LESBIAN/GAY LAW NOTES
ISSN 8755-9021     February 1998

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: Ian Chesir-Teran, Esq., New York City; Otis
R. Damslet, Esq., New York City; Leslie S. Deutsch, Esq., New York
City; Steven Kolodny, Esq., New York City; Todd V. Lamb, Esq., New
York City; Arthur J. Levy, Esq., Brooklyn, New York; Mark Major,
Esq., Long Island, New York; Seth M. Rosen, NY Law School Student,
New York City; K. Jacob Ruppert, Esq., Queens, New York; Daniel R
Schaffer, New York City; Paul Twarog, Esq., New York City; Dirk
Williams, Esq., Boston, Massachusetts; 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

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(C) 1998 by the LeGaL Foundation of the Lesbian & Gay Law
Association of Greater New York               
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MISSOURI APPEALS COURT REVERSES GROUND ON GAY PARENTS;
ADOPTS NEXUS TEST IN CONTESTED CUSTODY CASE

Potentially putting an end to more than two decades of gay-parent 
bashing in the Missouri state courts, a panel of the Western
District Court of Appeals ruled on January 20 that the courts
should no longer presume that it will not be in the best interest
of children to be in the custody of their gay parents.  _DeLong v.
DeLong_, 1998 WL 15536.   Instead, the court ruled that the burden
would be on the parent who opposes giving a gay parent custody to
show that the gay parent's homosexuality is having a harmful effect
on the child.

Beginning in 1980 and continuing through seven different decisions 
by various panels of the Missouri appellate courts, the courts of 
that state have consistently taken the position that it can never
be in the best interest of children to be raised by a gay parent,
and had even gone so far as to require that when gay parents
exercise  visitation rights, they have another non-gay adult with
them at all times.  The courts had rested their determinations on
the idea that exposure to a gay parent will endanger the moral
development of the child, or that the child would inevitably suffer
social disadvantage through being associated with a gay parent.
Now, an appellate panel of the state has rejected this approach for
the first time.

The turnabout came in the divorce case of Frederick and Janice 
DeLong.  They married in 1985.  At that time, Frederick was an 
attorney age 36 earning $80,000 a year, while Janice was a
beginning school teacher age 24 earning $13,000.  Before the
wedding, they signed an antenuptial agreement under which Janice
agreed to give up her career to stay home and take care of
Frederick's son from an earlier marriage and the children they
hoped to have together.  In the agreement, she also gave up her
right to claim marital property in the event of a divorce, limiting
her entitlement to whatever assets she brought to the marriage plus
a payment of $2,000 for each year of the marriage and a $10,000
payment upon signing the agreement.  Fred also required that Janice
undergo an evaluation by a psychologist to determine her
compatibility with married life.

During the first five years of the marriage, they had three
children, but by 1991 Janice had figured out that she was really
more interested in women and began a series of extramarital
affairs.  After the couple broke up, Fred also had an extramarital
affair.  Janice was careful to keep from her children any knowledge
about her lesbianism.

During the divorce proceeding, Fred sought sole custody of the 
children, and Boone County Circuit Court Judge Ronald M. Belt,
following the Missouri precedents, found that the children's best
interest would be served by placing them with Fred.  Citing
Janice's "promiscuous series of four homosexual affairs," the court
also restricted visitation, requiring Janice to "keep any and all
aspects of the homosexual lifestyle away from the minor children
during the children's periods of visitation with her."  In
addition, Belt ordered that the children not be exposed to any
known lesbians or "any other female, unrelated by blood or
marriage, with whom [she] may be living."  The court also 
ordered the guardian ad litem, appointed to represent the
children's interest, to supervise a "telling session" at which
Janice would tell the two older children about her sexual
orientation.  (This seems inconsistent with the visitation order,
but consistency isn't a strong suit of homophobic judges.)

The Court of Appeals decision, written by Presiding Judge Robert 
Ulrich, totally rejected this approach.  After reviewing the past 
history of gay parenting decisions in the Missouri appeals courts, 
Ulrich asserted: "To the extent that Missouri case law
automatically presumes that a homosexual parent is per se unfit to
be custodian of his or her child, it is not followed in this case."

Instead, the court explicitly adopted the "nexus test" 
that has been advanced by gay rights litigators: A parent's sexual
conduct, including homosexual conduct, is not to presumed to be a 
negative factor, and is only relevant if it can be shown to be 
harming the child.  

Furthermore, the court rejected the idea that parental homosexual
conduct can always be assumed to be harmful to the child. 
"Generalizations regarding the possible impact a parent's sexual
conduct outside the presence of a child may have on a child 
are impermissible," wrote Ulrich.  "Likewise, the disapproval of
morals or other personal characteristics, without evidence of how
the morals or characteristics adversely impact the child, should
not be used to determine the fitness of a parent to care for a
child."  Disclaiming any purpose to "condone" homosexuality, Ulrich
asserted that the sole purpose of the court in a custody case
should be to determine what placement will be in the child's best
interest.

Turning to this case, Ulrich noted that the trial court had focused
on the mother's homosexuality without making any real inquiry into 
how her sexual orientation actually affected (or didn't affect) her
children.  Thus, the lower court "misapplied the law" and the case
had to be remanded to the lower court for reconsideration of
custody and visitation.

Janice had also challenged the pre-marital property agreement.  
Two of the three judges on the panel agreed that the property 
agreement was unconscionably one-sided at the time it was made, and
so should be set aside.  Also reversing the trial court on this 
point, the court directed that a property determination be made by 
the lower court consistent with Missouri legal principles.

This decision by the Western District court is only binding in the 
western portion of the state, but Frederick DeLong has announced he
will petition for rehearing and, if unsuccessful, will attempt to
take the case to the Missouri Supreme Court (which in the past has
apparently avoided ruling on this issue).  If the decision is
upheld by the state supreme court, it will become a statewide
precedent.

Janice is represented by the San Francisco-based National Center
for Lesbian Rights, a public interest law firm that has specialized
in litigating custody and visitation claims on behalf of gay
parents.  A.S.L.

LESBIAN/GAY LEGAL NEWS           

Supreme Court Rejects Shahar Petition

The U.S. Supreme Court announced Jan. 12 that it will not review
the 11th Circuit en banc ruling in _Shahar v. Bowers_, 114 F.3d
1097 (11th Cir. 1997), No. 97-751 (cert. den.).  In that case, the
appeals court found that any constitutional rights Robin Shahar
might have with respect to her marriage to her same-sex partner in
a religious ceremony were outweighed by Michael Bowers's needs as
Georgia Attorney General to operate his office.

Shahar received a job offer from the Georgia Law Department after
clerking there prior to her last year in law school.  She accepted
the offer and completed employment forms eliciting personal
information, on which she listed her same-sex partner as her
fiance.  Several months before she was due to begin working, Bowers
first learned that Shahar and her partner were having a Jewish
wedding ceremony, and he then "rescinded" the job offer, saying
that as Attorney General he could not be seen as condoning a same-
sex marriage.

Shahar's suit claimed a violation of her rights to free exercise of
religion, intimate association and equal protection.  Bowers
asserted that the religious nature of Shahar's wedding ceremony was
irrelevant to his reasons for the discharge, and denied that he was
discriminating based on sexual orientation.  The trial court, while
deciding that Shahar does have a constitutional intimate
association right, determined that a "balancing test" was required
in the context of public employment, and that Bowers's needs as a
law enforcement employer outweighed Shahar's association interest. 
An 11th Circuit panel reversed, but Bowers prevailed in en banc
review.  The 11th Circuit was sharply divided about the case, with
four separate dissenting opinions.  The opinion for the circuit
court stressed the fact-bound nature of the case, focusing on the
context of law enforcement employment in a state with a felony
sodomy law and a statute specifically rejecting same-sex marriage.

In refusing to grant certiorari, the Court leaves unresolved the
appropriateness of the _Pickering_ balancing test for evaluating
intimate association claims by public employees (that test is more
usually used for free speech claims) as well as the validity of the
particular justifications credited by the 11th Circuit majority in
rejecting Shahar's claims.  Shahar has been represented by the ACLU
Lesbian and Gay Rights Project and Lambda Legal Defense & Education
Fund over the course of this 6-year case, with Ruth Harlow (first
with ACLU, then with Lambda) as her principal attorney.  Shahar is
currently employed as an attorney for the city of Atlanta, in which
capacity she recently triumphed in a decision by the Georgia
Supreme Court upholding the city's domestic partnership ordinance. 
A.S.L.

Minnesota Supreme Court Holds Harassment Law Unconstitutional In
Anti-Gay Hate Speech Case

Part of a Minnesota law against hate crimes violates First
Amendment free-speech protection, so charges against a man who
charged with felony harassment for interrupting a Coming Out Day
celebration held in a city park must be dismissed.  _State v.
Machholz_, 1998 WL 19751, (Minn. Supreme Ct., Jan. 22).  In a
unanimous decision, the court overturned the appeals court's ruling
and granted defendant's motion to dismiss by finding that the
statute was overbroad on its face and as applied to the defendant.

On October 11, 1995, a group of people gathered in a downtown
Rochester park to celebrate National Coming Out Day.  Kurtis Dean
Machholz, a self-proclaimed "horseman evangelist," mounted his
horse and rode through the crowd of celebrants shouting "You're
giving us AIDS!"; "You're spreading your
filth!"; "There are no homosexuals in heaven!"; and "You're
corrupting our children!"  After knocking down an easel with the
horse's lead rope, he rode off.

Machholz was charged with felony harassment as he "caused a
reasonable person under the circumstances to feel oppressed,
persecuted or intimidated" and that he committed the offense
"because of the victim's . . . sexual orientation. . ." 

Writing for the court, Justice Alan Page began by first deciding
whether the First Amendment was implicated before turning to the
overbreadth challenge.  The state argued that the law was directed
at harassing conduct, not speech, and, therefore, cannot be
overbroad.  The court found that the First Amendment was in fact
implicated, stating that "First Amendment protection is not
limited to the written or spoken word; it extends to some
expressive activity, because the activity by itself may be
communicative."  The court gave popular examples of such expressive
activity including draft card burning and wearing armbands in
protest of war.  The court concluded that the harassing conduct
proscribed in the statute encompasses such protected expressive
activity because it does not limit itself to non-expressive
conduct.

In a way presuming the state's "fighting words" defense on the
overbreadth issue, the court stated that "[T]he statute's language
sweeps in a whole spectrum of constitutionally protected activity
beyond that category of fighting words."  Again, the court recited
a list of First Amendment protected activity such as cross burning
and displaying swastikas and even listed day to day activities
between people which would "oppress, persecute or intimidate" as
employer reprimands, basketball coach temper during a game, and
(gulp!) a law professor using the Socratic method who drills a
first year student, all of which might be criminalized under the
statute.

The court also found the statute overbroad as applied to Machholz,
ruling that Machholz's words were inextricably linked to the
conduct of riding his horse through the crowd and that those
combined constitute expressive activity under the First Amendment. 
The court also found that his particular actions were not "fighting
words"; although they are "offensive and
obnoxious," they did not per se constitute fighting words because
the "utterance of these statements are not likely `to incite an
immediate breach of the peace' or `to produce a clear and present
danger of a serious substantial evil,'" quoting the two-pronged
test articulated in _Chaplinsky v. New Hampshire_, 351 U.S. 568
(1942) and later refined in _Terminiello v. Chicago_, 337 U.S. 1
(1949).  The court reasoned that these kinds of statements are very
common in newspapers and television and that Machholz's swinging of
the horse's lead rope did not elevate his statements to any level
of clear and present danger.  Machholz was merely expressing his
personal animus toward homosexuality as a lifestyle and was
registering his protest at any celebration thereof in a public
forum.   _K. Jacob Ruppert_

Federal Court Rules for McVeigh in First Move on Internet Military
"Outing" Case

In a case that captured the imagination of the national press and
had the Internet buzzing, U.S. District Judge Stanley Sporkin
(D.D.C.) issued a preliminary injunction on Jan. 26, ordering the
Navy to withhold processing Timothy R. McVeigh for discharge
pending a trial on the merits of his claim that he did not violate
the "don't ask, don't tell" policy through the personal profile he
posted on America On-Line.  _McVeigh v. Cohen_, No. 98-116.  On
Jan. 29, Sporkin issued a permanent injunction, having concluded
that all the relevant facts and arguments had been presented by
both parties, and it was clear that the Navy had violated its own
policy as well as a federal law preserving the confidentiality of
personal information of the clients of internet service providers. 


