LESBIAN/GAY LAW NOTES ISSN 8755-9021 Novmber 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 R. Damslet, Esq., New York; Ian Chesir- Teran, Esq., New York; Steven Kolodny, Esq., New York; Arthur J. Levy, Esq., Brooklyn; Mark Major, Esq., New York; Seth M. Rosen, NY Law School Student; K. Jacob Ruppert, Esq., New York; Daniel R Schaffer, New York; Paul Twarog, Esq., New York; Dirk Williams, Esq., Boston; Robert Wintemute, Esq., King's College, London, England. Circulation: Daniel R 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 6th CIRCUIT SUSTAINS CINCINNATI BALLOT MEASURE Taking its cue from a dissenting opinion filed by Justice Antonin Scalia when the Supreme Court remanded the case for reconsideration in light of the Supreme Court's decision in _Romer v. Evans_, 116 S.Ct. 1620 (1996), a 3-judge panel of the U.S. Court of Appeals for the 6th Circuit unanimously ruled on Oct. 23 that Cincinnati's Measure 3, a citizen-initiated charter amendment that forbids the city from adopting any policies protecting gay people from discrimination, is constitutional. _Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati_, 1997 WL 656228. The opinion by Circuit Judge Robert B. Krupansky (a Reagan appointee) adopts and embellishes (without citation) Scalia's argument that despite the similarity in wording between Measure 3 and Colorado Amendment 2, the different levels of government at which these measures operate provide a constitutionally significant distinction between them. The other judges on the panel, Cornelia G. Kennedy (a Carter appointee) and Alan E. Norris (a Reagan appointee) joined Krupansky's opinion. In 1991 and 1992, the Cincinnati city council adopted gay rights ordinances. The first was applicable to the city in its own policies; the second extended to the private sector the obligation to refrain from sexual orientation discrimination in employment, housing and public accommodations. Opponents of these ordinances succeeded in placing on the 1993 ballot Measure 3, to amend the city charter by adding the following article: "The City of Cincinnati and its various Boards and Commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment. This provision of the City Charter shall in all respects be self-executing. Any ordinance, regulation, rule or policy enacted before this amendment is adopted that violates the foregoing prohibition shall be null and void and of no force or effect." Measure 3 was supported by almost 2/3 of the voters, but a decision by District Judge Arthur Spiegel that it was unconstitutional prevented it from going into effect. In 1995, the 6th Circuit reversed Spiegel's decision, holding that Measure 3 implicated neither a suspect classification nor a fundamental right, and that it withstood the rationality review to which it was subject under the equal protection clause, see 54 F.3d 261. Equality Foundation filed a petition for certiorari, which was pending when the Supreme Court decided _Romer_. Several weeks after the decision in _Romer_ was announced, the Court announced that it was granting the petition for certiorari, vacating the 6th Circuit's decision, and remanding for reconsideration in light of _Romer_. See 116 S.Ct. 2519 (1996). Justice Scalia wrote a dissenting opinion, joined by Chief Justice Rehnquist and Justice Thomas. Scalia argued that the two cases were quite different, because Colorado Amendment 2 was a state level constitutional enactment while Cincinnati Measure 3 was a municipal charter amendment. He contended that Measure 3 could not compare to the "sweeping" nature of Amendment 2 in relegating lesbians, gay men and bisexuals virtual "strangers to the law" (which was Justice Anthony M. Kennedy's characterization of Amendment 2 in his _Romer_ opinion.). Scalia argued that Measure 3 was a modest attempt by the smallest democratic unit, the municipal electorate, to instruct their government to refrain from legislating on the limited subject of sexual orientation discrimination and affirmative action. The new 6th Circuit panel decision has taken Scalia's analysis and embellished it. Wrote Judge Krupansky: "An exacting comparative analysis of _Romer_ with the facts and circumstances of this case, disclose that these contrary results [i.e., the Supreme Court's decision in _Romer_ compared to the 6th Circuit's earlier decision in _Equality Foundation_] were reached because the two cases involved substantially different enactments of entirely distinct scope and impact, which conceptually and analytically distinguished the constitutional posture of the two measures. As developed herein, the salient operative factors which motivated the _Romer_ analysis and result were unique to that case and were not implicated in _Equality Foundation I_." What jumps out at the reader of this opinion is the recurring phrase: "special rights." For Krupansky, a law forbidding discrimination on the basis of a particular characteristic confers a "special right" upon persons having that characteristic, and thus, what the Cincinnati voters were doing when they passed Measure 3 was restricting their local government from conferring "special rights" on homosexuals. Thus the difference between Measure 3 and Amendment 2: The Supreme Court found in _Romer_ that Amendment 2 might be construed broadly to deny gay people any protection under the laws of Colorado (although that decision did not solely rest on so broad a construction). By contrast, the 6th Circuit found that Measure 3, a purely local enactment limited to "special rights" under municipal law, had a much smaller effect on lesbians, gay men and bisexuals living in Cincinnati, since they would still be entitled to all the protections, if any, of state law. (Most of the law affecting people on a day-to-day basis is actually state law, since municipalities have limited legislative authority.) One significant difference identified by the court was the method that gay citizens would have to follow to get the measure overturned politically. In Colorado, Amendment 2 could be overturned only by persuading the voters of the state to adopt a constitutional amendment to repeal it. By contrast, Cincinnati gays, in addition to bringing a local initiative measure to amend the city charter yet again, could appeal to the state legislature to pass a preemptive measure, so they were not excluded -- at least theoretically -- from resort to the legislative process to get Measure 3 overturned. The court also noted that the wording of the two measures, although significantly overlapping, appeared broader in the case of Amendment 2. While Amendment 2 disempowered gays from having or claiming "minority status, quota preferences, protected status or claims[s] of discrimination," Measure 3 deprived gays of making "any claim of minority or protected status, quota preference or other preferential treatment." Thus, Measure 3 was assertedly not as "sweeping" in its effect. In a significant mischaracterization of _Romer_, Krupansky stated that in the course of its decision, the Supreme Court had "inter alia, (1) reconfirmed the traditional tripartite equal protection assessment of legislative measures; and (2) resolved that the deferential `rational relationship' test, that declared the constitutional validity of a statute or ordinance if it rationally furthered any conceivable valid public interest, was the correct point of departure for the evaluation of laws which uniquely burdened the interests of homosexuals." A careful reading of _Romer_ shows that the Court did neither of these things. There was no discussion, much less "reconfirmation," of the traditional "tiered" approach to equal protection analysis in _Romer_, other than a statement by Justice Kennedy that Amendment 2 "defied" traditional equal protection analysis. And, the Court undertook no determination of the appropriate level of scrutiny to give Amendment 2 or sexual orientation discrimination in general; rather, the Court asserted that Amendment 2 was so lacking in rationality that it would not even pass the most lenient rational basis test, and thus further analysis along these lines was unnecessary. (Krupansky's assertion has, unfortunately, become commonplace among federal appeals and district court judges inclined to rule against gay plaintiffs, particularly in military cases; they recite their new mantra: "_Romer_ determined that policies that discriminate based on sexual orientation should be evaluated under the rationality test.") Evaluating Measure 3 under the rationality test, the court characterized it as "direct legislation by the people," and argued that _Romer_ "should not be construed to forbid local electorates the authority, via initiative, to instruct their elected city council representatives, or their elected or appointed municipal officers, to withhold special rights, privileges, and protections from homosexuals, or to prospectively remove the authority of such public representatives and officers to accord special rights, privileges, and protections to any non-suspect and non-quasi- suspect group." This, after having quoted a portion of the _Romer_ opinion in which Justice Kennedy specifically rejected the contention that Amendment 2 concerned "special rights" for homosexuals. As to the justification for the measure, the court focused on cost savings for the municipality, which would not have to spend any resources to enforce anti-discrimination provisions on behalf of gays. (That gays are also taxpayers with a legitimate claim on municipal resources for protection of their civil rights was evidently not a point deemed worth considering by the court.) In addition, the court commented that passage of Measure 3 would protect the citizens of Cincinnati by reducing their "exposure" to "protracted and costly litigation by eliminating a municipally- created class of legal claims and charges, thus necessarily saving the City and its citizens, including property owners and employers, the costs of defending against such actions." The court even suggested that Measure 3 might be supported by a legitimate state interest in preserving "associational liberty and the expression of community moral disapproval of homosexuality as rational bases supporting an enactment denying privileged treatment to homosexuals," but backed away from that precipice by asserting that the cost-savings alone provided sufficient justification for Measure 3. Equality Foundation will either petition for en banc review by the full 6th Circuit or for a writ of certiorari to the Supreme Court. As the 6th Circuit panel's argument is derived from Justice Scalia's dissent (which was evidently rejected by 6 members of the Supreme Court when they voted to reverse and remand the case), perhaps the Supreme Court would see fit to reverse this opinion in a summary disposition. In any event, while the controversy was pending, the Cincinnati city council repealed its private sector gay rights ordinance, so the eventual elimination of Measure 3 would not necessarily restore protection from discrimination for gay people in Cincinnati, as a new campaign would be necessary to persuade the city council to tempt fate by enacting such ordinances anew. Equality Foundation is represented by Alphonse A. Gerhardstein, of Cincinnati, Patricia M. Logue and Suzanne Goldberg of Lambda Legal Defense (Chicago and New York), Scott Greenwood of Cincinnati and Richard A. Cordray of Grove City, Ohio. A group of amicus curiae were represented through a brief filed by Melissa Wells-Petry. Arrayed on the other side, in addition to the City Solicitor's office, were two amici, the National Legal Foundation, a conservative law firm, and the American Enterprise Institute, whose brief was submitted by the infamous Robert H. Bork. A.S.L. N.J. Supreme Court Upholds Sex Offender HIV Testing Law On Sept. 25, the New Jersey Supreme Court unanimously affirmed an appellate division decision that a state law requiring alleged sex offenders (upon request of the victim) to submit to an HIV blood test does not impinge on a defendant's federal or state constitutional rights. _State of New Jersey in the Interest of J.G., N.S. and J.T._, 1997 WL 662676. The court held that such testing is constitutional, but added that before a court orders testing, it must find probable cause to believe that an accused or convicted sex offender has exposed the victim to a risk of possible HIV transmission. The 1993 statute at issue was passed in response to the federal Crime Control Act of 1990, which required states (as a condition of federal law enforcement financial assistance) to enact legislation requiring people convicted of sexual assault to be tested if the victim so demands. The defense lawyers in this case argued that the law violated due process because the testing was done prior to a conviction, and that it was an unnecessary invasion of privacy when, in fact, the testing would not be able to allay a victim's fear of contracting HIV or AIDS. The ruling arises from the sexual assault of a 10-year-old mentally retarded Jersey City girl, who was raped and sodomized by three boys, aged 13, 14, and 15. All three eventually pleaded guilty to juvenile delinquency charges. Following the filing of charges, the State moved at the request of the victim for orders compelling the juveniles to submit to HIV testing. The juveniles opposed the state's demand, asserting that the statute is unconstitutional under the 4th and 14th amendments and their New Jersey constitutional equivalents. At trial, the defense presented unrebutted evidence showing that testing a suspect would not be a psychological or medical benefit to victims because HIV has a 3-to-6 month latency period during which carriers may not test positive. The trial court agreed and when applying the _Skinner/Von Raab_ "special needs" test (_Skinner v. Railway Labor Executives' Ass'n_, 489 U.S. 602 (1989); _National Treasury Employees Union v. Von Raab_, 489 U.S. 656 (1989)), it determined that although the state had a legitimate and compelling governmental interest in assisting and protecting the victims, because the court found no benefit to the victim, it concluded that the statute is unconstitutional. The Appellate Division reversed. 289 N.J. Super. 