LESBIAN/GAY LAW NOTES ISSN 8755-9021 March 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 LeGaL Homepage: http://www.interport.net:80/~le-gal Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln (C) 1998 by the LeGaL Foundation of the Lesbian & Gay Law Association of Greater New York $45/yr by subscription; Foreign Rate US$60 CINCINNATI ISSUE 3 UPHELD AGAIN; POSSIBLE SUPREME COURT REVIEW TO FOLLOW A sharply divided 6th Circuit Court of Appeals has refused to reconsider a 1997 panel decision that upheld the constitutionality of Cincinnati (Ohio) Issue 3, a charter measure virtually identical to Colorado Amendment 2, that was enacted by city voters in 1993. _Equality Foundation of Greater Cincinnati v. City of Cincinnati_, 75 Fair Emp. Prac. Cas. (BNA) 1763, 1998 U.S.App. LEXIS 1763 (Feb. 5). Opponents of Issue 3 will petition the Supreme Court for certiorari. This could be the Court's first opportunity to expound on the meaning of its landmark equal protection ruling in _Romer v. Evans_, 116 S.Ct. 1620 (1996). Issue 3 amended Cincinnati's charter to prohibit the use of the city's human rights ordinance in cases of anti-gay discrimination, and to prohibit the city from adopting any policy or taking any action that would accord civil rights protection to individuals because of their homosexuality. Issue 3 was challenged in court before it could go into effect, and held unconstitutional by a federal district judge, following the lead of the Colorado Supreme Court in the Amendment 2 case, _Evans v. Romer_. _Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati_, 860 F.Supp. 417 (S.D.Ohio 1994) (permanent injunction), 838 F.Supp. 1235 (S.D.Ohio 1993) (preliminary injunction). That decision was reversed by a 6th Circuit panel, which held, in effect, that homosexuality is a behavior rather than a status and that, consequently, on a theory derived from _Bowers v. Hardwick_, 478 U.S. 186 (1986), there could be no cognizable equal protection claim on behalf of a class of lesbian, gay and bisexual persons. _Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995). Shortly after issuing its decision in _Romer v. Evans_, the Supreme Court granted certiorari in _Equality Foundation_, vacated the 6th Circuit's decision, and remanded for reconsideration in light of _Romer_. 116 S.Ct. 2519 (1996). Dissenting from this decision, Justice Antonin Scalia (joined by Chief Justice Rehnquist and Justice Thomas) argued that a city ordinance is sufficiently distinguishable from a state constitutional amendment to remove the flaws the majority of the Court had found in the Colorado measure. Perhaps not surprisingly in light of its consistently dismissive approach to lesbian and gay constitutional claims, on remand the 6th Circuit panel reiterated its earlier ruling, crafting an opinion based on Justice Scalia's dissent. _Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati_, 128 F.3d 289 (6th Cir. 1997). The plaintiffs petitioned for rehearing en banc. Since a majority of the 15 judges of the circuit expressed no interesting in granting en banc rehearing, the case was returned to the three-judge panel, which issued a three-sentence decision, in effect stating that the panel believed it had already dealt with all the issue raised in the petition, and thus was denying the petition. However, Circuit Judge Danny J. Boggs, who was not on the panel, was moved to append a separate concurrence, appropriating and embellishing Scalia's arguments to justify upholding the constitutionality of Issue 3. In essence, Boggs argued that under our federal system there are two types of sovereign bodies: the federal government and the state governments, and that _Romer_'s holding, in its essence, was that a _state government_ "may not be structured so as to uniquely burden the ability of gays (or members of other non-suspect classes) to participate in the political life of the sovereign absent a demonstrable, rational reason for doing so." On the other hand, Boggs argued, a city such as Cincinnati is not a sovereign body; it has limited legislative authority under a home rule statute, delegated to it by the state. Thus, a city charter amendment precluding anti-discrimination protection for gays does not violate _Romer_, because the ability of gay people in Cincinnati to appeal to the sovereign (the state of Ohio) for assistance is in no way impaired by the purely local enactment. Boggs opined that Issue 3 "merely reflects the kind of social and political experimentation that is such a common characteristic of city government," and that it places gay people who reside or work in Cincinnati in no worse a position than the gay people who live in those Colorado municipalities that have not passed gay rights laws. Boggs insisted that gay Cincinnatians have only to mount a successful campaign to get the charter amendment removed, and thus are not restricted in their political participation. Further, rejecting the argument that there is no rational basis for Issue 3, Boggs parades hypothetical examples of gay citizens who might favor Issue 3 for a variety of personal economic or ideological interests, including the gay job-seeker who might fear that he would be less employable under a gay rights law because employers would be afraid of hiring somebody whose discharge was likely to lead to a discrimination complaint. Circuit Judge Gilman wrote a sharply worded dissenting opinion, joined by five other judges of the circuit, asserting that the panel opinion "conflicts with the Supreme Court's decision. . . ." "On remand," Gilman observed, "the panel sought to distinguish _Romer_ on a number of grounds, each of which ultimately had its genesis in the rationale proffered by _dissenting_ justices in the order remanding this case for further consideration. . . As a majority of the Supreme Court obviously did not share the views of the dissent, using the dissent's rationale is itself suspect. Moreover, the distinctions drawn by the dissent and later articulated by the panel appear to be either refuted by the facts or the principle of law announced in _Romer_." Gilman pointed out that by focusing on the political process aspects of the case, the panel had missed the point of the Supreme Court's _Romer_ decision. While the Colorado Supreme Court had treated this as a political process case, the Supreme Court had focused on the naked discrimination, finding virtually a per se equal protection problem raised by Amendment 2 (of which Issue 3 is almost a carbon copy). Gilman pointed out that the Equal Protection Clause applies to local no less than state governments, and so found the panel's purported distinction to be "of no controlling significance for purposes of the Equal Protection Clause._ "Whether or not we agree with the majority decision in _Romer_, we are of course obligated by law to give rulings of the Supreme Court full force and effect," concluded Gilman. "We believe the panel decision in this case draws `distinctions without a difference' and fails to abide by the key ruling in _Romer_ that `A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.' 116 S.Ct. at 1628." We are advised that counsel for Equality Foundation immediately began drafting their petition for certiorari. A.S.L. LESBIAN/GAY LEGAL NEWS New York High Court Upholds Sex Business Zoning Law By a vote of 6-0, the N.Y. Court of Appeals ruled Feb. 24 that a New York City ordinance intended sharply to reduce the presence of sex-related businesses in many neighborhoods does not violate the constitutional right of freedom of expression. The decision in _Stringfellow's of New York v. City of New York_,1998 WL 77749, gives the green light to the administration of Mayor Rudolph Giuliani to begin enforcement of an ordinance passed in October 1995 after several years of study, debate and agitation. The use of the city's Zoning Regulation to force a reduction in the presence of "adult" businesses in residential areas was a major component of Giuliani's quality of life initiative. The mayor argued that the presence of sex-related businesses, and especially their rapidly increasing presence in residential neighborhoods, had a negative effect on the city, both in depressing real estate values and in drawing ancillary street crime that, it was asserted, is attracted by such businesses. The City Planning Commission, various community boards, and the City Council performed studies and conducted hearings, ultimately generating a substantial volume of documentation on the effects of such businesses. At the same time, the City Planning Commission generated a zoning map that, it argued, eliminated the presence of such businesses from residential areas while leaving sufficient areas so that sex-related businesses could continue to operate in a manner accessible to their potential customers. The final plan was the subject of vigorous debate and criticism, especially from civil libertarians and some activists in the lesbian and gay community, who saw the new zoning regulations as part of an over-all crackdown on gay street life in the city. Under the regulations, several areas where gay sex-related businesses had clustered, especially in the West Village, would be zoned against such uses, which would be exiled to marginal riverfront and heavy industrial areas. The regulation requires that, even when located in areas zoned for adult uses, such businesses may be no closer together than 500 feet, and also must be located more than 500 feet from a church or school. Because the commercial and residential areas of the city are closely interwoven, the ordinance will effectively isolate sex-related businesses in waterfront or heavily industrial areas, very much off-the-beaten-path and hidden from the view of the casual tourist or business visitor to the city. The litigation, brought by three plaintiff groups including one group of sex-business patrons, was filed in state court, removed by the City to federal court, but remanded back to state court again on the plaintiff's petition, perhaps in recognition that the New York state courts have for several decades taken a broader view of the protection for free expression under the state constitution than the federal courts have taken under the 1st amendment, thereby making it efficient to have the state courts take first crack at the issue. Nonetheless, the trial court in Manhattan upheld the regulation on summary judgement, the Appellate Division in the 1st Department affirmed, and the Court of Appeals has now concurred. In a decision by Judge Vito Titone, one of the court's most liberal members (author of the famous _Braschi_ decision recognizing gay partners as family members, who recently announced he will be retiring this spring well before the end of his current term), the court apparently found this case easy to decide in light of its prior decision upholding similar zoning regulations in _Town of Islip v. Caviglia_, 73 N.Y.2d 544 (1989). In that case, the court established a three-part test to determine the constitutionality of zoning regulations challenged under art. I, sec. 8 of the NY Constitution (the analogue to the federal 1st Amendment). First, the ordinance's purpose must be unrelated to suppression of speech; second, the regulation must be no broader than necessary to achieve its non-speech related purpose; third, the regulation must leave reasonable alternative avenues of communication, which means there must be "ample space available for adult uses after the rezoning" and "no showing by the challenger that enforcement of the ordinance will either substantially reduce the total number of adult outlets or significantly reduce the accessibility of those outlets to their potential patrons." The City had done its homework well in anticipating litigation under this standard. The final report in support of the regulations by the City Planning Commission, and the hearing record compiled by the City Council, were replete with evidence going to all three points. Most significantly, the record included detailed studies tracking property values and crime statistics in areas with adult businesses compared to similar areas that didn't have significant numbers of adult uses, thus providing a non-speech related basis for the regulation. The record also included substantial evidence of consideration of various alternatives suggested by the challengers, and reasons articulated for their rejection. Perhaps most importantly, the City had identified approximately 500 potential sites for adult uses under the new zoning plan, many of which it characterized as being within short walking distance of subway stops or bus routes. Since at present there are fewer than 200 adult businesses in the city, this would suggest that the new zoning plan would not necessarily require a significant reduction in the total number of such businesses or make them inaccessible to customers. The one area where it appeared that the challengers might have done more to defeat the regulations was in the matter of alternative sites and access. They presented an affidavit from a land-use consultant, Robert McLaughlin, which was based on a selective criticism of various alternative sites mentioned in the City's documentation. McLaughlin convincingly showed that many of these sites were not really available for use by adult businesses, either because they were already occupied by unmovable uses (such as federal or state government office buildings or, in one case, a state park) or were physically not conducive to commercial development. However, McLaughlin's affidavit did not specify exactly how many of the 500 sites identified by the City were practically unusable, and thus failed to meet the challenger's burden on the third test, according to Titone. Although the plaintiffs announced that an appeal to the federal courts might follow, success appeared unlikely in light of the record of federal courts in upholding similar zoning rules in other cities. However, media comment noted that many sex-related businesses might be able to avoid relocating by modifying their businesses to de-emphasize the "adult use" aspects. For example, a book or video store could continue to operate outside the adult use zones by reducing the proportion of its stock devoted to adult uses to less than 40 percent. This alternative suggests that some of the gay community landmarks may yet be able to survive in their present locations, albeit in somewhat different form. The court's decision was significant in another sense, even though it appeared to break no really new ground in light of _Town of Islip_. In the recent past, the Court of Appeals has appeared to endorse the view that New York, and especially New York