At press time, there were reports that the Defense Department might
accept an offer from McVeigh to settle the case by letting him
retire with full benefits, even though he hasn't served the
requisite 20 years, in order to avoid further litigation.  (The
Navy had automatically sought to appeal Sporkin's ruling.)

McVeigh, a Senior Chief Petty Officer on the nuclear submarine USS
Chicago, made no public statement about being gay, but in an
America On-Line member profile under the name _Boysrch_ that
carried his first name (Tim), identified his marital status as gay
and his hobbies as including looking at young "studs" like himself. 
McVeigh sent an e-mail message to the wife of another Navy member
in connection with a holiday toy drive; puzzled by "handle"
_Boysrch_ on the message, she clicked on the AOL member profile and
passed it along to Navy officials, who referred it for
investigation.  A Navy investigator, posing as a friend of the
writer of the e-mail message, called AOL for confirmation about the
identity of the person in the profile, and confirmed that it was
McVeigh.  The Navy then argued that by identifying himself as "gay"
in the profile, McVeigh had violated the "don't ask, don't tell"
policy and was processed for an honorable discharge for
"homosexuality," just a few years short of qualifying for a full-
benefit retirement.  The case captured the interest of the press
both due to the unusual circumstances of the investigation and to
McVeigh's stellar military record.

In his suit against the Navy, represented by attorney Christopher
Wolf of Washington, McVeigh argued that the on-line profile, which
did not include his full name, was not a public statement about his
sexual orientation, and that the Navy's action violated a federal
statute, the Electronic Communications Privacy Act, which bars on-
line service providers from revealing subscriber information unless
in compliance with a subpoena or court order.  AOL issued a
statement shortly before Judge Sporkin's opinion, conceding that
its staff member erred by giving out McVeigh's name, but charged
that the Navy investigator was wrong to have made the inquiry
without obtaining legal process.  Before the court, the Navy
contended that it had sufficient information about McVeigh to
discharge him under the "don't ask, don't tell" policy, apart from
the information obtained in the phone call to AOL.

In his Jan. 26 opinion, extensively quoted in national press
accounts on Jan. 27, Sporkin stated: "Suggestions of sexual
orientation in a private anonymous e-mail account did not give the
Navy a sufficient reason to investigate to determine whether to
commence discharge proceedings.  In its actions, the Navy violated
its own regulations. . .  Even if the Navy had a factual basis to
believe that the e-mail message and profile were written by
[McVeigh], it was unreasonable to infer that they were necessarily
intended to convey a propensity or intent to engage in homosexual
conduct.  Particularly in the context of cyberspace, a medium of
`virtual reality' that invites fantasy and affords anonymity, the
comments attributed to McVeigh do not by definition amount to a
declaration of homosexuality."  Sporkin also noted that AOL may
have violated the ECPA by giving out the information.

Sporkin went even further, however, striking out at the "don't ask,
don't tell" policy itself: "It is self-evident that a person's
sexual orientation does not affect that individual's performance in
the workplace.  At this point in history, our society should not be
deprived of the many accomplishments provided by people who happen
to be gay. . .  Nothing has been produced before this Court which
would in any way suggest that his sexual orientation has adversely
affected his job performance. . .  As this Court stated in _Elzie
v. Aspin_, 897 F.Supp. 1, 3 (1995), it cannot understand why the
Navy would seek to discharge an officer who has served his country
in a distinguished manner just because he might be gay."  Sporkin
continues in this vein at length.

Because the standard for issuing a preliminary injunction requires
a finding of probable success on the merits, Sporkin's decision
signalled trouble for the Navy.  Thus, although it was surprising
that Sporkin issued a permanent injunction just a few days later,
his opinion on the preliminary injunction had left little doubt
about his views on the outcome.  _N.Y.Times_, _Wall Street
Journal_, _Washington Post_, Jan. 27, Jan. 30; Servicemembers Legal
Defense Network Press Release, Jan. 26. 

The proposed settlement was similar to other cases in which the
Defense Department has bought its way out of losing litigation by
paying off the servicemember to avoid complying with a court order
to reinstate him (e.g., Leonard Matlovich, Perry Watkins). 
McVeigh's attorney complained that his client, a highly qualified
nuclear submarine officer, had been assigned to demeaning work
supervising trash removal after the preliminary injunction was
issued. A.S.L.

North Dakota Supreme Court: Employee Discharged in Restroom
Masturbation Incident May Have Statutory Claim Against Employer

The North Dakota Supreme Court ruled on Jan. 27 that a man
discharged from his employment after he was arrested for
masturbating in a public restroom stall in a shopping mall may have
a valid claim under the state law forbidding discrimination based
on lawful off-duty conduct.  _Hougum v. Valley Memorial Homes_,
1998 ND 24, 1998 WL 25585.   While upholding summary judgment for
the employer and other defendants on a variety of state law claims,
the court remanded for a trial on the off-duty conduct claim.

Daniel Hougum, an ordained minister, was employed as a chaplain by
the defendant funeral home beginning in 1980.  On Dec. 16, 1994, he
was arrested when a Sears Roebuck loss prevention officer who was
using a public restroom at a Sears store in a shopping mall in
Grand Forks observed Hougum masturbating in a closed stall in the
restroom.  A hole had been cut by somebody in the wall of the
restroom stall; Sears had covered over the hole several times over
the years with metal plates, but they had been repeatedly removed. 
The officer testified that the hole was at such an angle that he
could observe that somebody was masturbating without having to bend
down to look through the hole.  Hougum initially pled guilty to a
disorderly conduct charge, and his plea was reported in the local
newspaper.  After obtaining legal counsel, he subsequently withdrew
his guilty plea and the charge was dismissed with prejudice.

When Hougum's employer learned about the arrest from the newspaper
story, it placed him on a leave of absence and, after a brief
investigation, terminated him. (The termination came before the
dismissal of charges.)  A management employee told Hougum that the
termination was due to the Sears restroom incident.

Hougum sued his employer, Sears and its security officer on a
variety of claims, all of which were decided against Hougum on
summary judgment by the district court.  The supreme court, in an
opinion by Justice Neumann, affirmed the summary judgment on claims
of invasion of privacy, negligent and intentional infliction of
emotional distress, breach of contract and wrongful discharge. 
Neumann found that Hougum was an at-will employee who could be
discharged without notice, in the absence some particular statutory
prohibition, and that the circumstances did not support either
emotional distress claim.  

On the privacy point, characterized as a claim for improper
intrusion upon seclusion, the court discussed a variety of cases
involving restroom surveillance situations, and noted that most
successful claims involved intentional surveillance programs that
would violate the privacy expectations of reasonable patrons of a
restroom.  In this case, by contrast, the security officer was not
there for surveillance purposes, but happened to observe Hougum by
chance.  

"The viability of those tort cases generally turns on the purpose
of the intrusion and whether the method of surveillance constitutes
an intentional intrusion which is objectionable to a reasonable
person," summarized Neumann.  Here, there was no evidence that the
hole was drilled by Sears, but rather that Sears kept trying to
cover it over.  The court found that there was nothing in the
record to show that the security officer was deliberately trying to
spy on Hougum; he had actually entered the restroom believing it
was empty, and just happened to notice a movement while he was
using the facility himself.

Hougum tried to make the argument that he was being discharged
because the employer perceived him to be gay, and that this should
be held a violation of the state's statutory prohibition on sex
discrimination.  Neumann wrote that the court did not need to get
into the issue of whether sexual orientation discrimination was
covered by the Human Rights Act's sex discrimination ban, since
there was no evidence introduced that the funeral home had any
beliefs regarding Hougam's sexual orientation.

However, Neumann found that the lower court had improperly ruled
against Hougum on the claim under another provision of the Human
Rights Act, the state's off-duty conduct law.  N.D.C.C. sec. 14-
02.4-03 prohibits discharging an employee for participating in
"lawful activity off the employer's premises during nonworking
hours."  Neumann found that it was wrong for the trial court to
conclude, as a matter of law, that the activity for which Hougum
was discharged could not come within this law.  

"The broad provisions precluding employer discrimination for lawful
activity off the employer's premises during non-working hours were
initially enacted in 1991 to expand the law prohibiting employment
discrimination and preclude employers from inquiring into an
employee's non-work conduct, including an employee's weight and
smoking, marital, or sexual habits," explained Neumann, citing to
the legislative history.  "The 1991 amendments included the
language allowing an employer to discharge an employee for lawful
activity if the activity was contrary to a bona fide occupational
qualification that reasonably and rationally related to employment
activities and the responsibilities of the particular employee." 
In a further legislative development, amendments were adopted in
1993 to prohibit discrimination for lawful activity "which is not
in direct conflict with the essential business-related interests of
the employer," to further clarify the scope of protection.  

The trial court ruled that because at the time of the discharge
charges were pending against Hougum for violating a state law
against masturbating in a public place, he could not raise a claim
under the Human Rights Act.  But the supreme court was not so ready
to jump to the same conclusion, noting a significant body of
judicial precedents in other jurisdictions challenging the
proposition that solitary sexual conduct in a closed restroom stall
can be said to be taking place "in public."  Neumann noted that
many courts have held that the issue turns on the reasonability of
expectations of privacy given the actual physical set-up of the
restroom and the stall.

"We decline to hold, as a matter of law, Hougum's conduct in the
Sears restroom constituted either lawful or unlawful activity. 
Hougum has raised a disputed factual issue about whether his
conduct was not forbidden by law and therefore may fit within the
protected status of lawful activity off the employer's premises." 
The employer had also raised a significant factual issue as to
whether Hougum's conduct, even if lawful, might "undermine his
effectiveness as a chaplain and therefore directly conflicted with
its business-related interests."  Since these factual disputes
required resolution, summary judgment was inappropriate.

The vote on this point was 3-2, with Chief Justice Vande Walle
writing a terse dissent: "I dissent to part IV B2 of the majority
opinion because I do not believe, as a matter of law, the Human
Rights Act. . . is intended to protect as `lawful activity off the
employer's premises during nonworking hours' sexual activity, alone
or with others, in a bathroom in a store in a shopping mall." 
Surrogate O'Keefe, sitting in place of another member of the court
who had recused himself, concurred with the dissent.

The decision is significant because North Dakota is one of a
handful of states to have adopted a broadly-worded off-duty conduct
law, and this is the first decision on the merits by the highest
court of a state that might be construed to render such a law, at
least in part, to be a ban on some forms of anti-gay
discrimination.  A similar law in Colorado drew a similar ruling
from an intermediate appellate court there, but that ruling was
vacated on appeal on other grounds and remanded for further
proceedings.  See _Ozer v. Borquez_, 940 P.2d 371 (Colo. 1997).  In
_Ozer_, the employer discharged an employee after learning he was
a gay man whose domestic partner had AIDS, allegedly because of the
employer's disapproval of gay relationships; the intermediate
appellate court found that being in such a relationship was a
lawful off-duty activity covered by the state's law.  The other
state with a broad off-duty conduct law is New York, where there is
a division of authority over whether sexual activity is covered as
lawful "recreational activity."  Off-duty conduct laws in other
states tend to be narrowly focused on protecting smokers and
persons who drink alcoholic beverages while off-duty.

Hougum is represented by William E. McKechnie of Grand Forks. 
A.S.L.

Pennsylvania Court Grants Name-Change to Preoperative Transsexual

As Tammy Wynette so aptly observed, "sometimes it's hard to be a
woman."  This was especially true in the Superior Court of
Pennsylvania in the case of _In re Brian Harris a/k/a Lisa Harris_,
1997 WL 793138 (Dec. 11, 1997).  Brian Harris, 39, who for the past
22 years has lived as a woman, filed an unopposed petition for a
name change from Brian to Lisa.

