend-and-roommate, relationship. . .; no documentation corroborating the intermingling of finances; no proof that the two had ever held themselves out as a family unit, executed documents formalizing legal obligations, or jointly celebrated holidays with other family members except on one occasion; and it was significant that the tenant executed a power of attorney in favor of his sister, and amended his will to include his desire that his sister `inherit' the apartment." On this basis, the court concluded that the respondent had failed to satisfy his affirmative burden of showing interdependence under the tenant succession regulations. This sounds like the decision of a court that is basically hostile to the concept of tenant succession, which is presently under attack from New York State Senate Majority Leader Joseph Bruno (R.). Bruno has threatened to allow the New York State rent regulation laws expire on June 15. In negotiations with the Democratic leadership of the State Assembly, Bruno has specifically mentioned tenant succession by non-traditional family members as a target for elimination. Tenant succession rights for unmarried partners are based on the historic New York Court of Appeals decision, __Braschi v. Stahl Associates, Inc.__, 74 N.Y.2d 201 (N.Y. 1989), holding that rent control regulations affording succession rights to family members should be construed to include a same-sex partner. A.S.L. Other Domestic Partnership Notes More large employers have announced granting of domestic partnership benefits in the wake of San Francisco's ordinance banning city contracts with companies that fail to provide such benefits: Pacific Gas & Electric and Chevron Oil Company. Both cases demonstrate the significant extraterritorial impact of San Francisco's action, as the benefits plans will be extended to all U.S. employees of both corporations, not just those working in San Francisco. In both cases, internal lesbian/gay employee groups had been lobbying for the changes for several years, but the S.F. ordinance provided the final push to success. Both corporations claimed that the S.F. ordinance was not their only reason for acting, issuing statements extolling the good business sense of adopting such a policy. Chevron appears to be the first major oil company to adopt a domestic partnership benefits plan. The Reverend Hiram Crawford and others opposed to Chicago's new domestic partnership ordinance brought suit in Cook County Circuit Court, claiming that the city lacked legislative authority to enact the measure. On May 12, Judge Thomas Durkin heard arguments on Crawford's motion for interim relief, with Lambda Legal Defense & Education Fund's Pat Logue representing two city employees as intervenors on behalf of the City of Chicago. Durkin denied the request for relief, thus allowing the ordinance to go into effect on May 16, and set a hearing for August 15 on the merits of the case. Lambda Press Release, May 13; __Chicago Tribune__, May 13. The City Council of Tucson, Arizona, voted 6-0 to approve medical benefits for same-sex domestic partners of municipal employees on April 28. One member abstained from the vote, on the grounds that he wanted to extend benefits to all domestic partners and he felt that the measure didn't include adequate criteria for determining eligibility. The Council estimated that the cost of the plan would be about $27,000 in the first year; extending benefits to all partners increased the estimate to $127,000. __Tucson Daily Star__, April 29. Tumwater, Washington: a little town (pop. 12,000) with a big heart. During the first week of May, the Tumwater City Council voted 5-2 to grant benefits to domestic partners of municipal employees, voted 502 to add a ban on sexual orientation discrimination in employment to its human rights ordinance, and vote 4-3 to add sexual orientation to the city's affirmative action policy. Mayor Pro Tem Pete Kmet switched sides on the affirmative action vote, fearing establishment of a quota system. Benefits opponent Tom Shattuck feared the town's action would damage the institution of marriage: "I have kind of always been somewhat of a believer in the `don't ask, don't tell' policy," he decisively opined to the __Seattle Times__ (May 11). The Democratic National Committee announced May 16 that it will offer same-sex partners of its employees the same health benefits now available to spouses, effective July 3, 1997. Eligibility requires that the couple have resided together for at least 12 months before applying for benefits. The DNC has approximately 150 employees. __New York Times__, May 17. Teamsters Local 70 in Oakland, California, will provide domestic partner benefits to those of its members who participate in the East Bay Drayage Drivers Security Fund, a multi-employer jointly- administered fund. About 3,000 of the union's 5,000 members are covered under the Fund. The Fund trustees voted unanimously to adopt the benefits plan, under which registering partners must present some "proof of partnership, such as a joint bank account statement or real estate agreement." The benefits will be extended effective June 1, 1997. __Oakland Tribune__, May 16. In a collective bargaining agreement announced May 4, the Foothill- De Anza Community College District Board of Trustees and the faculty union agreed that their existing domestic partner health benefits plan will be extended to the same-sex domestic partners of retired teachers. The contract covers faculty at Foothill College in Los Altos Hills, California, and De Anza College in Cupertino, California. __San Jose Mercury News__, May 5. The __St. Petersburg Times__, a Florida newspaper, announced it will offer health insurance to same-sex domestic partners of employees. In a May 14 article announcing the new policy, the newspaper mentioned other prominent papers that offer such benefits, including the __New York Times__, the __Boston Globe__, and the __Seattle Times__. The __Times__ will require employees to file a declaration of domestic partnership, "saying that they have lived together continuously and have been each other's `sole domestic partner' for six months `and intend to be so indefinitely.'" The University of Washington Board of Regents announced in a press release on May 16 that it had voted to make certain health care and housing privileges available to students with registered same-sex domestic partners. Beginning with the fall semester, students may purchase coverage for their domestic partners on the same basis as students have been able to purchase coverage for spouses and dependents. The University will seek a necessary amendment in the Washington Administrative Code provisions governing University housing policies to open up University housing to domestic partners. The University is in Seattle, which provides a domestic partnership registry that students may use to qualify for University recognition of their partnerships. A.S.L. NYC Bar Association Calls for Same-Sex Marriage The Association of the Bar of the City of New York, the nation's largest municipal bar association, has called for New York State to authorize same-sex marriages and to recognize such marriages lawfully performed out-of-state. In a report produced by four committees of the Association and published in the Association's journal in April, the Association contended that the gender-neutral New York marriage law could already accommodate same-sex marriages without any need for amendment, and that such an interpretation was compelled by principles of public policy and constitutional law. __Same-Sex Marriage in New York__, 52 Record of the Assoc'n of the Bar of the City of N.Y. 343 (April 1997). After noting the gender-neutrality of NY's marriage statute, the report argues that interpreting it to authorize same-sex marriages would be consistent with the fundamental nature of the right to marry under due process and with equal protection requirements, particularly in light of __Romer v. Evans__. In addition, the report notes that as a matter of public policy, New York courts have extended significant recognition to same-sex families in a variety of contexts, including tenant succession rights, second- parent adoptions, and even a case treating a surviving life partner as "next of kin" for purposes of disposition of a body. See __Stewart v. Schwartz Brothers-Jeffer Memorial Chapel, Inc.__, 159 Misc.2d 884 (N.Y.Sup.Ct., Queens County 1993). Turning to the question of New York recognition of out-of-state same-sex marriages, the report surveys New York marriage recognition law and finds that New York has a strong policy of recognizing lawfully performed out-of-state marriages, even in circumstances where New York law would not have permitted the marriage ab initio. In particular, the report finds that New York has recognized incestuous (first cousin) and under-age marriages in circumstances where they were lawfully performed elsewhere, and that the only categorical refusal to recognize out-of-state marriages has concerned polygamous marriages. In an appendix prepared by the Association's Matrimonial Law Committee, the report provides an itemization of rights and responsibilities affected by the right to marry in New York, and concludes that all of these should apply to same-sex couples and could most easily be so applied by extending the right to marry rather than through piecemeal reform efforts. The principal authors of the report are Peter J.W. Sherwin, Lenora M. Lapidus, and Victoria A. Kummer. Sherwin was recently appointed by City Bar President Michael Cardozo to be the new chair of the Association's Committee on Lesbians and Gay Men in the Profession, effective September 1, 1997. A.S.L. Other Same-Sex Marriage Notes In a summary released May 28, the National Gay & Lesbian Task Force reported that Indiana has become the seventh state in 1997 to adopt a law explicitly banning same-sex marriage and prohibiting recognition of same-sex marriages performed out of state. Similar bans have passed legislatures in Minnesota, Colorado and Florida. Gov. Carlson of Minnesota is expected to sign, Gov. Chiles of Florida announced he would allow the measure to become law without his signature, and Gov. Romer remained, as always on this issue, unpredictable. Romer vetoed a law against same-sex marriage last year; this year, he attempted to work with the legislature on a bill that would not be gay-bashing but would merely reiterate existing state policy limiting marriage to opposite-sex couples. However, the bill that finally passed did not exactly track the language preferred by the governor, and some even suggested that it could be found to have invalidated common-law marriage in Colorado, so the governor's final decision remained in doubt at month's end. On the other hand, anti-same-sex marriage bills went down to defeat in several legislatures, including Louisiana, Alabama, California, and Texas. A.S.L. Sacramento Judge Orders Visitation for Lesbian Co-Parent In a rare victory for a lesbian co-parent in a visitation dispute, Sacramento (California) Municipal Court Judge Gail Ohanesian awarded a temporary visitation order to Pamela Lockrem-West in a dispute with her former partner, Barbara West, over visitation with the daughter the women had conceived through donor insemination during their partnership. __Lockrem-West v. West__. We are relying on a report in the __Sacramento Bee__ (May 15) and __San Jose Mercury News__ (May 19) for this story concerning the unpublished decision. The women had an eight-year relationship and planned to have two children, one borne by each woman. West went first, because she had a superior health insurance plan at her job. The women split up two years ago, but West allowed Lockrem-West to visit with the child for over a year and a half before calling a halt, claiming that she wanted her child to have only one mother. Judge Ohanesian stated that she was in agreement with a report prepared by Family Court Services, concluding that it would be "detrimental to the child to sever contact" with