575 (1996). The panel upheld the statute as applied, refusing to accept that such testing "is medically or psychologically useless to the victim or the treatment community," and concluding that "when balanced, the individual defendant's interest in preventing a bodily intrusion and disclosure of his HIV status is significantly less weighty than the compelling state interest in the health and welfare of the victim in particular and the public in general." The court ordered the testing, which was carried out soon thereafter. The court did not consider the then-moot Due Process arguments, as the juveniles were since adjudicated delinquent. Although testing and adjudication had taken place, the Supreme Court granted review, since the issue is "capable of repetition yet likely to evade review." Chief Justice Deborah T. Poritz authored the opinion, her first as Chief Justice. Interestingly, Poritz had extensive experience with the issue, having served as Attorney General during the trial and beginning of the Appellate Division review. She began her decision by reiterating that such a test is a "search" for purposes of the Fourth Amendment. She then turned to the issue of reasonableness, that is, whether such a search in a criminal investigation is reasonable when conducted without a warrant based on probable cause. The court agreed with the lower courts that in this instance there is an exception to the warrant requirement under the _Skinner/Von Raab_ "special needs" test. If "special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable," only some showing of "individualized suspicion" is required. However, in limited circumstances, this individualized suspicion requirement may be waived if the privacy interests implicated by the search are minimal and where an important governmental interest furthered by the search would be placed in jeopardy. Relying on several drug testing cases, including _New Jersey Transit PBA Local 304 v. New Jersey Transit Corp._, 1997 WL 637852 (Poritz's joint-debut opinion delivered the same day), the court found that the special needs test was met in this case; HIV testing of accused and convicted sex offenders ranked among those suspicionless searches because (1) such testing is not intended to facilitate the criminal prosecution of the offender, (2) the results are required to be kept confidential and not disclosed to the prosecutor's office, and (3) both the warrant and individualized suspicion requirements are impractical in this context; HIV+ sex offenders often have no outward manifestations of infection, meaning that probable cause or individualized suspicion that an assailant is infected could not be found without testing, so to require a probable cause determination would frustrate the governmental purpose behind the search. The court made clear that the privacy interests at stake are very apparent, stating that "[m]andatory testing and disclosure of HIV status [threatens] privacy interests beyond the taking of the blood sample, particularly because of the social stigma, harassment and discrimination often suffered by individuals who have AIDS or who are HIV positive." Based on countless federal and state victims' rights laws (and rejecting the "no psychological benefit" expert testimony), the court agreed that the state has a compelling interest in making information available when it directly affects the physical and mental well-being of survivors of sexual assault. Balancing these two interests, the court found that the procedural protections against HIV disclosure and use in a criminal prosecution were sufficient to ensure that the offender's privacy interests are not unduly infringed. However, the court then went beyond the Appellate Division's ruling, finding that the testing statutes do not provide sufficient procedural safeguards to ensure that HIV testing of the accused and convicted occur only when the state's interest in testing is present. The statute defines sexual assault as an "act of sexual penetration with another person," with "sexual penetration" defined as "vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or the insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction." Since sexual penetration as defined here is not limited to acts where there is a possibility of the transfer of bodily fluids, the court was concerned that HIV testing could be required when there is no risk of HIV transmission. Therefore, the court held that there must be a "[demonstrable] risk that the AIDS virus may have been transmitted from the offender to the victim" before testing can be ordered. This way, the testing statute will bear a close and substantial relation to those state interests. In determining whether there has been a possible transfer, the court ruled that a "court must find that probable cause exists to believe that the victim may have been exposed to the bodily fluids of the assailant such that there is a possibility of transmission of the AIDS virus. If the court makes such a finding, the testing . . . will comport with the requirements of both the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution." Turning to the Due Process claims, the court quickly settled the matter by stating that since it has required a showing of probable cause that the AIDS virus could have been transmitted, there is no Due Process violation. The court also found no due process violation in the juveniles' claim that the testing statutes lack safeguards to protect the privacy and liberty interests of accused sex offenders. The court reasoned that since a finding of probable cause is necessary for a charge of sexual assault, a prima facie case of sexual assault is required for a grand jury indictment, and since probable cause is required for delinquency adjudication, due process rights of adults and juveniles are adequately protected. K.J.R. LESBIAN/GAY LEGAL NEWS Supreme Court Avoids Lesbian/Gay Issues on Initial Certiorari Decisions of October 1997 Term Commencing its October 1997 Term on Oct. 6, the Supreme Court announced that it was denying petitions for certiorari in three cases presenting questions of particular concern for gay law. In perhaps the most closely-watched of the three, _Richenberg v. Cohen_, No. 96-1648, the Court refused to take up the constitutionality of the "don't ask, don't tell" policy enacted by Congress and the Clinton Administration in 1993. In that case, the U.S. Court of Appeals for the 8th Circuit ruled last year in _Richenberg v. Perry_, 97 F.3d 256, that the policy is constitutional. This is the third certiorari petition in a case challenging the current military policy that the Court has denied. Clearly, there will not be four votes on the Court for taking this issue up until such time as a federal court of appeals holds that the policy is unconstitutional. (Although the 9th Circuit appeared to hold one application of the military ban unconstitutional in _Meinhold_, that ruling was technically on a discharge that occurred prior to adoption of the current policy; this probably explains the Court's decision not to take up that case, as the new policy was in place by the time the government attempted to appeal that decision.) Thus, the most likely candidate to bring this issue to the Supreme Court is the test-case litigation pending in the U.S. Court of Appeals for the 2nd Circuit, _Able v. U.S._, in which the U.S. District Court, E.D.N.Y. (Nickerson, J.) (968 F.Supp. 850), ruled over the summer that the current policy is unconstitutional. In _Nelson v. McClatchy Newspapers, Inc._, No. 97-187, the Court refused to review a decision by the Washington Supreme Court, reported at 936 P.2d 1123, upholding a newspaper's decision to reassign a lesbian employee from reporting to an editorial job after she refused to withdraw from participation in gay political activity. The reporter claimed that her activity was protected by a Washington state statute; the state court ruled that the newspaper's first amendment freedom of the press rights would be violated if the court were to order the newspaper to reassign the employee as a reporter. In _Doe v. Mass. Dept. of Social Services_, No. 96-1819, the Court refused to review an unreported decision by the Massachusetts courts, rejecting as moot a claim by a father that the state violated his free exercise of religion by assigning his minor child to a foster care placement with a gay male couple. By the time the litigation was under way, the foster placement had ended and the child was back in the custody of his father. In the one pending case that is being closely watched to see whether the Court's decision will affect the workplace rights of lesbians and gay men significantly, the Court is considering whether Title VII of the Civil Rights Act of 1964 gives a right of action for sexual harassment to an employee subjected to harassment by other employees (or supervisors) of the same sex as the employee. In _Oncale v. Sundowner Offshore Services, Inc._, 83 F.3d 118 (5th Cir. 1996), the appeals court categorically ruled out any same-sex harassment claims under Title VII, accepting a theory that the inclusion of "sex" in Title VII was intended to protect individuals from discrimination in workplaces dominated by members of the opposite sex. Every other federal circuit court that has considered the question has determined that at least some same-sex harassment claims may be actionable under Title VII, and a few have even found a Title VII cause of action for harassment that might be characterized as homophobic. A.S.L. Sixth Circuit Recognizes Equal Protection Claim Based on Sexual Orientation Discrimination in Selective Prosecution Case On Oct. 8, the U.S. Court of Appeals for the 6th Circuit revived an equal protection claim brought by a woman against whom DUI laws were selectively enforced based on her supposed sexual orientation. _Stemler v. City of Florence, Chipman v. City of Florence_, 1997 WL 615760. According to the facts related by Circuit Judge Boggs, while dancing at a bar with boyfriend Steve Kritis, Conni Black met Susan Stemler. They went to the women's restroom to discuss their respective boyfriends; Black told Stemler that she wanted to leave Kritis. Kritis burst into the restroom cursing, grabbed Black, threatened to kill her, slammed her against a toilet stall, then pulled her out of the restroom. Black briefly passed out after Kritis pulled her out of the restroom a second time and slammed her into a wall. Kritis menaced Black with his fist. At Black's request, Stemler agreed to drive her home. As they were leaving, Kritis hit Stemler in the head with a blunt object. Kritis chased Stemler's car with his truck, headlights off. Kritis rear-ended Stemler and tried to trap her car in a residential cul-de-sac. When Kritis got out of his truck to pound on the window of Stemler's car and yell at Black (waking additional witnesses who called 911), Stemler drove around the truck. Kritis resumed the chase at sixty m.p.h. on a residential sidewalk. The 911 caller and a witness already following the two vehicles followed in their cars. At a traffic light one of the witnesses flashed his lights at police Lt. Thomas Dusing (responding to the 911 call) and told him that Kritis appeared to threaten the safety of the women. Dusing cut-off the two vehicles at the intersection; Stemler ran out of her car to Dusing and cried, explaining that the drunk Kritis assaulted the two and threatened murder. While Stemler was talking to Dusing, Kritis told Officer Reuthe that Stemler was a lesbian who was kidnapping his girlfriend. (Stemler denies that she is a lesbian.) Reuthe told Dusing that he smelled alcohol on Kritis and that Stemler was a lesbian. Despite his obvious intoxication, no one conducted a sobriety test on Kritis or asked him to step out of the truck. (Later testing put his blood alcohol at the time of the stop at .155-.175, at least one-and-a-half times the legal limit.) Kritis repeated to Dusing that Stemler was a lesbian and asked him to bring Black to his truck. Dusing told Kritis that he would see what he could do and asked Kritis if he would testify against Stemler. Dusing's report claimed that he did not smell alcohol on Kritis, despite his contemporaneous statements to two witnesses that he did. Dusing ordered Officer Wince to test Stemler's sobriety despite her lack of DUI indicators (e.g. impaired balance), finding a blood alcohol level of .105 by a breathalyzer which Stemler alleges was improperly calibrated. All the officers heard Kritis claim that Stemler was a lesbian, and they agreed with Dusing's decision to arrest Stemler for DUI. On Stemler's pointing at Kritis (who hadn't turned his headlights on) to ask Wince "Why don't you check him?," Wince pulled her arm behind her back and handcuffed her. A witness, angered by Stemler's arrest, told the complete story of the chase to two other officers. They told him that he didn't know what was going on but would be contacted to testify against Stemler. Mysteriously, all records of this witness were lost. Meanwhile, two officers made a point of telling the 911 caller that Stemler was a lesbian; their certainty surprised the witness given Stemler's out-of-state license plates. Dusing ordered Black arrested for public intoxication "if she didn't want to leave with the male." Two officers then lifted the insensate Black out of Stemler's car and placed her in the passenger seat of Kritis' truck. Kritis immediately drove off with Black, who again passed out. Five minutes later Kritis' truck broadsided a guardrail, throwing Black partially out of the passenger side window and severing her head in two. Kritis drove another 2.5 miles before stopping to flag down a passing motorist, who described Kritis as nonchalant, though obviously drunk. Police arriving at the scene saw probable cause to arrest Kritis without need of a field sobriety test. Stemler states that she had half of a beer and two Irish coffees that night. An hour after testing Stemler's blood alcohol level at .105, Wince allegedly tested Stemler at .17. A forensic scientist concluded that the integrity of this sample was destroyed as Wince (for the first time in his career) held the sample for five days, didn't submit required documentation, then drove it to the lab personally. At Stemler's first DUI trial (resulting in a hung jury), Wince admitted that he had not completed an evidence card which he