In accordance with Pennsylvania's Judicial Change of Name Statutory
requirements, 54 Pa.C.S. sec. 701, the Court of Common Pleas held
a hearing at which the evidence showed that the petitioner for the
past 22 years consistently dressed and appeared in public as a
female and assumed the name Lisa.  In addition to years of
intensive psychological counseling, petitioner had undergone a
number of medical procedures designed to make herself appear more
feminine, including receiving routine estrogen hormone therapy and
had permanent reconstructive facial surgeries as well as breast
implants.  The petitioner desired to have sex reassignment surgery,
but its cost was prohibitive.  An expert witness, Dr. Constance
Sunders, petitioner's counselor of 20 years, testified that
"petitioner's desire to live as a woman was permanent and
unassailable; hormonal make up was naturally more female than male
and often encountered confrontations in public when presenting
official i.d. because of the disparity between petitioner's female
appearance and the male name appearing on the i.d. which often lead
to allegations of deceit."   The Common Pleas court denied
petitioner's application for the name change from Brian to Lisa and
petitioner appealed to a 3-judge panel of the Superior Court.

The court reviewed but did not adopt the narrow bright line test
created by the Pennsylvania common pleas courts based on whether
the individual had undergone sex reassignment surgery.  _In re
Dickenson_, 4 D & C 3d 678 (1978), _In re Dowdrick_, 4 D & C 3d 681
(1978), and _In re Richardson_, 23 D & C 3d 199 (1982).  Instead,
the court adopted the more permissive standard created by New York
and New Jersey courts which hold that "absent fraud or other
improper purpose a person has a right to a name change whether he
or she has undergone or intends to undergo a sex change through
surgery, has received hormonal injections to induce physical
change, is a transvestite, or simply wants a change from a
traditional `male' first name to one traditionally `female', or
vice versa."  _In re Eck_, 584 A.2d 859 (N.J. Super. 1991), _In re
Rivera_, 627 N.Y.S.2d 241 (N.Y.Sup.Ct. 1995).

Writing for the court, Judge Olszewski stated that "a
better-reasoned approach in deciding cases in which a petitioner is
seeking a change of name commensurate with a change of gender is:
each petition must be evaluated on a case-by case basis to
determine
whether allowance of the name change would comport with good sense
and fairness to all concerned.  While proof of reassignment surgery
would undoubtedly fulfill this criteria, the absence of such
surgery does not automatically doom a petition to failure."

Olszewski concluded by stating that a name change would be fair to
the appellant and the public because: it would prevent the daily
confrontations which plague the appellant's dealing with the
public; eliminate what many believe to be a fraud; appellant has
complied unopposed with all requirements of the statute and in
accordance with good sense and fairness to all concerned, should
have been granted.

Judge Saylor dissented: "To judicially sanction a pre-operative
male transsexual's adoption of an obviously female name would grant
legal recognition to a physiological fiction."

Judge Popovich, concurring on different grounds, stated: "This
court must determine whether petitioner has complied with the
statutory requirements and to ensure that the person has no
fraudulent intentions in changing his name.  This is where the
inquiry ends.  Herein, appellant filed an unopposed petition in
accordance with the statutory requirements.  There is no evidence
to suggest that appellant was attempting to change his name to
avoid any financial obligation.  In light of the statutory language
and the legislature's intent, I believe that appellant's petition
should be granted without probing into appellant's sex or his
desire to express himself in the manner of his choosing. . . .
Moreover, if parents have an absolute right to choose to name their
male child an obvious `female' name at birth, it is illogical that
an adult does not have the same right to change his name in the
future if he so desires, whatever the name shall be, provided that
the person does not seek the change for fraudulent purposes." 
_Leslie Sarah Deutsch_

California Appeal Court Says Attorney Fee Award Under Unruh Act Is
Mandatory in Gay Yearbook Photo Case

The issue before the court in _Engel v. Worthington_, No. G016399
(Cal.App., 4th Dist., Dec. 31) (see _Daily Journal_, Daily
Appellate Report, Jan. 5, 1998, p. 53), was whether a plaintiff who
successfully sues under California's Unruh Civil Rights Act (Cal.
Civ. Code sec. 51 et seq.) is entitled to attorney's fees, as a
matter of law.  The court ruled that the plaintiff was entitled to
attorney's fees.  

This case is of particular interest because the plaintiff, David
Engel, had sued Worthington, a photographer, because Worthington
had refused to insert a photo of Engel and his same-sex lover in
Engel's high school reunion yearbook.  Engel charged that this was
an unlawful denial of public accommodation under the statute.

This is the third time that the matter has come before the court of
appeal, and the third time that the trial judge was reversed.  The
court demonstrated that it had lost all patience with Worthington
and with the trial court through its dismissive discussion of
Worthington's principal points and through its direction that the
hearing on attorney's fees be held by a different judge.

Engel first sued in 1987, alleging that he was denied equal access
to public accommodations when Worthington refused to include the
picture with his lover in the reunion yearbook.  The trial court
ruled in favor of the defendant after a bench trial in 1992, and
Engel appealed.  The court of appeal reversed, with instructions
for a written decision.  (See _Engel v. Worthington_, 19 Cal. App.
4th 43 (Cal.App., 4th Dist., 1993).)  The trial court complied,
rendering judgment in favor of Worthington again.  Engel appealed
again, and the court of appeals reversed, directing judgment for
Engel, but instructing the trial court to assess damages and
attorneys fees.  The parties stipulated to damages to Engel in the
sum of $250, but agreeing to submit the matter of attorneys fees to
the court.  The trial court rendered judgment for damages, but
failed to render judgment for attorney's fees.  

Engel's appeal of this failure to render judgment for attorney's
fees is the subject of the instant appeal.  Worthington argued that
the appeal was untimely because Engel did not appeal the minute
order, but waited for the final judgment, and that there was
nothing to appeal, because the trial judge hadn't _denied_
attorney's fees, but had just _omitted_ a figure on the proposed
final judgment.  The court of appeal rejected both contentions as
without support in fact or law, and ruled that the award of
attorney's fees in these circumstances was intended to be mandatory
by the legislature, or the relief granted under the Unruh Civil
Rights Act would be ineffective.

The court reviewed Engel's submissions in support of his claim for
attorneys' fees, which came to nearly $81,000, together with
another $2,850 in costs.  While the court referred the matter of 
amount of fees to the lower court for determination (as the prior
judge had made no determination at all), it forbade the
introduction of any further evidence on point, and stated that
Engel ". . . may well be entitled to the full amount requested"
("To deny him the full amount of the requested
fees would be tantamount to finding the fees were unreasonable per
se, some of his efforts unwarranted, or his goal unworthy").  This
is strong language, and it would be hard to imagine that the trial
court really had anything to determine other than the amount of
attorney's fees and costs related to this appeal, which the court
of appeal also ordered be awarded.  _Steven Kolodny_

N.Y. Appellate Division Upholds Murder Conviction in Brutal Anti-
Gay Slaying

The N.Y. Appellate Division, 3rd Dept., unanimously affirmed the
conviction of Jack E. Keller for 2nd degree murder in the brutal
anti-gay slaying of Michael Murray.  The court found that Murray
was killed because Keller, along with others, believed him to be
gay.  Keller received a sentence of 25 years to life.  _People v.
Keller_, 1998 WL 20030 (Jan. 22).   

On August 27, 1995, Keller, with Jay W. Fink and Walter Hagadorn,
murdered Michael Murray in Binghamton.  Hagadorn testified that
shortly before Keller, Fink and Hagadorn went with Murray to the
river bank, Keller told Hagadorn that "he was going to kill
[Murray]."  Hagadorn testified that Keller told him to
"grab a stick or rock" to beat Murray.  The three men then beat
Murray until he was unconscious.  Keller then took a screwdriver
from Murray's car and proceeded to stab him 25 times in the neck,
chest, and abdomen.  Hagadorn testified that Murray was "gurgling
on his own blood" when they dragged his body to a river.  They then
fled in Murray's car.  Extraordinary brutality, such as a large
number of stab wounds, is typical of hate-motivated crimes.  

The Appellate Division, in an opinion by Justice Carpinello,
responded to only a few of the points made in the appeal,
rejecting the others outright as lacking merit.  

Keller argued that he was an alcoholic and too intoxicated on the
night in question to form "the requisite intent to commit the
crime. . ." and that he did not kill Murray.  He contended that
either Hagadorn or Fink committed the murder.  The court found that
the jury was the proper body to review  and determine the level to
which "intoxication negates the element of intent to commit a
crime."  Keller admitted in a statement to the police that he beat
up Murray and helped dragged his body to the river, but he denied
stabbing him.  In the statement, Keller said that he did not
believe that Murray could have gotten out of the river by himself. 
 
The court disposed of Keller's contention that he was improperly
cross-examined on his prior criminal record.  Keller had been
convicted twice of burglary, one which involved stabbing his victim
in the leg.  The court found that since Keller chose to take the
stand in his own defense, his past record bore on his credibility
as a witness and that the burglary which involved the stabbing was
particularly relevant.  The court found that this "demonstrat[ed]
his willingness to place his own interests above those of society." 
Also rejected was Keller's contention that he was denied effective
counsel.

In unanimously affirming the conviction, the court found that
"given the brutality of Murray's senseless murder and [the]
defendant's assorted history of criminal activity which dates to
1969, we are hardly persuaded that [the] defendant's sentence was
harsh and excessive."  The opinion said nothing about whether
Murray was alleged to have engaged in any particular conduct
calculated to provoke this brutal attack.  _Daniel R Schaffer_

Utah Federal Court Orders Trial in Lesbian Same-Sex Harassment Case

In yet another example of increased receptivity to same-sex
harassment claims, the U.S. District Court in Utah recently denied
a defendant's motion for summary judgment in such an action brought
under Title VII.  _Johnson v. Community Nursing Services_, 1997 WL
809553 (Nov. 25).  In a previous ruling, the court had determined
that same-sex harassment could be actionable under Title VII.  This
opinion responded to the employer's motion for summary judgment on
the factual allegations of the complaint.

Melanie Johnson alleged that she was the target of persistent
sexual harassment by her female supervisor, Nora Goicoechea, which
Johnson says created a hostile working environment.  Goicoechea, an
open lesbian, made persistent sexual advances toward Johnson, who
was living with another woman in a lesbian relationship.  When
Johnson ended her lesbian relationship and began dating a man,
Giocoechea's behavior turned increasingly hostile.  Although
Johnson reported Giocoechea's hostile behavior to the Human
Resources Manager, very little was done to combat the harassment. 
Johnson eventually left her position as a therapist and filed suit
against both her employer and Goicoechea for sexual harassment and
for defamation, based on remarks Goicoechea subsequently made to
other employees at staff meeting about the reason for Johnson's
departure.

District Judge Thomas Greene found that there is a genuine issue of
material fact as to whether Johnson was the victim of harassment
because of her sex for two reasons.  First, Greene held that under
the "steady barrage" test, which looks at the intensity and
pervasiveness of the harassment, a jury could find that Johnson was
harassed.  _Gross v. Burggraf Construction Company_, 53 F.3d 1531
(10th Cir. 1995).  Secondly, Greene said that under the 10th
Circuit's recent decision in _Harrison v. Eddy Potash_, 112 F.3d
1437 (1997), an employer can be liable for an employee's conduct in
some situations.  Greene held that since there is a factual
question whether Johnson's employer knew the harassment was
occurring, and whether Goicoechea used her position to further the
discrimination, summary judgment must be denied.  

Greene also denied the motion for summary judgment as to the
defamation claim.  Johnson alleged that at a staff meeting
following her resignation, Goicoechea told other staffers that
Johnson was gone because she had a "borderline personality
disorder."  The employer sought to defend by asserting that this
was a privileged opinion statement about Johnson's work
performance.  Greene found, to the contrary, that this was a term
of art in psychiatric diagnosis, and although it is qualifiedly
privileged, the privilege could be overcome if Johnson succeeded at
trial in proving that the statement was maliciously made.  Because
the statement concerned a psychiatric condition that could be
independently verified by an expert, it was not protected as a mere
statement of opinion.  _Seth M. Rosen & A.S.L._

NY Appellate Division Denies Unwed Partner Rent Subsidy Succession

In a memorandum decision reversing a New York County Supreme Court
grant of a Section 8 rent subsidy, the Appellate Division, First
Department, distinguished the instant case, _Evans v. Franco_, 1998
WL 10953 (Jan.15), from _Braschi v. Stahl Associates_, 74 N.Y.2d
201, the landmark case in which the Court of Appeals recognized a
domestic partner's claim to successorship rights under the state
rent control laws.

