LESBIAN/GAY LAW NOTES
ISSN 8755-9021     May 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; Steven Kolodny, Esq., New York
City; Todd V. Lamb, Esq., New York City; Mark Major, Esq., Long
Island, New York; Sharon McGowan, Harvard Law Student, Cambridge,
Massachusetts; 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
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(C) 1998 by the LeGaL Foundation of the Lesbian & Gay Law
Association of Greater New York               
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SUPREME COURT OF CANADA READS SEXUAL ORIENTATION INTO ALBERTA'S
ANTI-DISCRIMINATION LAW

For the first time, lesbian and gay Canadians have achieved a
complete victory before the Supreme Court of Canada.  On April 2 in
_Vriend v. Alberta_, File No. 25285 (available on the World Wide
Web at the following address:
http://www.droit.umontreal.ca/doc/csc-scc/en/rec/html), the Court
held (by 8-0) that the Alberta legislature's failure to include
sexual orientation in its anti-discrimination legislation violates
sec. 15(1) of the Canadian Charter of Rights and Freedoms, and (by
7-1) that the appropriate remedy is the "reading in" of sexual
orientation into the Alberta legislation with immediate effect.

Delwin Vriend was dismissed from his job as a laboratory
coordinator at King's College in Edmonton after disclosing that he
was gay.  The Alberta Human Rights Commission refused to accept his
complaint of employment discrimination because sexual orientation
was not one of the prohibited grounds in the Individual's Rights
Protection Act or IRPA, which covers race, religious beliefs,
colour, gender, physical disability, mental disability, age,
ancestry and place of origin.  Vriend and three lesbian and gay
organizations brought a constitutional challenge to the omission of
sexual orientation under the equality rights provision of the
Canadian Charter (sec. 15(1)).

Justice Cory (writing for the Court with Justice Iacobucci) began
by considering whether the application of the Charter to provincial
legislatures under sec. 32 (the "government action" provision)
could extend to a legislative omission.  He concluded that sec. 32
does not require "a positive act encroaching on rights" and does
not preclude application of the Charter to legislation "that is
underinclusive as a result of an omission," rather than an explicit
exclusion.  It was not necessary to decide whether the
legislature's deliberate decision to omit sexual orientation was an
"act," or whether a complete failure to legislate (e.g., the
absence of any anti-discrimination legislation) could be challenged
under the Charter.  As for the argument that the IRPA applies,
unlike the Charter, to private activity, and that a decision in
favour of Vriend would have the indirect effect of prohibiting
private sector sexual orientation discrimination, Justice Cory
responded that the Charter applies to "laws that regulate private
activity" and that the case concerned an Act of the Alberta
legislature, not the acts of King's College or any other private
entity.

Turning to sec. 15(1), Justice Cory asked "first, whether there is
a distinction which results in the denial of equality before or
under the law, or of equal protection or benefit of the law; and
second, whether the denial constitutes discrimination on the basis
of an enumerated or analogous ground."  In finding a distinction,
he rejected the argument that the IRPA's silence with regard to
sexual orientation is "neutral," and that "the IRPA extends full
protection on the grounds contained within it to heterosexuals and
homosexuals alike" (e.g., both lesbian and heterosexual women can
complain of gender discrimination).  "Lesbian and gay individuals
are still denied protection under the ground that may be the most
significant for them: sexual orientation."  The IRPA draws a
distinction (denying formal equality) "between homosexuals  and
other disadvantaged groups which are protected under the Act," and
a distinction (denying substantive equality) "between homosexuals
and heterosexuals," in that "the exclusion of the ground of sexual
orientation clearly has a disproportionate impact on [gays and
lesbians] as opposed to heterosexuals."

Were these distinctions on the basis of an "enumerated or analogous
ground" and were they "discriminatory?"  The Court had already held
unanimously in _Egan v. Canada_, [1995] 2 S.C.R. 513, that sexual
orientation is "analogous to the other personal characteristics
enumerated in sec. 15(1)," which are race, national or ethnic
origin, colour, religion, sex, age or mental or physical
disability.  In looking for evidence of "discrimination," Justice
Cory found it unnecessary to decide whether the Alberta
legislature's purpose in excluding sexual orientation was itself
discriminatory, noting that "a finding of discrimination does not
depend on an invidious, discriminatory intent," and that "either an
unconstitutional purpose or an unconstitutional effect is
sufficient."  The exclusion's discriminatory effects were clear,
especially in view of the comprehensive nature of the IRPA (i.e.,
it did not target just one type of discrimination).  Apart from the
absence of effective legal recourse, the exclusion "sends a strong
and sinister message," suggesting that "discrimination on the
ground of sexual orientation is not as serious or as deserving of
condemnation as other forms of discrimination," which may be
"tantamount to condoning or even encouraging discrimination against
lesbians and gay men."  Psychological harm may result:  "[f]ear of
discrimination will logically lead to concealment of true identity
and this must be harmful to personal confidence and self-esteem;"
and the exclusion strengthens "the view that gays and lesbians are
less worthy of protection as individuals," which may harm their
"dignity and perceived worth."  The Alberta legislature "has, in
effect, stated that `all persons are equal in dignity and rights,'
except gay men and lesbians.  Such a message, even if it is only
implicit, must offend sec. 15(1)."

The respondents argued that a decision in favour of Vriend would
mean that all federal, provincial and territorial
anti-discrimination legislation would have to "mirror" the Charter,
by including the nine enumerated sec. 15(1) grounds and the three
analogous sec. 15(1) grounds the Court has identified to date
(citizenship, marital status and sexual orientation).  Justice Cory
acknowledged that "the omission of one of the enumerated or
analogous grounds from comprehensive human rights legislation would
always be vulnerable to constitutional challenge."  But no
"simplistic . . .  mirroring" would be required.  "Whether an
omission is unconstitutional must be assessed in each case, taking
into account the nature of the exclusion, the type of legislation,
and the context in which it was enacted," as well as any
justification for the exclusion under sec. 1 of the Charter.