Lockrem-West, who nurtured her in as a mother in her early years. Judging from comments by West's attorney, Sharon Huddle, it sounds like an appeal is in the cards. California appellate courts have thus far been unreceptive to visitation claims by lesbian co-parents. A.S.L. Tennessee Supreme Court Upholds Death Penalty in Murder of Gay Client by Male Prostitute The Supreme Court of Tennessee upheld a ruling sentencing a gay prostitute to death for murdering his client. __State v. Hodges__, 1997 WL 203618 (April 28). The court ruled that neither the homosexual rape Hodges suffered as a child, nor the mental anguish he suffered when his family discovered his homosexual activities, could be listed in instructions to the jury concerning mitigating circumstances. In May of 1990, Hodges and his girlfriend decided to move to Florida after Hodges' family became aware that he worked as a prostitute. Hodges was also employed as a stripper in a gay bar. In order to get money for the move, Hodges robbed and killed a person who solicited him for sex. During the trial, the defense cited several mitigating factors. One was the state of intense mental anguish Hodges was in after his family found out about his homosexual activities. Hodges also claimed that at the age of twelve he was abducted and raped by a male stranger. The defense presented expert testimony stating the killing was motivated by a subconscious desire for revenge of the sexual abuse inflicted upon Hodges. On appeal Defendant claimed the trial court erred in rejecting proposed detailed jury instructions concerning nonstatutory mitigating circumstances in favor of more general instructions. Defendants' proposed instructions were very specific and included the mental trauma and the rape, but the jury instructions used by the court contained only general categories of possible mitigating circumstances. In his opinion for the court, Justice Frank F. Drowota upheld the trial court's choice of jury instructions, citing the line of reasoning laid out in __State v. Odom__, 928 S.W.2d 18 (Tenn. 1996). Justice Drowota held that excessively specific jury instructions may leave the jury with the impression that the listed mitigating factors are findings of fact by the court. Also, the language of instructions concerning nonstatutory mitigating circumstances must mirror the same broad language used in relaying instructions concerning statutorily defined circumstances. Drowota also ruled that although the trial court incorrectly told the jury that Hodges needed to prove any mitigating circumstances before they could be considered, this was a harmless error. In his opinion, Drowota writes that subsequent explanatory instructions informed the jury that they were in fact required to consider any mitigating circumstances raised by the evidence. In dissent, Chief Justice Adolpho A. Birch concludes that instructing the jury to consider only proven mitigating factors biased the jury, despite the trial court's subsequent clarifying instructions. Birch writes that this instruction limited the factors that the jury could consider to ones they felt were proven by the evidence, and affected their decision to sentence Hodges to death. S.M.R. 11th Circuit Accepts Same-Sex Harassment Claim Unanimously reversing a district court decision from Florida, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit held in __Fredette v. BVP Management Associates__, 1997 WL 228588 (May 22), that a male employee's claim of same-sex harassment against a gay male supervisor is actionable under Title VII and the Florida Human Rights Act as sex discrimination. In an opinion by Judge Anderson, the court lined up with the majority of circuit and district court decisions, and explicitly rejected the contrary reasoning of the 5th Circuit. (The Clinton Administration has filed a brief with the Supreme Court, urging it to accept an appeal of __Oncale v. Sundowner Offshore Services, Inc.__, 83 F.3d 118 (5th Cir. 1996), in which the 5th Circuit reiterated its view that sexual harassment claims may only be brought where the plaintiff and the alleged harasser are of opposite genders. The Court, which denied certiorari in several same-sex harassment appeals last fall, specifically requested the Administration's position.) Plaintiff Robert Fredette was a waiter in defendant's restaurant, where Mr. Sunshine, a gay man, was the maitre d'. Fredette alleged that Sunshine repeatedly proposition him, offered employment benefits if Fredette would grant sexual favors, and retaliated against Fredette in various ways for refusing Sunshine's advances. Fredette also provided evidence that Sunshine behaved similarly towards other male employees, and that one male waiter did receive work-related benefits after acceding to Sunshine's propositions. The district court granted summary judgment for the defendant, finding that any harassment of Fredette was not "because of sex" as required by Title VII. The court of appeals disagreed with this finding. "The reasonably inferred motives of the homosexual harasser are identical to those of the heterosexual harasser -- i.e., the harasser makes advances towards the victim because the victim is a member of the gender the harasser prefers," wrote Judge Anderson for the court. "Fredette proffered evidence from which a reasonable factfinder could conclude that he was the victim of sexual advances to which members of the opposite gender were not subjected. This was sufficient to survive summary judgment as to causation." The court found this result to be consistent with the plain language of the statute in light of the paucity of legislative history one way or the other, and noted that the EEOC supports this construction of Title VII. The court noted that the great weight of federal court authority also supports this result. The only circuit court to rule that same-sex harassment is never cognizable under Title VII is the 5th Circuit, in __Oncale__ and other decisions. The court commented that "it is difficult to accord much persuasive force" to the 5th Circuit's decisions, noting that neither provided any reasoning in support of its holding. The court also criticized as "flawed" the most frequently-cited district court decision in opposition to same-sex harassment cases, __Goluszek v. H.P. Smith__, 697 F.Supp. 1452 (N.D.Ill. 1988), totally rejecting the __Goluszek__ court's contention that Title VII is limited to protecting women in male- dominated workplaces. A.S.L. Ohio Appeals Court Rejects Same-Sex Harassment Claim An Ohio appeals court upheld a defense motion for summary judgment in a same-sex harassment case. __Schmitz v. Bob Evans Farms, Inc.__, 1997 WL 218258 (Oh.App. May 1). Plaintiff Kevin Schmitz worked at defendant's restaurant. He asked his supervisor, Jaymz Keller, for a schedule change. Keller complimented and propositioned Schmitz, and said that if Schmitz wanted a schedule change he might "have to do something for it." Schmitz reported the incident to the company, which promptly transferred Keller, who later resigned. Schmitz sued the company, claiming sexual harassment. The company moved for summary judgment, arguing that there was no hostile environment issue, and no quid pro quo because Keller lacked the authority to change Schmitz's schedule. The trial court granted the motion, and the appeals court affirmed, with Justice Nahra finding that the evidence did not establish a change in the terms or conditions of employment. Justice Karpinski concurred, but wrote that the supervisor had apparent authority, and that more serious harassment could have been actionable. O.R.D. Pennsylvania Court Holds Transsexuals Not Protected Against Discrimination The Pennsylvania Commonwealth Court affirmed that a person discriminated against because of their transsexual status is not protected by the Pennsylvania Human Relations Act (PHRA). __Holt v. Northwest Pennsylvania Training Partnership Consortium, Inc.__, 1997 WL 242218 (May 13). The Pennsylvania court also held that Executive Order 1998-1, which prohibits discrimination on the basis of sexual orientation, creates no private right to redress any action that violates the order. In July 1992, Kristine Holt began a medically supervised transition from male to female. As part of the transition, Holt began to dress and present herself as a woman. After a few weeks of dressing like a woman, Holt was transferred to another office, and was subsequently fired for allegedly violating an employer dress code. Holt filed a complaint alleging, among other things, that her termination violated the PHRA and Executive Order 1988-1. The trial court ruled that Holt failed to state a claim under either the PHRA or Executive Order 1988-1, and dismissed both claims. On appeal, Justice Dan Pellegrini's opinion for the Commonwealth Court affirmed the trial court. In order for a person to seek protection under the PHRA, their disability must be a physical or mental impairment which substantially limits one or more major life activities. Justice Pellegrini ruled that transsexualism does not fall within that definition, and relied heavily on the decision in __Dobre v. National Railroad Passenger Corporation__, 850 F.Supp. 284 (E.D.Pa. 1993). In __Dobre__, the court held that transsexualism is not covered under the PHRA because it does not affect any bodily function, or limit a major life function. Justice Pellegrini agreed with the trial court that Holt did not present a cause of action under the PHRA. Justice Pellegrini also affirmed the trial court's ruling that Holt did not state a cause of action under Executive Order 1988-1, which prohibits discrimination on the basis of sexual orientation by a contractor receiving funds from an agency under the jurisdiction of the governor. Pellegrini wrote that the executive order does not create a private right of action to address a violation of the Order, and as such, Holt cannot claim protection under it. In dissent, Justice James Gardner Collins suggests that Holt should be allowed to make a case that she falls within the class protected by the PHRA, contending that transsexualism maybe a physiological disorder that effects Holt's essential life process activities and functions, which would make it applicable to the PHRA. S.M.R. Law & Society Notes: The Supreme Court denied a petition for certiorari in __Peden v. Kansas__, 1997 WL 134321 (May 19), thus leaving in place __Peden v. State__, 930 P.2d 1 (1996), in which the Kansas Supreme Court held that a tax system that imposes higher rates on single than married taxpayers does not violate equal protection, because it is rationally related to a valid state interest in encouraging marriage. Reacting to documentation presented by the Servicemembers Legal Defense Network showing that the Defense Department is continuing to violate the rights of lesbian and gay servicemembers, the Defense Department has established a formal review to determine whether military investigators are going beyond the bounds prescribed by the "don't ask, don't tell" policy. SLDN presented Secretary of Defense William Cohen with evidence that investigators routinely "ask" questions they shouldn't be asking, and continue the old practice of pressuring individuals suspected of being gay into naming other gays in their unit -- a practice that the new policy was supposed to end, given its premise that closeted lesbians and gay men should be allowed to serve because only openly lesbian and gay servicemembers are harmful to morale and good order. (Don't blame us, Senator Nunn and President Clinton thought this one up.) The review was triggered in part by statistics showing that discharges of lesbian and gay servicemembers actually went up under the new policy. __Washington Post__, May 14; __Washington Blade__, May 16. The Kansas Court of Appeals upheld a bias intimidation ordinance in the city of Wichita, which includes, inter alia, bias crimes motivated by the victim's sexual orientation, in __City of Wichita v. Edwards__, 1997 WL 271473 (May 23). Such decision upholding hate crimes laws have become