City, have traditionally been leaders in tolerating a wide range of expressive activity; this is reflected in the "community standards" portion of the constitutional test for obscenity, under which much more sexually explicit material has found constitutional protection in New York than elsewhere. This opinion may be seen as something of a retreat from that view, in light of the court's rejection of the argument that long-time, established adult uses that have not occasioned any community protest should be protected from the effect of the new regulation. A.S.L. Alabama Appeals Court Upholds Limitation on Gay Father's Visitation Rights After an _ore tenus_ hearing, an Alabama trial court entered judgment on Feb. 27, 1997, divorcing T.K.T and F.P.T., dividing their marital assets, and awarding custody of the two minor children to the wife with visitation rights to the husband. The husband appealed alleging that the trial court erred in its custody and visitation determinations by basing same on the husband's admitted homosexuality. On Feb. 6, 1998, the Court of Civil Appeals of Alabama affirmed the lower court's determination. _T.K.T. v. F.P.T._, 1998 WL 45316. In a decision by the Retired Appellate Judge Richard L. Holmes, the Civil Court of Appeals found that at trial the evidence showed that the parties separated in 1994 when the husband left the marital residence. Shortly thereafter, the husband moved out of state to Atlanta where he currently lives with his homosexual lover. Since the husband left, the wife voluntarily took on the role of caretaker for the children. The court stated that it could not reverse the lower court's custody ruling absent a showing that it was unsupported by credible evidence. The court affirmed the lower court's determination, finding that there was no such showing. On the issue of visitation, the lower court awarded limited visitation rights to the father so long as the visits took place in Alabama and outside the presence of his lover. The ruling came after the trial court entered several orders providing that neither party could transport the children outside the state of Alabama without court approval. Further, these orders provided that the father's lover could not be present during visitation. At trial, the husband admitted violating the orders by taking the children to Alabama and having them stay with the husband and his lover. The trial court held the husband in criminal contempt for violating the orders. The Civil Court of Appeals held that in light of the husband's failure to comply with the lower court's orders, they would not disturb the limited visitation award. _Todd V. Lamb_ Maine Voters Narrowly Vote to Repeal Gay Rights Law For the first time, a law banning sexual orientation discrimination enacted by a state legislature has been repealed in a state-wide referendum on Feb. 10. Fifty-two percent of the voters favored repeal, with forty-eight percent opposed. Prior to this vote, all of the New England states had passed laws forbidding discrimination on the basis of sexual orientation. Ironically, Maine voters had previously rejected a prior state-wide ballot measure that would have barred the legislature from adding new categories to the state's civil rights laws. A major difference, however, was that the prior referendum took place during a general election, while this one was scheduled as a stand-alone vote, so only the most motivated voters were moved to participate. A.S.L. Gay Louisiana Doctor Wins Contested Child Custody Suit Louisiana attorneys Jeffrey T. Reeder and T. Darlene Bewley report success in a contested custody matter where an openly gay doctor has been awarded custody of his four children, ages 13, 11, 9 and 7. Court records have been sealed to protect the privacy of the children, so we will refer to the parties as Dr. Doe and Mrs. Doe. The Does were married for 13 years, residing in a small town in Louisiana. Mrs. Doe filed for divorce in 1996, setting off a bitterly contested custody battle in which both parties made allegations of child abuse by the other. Reeder notes that "there is also a long, documented history of substance abuse and prescription drug dependence by the mother." Dr. Doe now lives with his same-sex partner of two years. The court appointed a psychiatric expert to evaluate the parties. The expert produced a 55-page report, dealing extensively with the issue of Dr. Doe's sexual orientation, which was found to be inconsequential in determining the best interest of the children. The expert recommended sole custody for Dr. Doe. The issue of Dr. Doe's sexuality was also thoroughly explored in the court hearing on the custody issue. The court awarded sole custody to Dr. Doe and denied visitation for Mrs. Doe until she can make an objective showing to the court that she has made progress in dealing with her prescription drug dependency and child abuse issues. Reeder notes the significance of such a ruling in a conservative southern state with a sodomy law and few judicial precedents recognizing lesbian and gay rights. Those interested in obtaining more information about the case can contact Reeder at 3723 Canal St., New Orleans LA 70119 (504-488-1188) (e-mail: Myohmy0000@aol.com). A.S.L. Federal District Court Rules on Transsexual Treatment Rights in Prison The issue before the U.S. District Court (D.C.) in _Farmer v. Hawk_, 1998 WL 30490 (Jan. 22), was whether a transsexual was entitled to treatment for this condition while incarcerated in a federal prison. On a defense motion for summary judgment, the court ruled that a transsexual prisoner was entitled to such treatment. Plaintiff Dee Farmer is an inmate in the federal prison in Butner, North Carolina. Farmer is a pre-operative male-to-female transsexual, who, the court found, is suffering from gender dysphoria, a medically recognized condition. Farmer brought this action to challenge the constitutionality of the Bureau of Prisons (BOP) policy regarding medical treatment for transsexuals, claiming that it violates the Equal Protection Clause of the 5th Amendment and demonstrates deliberate indifference to her serious medical needs, in violation of the 8th Amendment. Farmer also asserted additional claims against BOP's Medical Director, Dr. Morigitsu, relating to his failure to approve treatment or to implement a new policy regarding medical treatment of transsexuals. The defendants argued that there is already a policy regarding treatment of transsexuals in the federal prisons, and that Farmer was already receiving all treatment to which she was entitled. The court agreed that BOP already had an adequate policy for treatment of transsexuals in place, and granted defendants' motions to that extent, but denied the motion in all other aspects. The policy calls for transsexual inmates in the federal prisons to be maintained at the level of change existing at the time of admission. The personal approval of the BOP's Medical Director is required before any progressive or regressive treatment is to be implemented. The use of hormones to maintain secondary sexual characteristics may be maintained at approximately the same levels as were implemented prior to incarceration upon a showing of appropriate medical documentation, also with the Medical Director's approval. In this decision, District Judge Kessler ruled that this policy does require that Farmer receive treatment and that Dr. Morigitsu could not assert a claim of qualified immunity, because he failed to direct his staff to implement stated policies concerning the treatment to which Farmer would be entitled. The issues which remain relate to the extent to which Farmer received treatment and psychological counseling under this policy, and whether the requiring transsexuals to make a showing of a history of prior treatment before receiving hormone therapy violated their rights of Equal Protection as others do not have to make such a showing to receive medical treatment in prison. _Steven Kolodny_ ACLU Wins Settlement of Boy Scout Suit Against City of Chicago Settling a federal lawsuit filed in 1997 on behalf of Eugene Winkler, a gay man who was denied participation in the program, and Kevin Poloncarz, a minister who found the program's religious requirements troublesome, the City of Chicago has agreed to cease sponsoring programs administered by the Boy Scouts of America as long as BSA continues to ban participation by gay people or people who do not believe in God. ACLU staff attorney Roger Leishman, who is lead attorney for the plaintiffs in _Winkler v. City of Chicago_, No. 97-C-2475 (U.S.Dist.Ct., N.D.Ill., settlement announced, Feb. 4, 1998), expressed hope in announcing the settlement that "other state and local government entities providing support for BSA will take a cue from Chicago's action and end their sponsorship of these discriminatory programs." _ACLU Press Release_, 2/4/98. The lawsuit alleged that city involvement with the Boy Scouts violates the First and Fourteenth Amendments. In the settlement agreement, the City denies that the programs it sponsors have actually excluded people on the basis of sexual orientation or religious beliefs. However, the charter issued to the City of Chicago Corporation Counsel's office for city sponsorship of Scout troops clearly indicated that the city's troops would be governed by BSA policies, which include a requirement of faith in God for all participants and the exclusion of any "avowed homosexuals." In the settlement agreement, the City agrees that its present arrangements with the Boy Scouts, scheduled to expire Jan. 31, 1998, will not be renewed, and also agrees to pay attorneys fees to the plaintiffs, in exchange for an agreement to drop the lawsuit. A.S.L. 1st Circuit Preserves Trial Right for Same-Sex Harassment Plaintiff In a case involving same-sex harassment and disability discrimination, the U.S. Court of Appeals for the 1st Circuit upheld a preliminary injunction reinstating an ADA plaintiff, allowing his claims to go to trial. _Ralph v. Lucent Technologies_, 1998 WL 29837 (Feb. 2). Plaintiff Franklin Ralph worked as a carpenter for Lucent Technologies and its predecessors for 24 years. Around 1990, his co-workers began falsely taunting him as a homosexual and a child molester. In 1996, he suffered a mental breakdown and went on disability leave, diagnosed with major depression and post-traumatic stress disorder. In 1997, his doctors advised that working part-time would aid his recovery. Lucent refused any part-time schedule, and gave Ralph a 90-day deadline to apply for disability benefits. Ralph sued, alleging violations of Massachusetts law and the Americans with Disabilities Act. Lucent removed the case to federal court, which granted a preliminary injunction ordering part-time work as a reasonable accommodation and tolling the application deadline. Lucent appealed, arguing Ralph's claim was preempted by ERISA and a collective bargaining agreement arbitration clause. Reasoning that the record showed sufficient likelihood of success and a sufficiently minor burden on the defendant, District Judge Skinner upheld the injunction for a unanimous First Circuit panel. Skinner ruled that (1) Ralph was asserting statutory rights which did not require interpretation of the collective bargaining agreement and therefore were not preempted by its arbitration clause, (2) ERISA does not preempt federal statutory rights, and (3) several ERISA precedents tolled deadlines. _Otis R. Damslet_ Federal Court Grants Downward Departure From Sentencing Guidelines for Gay Man in Porn Case U.S. District Judge Bucklo, having found "incredible" the Justice Department's assertion that rape does not occur in federal prisons, has ordered a downward departure from federal sentencing guidelines for a gay man who pled guilty of sending in interstate commerce a videotape depicting minors engaged in sexually explicit conduct. _U.S. v. Wilke_, 1998 WL 57078 (N.D.Ill. Jan 30). As part of the plea agreement, Randall Wilke agreed to forfeit various computer equipment and other material and, at his own expense, to undergo counseling. He sought a departure from the minimum 21 month sentence (offense level 16) on several grounds, the first of which was that he would be vulnerable to abuse in prison. Wilke, a gay white man age 46, is described by the court as "of average height and weight. His demeanor makes him appear smaller than he is because he appears passive and meek." At a special hearing on Wilke's motion, the court heard testimony from George Valdes, who had served time in a federal prison as part of an arrangement under which he testified against Colombian drug dealers for whom he had been working. (Valdes is a Ph.D. student in bible history and an adjunct professor at Wheaton College.) Valdes testified that an inmate convicted of a sex crime would be "at the bottom of the pecking order" in prison and "would be sexually molested" by other inmates; Valdes also testified that any inmate who attacked Wilke would be considered a hero by other inmates, due to the nature of his offense. Also, given Wilke's demeanor, he would be particularly vulnerable. Judge Bucklo rejected the government's argument that particular susceptibility to sexual abuse in prison was not a good justification for a downward departure in the Guidelines, and granted Wilke's motion for a downward departure, noting as well Wilke's outstanding record of community service in a variety of programs serving youth. (The government had argued that actually Wilke's community service was an extension of his pedophiliac interests, since it brought him in contact with young people.) A.S.L. Sharply Divided Fourth Circuit, En Banc, Rejects 1st Amendment Appeal by High School Drama Teacher By a 7-6 vote, the U.S. Court of Appeals for the 4th Circuit has rejected an appeal by Margaret Boring of a district court decision that her First Amendment rights were not violated when she was transferred from her position in apparent retaliation for her selection of a controversial play for performance by students in her advanced acting class. _Boring v. Buncombe County Bd. of Educ._, 1998 WL 57559 (Feb. 13). In 1996, a 3-judge panel of the court of appeals had reversed the district court's dismissal, but en banc review vacating that decision was granted in December 1996. Boring had chosen a play called _Independence_ for performance by her class. The play "depicts the dynamics within a dysfunctional, single-parent family -- a divorced mother and three daughters, one a lesbian, another pregnant with an illegitimate child." Boring notified the school principal of her selection, and took her students to a regional competition, where their performance