Justice Iacobucci dealt with the Alberta government's attempt to
justify the violation of sec. 15(1) under sec. 1 as a "reasonable
limit[] prescribed by law [that] can be demonstrably justified in
a free and democratic society."  He held that, under the first
stage of the sec. 1 justification test, the Alberta government had
failed to demonstrate that the omission of sexual orientation had
a "pressing and substantial objective."  Regardless of whether
"moral considerations" would be sufficient, they had not been
argued.  And the respondents' "explanations" for the omission (the
IRPA cannot address parental acceptance; the IRPA cannot change
attitudes; insufficient examples of discrimination had been
provided; "[c]odification of marginal grounds which affect few
persons raises objections from larger numbers of others, adding to
the number of exemptions") did not constitute an "objective."

Even assuming that the IRPA as a whole had a pressing and
substantial objective (providing protection against
discrimination), Justice Iacobucci found no "rational connection"
between this objective and the exclusion of gay men and lesbians
from the IRPA.  Indeed, "denying protection to a group which this
Court has recognized as historically disadvantaged [is]
antithetical to that goal."  As for the argument that the Alberta
government must be permitted to use "incremental means" in
expanding the IRPA, Justice Iacobucci found no evidence of
incrementalism with regard to gays and lesbians or of a substantial
budgetary impact that would justify judicial deference.  Indeed,
incrementalism was not generally an appropriate justification:
"groups that have historically been the target of discrimination
cannot be expected to wait patiently for the protection of their
human dignity and equal rights while governments move toward reform
one step at a time."

The Alberta government also argued that there had been "minimal
impairment" of sec. 15(1) rights because the IRPA is social policy
legislation requiring the legislature to mediate between competing
interests:  religious freedom and homosexuality.  Justice Iacobucci
again found no need for judicial deference.  Any conflicts with
religious freedom can be dealt with on a case-by-case basis under
the IRPA's exceptions.  (The fact that King's College is a "private
fundamentalist Christian college" was not, strictly speaking, an
issue in this suit against the province for omitting sexual
orientation from the IRPA.)  The exclusion of sexual orientation
"constitutes total, not minimal, impairment of the Charter
guarantee of equality."

As for the appropriate remedy, Justice Iacobucci observed that
"striking down the IRPA would deprive all Albertans of human rights
protection and thereby unduly interfere with the scheme enacted by
the Legislature."  Reading sexual orientation into the preamble and
seven sections of the IRPA (dealing with employment, goods,
services and housing) was to be preferred because "it is reasonable
to assume that, if the Legislature had been faced with the choice
of having no human rights statute or having one that offered
protection on the ground of sexual orientation, the latter option
would have been chosen," especially in view of the size of the
excluded group.  The term "sexual orientation" did not require a
definition, and the Alberta legislature could deal with "matters of
detail not dictated by the Constitution," such as the application
to sexual orientation cases of an IRPA exception dealing with
retirement, pension and insurance plans.  Suspension of the remedy
(e.g., for one year) was not warranted because "[t]here is no risk
of harmful unintended consequences upon private parties or public
funds" and IRPA mechanisms "require no significant adjustment."  At
the end of an extensive defense of judicial review of legislation,
Justice Iacobucci concluded that "parliamentary safeguards" remain. 
"Governments are free to modify the amended legislation by passing
exceptions and defences which they feel can be justified under sec.
1 of the Charter. Moreover, the legislators can always turn to sec.
33 of the Charter, the override provision."

Whether or not the Supreme Court would permit it, repeal of the
IRPA (now known as the Human Rights, Citizenship and
Multiculturalism Act) is not politically feasible.  This left the
Alberta government with two main options:  (a) avoid complying with
_Vriend_ by invoking sec. 33 and re-enacting the IRPA without
sexual orientation; or (b) accept _Vriend_ but limit its impact by
amending the IRPA and other legislation (in ways that the Supreme
Court might uphold).  

The sec. 33 override is a unique feature of the Canadian Charter. 
It permits a legislature to expressly declare that an Act "shall
operate notwithstanding a provision of sec. 2 or sec. 7 to 15"
(roughly equivalent to U.S. Constitutional Amendments 1, 4-6, 8 and
14), but the declaration ceases to have effect after five years. 
The sec. 33 override represents a political compromise that was
necessary to obtain the consent of all provinces but Quebec to the
Constitution Act, 1982, which added the Charter to the Canadian
Constitution and provided a procedure for amending the Constitution
in Canada (rather than Britain).  Some see it as a gaping hole in
the Charter's protection, while others see it as a valid means of
reconciling judicial review of legislation and democracy by giving
the legislature the final say.  

On April 9, after a week of heated public debate and a stormy
closed-door meeting, two-thirds of the governing Progressive
Conservative Party's legislators voted to accept the Supreme
Court's decision.  But a cabinet committee will look at creating
"fences" around other Alberta legislation so as to limit the impact
of _Vriend_.  Issues to be considered may include same-sex
marriages, the definition of "spouse" in 63 provincial statutes,
employment benefits for same-sex partners, adoptions by gays and
lesbians, and the inclusion of material about homosexuality in
school curricula.

To U.S. lawyers, _Vriend_ must seem a fairly radical decision, both
with regard to the constitutional violation and the remedy.  It
goes well beyond _Romer v. Evans_ (U.S.Sup.Ct. 1996) by requiring
that anti-discrimination laws include sexual orientation,
regardless of the views of the legislature or the electorate.  An
argument that the U.S. Constitution imposes a similar requirement
is almost certainly a non-starter.  