produced at her second trial, claiming it was completed at the time of arrest. Stemler was acquitted. Black's estate has a wrongful death appeal pending against the police. Stemler then sued the City of Florence and law enforcement officials in federal court, alleging a violation of her rights to due process and equal protection of the laws. Because the state court found that the police had probable cause to arrest Stemler, her false arrest and malicious prosecution claims were properly dismissed by the district court. The court of appeals found itself "powerless" to review the due process issue of Wince's evidence-tampering, reasoning that Stemler didn't raise it in her complaint but only after Wince was dismissed from suit. However, "this is the rare case in which a plaintiff has successfully stated a claim of selective prosecution. . . [T]he. . . officers chose to arrest and prosecute her for [DUI] because they perceived her to be a lesbian, and out of a desire to effectuate an animus against homosexuals. . . Kritis was similarly situated to Stemler (or, indeed, far drunker than she)," but they chose not to arrest him at the time they arrested Stemler because they perceived him to be heterosexual. The court rejected defendants' citation of _Bowers v. Hardwick_ as support for the proposition that it is always constitutional to discriminate on the basis of sexual orientation, holding that the police would violate the core principle of the Equal Protection Clause by basing enforcement decisions on an "arbitrary classification," and noting that the availability of such a claim is not limited to groups accorded heightened scrutiny under equal protection jurisprudence. The district court's decision on the equal protection claim was reversed with respect to the individual police defendants and remanded for further proceedings. M.M. Maryland Appeals Court Rules for Gay Father in Visitation Dispute Vacating and remanding a circuit court decision that placed strict limitations on the visitation rights of a gay father, the Maryland Court of Special Appeals ruled in _Boswell v. Boswell_, No. 1466 (Oct. 29, 1997), that the circuit court had abused its discretion by prohibiting overnight visitation, visitation in the presence of the father's domestic partner, and visitation in the presence of any other homosexuals. The father, Robert Boswell, was represented on the appeal by Lambda Legal Defense Fund through cooperating attorney Nancy Polikoff, a law professor at American University, assisted by Andrea Colender, cooperating local counsel in Maryland. The case stemmed from the 1995 divorce of Robert and Kimberly Boswell. The divorce was precipitated when Robert "came out" to Kimberly. At the time of the custody hearing in the circuit court, their children, Ryan and Amanda, were 8 and 5 years old, respectively. Under a temporary visitation order pending a decision on the merits, the children had been seeing their father (and his partner, Rob Donathan, with whom Robert shared a bedroom) on Wednesdays and alternate weekends. The circuit court received expert testimony of some ambiguity about the visitation issue, including suggestions by one expert that children of newly-divorced parents should not be exposed to their parents new partners too quickly, and perhaps not at all during the first year after divorce. Circuit Court Judge Lawrence Rushworth also interviewed the children together on the record in chambers, eliciting a preference against overnight visitation from Ryan with equivocal echoes from Amanda, and also equivocal comments about their relationship with Robert's partner. (Of particular concern to Ryan was continuing his relationship with the partner's dog.) Ruling from the bench, the Rushworth (who had previously rejected a recusal motion based on comments he made to counsel in chambers that were considered biased) ordered that the father's visitation be on Wednesdays and alternate weekends, with some more time during the summer, but that there be no overnight visitation (based apparently on the judge's conclusion that the children did not desire it), no visitation in the presence of Robert's partner, and no exposure to any other homosexuals during visitation. Interestingly, the mother did not request any of these restrictions on visitation. After issuing his order, Judge Rushworth recused himself from further participation in the case. On appeal, the court found an abuse of discretion, in an opinion by Judge Arrie W. Davis. At the outset, noting the barrage of materials filed in the appeal on the subject of children raised in gay families, Judge Davis asserted that this was not a gay rights case. Rather, he emphasized that the court's role was to be narrowly focused on the best interest of the children and on whether the circuit court's restrictions on visitation were supported by the factual record. As to the restriction on overnight visitation, Davis found that the only explanation for this restriction given by the circuit court was that the children were "young" and that they preferred not to visit overnight. Davis noted that the "court made no finding of possible harm to the children from overnight visitation, either from Donathan, appellant, or the general circumstances." The court then found "clearly erroneous" the finding that "the children" did not desire overnight visitation; while Ryan preferred not to stay overnight, Amanda had not expressed such a preference. Further, the court noted that the preferences of very young children should not be given preclusive weight. More seriously, the court found that the circuit court had misstated the testimony of the expert child psychologist; she had raised certain problems about overnight visitation on a weeknight, but had not testified that all overnight visitation would be bad for the children. The social worker witness had not raised any objections to overnight visitation, either, and Davis found that "the court seems not to have announced any objective to be served by prohibiting overnight visitation." Since the circuit court had not articulated a coherent reason for the restriction, its imposition was an abuse of discretion, and was vacated by the appeals court. Davis next asserted that the court "must" vacate the prohibition on visitation in the presence of the father's partner. The circuit court's articulated reason for this restriction was an improper reliance on older cases restriction the exposure of children to a parent's "paramour." Davis found that the court had abandoned those older cases, and had adopted a fact-specific test of harm to the child. As the circuit court had "articulated no findings of actual harm to the children that the evidence indicated would result from the children's exposure to appellant's present or future non-marital sexual relationships," and had apparently inferred that the "exposure would be per se harmful. . . by virtue of the relationship's inherently `inappropriate' nature" was not sufficient to constitute a proper exercise of discretion. Since the record showed no necessity for the restriction, it too should be vacated. Finally, the restriction on exposure to any other homosexuals apparently struck the appeals court as completely ludicrous. "The court made no findings of fact at all justifying this blanket prohibition, which encompasses, it appears, every situation in which appellant and the children may be in the company of homosexuals. No testimony in the record supports this prohibition on contact of any kind with homosexuals. Certainly the court said nothing about it in its oral statements and made no finding of harm to the children from such contact. . . [T]his prohibition clearly cannot stand." The court also found improper the circuit court's order that the father, in addition to providing health insurance for the children, be solely responsible for all their health care costs that might not be covered by the insurance. The court found no basis for departing from the Maryland practice of apportioning such costs based on the incomes of both parents. The case was remanded to a new judge for appropriate fact-finding and entry of a new visitation order. A.S.L. Sexual Harassment Against Transsexual Covered By Title IX Rejecting a motion to dismiss in _Miles v. New York University_, 1997 WL 626891 (S.D.N.Y., Oct. 7), U.S. District Judge Whitman Knapp found that a sexual harassment complaint against a professor by a student who was undergoing a sex reassignment process from male to female stated a valid claim under Title IX of the Education Amendments of 1972, 20 U.S.C. sec. 1681 et seq. According to the opinion, plaintiff Jennifer Miles "had undergone hormone treatments for breast augmentation but had not yet had sex- reassignment surgery at the time of the events alleged in the complaint." Miles alleged that while a grad student in musicology at NYU, she was assigned a series of one-on-one tutorials with a professor who "began making wholly unwelcome sexual advances. . . [which] included the fondling of breasts, buttocks, and crotch, forcible attempts to kiss, and repeated propositioning for a sexual relationship." Miles complained to the university's sexual harassment committee, which reprimanded the professor; nonetheless, the professor was granted tenure, even though there were several other similar complaints on file against him from other female students. Although the committee requested "the certain deans investigate a possible pattern of harassment in the music department," the deans took no action and never even discussed the allegations with the professor. Miles also alleged that after she filed her complaint, she was treated in hostile fashion by professors and administrators and, as a result, prematurely left the doctoral program and continues to suffer mental distress, anguish and pain. Judge Knapp rejected NYU's argument that it was not responsible for the professor's conduct cursorily, stating: "[Any] jury that accepted as true all facts claimed by plaintiff would surely find in her favor on this issue." Turning to the argument that Miles had not stated a cause of action under Title IX, which prohibits sex discrimination by institutions of higher education that receive federal funds, Knapp rejected the argument that Miles' transsexual status relieved the university of liability. "There is no conceivable reason why such conduct should be rewarded with legal pardon just because, unbeknownst to Professor Eisen and everyone else at the university, plaintiff was not a biological female. So far as we can determine, no other defendant has ever sought to justify such conduct by this type of defense." Reviewing cases that had rejected discrimination claims by transsexuals under Title VII, Knapp pointed out that they dealt with the quite different issue of employment discrimination based on transsexuality. He quoted from dicta in one of those cases, _Holloway v. Arthur Anderson, Inc._, 566 F.2d 659 (9th Cir. 1977), as follows: "transsexuals claiming discrimination because of their sex, male or female, would clearly state a cause of action under Title VII." "There can be no doubt," concluded Knapp, "that Professor Eizen's conduct with respect to Jennifer Miles, assuming it can be proven, related to sex and sex alone. Title IX was enacted precisely to deter that type of behavior, even though the legislators may not have had in mind the specific fact pattern here involved." On to trial (unless NYU settles on terms acceptable to Miles). Miles is represented by William H. Kaiser of Kaiser, Saurborn & Mair, PC, in New York City. A.S.L. N.J. Court Approves Adoption by Gay Male Couple Bergen County, New Jersey, Superior Court Judge Sybil R. Moses has granted a petition by Jon Holden and Michael Galluccio to jointly adopt their son Adam. The men became foster parents of Adam in January 1996, when he was 3 months old and had been born to an HIV+ mother who was addicted to cocaine. They nursed him to health and then sought to adopt him. State officials informed them that a joint adoption was not possible; one would have to adopt, and then the other would have to apply to adopt as a co-parent, resulting in two rather than one legal proceedings with associated time delays and costs. The Oct. 22 ruling was announced by Judge Moses from the bench, without a written opinion. In a telephone interview, Judge Moses told the _New York Times_ (Oct. 23) that she approved the adoption "solely because it was in the best interest of this child." Holden and Galluccio were represented by the ACLU's Lesbian and Gay Rights Project, through cooperating attorney Barbara Fox. While there is precedent in N.J. for approving second-parent adoptions, this appears to have been the first joint adoption by a same-sex couple to have been approved in the state. A.S.L. N.Y. Federal Court Dismisses Same-Sex Harassment Suit The U.S. District Court for the Southern District of New York recently dismissed a same-sex harassment claim, holding that the plaintiff failed to prove that the reason given for his termination was pretextual. _Taylor v. New York City Transit Authority_, 1997 WL 620843 (Oct. 7). Transit operator Peter Taylor filed suit against the Transit Authority under Title VII of the Civil Rights Act of 1964, asserting he was terminated because he is heterosexual. Taylor was fired in July of 1994 after a arbitration board found that Taylor had verbally and physically assaulted another employee. (Taylor had claimed that the male employee in question had made sexual advances to Taylor, but the arbitration board found the other employee's denial of these allegations more credible than Taylor's testimony.) Taylor later failed harassment complaints with the Transit Authority's Equal Employment Office and the N.Y. State Division of Human Rights, both of whom found Taylor's allegations to be without merit. The State Division held that the Transit Authority articulated a legitimate, non-discriminatory for firing Taylor. Taylor subsequently filed a same-sex harassment suit under Title VII in the New York District Court. In her opinion, Judge Sonia Sotomayor decided that prior arbitration decisions to not collaterally estop a plaintiff from later filing a Title VII claim. Sotomayor based her analysis on _Alexander v. Gardner-Denver Co._, 415 U.S. 36 (1974), which stated that while arbitration provides a contractual remedy, a lawsuit under Title VII concerns statutory rights provided by congress. Sotomayor also refused to decide whether same-sex harassment claims are actionable under Title VII, citing the Supreme Court's pending decision in _Oncale v. Sundowner Offshore Servs., Inc._, 83 F.3d 118 (5th Cir. 1996), which also involves same-sex discrimination under Title VII. Sotomayor stated that the Transit Authority deserved summary judgment because Taylor presented no evidence that he was discharged because he was heterosexual. Sotomayor held that Taylor had the burden to prove that the reason the Transit Authority gave for his termination was false or unworthy of belief. Since Taylor presented no evidence that he was fired for any reason other than his assault of his fellow employee, Sotomayor granted summary judgment in favor of the Transit Authority. S.M.R. Technicality Bars Sexual Orientation Discrimination Complaint The Connecticut Superior Court dismissed a sexual orientation employment discrimination case because the plaintiff did not get a right-to-sue letter from the Connecticut Commission on Human Rights (CCHRO). _Martin v. O'Meara_, 1997 WL 625417 (Oct. 1). Judge Karazin ruled that what was described as a "typographical error" in a letter communicating plaintiff's request for the right-to-sue letter was not sufficient to outweigh the requirement that a right- to-sue letter be obtained before an employment discrimination action can be pursued. Martin, who worked for the Department of Mental Retardation, wrote to the CCHRO, but asked for a right-to- sue letter from the Equal Employment Opportunities Commission (EEOC). Judge Karazin found that Martin's letter, which was not proven to have been sent, could have reasonably been interpreted by the CCHRO to be "simply informing" them of a parallel action being taken with the EEOC, and so granted a motion to dismiss the case. D.R.S. Domestic Partnership Updates U.S. Rep. Barney Frank (D.