won 17 out of 21 awards. Before advancing to the state finals, the students performed the play before an English class at the school. A parent of a student in the class then complained to the principal, who for the first time requested a copy of the script and, after reading it, informed Boring that her students were forbidden from staging any more performances of this play. Boring and the parents of the students who were performing the play then lobbied the principal to let them go to the state competition; he agreed, subject to deletion of some material from the script. The students performed the revised play and won second prize in the state competition. At the end of the following school year, the principal requested that Boring be transferred from his school, citing personality differences. The school superintendent approved the transfer, stating that "she had failed to follow the school system's controversial materials policy in producing the play." Boring brought suit, claiming that the transfer on this basis violated her First Amendment rights. Writing for the majority of the circuit judges, Judge Widener contended that the selection of a play for performance by students is a curricular decision within the discretion of the school authorities, and that any dispute about such selection would not be a "matter of public concern" governed by First Amendment standards, but rather an ordinary employment dispute. Thus, under the Supreme Court's holding in _Connick v. Myers_, 461 U.S. 138 (1983), in which the Court upheld the discharge of a staff attorney in the New Orleans Law Department for circulating a petition on employment policies, the federal court was not a proper forum to consider the justification of a public employer personnel decision. The case generated dissenting opinions by Judges Hamilton and Motz. Hamilton argued that the case is "far from an `ordinary employment dispute,'" contending that the school principal and school board had "targeted Margaret Boring as a scapegoat and used her to shield them from the `heat' of the negative outcry resulting from the performance of _Independence_." Hamilton also argued that Boring did not violate any school policies in her selection or performance of the play. Judge Motz argued that "teachers' in-class speech retains some, albeit limited, First Amendment protection," referring to the vacated panel decision, which is reported at 98 F.3d 1474 (4th Cir. 1996)(reported in Nov. 1996 _Lesbian/Gay Law Notes_). Motz argued further that the majority had mischaracterized the nature of Boring's claim. She was not asserting that the First Amendment gave her unilateral rights to select plays for her students; rather, she was contending that when the principal raised no original objection to her selection of the play, it was inappropriate to retaliate against her at a later date for having staged it. A.S.L. Ohio Appeals Court Upholds Right of Action for Same-Sex Workplace Harassment Under State Law Unanimously reversing a judgement of the Common Pleas Court in Youngstown, Ohio, a panel of the Court of Appeals of Ohio (7th District) unanimously ruled Jan. 29 that a claim for hostile environment same-sex workplace harassment may be brought under the sex discrimination provision of the state's human rights law, R.C. 4112. _Tarver v. Calex Corp._, 1998 WL 74378. The opinion by Judge Cox decisively rejects the minority line of federal cases opposing such causes of action. James Tarver and Robert K. Varner, employees of Calex Corporation, alleged that a supervisory employee, John Brace, had engaged in a pattern of harassment against them. "Tarver alleged that Brace had touched his crotch on one occasion, and possibly patted his buttocks on several other occasions. Varner alleged that Brace had touched his penis without his consent on two separate occasions; once soon after he started working for. . . Calex Corporation, in January or February of 1994 and then again in February of 1995. Varner also claimed that Brace had patted him on the buttocks on five occasions." Tarver, who is black, also alleged that Brace harassed him with racial slurs. The two plaintiffs also alleged that they brought this situation to the attention of Calex management, but obtained no relief from Brace's continued harassment. They also named Brace as an individual defendant. The trial court, noting that Ohio courts have followed federal precedents under Title VII of the Civil Rights Act in applying the analogous state statute, opined that same-sex harassment claims were not actionable as sex discrimination. In reversing this ruling, Cox reviewed the majority and minority trends in federal case law, and specifically endorsed the reasoning of U.S. District Judge Preska in _Sardinia v. Dellwood Foods, Inc._, 69 Fair Emp. Prac. Cases (BNA) 705 (S.D.N.Y. 1995) in rejecting the cases that have barred same-sex harassment claims. Cox also rejected the argument that the conduct alleged was sufficiently severe to state a claim of sex discrimination, finding that the pre-trial depositions of both plaintiffs indicated that Brace's conduct "had the purpose or affect of unreasonably interfering with appellants' work performance or in creating an intimidating, hostile or offensive work environment" and that "they believed that if they told Brace not to repeat his behavior, they would be fired." The court also reversed the grant of summary judgment on the racial harassment claim, but accepted Brace's argument that he could not be held individually liable under the sex discrimination law, which only applies to employers as entities. The court also upheld the trial court's grant of summary judgment to defends on various tort claims brought by the plaintiffs against Calex and Brace. A.S.L. New Arizona Statute May Extend Visitation Rights to Same-Sex Co- Parents A recently-enacted Arizona statute authorizing petitions for child custody or visitation by non-parents is the basis for a pending lawsuit by a lesbian co-parent seeking visitation rights with the child born to her former domestic partner. _Green v. Wilson_, pending in Pima County Superior Court, presents an issue apparently unanticipated by the conservative state legislators who secured passage of 25 Ariz. Rev. Stats. sec. 25-415 last year. The statute provides that "a person other than a legal parent" who "stands in loco parentis to the child" may be awarded visitation rights if the superior court finds that "the visitation is in the child's best interests" and "that any of the following is true: 1. One of the legal parents is deceased or has been missing at least three months. 2. The child's legal parents are not married to each other at the time the petition is filed. 3. There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed." Sec. 25- 415(C). For purposes of this statute, "`in loco parentis' means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time." Sec. 25-415(G)(1). The law became effective last April 30, 1997. In the pending lawsuit, Elise Green alleges that she and her former partner of six years, Shari Wilson, conceived their child through donor insemination, and that Green took 15 months off from her job to take care of the child. However, Green and Wilson's relationship fell apart when young Hayley was less than two years old, and since last May Wilson has been refusing to allow Green to see the child. Similar disputes over visitation have arisen in many states, but most cases that have gone to appellate courts have resulted in defeats for the co-parents, usually because of the restrictive wording in statutes authorizing visitation petitions. The Arizona law was not enacted with this situation in mind. It was inspired by an Arizona Supreme Court case in which a father lost all parental rights because a paternity test showed that he was not the biological father of the child, even though he had established a parental relationship and believed he was the father, and his parents actually were caring for the child. However, as broadly worded, the law appears to apply to the same-sex co-parent situation. _Arizona Republic_, Feb. 15. A.S.L. Marriage & Domestic Partnership Notes Senator Paul Wellstone (D-Minn.) has introduced S.1636, the Domestic Partnership Benefits and Obligations Act of 1998. This bill would make same-sex domestic partners of federal employees eligible for the same benefits available to and obligations imposed upon spouses of federal employees. To obtain benefits, the employee would have to file an affidavit with the Office of Personnel Management, affirming that the couple's relationship qualified under the rules of the statute, which resemble rules established by many municipal domestic partnership ordinances around the country. Nobody in their right mind expects this bill to go anywhere in the current Congress, but it's a start. BNA _Daily Labor Report_ No. 37, 2/25/98, at A-5. Despite a veto by Governor Gary Locke, Washington State has enacted an express ban on same-sex marriages, including a ban on recognizing such marriages even when lawfully contracted elsewhere. The drama in Olympia during the first week of February centered on whether proponents had enough votes to override the governor's threatened veto, or would resort instead to passing a measure that would place a question on the state ballot next fall, under a procedure where the governor could not block the question from being placed on the ballot. After much head-counting, proponents of the ban went ahead and passed there bill, then passed it again over the governor's veto, all on February 6. _Tacoma News Tribune_, _Reuters_, Feb. 7. _Storrs v. Holcomb_, round two: A new complaint has been filed in N.Y. Supreme Court, Tompkins County, by Phillip and Toshav Storrs, seeking a court order to obtain a marriage license. Responding to a recent ruling by the N.Y. Appellate Division, which held that their prior lawsuit failed to include as a defendant an indispensable party, this new suit names as co-defendant Barbara A. DeBuono, the New York State Commission of Health, in her official capacity. The complaint is premised on federal and state constitutional claims of equal protection and due process, a state civil rights law claim of sex discrimination, a claim that the Health Department's "ruling" communicated to the Ithaca City Clerk that she could not issue the Storrs a marriage license violates Executive Order 33 of Governor Pataki (which had reiterated the earlier Executive Order 28 of Governor Cuomo banning sexual orientation discrimination by state agencies), and several claims grounded in alleged failures to comply with administrative procedures for adopting rules or regulations. Domestic partnership benefits programs at five public universities in Michigan (3 campuses of the University of Michigan, Wayne State, and Michigan State) may be threatened by a measure that passed the Michigan state senate on Jan. 29, banning the use of public funds to pay for domestic partnership benefits. The bill's sponsor, Sen. Bill Schuette (R-Midland), called it "a fiscal management issue," asserting: "Taxpayers should be only paying for benefits of married partners." Schuette's bill does _not_ provide special tax relief for lesbian and gay state taxpayers who might object to subsidizing benefits for the married partners of government employees. Are we being inconsistent, just a little bit? _Lansing State Journal_, Jan. 30. The city of Oakland, California, is under attack for refusing to expand its domestic partner medical benefits program to opposite- sex couples. Although all domestic partners of city employees are eligible for vision and dental benefits, medical benefits are only extended to same-sex partners. Two city employees have filed complaints of sexual orientation discrimination against the city with the California Labor Department, and the Labor Commissioner has ruled in the first case that Oakland is unlawfully discriminating by limiting the benefits eligibility to same-sex partners. However, the city has persisted in not expanding its program, and the Labor Commissioner is threatening to bring an action against the city in state court. _San Francisco Chronicle_, Feb. 14. The Santa Clara County, California, Board of Supervisors has reluctantly repealed the domestic partnership registry that had been unanimously enacted in 1996. As soon as the registry was approved, a taxpayers association and a coalition of conservative churches united to gather nearly 60,000 signatures on petitions demanding that the registry be repealed or placed on the ballot for a referendum. The registry never went into effect, while the supervisors considered how to react to the petitions. On Feb. 24, the board held a public hearing, at which the overwhelming turnout was from opponents of the registry who spewed anti-gay venom that reportedly infuriated the supervisors, who nonetheless concluded that avoiding a divisive referendum required them to repeal the measure, which they did by a vote of 4-1. _San Francisco Chronicle_, Feb. 25. Cook County, Illinois, Circuit Judge Thomas Durkin ruled from the bench on Feb. 10 that Chicago's domestic partnership ordinance is a valid piece of city legislation, rejecting a challenge filed by Rev. Hiram Crawford and other plaintiffs. The ordinance provides health benefits to the partners of gay city employees. Durkin had previously denied the plaintiffs a restraining order against the ordinance going into effect. _Crawford v. City of Chicago_, No. 97-CH-5674 (Cook County Cir. Ct., Feb. 10, 1998). Responding to Crawford's argument that the ordinance would "promote homosexuality," Durkin commented: "It does not follow that the ordinance will encourage formation of these relationships. The ordinance merely recognizes a reality existing among some city employees and thereby comprises a benefits package fitting the employee needs." Lambda Legal Defense Fund had intervened in the lawsuit on behalf of several openly lesbian or gay city employees. Crawford and his co-plaintiffs, represented by a conservative litigation group called "Alliance Defense Fund," will appeal the ruling. _Lambda Legal Defense & Education Fund Press Release_, Feb. 10; _Chicago Tribune_, Feb. 11. The Massachusetts Senate has approved a measure that would extend spousal health insurance benefits to unmarried domestic partners of state workers, both gay and non-gay, as well as specifically allowing local governments to do the same. Four Massachusetts cities have domestic partner benefit plans, while three others (including Boston) have reportedly been delaying adopting such a plan due to doubts about their authority to enact it without state approval. The bill still has to