The main effect of _Vriend_ will be to fill in the gaps in
legislative protection against sexual orientation discrimination. 
Express protection exists at the federal level, in 8 of 10
provinces (British Columbia, Saskatchewan, Manitoba, Ontario,
Quebec, New Brunswick, Nova Scotia and Newfoundland), and in the
Yukon Territory.  Vriend will effectively require judicial reading
in, not only in Alberta, but also in Prince Edward Island, the
Northwest Territories and the soon-to-be-created Inuit territory of
Nunavut.  The result will be "coast-to-coast" protection in Canada.

_Robert Wintemute.  Mr. Wintemute, author of _Sexual Orientation
and Human Rights: The United States Constitution, the European
Convention, and the Canadian Charter_ (Oxford Univ. Press), teaches
law at King's College, London, U.K._

Just three weeks after the Canadian Supreme Court decision reported
above, the Ontario Court of Appeal ruled in _Rosenberg v. Canada_
(April 23) that the Canadian Income Tax Act violates the Charter by
excluding same-sex couples from the definition of "spouse" under
provisions governing pension roll-overs. The ruling favored two
lesbian plaintiffs who were seeking access to their deceased
partners' union pension benefits.  Writing for the court, Justice
Rosalie Abella commented: "Aging and retirement are not unique to
heterosexuals, and there is nothing about being heterosexual that
warrants the government's preferential attention to the possibility
of economic insecurity.  Extending survivor benefits to persons who
are not heterosexual does not diminish the importance of protecting
the economic rights of women in traditional relationships."  

The decision, if affirmed on appeal, and taken together with
another gay couples case now pending before the Supreme Court,
could revolutionize the legal status of same-sex couples in Canada. 
At press time, there was no word whether the government would
appeal.  _Buffalo News_, April 26.  A.S.L.

LESBIAN/GAY LEGAL NEWS           

San Francisco Partners Ordinance Narrowed in Federal Court Decision

The city of San Francisco's attempt to require all city contractors
to provide domestic partnership benefits to their employees
(regardless of whether they work in San Francisco) suffered a
partial setback on April 10 when U.S. District Judge Claudia Wilken
ruled that parts of the city ordinance were invalid due to
conflicts with federal law.  However, Wilken's decision left 
proponents of the ordinance with a partial victory by not entirely
striking it down.  _Air Transport Association v. City and County of
San Francisco_, 1998 U.S.Dist. LEXIS 4837 (N.D.Cal.).

The lawsuit was brought by the Air Transport Association, the
Airline Industrial Relations Conference, and Federal Express
Corporation, all of whom are or represent contractors operating at
San Francisco's municipal airport.  These plaintiffs argued that
they should be exempted from the ordinance because federal
preemption under the Employee Retirement Income Security Act
(ERISA), which specifically bars states and their political
subdivisions from passing laws that "relate to" employee benefit
plans, because the Airline Deregulation Act (ADA) passed by
Congress several years ago specifically restricts state and local
governments from attempting to regulate airline services, and
because the ordinance would interfere with airline labor relations
governed by federal law.  The plaintiffs also argued that the San
Francisco Board of Supervisors lacked authority under the
California state constitution and their city charter to impose such
requirements on city contractors.  Finally, the plaintiffs claimed
that the city's action violated the Commerce Clause of the U.S.
Constitution by attempting to regulate out-of-state business
activities.

The Board of Supervisors amended the city's human rights ordinance
in 1996 and 1997 to extend the city's ban on sexual orientation
discrimination into the area of domestic partnership benefits. 
Since the 1970's, San Francisco has officially refused to contract
with any company that discriminates on the basis of sexual
orientation.  The recent amendments went further by providing that
city contractors' failure to extend benefits to domestic partners
of their employees would be considered discriminatory as well.  The
amendments applied not only to workers employed by contractors to
perform their city contracts, but to all their workers in the
United States, regardless whether they were employed in San
Francisco or elsewhere.

Wilken found that the Board of Supervisors did have authority under
the city charter and the California constitution to legislate on
this subject.

The most constitutionally vulnerable part of the ordinance under
the federal constitution was the requirement that contractors
extend benefits to workers outside of San Francisco whose jobs did
not directly relate to the performance of San Francisco contract
work.  By including this provision, for example, the city might
refuse to buy any cars produced by General Motors unless General
Motors adopted a domestic partnership benefits program for all its
many thousands of employees throughout the United States.  Wilken
concluded that this requirement was clearly contrary to the federal
constitution, as San Francisco's authority, if any, to regulate
economic activity outside its borders is inherently limited by the
structure of our federal system and the delegation to Congress of
primary authority to legislate on interstate commerce.  Even though
Congress has not specifically legislated to occupy the field of
city contracting practices, the so-called dormant Commerce Clause
concept, under which state and local governments are prohibited
from passing measures that would seriously burden or impede
interstate commerce, could be violated by attempting to impose San
Francisco regulations on employers in other states.

To Wilken, it was clear that San Francisco was overreaching by
extending its ordinance so far beyond its borders, and she ruled
that the airlines were entitled to a judgment that the ordinance
cannot apply to workers outside of San Francisco whose work does
not directly relate to a San Francisco city contract.  However,
Wilken suggested that the constitution was not necessarily offended
by regulating workers outside of San Francisco who were working on
a contract with that city or who were working in the airport which,
although located beyond city limits, is owned and controlled by a
city commission.