routine since the U.S. Supreme Court's decision in __Wisconsin v. Mitchell__, 508 U.S. 476 (1993), which found that a law enhancing penalties for bias-related crimes is constitutional. Former California National Guard Lt. Andrew Holmes, whose legal victory in federal district court last year, __Holmes v. California National Guard__, 920 F.Supp. 1510 (N.D.Cal. 1996), is now on appeal to the 9th Circuit, has filed a class action suit in San Francisco Superior Court on behalf of all current members of the Guard who are gay, arguing state law discrimination claims. The federal court had declined to rule on supplementary state law claims filed in the earlier law suit. Said Holmes, "We want to assault the policy aggressively, because if we don't win on one front we may win on the other. And I want to make sure that other people who are in circumstances like me who couldn't come forward are protected as well." __San Francisco Chronicle__, May 28. The Associated Press reported that Eleanor Feldman, a lesbian truck driver, lost her discrimination case against Rockwell Power Systems in litigation in Wailuku, Hawaii. Judge E. John McConnell dismissed Feldman's claims after trial, finding she had offered no direct evidence showing anti-lesbian or anti-woman bias in her workplace. The employer claimed that Feldman was discharged for failing to follow orders and safety codes; Feldman denied those allegations. __St. Louis Post Dispatch__, May 27. Judge Dranginis of the Connecticut Superior Court has refused to dismiss on standing grounds a petition for visitation brought after the split-up of a "non-traditional family." __Paraskevas v. Tunick__, 1997 WL 219831 (April 24). Nicos Paraskevas and Barbara Tunick lived together without being married for 17 years. Tunick conceived a child through donor insemination. Paraskevas and Tunick continued to live together for four years after the birth of the child, for whom Paraskevas acted in a fatherly role. After the couple broke up, Paraskevas continued to visit the child almost every day for several months, until Tunick obtained an ex parte court order barring him from visiting. Then Paraskevas sued, seeking a visitation ruling. In refusing to dismiss his petition, Dranginis found that the case concerned a "de facto" separation of a "family," thus meeting the predicate for judicial intervention. It was on-again, off-again, for a San Francisco Muni driver who doesn't like his gay passengers. In March, Wardy Joubert was fired after he pleaded no contest to three criminal charges based on his taunting and beating a gay man for kissing another man on the trolley Joubert was driving. A labor arbitrator ordered his reinstatement. One technicality: Joubert was in jail serving the 90-day sentence he earned for his deed. As the gay community was protesting the arbitration decision, Muni announced that Joubert would be terminated again, this time for missing work. Due to his jail sentence, he missed five consecutive shifts after his reinstatement was ordered by the arbitrator. Muni was not inclined to treat these as excused absences. Will this stand? Beats us. __San Francisco Examiner__, May 20. Continuing a trend of cutting down damage awards issued by the New York City Commission on Human Rights, the N.Y. Appellate Division, 1st Department, reduced an award of $60,000 compensatory damages to $15,000, eliminating the remedies of back pay and reinstatement. __American Society for Prevention of Cruelty to Animals v. N.Y. City Commission on Human Rights__, 1997 WL 277168 (May 27). The brief memorandum decision contains no discussion of the facts of the case or the rationale of the court, merely indicating that it is affirming the Commission's finding "that petitioner discriminated against its former employee on the basis of sex and sexual orientation," but that it finds the damages awarded to be "excessive." A.S.L. International Notes Following nine years of community agitation, a historic ruling by the U.N. Human Rights Committee, and recent pressure from the Australian federal government, the legislature of Tasmania has finally voted to repeal its law banning same-sex relations between adults, according to press releases and news reports at the beginning of May. Commenting on this development, Julie Dorf, Executive Director of the International Gay & Lesbian Human Rights Commission, noted that the U.N. notified the United States government in 1995 that the sodomy laws on the books in more than twenty U.S. states similarly violate the International Covenant on Civil and Political Rights. A.S.L. Another historic first: On May 3, newly-elected British Prime Minister Anthony Blair finished naming his cabinet, including the first openly-gay cabinet English member, Member of Parliament Chris Smith, named Secretary of State for Heritage. Sometimes described informally as the "Ministry of Fun," National Heritage is responsible for administering public funding of arts and cultural activities (museums and historic sites, sports events) and distributing money raised by the National Lottery and similar activities. Some saw this as a "demotion" for Smith, who held the Health portfolio in the "shadow government" maintained by the Labor Party during its period in the opposition. Smith becomes a member of one of the most exclusive clubs in the world: openly-gay cabinet ministers. * * * An openly gay M.P. from the Conservative Party was defeated for re-election as part of the Labor "sweep" but two openly-gay Labor candidates defeated Conservative incumbents. According to news reports, an overwhelming majority of the newly- elected Labor MP's support passage of a national gay rights bill, and the new P.M. has spoken out in support of gay rights. It will be interesting to see what develops in Britain. . . __Washington Blade__, May 9. A.S.L. * * * Ben Bradshaw and Stephen Twigg (both for Labour) were the first openly gay non-incumbent candidates to be elected to the House of Commons. For many, the surprise victory of Twigg over Michael Portillo (the Defence Secretary in the former Conservative government and thus the chief defender of the ban on gays in the military) was the highlight of the night. Bradshaw defeated a Conservative "family values" candidate. R.W. In Argentina, the Social Security Services for Teachers and for Flight Attendants have determined that surviving gay life partners should be entitled to benefits on the same basis as spouses, according to an internet posting distributed by the International Lesbian and Gay Association on May 30. In a close vote, the Spanish Parliament gave initial approval to a domestic partnership proposal submitted by the Coalicion Canaria. The internet posting distributed by the International Lesbian and Gay Association concerning this development are vague as to the provisions, merely stating that the measure is intended to give some sort of legal recognition to non-married unions regardless of the sex of participants. This vote apparently authorizes the government (which opposed the proposal) to draft implementing legislation to be submitted for a later vote. The new Polish Constitution ratified by the nation's voters on May 25 may protect gays from discrimination, but then it may not. An early draft included a list of categories for protection, including sexual orientation, but a later revision dropped the categories and provided instead a general clause, Article 32, Part 2, prohibiting discrimination "based on any ground in political, social or economic life," according to one translation posted to the internet by a Polish gay activist. Until a court case arises, it will be uncertain whether sexual orientation discrimination is covered by this provision. At the same time, responding to European-wide agitation for recognition of non-traditional families, the new constitution specifically provides in Article 18 that marriage will be limited to opposite-sex couples. __Detroit Free Press__, May 13; __Sacramento Bee__, May 26. A.S.L. Sexuality Issues in European Community Jurisprudence __Transsexual Man Denied Recognition as Father__: On April 22, in __X, Y and Z v. United Kingdom__, the European Court of Human Rights held (by 14-6) that a refusal to permit a post-operative female-to-male transsexual person (X) to be registered as the father of the child by donor insemination (Z) of his non-transsexual female partner of 18 years (Y) did not violate Articles 8 and 14 of the Convention. If X were considered a man under English law, he would automatically be the legal father under sec. 28(3) of the Human Fertilisation and Embryology Act 1990. The Court found that the Article 8 right to "respect for family life" was applicable, because "de facto family ties link the three applicants." However, "given that transsexuality raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the [Convention's] Contracting States, the Court [was] of the opinion that Article 8 cannot, in this context, be taken to imply an obligation for the respondent State formally to recognize as the father of a child a person who is not the biological father." The Court considered that "the State may justifiably be cautious in changing the law, since it is possible that the amendment sought might have unforeseen or undesirable consequences for [AID] children." It also noted the inconsistency of treating X as the father of Z but as female for other legal purposes. The Court's judgment was a disappointment after the Report of the European Commission of Human Rights, adopted on June 27, 1995 (Application No. 21830/93), which had found a violation of Article 8 (by 13-5). For more information about the case, please contact X, who is in fact law professor Stephen Whittle, School of Law, Manchester Metropolitan University, Elizabeth Gaskell Campus, Hathersage Road, Manchester M13 0JA (s.t.whittle@mmu.ac.uk; fax: 44-161-224-0893). R.W. __Failure to Recognize Gender Reassignments Violates Convention__: Transsexual applicants from Britain have consistently failed before the Court where they have sought marital or parental rights. However, a preliminary victory has been achieved in __Sheffield v. U.K.__ (Application No. 23390/94) and __Horsham v. U.K.__ (Application No. 22985/93). In Reports adopted on Jan. 21, the Commission held (by 15-1 in both cases) that the male-to-female transsexual applicants' inability to obtain legal recognition of their gender reassignments constitutes "a failure to respect [their] right to private life" under Article 8, and (by 9-7 and 10-6) that it was not necessary to examine separately the applicants' complaints under Article 12 (right to marry). The Commission has referred both cases to the Court. R.W. __Group Sexual Activity__: A British gay man who was convicted of "gross indecency" (and given a conditional discharge and criminal record) for hosting a sex party with four other men over 30 in his own home has filed an application with the Commission, claiming violations of Articles 8 and 14. Under the Sexual Offences Act 1956, secs. 12-13 (read with the Sexual Offences Act 1967, sec. 1(2)(a), and the Criminal Justice and Public Order Act 1994, sec. 143(3)), non-sado-masochistic, non-commercial, private sexual activity between consenting men over 18 is illegal in England and Wales "when more than two persons take part or are present." Group sexual activity is clearly legal if it involves only women or multiple women with one man, and would also appear to be legal if it involves one or more women and multiple men but the men do not touch (or look at?) each other. The prosecution was based on a video of the sex party which police found while searching the host's house for pornography. The Commission will be asked to depart from its decision in __Johnson v. U.K.