get past the other house of the legislature and be approved by Governor Paul Cellucci, who has not officially taken a position on the issue. _Boston Globe_, Jan. 30. In Florida, a unanimous vote of the city council in Key West on January 22 authorized the city to negotiate a domestic partnership benefits plan with its insurance carrier. The city also established a partnership registry, which is restricted to city residents. * * * The Monroe County, Florida, commissioners voted 4- 1 on Feb. 11 to grant health insurance and other benefits to domestic partners of county employees. The vote makes the Florida Keys region the first county government in the state to take such an action. According to one of the commissioners, it is expected that fewer than 100 of the 1200 county employees will apply, and most of those will be unmarried heterosexual couples. The Oregon Public Employment Benefits Board voted 7-1 in January to extend health insurance and other benefits to domestic partners of unmarried state workers, regardless of sexual orientation. The policy will take effect June 1, pending a ruling by the Oregon Court of Appeals in the Oregon Health Sciences University case. A trial court ruled in that case that failure to provide such benefits violated the rights of unmarried employees, and the state has appealed. The Board is waiting to see whether a court ruling in the case casts any doubt on its authority to adopt such a program voluntarily. _Portland Oregonian_, Feb. 2. A.S.L. Asylum Deadline Looms In an article published Feb. 9 in the _New York Law Journal_ titled "Racing the Asylum Deadline: Keeping Gays and Lesbians From Falling in the Cracks," Christopher Nugent and Lavi S. Soloway remind readers that new provisions that may prove particularly harmful to lesbian and gay political asylum applicants in the U.S. will go into effect on April 1, 1998, pursuant to the Illegal Immigration and Immigrant Responsibility Reform Act of 1996. After that date, with only narrow exceptions all applicants for asylum will have to prove to an asylum adjudicator that they have filed for asylum within one year of their arrival in the U.S., or be forever barred from having a claim heard. This is a particular problem for lesbian and gay asylum applicants, who tend to be secretive about their sexual orientation and the basis of their asylum claims for a variety of reasons, and frequently may delay filing for asylum due to lack of knowledge of the relatively recent developments under substantive U.S. immigration law that make asylum more available than previously. For information about an asylum handbook that explains the history, law and procedures for lesbian and gay applicants, contact Lavi Soloway at: lss@amanda.dorsai.org or call 212-227-93990 or 312-629-4500 x4531. A.S.L. Law & Society Notes The U.S. Supreme Court denied review on February 23 of decisions from the 2nd and 3rd Circuits that had upheld laws requiring convicted sex offenders to register with authorities after their discharge from prison and, under certain circumstances, authorizing various types of notification to the community about those individuals. _E.B. v. Verniero_, 119 F.3d 1077 (3rd Cir. 1997), cert. denied _sub nom_ Verniero v. Attorney General of New Jersey_, 1998 WL 69421 & 69423; _Doe v. Pataki_, 120 F.3d 1263 (2nd Cir. 1997), cert. denied, 1998 WL 70560. The New Jersey case drew particular attention because the law at issue was the original law inspired by the murder of Megan Kanka by an ex-con sex offender in that state. Due to their broad sweep, some of these so-called "Megan's Laws" have been used to require gay men arrested long ago on various solicitation charges to register with police and have their identities revealed to others in their community. In some cases, courts have required states to revise the laws to assure that the drastic notification requirements are not over-employed. Just days earlier, the N.Y. Court of Appeals unanimously ruled in _People v. Stevens_, 1998 WL 66084 (Feb. 19), that sex crime convicts who were originally convicted prior to the passage of N.Y.'s Megan's Law could not directly appeal decisions about their status under the notification requirements that were made after the law went into effect. In an opinion by Judge Bellacosa, the court asserted that the new notification requirements did not constitute a "resentencing." The American Civil Liberties Union (ACLU) has filed a lawsuit challenging the constitutionality of a Maryland law, Md. Code Ann. Art. 27, sec. 554, which criminalizes private, consensual, non- commercial sexual intimacy between adults of the same sex, but has been held by the Maryland Court of Appeals to be inapplicable to the same conduct when engaged in by adults of the opposite sex. _Williams v. Glendening_, Civ. No. 98 036031-CC1059 (Baltimore City Circuit Court, filed Feb. 5, 1998). The complaint alleges violations of equal protection and privacy under both the Maryland and federal constitutions. By raising a federal constitutional privacy claim, the case calls for the court to reconsider the validity of _Bowers v. Hardwick_, 478 U.S. 186 (1986), in the context of a law that as interpreted applies only to same-sex couples (unlike the Georgia sodomy law sustained in _Bowers_), and in the light of _Romer v. Evans_, 116 S.Ct. 1620 (1996), which appears to cast doubt on the rationale used by the _Bowers_ court to uphold Georgia's sodomy law. Michael Adams and Jennifer Middleton of the ACLU Lesbian & Gay Rights Project, Susan Goering and Dwight H. Sullivan of the ACLU Foundation of Maryland, and Martin H. Schrieber, II, of Brown, Goldstein & Levy, a Baltimore firm, are co-counsel for the plaintiffs, four Maryland residents and a resident of Washington, D.C., who owns vacation property in Maryland. The Servicemembers Legal Defense Network has issued its fourth annual report on the implementation of the Clinton Administration's "don't ask, don't tell" military personnel policy on Feb. 19. SLDN reported that there has been an escalation of violations of the policy by military commanders, including a 39% increase in reports of violations of the "don't ask" policy, and smaller but significant increases in reports of harassment or improper investigations. Overall, the Navy was tarred as the worst offender. In a long-awaited ruling, the Hawaii Supreme Court held in _State v. Mallan_, 1998 WL 34785 (Jan. 30), that the Hawaii constitution's right of privacy does not include the right to possess and use marijuana, thus affirming a _1993_ decision by the state's intermediate court of appeals. The court cites and relies on its own 1993 decision in _Baehr v. Lewin_, 825 P.2d 44, in which it had rejected the argument that Hawaii due process/privacy compelled state recognition of same-sex marriage. In _Baehr_, the court did hold that Hawaii equal protection might compel state recognition of same-sex marriages and remanded for trial. In December 1996, the trial court ruled in favor of the same-sex couple plaintiffs, holding that the state's failure to recognize same-sex marriages violated the state constitution. The state's appeal has been briefed and submitted and is awaiting decision. The court has not requested oral argument. For those speculating about when the court may rule, it is interesting to note that it apparently took the court several years to rule on the marijuana appeal. The 17-year-old murderer of a gay man faces 43 years in prison. Henrico County (Virginia) Circuit Court Judge George F. Tidey sentenced Rashawn Dewayne Simmons on Jan. 28 in a case that stemmed from the Nov. 25, 1996, murder of David W. Mosley, an older man who had befriended Simmons and two other teenage boys. The three teens decided among themselves to rob and kill Mosley "because one or more of them had been told Mosley was gay." The other two teens, who were present in Mosley's car when Simmons shot him in the back of the head, were previously convicted and sentenced to shorter terms. _Richmond Times-Dispatch_, Jan. 29. A group of 5 avowed heterosexual Christian students filed suit against the University of Minnesota on Feb. 3 in U.S. District Court, alleging that their constitutional rights are violated by the distribution of student activity fees to on-campus groups of whom they disapprove, including the "Queer Student Cultural Center," which they charge with "promoting homosexuality." The plaintiffs charge that the use of their mandatory student activity fees to support such organizations violates their 1st Amendment rights. A similar suit against the University of Wisconsin is now on appeal, a district court having ruled in favor of the protesting students in that case. Other student groups targeted in the suit include women's groups that support abortion rights and a Latino student group that allegedly supports the Castro regime in Cuba. _St. Paul Pioneer News_, Feb. 4. The Illinois State University's constitution included a provision banning discrimination based on "sexual preference" until Feb. 17, when a newly constituted board of trustees, purportedly responding to advice by University Counsel that the school's constitution should not differ in this regard from state or federal law, adopted a new constitution that deletes this provision. While this move does not necessarily remove existing university policies against such discrimination, it takes away the backing of the trustees for the policy. Associate Justice James Morse of the Vermont Supreme Court, sitting in an emergency hearing, ruled Feb. 9 against an attempt by a third-year student at Vermont Law School to obtain a temporary restraining order against military recruiting at the school. The Law School, reversing a longstanding policy, had scheduled interview time for a JAG recruiter in light of the Solomon Amendment, under which the school stands to lose $400,000 in federal work study and loan money, relied upon by a majority of the students to finance their legal education, if the military is barred from the campus. A superior court judge had ruled against the petition by Andrew Tarasevich on Feb. 6. Justice Morse questioned Tarasevich's standing to raise the issue, since he had not alleged that he was personally interested in joining the JAG Corps; Tarasevich said he would think about that... _Burlington Free Press_, Feb. 10. The city council in Fort Collins, Colorado, gave unanimous approval in a first reading to a proposal to revise the city's human rights ordinance to include sexual orientation. Further legislative consideration is required before the measure becomes final. _Rocky Mountain News_, Feb. 19. The Des Moines, Iowa, Human Rights Commission voted Feb. 12 to ask the city council to expand its anti-discrimination law to cover sexual orientation claims. Commission Director Floyd Jones expressed hope that the council, whose membership has changed significantly since a similar proposal was rejected in 1993, would now be receptive to the change. _Des Moines Register_, Feb. 13. The Portland, Oregon, City Council unanimously voted Feb. 11 to ban city contracts with any organization or business that does not have an express non-discrimination policy that includes sexual orientation. The measure was co-sponsored by Mayor Vera Katz and Commissioner Erik Sten. In the same vote, the Council approved the establishment of a temporary mediation program to help enforce the city law, as an appeal is pending from a recent trial court decision holding that the city law cannot be enforced in the state courts. _Portland Oregonian_, Feb. 12. A gay man has filed a sexual harassment suit claiming that he was terminated for rejecting the sexual overtures of his heterosexual female supervisor. In a complaint filed in Los Angeles Superior Court on Feb. 3, Bruce Eddins claims that Gwen Scott-Taylor began harassing him in Oct. 1996; his attempts to be transferred to a different job were rejected and, after Scott-Taylor learned that he was gay, "her actions became threatening and punitive." Eddins seeks damages and reinstatement. A spokesperson for the employer, the California Science Center, said that an internal investigation showed that Eddins's charges were "without merit." The report on the lawsuit in the _Los Angeles Times_ (Feb. 6) did not specify the legal basis for the suit, which is presumably brought under California laws barring sexual orientation discrimination in employment. Eddins is represented by Melanie E. Lomax. Lee Brown, recently sworn in as mayor of Houston, Texas, signed an executive order on Feb. 16 banning discrimination on the basis of sexual orientation by the city government. The order revived a policy that had been enacted more than a decade ago by the Houston City Council but then repealed by voters in a 1985 referendum. Brown, a former N.Y. City police commissioner under Mayor David Dinkins, had promised such an order as part of his election campaign. The order does not extend health benefits to domestic partners of city employees, an issue on which Brown has not taken a position. _Houston Chronicle_, Feb. 17. On Feb. 25, City Councilman Rob Todd and a conservative Houston businessman, Richard K. Hotze, filed a lawsuit challenging Brown's authority to adopt this policy by executive order. Todd and Hotze claimed their suit was motivated by their belief that the mayor is not entitled unilaterally to establish employment policies for the city. _Houston Chronicle_, Feb. 26. A.S.L. European Court of Justice Rejects Partner Benefits Claim On Feb. 17, the European Court of Justice in Luxembourg delivered its judgment in _Grant v. South-West Trains Ltd._, Case C-249/96 (available at http://europa.eu.int/cj/en/jurisp/index.htm). The court declined to follow the opinion of Advocate General Elmer (see 1997 LGLN 166) and rejected Lisa Grant's argument that her employer's failing to provide travel benefits to her unmarried female partner Jill Percey, while providing the benefits to the unmarried female partners of male employees, violates European Community law prohibiting discrimination in compensation on the basis of sex (in this case, EC Treaty Article 119 and Council Directive 75/117/EEC on equal pay). Whether any of the 13 judges dissented cannot be known, as the court always delivers a single, unanimous judgment. The court considered three questions. First, it asked "whether [the employer's policy] constitutes discrimination based directly on the sex of the worker" (Grant's primary argument). It found no such discrimination because the condition that Grant's partner be a person of the opposite sex "is . . . applied regardless of the sex of the worker concerned. Thus travel concessions are refused to a male worker if he is living with a