Turning to federal statutory claims, Wilken was confronted by
ERISA's provision banning state and local governments from
regulating private sector employee benefit plans.  Defenders
of the ordinance argued that the city was not regulating, merely
refusing to make contracts with particular employers.  No employer
is required to offer the benefits, because an employer can decide
not to contract with the city in order to avoid complying with the
ordinance.  

Wilken found that this was undoubtedly true for many employers, but
not really for these plaintiffs.  The only way they could provide
air service to San Francisco was by using the city's municipal
airport.  While San Francisco is merely acting as a market
participant (as a consumer or seller of goods and services) in its
potential relationship with many businesses, it is acting, in
effect, as a regulator in regard to the airlines by threatening to
shut them out of the airport if they did not adopt domestic
partnership benefit plans.

Wilken decided that this was inconsistent with ERISA's purpose
of protecting businesses in interstate commerce from having to
adjust their employee benefits policies to comply with the
different requirements that might be adopted by 50 state
jurisdictions and thousands of municipalities.  Thus, the city
could not condition use of the airport on compliance with the
ordinance, and the airlines had won a large part of their case.

However, the airlines' victory was based on the unique situation
presented by the airport.  Courts have characterized municipal
actions as falling into one of two broad categories: regulatory and
proprietary.  In the former, government is acting "as government"
by adopting legal rules and enforcing them; in the
later, government is acting like any other business or individual,
buying goods and services for its use.  Wilken found that when the
city is acting in a proprietary way, it is not attempting
to regulate the employee benefits plans of its vendors, and thus
not necessarily running afoul of ERISA preemption.

Furthermore, ERISA restricts state and local governments only
concerning those employee benefits that come within the federal
statute's definition of an "employee benefit plan" or a pension
plan.  Some of the benefits covered by the domestic partnership
ordinance, such as travel benefits, moving expenses, or membership
discounts, probably do not come within that definition, and so,
even as to the airlines, the city might not be preempted in
regulating them.

However, San Francisco's ability to insist on even this partial
compliance with its ordinance would also depend on Wilken's
interpretation of the ADA, the federal law that was intended to
stop states and cities from regulating airline operations after
Congress had deregulated them.  Here, Wilken had to determine
whether the city ordinance was intended to regulate airline prices,
routes, or services, and this was no easy task because the law is
rather new and has not received extensive interpretation yet from
the federal courts.  However, based on what has been decided,
Wilken concluded that the ADA had only limited relevance, and
ultimately little that was likely to add significantly to her
decision under ERISA.  She concluded that the statute would be
invalid under this law only to the extent that it might coerce the
airlines to change their routes, and it seems unlikely that it
would do so when their benefit obligations under the ordinance as
construed by Wilken have been so sharply narrowed. 

Wilken also rejected a claim that because airline employee benefits
are subject to union negotiation, the ordinance was invalidated by
the Railway Labor Act, a federal statute that covers airline labor
relations.  She found that specific provisions had been included in
the ordinance to accommodate the need for the airlines to negotiate
with their unions about these benefits.

Technically, Wilken's decision only applied to the specific
question of whether the city could compel the airlines to comply
with the domestic partner benefits ordinance as a condition of
renewing contracts at the airport, and many of her comments about
the validity of the ordinance as applied to other city contractors
are merely dicta.  However, defenders of the ordinance took heart
from her analysis of the state and federal constitutional issues
and ERISA, which suggested that the ordinance could validly be
applied to city contractors (other than airlines) within the city
itself, and perhaps as well to employees outside the city who were
working on city contracts.

The possibility of an appeal to the 9th Circuit was being
considered by both plaintiffs and defendants.  Since the decision
left open the possibility that the airlines might still have to
comply for those benefits not covered under ERISA, at least for
those of their employees working at the airport, the airlines had
not won a total victory, although they succeeded in freeing
themselves from the most potentially expensive benefits
requirements, and so might not have much financial incentive to
appeal.

The city, on the other hand, was left with a decision that
substantially cut back the scope of the ordinance.  Furthermore,
the decision left some doubt, for anyone who closely reads Wilken's
intricate 95-page opinion, about the continued validity of other
parts of the ordinance.  On the other hand, an appeal could go to
a conservative panel of the 9th Circuit that might cut back the
ordinance further or even invalidate the ordinance entirely, so an
appeal could be risky business.  Further appeal to the Supreme
Court presents even greater potential risks, given the novelty of
some of the questions Wilken had to decide under ERISA and the Air
Deregulation Act.

Of course, other legal challenges to the ordinance by non-airline
employers are pending, so some of the issues left open by Wilken's
decision may be decided relatively soon.

The city's defense of the ordinance was led by attorneys Stewart H.
Foreman of Landels Ripley & Diamond, Deputy City Attorney Dennis
Aftergut, and Therese M. Stewart of Howard Rice Nemerovsky Canady
Falk & Rabin.  Amicus briefs in support of the ordinance were filed
by Kelli M. Evans of the ACLU Foundation of Northern California,
Matthew Coles from the ACLU's national Lesbian and Gay Rights
Project, Jennifer Pizer from Lambda Legal Defense & Education
Fund's Los Angeles office, and, for the National Center for Lesbian
Rights, their staff attorney Shannon Minter and cooperating
attorneys Jeffrey Lewis of Sigman Lewis & Feinberg and Heidi
Gewertz.  The plaintiffs were represented by San Francisco law
firms.  A.S.L.

2nd Circuit Revives Irish Lesbian & Gay Organization March Permit
Suit Against New York City

A panel of the U.S. Court of Appeals for the 2nd Circuit ruled
April 23 that an Irish lesbian and gay group's attempt to compel
the City of New York to issue it a permit to stage a protest march
on St. Patrick's Day should not have been dismissed on grounds of
mootness.  _Irish Lesbian & Gay Organization v. Giuliani_, 1998
U.S.App. LEXIS 7819.  