Petitioner Louis Evans lived with Esther Silver for over 20 years. 
The pair allegedly held themselves out as a couple and shared
expenses.  Evans helped Silver (who suffered physical disabilities)
perform the activities of daily life and allegedly cared for her
throughout her final illness.  

Silver had received a federal Section 8 rent subsidy as a single
person since 1978.  Evans brought the instant Article 78 proceeding
for a writ of mandamus compelling the New York City Housing
Authority (NYCHA), which administers the federal program, to allow
him to succeed to Silver's subsidy as a "family member."  A "family
member" who has lived with a subsidized tenant for a significant
period can succeed to the deceased tenant's subsidy (if otherwise
eligible) instead of starting as a new applicant at the bottom of
the several-year waiting list.  Evans contends that loss of the
subsidy might soon render him homeless.
 
NYCHA opposed Evans's petition on grounds that Silver deliberately
never listed him as a cohabiting family member on any of the annual
affidavits of income and household composition or Federal Privacy
Act Statements she was required to submit.  Silver's Certificate of
Family Participation was for a one-person family.  Relying on
_Braschi_, the lower court held that the pair sufficiently
established a family relationship, even absent formal
documentation.  The appellate court distinguished _Braschi_ from
the instant case on several bases: the homosexual couple in
_Braschi_ revealed to the relevant persons that they were a
cohabiting couple; "the Court of Appeals looked beyond the legal
form to the actual facts of the couple's relationship mainly
because as a homosexual couple they had no legal way to formalize
their alleged marriage, [b]y contrast it was not only possible but
obligatory for Silver and Evans to disclose and attempt to certify
their status as a family on the . . . forms submitted to NYCHA." 
Also, _Braschi_ concerned succession to possession of an apartment
under state law rather than to subsidies under Federal law.

The court reaffirmed that deliberate failure to list a family
member on consecutive annual recertification forms was relevant but
not dispositive, and remanded Evans's claim to NYCHA for an
evidentiary hearing on his proof of long-term residence and
familial relationship.  The Appellate Division decision illustrates
the limits of _Braschi_ and the importance that non-traditional
families take affirmative steps to assert their rights under
housing programs by, for example, communicating the existence of a
familial relationship to relevant persons in a timely manner. 
_Mark Major_

Court Denies 8th Amendment Claim Despite Prisoner's Allegations
Concerning Gay Relationships Encouraged by Guards

A U.S. District Court in Pennsylvania dismissed a prison inmate's
claim that he was not sufficiently protected from a fellow inmate
with whom he previously had a gay relationship.  _King v. Vaughn_,
1997 WL 811960 (E.D. Pa., Dec. 29) (not officially published).  In
granting the defendants' motion for summary judgement, District
Judge Waldman found the plaintiff had not demonstrated that he was
punished for executing a constitutional right, nor that defendants
were indifferent to a substantial risk of serious harm, nor that
the plaintiff's transfer was retaliatory.

Arnold King, was involved in a sexual relationship with a fellow
inmate, James Daughtrey, while they were both incarcerated at SCI
Graterford.  King claims that after some time Daughtrey threatened
to accuse King of threatening to rape or kill him if King became
involved with someone else or did not comply with Daughtrey's
demands.  King requested of one of the defendants, Capt. Caison,
that he be moved away from Daughtrey.  Caison advised King that he
had to learn to get along with Daughtrey and that "Daughtrey is a
woman" and he should be treated as such.  Daughtrey eventually
stabbed King, and he and King went together to see Capt. Caison. 
Daughtrey advised Caison that he stabbed King because he felt King
may have cheated on him.  King claimed that he hadn't cheated and
that he had no intention of leaving Daughtrey; Caison told King
that if he did leave Daughtrey, King would be placed in
Administrative Custody for his own protection.  King eventually
requested Administrative Custody to deal with a family crisis, but
later revealed that he actually wanted to follow Daughtrey to the
special RHU Unit for fear that Daughtrey would otherwise claim that
King raped him.  Caison then moved Daughtrey into King's cell, and
plaintiff claimed this was so Caison could further his own sexual
activity with Daughtrey and also to further Daughtrey's sexual
relationship with King.

King then complained to defendant Barone that Daughtrey threatened
to accuse King of attempting rape or murder, and Barone advised
King to speak with Caison, as homosexuality was his "field." 
Caison refused to assist King and threatened to discipline King if
he did not go along with Daughtrey.  King claims that he felt he
was trapped in an unethical cycle and at a subsequent meeting with
defendants Caison, Terra and Barone, he was told that he could have
"all the sex he wanted with Daughtrey" and that if he didn't behave
he would be disciplined.  Plaintiff was then involved in an
altercation with Daughtrey and was sentenced to a 30-day term in
Disciplinary Custody.  

After the 30-day period, King was transferred to SCI Pittsburgh, at
the recommendation of Caison and Terra.  King complained that a
transfer for fighting was rare, and that he should have been
returned to the general population.

Turning to King's claims, the court noted that the 8th Amendment
requires prison officials to protect prisoners from violence
inflicted by other inmates, but found that King's constitutional
rights were not violated.  The Plaintiff must show that he faced a
substantial risk of serious harm, and that an official acted with
deliberate indifference to his safety.  The court found that King
had neither shown that he faced a serious risk, nor that Caison was
indifferent to such a risk.  It found that all plaintiff had
demonstrated was that Daughtrey had threatened King, but threats do
not necessarily rise to the level of serious risk.  Further, as
soon as King and Daughtrey were involved in a second altercation,
they were separated, and King was then transferred.  The court
found that this cannot be shown as indifference to Plaintiff's
safety.

The court then turned to the retaliatory transfer claim.  It
observed that a prisoner cannot be transferred for exercising a
constitutional right, but found that there is no evidence that
Caison had authority to effect a transfer of King.  The
Superintendent requested the transfer and the order to transfer
came from the Deputy Commissioner.  Thus there was no evidence to
support King's claim that the transfer was retaliatory.

The court granted defendants' motion for summary judgement and 
dismissed King's claims.  _Paul Twarog_

Nebraska Court Rules on Sexy Artwork Seized From Gay Bar

The _Omaha World Herald_ reported Jan. 8 that Nebraska District
Court Judge Michael Amdor ruled that three pictures exhibited in
The Run, an Omaha gay bar, are obscene and must be either destroyed
or removed from the state.  The works in question depict men
engaged in oral sex and anal intercourse, and were part of a larger
display that included some works that were less explicit, and held
not obscene.  As to the later, Amdor wrote: "The court again finds
itself in the position of making a sort of crude value judgment
based on a `standard' that is hazy at best: if the Omaha community
allows Hustler magazine, what is there about (two of the works not
deemed obscene) that violated the community standard?  The answer
is nothing at all."  But as to the three most explicit pieces,
Amdor wrote that he was "hard pressed to find how these exhibits
would be tolerated in Omaha, Douglas County, Nebraska," concluding
that the works had no artistic value.  The owner of the artwork,
Terry Tippit, announced plans to appeal to the Nebraska Supreme
Court.  Tippit's attorney contended, contrary to Amdor's finding,
that the works have some artistic value and thus would be protected
under the 1st Amendment.  Police seized the controversial artwork
from the bar three years ago.  A.S.L.

Law & Society Notes

Lambda Legal Defense & Education Fund filed a lawsuit in the
Chancery Court of Pulaski, County, Arkansas (in Little Rock) on
Wednesday, Jan. 28, challenging the constitutionality of the
state's sodomy law.  The statute makes it a misdemeanor punishable
by up to a year in prison and/or a fine of up to $1,000 for two
persons of the same sex to engage in oral or anal sex.  The suit,
filed under the name _Picado v. Bryant_, will be filed on behalf if
seven Arkansas lesbians and gay men who were willing to publicly
identify themselves as persons whose lives are threatened by the
law.  The plaintiffs claim that the statute violates their rights
to privacy and equal protection of the laws under the state
constitution.  Similar arguments have recently been successful in
getting sodomy laws invalidated by state courts in Tennessee,
Kentucky and Montana.  _Lambda Press Release_, Jan. 28.  There was
a recent news report that the ACLU is contemplating filing a legal
challenge to the Maryland sodomy law. _Washington Blade_, Jan. 2. 

The three same-sex couple plaintiffs in _Baker v. State of Vermont_
have appealed the decision of the Crittendon Superior Court denying
their suit seeking marriage licenses.  The case will likely be
argued before the Vermont Supreme Court this spring.  Gay & Lesbian
Advocates & Defenders, a Boston-based public interest law firm,
represents the plaintiffs together with local counsel.  _Reuters_,
Jan. 15.

The nation's second-largest oil company, Mobil Corp., announced it
will extend eligibility for spousal benefits to domestic partners
of its employees in the U.S.  20,000 U.S. employees are covered by
the new policy, similar to those recently adopted by Shell and
Chevron, as well as the union that represents many of Mobil's
employees.  _Washington Blade_, Jan. 16.

The Colorado Legal Initiatives Project, a Denver-based group
originally formed as a result of the Amendment 2 controversy, has
filed suit on Jan. 22 against the Cherry Creek School District,
challenging its denial of equal treatment to a gay-straight student
alliance at Smoky Hill High School in Aurora, Colorado.  The
student group, like CLIP, was formed in response to the Amendment
2 controversy.  The suit was filed in federal district court in
Denver, asserting an equal protection claim.  _Rocky Mountain
News_, _Denver Post_, Jan. 23.

Gay rights are "on again, off again" in Salt Lake City.  The lame
duck city council passed a civil rights ordinance including a ban
on sexual orientation discrimination in December.  The newly-
elected council took office in January and promptly repealed the
ban.  The mayor indicated no interest in vetoing the repeal bill. 
_Salt Lake Tribune_, Jan. 14.  * * *  In Ypsilanti, Michigan, the
city council unanimously passed a comprehensive civil rights
ordinance on Dec. 16 that includes sexual orientation, but
opponents are organizing to secure a referendum or charter repeal,
depending on how many signatures they can get from registered
voters.  _Detroit News_, Jan. 5.

Illinois Circuit Judge James Doyle found Kenneth Rokicki guilty of
a hate crime based on an incident at a South Elgin, Illinois, Pizza
Hut in October 1995.  Rokicki banged on the counter and yelled
anti-gay epithets when he saw an employee whom he perceived to be
gay cutting the pizza Rokicki had ordered.  The restaurant manager
asked Rokicki to leave; when the employee went out to the parking
lot to copy Rokicki's license plate number, Rokicki chased him back
into the restaurant and other employees barred the door.  A
sentencing hearing is set for Feb. 20.  _Chicago Tribune_, Jan. 14.

In _Ford v. Rigidply Rafters, Inc._, a U.S. District Court jury
(D.Md., Nov. 24) rejected a claim of same-sex harassment, but did
find that the plaintiff suffered unlawful retaliation for
complaining about his alleged mistreatment and awarded plaintiff
James Ford $15,000 in damages; subsequently, Judge Joseph H. Young
added $57,280 in back pay, interest, and front pay.  _BNA Daily
Labor Report_ No. 7, 1/12/98, A-2.

A Denton County, Texas, jury ruled that a lesbian co-parent should
be entitled to maintain contact with the 5-year child conceived as
part of the lesbian relationship.  _Dallas Morning News_, Jan. 28. 
District Court Judge Phillip Vick ruled in February 1997 that the
co-parent had standing after the couple broke up to seek visitation
rights with her daughter, mainly because the birth of the child had
been planned by the two women in the context of their relationship
and with the understanding that they would raise the child jointly. 
According to a report we received from Austin attorney James Arth,
the jury voted 10-2 to appoint the co-parent as joint managing
conservator of the child; the two jurors in the minority actually
wanted to go further and appoint the co-parent a possessory
conservator, the status usually given to fathers after a divorce
leaves children in the primary custody of their mothers.  The
parties' names were not revealed in order to protect their privacy.
* * *  Ironically, the same issue is confronting Onondaga, N.Y.,
County Family Court Judge Bryan Hedges, who heard argument on Jan.
22 in a similar visitation dispute stemming from the break-up of a
lesbian couple.  In this case, the plan had been for the co-parent
to adopt the child, which is now possible under New York law, but
the break-up of the couple occurred before the adoption proceeding
was initiated.  The women were partners for 17 years, and their
child was born four years ago.  _Syracuse Post-Standard_, Jan. 23.
 