person of the same sex, just as they are to a female worker if she is living with a person of the same sex." This is the classic response to the sex discrimination argument and involves an incorrect and misleading comparison between a woman with an unmarried female partner and a man with an unmarried male partner, rather than between a woman with an unmarried female partner and a man with an unmarried female partner (i.e., a man in identical circumstances apart from his sex). Second, the court asked "whether Community law requires that stable relationships between two persons of the same sex should be regarded by all employers as equivalent to marriages or stable relationships outside marriage between two persons of opposite sex." After considering the absence of EC legislation providing for such equivalence, the fact that equivalence is limited or non-existent in most EC Member States, and the negative case law of the European Court and Commission of Human Rights with regard to same-sex couples and transsexual marriages, the court concluded that "Community law" imposes no such obligation. It is not clear why the court posed this question, in that the only realistic source of such an obligation, and the only source invoked by Grant, was EC sex discrimination law. Having found no sex discrimination, there was no need to discuss evidence of "European consensus" regarding the treatment of same-sex couples. This part of the court's judgment makes sense only as a justification of any direct sex discrimination it might have found. Third, the court asked "whether discrimination based on sexual orientation constitutes discrimination based on the sex of the worker." (This was Grant's alternative argument that the word "sex" in Article 119 should be read as encompassing sexual orientation, i.e., that a simple lesbian/gay vs. heterosexual or same-sex vs. opposite-sex comparison could be used, rather than the more complex female vs. male analysis that Grant's primary argument requires.) The court held that its reasoning in _P. v. S. and Cornwall County Council_, [1996] ECR I-2143 (dismissal of a transsexual employee was "based, essentially if not exclusively, on the sex of the person concerned") "is limited to the case of a worker's gender reassignment and does not therefore apply to differences of treatment based on a person's sexual orientation." As for the view of the U.N. Human Rights Committee in _Toonen v. Australia_ (1994), 1 IHRR 97, that "sex . . . is to be taken as including sexual orientation," the court did not find it persuasive. The Committee's observation does not reflect the "generally accepted" interpretation of the concept of sex discrimination and cannot "constitute a basis for the Court to extend the scope of Article 119. . . . Community law as it stands at present does not cover discrimination based on sexual orientation." The European Court of Justice has clearly passed the issue of sexual orientation discrimination in employment to the EC legislature and Member State legislatures. The court noted that the 2 October 1997 Treaty of Amsterdam, once ratified, will insert a new Article 6a (to be renumbered as Article 13) into the EC Treaty (see 1997 LGLN 104, 148). Article 6a will expressly authorize, but not require, "appropriate action" by the EC legislature to combat sexual orientation discrimination. All 15 Member States must agree, which means that new legislation under Article 6a may be difficult to achieve. As for _The Queen ex parte: Terence Perkins v. Secretary of State for Defence_, Case C-168/97 (see 1997 LGLN 48), a "gays in the military" case also invoking EC sex discrimination law, it is difficult to see how it can succeed before the court after _Grant_. _Dr. Robert Wintemute, School of Law, King's College, London_ Ironically, on the same day the European court was releasing its decision in _Grant_, the European Parliament voted 260-188 to adopt its Annual Report on Human Rights in the European Union (for 1996). In paragraph 62 of the Report, the Parliament "welcomes the inclusion in Community instruments of non-discrimination clauses which provide for a ban on discrimination based on . . . sexual orientation," notes a 1994 resolution calling on member states to ban such discrimination, in paragraph 63 "considers that its above- mentioned resolution. . . on homosexuals has led to improvements in many Member States and at Community level," and reiterates its call for all Member States to "recognize equal rights for homosexuals, notably through the establishment, where they do not already exist, of civil union contracts aimed at eliminating all forms of discrimination still suffered by homosexuals, in particular as regards tax, inheritance, social rights, etc., and, through information and education, to help combat the prejudice to which they are subject in society." The report also calls for staff regulations for employees of the European Community governmental bodies "to be amended without delay so as to guarantee non-married partners the same rights as those granted to spouses." The report also calls on the Austrian government to reform its anti-gay laws, especially its unequal age of consent. A.S.L. Dutch Government Decides Against Same-Sex Marriage, But in Favor of Adoption by Same-Sex Couples On February 6, the Dutch Cabinet finally decided how it would act on the recommendations of the Kortmann Committee, a committee of legal experts established in June 1996 following the adoption of resolutions in Parliament asking for legislation to open up both marriage and adoption to same-sex couples. In October 1997, the Committee recommended unanimously to allow same-sex couples to adopt and by a majority of 5-3 to allow same-sex couples to marry. Now the Cabinet has decided to prepare legislation to give effect to the unanimous recommendation, but not to the majority recommendation. This legislation would amend three laws which have been adopted only very recently. A. The law on registered partnership (in fact a complex of several laws amending the Civil Code and more than 100 other statutes) came into operation January 1, 1998. Same-sex and different-sex couples can now have their partnership registered. Apart from some minor differences between the way in which it is entered into and the ways in which it can be terminated, registered partnership is almost identical to marriage. The main exceptions are: (1) a foreigner without a valid residence entitlement cannot register a partnership in the Netherlands (neither with a Dutch citizen, nor with another foreigner). It is not yet clear in law what exactly amounts to a residence entitlement. A residence permit for less than one year (as is routinely given to European Union citizens looking for work in the Netherlands) may not be enough, let alone a mere tourist visa. (It should also be remembered that in the case of two foreigners, at least one of them needs to officially reside in the Netherlands; the same condition applies to heterosexual marriage.) (2) The existence of a registered partnership does not affect the position of the children of either partner. For example, the parent's partner does not become a parent, nor will this partner have any authority over, or maintenance duties towards the child. However, there are a few exceptions to this, notably in tax law. (3) Certain entitlements to widow's or widower's pension are withheld from registered partners. (4) Most rules based on international or European law that apply to marriage have not been declared applicable to registered partnership. (5) Many rules of Dutch secondary legislation have not been made applicable to registered partnership yet. (6) In law, words like `marriage', `spouse', `wedding' etc., together with their social status and symbolic meaning, remain the exclusive domain of married heterosexuals. It should be noted that no exceptions exist for church weddings (which have no legal effect in Dutch law) nor for artificial insemination (for which being married is not generally a precondition). Most discrimination between married spouses and registered partners by employers or by commercial or non-profit organizations is outlawed by the General Equal Treatment Act, which not only prohibits direct and indirect discrimination based on sexual orientation, but also discrimination based on civil status. The status of being a registered partner is now considered to be a new type of civil status. B. Also on January 1, legislation introducing joint authority and joint custody for non-parents came into operation. Now a parent and his or her (same-sex or different-sex) partner can obtain a court order giving the couple joint authority over the child of the parent. Similarly a (same-sex or different-sex) couple of foster-parents, can now obtain a court order giving them joint custody over their foster-child. Such joint authority-custody entails a maintenance duty for both partners towards the child. It also reduces the inheritance tax to be paid when the child benefits from the last will of the non-parent. So far, other parental rights and duties have not been attached to it. C. On April 1, 1998, a major revision of the law on paternity and adoption will enter into operation. Until then, adoption in the Netherlands is only possible for married couples and for married stepparents. From April marriage will be no longer a condition for adoption. Then adoption by an individual person (single or forming part of a relationship, heterosexual or homosexual) will become possible. Also adoption by an unmarried couple will become possible, provided it is a different-sex couple. Now the Government is already proposing changes to these three laws. As far as parenting is concerned, the Government seems to follow the recommendations of the Kortmann Committee in detail: (1) Adoption of a Dutch child by a same-sex couple will be made possible. Foreign children (who make up more than ninety percent of all children adopted in the Netherlands by couples) will be excluded from adoption by same-sex couples. (2) Adoption of a child by the same-sex partner of the child's parent will also be made possible (this will probably happen far more often, as it will not only allow for adoption by a gay or lesbian stepparent, but also give the lesbian partner of a mother a chance to become the second mother of a child born during their relationship, for instance by artificial insemination). (3) A new, strict criterion will be introduced to limit adoption (by a heterosexual couple, by a homosexual couple, by a parent's partner, or by an individual) to situations in which the child has nothing more to expect from his or her original parent(s) (for instance because the donor is unknown). (4) The existing paternity rules will not be extended to female partners of mothers. For instance, according to Dutch law, a man can become a legal father simply by being married to a woman who gives birth to a child. This rule does not and will not apply to the registered partner of a childbearing woman. (5) However, some change is proposed to the new law on registered partnership: if a child is born to a woman in a registered partnership, the other partner will automatically share the parental authority over the child with the mother. Since January 1998 such joined authority can already be obtained, but only by court order. It is now proposed that such an order will not be required if the partners are registered and the child is born during the registered partnership. (6) Probably the scope of joint authority/custody will be extended to intestate inheritance and to other parental rights and duties. As far as the question of same-sex marriage is concerned, the Government is following the minority of the Kortmann Committee. The Government considers that the new law on registered partnership, together with the extended possibilities for joint authority/custody and adoption, offers virtual equality of rights for homosexual couples. The main reason why the Government is not now prepared to create also an equality of status for homosexual couples, seems to be that same-sex marriage would not generally be recognized abroad. (The Kortmann Committee held a survey among family law experts in the Council of Europe, the outcome of which suggests that same-sex registered partnership would be met with only marginally more recognition abroad than same-sex marriage would.) The Government does not want to contemplate the opening up of marriage to homosexual couples before the new law on registered partnership will be evaluated in the year 2001. There is a small chance that the present Parliament will insist on making full marriage possible for same-sex couples. However, there is no time left during this Parliament to even start legislation on the topic. Elections will be held in May 1998. It seems more likely that some time this year a bill will be introduced to give effect to the Government's proposals about adoption and automatic joint authority for registered partners. (That bill will also provide an opportunity to correct the numerous errors made in the legislation introducing registered partnership.) With the customary slowness of the Dutch legislative machine, such a bill would probably not become law before 2000, and full marriage rights for same-sex couples in the Netherlands should not be expected before 2005, if ever. _Kees Waaldijk, Gay Studies Program, University of Utrecht, and Amsterdam_ Other International Notes A lesbian couple in South Africa won a major victory before the Pretoria High Court on Feb. 4. The court ruled that Jolande Langemaat, an employee of South African Police Services, was entitled to enroll her domestic partner, Beverley-Ann Myburgh, in the police medical plan. The South African constitution forbids discrimination on the basis of sex or sexual orientation. According to press reports, this was the first use of the new constitutional provision to seek recognition of domestic partnership for purposes of tangible benefits, such as health care coverage. In an opinion for the court, Judge Roux asserted that heterosexual and same-sex relationships deserve equal respect from society, and it is time for the law to change to recognize same-sex partners. Roux rejected the defendants' attempt to raise the cost of providing benefits as a justification for limiting the program to traditionally married couples. _Exit News_ (South African Gay & Lesbian Monthly), Feb. 4. A.S.L. Professional Notes Lambda Legal Defense & Education Fund seeks a staff attorney for their Midwest Office in Chicago to do lesbian, gay and HIV-related civil rights work and public education. Applicants should have significant litigation experience (4+ years preferred), excellent legal writing and speaking skills, demonstrated commitment to lesbian, gay and PWA rights. Experience working in communities of color preferred. Salary from low 40's, depending on experience, with excellent benefits. Send cover letter, resume and writing sample by April 15 to: Patricia Logue, LLDEF, 11 E. Adams, Suite 1008, Chicago IL 60603. Michael Duffy, an openly-gay Boston attorney who has served as chair of the Massachusetts Commission Against Discrimination and director of the Office of Consumer Affairs and Business Regulation, has announced his campaign for the office of Massachusetts State Treasurer. A Republican, Duffy would become the first openly-gay person to be elected to statewide office in Massachusetts if successful. He told the Associated Press that he did not think his being gay would matter to most voters. _Worcester Sunday Telegram_, Feb. 15. The Bar Association of San Francisco has compiled an updated list of openly lesbian and gay attorneys that is included on the BASF website, so that persons looking for a gay contact for information about a particular law firm can easily find one. This resulted from a project by Robert Mison, an associate at Steefel Levitt & Weiss, to formalize what had been a totally informal past effort that had lapsed over time. You can access the BASF website at the following address: www.sfbar.org. _San Francisco Daily Journal_, Jan. 23, 1998. A national conference on lesbian and gay workplace issues, co- sponsored by the gay employee groups at five leading national employers (Xerox, Kodak, Lucent, American Airlines, Hewlett- Packard) will be held in Rochester, N.Y., on April 17-19, 1998. Titled "Out and Equal '98: A Professional Development Conference on Workplace Issues," the event will be held at the Hyatt Regency Rochester Riverside. N.Y. State Worker's Compensation Commissioner Marjorie Hill, Ph.D., is honorary chair of the conference. For information about registration, hotel and travel rates, contact: outnequal98@cinti.net, www.outnequal.org, or 716-234-4646/888-924- 4646. UCLA Women's Law Journal's spring symposium on March 7 is titled "Queer Matters: Emerging Issues in Sexual Orientation Law." Symposium papers will be published in a future issue of the Journal. Creighton University School of Law in Omaha, Nebraska, will be holding a Symposium on Interjurisdictional Marriage Recognition on June 18-20, which will include extensive discussion over the issue of recognition of same-sex marriages and the effect of DOMA. The annual Lavender Law Conference sponsored by the National Lesbian & Gay Law Association will be held in Boston on Oct. 15-17. Program co-chairs for the 1998 conference are Marcia Kuntz and Sam Marcosson. Persons with suggestions for topics to be addressed at the conference are urged to contact the co-chairs: Marcia Kuntz, 1724 17th St. N.W., Apt. 62, Washington DC 20009 (Marcia.Kuntz@mail.house.gov); Sam Marcosson, Brandeis Law School, University of Louisville, Louisville KY 40292 (samarc01@homer.louisville.edu). J. Patrick Wiseman, a Texas civil liberties lawyer who argued the last Texas federal sodomy law challenge in the 1980s, _Baker v. Wade_, 553 F.Supp. 1121 (N.D.Tex. 1982), reversed en banc, 769 F.2d 289 (5th Cir. 1985), cert. denied, 478 U.S. 1022 (1986), died from cancer at age 49. In _Baker_, the U.S. district court in Austin ruled the Texas sodomy law unconstitutional, but was reversed en banc in the 5th Circuit and the Supreme Court denied certiorari shortly after deciding _Bowers v. Hardwick_, which upheld the Georgia sodomy law. In a commentary published in the _Fort Worth Star-Telegram_ on Feb. 3, columnist Molly Ivins remarked: "When the day comes in this country (and it will), when the law no longer discriminates because of sexual orientation, Wiseman's tireless work and the force of his arguments will be at the foundation of that expansion of liberty and justice for all." Wiseman had also litigated against Texas A&M University to secure recognition of an on-campus gay student group, and was active in a variety of other civil liberties causes in Texas. A.S.L. AIDS & RELATED LEGAL NOTES 6th Circuit Rules Against Food-Handler's Discrimination Claim On Feb. 4, the U.S. Court of Appeals for the 6th Circuit ruled that a supermarket did not violate the Americans with Disabilities Act when it fired a produce clerk who refused to submit to a medical examination after revealing he had tested positive for HIV. _EEOC v. Prevo's Family Market_, 1998 WL 39370. The majority purported to base its decision on the "unique" facts and circumstances of the case. Nonetheless, the legal analysis underlying the court's holding belies this assertion. The case will undoubtedly narrow the scope of the ADA's protection for employees with HIV and other infectious diseases in the 6th Circuit. Steven Sharp was a part-time produce clerk in a family-owned grocery store in Michigan. After working there for several months, Sharp informed his employer that he had tested positive for HIV and planned to speak at a neighborhood AIDS awareness and education program. The president of the chain suggested that Sharp be reassigned to the receiving area of the supermarket with comparable hours and pay, and Sharp agreed. However, several days later he complained that he missed working with customers and was concerned about his co-employees who began asking why he had been reassigned. Sharp then agreed to be placed on a leave of absence with pay and health benefits (to which he was otherwise not entitled as a part-time employee) to give everyone an opportunity to "handle the situation." Sharp consented to verify his HIV status with his personal physician and to report his findings to his employer. The supermarket expressed concern about the increased risk of HIV transmission as a result of the frequent cuts and nicks suffered by food clerks like Sharp in the course of preparing produce for sale. Sharp's employer also believed he would be susceptible to other infectious diseases like hepatitis and tuberculosis, compounding the risk to co-workers and customers. Sharp failed to show up for a medical examination scheduled and paid for by his employer despite several promises to do so. He also refused to accept an alternate position developing marketing information for the supermarket at home. Instead, Sharp sent his employer a letter from his physician stating he tested negative for hepatitis and tuberculosis and was ready to resume his duties as a produce clerk. When continued efforts to have Sharp examined by a physician chosen by the supermarket failed, he was terminated -- almost one year after he first told the supermarket that he had tested positive for HIV. The district court granted summary judgment to the EEOC on the issue of liability, ruling that Sharp's employer violated the ADA when it required Sharp to submit to a medical examination without showing that the examination was job-related and consistent with business necessity. The issue of damages was tried by a jury. Sharp was awarded $10,000 in compensatory damages and $45,000 in punitive damages. The district court also ordered that Sharp be reinstated to his original position as produce clerk. A divided panel for the 6th circuit reversed. The majority opinion by Circuit Judge Eric L. Clay, joined by Judge Suhrheinrich, concluded that requiring Sharp to submit to a medical examination was permissible under the ADA because it served a legitimate business purpose: to protect the health of Sharp, its other employees and the general public from HIV infection. The majority rejected the EEOC's position that an individual medical examination was unnecessary since available medical information already showed that the risk of HIV transmission by food handlers like Sharp was negligible. Instead, the court credited evidence in the record suggesting that issues such as Sharp's intellect and personal hygiene could affect the risk of his transmitting HIV to others at the supermarket. The court concluded that the ADA and rules promulgated by the EEOC permitted an individualized examination to assess these subjective facts as they related to the supermarket's operation. On a bolder and more fundamental note, the majority concluded that the demand for a medical examination was justified because the supermarket was not required to take Sharp at his word as to his HIV status. The court appeared concerned if not miffed that the record never confirmed whether Sharp was indeed HIV+, faulting Sharp for preventing his employer from knowing whether he "had a condition for which federal law may require accommodation." Yet the majority did not reveal why this was legally material, since Sharp never requested an accommodation from his employer. The broader implication of this is particularly distressing, as it suggests that if an employee reveals that he or she has a medical condition that might conceivably require an accommodation under the ADA at some unknown point in the future (even though the employee does not request an accommodation at the time), the employer may subject the employee to a medical examination to verify the employee's diagnosis. In her dissenting opinion, Circuit Judge Karen Nelson Moore highlighted how the majority's analysis did not conform to the statutory mandates of the ADA. Her recurring theme was that the majority's position condoned an employer's choice of "fear over fact, ignorance over information, and mythology over medical evidence." First, Moore emphasized that the supermarket failed to meet its duty to seek out current objective medical information about the risk of HIV/AIDS transmission before it reassigned Sharp or required him to submit to a medical examination. Sharp referred the supermarket to several organizations, and even gave Mr. Prevo the name of his personal physician, who is an infectious disease specialist. The supermarket president spoke only to a neighbor and to human resources personnel. Contrary to the majority's position, Judge Moore held that this did not satisfy federal regulations that employers obtain the "best available medical evidence" when determining if an employee posed a direct threat to co-workers or customers. The supermarket's own expert witness testified that under ordinary circumstances food handlers do not pose any threat of HIV transmission and need no restrictions in their employment. Moore cited statistics in the record that the odds of Sharp infecting a co-worker with HIV were one in 10 million under normal circumstances. Even in the most egregious situation -- if one of Sharp's co-workers had a fresh cut, held the wound right open, and Sharp bled into it -- the likelihood of transmission was one in 3,000. Moore argued that even if these odds were statistically significant, Sharp could nonetheless be reasonably accommodated with steel gloves or a separate set of produce knives, for example. With these accommodations, Sharp would constitute a "qualified worker" under the ADA and could not be reassigned or subjected to a medical examination. Moore's most compelling argument was based on that portion of the ADA which addresses employment of food handlers with infectious diseases. Based on 11th-hour congressional negotiations, the ADA requires the Secretary of Health and Human Services to prepare an annual list of infectious and communicable diseases that can be transmitted through food handling. Employers are permitted to reassign employees infected with these diseases. Since 1990, however, neither HIV nor AIDS has ever appeared on this list. By ignoring this omission, claimed Moore, the majority overstepped the boundaries of the statute, and adopted as the law of the 6th Circuit the very fear, prejudice and ignorance which the ADA sought to eliminate. _Ian Chesir-Teran_ 6th Circuit Denies Protection for HIV-Infected Health Care Worker Affirming a summary judgment decision by District Judge David McKeague of the Western District of Michigan, a panel of the 6th Circuit voted 2-1 to affirm a ruling that an HIV+ operating room technician's discharge did not violate either section 504 of the Vocational Rehabilitation Act or Title I of the Americans With Disabilities Act. _Mauro v. Borgess Medical Center_, 1998 WL 75258 (Feb. 25), affirming 886 F.Supp. 1349 (W.D.Mich. 1995). William Mauro had been employed by Borgess Medical Center as a surgical technician for a little more than two years when the Center's V.P. for Human Resources received a phone call in June 1992 from an undisclosed informant stating that Mauro had AIDS. The Center offered Mauro a new position of case cart/instrument coordinator with no direct patient contact, in order to eliminate any risk of HIV transmission to patients, but Mauro refused this position. Then the Center created a task force to evaluate the risk Mauro could present while performing surgical technician tasks. The task force concluded that the job involves placing hands inside body cavities during surgery, under circumstances where cuts from needles or scalpels are possible, thus presenting a significant risk that could not be eliminated by reasonable accommodation, and recommended that Mauro be assigned the case cart/instrument coordinator position again. When Mauro did not respond to this offer by a deadline set by the Center, he was discharged. Mauro filed suit under the ADA in January 1994; he has died from AIDS since the district court's decision, and his estate is now the appellant. In opposing the motion for summary judgment, Mauro asserted that his job did not involve placing his hands in patients' body cavities during surgery, although he would occasionally assist by placing a finger on the outer edge of an incision to assist the surgeon. He did admit during his deposition that he had twice sustained cuts during surgery while employed at the Center. The district court judge, following appellate decisions from other circuits, concluded that the Center had not violated the VRA or the ADA. Supporting the motion, the Center offered deposition testimony by several experts on the job functions of surgical technicians, the procedure the Center followed to evaluate the risks, and the accommodation offered to Mauro. Both of the statutes upon which Mauro relies ban employment discrimination against qualified individuals with disabilities (the VRA by federal funding recipients, the ADA by employers of at least 15 persons). However, under both of these statutes, a person is not qualified if he presents a significant risk of danger (a "direct threat") to others that cannot be eliminated by a reasonable accommodation. In his opinion for the court of appeals, Circuit Judge John R. Gibson emphasized