ILGO began its attempts to participate in the N.Y.C. St. Patrick's
Day parade, which is run by the Ancient Order of Hibernians (AOH),
in 1991.  After losing successive state and federal lawsuits
seeking to compel inclusion in the "official" parade (and after the
U.S. Supreme Court ruled in 1995 that a Boston veteran's group had
a constitutional right to refuse to allow a lesbian and gay group
participate in its St. Patrick's Day parade), ILGO switched tactics
and sought a permit to hold a protest march earlier on St.
Patrick's Day along the same 5th Avenue route as the AOH parade. 
The NYC Police Department has consistently refused to issue the
permit, claiming an undue burden on traffic, congestion and law
enforcement to have two parades on 5th Avenue on the same day.

ILGO sued the city, claiming that its denial of the permit was
unconstitutional.  In 1995, Judge Keenan rejected ILGO's argument
that the parade permit process was unconstitutional and dismissed
the case.  ILGO applied for another permit to march in 1996; in
this case, Judge Koeltl found that Judge Keenan's ruling was res
judicata as to the constitutionality of the permit ordinance, and
that ILGO's attempt to get a permit for a 1996 march was moot by
the time the case came up for decision, thus precluding trial of a
challenge to the way the ordinance was being applied and
prospective relief for future marches.

Writing for a majority of the panel, Senior Circuit Judge James
Oakes found that this was a classic case of a controversy that is
"capable of repetition, yet evading review," an exception to the
general mootness doctrine that was recognized by the Supreme Court
in _Nebraska Press Ass'n v. Stuart_, 427 U.S. 539 (1976).  By the
time the police deny ILGO's annual permit request, thus creating a
justiciable controversy giving ILGO standing to bring a lawsuit,
there is little time remaining for a trial on the merits of ILGO's
claim before St. Patrick's Day has come and gone.  And Oakes was
dubious about Judge Koeltl's finding that each year's parade
presents a different enough situation that prospective relief would
not be appropriate.  Thus, while agreeing with Koeltl that ILGO is
now precluded by the doctrine of res judicata from ever
relitigating the question whether the permit ordinance is
unconstitutional, it should be allowed to proceed with its claim
that the police department is discriminating on impermissible
grounds in its application of the ordinance to ILGO's repeated
petitions.  

Oakes also rejected the district court's holding that ILGO lacked
standing to seek damages for the denial of its permit applications. 
While agreeing that ILGO could not seek damages on behalf of its
members without joining them as individual plaintiffs, the court
found that ILGO could assert its own organizational damage claim. 
"The denial of a particular opportunity to express one's views can
give rise to a compensable injury," wrote Oakes. "That Defendants
offered to provide ILGO with other venues and opportunities to
express its message may lessen the amount of damages due to ILGO,
but ILGO is still entitled to recover if the City unlawfully denied
the organization the opportunity to express its message in the way
it preferred." ILGO had alleged that the denial of the permits
affected its standing in the Irish community and undermined its
attempts to build respect for its constituency among Irish-American
New Yorkers.  Oakes noted that even if ILGO could not prove
tangible injury, the Supreme Court has approved the award of
nominal damages for violations of constitutional rights.  Thus,
ILGO's damage claim should not have been rejected out of hand.

Oakes's decision was joined by Judge John Walker.  District Judge
Manuel L. Real, of the Central District of California, sitting by
designation due to the 2nd Circuit's current vacancy crisis,
dissented, except as to the holding that ILGO is precluded from
pursuing a facial constitutional challenge to the permit ordinance. 
A.S.L.

Kansas Appeals Court Rejects Sodomy Law Challenge

A three-judge panel of the Court of Appeals of Kansas unanimously
ruled April 24 that the Kansas sodomy law is constitutional, and
that prosecution for solicitation to engage in sodomy is also
constitutional, rejecting federal and state constitutional
arguments.  _City of Topeka v. Movsovitz_, No. 77,372 (not
designated for publication).  The text of the decision has been
posted at the following website:
http://members.aol.com/kswebsite/appeals.html.

The case arose from the arrest of Max Movsovitz in Gage Park in the
City of Topeka on April 28, 1995.  Movsovitz was sitting in his
parked car, engaged in paperwork.  Two plainclothes police officers
engage him in conversation, the second developing the conversation
into a discussion of engaging in oral sex with Movsovitz, and then
arrested Movsovitz under the city ordinance the provides as
follows: "It shall be unlawful upon the streets or in other public
places within the corporate limits of the city for any person to
solicit or agree with any other person to participate in an act of
prostitution or sodomy."  The code defines sodomy as anal or oral
sex between persons of the same sex or sex between people and
animals.  (Kansas decriminalized heterosexual sodomy in 1969, when
it repealed the prior "crime against nature" statute.)

Movsovitz was convicted in municipal court and appealed to the
Shawnee County District Court, where he argued that the sodomy law
was unconstitutional and thus solicitation to engage in sodomy
could not be penalized.  The District Court rejected his argument,
and he appealed to the Court of Appeals.

The per curiam opinion jointly issued by Chief Judge Brazil, Judge
Green, and District Judge Anderson (sitting by assignment) refuses
to extend Kansas constitutional protection beyond the scope of
federal constitutional caselaw.  Relying on _Bowers v. Hardwick_,
478 U.S. 186 (1986), in which the Supreme Court rejected a
constitutional privacy challenge to the Georgia sodomy law, the
court ruled that the right to privacy under the Kansas constitution
extends neither to the right to engage in or solicit sodomy as
described in the Topeka ordinance.