On Jan. 2, Cumberland County, Maine, Superior Court Justice Roland
A. Cole granted a temporary restraining order against the city of
Portland on Jan. 2, requiring the city to open at least one polling
place in each of the city's five voting districts for the February
10 referendum vote on repealing Maine's gay rights law.  City
officials, expecting a small turnout, had planned to open only one
polling place.  Opponents of the referendum, fearing that as a
consequence the low turnout might be furthered skewed in favor of
fervent supporters of the anti-gay referendum measure, so the Maine
Civil Liberties Union and two citizens sought the court order.
_Portland Herald Press_. 

More than a thousand clergymembers of the United Methodist Church
have signed a statement dissenting from the denomination's
teachings on homosexuality and endorsing "appropriate liturgical
support" for same-sex marriages or "covenant partnerships."  The
statement was made public in support of Rev. Jimmy Creech, an
Omaha, Nebraska, pastor who has been suspended by the church
pending an investigation of his performance of a covenant ceremony
for lesbian congregants.  _Los Angeles Times_, Jan. 10.  A.S.L.

Professional Notes

Allan Terl, an attorney who played a central role in the
development of AIDS law in Florida, and whose work received
national recognition with his election to the national board of the
American Civil Liberties Union (after serving as the first openly
gay man to head the ACLU's Broward County chapter) died from AIDS
on Dec. 1 in Fort Lauderdale.  _Washington Blade_, Jan. 2.

Doni Gewirtzman, of Boalt Hall Law School, will be a Skadden Fellow
at Lambda Legal Defense & Education Fund.  Skadden Fellowships are
funded by the New York-based international law firm of Skadden Arps
Slate Meagher & Flom LLP, to support recent law graduates in taking
initial jobs at public interest law firms.  

The International Conference on Transgender Law and Employment
Policy, Inc., has elected Sharon Stuart/Tom Heitz, Esq. (that's one
person) to be its second executive director.  Founding executive
director Phyllis Randolph Frye, Esq., is stepping down after many
years of dedicated leadership.  The organization can be contacted
at <ictlephdq@aol.com>, or 607-547-4118.

Coretta Scott King, widow of the Rev. Martin Luther King, Jr., will
be the keynote speaker for Lambda Legal Defense Fund's 25th
Anniversary event in Chicago on March 31.  Mrs. King will deliver
the Bon Foster Civil Rights Address.  Mr. Foster, a gay attorney
who died from AIDS, left the bequest that made possible the opening
of Lambda's Midwestern Office in Chicago.  

The Bay Area Lawyers for Individual Freedom and the National
Educational Foundation for Individual Rights are accepting
applications for their 1998 Fellowship Program, funding summer work
opportunities in the San Francisco Bay Area for law students
interested in sexual orientation and AIDS law.  For detailed
information about the fellowships, call Kelly Dermody (415-437-
5711) or send a stamped, self-addressed envelope to: BALIF/NEFIR
Fellowship Program, PO Box 2602, San Francisco CA 94126-2602.

The Center for Lesbian & Gay Law & Public Policy, a new public
interest organization formed in Philadelphia, is holding an open
house in its new office on Feb. 17 at 4 p.m.  The address is 1315
Spruce Street, Center City, Philadelphia.  The center can be
reached at <clglpp@aol.com> or 215-731-1447. A.S.L.

International Notes

The International Lesbian & Gay Association has been granted
consultative status with the Council of Europe, effective Jan. 15. 
An earlier application for non-governmental organization (NGO)
status in Europe had been denied in 1990.  As a result of this
status, ILGA will be entitled to be consulted before the Council
takes any actions affecting gay people in Europe, and can
participate in the deliberations of a variety of European
governmental and regulatory bodies.

Reuters reported Jan. 6 that two gay men in Amsterdam made history
Jan. 5 by becoming the first same-sex couple to "marry" under a new
Dutch law.  Although the law did not go into effect until January
1 and requires two weeks advance notice, the public prosecutor
waived the advance notice under the circumstances because one of
the men is terminally ill and desperately wanted to marry his
partner before he died.  Due to the circumstances, their names were
kept confidential.  The first same-sex couple to file a notice
after the law went into effect, a lesbian couple from Amsterdam,
planned to marry on Jan. 14.  The process is officially known as
"registration of partnership" but incorporates all the rights of
civil marriage except the right jointly to adopt a child; at
present, a single person can adopt a child, and a same-sex partner
can then apply to be made the child's legal guardian, but it is
expected that legislation will be passed to allow joint adoptions
soon.  There is continued interest in the Dutch parliament in
removing all differences between traditional and same-sex
marriages, but the registration act is seen as a transitional
approach, with some predictions that full civil marriage will be
opened to same-sex couples later this year.

The South African press was reporting at the end of January that a
bill to extend the right to marry to same-sex couples was expected
to be introduced by the African National Congress, in line with its
recent vote to endorse same-sex marriage, in the nation's
Parliament later this year.  Because the measure is likely to be
controversial, it is not yet known which government minister will
take the lead in proposing and advocating for the bill.  The South
African constitution bans sexual orientation discrimination, and
litigation is ongoing under this provision in challenging the
sodomy laws remaining in some parts of the country.

A Legislative Review Advisory Group in Canada has recommended that
the definition of "spouse" under Canadian immigration law be
expanded to include same-sex couples who have cohabited for at
least a year.  While some hailed this as a major advance, others
noted that traditionally married couples were privileged under
immigration law as soon as they were married, and that the
cohabitation requirement might pose significant barriers to same-
sex couples where each was a citizen of a different country and
they faced practical difficulties in attempting to live together. 
Vancouver, Canada, solicitor Rob Hughes reported that a full copy
of the report can be found at
<http://cicnet.ingenia.com/legev/index.html>. * * * A Liberal
member of the Parliament, Tom Wappel of Scarborough Southwest in
Ontario, has introduced a bill, No. C-225, that would explicitly
amend the Marriage Act by making explicit that only opposite sex
couples could marry or divorce.

A decision by the government of the Cayman Islands, a British
dependency, to forbid a gay cruise from landing there, threatened
to spark an international diplomatic incident, as several U.S.
congressmen contacted the British Ambassador and urged a meeting
with representatives of gay civil rights groups to discuss the
matter. A.S.L.

AIDS & RELATED LEGAL NOTES

Supreme Court Refuses to Review 6th Circuit Benefits Case

The Supreme Court announced Jan. 20 that it will not review the en
banc decision by the 6th Circuit in _Parker v. Metropolitan Life
Insurance Co._, 121 F.3d 1006 (1997).  In that case, the 6th
Circuit adopted a very narrow view of the application of the ADA to
insurance companies and their products -- a view contradicted by
the EEOC and some other federal courts.

Plaintiff Parker had become disabled due to mental illness and
sought to access the long-term disability policy provided by her
employer.  It turned out that the policy provided significantly
lesser benefits for disabilities due to mental illness than for
disabilities due to physical illnesses.  Parker sued under Titles
I and III of the ADA.  She lost the Title I claim against her
employer on the ground that she was not a qualified individual with
a disability for employment purposes because her mental illness had
made it impossible for her to work.

Under Title III, businesses providing goods and services to the
public may not discriminate on the basis of disability, and Ms.
Parker has a disability within the meaning of Title III.  However,
the 6th Circuit held that Title III of the ADA was not intended to
regulate the content of insurance policies, but was concerned
primarily with physical access to places of business or policies by
which businesses absolutely refused to provide goods or services to
people with disabilities or discriminated between people with
disabilities and people without disabilities.  In this connection,
the court suggested that company policies that differentiate
between people who have different kinds of disabilities do not
raise ADA concerns.

The holding has obvious relevance for people with HIV/AIDS, who are
battling insurance companies over AIDS-caps and exclusions.  The
6th Circuit's ruling is contrary to the EEOC's position on these
issues, and is also contradicted by court decisions from other
circuits.  Given the circuit splits and the rejection of the
agency's interpretation, it is surprising that the Supreme Court
refused to take the case, which leaves a major gap in protection
against discrimination for residents of the 6th Circuit.  A.S.L.

Indiana Supreme Court Rejects Invasion of Privacy Claim

The Indiana Supreme Court held on Jan. 2 that a Hoosier who
revealed a co-worker's HIV status to several other employees on the
job was not liable in a civil tort action for invasion of privacy. 
_Doe v. Methodist Hospital_, 1998 WL 970.  In a plurality opinion
written by Chief Judge Shepard, the high court adopted the
restatement's position that liability for "public disclosure of
private facts" requires a plaintiff to prove that the private fact
at issue was communicated to more than just a single person or
small group of people.

Plaintiff John Doe, a letter carrier for the U.S. Postal Service,
informed paramedics that he had HIV while he was en route to a
hospital for a suspected heart attack in 1990.  The wife of a
fellow postal carrier, who coincidentally worked at the hospital
where Doe was treated, reviewed Doe's confidential medical records
and disclosed his HIV status to her husband, Logan.  Logan in turn
shared Doe's HIV status with postal employee Cathy Duncan, who told
two other co-workers.  

Doe alleged that as a result of the disclosure of his HIV status,
he suffered embarrassment, humiliation and mental distress; Doe did
not allege any physical or economic injuries.  

The lead plurality opinion concluded that "in our `been there, done
that' age of talk shows, tabloids and twelve-step programs," public
disclosures of private facts like those raised in this case were
less likely to cause shock, offense or emotional distress than when
the tort was first recognized in the U.S. towards the end of the
nineteenth century.

Chief Justice Shepard's broader agenda conspicuously overshadowed
the narrow holding of the case.  Shepard spent the bulk of his
opinion tracing the history of invasion of privacy actions
generally, and cast significant doubt on their future recognition
in Indiana courts.  A concurring plurality opinion by Justice
Dickson chastised the Chief Justice for straying from the issues
raised by the parties and for deviating from what he considered to
be fifty years of settled Indiana law.  In the absence of a
majority opinion from the court, however, it remains to be seen
whether one may recover for injuries resulting from the public
disclosure of one's HIV status in a situation factually more
egregious than Doe's.  _Ian Chesir-Teran_

HIV Name-Reporting Proposals Gaining Momentum

Countering a report issued late last year by the ACLU AIDS Project,
the Centers for Disease Control and Prevention announced Jan. 8
that state programs in Texas and Maryland that track HIV infections
using unique identifiers rather than patient names had failed to
provide an accurate count of HIV infections.  CDC contended that 22
percent of reports in Maryland and 34 percent of reports in Texas
were "incomplete" and that from 50 to 75 percent of cases were
missed.  AIDS advocacy groups have been opposing mandatory
reporting of HIV infection until recently; now they are conceding
that the need for accurate public health data about the spread of
HIV justifies collecting such data, but they are arguing that a
unique identifier system, preserving the anonymity of HIV+ persons,
is still essential.

There appeared to be a breaking of ranks on this issue when Gay
Men's Health Crisis issued a statement strongly supporting the
collection of HIV infection data without voicing opposition to
name-reporting.  The GMHC statement received national media
attention, and generated calls from other AIDS advocacy groups for
GMHC to disavow name-reporting, which it did in a subsequent
statement.  Meanwhile, pressure mounted for name-reporting in New
York, where a legislative proposal to that effect received new
momentum from the initial GMHC announcement, which had prompted
legislative leaders to suggest that the proposal would be taken off
the back burner for serious attention when the state legislature
reconvenes.  

Although many states now have name-reporting, New York and
California, with the largest AIDS caseloads, do not presently
collect the names of those who test HIV+.  A.S.L.

HIV Name-Reporting Requirement Does Not Violate Doctor's Equal
Protection Rights

An Alabama statute compelling the reportage of names of HIV+
individuals to the state board of health did not violate a doctor's
Fourteenth Amendment right to equal protection, according to the
Alabama Supreme Court. _Middlebrooks v. State Board of Health_,
1998 WL 4751 (Jan. 9).  