-Mass.) has introduced the Domestic Partnership Benefits and Obligations Act of 1997, a bill that would make domestic partnership benefits available to partners of federal employees. Co-sponsors include Nita Lowey (D.-N.Y.), Elizabeth Furse (D.-Ore.), Eleanor Holmes Norton (D.-D.C.), Bob Filner (D.- Cal.), and others who joined too late for inclusion in the press release distributed by Rep. Frank's office. Both same-sex and opposite-sex partners would be eligible for addition to a myriad of government employee benefits programs on the same basis as employees' spouses. According to the _Washington Post_ (Oct. 31), Frank's bill has been endorsed by the American Federation of Government Employees and the National Treasury Employees Union. Frank stated that the failure of the federal government to adopt a domestic partnership benefits program left it trailing progressive private sector firms with whom the government competes for talented personnel. Some new entrants to the list of employers adopting domestic partnership benefits plans: Electronic Data Systems, a Plano, Texas-based computer services company with more than 1200 employees, announced that it would offer full health and dental benefits to domestic partners of gay employees effective Jan. 1. Founded by Ross Perot in 1962, the company was acquired by General Motors in 1984, and spun off as an independent company in 1996. * * * Compaq Computer Corp. will extend benefits eligibility to same- sex domestic partners of employees effective Jan. 1. * * * Without any announcement or public fanfare, the McGraw-Hill Publishing Company has extended eligibility for domestic partnership benefits to the partners of lesbian and gay employees effective in the current enrollment cycle. * * * The New York Times Co. has extended its domestic partnership benefits program (previously applicable only to employees in its Newspaper Guild bargaining unit) to its managerial staff, both at the newspaper in New York and at other newspapers owned by the Times (including the Boston Globe). * * * Edison International, a Rosemead, California-based utility holding company, has adopted a domestic partnership benefits plan that extends to all domestic partners, regardless of gender, thus expanding a 1996 policy that dealt only with bereavement leave. The Lower Merion, Pennsylvania, school board voted to provide health benefits to same-sex domestic partners of school district employees, thus obeying an order by a labor arbitrator, and making the school district the first in Pennsylvania to provide such benefits. _Philadelphia Inquirer_, Oct. 22. Virginia Attorney General Richard Cullen issued an opinion Oct. 21 that local governments may not adopt domestic partner benefits plans for their employees. Cullen's opinion was in response to the action by Arlington establishing such a plan, which went into effect on July 1. While Cullen's opinion has no immediate effect, it could provide support if an Arlington taxpayer were to file suit seeking invalidation of the plan, as has happened in some other cities around the country. _Washington Post_, Oct. 21. A.S.L. Who Will Be First With Same-Sex Marriage: Hawaii or The Netherlands? The government of the Netherlands appears poised to become the first modern jurisdiction to extend the full right to marry to same-sex couples. According to an Associated Press story filed from Amsterdam on Oct. 29, a parliamentary committee has approved proposed legislation that would allow same-sex couples to marry and adopt children, and to have the same pension, inheritance and social security rights as married heterosexuals. While several Scandinavian countries have adopted registered partnership laws in recent years that make most of the rights of marriage available to same-sex couples, those laws have specifically excluded the right for such couples to adopt children, and (in those countries with established churches) backed away from requiring the churches to perform same-sex marriage ceremonies. There is no established church in the Netherlands, so church weddings are not a legislative issue there. It is expected that final consideration of the proposal will come early in 1998. This sets up a race between the Netherlands and Hawaii as to which will be the first jurisdiction to achieve full marriage rights for same-sex couples. In Hawaii, final briefing has taken place on the state's appeal to the state supreme court of a trial court decision from last year holding that the continued exclusion of same-sex couples from the Hawaii marriage law violates the state constitution's ban on sex discrimination. The court has not scheduled oral argument, so an opinion could issue at any time. Also pending in Hawaii, however, is a ballot measure approved by the state legislature, scheduled for a vote in Nov. 1998, when the state's voters will be asked whether the state constitution should be amended to authorize the legislature to determine whether marriage should be restricted to opposite-sex couples. Also, the U.S. Court of Appeals for the 9th Circuit will decide sometime next year whether a referendum on holding a state constitutional convention must be rerun; the 1996 vote on that issue produced a plurality in favor, but the Hawaii Supreme Court ruled that an absolute majority of all voters was necessary to authorize the convention. Opponents of same-sex marriage hoped to use the convention as a vehicle to accomplish the objective of the already- scheduled 1998 ballot measure. Although Hawaii might be first in the gate, the permanence of that victory may be in doubt for some time afterwards. By contrast, as the Dutch government is supportive of the push for same-sex marriage, the issue is likely to be settled definitively first in The Netherlands. Meanwhile, in its Oct. 20 issue, _The Nation_ published a report on the Vermont marriage litigation by E.J. Graff, "In & Out in Vermont." Graff suggests that the Vermont case is poised for success in a state with no sodomy law, a gay rights law, and domestic partnership benefits provided by the state and some private employers. Graff also comments that a Vermont victory would be much more significant than a Hawaii victory: same-sex couples from the mainland would incur considerable expense and inconvenience traveling to Hawaii to marry; for many, Vermont is just around the corner! A.S.L. _Law & Society Notes_: Lambda Legal Defense Fund and the ACLU Lesbian & Gay Rights Project filed a petition for certiorari on Oct. 31 in the U.S. Supreme Court seeking review of the 11th Circuit's en banc decision in _Shahar v. Bowers_, 114 F.3d 1097 (11th Cir. May 30, 1997). In _Shahar_, the circuit court rejected a lesbian attorney's challenge to the constitutionality of a decision by the attorney general of Georgia revoking her job offer as a result of her participation in a religious marriage ceremony with her partner. The plaintiff, Robin Shahar, is presently employed as an attorney for the City of Atlanta. Ruth Harlow, Lambda managing attorney, is lead counsel for Shahar; the case was originally brought by the ACLU, at a time when Harlow was a staff attorney for that organization. The U.S. Senate Labor and Human Resources Committee held hearings late in October on the Employment Non-Discrimination Act (ENDA), whose chief sponsor is Sen. James Jeffords (R.-Vt.), chair of the committee. ENDA, a limited civil rights bill that would ban intentional sexual orientation discrimination in employment by all employers who are subject to Title VII of the Civil Rights Act of 1964, fell one vote short of passage in the Senate last year under unusual circumstances (paired with a vote on the Defense of Marriage Act), but is not expected to progress to a floor vote in this session of Congress. Testimony by individuals claiming to have suffered sexual-orientation discrimination caused media comment in their own communities. For example, gay attorney David Horowitz testified that he was denied a job as an assistant city prosecutor in Mesa, Arizona, because he was openly gay. This set off a one-day sensation in the local Arizona press, with denials from Mesa officials that there was a policy of discrimination against gays. (See _Arizona Republic_, Oct. 26.). The denials rang hollow, since Horowitz had presented excellent credentials for the job. _Arizona Republic_ columnist Art Thomason suggested that internal city politics probably had more to do with the failure to hire Horowitz than outright homophobia. California Governor Pete Wilson vetoed the latest attempt by the California legislature to add "sexual orientation" to the prohibited grounds for discrimination under the state's Fair Employment and Housing Code. The Oct. 10 veto was the second by Wilson, who did during the intervening time sign a measure codifying existing interpretations of the state Labor Code to provide a limited cause of action for employees discharged for being gay. Proponents of the legislation argued that gays should have the same level of protection afforded other groups, including the more accommodating statute of limitations under the FEHC and access to the Fair Employment and Housing Commission for investigation of their complaints. Wilson commented that the measure was "unnecessary." _San Francisco Chronicle_, Oct. 11. In another veto action, Wilson rejected a measure to authorize the state bar association to increase its dues, citing, among other things, the association's endorsement of same-sex marriage as an inappropriate action. _Washington Blade_, Oct. 24. Military recruitment on campus continued to raise problems at the nation's law schools, as the Judge Advocate General Offices of the various branches of the Defense Department began calling to make appointments for interviewing students and schools threatened with the loss of student loan and work study funds rapidly capitulated. The lone holdout reported to us as of this date is William Mitchell Law School, whose dean stated that money could be found elsewhere to make up for the loss of federal funds. Dean Pamela B. Gann of Duke Law School published an op-ed piece in the _National Law Journal_, explaining why Duke had capitulated and calling for a change in federal policies. Proponents of an anti-gay ballot measure intended to repeal the recently passed gay rights law in Maine achieved enough signatures to put their measure on the ballot sometime next year, according to state officials, but gay rights advocates are not taking the challenge lightly. After a marathon effort to detect irregularities in petitions, they filed suit in the Cumberland County Superior Court (_Remmel v. Gwadosky_) on Oct. 27, alleging that there were problems with enough signatures to disqualify the measure. Their main argument was that proponents began collecting signatures sooner than was authorized by state law, a point as to which they ran into disagreement with Dan Gwadosky, the named defendant who is Secretary of State of Maine. _Bangor Daily News_, Oct. 28. The _San Francisco Chronicle_ reported Oct. 8 that President Clinton would nominate James C. Hormel, an openly-gay San Francisco businessman and philanthropist, to be the U.S. Ambassador to Luxembourg. If confirmed by the Senate, Hormel would be the first openly-gay U.S. citizen of ambassadorial rank. Hormel had previously been considered for appointment as Ambassador to Fiji, but the nomination was never made, reportedly due to concerns about the existence of a sodomy law in Fiji. Hormel's nomination is subject to approval by a Senate committee chaired by Jesse Helms (R.