Turning to the equal protection question, which the Supreme Court
did not address in _Hardwick_, the court engaged in a lengthy (and
somewhat inaccurate) analysis of judicial treatment of
homosexuality under the equal protection concept, with particular
emphasis on _Romer v. Evans_, 517 U.S. 620 (1996), and concluded
that constitutional challenges involving homosexuality merited only
rational basis review, not heightened or strict scrutiny.  The
quotes from _Romer_ about the level of review were all taken out of
context, and were supplemented by quotations from Justice Scalia's
dissenting opinion.  Again harking back to the _Hardwick_ decision,
the court concluded that the state's concern to promote morality
provides a sufficient basis to sustain the statute.  

Moreover, the court asserted that the challenged ordinance does not
discriminate on the basis of sexual orientation.  Even though the
ordinance is concerned only with same-sex conduct, the court opined
that the ordinance "does not criminalize a person's sexual
orientation.  Rather, it prohibits the conduct of any person
seeking to solicit or agree with any other person, in a public
place, participation in an act of prostitution or sodomy."  (Thus,
heterosexuals as well as homosexuals are prohibited from engaging
in or soliciting same-sex anal or oral sex, so the violation does
not turn on the sexual orientation of any participant.)  

The court rejected the idea that it should strike out in new
directions to invalidate the ordinance.  "Indeed," it stated,
"there are many people in society today that [sic] would argue that
rather than following the Modern [sic] Penal Code, the lawmakers
should recognize our traditional morality and prohibit all sexual
activity outside of marriage.  However, these are issues that
should be addressed by legislatures and not courts." (Note: Our
text source is a posting to a Website.  It is possible that a
transcriber who is unfamiliar with legal terminology introduced the
error in identifying the Model Penal Code.)

Finally, the court rejected Movsovitz's argument that the ordinance
impermissibly criminalizes speech protected by the First Amendment,
asserting that because the underlying sodomy law is constitutional,
speech soliciting sodomy is not protected.  

Movsovitz, who is represented on appeal by the Gay and Lesbian
Rights Project of the ACLU, will appeal to the Kansas Supreme
Court.  A.S.L.

Massachusetts High Court Finds Cohabitation Agreement Enforceable

Rejecting a probate court decision that found a cohabitation
agreement between unmarried adults unenforceable as a matter of
public policy, the Massachusetts Supreme Judicial Court ruled in
_Wilcox v. Trautz_, 427 Mass. 326, 1998 WL 188028 (April 21), that
such an agreement would be enforceable under ordinary rules of
contract law.

The case involved a heterosexual couple who began living together
when both in their 20s in 1967.  They apparently never intended to
marry, and each maintained their own separate finances.  The house
in which they lived belonged to the man. Both were employed.  The
woman contributed a small sum weekly toward household expenses, and
bought food and clothes out of her own income.  The man acquired an
airplane.  They each owned a half-share in vacation property in
Maine.  In March, 1989, the woman became involved with another man,
and the man, concerned about clarifying their rights and
obligations, went to a lawyer to have an agreement drafted.  The
woman agreed to sign it, after the man said she could no longer
live there if she refused.  Under the agreement, each party agreed
that they had no claim to the property or assets of the other, or
for payment for household services, or for each other's debts.  A
few years later, the woman again became involved with another man,
and the man demanded that she move out.  She refused, and moved her
things to another bedroom in the house.  She filed an action for a
declaration that the written agreement was unenforceable, sought an
injunction to stop the man from alienating any assets to which she
might have a claim, and demanded imposition of a constructive trust
for her benefit in one-half interest in the house in which they
were living and an award of damages based on implied contract or
quantum meruit theories.  The trial court, as noted above, found
the contract unenforceable and awarded the woman $30,000 on a
quantum meruit claim.

In reversing in an opinion by Justice Greaney, the court noted that
Massachusetts does not recognize common law marriage, and that the
only way unmarried cohabitants could provide for their rights and
responsibilities in such relationships was through making
cohabitation agreements.  Following the lead of many other states,
the court stated (in gender-neutral language throughout its
opinion) that unmarried cohabitants should be able to make
enforceable agreements governing the disposition of their assets,
and so long as the agreements are not predicated solely on sexual
services they should be enforceable if they meet the formal
requisites of a contract.

The case had been watched closely by gay rights groups in
Massachusetts for a signal that cohabitation agreements between gay
couples would be enforceable.  Although the court said nothing
specifically on that question, its pointed avoidance of using any
language that would restrict its holding to opposite-sex couples
supports the conclusion that the holding is gender-neutral and may
be invoked as a precedent by any cohabiting couple.  A.S.L.

Exclusion Of Evidence of Homosexual Relationship Upheld

In an unpublished disposition, the U.S. Court of Appeals for the
10th Circuit approved a trial judge's decision to keep from the
jury any evidence that the defendant in a civil action had a
homosexual relationship with a person who was allied in interest in
a prior proceeding against the plaintiff.  _Quark, Inc. v. Harley_,
1998 WL 161035 (March 4).

Quark, Inc., a computer software manufacturer, sued its former
general counsel, Philip A. Harley, when it learned that information
he had give to a Quark competitor, Zeus, Inc., may have assisted
Zeus in bringing a copyright infringement action against Quark. 
(Harley had informed Zeus that Quark possessed a copy of some new
Zeus software at the time that Quark was devising its own new
software which had many of the same features.)  Reading between the
lines of the per curiam opinion of the 10th Circuit, it appears
that a key person in this case was Michael Miller, a former Quark
employee "who was involved with Zeus in its lawsuit against Quark"
and who was "involved in a homosexual relationship" with Harley. 
(Ah, the computer software industry. . . )  The parties hotly
litigated the question whether the jury would hear about the
homosexual relationship.  Ruling against letting this information
in evidence, the district judge decided it would be unduly
prejudicial to Harley, commenting that it "may be a big deal to the
jury and I don't want to have that prejudice."  Instead, the court
allowed litigants to describe Harley and Miller's relationship as
"close" or to use "other synonyms."  The 10th Circuit stated that
this was not a "clear abuse of discretion, as it was not arbitrary,
capricious, whimsical, or manifestly unreasonable."