Dr. Steven Middlebrooks, an infectious disease specialist, refused
to provide the names and addresses of his HIV+ patients to the
State Board of Health.  When the Board sued him to compel
disclosure of the names, Dr. Middlebrooks argued that his right to
equal protection was violated because the manufacturers of
self-testing kits and the out-of-state labs that performed their
testing were not swept into the law's reporting requirements.  

The court, after an inexplicable discussion summarizing why it felt
the statute did not run afoul of any constitutional privacy
concern, conclusorily dismissed Middlebrooks' equal protection
argument, stating that the out-of-state labs were not "similarly
situated" to Middlebrooks because they do not know the identity of
the persons whose blood they test, and that the companies that sold
the testing kits are not "similarly situated" because they did not
know whether the purchasers of their kits were HIV+.  _Dirk
Williams_

No Individual Liability Under Discrimination Laws

In a decision issued on Dec. 11, U.S. District Judge Gonzalez
(S.D.Fla.) ruled that individual officers and employees of a
company charged with HIV-related employment discrimination are not
personally liable under various statutes and must be dismissed as
defendants from the case.  _Huck v. Mega Nursing Services, Inc._,
1997 WL 817204.  Patricia Huck, a former employee of Mega Nursing
Services, claimed she was terminated because she is HIV+, and
sought damages against her employer and four individual officers or
employees under the Americans With Disabilities Act, the
Rehabilitation Act sec. 504, the Florida Omnibus AIDS Act and the
Florida Civil Rights Act.

Relying on a recent 11th Circuit decision, _Mason v. Stallings_, 82
F.3d 1007 (1996), Judge Gonzalez found that individual officers and
employees of corporate employers are not personally liable under
the ADA for employment discrimination.  While there is no
controlling 11th Circuit precedent on the question under sec. 504
of the Rehabilitation Act, Gonzalez found authority from other
courts supporting the view that only persons who are in a position
to "accept or reject" federal financial assistance (the nexus
required for sec. 504 applicability to a workplace) could be held
liable under that statute, but that Huck had not made specific
allegations to this effect concerning the named defendants. 
Gonzalez found that the Florida Civil Rights Act had been construed
similarly to Title VII of the federal Civil Rights Act, under which
individual suits seeking to place personal liability on corporate
officers and employees for discrimination are not authorized.

Finally, Huck asserted her claim under the Florida Omnibus AIDS
Act, as to which there was no case authority to inform the court. 
Interestingly, the Act itself states that "No person may fail or
refuse to hire or discharge any individual. . . on the basis of
knowledge or belief that the individual has taken an [HIV] test or
the result or perceived results of such test. . ."  The Act does
not define "person."  Rather than apply the plain meaning of
"person" to suggest that individual corporate officers or employees
could be personally liable for discriminatory acts under this law,
Gonzalez declared that "the spirit of the law is similar to that of
Title VII, the ADA, the Florida Rehabilitation Act, and the Florida
Civil Rights Act, in the area of employer/employee liability," and
thus that individuals could not be held personally liable under
this law, either, since the judge doubted that the Florida
legislature intended to provide such a cause of action.

Thus, claims against the individual defendants were dismissed and
the action is left to proceed solely against the corporate
employer.  A.S.L.

N.Y. Judge Lacked Authority to Order HIV Test in Attempted Sexual
Abuse Case

A 4-judge panel of the N.Y. Appellate Division, 2nd Dept.,
unanimously ruled on Jan. 20 that Nassau County Court Judge Daniel
R. Palmieri lacked authority to order an HIV test of a defendant
who pled guilty to attempted sexual abuse.  _Donald P. v.
Palmieri_, 1998 WL 25748.

The petitioner in this Article 78 NY CPLR proceeding, Donald P.,
was indicted on charges of rape, sodomy and sexual abuse.  He
testified before the Grand Jury that he had sexual intercourse with
the complainant but that the sex was consensual.  The charges in
the indictment were reduced and he was permitted to plead guilty to
attempted sexual abuse, based upon his admission in court that he
attempted forcible sexual contact with the complaint.  Before
sentencing was imposed, the complainant asked that Donald P. be
tested for HIV, and Judge Palmieri granted the application for
testing and then imposed a sentence for the guilty plea.  Donald P.
then brought an action against Judge Palmieri in the Appellate
Division, seeking a prohibition of the testing order.

After indicating that a "proceeding in the nature of prohibition"
is the appropriate vehicle for Donald P. to pursue relief from the
testing order, the court stated its agreement with Donald P. that
in the statute authorizing forced HIV-testing upon a complainant's
request, the legislature limited such testing orders to cases where
the defendant was convicted of a criminal act that could plausibly
transmit HIV.  "Common sense dictates that the Legislature did not
intend to mandate HIV testing based on the conviction of any felony
in Penal Law article 130 [the sex crimes article], as that would
encompass defendants convicted of acts of sexual contact which
carry no risk of HIV transmission."  The law limits testing to
those convicted of unlawful sexual intercourse, including forcible
deviate sexual intercourse.  "The statute does not make any
provision for circumstances such as these, where the charges are
reduced pursuant to a plea.  Accordingly, since the court did not
have the statutory authority to order the petitioner to be tested,
he established a clear legal right to relief."  A.S.L.

3rd Circuit Says Medically Controllable Condition is a Disability

Lining up with courts taking a more expansive view of ADA coverage,
the U.S. Court of Appeals for the 3rd Circuit held in _Matczak v.
Frankford Candy and Chocolate Co._, No. 97-1057 (Nov. 18), that an
epileptic who controlled his condition through medication could
qualify as a person with a disability under Title I of the
Americans With Disabilities Act.  The opinion by Circuit Judge
Lewis basis its holding on two sources: EEOC guidelines clearly
state that an individual's alleged disability should be evaluated
without respect to the availability of medications for the
condition, and a House report on the pending ADA bill stated that
people with potentially disabling conditions should be covered as
persons with disabilities even if medication existed for their
conditions.  In so holding, the 3rd Circuit differs with several
other federal courts that have ruled in the past few years that
persons whose medical conditions are controlled through medication
are not actually disabled and thus no protected from discrimination
by the ADA.  This issue is of obvious significance to people living
with HIV/AIDS who are avoiding actually disabling opportunistic
infections through medication.  A.S.L.

Federal Court Adopts Restrictive View of Disability Law

In a non-AIDS case that illustrates the trend in federal courts
towards a narrow interpretation of the Americans With Disabilities
Act, Senior District Judge Moran of the U.S. District Court for the
Northern District of Illinois ruled in _Hirsch v. National Mall &
Service Inc._, 1997 WL 757723 (Nov. 24) (not officially published),
that a person with severe lymphoma did not have a statutory
disability and that, in any event, his allegation that he was
discharged because of the expenses associated with his illness did
not state a prima facie claim of discrimination under Title I of
the Americans With Disabilities Act (ADA).

Hirsh began working for the defendant company in 1962.  In the
early 1990s he developed non-Hodgkins lymphoma.  As his cancer
progressed, he made increasing demands on the employee benefits
plan.  The employer was concerned about costs, and allegedly
conferred with a representative of its insurer to determine whether
the discharge of Hirsch might ease the upwards pressure on the
company's insurance premiums.  Hirsch was discharged shortly after
he asked to be allowed to cut down his work schedule due to the
debilitating effects of his cancer; at the time of discharge, this
30+ year employee was offered 6 weeks of severance pay and 9 months
of continued insurance coverage.  Hirsch died about 18 months
later, and his widow was substituted as plaintiff in the pending
lawsuit.  The action claims violations of the ADA and section 510
of the Employee Retirement Income Security Act (ERISA), who
prohibits retaliating against an employee for asserting rights
under a benefit plan.

The defendant sought dismissal of the ADA and ERISA claims. 
Addressing first the ADA claim, Judge Moran asserted that Congress
intended only to prohibit discrimination against persons with
disabilities that was motivated by false stereotypes about the
capabilities of persons with disabilities.  Moran claimed that
Congress was not concerned with disability discrimination motivated
by concerns about the costs associated with disabilities.  Further,
Moran asserted that Hirsch's lymphoma did not qualify as a
disability, because at the time of his discharge he was still
capable of working, and that Hirsch's complaint did not contain a
detailed recitation of how his lymphoma had actually disabled him. 
Moran's decision dismissing the ADA claim appears directly contrary
to decades of precedent under the ADA and its predecessor statute,
section 504 of the Rehabilitation Act of 1973, including cases
specifically holding that expense-motivated discharges of persons
with disabling conditions violates the law.

As to the ERISA claim, Moran found that Hirsch's essentially
unrefuted allegations stated a prima facie case of retaliatory
discrimination under section 510.  The employer cited its offer of
9 months continued coverage to suggest that it was not
discriminating in the provision of employee benefits, but the judge
noted that there is a significant difference between 9 months
coverage and coverage without a firm termination date that is
linked to continued employment.  Thus, Moran granted judgement
against the employer on the ERISA claim.

This case is significant for illustrating the disturbing trend of
the federal courts in gutting the protection of the ADA.  In the
course of the discussion on whether Hirsch's cancer is a
disability, for example, Moran cites cases adopting the view that
HIV-infection is not a per se disability, and placing a burden on
the plaintiff to demonstrate the actual disabling effects of their
condition in order to qualify for protection against
discrimination.  The Supreme Court will be addressing this issue
shortly in _Abbott v. Bragdon_, 107 F.3d 934 (1st Cir. 1997), cert.
granted sub. nom _Bragdon v. Abbott_, No. 97-156, 11/26/97.  A.S.L.

NY Appellate Division: Total Ban on Distributing Condoms in Park is
Unconstitutional

In a per curiam decision issued Dec. 30 in _Kalke v. City of New
York_, 1997 WL 795297, the N.Y. Appellate Division, First
Department, affirmed a ruling by New York County Supreme Court
Justice Alice Schlesinger that a city regulation that was invoked
to bar a group from distributing and demonstrating the use of
condoms during an annual outdoor basketball tournament in a city
park was unconstitutional.  The court opined that such activities
"constitute expressive conduct sufficiently imbued with elements of
communication falling within the protection of the First
Amendment."  While the court found that the city had a "legitimate
governmental purpose of preserving the quality and character of
those parks," the regulation was unconstitutional "insofar as it
completely prohibits any demonstrations of products in the parks
whatsoever" because it is "broader than what is necessary to
further the expressed governmental interest, in effect cutting off
an entire medium of expression." A.S.L.

Denial of HIV+ Applicant Held Non-Discriminatory

After a bench trial, the U.S. District Court for the Eastern
District of Louisiana found that Pansy Griffin, an HIV+ woman, was
not the victim of discrimination when she was denied admission to
Cameron College.  _Griffin v. Cameron College_, 1997 WL 795692
(Dec. 29).  

Griffin had a long history of drug abuse and learned in early 1995
that she was HIV+.  She had previously served time in jail for
prostitution and drug-related offenses.  In 1995, she applied to
the Medical Assistant program at Cameron College.  Griffin
qualified for admission by having a high school diploma and by
passing a 20 minute written test.  At the admissions interview, she
informed her interviewer that she was HIV+.  After checking with
the Dean of Admissions, the interviewer told Griffin that her HIV
status was not a problem.

As part of the admissions interview, Griffin was escorted to the
Financial Aid Department to discuss financing the Medical Assistant
program.  The Financial Aid Department informed Griffin that she
could finance part of the program with a Pell Grant.  Cameron
College could finance the rest if Griffin could show an ability to
repay the loan after graduation.  Griffin indicated that she could
not pay.  They recommend that Griffin attempt to obtain Vocational
Rehabilitation, which she did not do.  The evidence put forth at
trial indicated that Griffin was able to get Vocational
Rehabilitation funding to attend a different school in 1996.  

Based on the evidence, the court found that Griffin was denied
admission to Cameron College purely on a financial basis and not
due to her HIV status.  _Todd V. Lamb_

Malicious Wounding Conviction Upheld for Biting

A Virginia appellate court upheld a malicious wounding conviction
in an HIV biting case.  _Hall v. Commonwealth of Virginia_, 1997 WL
792952 (Va.Ct.App. Dec. 30).