-N.C.), the leading homophobe of the Senate. However, Hormel had previously been approved by the same committee (and the Senate) as an alternate representative on the United States's U.N. delegation, so signs for the nomination are hopeful. Hormel has been a major financial donor to the Democratic Party and a leader of the gay community in San Francisco, where his donation helped to establish a research center on gay issues at the public library. A lawyer in Maine who wanted to wear a "No on 1 - Maine Won't Discriminate" button in a state courtroom didn't have a 1st Amendment leg to stand on, according to the U.S. Court of Appeals for the 1st Circuit's ruling in _Berner v. Delahanty_, 1997 WL 659012 (Oct. 28). The button referred to a pending ballot measure that would have barred the state or its subdivisions from passing gay rights measures. Attorney Seth Berner, wearing his button, showed up for an appearance in the Superior Court and was summoned before the judge, who asked him to remove the button. When Berner inquired about his right to free speech, Judge Delahanty said: "Not in the courtroom. We don't take sides. . . the courtroom is not a political forum." Berner removed the button under protest, and then filed suit in federal district court against the judge. Circuit Judge Selya wrote for a unanimous panel that the trial court could require counsel to refrain from wearing political buttons in the courtroom in order to preserve the neutrality and decorum of the court. He rejected Berner's argument that there was content-based viewpoint discrimination going on, Berner noting that the judge did not require lawyers to remove religious symbols, such as crucifixes. The _Washington Blade_ reported Oct. 3 that President Clinton has appointed openly-gay M. John Berry to be Assistant Secretary of the Interior for Policy, Management & Budget, a position requiring Senate confirmation. In addition, Clinton has appointed Karen Tramontano to a position in the White House as deputy assistant to the president and counsel to the office of Chief of Staff, positions not requiring Senate confirmation. The _Blade_ reported Oct. 17 that Clinton has appointed gay businessman Fred Hochberg to be deputy administrator of the U.S. Small Business Administration. Hochberg is co-chair of the board of Human Rights Campaign. The ACLU filed suit in federal district court in Salt Lake City, Utah, on Oct. 21 on behalf of Wendy Weaver, a public school teacher who was threatened with discharge if she made any statements to students, staff members or parents of students "regarding your homosexual orientation or lifestyle." Weaver was instructed to respond to all questions by stating that "the subject is private and personal and inappropriate to discuss with them." The ACLU is claiming a violation of Weaver's rights to freedom of speech, privacy and equal protection. _Weaver v. Nebo School District_. The Massachusetts Commission Against Discrimination ordered a transit company to pay $30,000 damages to a lesbian for emotional distress she suffered when a bus driver lectured her about her affectionate conduct toward her girlfriend while riding the bus. Joane Rome claimed that she was discriminated against, because a heterosexual couple who were also "making out" in the back of the bus were not similarly treated by the driver. The Pioneer Valley Transit Authority announced it would appeal this ruling to the state courts. _Boston Herald_, Oct. 14. A jury in Medford, Oregon, voted to impose the death penalty on Robert Acremant for the murder of Roxanne Ellis and Michelle Abdill, a lesbian couple. Acremant had abducted the two women, seeking to force them to write him $50,000 checks on their business accounts. When they refused, he bound and gagged them in the back of a pickup truck and shot them to death. Later confessing the murder, he said he found it easier to kill the women because he knew they were lesbians. _Los Angeles Times_, Oct. 29. Franklin Township, N.J., Patrolman Gary Karwoski filed suit Oct. 27 in N.J. Superior Court in Somerville, claiming he has suffered unlawful workplace harassment on account of his sexual orientation. The police department maintains a non-discrimination policy that includes sexual orientation, which is also covered by a state law. The police chief told the local newspapers that he was unaware of any harassment against Karwoski. _Newark Star-Ledger_, Oct. 28. A mediation panel in Wayne County, Michigan, has recommended that Deborah Whyman, a Republican state representative, make an unspecified damage payment to the Triangle Foundation, a Detroit gay rights group, for having defamed Triangle in her campaign literature. Whyman's campaign flyers pointed out that her Democratic opponent had received contributions from Triangle members, and thus endorsed "pedophiles" and "homosexual extremists." Triangle has threatened to sue Whyman over her defamatory comments; she has characterized Triangle's legal action as "frivolous." _Detroit News_, Oct. 29. The _Washington Blade_ reported Oct. 10 that San Francisco Municipal Court Judge Charlene Padovani Mitchell has sentenced a gay man to a one-year suspended prison sentence and three years probation as a result of an incident where the man made anti-gay threats to another gay man. (Is this a new twist on the proverbial man bites dog story?) Anyway, Scott Sprout, the victim, testified that James Hall approached him in a public park and yelled, "I want you out of the park, you fucking faggot. I hate all you fucking faggots. You're all a bunch of child molesters. I have a knife and I'm going to cut you up." The judge suspended the prison system due to "mitigating factors," including Hall's self-hatred and substance abuse problems. Hall was ordered to undergo treatment at a residential substance abuse facility. A _Law Notes_ reader in Vermont informs us, in light of the Massachusetts Supreme Judicial Court's ruling in _Adoption of Galen_, 680 N.E.2d 70 (Mass. 1997)(probate court has discretion to waive homestudy in second-parent adoption case), that several probate courts in Vermont have been waiving both the home study and the six-month waiting period normally required in adoption cases where a same-sex co-parent is petitioning to adopt a child with whom he or she has already been living as the domestic partner of the child's natural/legal parent. A federal court jury in San Francisco has awarded $415,000 in damages to a former Oakland park ranger who claimed he was subjected to unlawful sexual harassment by his male supervisor. Both men claim to be heterosexual. _Kelly v. City of Oakland_, No. C95-969 (N.D.Cal., September 5). According to a report about the case in BNA's _Daily Labor Report_ No. 188 ((9/29/97), Kelly's suit claimed violations of Title VII, 42 U.S.C. sec. 1983, and the California Fair Employment & Housing Code's ban on sex discrimination. The damage award will not become final until the court rules on post-trial motions, including Kelly's motion for attorney fees. Maine Attorney General Andrew Ketterer filed suit in Penobscot County Superior Court on Oct. 28 against Casey Belanger, a University of Maine sophomore who posted an e-mail message threatening violence against gays and lesbians on the UM campus. _Bangor Daily News_, Oct. 29 & 30. Ketterer charged that Belanger violated the state's hate crimes law, and is seeking an injunction to prevent Belanger from continuing to post such notices and to require the University to restrict his access to the network. According to the complaint, Belanger posted a message this fall stating that he "disliked fags." Another student then posted a message asking "Who does this kid think he is?" This brought a rejoinder from Belanger, directed to the other student but posted to several bulletin boards, that he should "die, screaming [name of student], burn in eternal [expletive] hell," and a threat that "you better watch your [expletive] back you little [expletive], I'm gonna shoot you in the back of the [expletive] head if I ever see your [expletive]." (Sorry for the deletions, folks; the _Bangor Daily News_ is a family paper. . .). The University has suspended Belanger's access to the main computer network at the school, and ordered him to serve 30 hours of community service over two semesters. The City Council in Lewisville, Texas, voted 4-1 on Oct. 6 to reject a request from some citizens to remove the gay-oriented magazine, _Out_, from the public library. At the same time, the Council also requested the library to create a separate periodicals section geared toward young adults. Some of those objecting to the display of _Out_ in the periodicals section noted that it was adjacent to magazines of interest to teenagers. The Council heard testimony that its discretion to act is limited by the First Amendment. _Dallas Morning News_, Oct. 6. An ecclesiastical appeals court of the Presbyterian Church (USA) has refused to expel an elder of the church who is gay, despite the church's official stand against the ordination of openly gay persons. _Cincinnati Enquirer_, Oct. 28. A church member had filed a complaint about the man's ordination, indicating that the elder had made admissions that he was gay in a small group, and that the church directory listed him as living with another man. A local church court ruled that his ordination should be nullified, but a regional court disagreed, finding that the elder had not publicly declared his sexual orientation. A.S.L. Federal Appeals Judge Blasts Military Policy at Lambda Legal Defense Fund Event U.S. Court of Appeals for the 9th Circuit Judge William Norris, scheduled to retire shortly, accepted Lambda Legal Defense & Education Fund's Liberty Award at a ceremony in Los Angeles on Oct. 16 with a speech blasting the "don't ask, don't tell" military policy and the Supreme Court's _Bowers v. Hardwick_ decision. _Los Angeles Times_, Oct. 17. Norris, who authored a decision for a 3- judge panel of the 9th Circuit finding the prior anti-gay military policy to be unconstitutional, called on President Clinton to "admit his mistake of judgment" and renounce the current policy, which Norris characterized as "wrong" and "evil." Norris also described the policy as "highly suspect" in terms of its constitutionality. As to _Bowers_, Norris described the late Chief Justice Warren Burger's concurring opinion in that case as "surely one of the most gratuitous and vicious opinions ever written by a federal judge," and said that both _Bowers_ and the current military policy will someday be part of the "national cemetery of shame," along with older decisions upholding slavery, racial segregation, and the mass incarceration of Japanese-Americans during World War II. Too bad he's retiring. Of course, after accepting this award and making this speech, Norris would probably have had to recuse himself from sitting on any future case challenging the military policy or in which Lambda appeared as a litigant. . . A.S.L. Insurance Victory For Same-Sex Partners in Canada A Canadian court has awarded a spousal death benefit to a surviving lesbian partner. _Kane v. Ontario_, 1997 O.J. No. 3979, No. RE 6451/96 (Ontario Court of Justice (General Division), Oct. 1). Seeking to reduce vehicle accident litigation, Ontario legislated no-fault insurance including a $25,000 death benefit payable to a surviving spouse. The term "spouse" was defined as "either of a man and a woman" who are (or believe they are) married, or have cohabited for three years (less if they have a child). Plaintiff Kelly Kane sued the Attorney General for Ontario, claiming the statute violated Section 15 of the Charter of Rights, and sued insurer Axa for the benefit. The Attorney General claimed the restriction favored opposite-sex couples to provide for children. Judge Coo disagreed, noting that same-sex couples can have children and, besides, the three-year cohabitation period applied only to couples without children: "Exclusion of same-sex relationships adds nothing meaningful to the scheme, except discrimination based on sexual orientation." Ruling that the restriction violated Section 15, Judge Coo wrote forcefully: "The denial of equal benefit contained in the legislative provisions is deliberately based only on sexual orientation and runs against the preservation of human dignity and self-worth for part of our society." Axa did not object, but argued that, since it based premiums on the statutory policy, it should not have to pay benefits beyond those in the statute. Judge Coo rejected this position because it would "sanction by rote past unconstitutional action on the part of the legislature;" Axa could seek a premium rating in another forum. O.R.D. Legal Foundation Announces Second Round of Henry Internships The Lesbian & Gay Law Association of Greater New York is accepting applications for its second annual judicial internship, which is awarded in memory of Hank Henry, a LeGaL member who played a key role in placing openly lesbian and gay lawyers on the bench in New York City. The 10-week summer internship carries a stipend of $3,000; the student intern is placed in the chambers of a New York city judge as home base, and also spends times in the chambers of other participating judges over the course of the summer. For details on the required contents of the application, contact the LeGaL Foundation, 799 Broadway, Suite 340, New York NY 10003 (212- 353-9118; . Applications are due by February 16, 1998; final selection of the intern will be announced by March 16, 1998. European Legal Developments European Convention on Human Rights: On Oct. 7, the European Commission of Human Rights in Strasbourg made public its long awaited Report in _Sutherland v. United Kingdom_ (Application No. 25186/94). In the Report (adopted on July 1 and available at http://www.dhcommhr.coe.fr), the Commission states its Opinion (by 14 votes to 4) that the unequal age of consent to male-male sexual activity in the U.K. (18 vs. the male-female or female-female age of 16 in Great Britain and 17 in Northern Ireland) violates Article 8 (respect for private life) taken in conjunction with Article 14 (discrimination). This is the first time that the Commission has extended the protection of the Convention beyond blanket criminalization of all same-sex sexual activity (held to be a violation of the Convention in 1980), and the first time that the Commission has found "discrimination" in a lesbian or gay case. _Sutherland_ reverses a line of seven or more Commission decisions upholding unequal ages of consent that stretches from 1975 to 1995. And it rejects the position, often adopted by European legislatures in the past, that even though same-sex sexual activity is legal, it must be stigmatized and discouraged by imposing a higher age of consent. The U.K. Government had argued (i) that "certain young men between the ages of 16 and 18 do not have a settled sexual orientation" and that criminal sanctions "have a deterrent effect and give the individual time to make up his mind," and (ii) that "society is entitled to indicate its disapproval of homosexual conduct