The jury ruled in favor of Quark on its breach of fiduciary duty,
but rejected all Quark's other claims, as well as rejecting
Harley's claim of abuse of process.  The court of appeals affirmed. 
A.S.L.

Indiana Court Rejects Custody Appeal by Mother

The Indiana Court of Appeals upheld the awarding of custody to the
father where the mother's bisexuality was considered to have caused
the oldest child to be prescribed Prozac for depression. _Knotts v.
Knotts_, 1998 WL 159207 (April 7).  The mother, Stephenie, appealed
the awarding of custody of her three children to the father,
Shannon.

Stephenie and Shannon were married in 1987 and had three children,
the oldest now being ten.  The court noted that the first child was
"born out of wedlock."   The couple separated in April 1996 and 
Shannon left the family home.  Stephenie filed for dissolution of
the marriage and custody of the children was shared until the
dissolution was settled.  Stephenie was principally responsible for
caring for the children and earned extra money by keeping boarders 
in the home. Shannon was employed throughout the marriage and
assisted Stephenie with the care of the boarders and the children.

Six months before the separation, Shannon objected to Stephenie
leaving the house without the children, which, she reportedly said, 
hindered her ability to find time for herself.  Subsequently,
Shannon moved from the home and a female friend moved in with
Stephenie to help care for the children.  Writing for the court,
Judge Sullivan described the relationship between the women as
"intimate." Stephenie had affairs with two men during the marriage. 


A social worker diagnosed the oldest child with depression and
prescribed Prozac.  She asserted that principal cause of the
depression was "the fact that her mother had been labeled `gay'. .
.."   The court acknowledged that Shannon made negative statements
about Stephenie's sexual orientation, which may have been "the
impetus of the child's psychological problems."  While the court
found that Shannon's "belittling" of Stephenie to the child could
not be condoned, it upheld his custody of the children.                        The
court found that Stephenie was deficient in caring for her
children, "frequently forgetting to provide her children with
medication and arrange necessary transportation" and Shannon was
found to have "demonstrated that the children take precedence over
all other aspects of his life, and that he is committed to their
care and well-being."

Stephenie argued that the trial court punished her because of her
sexual orientation.  The court found that "without regard to
Stephenie's sexual orientation the trial court could reasonably
conclude that placement with Shannon was in the children's best
interests."  The court continued that even if there was punishment
on the basis of sexual orientation, evidence presented at trial
supports the proposition that Stephenie's "current relationship
impacted negatively upon her oldest child." _Daniel R Schaffer_

Gay Bar Not Liable for On-Site Murder and Assault 

A panel of the Court of Appeals of Ohio, 8th District, ruled 2-1
that a gay bar in Cleveland was not liable on a negligence theory
for the handgun murder of a gay man and incidental shooting of
another man that took place on the premises.  _Collins v. Down
River Specialties, Inc._, 1998 WL 166174 (April 9).  A dissenting
judge argued that the bar's failure to have security personnel on
the premises, in light of past fighting incidents and the rough
neighborhood where the bar was located, could be considered
negligent.

The case was brought by Kenneth Wilkerson, who was wounded in the
incident, and Gertrude Collins, whose son, Allen D. Howell, was
murdered.  

The shots were fired by Vidal Brown, a former lover of Kenneth
Tyler, a friend of Howell who was dancing with Howell when Howell
was shot.  Brown was trying to re-establish his relationship with
Tyler, and had previously warned Tyler that he would shoot Howell
in the head and go to prison in order to keep Tyler for himself. 
When Brown arrived at the bar, he "pulled Tyler from the dance
floor, yelling, `I don't want you dancing with that bitch,' and
showing him a chrome plated .25 caliber semi-automatic Phoenix Arms
pistol, and ordered Tyler to stay away from Howell."  Tyler relayed
this threat to Howell, but evidently the men didn't take it
seriously, because they continued dancing.  Brown, infuriated,
approached Tyler from the rear, "reached over his back and right
shoulder, and shot Howell in the face, killing him.  Tyler then
began to struggle with Brown, who fired two additional shots, one
of which struck Wilkerson in the lower left chest or abdomen." 
Brown fled the club but was later apprehended by the police and
pled guilty to murder, receiving an 18-years-to-life sentence.

Wilkerson and Collins independently filed suit against Brown and
the bar.  The actions against Brown were withdrawn after he was
convicted and sentenced, but continued against the bar.  The trial
court directed a verdict for the defendant, finding that under Ohio
law a business could not be held liable for the unforeseeable,
intentional criminal acts of third parties.

In an opinion affirming the trial court, Presiding Judge O'Donnell
rejected the plaintiffs' argument that the bar "owed a duty to
protect patrons from known risks of harm and that it was
foreseeable that patrons would be injured from violent acts of
third parties within its premises."  In this case, there was no
evidence that similar incidents had occurred in the bar in recent
years, according to O'Donnell, so the court upheld the trial
court's conclusion that the club "had no reason to expect the
sudden violent criminal act of Brown."