__ (No. 10389/83) (1986), 47 Dec. & Rep. 72. R.W. The __Sunday Times__ (London) reported May 25 that MI5, the British spy agency, has "lifted its ban on homosexuals" as employees. According to a memo by an MI5 official quoted in the __Times__, people who are openly homosexual don't present the blackmail and sabotage problems that were commonly cited in the past to justify refusing to employ them. Unlike the U.S., Britain has a history of spy scandals involving gay employees of its secret service agencies, but all the individuals involved in those scandals had been closeted. The __Times__ article notes that despite the ban, "some of the most senior figures in British intelligence have later been discovered to have been secretly gay." A.S.L. Research on Lesbian/Gay/Bi/Trans Immigrants Lionel Cantu, a doctoral candidate at the University of California, Irvine, is conducting dissertation research on the experiences and issues of gay immigrants and needs participants for his study. Participation is voluntary and confidential. Participants will be asked to complete a survey and return it in a non-identifiable, pre-stamped and addressed envelope. Anyone interested in participating in the study should contact Cantu via email at lcantu@orion.oac.uci.edu or by mail: Lionel Cantu, Social Relations Program, Univ. of California, Irvine, CA 92697. A.S.L. Professional Notes The Committee on Lesbians and Gay Men in the Profession of the Association of the Bar of the City of New York and the Lesbian & Gay Law Association of Greater New York are co-hosting a Pride Week Celebration to welcome law students, summer associates and summer interns spending their break in the New York metropolitan area. The event is free, no RSVP required, on Thursday, June 26, at 6:30 p.m., at the Bar Association, 42 West 44th Street, Manhattan. Financial support for the event comes from the following firms and groups: Cohen & Funk; Davis Polk & Wardwell; Morrison & Foerster LLP; Proskauer Rose Goetz & Mendelsohn; The Partners Group. The State Bar of Arizona has formed a task force to study discrimination based on sexual orientation in the bar and the state's justice system, according to a May 1 report in __Arizona Business Gazette__. The task force was formed in response to a recent ABA resolution calling on all state bars to undertake such studies. The appropriation of money to finance the task force by the state bar board of governors occasioned protest by some members of the bar, but Dianne Post, chair of the Task Force and an openly lesbian solo practitioner in Phoenix who is a member of the recently-formed Arizona Gay and Lesbian Bar Association, took the protest in stride, pointing out that "Every single place they've done a study, they've gotten this. We're not immune to it." Post indicated that the Task Force will formulate recommendations to deal with discrimination. "Education, education, education, that's the bottom line," she said. "That will be the solution." The Bay Area Lawyers for Individual Freedom, San Francisco's lesbian/gay bar association, announced that Tamar Pachter, a sole practitioner, and Lawrence R. Katzin, a partner in Bronson, Bronson & McKinnon, will co-chair the organization for the 1997-98 term. Other newly-elected board members are Kate Dyer, Clarice Liu, Brooke Oliver, and Ellen Shapiro. Re-elected to the board were Brian Cheu, Gail Dekreon, John I. Kennedy, Meriel Lindley, Sean SeLegue, Eugene N. Stuart III, Ian Sweedler, and Michael Weiss. The remainder of the board positions were not up for re-election this year. The 600-member BALIF was founded in 1980. We're received notice of the formation of the Oklahoma Lesbian and Gay Law Association, which we are thrilled to learn about, recalling that at the time of its formation in 1978, our predecessor unincorporated association, the New York Law Group, was the only organization of its kind (quickly followed by Bay Area Lawyers for Individual Freedom in San Francisco and Lawyers for Human Rights in Los Angeles). Today there are lesbian and gay attorney groups in parts of the country where they would have been unimaginable even ten years ago. The movement marches on! (Those interested in the Oklahoma group should call Jane Eulberg at 405- 340-1957.) A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS Supreme Court Refuses to Review Adverse Ruling Under ADA On May 19, the Supreme Court announced its denial of certiorari in __Wood v. Garner Food Services, Inc.__, No. 96-1478, an appeal from the 11th Circuit's decision in __Gonzales v. Garner Food Services, Inc.__, 89 F.3d 1523 (1996), which held that an employer could not be sued under the Americans With Disabilities Act by a former employee with AIDS whose benefits entitlements had been capped. Timothy Bourgeois was diagnosed with AIDS in February 1991, and discharged two months later. He continued his health coverage under the terms of COBRA, but shortly after he made this election, the employer unilaterally modified the benefits plan to put a $10,000 annual and $40,000 lifetime cap on AIDS-related claims. After Bourgeois died in 1992, his estate sued for payment of expenses that exceeded the caps, alleging a violation of Title I of the ADA. The lower federal courts held that since Bourgeois was no longer an employee during the period in question, he could not sue under Title I, which covers employee benefits. As there are no cases on this issue from other circuits, it is not surprising that the Supreme Court refused to review the case. A.S.L. Blood Banks Association Continues Loosing Ways in HIV Transfusion Litigation Last year's big loss for the American Association of Blood Banks in __Snyder v. AABB__, 676 A.2d 1036 (N.J. 1996), in which the New Jersey Supreme Court upheld a jury decision that the AABB was negligent in not instituting more effective methods of protecting the blood supply from AIDS as early as 1983, has emerged as a very persuasive precedent in other jurisdictions. Noting the __Snyder__ decision, as well as "numerous cases absolving blood banks from liability to transfusion recipients upon a showing of compliance with the guidelines of the AABB and conduct in accordance with the conduct of other blood banks similarly situated," the U.S. Court of Appeals for the 5th Circuit denied AABB's motion to be dismissed as a defendant in __Douglass v. Alton Ochsner Medical Foundation__, 1997 WL 277383 (May 28). Annie Douglass was given HIV-tainted blood in January 1983, the same month that the CDC convened its famous initial meeting with blood bankers (including AABB representatives) to discuss the danger of AIDS in the blood supply following reports during 1982 about otherwise unexplained cases of AIDS among transfusion recipients. AABB argues that its decision not to take aggressive steps to screen donated blood at that time (contrary to the suggestion of some CDC officials) was responsible and prudent, in light of the lack of solid evidence proving that AIDS could be spread through transfusions, the significant costs involved and the potentially dangerous discarding of untainted blood at a time of persistent blood shortages. (The discovery of HIV and its identification as "the AIDS virus" was not publicly announced until the spring of 1984; the HIV screening test was licensed in March 1985, at which time federal regulations made HIV-testing of donated blood mandatory.) __Snyder__ involved a blood transfusion that took place in 1984, and is thus not directly dispositive of the ultimate issue in __Douglass__, but the court found that "genuine issues of material fact abound for determination as to whether the AABB owed a duty of care to plaintiffs under the contested facts of this case," and refused to dismiss AABB from the case. However, the court affirmed the trial court's dismissal of claims against Dr. Terry D. King, Annie's pediatric cardiologist, who referred Annie to Dr. Ochsner for surgery, finding that King had no duty to warn Annie or her parents about the risk of surgery, that being, in effect, Ochsner's department. __Douglass__ came on the heels of a decision by Justice Karla Moskowitz, N.Y. Supreme Court, N.Y. County, on April 1, in __Weigand v. University Hospital of New York University Medical Center__, 1997 WL 242549, similarly refusing AABB's motion to be dismissed as a defendant. While finding that AABB had no duty as such to advise the decedent and his family about alternatives to transfusion of donated blood or to warn about the risks associated with transfusion, Justice Moskowitz cited __Snyder,__ which was decided under New Jersey tort law, and concluded that "under New York law, a trade association setting standards and guidelines for the collection of blood owes a duty to the ultimate recipient of the blood." Moskowitz undertook a detailed analysis of the duty issue, since no prior New York court opinion expressly addresses it in this context. Moskowitz concluded that AABB owed a "duty of ordinary care," a significant holding since it will undermine AABB's attempt to establish at trial that it met its duty because most experts in the blood banking industry at the time may have concurred with its course of action (i.e., the "professional" standard of care). In both __Douglass__ and __Weigand__, as in __Snyder__, AABB is one of several defendants, including local blood banks, hospitals, and doctors, so it is unlikely that AABB will ultimately be held solely liable for the plaintiffs' damages. However, this series of cases contributes to a growing body of law imposing significant legal responsibility on private associations that undertake accrediting functions, as the AABB does with regard to blood banks, when ultimate consumers of services rendered by the accredited institutions suffer injuries. A.S.L. Federal Court Finds Low AIDS Cap in Insurance Policy Violates Title III of ADA In an important victory for people with AIDS, U.S. Senior District Judge Richard Freeman (N.D. Georgia) ruled May 22 that a $5,000 lifetime cap on AIDS-related claims in a health insurance policy violates Title III of the Americans With Disabilities Act, which forbids discrimination by businesses selling goods or services to the public. __World Insurance Co. v. Branch__, 1997 WL 274732. However, defendant Ralph Branch, who won motion for summary judgment on this point, may ultimately lose his insurance do to a ruling by Judge Freeman that the insurance company's claim for rescission due to fraud will be governed by Texas law, which exempts fraud claims from coverage under a policy's incontestability clause. Ralph Branch bought a health insurance policy from Security General Life Insurance Co. in 1993 while living in Texas. Although he had previously been diagnosed HIV+, he lied on his application and claimed he had not been so diagnosed. In 1995, Branch moved to Georgia, retaining his insurance with Security General. Later that year, Security General notified Brnach that World Insurance would assume SG's obligations under the policy. Subsequently, World Insurance learned that Branch had been diagnosed HIV+ eight years earlier, and brought an action to rescind the insurance contract. Branch counterclaimed, seeking specific performance and challenging the validity of a provision limiting AIDS coverage to a maximum lifetime benefit of $5,000. The May 22 decision concerns Branch's motion for partial summary judgment. First addressing Branch's argument that the policy's noncontestability clause precludes rescission of the policy based on his fraudulent application, Freeman focused on an interesting choice of law problem. Texas insurance law requires insurance policies to include an incontestability clause (i.e., precluding the insurance company from seeking to rescind the policy after a certain period of time has gone by), but expressly exempts fraudulent application claims from coverage by these clauses. Georgia law, on the other hand, requires incontestability clauses but contains no exclusion of fraud claims. Branch wanted Georgia law to apply to this dispute, but Freeman concluded that Texas law applied. The policy was issued to Branch in Texas, the alleged fraud was committed in Texas, and Freeman did not find that the assumption of obligations by World Insurance made this any less a Texas law case. Therefore, it is possible that in a trial on the merits, Branch will ultimately lose his insurance coverage. However, Freeman