and its preference that children follow a heterosexual way of life." The Commission dismissed both justifications. "[C]urrent medical opinion [especially a 1994 report of the British Medical Association] is . . . that sexual orientation is fixed in both sexes by the age of 16 and that men 16-21 are not in need of special protection because of the risk of their being `recruited' into homosexuality." Nor is expression of social disapproval a justification for unequal treatment in the criminal law, because "`decriminalization' does not imply approval." A key factor was the Commission's finding that "the great majority of Member States of the Council of Europe" now have equal ages of consent. Although the Commission has referred the case (brought by Euan Sutherland when he was 17) to the European Court of Human Rights, a settlement between Stonewall (the lesbian and gay lobbying group backing the case) and the U.K. Government is likely to lead within the next year to a free vote in Parliament, which is expected to result in a large majority in favour of an equal age of consent. The case would then be struck out of the Court's list. European Community Law: On Sept. 30, Advocate General Elmer of the European Court of Justice in Luxembourg delivered his Opinion in _Grant v. South-West Trains Ltd._ (Case C-249/96) (see 1997 LGLN 48, 148) (for a copy of the Opinion, fax the Court's Press and Information Division at 352-43-03-25-00). He agreed that Lisa Grant had suffered sex discrimination and proposed that the Court reply to the questions referred by the English industrial tribunal as follows: "(1) A provision in an employer's pay regulations under which the employee is granted a pay benefit in the form of travel concessions for a cohabitee [domestic partner] of the opposite gender to the employee, but refused such concessions for a cohabitee of the same gender as the employee, constitutes discrimination on the basis of gender, which is contrary to Article 119 of the EC Treaty. (2) Such discrimination on the basis of gender cannot be justified by reference to the fact that the employer's intention is to confer benefits on heterosexual couples as opposed to homosexual couples. (3) Article 119 of the EC Treaty is directly applicable [can be invoked by an individual in a national court against a public sector or private sector employer] and it is for the national courts to ensure that the disadvantaged group of employees is treated in the same way as the favoured group." In reaching these conclusions, he suggested that an employment benefit restricted to married partners of employees would not violate Article 119, "because it would be by reference to a family law concept, the content of which is laid down by the Member States." But the rules of South-West Trains did not refer to "a concept which in English law confers a family law status." The expression "common law spouse" has no legal significance in statute law or common law in England. He also rejected a "morality" justification for the sex discrimination: "[t]he delimitation of the scope of Article 119 must be kept free of conceptions of morality which may vary from Member State to Member State and change with time." "[I]t is not [the Court's] task to watch over questions of morality either in the individual Member States or in the Community . . . [Any choice] between various views of morality . . . must be a task for the Community's political institutions . . . There is nothing in . . . the EC Treaty to indicate that the . . . the right not to be discriminated against on the basis of gender, should not apply to . . . the approximately 35 million citizens of the Community, depending on the method of calculation used, who are homosexual." The Advocate General's Opinion is not binding on the Court, although the oft-cited statistic is that the Court follows it about 80% of the time. The Court will probably deliver its Judgment early in 1998. If the Court were to agree with the Advocate General, it would probably mean not only that public and private sector employers in the EC who provide benefits to their employees' unmarried opposite-sex partners would have to extend them to their employees' unmarried same-sex partners, but also that employers could not discriminate on the basis of sexual orientation with regard to hiring, promotion or dismissal. The issue in _The Queen ex parte: Terence Perkins v. Secretary of State for Defence_, (Case C-168/97) (see 1997 LGLN 48, 148), would then become whether the sex discrimination against gay, lesbian and bisexual employees dismissed by the U.K. armed forces can be justified, or whether the armed forces have a blanket exemption from EC sex discrimination law under Article 224 of the EC Treaty. United Kingdom Law: On Oct. 10, Immigration Minister Mike O'Brien announced that the unmarried (same-sex or opposite-sex) partners of permanent residents of the U.K. (or persons who are in a category leading to permanent residence or have been granted asylum) will be permitted to stay in the U.K. if: (1) any previous marriage or similar relationship by either partner has permanently broken down; (2) they are legally unable to marry (other than by reason of a consanguineous relationship or age); (3) they have been living together in a stable relationship which has subsisted for four years or more, and they intend to continue to do so permanently; and (4) they can maintain and accommodate themselves adequately without recourse to public funds. Although the four-year qualifying period is very strict (especially compared with the treatment of married opposite-sex partners), and could create problems for many binational same-sex couples, the new policy (a "concession outside the Immigration Rules") is a big step forward. Luxembourg Law: The new Law of 19 July 1997 (published in Memorial, Journal Officiel du Grand-Duche de Luxembourg, Recueil de Legislation, A-No. 54, 7 Aug. 1997, pp. 1679-1682) adds Articles 454-457 to the Penal Code, which prohibit discrimination based on sexual orientation (and other grounds) in relation to employment and the provision of goods and services. Article 457-1 also prohibits the incitement of discrimination, hatred or violence based on sexual orientation (and other grounds). The Luxembourg legislation means that the majority (8 of 15) of the member states of the European Union now have national laws expressly prohibiting discrimination based on sexual orientation (or a similar ground) in relation to some aspect of employment or the provision of goods and services: Denmark, Finland, France, Ireland, Luxembourg, the Netherlands, Spain and Sweden. No such legislation exists as yet in Austria, Belgium, Germany, Greece, Italy, Portugal and the U.K. A Judgment of the European Court of Justice in favour of Lisa Grant (see above) would probably require all 15 member states to interpret their existing legislation against sex discrimination in employment as covering sexual orientation cases, or to amend it so that it covers such cases. R.W. Other International Notes: Bishops of the Lutheran Church in Denmark have unanimously approved the performance of same-sex marriages during church ceremonies, according to an Oct. 29 Associated Press report. When Denmark adopted its registered partnership law, it specifically provided that partners would not necessarily be entitled to church ceremonies, and the Danish clergy have been deeply divided over the issue since 1989. Under the new vote, separate marriage ceremonies in church would not be available for same-sex couples, but they could obtain a "sealing" of their marriage during a regular church service. We reported last month on a decision by the Israel Supreme Court ordering the education ministry to allow the broadcast of a program on lesbian and gay youth. We attributed the litigation to the Association for Civil Rights in Israel (ACRI), based on a report in the _Jerusalem Post_. We are informed by an ACRI attorney that the petition in the case was jointly filed by three organizations, each represented by counsel: K.L.A.F., the organization of the lesbian- feminist community in Israel; the Society for the Protection of Personal Rights, the lesbian/gay communities main civil rights organization; and ACRI. A.S.L. Professional Notes: In its newslettter for the 4th quarter of 1997, Gay & Lesbian Attorneys of Washington (GAYLAW) noted the death of Jerry Roemer, 32, a longtime GAYLAW member and community activist, from AIDS. Roemer, an attorney at the U.S. Department of Justice, had achieved substantial local media attention when his reaction to protease inhibitors so improved his health in the short term that he terminated his disability retirement and returned to work at the Justice Department. However, after a few months at work his health declined again and he died on Aug. 15. Attorney General Janet Reno participated in a memorial service in his honor on Sept. 13. GAYLAW, the lesbian and gay lawyers association in the nation's capital, will present its 5th Annual Awards on Dec. 5 at its annual holiday party. Recipients will be: William Weld, former Governor of Massachusetts (Distinguished National Service Award); Michael Hicks, DC Bar Board of Governors Member (Ally for Justice Award); Gigi Sohn, out-going GAYLAW President (Distinguished Community Service Award). David Schwacke, the local prosecutor in Charleston, South Carolina, has been forced "out of the closet" by zealous employees who, suspecting that he might be gay, went into his office after hours and found gay-related material from the Internet on his computer terminal, which they turned over to local Republican party leaders. Schwacke is a conservative Republican who is now serving his second term in the elective office. Rumors about Schwacke's sexual orientation got started after he divorced his wife. The party officials submitted the material to the state Attorney General, who has launched an investigation into whether Schwacke was misusing his office computer to cruise the Internet for sex or obtain pornographic materials. Schwacke, who then "came out" to the local media, insisted he had done nothing wrong, and said he had "discovered" his homosexuality after years of marriage. At present, Schwacke counts as the only openly-gay elected official in South Carolina. _N.Y. Times_, Oct. 26. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS 8th Circuit Reverses Jury Verdict in "Perceived HIV/AIDS" Lawsuit The U.S. Court of Appeals for the 8th Circuit reversed a jury verdict in favor of an employee who alleged dismissal due to perceived HIV/AIDS status. _Roberts v. Unidynamics Corporation_, 1997 WL 610264 (Oct. 6). In holding for the employer and the union, the court found that the jury at the District Court level erroneously determined that the defendants had discriminated against the employee, Roberts, due to perceived HIV/AIDS status, and that the District Court should have ruled in favor of the defendants on their motions for judgment notwithstanding the verdict (a court ruling in favor of the losing party on the basis that the evidence simply does not rationally support the jury's verdict). This suit arose out of a stormy relationship that Roberts had with his supervisor at Unidynamics (a company doing business as Crane). While an employee at Crane, Roberts was diagnosed with Graves disease, "a disorder of the thyroid of unknown but probably autoimmune etiology." While there is no documentation that Roberts' illness interfered with his work, his changed physical condition had been observed by his co-workers. A few months after his disclosed diagnosis, Roberts began having problems with his supervisor. On one occasion his supervisor, Blake, reprimanded Roberts for having written a note, on his break to a co-worker, that Blake perceived as childish. About a month later, Roberts and Blake had several more run-ins over Roberts' refusal to pick up a spool Blake had asked him to pick up. These incidents led to Roberts' suspension for insubordination, for which Roberts filed a grievance. Roberts was represented at the grievance meeting by the union, which recommended that Roberts apologize and ask for his job back. In spit of this, Roberts ended up being terminated and the union declined to process Roberts' grievance for lack of merit. Roberts then filed a complaint with the EEOC alleging discrimination by Crane and the union due to handicap or perceived handicap. The EEOC informed Roberts of his right to sue, and he filed suit under the ADA against the union and Crane for discrimination. The jury at the District Court level found in favor of Roberts and the District Court denied the defendants' motions for judgment as a matter of law or a new trial. On appeal the court agreed with Crane that the evidence was insufficient to support the jury's finding that Crane regarded Roberts as having HIV or AIDS. It further agreed with Crane that there was no substantial evidence that Roberts' co-workers regarded him as having AIDS or HIV. It went on to find that the jury's inference that the rumors of Roberts' HIV status reached Crane's decisionmakers was unreasonable. Further, while Roberts asserted that Blake had told him prior to his dismissal that he was a liability to the company and should look for a new job, the court found that such an assertion still failed to show that Blake knew Roberts' HIV status. Finally, the court noted that Roberts submitted no sufficient evidence that Crane knew he was HIV-positive, and even if he had, he failed to show that he was dismissed for that reason. As the court agreed with Crane that Roberts was terminated only on his failure to follow orders, it ruled that the District Court should have granted Crane's motion for judgment as a matter of law. In regard to the union, the Court found on virtually the same grounds that the jury incorrectly inferred that the union discriminated against Roberts because it perceived him to be HIV+. It noted that Roberts simply failed to introduce sufficient evidence that decisionmakers in the union had such knowledge, and failing that it must reverse the District Court and rule in favor of the union for judgment notwithstanding the verdict. P.T. 6th Circuit Reverses Verdict on Prison Mistreatment of HIV+ Inmate The lessons of _Jefferson County v. Lindsay, Executor_, 1997 WL 