the CDC's recommendations concerning HIV+ health care workers, which specified that infected workers should not engage in "exposure prone" procedures, which the CDC identified as procedures where the worker might come into contact with sharp instruments in a body cavity of a patient, without first obtaining counsel from an expert review panel; the CDC also advised that HIV+ health care workers should disclose their condition to patients before performing such procedures. "We conclude that the district court did not err in determining that Mauro's continued employment as a surgical technician posed a direct threat to the health and safety of others," wrote Gibson. "All the evidence, together with the uncontradicted fact that a wound causing an HIV-infected surgical technician to bleed while in the body cavity could have catastrophic results and near certainty of death, indicates that Mauro was a direct threat." Gibson ended by citing the 4th and 5th Circuit precedents relied on by the district court. In a lengthy, sophisticated dissenting opinion, Circuit Judge Danny J. Boggs argued that the court (and the district court) had improperly concluded that this case could be concluded with a grant of summary judgment. A key question in ruling on a motion for summary judgment is whether reasonable people could differ over factual issues that must be resolved in order to decide the case. Here, the ultimate issue was whether Mauro presented a "significant risk" or a "direct threat" to transmit HIV to patients while assisting in the operating room. Ancillary to deciding that issue, the court would have to determine whether Mauro's job involved performance of "exposure prone procedures." Boggs showed that the facts relative to both of these issues were sharply controverted in the affidavits presented to the district court in support of and in opposition to the motion for summary judgment, and could not properly be resolved as a matter of law. Boggs found that there was plenty of room in the affidavits filed pro and con on the motion for reasonable people to differ in resolving these questions. Consequently, the district judge should have denied the motion and scheduled the case for trial, so that a jury could hear all the evidence from both sides and make a judgment as to the facts. Despite Boggs's well-reasoned dissent, the majority opinion is consistent with the great weight of appellate precedent on this issue. A.S.L. Federal Court Keeps Lengthy HIV-Benefits Litigation Alive U.S. District Judge McAuliffe of the District of New Hampshire invited further briefs from the parties to determine the jurisdictional issues of whether to treat an insurer as an insured's employer for purposes of the Americans With Disabilities Act. _Carparts Dist. Ctr., Inc. v. Automotive Wholesaler's Ass'n of New England, Inc._, 1997 WL 785721, 7 A.D. Cases 759 (BNA) (Sept. 30). Carparts, of which Randy Senter was the sole owner and an employee, participated in a medical insurance plan through Automotive Wholesaler's Association of New England. When Senter enrolled in the plan as a Carparts employee in 1977, it provided lifetime medical insurance benefits up to $1,000,000 per employee. In 1986, Senter learned he was HIV+ and, approximately 5 years later, was diagnosed with AIDS. In Jan. 1991, AWANE instituted a $25,000 cap on lifetime benefits for AIDS-related illnesses. Carparts and Senter's estate sued the two AWANE entities that provided and administered the plan, claiming unlawful discrimination under the ADA along with several other causes of action. The District Court initially dismissed the plaintiffs' claims on the grounds that neither AWANE entity was Senter's employer, and on the ground that the insurers were not places of public accommodation. The U.S. Court of Appeals for the 1st Circuit, finding that the lower court had taken too narrow a view of the ADA on these issues, remanded the case. On cross motions for summary judgment, the court declined to rule on plaintiffs' Title I (employment discrimination) claim under the ADA due to unresolved factual issues concerning whether defendants could be deemed to have been Senter's employer for the purposes of the ADA. The court invited further briefs and argument concerning the question whether the defendants, who apparently had fewer than 25 employees (the cutoff which excuses an employer from ADA compliance) could still be subject to ADA Title I liability. The court sought argument concerning a variety of theories concerning whether Carparts and AWANE were, for the purposes of the ADA, "integrated" so that both entities' employees should be counted. The court also declined to enter summary judgment for either party on the question of whether an insurer is a place of public accommodation under ADA Title III, and refused to grant summary judgment on the issue of whether the defendants illegally discriminated against Senter based on his disability, and whether ERISA preempted his state law claims. _Dirk Williams_ Illinois Appellate Court Protects Confidentiality of Gay Husband's Medical Records The Appellate Court of Illinois, 2nd District, reversed a contempt order in favor of a Petitioner who refused to disclose his HIV status in a divorce proceeding. _In re Marriage of Bonneau and Bonneau_, 1998 WL 50227 (Feb. 9). In so doing, the court denied an ex-wife access to her ex-husband's medical records which may have disclosed his HIV status. The court found that she had shown no basis on which she was entitled to such records, which she apparently had requested upon learning that her ex-husband was gay. In February 1995 James Bonneau petitioned for dissolution of his marriage with Donna Marie Bonneau; the petition was granted in May, with maintenance and property distribution reserved for future judgment. More than one year later Donna Marie requested James's medical records for a condition which "may be AIDS or AIDS related." Her petition was granted, and when James refused to turn over such records, he was held in contempt. James contended on appeal that the requested records were protected by the AIDS Confidentiality Act, and thus the trial court erroneously held him in contempt. Donna Marie argued that James had put his health at issue in the divorce, and thus he waived the Act's privileges. Writing for the court, Justice Colwell began by noting that the Illinois legislature enacted the AIDS Confidentiality Act to control the spread of HIV by encouraging the public to submit to voluntary testing. It noted that the Illinois legislature found that confidential HIV testing is a valuable tool in protecting the public health, as the State can educate those who have tested positive to act responsibly and refrain from spreading the disease. Section 9 of the Act states: "No person may disclose or be compelled to disclose the identity of any person upon whom a test is performed, or the results of such a test in a manner which permits the identification of the subject of the test." The court found baldly that James's medical records concerning HIV are protected by the Act and that no exceptions apply to such records. Donna Marie argued that she is entitled to James's HIV information because he waived the Act's privilege by putting his health at issue. She claimed that James put his health at issue by filing for dissolution and requesting an equal distribution of the marital assets. She further contended that his health was at issue since he sought part of her personal injury claim, and since the parties' pensions would be difficult to value without knowing whether the parties have normal life expectancies. The court stated that a statutory privilege regarding mental or physical health should not be perceived as waived unless the party asserting the privilege expressly waives it or specifically and affirmatively puts his health at issue. It went on to note that in the context of HIV-related information, courts should be particularly reluctant to find that a party waived the Act's privilege, because the legislature's intent in passing the Act was to make it difficult to access another individual's HIV information through the court system. The court found that it was clear in this case that James had not expressly waived the Act's privilege, thus it turned to whether he had put his health in issue. The court held that James had not put his health at issue by filing for divorce; just the opposite, in fact, as one of James's reasons for dissolution was the possibility that Donna Marie had infected him with a sexually transmitted disease. However, the primary ground for dissolution was mental cruelty, not sexually transmitted diseases; only if Donna Marie had filed for dissolution on the basis of HIV infection by James would James's health have been at issue in this context. Thus James did not waive the Act's privilege by filing for dissolution. The court also found that James did not put his health at issue by seeking an equal distribution of marital assets without maintenance. While a court will sometimes consider health of the parties in property distribution, never is a party's poor health used against him or her. A party's poor health will result in an increase of marital assets in such party's favor. In this case, James had not sought an increased award due to poor health, nor even raised the issue of his own health, thus the court found that Donna Marie's claim was wholly irrelevant. The court went on to tartly note that if Donna Marie believed she was entitled to an increased award due to her own poor health, she can attempt to prove that she is ill by using her own medical records to carry the burden of proof. Colwell quickly dismissed Donna Marie's arguments regarding her personal injury claim and the pensions, noting that since she did not raise these issues at trial, they were waived on appeal. It also rejected what it referred to as her "fishing expedition", finding that although she filed a document on information and belief that both parties were in good health, her sole belief that the parties may not be in good health rests on the alleged statement of James that he is gay. The court noted that while homosexuals are a high-risk group for HIV infection, Donna Marie has not presented a reasonable suspicion that James is infected or has even been tested. It offered that if she believes she is infected then she should get tested herself. Thus the court reversed the contempt order and found in favor of James. _Paul Twarog_ Missouri Appeals Court Requires Actual Exposure in AIDS Phobia Case In a unanimous opinion by Chief Judge Ulrich on an issue of first impression, the Missouri Court of Appeals joined a majority of jurisdictions which require as a matter of law that plaintiffs prove actual exposure to HIV in order to claim emotional distress damages based on fear of contracting AIDS. _Pendergist v. Pendergrass_, 1998 WL 49138 (W.Dist., Feb. 10). Plaintiff Patrick Pendergist received human whole blood Factor VIII, a clotting agent, in the course of hernia surgery in 1993. Pendergist, a hemophiliac, claims that before surgery he specifically told all of the medical providers treating him that he wanted "synthetic" (i.e. Recombinant) Factor VIII; he concedes that no one assured him he would receive it. Since 1985 human whole blood Factor VIII has been treated with solvent and detergent to eliminate potential HIV and hepatitis B viruses which it could otherwise transmit. Nevertheless, Pendergist believed that Recombinant Factor VIII was safer than human whole blood Factor VIII and could not transmit viruses. Despite testing negative for HIV antibodies annually through 1996, Pendergist sought over $5.2 million in damages from the treating doctors and hospital for his claimed emotional injuries under theories of negligent infliction of emotional distress and fraudulent misrepresentation. Both theories require that the plaintiff show injuries resulting from the torts. The Defendants asserted that without actual exposure to HIV, Pendergistūs fear of contracting AIDS was unreasonable and did not constitute a legally compensable injury. California, Delaware, Idaho, Illinois, Minnesota, New Jersey, New York, Ohio, Pennsylvania, Tennessee and Wisconsin courts have expressly required actual exposure as an element of a fear of contracting AIDS claim to ensure "that the fear is not based on public misconceptions about the disease, and that such claims are treated consistently," wrote Ulrich, citing _Brown v. New York City Health and Hosp. Corp._, 225 A.D.2d 36. Georgia, Louisiana, Texas and West Virginia courts have held that absent proof of actual exposure to HIV or hepatitis, the fear of contracting AIDS is per se unreasonable. The court also cited a Maryland opinion to present the more lenient approach applied by a minority of jurisdictions, and the concern that "a requirement that plaintiffs must allege actual transmission would unfairly punish them for lacking the requisite information to do so." The court went on to adopt the rule that, absent proof of both a scientifically accepted channel of transmission and the presence of HIV, the fear of contracting AIDS is unreasonable as a matter of law and, therefore, not a legally compensable injury. The court ruled that, although Pendergist offered proof of an accepted channel of transmission, i.e. the Factor VIII transfusion, he failed to offer any evidence of the presence of HIV or hepatitis B virus. Therefore, his fear was unreasonable, and not a compensable injury. _Mark Major_ Kansas Court of Appeals Upholds Summary Judgement in AIDS Phobia Case The Kansas Court of Appeals summary judgement for defendant in the state's first reported AIDS phobia lawsuit. _Reynolds v. Highland Manor, Inc._, 1998 WL 57007 (Feb. 13). Angelina Reynolds sued for "negligent infliction of emotional distress" after she picked up a used condom left in her motel room in May of 1995. She claimed that this caused her emotional distress due to fear of contracting AIDS. Reynolds had checked into her motel room and requested a change due to a broken air conditioner. While repacking, she felt under the bed and picked up a used condom, which she said felt like a candy wrapper and claimed there was a "gush" in her hands. She screamed, dropped the condom on the floor and washed her hands. A motel employee, hearing her screams, came into the room and found a second condom. Reynolds and her husband, Marty, went to an emergency room with the condoms. The hospital staff said they could not test the condoms for HIV. Reynolds had a burn on the middle finger of her left hand and bloody cuticles, but could not say if the contents of the condom came into contact with these