found, as a matter of first impression, that Branch was entitled to summary judgment on his claim that the AIDS cap in the policy violates the ADA. Disposing of threshold issues, Freeman held without explanation (merely citing cases) that Branch is disabled under the ADA, the insurer is a "public accommodation" covered by Title III, and Title III's scope "extends beyond the mere denial of physical access to places of public accommodation." Finding that the ADA allows insurers to tailor the policies consistent with "sound actuarial principles" or as "related to actual or reasonably anticipated experience," Freeman also noted the statute's policy statement: "to bring individuals with disabilities into the economic and social mainstream of American life." "Because access to adequate health care is often integral to a disabled individual's ability to participate in society, the court cannot imagine that an insurer could arbitrarily cap the benefits payable with respect to a particular disability without running afoul of this stated purpose," wrote Freeman. Freeman found that "there is no evidence explaining the purpose for which plaintiff caps an insured's lifetime benefits for AIDS at $5,000." Finding the Texas Insurance Commissioner's approval of the policy not dispositive of the issue under Title III, Freeman noted, "as a matter of logic, that the underwriting risks associated with the treatment of AIDS cannot be so different from the treatment of innumerable other disabilities, which, with the exception of transplant and replacement procedures, are capped under the policy at $2,000,000. Because there is a complete absence of evidence demonstrating that plaintiff's decision to cap its coverage of AIDS was based on sound actuarial principles, reasonably anticipated experience, or bona fide risk classification, the court grants defendant's motion for summary judgment as it relates to his counterclaim under Title III of the ADA." Thus, arbitrary low caps for AIDS-related coverage have been found violative of federal law. One can't imagine the insurance industry allowing a decision to this effect to stand without being appealed. A.S.L. 7th Circuit Finds Constitutional Claims Time-Barred in ADA/Rehab Act Suit The U.S. District Court for the Northern District of Illinois held that a discharged HIV+ employee may bring a disability discrimination suit against his former employer for retaliation, wrongful termination and failure to provide reasonable accommodations, but can't pursue constitutional claims because he didn't assert them within two years of his discharge. __Cebuhar v. Department of Alcoholism and Substance Abuse__, 1997 WL 222871 (April 24). The court found that constitutional claims are not equitably tolled while a plaintiff pursues statutory remedies before the EEOC. John Cebuhar revealed during his job interview with the Department (DASA) that he was HIV+ and would require accommodations to perform essential job functions. During his employment with DASA, Cebuhar suffered from numerous HIV-related illnesses, but he alleged that his job performance was excellent, meeting or exceeding DASA's reasonable expectations. In February 1994, he requested to work at home on days he was ill as a reasonable accommodation. His manager, co-defendant Melanie Whittier, denied the request. He also alleged that co-defendants, including Whittier and General Counsel Nancy Bennett, were permitted to work at home when they were sick. Cebuhar requested copies of DASA's policies, procedures and guidelines relating to reasonable accommodations for qualified individuals with a disability. Bennett informed him that DASA had no such guidelines and said that DASA "need not worry" about compliance with the ADA. In April 1994, Cebuhar again requested reasonable accommodations, including: "(a) work at home on days ill; (b) a seven day flexible schedule; (c) a flexible start and end schedule; (d) HIV in the workplace education for staff and management; and/or (e) shared supervision." DASA did not consult with Cebuhar or his doctors regarding the necessity or appropriateness of these accommodations, but prohibited him from working overtime, claiming that as a reasonable accommodation. Later that month he received a negative performance evaluation that he claimed was false and given in retaliation to his request for accommodations. The following month, he asked whether he could take part in DASA's shared sick leave bank. Whittier advised him that he would not be eligible to participate in the program for another month. On or about May 26, 1994, DASA formally denied each of his previous requests for accommodation. In June 1994, he received another negative performance evaluation, which he claims was false and the result of unlawful retaliation. On June 22, DASA discharged Cebuhar for twice falsifying his arrival and departure times and for committing department funds and resources without prior approval. Cebuhar claims these charges are false and pretextual. Cebuhar filed an EEOC charge in February 1995, and received a right-to-sue letter in August 1996. In November 1996, Cebuhar filed a seven count complaint against the Department of Alcoholism and Substance Abuse (DASA) and three of its officers, alleging violations of the ADA, the Rehabilitation Act and 42 U.S.C. sec. 1983 and 1988. He alleged disability discrimination based on lack of reasonable accommodations, retaliatory adverse job evaluations, and termination due to his disability. Counts 4, 5 and 6 (reasonable accommodation, retaliation, termination) allege similar violations of the Rehabilitation Act. Count 7 alleges that his Constitutional rights were violated under the Fourteenth Amendment by DASA's failure to provide him with a reasonable accommodation and for discharging him because of his disability. Defendants' motion to dismiss argued that the ADA and Rehabilitation Act claims must be dismissed as to individual defendants because they are not "employers" under the statute; the 1983 and 1988 claims (count 7) and the Rehabilitation Act claims (counts 4-6) are time-barred; and the ADA retaliation claim (count 2) must be dismissed for failure to state a prima facie case. The court dismissed as to the individual defendants, finding that they are not employers under the ADA or the Rehabilitation Act. As to the statute of limitations, the court agreed with DASA that the 42 U.S.C. 1983 and 1988 claims are time-barred. Although the parties agreed that the relevant statute of limitations for these claims is two years, they disagreed about when Cebuhar's claim accrued. The latest date for accrual appears to be his discharge date of June 22, 1994, and suit was filed Nov. 8, 1996, but Cebuhar argued for equitable tolling while he was pursuing his ADA and Rehab Act claims before the EEOC. The court responded that there is no requirement that a 1983 plaintiff exhaust administrative remedies, and that there is no requirement that a plaintiff exhaust administrative remedies before filing suit under the Rehabilitation Act. Thus, because Cebuhar could have filed those claims without waiting for a right to sue letter, his filing more than two years after his discharge was untimely. The defendants also moved to dismiss Cebuhar's retaliation claim, contending that it was not adequately pleaded. But Count 2 of the complaint expressly alleges that defendants' unlawful "retaliation includes, but is not limited to, adverse false job evaluations," implying that there were other types of retaliation in addition to negative performance evaluations. Another paragraph in Count 2 incorporates the allegations common to all counts, including Cebuhar's subsequent discharge. The court, drawing all reasonable inferences in favor of the plaintiff on a motion to dismiss, found this sufficient. "There is no question that a false, negative evaluation plus a discharge constitutes an adverse employment action. We therefore conclude that plaintiff has sufficiently alleged an adverse employment action to survive a motion to dismiss." K.J.R. AIDS Dementia May Vitiate Guilty Plea A person suffering from AIDS-related dementia may be able to vacate her guilty pleas as not having been knowing and intelligent, the U.S. Court of Appeals for the 4th Circuit held. __United States v. Farmer__, 1997 WL 218805 (May 2). When Dee Farmer pled guilty to fraud charges in 1986, she was apparently suffering from AIDS-related dementia. (Farmer is a transsexual whose 8th Amendment case concerning her mistreatment in prison went to the Supreme Court.) Farmer submitted her own affidavit, as well as affidavits from two doctors in support of her motion to vacate the guilty plea. The government submitted no counter-affidavits, but relied on Farmer's own statements under oath at the time of her pleas that she was not using any drugs or under the care of a doctor. The 4th Circuit found that Farmer had raised a factual issue as to her competency to make the pleas and remanded the case to the lower court for an evaluation of Farmer's uncontroverted evidence that she was impaired at the time. D.W. California Supreme Court Revives Damage Claim for Estate of PWA Reversing a controversial decision by the state's court of appeal, the California Supreme Court ruled May 5 in __Sullivan v. Delta Air Lines__, 935 P.2d 781, that damages for pain and suffering are not lost when a plaintiff dies while his case is pending on appeal. In a case involving a plaintiff with AIDS where the trial court had awarded substantial pain and suffering damages, the lower court had ruled that because such damages are personal to the individual rather than mere compensatory claims, the plaintiff had to be alive in order to receive them. Joseph Sullivan filed discrimination and associated tort claims against Delta Air Lines after his discharge in 1991. The court granted defense motions for summary judgment on some of his claims, but allowed others to go to the jury. The jury returned verdicts for the defendant on some claims and for Sullivan on other claims. One of the jury's actions was to award Sullivan damages for emotional distress totaling $275,000. A mistrial was declared on one cause of action. The court entered judgment in Sullivan's favor on the claims where he prevailed before the jury and Delta filed an appeal of the judgment. Sullivan died while the appeal was being briefed, and his mother, named in his will as sole beneficiary, was substituted as plaintiff. The court of appeal, noting a statutory ban on recovery of damages for pain and suffering if a plaintiff dies during the course of an action, construed this to include an appeal of trial ruling. In his decision for the court reversing the court of appeal, Justice Stanley Mosk found that when a plaintiff dies after judgment, the doctrine of abatement does not apply. The opinion contains a lengthy historical treatment of damages under California law, tracing common law roots through various statutory enactments, to conclude that the common law rule under which damages for non- economic injury did not abate if the plaintiff died after winning at trial had not been displaced by subsequent enactments, as contended by the court of appeal. Mosk concluded that for purposes of this type of case, a judgment is considered "final" when everything is completed at the trial phase and the matter is ready to be appealed; thus, in a sense, the right to the damages has accrued to the plaintiff and can only be divested by a reversal on appeal, not be a mere act of God. (I'm editorializing here, a bit.) The decision's significance for persons with terminal conditions is obvious, since the court of appeals' ruling would give defendants an incentive to needlessly string out appeals after losing at trial in hopes that the plaintiff might die before payment comes due on awards of damages for non-economic injuries. A.S.L. Michigan Appeals Court Adopts Estoppel Rule in Disability Discrimination Case A U.S. Third Circuit decision precluding a person with AIDS who was receiving disability benefits from filing a discrimination suit against his employer recently persuaded the Michigan Court of Appeals to adopt a similar interpretation of its state disability discrimination law in __Tranker v. Figgie International Inc.