6027532 (U.S.Ct.App., 6th Cir., Sept. 19), an unpublished decision, have much to do with the fine points of how to take a judgment and a fair bit to do with the liability of a governmental agency for violations of civil rights by its employees. The Appellee's decedent, Pedro Sosa, had been arrested outside a Louisville, Ky., bar by the Jefferson County police on the afternoon of Sept. 1, 1994, after an altercation. At 6:30 PM, after he had gotten into an argument with the police at the jail, he was stripped of his pants, shoes and socks by three officers, and placed in solitary confinement in a cell without a toilet. (The police chief testified that homosexuals were customarily placed in solitary confinement "for their own protection.") Sosa, who was HIV+, had persistent diarrhea and needed to relieve himself after some time. He tried to alert the jailers by resorting to the "accepted prisoner practice of repeatedly beating upon the door of his cell." The jailers responded, by about 9:15 PM, by shackling him with his hands behind his back to a bench in a cell with a toilet, but outside the reach of the toilet. Eventually, he relieved himself in his undergarments. At 1:30 AM, he was taken to the showers, where he was beaten by three other officers after he was instructed to disrobe. After he was released on his own recognizance the following morning, friends noticed burn marks around his wrists and ankles, and a rash on his buttocks. The rash persisted for several weeks. Sosa died some time subsequently from complications of AIDS. Sosa sued Jefferson County, its police department, and the seven officers who subjected him to the strip search and beatings in violation of his rights under the fourth, eighth, ninth and fourteenth amendments to the U.S. Constitution in federal court. After a jury trial, and after observation that answers to specific jury interrogatories were inconclusive as to the issue of violation of his eighth amendment rights, Sosa moved for a mistrial, which was eventually granted. At the conclusion of the second trial, the jury voted unanimously that the director of the jail and the officers who had first beaten Sosa were not liable for violating Sosa's civil rights. The remaining defendants--the county, the department and the three officers who had beaten Sosa in the shower--were adjudged liable for $500,000 against the county, $500,000 against the Department, and $10,000 actual and $50,000 punitive damages against each against the three officers. After motions to remit damages against the county and the department were denied, all non-prevailing defendants appealed, arguing that jury instructions were erroneous, and that motions for judgment notwithstanding the verdict should have been granted, inter alia, because Sosa failed to prove that either or both defendants had a policy that disregarded rights of homosexuals. While the challenge to the jury instructions was denied, the court reversed the judgments against the county and the police department, because Sosa's evidence "did not adequately present a direct causal link between the local government entities' purported custom of tolerating inmate abuse and disrespect for homosexuals" by the officers in question and the particular injuries suffered by Sosa. Because the appellate court could not determine if the judgments against the officers were in their official or personal capacities, and because counsel for neither side could clarify the issue, the matter was remanded to the trial court for clarification. S.K. N.J. Appellate Division Broadens Availability of Lawsuits Based on Pre-1985 Transfusions of HIV To add to the myriad of cases dealing with HIV transmission through blood transfusions, the New Jersey Appellate Division, held on July 28 that a blood bank had no duty in January 1982 to implement high risk screening procedures to test for potentially HIV-infected donors. _Doe v. The Greater New York Blood Program_, 1997 WL 606495. However, the court remanded the matter for further discovery on whether existing screening standards in place in 1982 for other bloodborne diseases were adhered to by the Greater New York Blood Program ("Blood Bank") and for a determination of whether Blood Bank breached a duty owed to the plaintiff if Blood Bank failed to abide by existing screening standards for other blood transfusible diseases and, as a result, failed to exclude a donor of blood tainted with HIV. On February 2, 1982, the plaintiff, who at the time was a little over one year old, underwent a transfusion of red blood cells that had been collected by Blood Bank on January 25, 1982. In August 1989, the same donor gave blood again and the screening test revealed that the donor was HIV-positive. Through a lookback program, the plaintiff was notified that she may have received HIV- tainted blood and subsequently learned that she was, in fact, HIV+. Plaintiff's experts relied on a 1975 article entitled "On the Role of Sexual Behavior in the Spread of Hepatitis B Infection," which advised that due to the high risk of gonorrhea, syphilis and hepatitis B in homosexuals, they should be advised to refrain from blood donations. Plaintiff's experts further relied on a report of the Centers for Disease Control, circulated prior to January 1982, which alerted the medical community that there were patients, all of whom were homosexual, with severe immunosuppression that resulted in pneumonia, and that there was an association between the homosexual lifestyle and the disease acquired through sexual contact. Based on these reports, the plaintiff argued that Blood Bank had a duty in 1982, which it breached, to screen homosexual donors who were at high risk to transmit this "gay phenomenon." Defendant's expert testified that little was known about AIDS in 1982 and that no blood bank in the world was excluding blood collected from homosexual men in January 1982. Defendant's expert testified that it was not until December 1982 that the first case of AIDS transmission by transfusion was reported, and based on that, it would be wrong to impose a duty on blood banks to screen for AIDS infection prior to that time. Both the Appellate Division and the Superior Court agreed with Blood Bank's expert, finding that the Blood Bank had no duty in January 1982 to implement testing and high risk screening procedures to exclude potentially HIV+ donors, in light of the state of medical information known about HIV at the time. However, the Appellate Division agreed with the plaintiff that her complaint encompassed more than a challenge based on a breach of a specific duty to test for AIDS. The court held that if the Blood Bank failed to abide by screening standards existing in January 1982, including screening for communicable diseases other than AIDS, as a result of which this donated blood was not excluded, it breached a duty to plaintiff. "The fact that the ultimate harm which came to plaintiff was AIDS and not the exact disease for which the screening should have been done is of no consequence." In other words, if there had been any medically acceptable reason to exclude this donor's blood, based on 1982 standards, but for Blood Bank's failure to exclude the blood plaintiff would not have been infected with HIV. The court remanded the matter for further discovery, including but not limited to the actual laboratory tests performed on the donor's blood and the results thereof. This case appears to broaden the ability of HIV+ individuals infected by transfusions prior to 1985 to bring actions against blood banks for their failure to properly adhere to then-existing standards for blood screening. But for the blood banks' failure to screen for known diseases, many individuals would not have been infected with HIV. T.V.L. Florida Federal Court Finds Asymptomatic HIV-Infection Covered Under ADA The defendant was not entitled to summary judgment on the plaintiff's claim of disability discrimination based on his asymptomatic HIV+ status, ruled U.S. District Judge Kovachevich, in _Hernandez v. Prudential Ins. Co._, 1997 W.L. 619224 (M.D. Fla., Sept. 22). Steve Hernandez was a customer service representative for Prudential. After learning he was HIV+, he informed a supervisor of his HIV status and subsequently requested different work hours, time off for medical appointments, less stressful assignments and a lateral transfer. Some of his requests were accommodated; others not. After a bad evaluation, Hernandez quit and later filed suit alleging disability discrimination in violation of the Americans With Disabilities Act and the Florida Civil Rights Act. Prudential sought summary judgment on the ground that Hernandez had not shown he was disabled, that he had not properly notified supervisors of his disability and that the facts did not amount to a constructive discharge claim. The court denied summary judgment. Hernandez met the ADA's definition of disability by showing that he was HIV+, a condition which, while not a per se disability, is a "fatal disease" from which "no one has ever recovered," and that his HIV infection therefore substantially impaired his major life activities. In addition, the court reasoned, Hernandez's ability to have children is a major life activity which is substantially limited by his HIV infection. Here the court is surprisingly open-minded, rejecting the defendant's argument that the plaintiff's homosexuality precluded him from procreation. Plaintiff also showed a substantial limit on another major life activity: his ability to care for himself. The court also held that there were disputed issues of fact concerning Hernandez's notification to Prudential of his disability, rejecting Prudential's argument that Hernandez had not informed the appropriate supervisors of his HIV status. Finally, the court declined to grant summary judgment on Hernandez's constructive discharge claim, which alleged that the stress of the working environment had forced Hernandez to quit. There was sufficient evidence for a trier of fact to find that Prudential had willfully created working conditions so unbearable that a reasonable person in the Plaintiff's shoes would be compelled to resign, according to the court. D.W. Federal Court in NYC Holds Asymptomatic HIV Infection Covered Under Rehabilitation Act U.S. District Judge Leisure (S.D.N.Y.) held in _Rivera v. Heyman_, 1997 WL 620837 (Oct. 7), that an HIV+ asymptomatic person is "disabled" under the Rehabilitation Act of 1973, 29 U.S.C. sec. 701 et. seq., but, in a ruling of first impression, that the Rehabilitation Act does not cover employees of quasi-executive governmental bodies, such as the Smithsonian Institution. In an action brought by Amador Rivera seeking relief for employment- related disability and ethnic discrimination under the Rehabilitation Act, Title VII of the Civil Rights Act of 1964, , the N.Y. Human Rights Law (Exec. Law, sec. 296), the N.Y.C. Human Rights Law (Admin. Code, sec. 8-107), and for invasion of privacy under the Federal Tort Claims Act (26 U.S.C. secs. 1346, 2671- 2680), the court granted judgment on the pleadings to the employer defendants. Rivera, an Assistant Chief of Security at the Cooper-Hewitt Museum in New York, a Smithsonian facility, revealed he was HIV+ to Luis A. Palau, Smithsonian's New York Chief of Security, and later to Edward G. Dolan, his immediate supervisor, and requested a reduced schedule to accommodate his condition. Up to that time, Rivera was a highly regarded employee with favorable evaluations throughout his career, the last of which was a "highly successful" rating, the second highest in Smithsonian's rating hierarchy. According to Rivera's allegation, Paula immediately changed the way he and others treated Rivera, refusing to accommodate his work needs, forcing him to use accrued compensatory time, waging a campaign of harassment, monitoring Rivera's breaks, never allowing Rivera two consecutive days off, deliberately scheduling Rivera to work on the only days his doctor was available, appearing incredulous when Rivera took a sick day and saying that Rivera was taking long weekends, scrutinizing Rivera's work, singling Rivera out for criticism, and insulting Rivera by calling him "useless." He also uttered ethnic slurs, saying that Rivera, who wore multi- cultural attire, was "not Puerto Rican," "thought he was a Muslim," and "dressed like a Palestinian." Both Palau and Dolan refused Rivera's many requests to transfer to another Smithsonian facility in Manhattan, transferring him instead to a remote Bronx location which required him to go outside, worsening his condition; they precluded him from participating in training events, including one in another state for which he had obtained medical clearance; and they also revealed Rivera's condition to other employees. Rivera made several complaints to Smithsonian's Office of Equal Opportunity and Minority Affairs (OEMA), which finally led to a transfer to a requested facility. The applicable standard for determining whether a person is disabled under the Rehabilitation Act is that the person has or has a record of or is regarded as having "a physical or mental impairment which substantially limits one or more of a person's major life activities." "Physical impairment" is "any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine." (45 C.F.R. Sec. 84.3(j)(2)(I)(A)). "Major life activities" are functions "such as caring for ones self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." (45 C.F.R. secs. 84, 3(j)(2)(ii)). Judge Leisure held that being HIV+ is a physical impairment due to its manifestation in the blood. In determining whether HIV limits a major life activity, Leisure held that the statutory phrase "such as" is illustrative rather than exhaustive, and that the Rehabilitation Act is a remedial statute which, including regulations thereunder, must be interpreted broadly; that an HIV+ person is substantially limited from engaging in procreation and sexual contact activities, which Leisure held to constitute major life activities; and that accordingly an HIV+ positive person is disabled under the Act. Inquiring further whether Rivera has a "currently contagious disease or infection" and thus poses "a direct threat to the health and safety" of others and unable to perform required work duties, 29 U.S.C. sec. 706(8)(D), Leisure