James Hall shoplifted a telephone, and two store employees
apprehended him.  Announcing he had AIDS, Hall bit them, breaking
the skin.  He escaped but was subsequently arrested.  Following a
bench trial, Hall was convicted of malicious wounding, which
requires malicious intent to maim, disfigure, disable or kill. 
Hall appealed, claiming he had intended only to escape, and that
there was no evidence of malice.  

On appeal, Judge Willis reasoned that having escape as a primary
goal did not preclude Hall from harboring a secondary criminal
purpose.  Judges Willis and Annunziata concluded there was
sufficient evidence to uphold the conviction.  Judge Benton
dissented, arguing that Hall's flight made escape a more likely
motive than malice.  _Otis R. Damslet_

AIDS Confidentiality Suit Against Pharmacy Settled

A settlement was reached in _Grzadzinski v. Castellano & Arbor
Drugs_ in a Michigan trial court after four days of trial on Jan.
8.  Stanley Grzadzinski, 43, who was diagnosed HIV+ in 1989 and
developed full-blown AIDS in 1993, alleged that Dawn Castellano, a
clerk at Arbor Drugs, had realized based on his prescriptions that
he was HIV+ and revealed this information to her son, who attends
a middle school with Grzadzinski's children.  The son began
taunting the children, referring to Jamie Grzadzinski (now 14) as
an "AIDS baby".  As a result, Stanley and his wife, who had been
hoping to keep Stanley's condition a secret from the children as
long as possible, had to discuss his medical situation with the
children.  They sued Castellano and Arbor Drugs for breach of
confidentiality, claiming $10,000 damages (the amount necessary to
bring an action in circuit court in Michigan).  The amount of the
settlement was not revealed by the parties.  _Chicago Tribune_,
Jan. 9.  A.S.L.

HIV+ Lesbian Denied Custody of Her Children

Coweta County, Georgia, Superior Court Judge Aubrey Duffey denied
custody of her children to Patrice McAdow, who now charges that she
is the victim of homophobic/AIDSphobic discrimination and is vowing
to appeal.  _McAdow v. McAdow_, _Atlanta Constitution_, Jan. 18.

Duffey ruled after a Jan. 15 hearing, at which Patrice McAdow
related to a reporter that the judge said she was "an immoral
parent" because she is an HIV+ lesbian living with another woman. 
Duffey's ex-husband had known she was a lesbian and HIV+ for many
years, but apparently became serious about taking away custody of
their children after Patrice began living with another woman last
year.  Kevin McAdow explained, "She's (kissing) in front of the
children and she doesn't think they'll be affect.  I don't want my
children to grow up to be gay."  

The children, a girl and a boy, are both pre-schoolers.  Under an
October 1997 separation agreement, the parents had joint custody
with primary physical custody rotating every six months, with
physical custody becoming permanent with Patrice when the older
child reaches kindergarten age in a few years.  Patrice's six month
rotation was to begin Jan. 1, but Kevin hired a lawyer and filed a
motion to vacate the agreement when he learned about Patrice's new
domestic partner.  A.S.L.

FDA Blood Libel on Gay Men Boils to the Surface Again

Under a U.S. Food & Drug Administration regulation, any male blood
donor who has had sex with another man even once since 1977 is
ineligible to donate blood.  For years, blood collection agencies
around the country have been catching flack for administering this
obviously over-broad exclusion of an entire class of persons from
blood donation (and for maintaining computer databases with the
names of individuals who answered "yes" to that question on
screening forms).  In some cases, institutions that maintain non-
discrimination policies have stopped holding on-site blood drives
due to this policy.  

According to a Jan. 22 article in the _Worcester Telegram &
Gazette_, this issue was recently brought to the newspaper's
attention by a local gay writer, who reported that a gay male
friend who has a rare blood type routinely lies on the screening
form so that he can give blood.  A spokesperson for the Red Cross
told the newspaper that in the last six months the organization has
asked the American Association of Blood Banks to request the FDA to
re-examine this regulation.  

According to an FDA spokesperson, the agency's Blood Products
Advisory Committee discussed the matter at its December meeting,
but decided there should be further studies of alternative methods
for protecting the blood supply before making any change in the
current screening methods.  The method of screening blood donors is
a tricky question for blood collection agencies, as several have
been hit for large money verdicts by HIV+ transfusion-AIDS victims
who contended that the agencies were insufficiently vigilant in the
period before licensing of the HIV antibody tests in their
screening practices.  A.S.L.

AIDS Law & Society Notes

A Louisiana woman has been charged with violating a 10-year old
statute that makes it a crime to intentionally expose somebody to
HIV.  Jo Ann Lavigne was arrested after a man with whom she had
unprotected sex over a period of a month told sheriff's deputies in
Jefferson parish that he had specifically asked Lavigne about her
HIV status but that she had stated she was uninfected;
subsequently, a mutual friend showed him two government documents
identifying Lavigne as HIV+.  The news report of this incident in
the _Times Picayune_ (Jan. 1) does not specify the nature of the
government documents, which are considered crucial by the
prosecution for proving that Lavigne knew she was HIV+ at the time
of the incidents.  

Pennsylvania has now joined seven other states in requiring
professional boxers and kick-boxers to obtain HIV-testing before
they can compete.  The state's Independent Regulatory Review
Commission gave the green light to a proposal by the State Athletic
Commission on Jan. 13.  _Philadelphia Inquirer_, Jan. 14. 

Orange County, Florida, Judge Deb Blechman imposed a special
condition for probation for Jerrime Day, who pleaded no contest on
Jan. 21 to a charge of having sex with a woman without telling her
that he is HIV+.  Judge Blechman is having written consent forms
made up, and Day can't have sex with anybody unless they sign one
of the forms, which will indicate his HIV status.  Day's lawyer,
Timothy Hartung, suggested this as a way to keep his client out of
trouble in the future.  Hartung said Day's current girlfriend will
be the first to sign up when the forms become available.  _Dallas
Morning News_, Jan. 24.

A federal jury in St. Louis rejected a former inmate's claim
against two prison officials that they should be held responsible
for his HIV infection.  The former inmate, Michael Blucker, claims
he was infected as a result of prison rapes, and that various
prison officials failed in their constitutional obligations to keep
him safe in the slammer.  The argument between the parties was over
whether there could be 8th Amendment liability if prison officials,
disbelieving a prisoner's claims that he was being sexually
assaulted, failed to take action to protect him.  _St. Louis Post-
Dispatch_, Jan. 24.

The Montgomery County, Maryland, Board of Education has settled a
lawsuit brought by an HIV+ student who claimed a substitute teacher
had wrongfully revealed his HIV status to other students.  _John
Doe v. Montgomery County Board of Education_.  The lawsuit charged
negligence and invasion of privacy.  The student decided to accept
a settlement offer of undisclosed amount out of fear that his
identity would become more widely public should the case go to
trial.  The county's insurance fund will pay for the settlement. 
_Washington Post_, Jan. 17.

_Federal Times_ reported Jan. 26 that an EEOC Administrative Judge,
Lisa Schreffler, ruled that the Veterans Affairs Dept. must
reinstate an HIV+ employee who was discharged after revealing his
illness.  The employing VA center claimed the worker was
excessively absent and tardy for work, but Schreffler found there
was no evidence that the employee's attendance record caused a
hardship for the center.  She awarded back pay with interest and
$185,000 in compensatory damages.  If the VA rejects the ruling,
the employee, Carl Mack, can appeal it to the EEOC or pursue it in
federal court.

A Florida jury awarded $1.3 million in damages to an HIV+ employee
of AT&T Wireless Services who claimed that a supervisor threatened
to fire him if he would not take a disability leave.  _Kwiatek v.
McCaw Cellular Communications of Florida, Inc._, No. 95-8059.  The
Dec. 12 verdict is subject to reduction, however, as $1 million
represents punitive damages which will likely be reduced by the
court due to a state civil rights law cap on such damages. 
Kwiatek's attorney told the press that his client's problems began
the day he told his supervisor he was HIV+.  Kwiatek had been with
the company (which was recently purchased by AT&T) for five years;
he alleged that as soon as he told the company he was HIV+, they
began reprimanding him for using sick leave, giving him bad job
evaluations, and threatening discharge if he would not go on
disability leave.  A spokesperson for AT&T stated that the verdict
would be appealed.  _BNA Daily Labor Report_ No. 250, 12/31/97, A-
2.  

Lambda Legal Defense Fund and the AIDS Legal Council of Chicago
filed a lawsuit Jan. 21 against Mutual of Omaha Insurance Co.,
claiming that Mutual's HIV-related caps on coverage in its health
insurance policies violate both the Americans With Disabilities Act
and the Illinois Insurance Code.  The suit was filed in the U.S.
District Court for the Northern District of Illinois, on behalf of
"John Doe" plaintiffs who were directly affected by the policy
caps.  A.S.L.

International AIDS Notes

The Japanese Health and Welfare Ministry has decided to classify
HIV-infection as a disability in order to make those affected
presumptively eligible for a variety of government benefits.  The
prefectural governments will carry out the certification of
eligibility based on blood tests, classifying persons for different
levels of benefits based on the severity of their medical
conditions.  A person who is officially certified as disabled in
Japan is issued a special passbook and may qualify for a home
helper and short stays in government facilities, as well as
government assistance with medical expenses.  Confidentiality
arrangements are still to be worked out.  (At present, only those
infected through tainted blood products receive free medical
treatment, but the ministry's decision will extend assistance to
those who contracted HIV through sexual intercourse or other
means.)  _Mainichi Daily News_, Dec. 18.  This is an interesting
development in light of the ongoing controversy in the U.S. courts
over whether asymptomatic HIV-infection should be considered a
disability under the Americans With Disabilities Act. 

The Venezuela Supreme Court has ruled in a case involving four
members of the military with AIDS that people with AIDS generally
have a right to be free of discrimination in employment, but in the
special environment of the military the state can exclude persons
with AIDS because of the personal risks for the PWA as well as the
possibility of contagion.  A similar ruling has also recently been
made by a federal court in Australia, where it is expected to be
appealed to the High Court of Australia.

The Israel AIDS Task Force reports that the Health Ministry has
agreed to classify AIDS as a "heavy illness," in the same category
as chronic liver deficiency, gauche, thalassemia and hemophilia. 
The significance of the classification is that the financial costs
of the national health insurance program's coverage for AIDS will
now be totally subsidized by the government, thus ending a period
of great political struggle during which insurance administrators
were refusing to cover various aspects of AIDS treatment, including
expensive new drugs. According to a Jan. 23 article in _Ha'aretz_,
a daily newspaper, the Executive Director of the Ministry stated
that "with the inclusion of PWAs into this list, they will be more
accepted by the Health Insurance Schemes as members than before." 


The government of India has announced a draft policy for prevention
and control of AIDS that will attempt to consolidate the current
patchwork of approaches to AIDS issues throughout the country into
one unified policy.  The policy incorporates protection for the
civil rights of people with HIV/AIDS, the expansion of counselling
services, improvement of public health education, and opposition to
mandatory HIV testing measures.  _The Hindu_, Jan. 16. A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Amar, Akhil Reed, _Race, Religion, Gender, and Interstate
Federalism: Some Notes from History_, 16 QLR 19 (1996).

Backer, Larry Cata, _Fairness as a General Principle of American
Constitutional Law: Applying Extra-Constitutional Principles to
Constitutional Cases in_ Hendricks_ and _M.L.B., 33 Tulsa L.J. 135
(Fall 1997).

Badgett, M.V. Lee, _A Queer Marketplace: Books on Lesbian and Gay
Consumers, Workers, and Investors (Review Essay)_, 23 Feminist
Studies 607 (Fall 1997).

Bartlett, Peter, _Sodomites in the Pillory in Eighteen-century
London_, 6 Social & Legal Studies 553 (Dec. 1997) (symposium on
Legal Perversions).

Borneman, John, _Caring and Being Cared for: Displacing Marriage,
Kinship Gender and Sexuality_, 154 Int'l Social Science J. 573
(Dec. 1997).

Brower, Todd, _"A Stranger to Its Laws:" Homosexuality, Schemas,
and the Lessons and Limits of Reasoning by Analogy_, 38 Santa Clara
L. Rev. 65 (1997).