__, 561 N.W.2d 397 (Jan.3, released for publication April 4, 1997). While on medical leave, Paul Tranker began receiving social security disability benefits, claiming permanent disability. Soon after returning to work, Tranker was discharged. He subsequently filed a discrimination suit against Figgie International Inc., claiming his termination was a violation of the Michigan Handicappers' Civil Rights Act (HCRA), a statute similar in scope to the Americans With Disabilities Act (ADA). Both statutes prevent the discharge of an employee because of a disability unrelated to their ability to perform the duties of a particular job or position. Citing judicial estoppel, the Michigan Court of Appeals dismissed Tranker's discrimination claim, holding a person cannot claim disability under the Social Security Disability Insurance program, and subsequently seek protection under the HCRA, which only covers those whose disability does not hinder their ability to work. This line of reasoning forces a person with a disability and a potential discrimination suit to choose between seeking disability benefits, and suing under the HCRA. The Court of Appeals relied heavily on the reasoning laid out in __McNemar v. Disney Stores__, 91 F.3d 610 (3rd Cir. 1996), where a man with AIDS was prevented from pursuing a discrimination claim under the ADA because he had previously declared his total disability in order to receive social security benefits. The 3rd Circuit held that a person cannot be totally disabled, a requirement to receive social security benefits, and yet have a disability that does not prevent him from working, which is necessary for protection under the ADA. The court ruled that the doctrine of judicial estoppel bars the second claim if it is inconsistent from the first, in this case protection under the ADA. S.M.R. Court-Ordered HIV Test for Acts Committed Prior to Testing Statute Does Not Violate Ex Post Facto Rule In __People v. Adames__, 97 Cal.Rptr.2d 631 (April 14, 1997), the California Court of Appeal ruled that court-ordered HIV testing of a defendant convicted of continuous sexual abuse of a child prior to enactment of the statute mandating such testing does not violate the constitutional proscription against ex post facto laws. A jury convicted Ernest Anthony Adames for committing three or more acts of lewd or lascivious conduct with a child under the age of 14, such conduct ending in September 1994. On appeal Adames argued that his conviction violated due process because the jury was not required to unanimously agree on the particular three incidents underlying the conviction. California's resident child molester statute, sec. 288.5, states that the trier of fact "...need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number." Presiding Justice Vogel's opinion cites U.S. Supreme Court and California court holdings that in criminal cases due process is not denied when a state law dispenses with the need of jury unanimity to convict, thereby criminalizing the continuous-course-of-conduct rather than the specific act. California Penal Code sec. 1202.1 mandates HIV antibody testing of anyone convicted of listed sexual offenses. A 1995 amendment added violation of section 288 to the list of sexual offenses. "Section 288 requires the specific intent of arousing, appealing to, or gratifying the . . . sexual desires of [the defendant] or of the child. . . A conviction for section 288.5, in contrast, could be based upon a course of . . . . sexual conduct . . . which requires no specific intent. Adames was convicted of violation of sec. 288.5, not sec. 288. The opinion states that 1202.1 is open to two interpretations: that to require testing either the defendant must be convicted of a violation of section 288, or alternatively the defendant's conviction must encompass a crime that includes violation of section 288. The court held that the latter was the legislative intent behind 1202.1. The appellate court affirmed the HIV test order of the lower court, referring to a holding by the California Supreme Court that a court-ordered test does not constitute punishment and that a defendant whose offense occurred prior to enactment of 1202.1 could be tested under that statue. The ordered test therefore violates neither the constitutional proscription on ex post facto laws nor the Penal Code proscription against retroactive application of the law because no increase in punishment applies. M.M. NY Appellate Division Refuses to Certify Class Action in PWA Benefits Dispute People living with AIDS or HIV cannot collectively challenge the New York City Department of Social Services' failure to process applications for emergency moving benefits within 72 hours, according to the New York Appellate Division, 1st Department. __Hernandez v. Hammons__, 1997 WL 254104 (May 13). In denying class certification, the First Department concluded that all applicants are already protected by existing administrative procedures. State DSS directives require that applications for qualified emergency expenses -- consisting of rent security deposits, brokers' fees and/or moving expenses -- be processed within 30 days. Applicants in "immediate need" of emergency assistance may bypass this waiting period and receive benefits, if eligible, within 72 hours. Local DSS districts determine whether an applicant has an immediate need during an emergency interview. Since the needs of applicants living with AIDS or HIV "lack factual commonality," according to the court, it unanimously concluded that class certification was not appropriate. I.T. Life Term Upheld for HIV+ Rapist The Georgia Court of Appeals affirmed a sentence of life plus twenty years for Kim Gentry, an HIV+ man convicted by a jury of rape and kidnapping. __Gentry v. State__, 1997 WL 266956 (April 22). As related in Judge Banke's opinion for the court, the victim was waiting for a bus on a rainy night; Gentry drove up and ordered her into his vehicle at gunpoint, parked in a secluded area and forced her to have sexual intercourse, holding a gun during the entire incident. When the victim asked Gentry whether he had any STD, he responded negatively, even though "he is admittedly HIV positive and failed to use a condom." Gentry claimed the trial court erred in letting the State introduce testimony of his bad character. Gentry testified at his own trial that he and the victim had been dating, that their sex was consensual, that he used a condom that "broke" and when she expressed concern about becoming pregnant, he mentioned that he was HIV positive, to which she reacted hysterically. Gentry also testified that he had previously been released from prison, and "according to his parole stipulations although he was not required to inform people he is HIV positive, he was required to practice safe sex." Gentry also testified that he had disclosed his prior experience to the victim on an earlier date, but had not told her that he had been imprisoned for attempted rape. Based on this, the court found that Gentry's testimony opened the door for the State to cross-examine about his prior prison record and violation of parole conditions. The court noted that Gentry was specifically informed on his prior discharge from prison that he was obligated to disclose his HIV status to all sexual partners. The court also rejected Gentry's other contentions of error and ineffective assistance of counsel. A.S.L. District Court Calls For Reconsideration of Disability Application by PWA The U.S. District Court in Connecticut remanded for reconsideration a Social Security Administration determination that a man with AIDS was not entitled to Social Security disability benefits. __Rodriguez v. Chater__, 1997 WL 202055 (April 14). The District Court found that the administrative law judge who heard the case erred in classifying Rodriguez's work as light exertion instead of medium, and in not addressing expert testimony stating that Rodriguez suffered from severe depression that precluded him from working full time. In April of 1993 Rodriguez applied for social security benefits, claiming that he suffered from severe fatigue and depression resulting from his HIV infection. In order to collect disability benefits, Rodriguez had to prove that he was disabled prior to July 1995. After an evidentiary hearing, the administrative law judge found that Rodriguez had the capacity to perform light work and was not disabled, and therefore not eligible for disability payments. The District Court held that Rodriguez's duties required him to perform work that required a medium level of exertion, a level he was unable to perform. The District Court also concluded that the ALJ failed to discuss the testimony of three mental health professionals, who stated that Rodriguez suffered from major depression and would be unable to maintain a full-time job. In its decision, the District Court ordered that upon remand the ALJ must explicitly address this testimony. S.M.R. Employer's Insurance Policy Doesn't Cover Liability for AIDS Discrimination The U.S. District Court for the Northern District of California granted summary judgment to an insurance company defending an employer's breach of contract action for refusing to cover a claim based on the employer's intentional failure to accommodate an HIV+ worker. The court found that the company's liability was not due to an "accident," as required by the policy. __Educational Testing Service v. Liberty Mutual__, 1997 WL 220315 (April 18). This is a major defeat for employers who attempt to avoid economic loss by intentionally discriminating against HIV/AIDS and other disabled workers. ETS had three insurance contracts with the Liberty Mutual companies. In 1992, Frank Perrault filed a complaint against ETS for employment discrimination based on his HIV status and intentional and negligent infliction of emotional distress. Perrault, employed by ETS from 1983 to 1991, was diagnosed with HIV in 1989 and informed ETS. In response, ETS adopted a rigid work schedule policy requiring Perrault to stay in his office even when there was no work to be done, making no allowances for his medical condition. ETS recommended that Perrault go on long term disability. When Perrault refused, ETS terminated him, thereby causing him tremendous stress, emotional upheaval and depression. Three months after his termination, ETS sent him a final performance letter with serious criticisms of his work. In November 1991, ETS made the first of three written tenders to Liberty Mutual for defense and indemnity under its liability insurance policies. Liberty Mutual denied the requests, claiming that Perrault's claims were either not covered or excluded. ETS tendered a third time in 1996; Liberty Mutual's non-response triggered the instant suit. Liberty Mutual moved for summary judgment. In 1994, ETS went to trial in state superior court on Perrault's claim. The court found ETS liable for failure to accommodate Perrault based on medical condition, awarding Perrault $428,770 in economic damages and $250,000 for emotional distress and other non-economic damages, and found ETS liable for negligent infliction of emotional distress based on the final review letter, awarding an additional $50,000 for emotional distress. The general liability policy obligates Liberty Mutual to defend suits alleging damages caused by an "accident, including continuous or repeated exposure to conditions, which results in `bodily injury' . . . neither expected nor intended from the standpoint of the insured." The parties dispute whether Perrault's claims for failure to accommodate his medical condition or for negligent infliction of emotional distress describe "accidents." District Judge Walker explains that under California insurance law the insured need only show that the underlying claim may fall within policy coverage; "the [insurer] must prove it cannot," citing __Montrose Chemical Corp. v. Whitaker__, 24 Cal. Rptr. 2d 467 (1993). The court narrows the issue further, stating that a failure to accommodate claim does not require a showing of intentional discrimination but can be based on a failure to act or other unintentional conduct. Because Perrault's complaint alleged that ETS failed to accommodate his medical condition, ETS argues that the claim could be proven by a showing of unintentional conduct which would be an "accident" giving rise to a duty to defend. However, the court concludes that ETS' failure to accommodate was intentional conduct that cannot be considered an "accident," citing cases which established that the intentional application of an employment policy with a discriminatory effect is not covered by an accident insurance policy. Here, ETS suddenly adopted and selectively enforced a work schedule policy against Perrault that constituted a failure to accommodate Perrault's condition. The Superior Court's holding that ETS' failure to accommodate was precipitated by the order that Perrault stay in his office regardless whether Perrault had any work to do established that this was intentional conduct, not an accident. The court reaches the same result regarding Perrault's claim for negligent infliction of emotional distress. To the extent that this claim is based on the same facts as those supporting the claim for failure to accommodate, the negligent infliction claim is not an accident. Likewise, if the claim is based on the mailing of the letter, that too was intentional conduct and therefore not an accident. ETS also lost its fight under the Umbrella and the Workers' Compensation policies. The Umbrella policy obligates the insurer to pay for personal injuries resulting from an "occurrence," which is defined as an "injurious exposure to conditions, which results in `personal injury' . . . neither expected nor intended from the standpoint of the insured." The Workers' Compensation policy "applies to bodily injury by accident or bodily injury by disease," so long as the bodily injury by disease was caused or aggravated by the conditions of ETS' employment. Both policies exclude damages caused by unlawful discrimination. Liberty Mutual argued and the court agreed that it had no duty to defend because the claim fell into the discrimination exclusion. However, the claim of negligent infliction of emotional distress was not so clear. ETS contended that it might have been based on conduct separate and apart from the failure to accommodate claim, because the negligent infliction of emotional distress claim was based on the letter, while the discrimination claim was based on failure to accommodate. ETS lost again, because the reasonableness of Liberty Mutual's decision to deny coverage for the Perrault action must be based on the facts reasonably available to the insurer at the time of tender. If the negligent infliction claim was independent of the failure to accommodate claim, then Liberty Mutual could not have discovered the facts giving rise to the negligent infliction claim through reasonable investigation. The complaint tendered to Liberty Mutual makes no reference to the final review letter on any other conduct apart from that which gives rise to the discrimination claim. Further nailing the coffin shut, Judge Walker ruled that ETS's subsequent tenders did not create a duty to defend. Both policies contain exclusions for damages "arising out of" unlawful discrimination. In insurance parlance, "arising out of" refers to a casual connection between the injury and the excluded risk. California courts have found that such causal connection is present where the third party injury would not have resulted "but for" the excluded conduct. The court reasoned that since the letter would not have been sent absent ETS's failure to accommodate Perrault's medical condition, the injuries suffered by Perrault after receiving the letter arose out of ETS's discriminatory conduct. Therefore, the claims based thereon were excluded. K.J.R. District Courts Continue Disagreement Over Whether Medically- Controllable Conditions Are Covered by ADA U.S. District Judge Joanna Seybert (E.D.N.Y.) ruled in __Hendler v. Intelecom USA Inc.__, No. 95-CV-2490 (April 15), (NYLJ, 5/13/97, p.1), that a hostile work environment claim may be brought under the Americans With Disabilities Act. Stephen Hendler, who has suffered from severe asthma since childhood and needs a smoke-free environment, sued his former employer, claiming that he was subjected to ridicule and discrimination when he complained about second-hand smoke in the workplace. Rejecting the employer's argument that Hendler failed to state an ADA claim, Judge Sybert scheduled the case for trial, finding that Hendler was significantly impaired in the major life activity of "breathing," that control of his condition by medication did not take it out of the category of a disability, and that Hendler's allegations, if proven, could amount to a hostile environment. Taking a different view on the question whether medically-controllable conditions are covered by the ADA, U.S. District Judge Ernest C. Torres ruled May 6 in __Hodgens v. General Dynamics Corp.__, 1997 WL 236677 (D.R.I.), that an employee who was taking a drug to control hypertension could not claim to be a person with a disability. Torres held that the relevant question for ADA coverage is whether the medication produces side effects that are themselves "impairments" of physical or mental functioning sufficient to constitute a disability. This debate has obvious potential relevance for persons with HIV/AIDS who are benefiting from new drugs sufficiently to want to return to the workforce. A.S.L. North Dakota Authorizes Detention for Persons Suspected of HIV Infection In an unprecedented measure that seems ripe for constitutional challenge at its first incident of enforcement, North Dakota enacted a law, effective July 1, that authorizes detention for up to five days while awaiting HIV testing for any person who exposes a police officer, firefighter, paramedic or health care worker to blood or bodily fluids. North Dakota already had on the books a law requiring persons to submit to HIV testing if they caused a "significant exposure" to a public safety worker, with the burden on the public safety worker to show a "compelling need" for testing. The new law was passed in response to complaints from law enforcement officers that there was nothing to prevent the individual from fleeing the jurisdiction to avoid being tested. The new law sets a "probable cause" standard for a detention order, and, as in the old law, requires a showing of "significant exposure." The law was supported by legislators as affording "peace of mind" to public safety personnel in circumstances where they fear exposure to HIV. The ACLU of the Dakotas has denounced the measure as unconstitutional. __AIDS Policy & Law__, May 2. A.S.L. Supreme Court Adopts Broad Reading of ERISA Discrimination Provision In __Inter-Modal Rail Employees Association v. Atchison, Topeka and Santa Fe Railway Co.__, 1997 WL 235079 (May 12), the U.S. Supreme Court adopted a broad interpretation of Section 510 of ERISA, which forbids discrimination by an employer to prevent employees from getting benefits to which they are entitled. Most significantly, the Court, in an opinion by Justice Sandra Day O'Connor, rejected the argument that Section 510 applies only to benefits that vest. Instead, the Court took the broader view, urged by the Clinton Administration, that discrimination with respect to __any__ benefit, not just vested benefits, is covered. Significantly, Justice O'Connor dissented when the Court denied certiorari in __McGann v. H. & H. Music Co., 946 F.2d 401, (5th Cir., 1991), __cert. denied sub. nom.__ Greenberg v. H. & H. Music Co., 113 S.Ct. 482 (1992), a lawsuit alleging violation of Section 510 when an employer amended its health benefits plan to place a cap on AIDS-related benefits. In __McGann__, the 5th Circuit held that a discrimination claim could not be made with respect to continuing receipt of health benefits, because such benefits do not vest under ERISA. A.S.L. No Interim Relief in Public Transit Dispute U.S. District Judge Joe Billy McDade (C.D.Ill.) denied preliminary injunctive relief in __Hamlyn v. Rock Island County Metropolitan Mass Transit District__, 1997 WL 274644 (April 29), a suit contesting the defendant's decision to exclude people with AIDS from participation in a reduced fare public bus program for people with disabilities. Howard Hamlyn argued that his exclusion from the program caused him severe emotional distress, thus meeting the requirement of showing irreparable injury in order to get interim relief pending a trial on the merits. Judge McDade found that this case actually concerned a monetary claim, normally not considered worthy of interim relief, and expressed skepticism about Hamlyn's emotional distress claim. Responding to Hamlyn's argument that his exclusion imposed a "stigma" of constitutional dimensions, McDade wrote: "The Court presumes that many people, including many of those who carry the HIV virus, would not consider this to be a stigma at all. It would be ironic to discover that someone with AIDS should suffer psychological harm simply because others treat them as a normal member of the population." A.S.L. AIDS Law Project Settles Funeral Home Dispute The AIDS Law Project of Pennsylvania settled a discrimination case against a major Delaware County funeral home, whose name must be kept secret under terms of the settlement. Under the settlement, the funeral home must provide all its usual services regardless of a decedent's HIV status or AIDS condition, consistent with the requirements of state law and the Americans With Disabilities Act, Title III. For details, contact Nan Feyler, Executive Director of the Project, at 215-587-9377. A.S.L. AIDS Confidentiality Breach Conviction Gregory S. Wentz, a funeral director, was found guilty April 29 in Pinellas County Court of violating Florida's AIDS confidentiality laws by sending two newspapers and the county health department computer disks containing a database of 4,000 names of individuals with AIDS or HIV. Wentz lived with William Calvert, a public health official in charge of AIDS surveillance who made the rounds of medical offices in Pinellas County keeping track of AIDS cases and compiling data in his laptop computer. When Wentz and Calvert had a falling out, Wentz apparently sent data disks to the newspapers and the county under the guise of an anonymous tip concerning Calvert's lax security. Calvert, who has already admitted that he used the databases to screen potential dates, has yet to be tried for his own violations of the law. __AIDS Policy & Law__, May 16. A.S.L. Puerto Rico Scales Back HIV Control Measures Heading warnings from the ACLU that proposed public health initiatives to deal with HIV crossed the line into unconstitutional waters, the Commonwealth of Puerto Rico has reportedly modified its plans to delete some of the most objectionable features, including requiring HIV+ persons to submit lists of all their sexual contacts, authorizing doctors to secure mandatory testing orders for persons they suspect may be HIV+, and name and address reporting of HIV+ test results to public officials. New regulations went into effect temporarily on Jan. 31, but then were suspended in response to protests. __San Juan Star__, April 17. A.S.L. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: Abrams, Kathryn, __The Supreme Court, Visibility, and the `Politics of Presence'__, 50 Vanderbilt L. Rev. 411 (March 1997) (response to Schachter, cited below). Alexander, Larry, __Sometimes Better Boring and Correct:__ Romer v. Evans__ as an Exercise of Ordinary Equal Protection Analysis__, 68 U. Colo. L. Rev. 335 (1997). Astor, Hilary, __Mediation of Intra-Lesbian Disputes__, 20 Melbourne U. L. Rev. 953 (December 1996). Baker, Lynn A., __The Missing Pages of the Majority Opinion in__ Romer v. Evans, 68 U. Colo. L. Rev. 373 (1997). Becker, Susan J., __Child Sexual Abuse Allegations Against a Lesbian or Gay Parent in a Custody or Visitation Dispute: Battling the Overt and Insidious Bias of Experts and Judges__, 1996 Denver U. L. Rev. 75 (1996). Berger, James E., __Zoning Adult Establishments in New York: A Defense of the Adult-Use Zoning Text Amendments of 1995__, 24 Fordham Urban L. J. 105 (1996) (boo! hiss!). Bronitt, Simon, __The Right to Sexual Privacy, Sado-Masochism and the__ Human Rights (Sexual Conduct) Act (Cth) __1994__, 2 Australian J. Hum. Rts. 59 (Dec. 1995). Calvert, Clay, __Hate Speech and Its Harms: A Communication Theory Perspective__, 47 J. Communication No. 1, 4 (Winter 1997). Campos, Paul F., __Introduction to Symposium: Gay Rights and the Courts: The Amendment 2 Controversy__, 68 U. Colo. L. Rev. 285 (1997). Dailey, John Daniel, and Paul Farley, __Colorado's Amendment 2: A Result in Search of a Reason__, 20 Harv. J. L. & Pub. Pol. 215 (Fall 1996). de Vos, Pierre, __Same-sex Marriage, the Right to Equality, and the South African Constitution__, 11 SA Publiekreg 355 (1996). Eskridge, William N., Jr., __Democracy, Kulturkampf, and the Apartheid of the Closet__, 50 Vanderbilt L. Rev. 419 (March 1997) (response to Schachter, cited below). Estin, Ann Laquer, __When__ Baehr__ Meets__ Romer__: Family Law Issues After Amendment 2__, 68 U. Colo. L. Rev. 349 (1997). Estlund, Cynthia L., __Freedom of Expression in the Workplace and the Problem of Discriminatory Harassment__, 75 Texas L. Rev. 687 (March 1997). Graglia, Lino A., Romer v. Evans__: The People Foiled Again by the Constitution__, 68 U. Colo. L. Rev. 373 (1997) (sore loser!). Grey, Thomas C., Bowers v. Hardwick__ Diminished__, 68 U. Colo. L. Rev. 373 (1997). Halley, Janet E., Romer v. Hardwick, 68 U. Colo. L. Rev. 373 (1997). Heins, Marjorie, __Viewpoint Discrimination__, 24 Hastings Const. L. Q. 99 (Fall 1996). Henderson, Emma, __Of Signifiers and Sodomy: Privacy, Public Morality and Sex in the Decriminalisation Debates__, 20 Melbourne U. L. Rev. 1023 (December 1996). Hutchinson, Darren Lenard, __Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse__, 29 Conn. L. Rev. 561 (Winter 1997). Johnston, Peter, __`More Than Ordinary Men Gone Wrong': Can the Law Know the Gay Subject?__, 20 Melbourne U. L. Rev. 1152 (December 1996). Kendell, Kathryn Dean, __Principles and Prejudice: Lesbian and Gay Civil Marriage and the Realization of Equality__, 22 J. Contemp. L. 81 (1996) (writer is with the National Center for Lesbian Rights). Kohm, Lynne Marie, __The Homosexual `Union': Should Gay and Lesbian Partnerships be Granted the Same Status as Marriage?__, 22 J. Contemp. L. 51 (1996). Kushner, David, __The Communications Decency Act and the Indecent Indecency Spectacle__, 19 Comm/Ent 87 (Fall 1996). Lassiter, Christo, __Cyberspace and the Battle for the First Amendment__, 30 LAW/technology 27 (1997). LaViolette, Nicole, __The Immutable Refugees: Sexual Orientation in__ Canada (A.G.) v. Ward, 55 U. Toronto Faculty of L. Rev. 1 (Winter 1997). McGuinness, J. Michael, __Equal Protection for Non-Suspect Class Victims of Governmental Misconduct: Theory and Proof of Disparate Treatment and Arbitrariness Claims__, 18 Campbell L. Rev. 333 (Summer 1996). Ramanathan, Erik D., __Queer Cases: A Comparative Analysis of Global Sexual Orientation-Based Asylum Jurisprudence__, 11 Georgetown Immigration L.J. 1 (1996). Rubenstein, William B., __Divided We Litigate: Addressing Disputes Among Group Members and Lawyers in Civil Rights Campaigns__, 106 Yale L. J. 1623 (April 1997) (see comment below, under Specially Noted). Schachter, Jane S., Romer v. Evans__ and Democracy's Domain__, 50 Vanderbilt L. Rev. 361 (March 1997)(see responding articles by Abrams, Eskridge, and Zeppos, noted herein). Schmitz, Maxine G., __Mandatory Student Activity Fees in Public Colleges and Universities: The Impact of__ Smith v. University of California, 25 J. L. & Education 601 (Fall 1996). Sharpe, Andrew Neville, __Anglo-Australian Judicial Approaches to Transsexuality: Discontinuities, Continuities and Wider Issues At Stake__, 6 Social & Legal Studies 23 (March 1997). Spitco, E. Gary, __He Said, He Said: Same-Sex Sexual Harassment Under Title VII and the `Reasonable Heterosexist' Standard__, 18 Berkeley J. Emp. & Lab. L. 56 (1997). Strasser, Mark, __Fit to Be Tied: On Custody, Discretion, and Sexual Orientation__, 46 Amer. U. L. Rev. 841 (Feb. 1997). Stychin, Karl F., __Queer Nations: Nationalism, Sexuality and the Discourse of Rights in Quebec__, 5 Feminist Legal Studies 3 (1997). Tymkovich, Timothy M., John Daniel Dailey, and Paul Farley, __A Tale of Three Theories: Reason and Prejudice in the Battle Over Amendment 2__, 68 U. Colo. L. Rev. 287 (1997) (lawyers for state of Colorado reargue __Romer v. Evans__, this time with footnotes). Wintemute, Robert, __Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes__, 60 Modern L. Rev. 334 (May 1997). Woodhouse, Barbara Bennett, __"It All Depends on What You Mean by Home": Toward a Communitarian Theory of the "Nontraditional" Family__, 1996 Utah L. Rev. 569. Zeppos, Nicholas S., __The Dynamics of Democracy: Travel, Premature Predation, and the Components of Political Identity__, 50 Vanderbilt L. Rev. 445 (March 1997) (response to Schachter, noted above). __Symposia__: __Gay Rights and the Courts: The Amendment 2 Controversy__, 68 Univ. of Colorado L. Rev. No. 2 (1997) (individual articles noted above). * * * Symposium on the Family, 1996 Utah L. Rev. No. 2. * * * Vol. XXIII, No. 4 (Summer 1996) of the Fordham Urban Law Journal contains a symposium marking the 40th anniversary of the founding of the New York City Commission on Human Rights, one of the nation's first municipal human rights agencies. * * * A "Colloquy" on children's rights and freedom of speech is published in the Winter 1997 issue of the Connecticut Law Review, vol. 29, no. 2. Participants are Hugh Macgill, Nadine Strossen (President of the ACLU), Stanley Fish, and Loftus E. Becker, Jr. __Student Notes & Comments:__ Bruce, Teresa M., __Neither Liberty Nor Justice: Anti-Gay Initiatives, Political Participation, and the Rule of Law__, 5 Cornell J. L. & Pub. Pol. 431 (Spring 1996). Comment, __California's Sex Offender Notification Statute: A Constitutional Analysis__, 33 San Diego L. Rev. 1195 (1996). Martin, Sonia Renee, __A Child's Right to Be Gay: Addressing the Emotional Maltreatment of Queer Youth__, 48 Hastings L.J. 167 (November 1996). Petrie, Sean J., __Indecent Proposals: How Each Branch of the Federal Government Overstepped Its Institutional Authority in the Development of Internet Obscenity Law__, 49 Stanford L. Rev. 637 (February 1997). Recent Case, __A Quick Case for Including Same-Sex Harassment Under Title VII:__ Quick v. Donaldson Co., Inc., 90 F.3d 1372 (8th Cir. 1996), 20 Harv. J. L. & Pub. Pol. 615 (Winter 1997). Russell, Cornelia Sage, Shahar v. Bowers__: Intimate Association and the First Amendment__, 45 Emory L.J. 1479 (Fall 1996). Wake, Paul, __Fundamental Principles, Individual Rights, and Free Government: Do Utahns Remember How to Be Free?__, 1996 Utah L. Rev. 661. __Specially Noted:__ In __Divided We Litigate__, 106 Yale L.J. 1623, Bill Rubenstein, former director of the ACLU's Lesbian & Gay Rights and AIDS & Civil Liberties Projects and soon to become a professor at UCLA Law School, raises one of the most perplexing issues for the lesbian and gay rights legal movement: How can the movement try to devise a coordinated strategy for preserving and extending the legal rights of lesbians and gay men under a litigation system in which any aggrieved individual can file his or her own lawsuit, frequently with the assistance of counsel who are not necessarily fully conversant with the intricacies of lesbian/gay law, which may then necessarily become the vehicle for higher courts to address the issue? Rubenstein illustrates the problem with examples from his tenure with the ACLU. He suggests some creative solutions, including a proposal that federal rules be amended to require federal judges to determine whether a lawsuit would raise important legal issues for identifiable groups of which the plaintiff is a member, and in such cases to require consultation with legal organizations representing such groups in an inquiry toward converting the lawsuit to a class action. Rubenstein also suggests modifications to the rules of professional responsibility to incorporate the notion of attorneys in such cases having responsibilities beyond the traditional, narrowly-defined loyalty to their individual client. Must reading for attorneys who are litigating on lesbian and gay issues. A.S.L. __A Queer World: The Center for Lesbian and Gay Studies Reader__, edited by Martin Duberman and published by New York University Press, includes the following essays on legal topics: Anne B. Goldstein, "Homosexual Identity and Gay Rights"; David A. J. Richards, "Sexual Preference as a Suspect Classification"; Ruthann Robson, "Convictions: Theorizing Lesbians and Criminal Justice"; David Chang, "Colin Powell's Reflection: Status, Behavior, and Discrimination"; Kendall Thomas, "__Corpus Juris (Hetero) Sexualis__: Doctrine, Discourse, and Desire in __Bowers v. Hardwick__"; Arthur S. Leonard, "Equal Protection and Lesbian and Gay Rights". Vol. 2, No. 1 of __International Journal of Discrimination and the Law__ (1996) contains reviews of the following books: Wintemute, __Sexual Orientation and Human Rights: the United States Constitution, the European Convention, and the Canadian Charter__; Didi Herman and Carl Stychin (eds.), __Legal Inversions: Lesbians, Gay Men and the Politics of Law__; Eric Heinze, __Sexual Orientation: A Human Right__. AIDS & RELATED LEGAL ISSUES: Burr, Chandler, __The AIDS Exception: Privacy vs. Public Health - The Case for Reinstating Traditional Rules for Fighting Epidemics__, The Atlantic Monthly, June 1997, 57-67. Carter, Derrick Augustus, __Knight in the Duel with Death: Physician Assisted Suicide and the Medical Necessity Defense__, 41 Villanova L. Rev. 663 (1996). Gostin, Lawrence O., & Zita Lazzarini, __Human Rights and Public Health in the AIDS Pandemic__ (Oxford Univ. Press, 1997). Howlett, J.P., __Women and HIV: The Barriers to Protection__, 5 Circles: The Buffalo Women's J. of L. & Social Pol. 20 (1997). Reed, Pierce J., and Laura Davis Smith, __HIV, Judicial Logic and Medical Science: Toward a Presumption of Noninfection in Child- Custody and Visitation Cases__, 31 New Eng. L. Rev. 471 (Winter 1997). Taylor, Allyn L., __Controlling the Global Spread of Infectious Diseases: Toward a Reinforced Role for the International Health Regulations__, 33 Houston L. Rev. 1327 (1997). __Student Notes & Comments:__ Frink, Sarah E., __AIDS Behind Bars: Judicial Barriers to Prisoners' Constitutional Claims__, 45 Drake L. Rev. 527 (1997). Gussis, Chrysanthe, __The Constitution, the White House, and the Military HIV Ban: A New Threshold for Presidential Non-Defense of Statutes__, 30 Mich. J. L. Reform 591 (Winter/Spring 1997). Harness, Melody L., __What is "Experimental" Medical Treatment?: A Legislative Definition Is Needed__, 44 Cleveland State L. Rev. 67 (1996). Williams, Kevin W., __The Reasonable Accommodation Difference: The Effect of Applying the Burden Shifting Frameworks Developed Under Title VII in Disparate Treatment Cases to Claims Brought Under Title I of the Americans With Disabilities Act__, 18 Berkeley J. Emp. & Lab. L. 98 (1997). EDITOR'S NOTES In the April 1997 __Law Notes__ we reported on a "cross-adoption" of each other's children by a lesbian couple on Long Island, N.Y., and said that it "may be" the first of its kind in the U.S. We based this on a claim to that effect in the general media source where we saw the story. Since publishing that story, we have received communications from lawyers in both Massachusetts and New York indicating that they had previously succeeded in having such adoptions approved. We congratulate them and their clients, and disclaim any ability to pinpoint primacy for this development! * * * 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.