held that, since HIV is transmitted mostly through sexual contact, shared needles, and blood transfusions, none of which are relevant to his position as a security officer, Rivera "neither poses a threat to the health and safety of others nor is unable to perform the functions of his job," and that Rivera's continued employment with the Smithsonian demonstrates he can perform required tasks. Considering next whether Rivera's claim is covered under the Act, Leisure found that Sec. 501 (29 U.S.C. sec. 701) is the governing section. Sec. 501 applies only to claims relating to a "department, agency, and instrumentality. . . in the executive branch." Sec. 501 incorporates by reference Title VII, Sec. 717 (29 U.S.C. sec. 704a(a)(1)). Sec. 717 applies only to "executive agencies" which consist of "an Executive department, a Government corporation, and an independent establishment" of the executive branch (5 U.S.C. secs. 104, 105). The reference to the executive branch in the Rehabilitation Act is coextensive with the reference to executive agency in Title VII. The Smithsonian is neither an executive department nor a government corporation (5 U.S.C. secs. 101, 103), and thus, for Rivera to prevail, the Smithsonian must be an independent establishment within the executive branch. Leisure found that the Smithsonian, originally endowed privately and created by an Act of Congress, is headed by a Board of Regents composed of the Vice President, Chief Justice, 6 members of Congress, and 9 other citizens selected by joint Congressional resolution and receives 75% of its funding from Congressional appropriation, the rest from private sources. Rivera is a federal civil service employee. Looking at the Smithsonian's structure, in which, of the 17 Regents, 15 are from or appointed by Congress, Leisure ruled that the Smithsonian is not in the executive branch, mandating dismissal of the Rehabilitation Act claim. Expressing sympathy to Rivera's plight, Leisure pointed out that the solution for expanding coverage of Sec. 501 lay with Congress. Consequently, judgment was granted to the defendant on Rivera's Rehabilitation Act claim. Leisure also found that Rivera's Title VII claims (which do not relate to his HIV-status) were not meritorious. As to the state and city causes of action, Leisure found that sec. 717 of Title VII provides Rivera with "the exclusive judicial remedy" for claims of non-disability discrimination in federal employment against both the Smithsonian and the individual defendants, and similarly that the Rehabilitation Act, sec. 504, limiting sec. 501, provides the exclusive judicial remedy for disability-related claims. The FTCA invasion of privacy claim, incorporating New York Public Health Law, sec. 2784, was based on the disclosure by the individual defendants to third parties of Rivera's HIV status. As to that claim, Leisure held that Rivera failed to meet the federal Notice of Claim requirement (26 U.S.C. sec. 2675). Assuming arguendo that the OEMA complaint constituted a Notice of Claim, though not so denominated, Leisure found that it failed to mention any monetary value and particularly omitted a required recitation of a sum certain as damages, making the employer unable to properly estimate the worth of the claim. Since no federal claims remained, Leisure declined to exercise supplemental jurisdiction over the remaining state law claims against the individual defendants. A.J.L. Federal Court Upholds Condom Distribution in Philadelphia Schools Students at nine Philadelphia public high schools can continue receiving condoms and safer-sex counseling from social workers at school thanks to a recent ruling by U.S. District Court Judge Gawthrop. _Parents United for Better Schools, Inc. v. School District of Philadelphia Board of Education_, 1997 WL 587389 (E.D.Pa. Sept. 12). Judge Gawthrop granted the Board of Education's motion for summary judgment, finding that the condom distribution program was well within the Board's scope of authority, and violated neither state nor federal law. The pilot program at issue, Policy 123 on "Adolescent Sexuality," was adopted in 1991 by the Philadelphia School District Board of Education to address the problems of pregnancy and sexually- transmitted diseases among students. The program is funded by private and non-school district sources, including the Philadelphia Department of Health and federal grants. Only those students whose parents object in writing to their child's participation in the program are precluded from receiving condoms. Parents United ("PUBS") challenged the propriety of the program on several grounds, and sought to preclude schools from distributing condoms to all high school students - even those whose parents had not objected to the program. In granting the Board's motion for summary judgment, the court noted that the Board was empowered with broad express and implied statutory authority to implement health and hygiene services and education. Notwithstanding this authority, parents generally have the common-law right to consent to a minor child's medical treatment before such treatment is administered. The court ruled, however, that this right does not apply to condom distribution, since the use of condoms is preventative treatment and not medical treatment. In fact, Judge Gawthrop pointed out that any ruling requiring prior parental consent for all condom distributions to minors would go against recent Supreme Court cases striking down such requirements in other contexts, such as abortion. The court's ruling affirmed the right of minors to access condoms and other health services without prior parental consent, while simultaneously affirming a parent's right to deny his/her children access to such services by notifying school officials in writing. This balance recognizes the tension both between public and private spheres of influence, and also between the liberty interests of children and their parents. I.C.-T. Chicago School Board Capitulates in AIDS Discrimination Suit Lambda Legal Defense & Education Fund announced a settlement of its lawsuit against the Chicago Board of Education, challenging discrimination against teachers with HIV. _Doe v. Board of Education of the City of Chicago_, No. 97-C-2167 (N.D.Ill.). The John Doe plaintiff was required to submit to a medical exam and provide an extensive medical history, including HIV status, when he applied for a teaching position in the Chicago schools in 1995. Due to his HIV+ status, he was not interviewed, despite having a general teaching certificate, two advanced degrees, and teaching experience. The federal suit, which alleged violations of the Americans With Disabilities Act, the Rehabilitation Act, and federal constitutional rights, was brought jointly by Lambda's Midwestern Regional Office, where Heather C. Sawyer is the AIDS Project Staff Attorney, and Chicago attorney Cynthia H. Hyndman, a Lambda board member, acting as a co-operating attorney on this case. Under the settlement, Doe will be considered for a teaching position without regard to his HIV status. In addition, the Board of Education has agreed that it will not screen applicants for HIV, will cease all unnecessary medical screening of applicants, and will change its procedures for maintaining medical records to ensure confidentiality. A.S.L. AIDS Law & Society Notes: Responding to the ongoing debate about reporting of HIV status to public health officials, the U.S. Centers for Disease Control and Prevention has recommended that all states require reporting of HIV test results. However, the CDC has not yet called for name- reporting, although that appears like the next step on its agenda. Also responding to the ongoing debate, the American Civil Liberties Union issued a report in October titled "HIV Surveillance and Name Reporting: A Public Health Case for Protecting Civil Liberties." (Copies of the report are available from the ACLU's website ; copies can be purchased for $1 by calling the ACLU at 1-800-775-ACLU.) The report provides a systematic argument against the efficacy of name-reporting, advocates the use of "unique identifiers" to collect HIV-related data without compromising the privacy of individuals, and provides appendices with responses to common arguments for name reporting, a state-by- state list of name reporting systems, and an annotated bibliography of studies on anonymous and confidential HIV testing. The U.K.'s Public Health Laboratory Service reports that the number of diagnoses of AIDS in the United Kingdom fell by 30 percent over the past year, and the number of AIDS-related deaths fell by 35 percent. Officials attributed the drop to better treatments for HIV+ individuals, who have kept those individuals from progressing to full-blown AIDS. As a further sequel to the litigation of _Sullivan v. Delta Air Lines_, 1997 WL 663630 (Cal.App. Oct. 27), where the California Supreme Court has recently reversed an appellate ruling that emotional distress damages associated with employment discrimination against a person with AIDS could not be awarded after the death of the plaintiff, the court of appeal issued a new ruling granting judgment for the defendant on several other claims, not directly related to the HIV claims. Of most significance in this decision, as to which only portions were authorized for publication, is the court's ruling that a violation of a state law requiring employers to accommodate employees who need to enroll in alcohol or drug rehabilitation programs did not provide the basis for a tort action of discharge in violation of public policy, the court concluding that public policy claims could only be based on state laws that were enacted to vindicate a public interest, and that the instant law did not fall within that class. A.S.L. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: Altman, _Should Child Custody Rules Be Fair?_, 35 U. Louisville J. Fam. L. 325 (1996-97). Buchanan, G. Sidney, _Sexual Orientation Classifications and the Ravages of Bowers v. Hardwick_, 43 Wayne L. Rev. 11 (Fall 1996). Clapham, Maria M., and Delaney J. Kirk, _Defining "Sex" in Same-Sex Sexual Harassment: The Opinions of the Federal Courts_, 48 Lab. L. J. 535 (Sept. 1997)(reporting on survey of all published federal court same-sex harassment opinions since 1993; concluding that overwhelming trend is toward recognizing cause of action under Title VII for same-sex harassment). Eskridge, William N., Jr., _Challenging the apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, _Nomos_, and Citizenship, 1961-1981_, 25 Hofstra L. Rev. 817 (Spring 1997). Eskridge, William N., Jr., _Privacy Jurisprudence and the apartheid of the Closet, 1946-1961_, 24 Fla. St. U. L. Rev. 703 (Summer 1997). Freshman, Clark, _Privatizing Same-Sex "Marriage" Through Alternative Dispute Resolution: Community-Enhancing Versus Community-Enabling Mediation_, 44 UCLA L. Rev. 1687 (Aug. 1997). Hare, Ivan, _Legislating Against Hate -- The Legal Response to Bias Crimes_, 17 Oxford J. Leg. Stud. 415 (Autumn 1997). Harlow, Holly J., _Paternalism Without Paternity: Discrimination Against Single Women Seeking Artificial Insemination by Donor_, 6 S. Cal. Rev. L. & Women's Studies 173 (Fall 1996). Preston, Cheryl B., _Consuming Sexism: Pornography Suppression in the Larger Context of Commercial Images_, 31 Ga. L. Rev. 771 (Spring 1997). Roth, Marianne, _The Norwegian Act on Registered Partnership for Homosexual Couples_, 35 U. Louisville J. Fam. L. 467 (1996-97). Tucker, Kathryn L., _Surrogate End of Life Decisionmaking: The Importance of Providing Procedural Due Process, A Case Review_, 72 Wash. L. Rev. 859 (July 1997). Wintemute, Robert, _A "fundamental right to be gay" in the USA? Not yet_, 1997 Pub. L. (U.K.) 420 (Autumn). Wolfson, Evan, & Michael Melcher, _DOMA's House Divided: An Argument Against the Defense of Marriage Act_, 44 Fed. Lawyer No. 8, 30 (Sept. 1997). _Book Reviews_: Hills, Roderick M., Jr., Review of Koppelman, _Antidiscrimination Law and Social Equality_, 95 Mich. L. Rev. 1588 (May 1997). Koppelman, Andrew, Review of Wintemute, _Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter_, 95 Mich. L. Rev. 1636 (May 1997). Posner, Richard A., Review of Eskridge, _The Case for Same-Sex Marriage: From Sexual Library to Civilized Commitment_, 95 Mich. L. Rev. 1578 (May 1997) _Student Notes & Comments:_ Casenote, Romer v. Evans_, 116 S.Ct. 1620 (1996)_, 7 Seton Hall Const. L. J. 987 (Summer 1997). Comment, _Megan's Law: Protecting the Vulnerable or Unconstitutionally Punishing Sex Offenders?_, 7 Seton Hall Const. L.J. 913 (Summer 1997). Flynn, Katherine H., _Same-Sex Sexual Harassment: Sex, Gender, and the Definition of Sexual Harassment Under Title VII_, 13 Ga. St. U. L. Rev. 1099 (July 1997). Note, _The "Undifferentiating Libido": A Need for Federal Legislation to Prohibit Sexual Harassments by a Bisexual Sexual Harasser_, 14 Hofstra Lab. L. J. 601 (Spring 1997). Sanpietro, Daniel C., _"Gradually Triumphing Over Ignorance": Rhode Island's Treatment of Sexual Orientation Discrimination in the Workplace_, 30 Suffolk U. L. Rev. 439 (1997). _Symposia:_ _Physician-Assisted Suicide_, 19 Western New Eng. L. Rev. No. 2 (1997). * * * _Intellectual Freedom and Hate Speech_, 10 Academic Questions No. 3 (Summer 1997). _Specially Noted:_ In its Nov. 1997 issue, _Out_ magazine publishes an article by Liz Galst titled "Fair Game?" (pages 86-90, 150-152), providing a detailed look at the problem of discrimination against lesbian athletic coaches in higher education, with a particular focus on Ohio State University, where several coaches (all of whose teams had winning records unprecedented in the recent history of OSU) have alleged sex and sexual orientation discrimination as a result of their recent discharges. AIDS & RELATED LEGAL ISSUES: Madison, Melinda, _Tragic Life or Tragic Death: Mandatory Testing of Newborns for HIV -- Mothers' Rights Versus Children's Health_, 18 J. Legal Med. 361 (Sept. 1997). EDITOR'S NOTE All points of view expressed in Lesbian/Gay Law Notes are those of identified writers, and are not official positions of the Lesbian and Gay Law Association of Greater New York. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in Law Notes is welcome and will be published subject to editing. Please address correspondence to the Editor or send by e-mail. A.S.L.