Brown, Jennifer Gerarda, _Extraterritorial Recognition of Same-Sex
Marriage: When Theory Confronts Praxis_, 16 QLR 1 (1996).

Cain, Patricia A., _Imagine There's No Marriage_, 16 QLR 27 (1996).

Cameron, Hon. Mr. Justice Edwin, _Rights, Constitutionalism and the
Rule of the Law_, 114 S. African L.J. pt. 3, 504 (1997) (openly-gay
author was gay rights movement leader before appointment to the
South African Constitutional Court).

Cox, Barbara J., _Same-Sex Marriage and the Public Policy Exception
in Choice-of-Law: Does It Really Exist?_, 16 QLR 61 (1996).

Crane, Daniel A., _The Original Understanding of the "Effects
Clause" of Article IV, Section 1 and Implications for the Defense
of Marriage Act_, 6 Geo. Mason L. Rev. 307 (Winter 1998).

Diduck, Alison, and William Wilson, _Prostitutes and Persons_, 24
J. L. & Society (UK) 504 (Dec. 1997).

Doan, Laura, _`Gross Indecency between Women': Policing Lesbians or
Policing Lesbian Police?_, 6 Social & Legal Studies 533 (Dec. 1997)
(symposium on Legal Perversions).

Fajer, Marc A., _Toward Respectful Representation: Some Thoughts on
Selling Same-Sex Marriage_, 15 Yale L. & Policy Rev. 599 (1997)
(book review).

Farrugia, Paul J., _The Consent Defence: Sports Violence,
Sadomasochism, and the Criminal Law_, 8 Auckland U. L. Rev. 472
(1997).

Flynn, Leon, _`Cherishing All Her Children Equally': The Law and
Politics of Irish Lesbian and Gay Citizenship_, 6 Social & Legal
Studies 493 (Dec. 1997) (symposium on Legal Perversions).

Fried, Charles, _Reflections on Crime and Punishment_, 30 Suffolk
U. L. Rev. 681 (Fall 1997)(once fiercely-conservative Solicitor
General for Reagan, now a Massachusetts Supreme Court justice,
muses on crime and punishment - he's really mellowed! Note the
section on prison rape)

Halmai, Gabor, and Kime Lan Scheppele, _Constitutional Protection
for Homosexuality in Hungary_, 3 East European Hum. Rts. Rev. 17
(1997).

Howe, Adrian, _More Folk Provoke Their Own Demise: Homophobic
Violence and Sexed Excuses -- Rejoining the Provocation Law Debate,
Courtesy of the Homosexual Advance Defence_, 19 Sydney L. Rev. 336
(September 1997).

Jackson, Joseph S., _Persons of Equal Worth:_ Romer v. Evans_ and
the Politics of Equal Protection_, 45 UCLA L. Rev. 453 (Dec. 1997).

Koppelman, Andrew, _Same-Sex Marriage and Public Policy: The
Miscegenation Precedents_, 16 QLR 105 (1996).

Kramer, Larry, _The Public Policy Exception and the Problem of
Extra-Territorial Recognition of Same-Sex Marriage_, 16 QLR 153
(1996).

Kreimer, Seth F., _Territoriality and Moral Dissensus: Thoughts on
Abortion, Slavery, Gay Marriage and Family Values_, 16 QLR 161
(1996).

Moran, Leslie J., _Introduction/After Word_, 6 Social & Legal
Studies 467 (Dec. 1997)(introduction to symposium on Legal
Perversions).

Morgan, Wayne, _A Queer Kind of Law: The Senate Inquires Into
Sexuality_, 2 Int'l J. Discrim. & Law 317 (1997) (special
Australian issue).

Perry, Sandra J., and Ross L. Fink, Doe v. City of Belleville_:
Should the Employer Differentiate Between Horseplay and Same-Sex
Sexual Harassment?_, 48 Lab. L. J. 749 (Dec. 1997).

Phillips, Oliver, _Zimbabwean Law and the Production of a White
Man's Disease_, 6 Social & Legal Studies 471 (Dec. 1997) (symposium
on Legal Perversions).

Rumney, Philip, and Martin Morgan-Taylor, _Recognizing the Male
Victim: Gender Neutrality and the Law of Rape: Part Two_, 26 Anglo-
Amer. L. Rev. 330 (July-Sept. 1997).

Schaffner, Joan E., _The Essence of Marriage_, 66 Geo. Wash. L.
Rev. 195 (Nov. 1997) (book review).

Silverman, Linda J., _Can the Island of Hawaii Bind the World?  A
Comment on Same-Sex Marriage and Federalism Values_, 16 QLR 191
(1996).

Stanko, Elizabeth A., and Paul Curry, _Homophobic Violence and the
Self `At Risk': Interrogating the Boundaries_, 6 Social & Legal
Studies 513 (Dec. 1997) (symposium on Legal Perversions).

Sullivan, Andrew, _Recognition of Same-Sex Marriage_, 16 QLR 13
(1996).

Vache, James M. and Mark Edward DeForrest, _Truth or Consequences:
The Jurisprudential Errors of the Militant Far-Right_, 32 Gonzaga
L. Rev. 593 (1996/97)(part of symposium on race relations and
conflict in the U.S.).

Ward, Robert V., Jr., _Hate Crimes_, 32 Gonzaga L. Rev. 511
(1996/97) (part of symposium on race relations and conflict in the
U.S.).

Wintemute, Robert, _Lesbian and Gay Britons, the Two Europes, and
the Bill of Rights Debate_, 5 European Hum. Rts. 466 (1997).

Wolfson, Evan, _The Freedom to Marry: Our Struggle for the Map of
the Country_, 16 QLR 209 (1996).

Wolfson, Evan, and Michael F. Melcher, _The Supreme Court's
Decision in_ Romer v. Evans_ and Its Implications for the Defense
of Marriage Act_, 16 QLR 217 (1996).

Wolfson, Evan, and Michael F. Melcher, _Constitutional and Legal
Defects in the "Defense of Marriage" Act_, 16 QLR 221 (1996).

_Student Notes & Comments:_

Emnett, William Mason, _Queer Conflicts: Mediating Parenting
Disputes Within the Gay Community_, 86 Georgetown L.J. 433 (Nov.
1997).

Hindman, Robert A., _Megan's Law and Its Progeny: Whom Will the
Courts Protect?_, 39 Boston Coll. L. Rev. 201 (Dec. 1997).

Jacques, Stephen C., Reno v. ACLU_: Insulating the Internet, the
First Amendment, and the Marketplace of Ideas_, 46 Amer. U. L. Rev.
1945 (Aug. 1997).

Johnson, Julie L. B., _The Meaning of "General Laws": The Extent of
Congress's Power Under the Full Faith and Credit Clause and the
Constitutionality of the Defense of Marriage Act_, 145 U. Penn. L.
Rev. 1611 (June 1997).

Linehan, Colleen, _Same-Sex Sexual Harassment Claims: Maintaining
Equality Under Title VII - _Wrightson v. Pizza Hut of America,
Inc., 81 Marquette L. Rev. 161 (Fall 1997).

Mangum, Joanna P.L., Wrightson v. Pizza Hut of America, Inc._: The
Fourth Circuit's "Simple Logic" of Same-Sex Sexual Harassment Under
Title VII_, 76 N.C. L. Rev. 306 (Nov. 1997).

Pantazis, Angelo, _An Argument for the Legal Recognition of Gay and
Lesbian Marriage_, 114 S. African L.J. pt. 3, 556 (1997).

Pantazis, Angelo, _Meanings of Transsexualism_, 13 S. African J.
Hum. Rts. 468 (1997).

Provost, Melissa A., _Disregarding the Constitution in the Name of
Defending Marriage: The Unconstitutionality of the Defense of
Marriage Act_, 8 Seton Hall Const. L.J. 157 (Fall 1997).

Ramsey, Coe William, _Burning the Global Village to Roast a Pig:
The Communications Decency Act of 1996 Is Not "Narrowly Tailored"
in_ Reno v. ACLU, 32 Wake Forest L. Rev. 1283 (1997).

Recent Cases, _Statutory Interpretation - Americans With
Disabilities Act - Fourth Circuit Holds That Asymptomatic HIV
Cannot Constitute a Disability -_ Runnebaum v. NationsBank of
Maryland, N.A.,_ 123 F.3d 156 (4th Cir. 1997)(en banc)_, 111 Harv.
L. Rev. 843 (Jan. 1998) (criticizes 4th Circuit ruling as "an
unduly restrictive construction of the statutory language" that
"evidences disregard for administrative and judicial authority").

Robb, Barbara A., _The Constitutionality of the Defense of Marriage
Act in the Wake of_ Romer v. Evans, 32 New Eng. L. Rev. 263 (Fall
1997).

Walker, Ernest J., _The Communications Decency Act: A Cyber-Gag to
First Amendment Rights on the Internet_, 75 U. Detroit Mercy L.
Rev. 187 (Fall 1997).

_Symposia:_

Symposium on Same-Sex Marriage, 16 QLR Nos. 1 & 2 (1996); Symposium
on Legal Perversions, 6 Social & Legal Studies No. 4 (Dec.
1997)(individual articles noted above).

AIDS & RELATED LEGAL ISSUES:

Iheukwumere, Emmanuel O., _HIV-Positive Medical Practitioners:
Legal and Ethical Obligations to Disclose_, 71 St. John's L. Rev.
715 (Fall 1997).

Kapp, Marshall B., _Treating Medical Charts Near the End of Life:
How Legal Anxieties Inhibit Good Patient Deaths_, 28 U. Toledo L.
Rev. 521 (Spring 1997).

Rothstein, Laura F., _Health Care Professionals with Mental and
Physical Impairments: Developments in Disability Discrimination
Law_, 31 St. Louis U. L. J. 973 (Summer 1997).

Schneider, Elizabeth K., _The ADA - A Little Used Tool to Remedy
Nursing Home Discrimination_, 28 U. Toledo L. Rev. 489 (Spring
1997).

Sturner, Jan W., _Preemployment Medical Exams Under the ADA:
Conditional Job Offers and the Application of the Mixed-Motives
Framework_, 50 Ark. L. Rev. 449 (1997).

_Student Notes & Comments:_

Fleckner, Jamie, _A Case Study of New Textualism in State Courts:_
Doe v. Marselle_ and the Confidentiality of HIV-Related
Information_, 30 Conn. L. Rev. 295 (Fall 1997).

Harris, Roger E., _The Need to Know Versus the Right to Know:
Privacy of Patient Medical Data in an Information-Based Society_,
30 Suffolk U. L. Rev. 1183 (Winter 1997) (frequent mention of
HIV/AIDS confidentiality issues).

Sherman, Susan M., _Constitutional Law -- Public School Condom
Distribution Withstands Parental Privacy and Freedom of Religion
Challenge -- _Curtis v. School Comm. of Falmouth, 420 Mass. 749,
652 N.E.2d 580 (1995), cert. denied, 116 S.Ct. 753 (1996), 30
Suffolk U. L. Rev. 1227 (Winter 1997).

Vetstein, Richard D., _Rape and AIDS in Prison: On a Collision
Course to a New Death Penalty_, 30 Suffolk U. L. Rev. 863 (Fall
1997).

_Symposia:_

"Defining the Parameters of Coverage Under the Americans With
Disabilities Act: Who is `An Individual With a Disability?'", 42
Villanova L. Rev. No. 2 (1997).  Several articles look potentially
interesting in re the current dispute over coverage for HIV+
asymptomatic persons, but none of the titles specifically reference
AIDS issues.  Of particularly likely relevance are the following: 
Lanctot, Catherine J., _Ad Hoc Decision Making and Per Se
Prejudice: How Individualizing the Determination of "Disability"
Undermines the ADA_ (p. 327); Burgdorf, Robert L., Jr.,
_"Substantially Limited" Protection from Disability Discrimination:
The Special Treatment Model and Misconstructions of the Definition
of Disability_ (p. 409); Mayerson, Arlene B., _Restoring Regard for
the "Regarded As" Prong: Giving Effect to Congressional Intent_ (p.
587).

EDITOR'S NOTE:

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of identified writers, and are not official positions of the
Lesbian & Gay Law Association of Greater New York or the LeGaL
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attributable to the Editor.  Correspondence pertinent to issues
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