areas. Reynolds had HIV tests in June, August, and November 1995, as well as June 1996, all negative. She kept the condoms, on advice of counsel, in her freezer, presumably well-wrapped. Upholding summary judgement, the court found Reynolds had failed to demonstrate a physical injury as well as a "demonstrable fear of contracting a disease in the future." Key to the ruling was that she could not show that she was actually exposed to HIV. Writing for the court, Judge Penland said that the standard to be applied was a strict one. Reynolds testified that as a result of fear of dying from AIDS, she suffered headaches, diarrhea, and nausea. At the time, she was taking medication for a digestive problem. The court noted that despite her claim of fear of contracting AIDS, Reynolds continued to have unprotected sex with her husband. No record of physical injury appears. In his testimony, Reynolds' husband could not point to any physical injury to his wife. Additionally, prior to May 1995 Reynolds was out of work due to a back injury. During this same time period, Reynolds testified to numerous factors which led the court to find that her AIDS phobia was, at most, a contributing factor to her stress. These included her mother's illness, an aunt's heart condition and a niece being injured in the Oklahoma City bombing, all of which caused her anxiety. Additionally, in October 1995, Reynolds' daughter almost died from carbon monoxide poisoning. The court noted that there are no reported "AIDS phobia" precedents in Kansas. In this case, the court found not even "a minimal possibility, much less a substantial or even significant probability, that she will contract AIDS due to her contact with the condom in the motel." Citing numerous rulings from other jurisdictions, the court found that Reynolds' fear of contracting AIDS was "unreasonable" and that a standard of demonstrated exposure to HIV would be required. Public policy requires the strict standard, wrote Penland, citing _Brzoska v. Olson_, 668 A.2d 1355, at 1363 (Del. 1995), which held that if the court were to entertain claims "based upon a mere allegation that one may have been exposed to HIV, totally unsupported by any medical evidence or factual proof, we would open a Pandora's Box of `AIDS-phobia' claims by individuals whose ignorance, unreasonable suspicion or general paranoia cause them apprehension over the slightest of contact with HIV-infected individuals or objects. Such plaintiffs would recover for their fear of AIDS, no matter how irrational." _Daniel R Schaffer_ Jury Finds Negligence But Not Proximate Cause in HIV Infection Case In an unpublished opinion, the Court of Appeals of Washington affirmed a jury finding that the state's correction department and one of its officers were negligent for not preventing a supervised parolee from infecting a woman with HIV but, however, found no proximate cause for her damages. _Wyatt vs. Department of Corrections_, 1998 WL 40375 (Feb. 3). The court also found no instance of jury-tainting. Jeffrey Walker was convicted for drug distribution and divulged his HIV status at trial. He served one year and was released on community placement in July 1992 to finish out his 21-month sentence. In August, he met plaintiff Susan Wyatt and began a sexually monogamous relationship. Weeks later, she learned that Walker was a convicted felon when he introduced her to his parole officer, Darrin Bowerman. Bowerman knew of Walker's HIV status and encouraged him to reveal it to Wyatt. Bowerman knew that departmental policies prevented him from doing so himself. After seeing Wyatt and Walker together two more times, Bowerman threatened him to tell her himself if Walker did not. By this time, in late September of 1992, Walker had come down with full-blown AIDS. He then informed Wyatt of his status. Wyatt eventually tested positive for HIV in February 1993, by which time the relationship had ended. Wyatt sued the Department of Corrections and Bowerman in May 1995 for negligent failure to prevent Walker from assaulting her with HIV. (Walker was charged with attempted first degree murder and assault for the exposure, which charges were eventually dropped when his AIDS-related dementia made a trial impossible). At trial, Wyatt testified that before she met Walker she knew about AIDS/HIV, its modes of transmission, and safer sex techniques. After Wyatt rested her case, the State unsuccessfully moved for a directed verdict, arguing in part that she had failed to establish proximate cause, i.e., that she would have not contracted HIV but for Bowerman informing her of Walker's status. The State then presented medical testimony that Wyatt's sexual practices with Walker increased her risks of infection. Wyatt raised no objection to the court's jury instructions, including an instruction on proximate cause. The jury found that the State was negligent but that such negligence was not a proximate cause of Wyatt's injury. After trial, Wyatt learned via juror affidavits one juror told others of the confidentiality statute that prevented the State from informing Wyatt directly of Walker's status. Wyatt unsuccessfully moved for a judgment notwithstanding the verdict and/or a new trial on the basis of juror misconduct, arguing that the juror introduced extrinsic evidence into the jury deliberations that affected the verdict to her prejudice. She also contended that the trial court excluded an instruction on confidentiality, claiming that the rejected instruction would have informed the jury that Walker waived any confidentiality by disclosing his HIV status in open court, hence permitting the State to inform Wyatt of Walker's status. Wyatt appealed. Chief Judge John A. Schultheis wrote for the court that no extrinsic information was introduced, because several witnesses from the department of corrections had testified that departmental policies and state law prevented them from disclosing the medical conditions of their clients. The court further reasoned that even had the information been extraneous, there was no evidence it affected the verdict. The issue of confidentiality only related to the state's duty to inform Wyatt and its breach of that duty, not to the issue of proximate cause which is the issue she failed to prove beyond a preponderance of the evidence. Turning to the confidentiality instruction, the court found that there was no mention whatsoever on the record indicating that the trial court considered or rejected an instruction regarding confidentiality, therefore the issue was not appealable. _K. Jacob Ruppert_ Court Rules Against Nurse in AIDS-Fear Claim N.Y. Supreme Court Justice Burton Joseph (Nassau County) granted partial summary judgment to the defendants in _Barbara S. v. County of Nassau_, NYLJ, Feb. 9, 1998, p.31, col.1, on a claim of fear of contracting AIDS as a result of an alleged needlestick accident. Plaintiff Barbara S. was employed as an emergency room nurse in a county hospital. She claims to have suffered an injury from a needle allegedly left on a stretcher by an emergency medical technician, while removing an emergency patient from the stretcher. The incident allegedly occurred on December 1, 1995. Plaintiff tested HIV-negative on three occasions over the following year, and filed her action against the technician, the accompanying police officer, the hospital and the county on November 25, 1996. Barbara S.'s claim was for negligence, and her husband filed as co- plaintiff for loss of consortium. Plaintiff specified four types of injury: the physical needlestick injury, emotional stress, post traumatic stress syndrome, and fear of developing AIDS or some other unspecified bloodborne infection. The defendants moved for summary judgment, and plaintiff moved for a default against the medical technician, who had never answered the complaint. In analyzing the claims, Justice Joseph noted that the Appellate Division, 2nd Dept., has ruled that to assert an emotional distress claim in relation to alleged risk of developing AIDS, the plaintiff must allege actual exposure to HIV and exposure to a means by which HIV could be transmitted. In this case, plaintiff alleged the second but not the first, since there were no allegations that the emergency patient (who subsequently died from a heart malady) was HIV+, or even that the needle in question (which was quickly discarded and never tested) had been used on that patient or had been used on anybody who was HIV+. Quoting from an appellate division ruling, Joseph noted that "mental anxiety occasioned by the fear of developing a disease is not considered reasonable unless there is, at the very least, some evidence substantiating both actual exposure to the disease-causing agent. . ., and a likelihood of contracting the disease as a result." Thus, the only claim by plaintiff to survive the motion to dismiss was for her actual needlestick injury, which appears to have been minor as she alleged no complications from the injury. This disposed of her husband's claim as well. Indeed, the court observed: "The Plaintiffs' confidence that she is not contagious or HIV positive is evidenced by the fact that they have not used any protection, such as condoms, during their marital sexual relations after the incident." The court granted a default judgment against the technician, and ordered that a hearing be held to determine the damages to be assessed for the actual needlestick injury. A.S.L. PWA's Contributory Negligence May Bar North Carolina Malpractice Claim Against Psychiatrist Affirming a decision by the state's court of appeals, the North Carolina Supreme Court ruled Feb. 6 that the Durham County Superior Court erred in not instructing the jury on potential contributory negligence by a PWA in his malpractice suit against his psychiatrist. _Cobo v. Raba_, 1998 WL 57540, affirming 481 S.E.2d 101 (N.C.App. 1997). Michael Cobo, who died from AIDS while his appeal was pending, had claimed that Dr. Ernest Raba, his psychiatrist, had misdiagnosed his depression and failed to undertake appropriate treatment. According to evidence offered at trial, Cobo first became Raba's patient when he moved to Durham to take a position at Duke Medical School. Cobo, a doctor, was an infectious disease specialist and was married to Virginia Cobo (who is substituted as appellant as executrix of his estate). Cobo had a history of psychiatric counseling for depression, as well as a history of furtive homosexual activity, including patronizing gay prostitutes and bathhouses, and drug and alcohol abuse. According to Raba, Cobo resisted any prescription of medication for his depression, demanded that Raba not keep notes of their sessions, and required that the sessions take place at 6 a.m. to minimize the possibility of people seeing him entering or leaving Raba's office. Raba claims he advised Cobo to cease his sexual, drug and alcohol practices and attempted to get him to take medication, but to no avail. Cobo tested positive for HIV in 1986, but resisted Raba's efforts to convince him to seek treatment for HIV. In 1989 he developed full-blown AIDS, by which time he had terminated his patient- psychiatrist relationship with Raba. By that time, Cobo had formed a relationship with another psychiatrist and was taking medications the second psychiatrist had prescribed, which eased his depression. In 1991, Cobo and his wife sued Raba on a malpractice claim, alleging he had misdiagnosed Cobo's condition, failed to prescribe appropriate medications, continued to treat Cobo with psychotherapy when medication was indicated, and failed to keep notes of his sessions with Cobo. Expert testimony at trial tended to confirm Raba's diagnosis of Cobo's condition, but at the conclusion of trial, the judge refused to instruct the jury on contributory negligence. The jury found for Cobo, awarding $850,000 in damages. The verdict was overturned by the court of appeals, which ordered a new trial with a proper instruction on contributory negligence. Unlike most other states, North Carolina has not adopted a comparative fault approach; rather, the state adheres to the traditional common law rule under which contributory negligence by the personal injury plaintiff bars all recovery. Writing for the Supreme Court, Justice Lake asserted that in North Carolina, if there is more than a scintilla of evidence of contributory negligence, the judge must charge the jury that if they find that the plaintiff was negligent and that his negligence contributed to his injury, they must rule for the defendant. In this case, Lake found considerable evidence of negligence by Cobo. Finding that Cobo's main injury was his HIV infection, Lake observed that the HIV infection (and Cobo's persistent homosexual activity) had no necessary connection with the depression for which he ostensibly was seeking Dr. Raba's services. Indeed, as an infectious disease specialist, Cobo was well aware of the dangers of what he was doing, and Raba testified without contradiction that he had urged Cobo to cease engaging in unprotected homosexual intercourse, a course of conduct that predated Raba's treatment of Cobo. In earlier cases, the court had ruled that a patient's refusal to cooperate with treatment could be considered negligence barring recovery. In this case, Cobo went beyond such "passive conduct," engaging actively in conduct that contributed to his injury. Thus, the trial judge's failure to instruct the jury on contributory negligence mandated vacating the verdict and ordering a new trial. A.S.L. 8th Circuit Holds Prison Officials Immune From Suit for Putting Inmate in Same Cell With HIV Infection Jeffrey A. Massick, an inmate in an Iowa state prison, claimed his constitutional rights were violated when the prison placed an HIV+ inmate in his cell. Massick "alleged that the inmate had been involved in a fight and was bleeding from open wounds. During the eight days the inmates shared an administrative segregation cell, Mr. Massick cleaned the cell, picking up towels, pillow cases, and sheets stained with his cell-mate's blood, and cleaning blood off the sink." As soon as Massick learned that his cell-mate was HIV+, he complained to prison officials, who promptly transferred him to a different cell. Massick's demand to have an HIV test was refused by prison authorities. The district court dismissed his complaint, and the court of appeals affirmed. _Massick v. North Central Correctional Facility_, 1998 WL 57224 (Feb. 13). Writing for the court, Chief Judge Richard Arnold upheld the district court's determination that the suit was barred by qualified immunity. Massick sought to premise liability on the 8th Amendment prohibition on cruel and unusual punishment. "The