In a concurring opinion, Judge Karpinski observed that Brown had
warned Tyler about his intent to shoot Howell, and that the men
took no steps to protect themselves or to alert the bar's personnel
to their danger.  (The bar did station security personnel in its
parking lot, who could have been summoned to intervene.)  "Howell
specifically knew that Brown brandished the pistol and was jealous
about his dancing with Tyler, but did not report the matter or seek
assistance from anyone prior to the shooting," emphasized
Karpinski, who also noted that "even in cases which do not involve
prior knowledge of the assailant, however, courts routinely decline
to impose liability for criminal assaults based on `negligence'
claims attributed to `crowded' or `understaffed' premises."

Dissenting, Judge Spellacy cited cases for the proposition that
"because of the special relationship between a business and its
customer, a business `may be subject to liability for harm caused
to such a business invitee by the conduct of third persons that
endangers the safety of such invitee.'"  The question is the state
of knowledge of the owner about potential risks.  Spellacy observed
that courts have been particularly receptive to such arguments
about premises that serve alcoholic beverages, and noted that this
particular bar had live entertainment on Friday nights, became very
crowded (approximately 250 people on the night in question),
largely with "under-age" males, and had experienced acts of
violence in the past both inside and outside the club, although no
previous shootings.  Spellacy also noted that the club "is located
in an area which was considered to be a high crime area at the time
the incident occurred."  The plaintiffs offered a safety expert who
testified that the club's safety arrangements were "totally
inadequate," in light of the location, nature of the operation, and
past experience.  Spellacy would have reversed the trial court and
remanded for a new trial on the merits.  A.S.L.

Missouri Supreme Court Reinstates Death Penalty for Gay-Basher

The _St. Louis Post-Dispatch_ reported April 22 that the Missouri
Supreme Court reinstated the death penalty imposed on Robert Shafer
for the 1990 murders of Keith D. Young and ford Jerry Parker in St.
Peters, Missouri.  

According to the court, "Shafer sought out homosexual victims to
rob.  This was his planned entertainment for the night.  After
inflicting mortal wounds on his first victim, Shafer chased and
shot his second victim as the victim begged for life."  Shafer
offered an 18-page confession to police and rejected representation
by counsel, insisting he wanted to be sentenced to death, which he
was by St. Charles County Circuit Judge David Dalton in 1993.  

Two years later, he filed a motion claiming his waiver of counsel
was not "voluntarily, knowingly or intelligently made," and seeking
a new trial.  A special judge of the circuit court vacated the
death sentence and ordered a new hearing, but on appeal the Supreme
Court reversed, stating: "The record shows that Shafer understood
the nature of the charges against him, that his appointed counsel
attempted to discuss the defenses he might employ, including those
based on psychological evaluations, and that he refused to consider
those defenses in light of his firm desire to plead guilty and
receive the death penalty."  Too late to change his mind now. . . 
A.S.L.

Georgia Appeals Court Upholds Conviction of Gay-Basher

The Georgia Court of Appeals affirmed the conviction for aggravated
battery of Sherwin McClain on April 16.  _McClain v. State_, 1998
WL 175618.  McClain had been charged with setting fire to a man for
making a homosexual advance.

The victim, not named in the opinion by Judge Smith, alleged made
homosexual advances to McClain.  To retaliate, McClain got a cup of
gasoline, which he threw at the victim while the victim was getting
into his car.  McClain struck a match and tossed it at the victim,
setting the victim and his car on fire, resulting in serious injury
to both victim and car.  Prior to throwing the gasoline, McClain
allegedly yelled at the victim, "We are going to see who has the
last laugh."

At trial, McClain claimed that he had not intended to burn the
victim, just the car, and claimed that the trial court erred by
refusing McClain's request to charge the jury on the lesser offense
of reckless conduct.  The appeals court rejected McClain's
argument, observing that McClain testified that he intended to burn
the victim's car, and thus "committed a culpable act with criminal
intent when he threw the gasoline and struck the match. 
Consequently, a charge on reckless conduct was not authorized by
the evidence."  The opinion did not indicate the sentence imposed
on McClain.  A.S.L.

Michigan Appeals Court Question's Mother's Judgment in Rooming With
Lesbian Couple

Affirming a grant of custody to the father, the Court of Appeals of
Michigan affirmed a trial court's finding that the mother exercised
poor judgment in renting a room in the apartment of a lesbian
couple and "exposing" her children to "negative aspects of the
couple's relationship, including their arguments."  _Fletcher v.
Fletcher_, 1998 WL 135475 (March 24).  It is hard to know from the
court's opinion whether homophobia was playing a role in this
custody determination.  

The Fletchers were married in 1975 and divorced in 1990.  In
December 1991, the trial court granted custody to the father, and
the mother appealed.  That determination was reversed by the court
of appeals, which found error by the trial court on three factors
of the Child Custody Act, including the factor concerning the
parents' "moral fitness," a ruling that was affirmed by the state
supreme court.  

On remand for a new trial, the trial court apparently made no
finding against the mother on morality issues, but on the standard
of "capacity and disposition of the parties involved to provide the
child with [necessities of life]," the trial court found that the
mother "has used poor judgment in financial matters which has
affected the children.  Despite the fact that defendant had
sufficient income and property after the divorce to secure adequate
housing, she shared an apartment with a lesbian couple.  The Court
finds that the children were aware that the couple in the apartment
were lesbians.  In fact, testimony to this effect was placed on the
record while defendant still lived in the apartment.  Credible
evidence also establishes the children were exposed to negative
aspects of the couple's relationship, including their arguments. 
The Court is not passing on the morality of the couple's
relationship.  Living in an apartment during a transition period
also does not necessarily show poor financial planning.  However,
the record establishes that exposure to this specific living
arrangement was not in the children's best interests."

This statement is frustratingly opaque; it is unclear whether the
court's conclusion was based on its view that children should not
be "exposed" to a lesbian couple while their mother is exercising
her weekend visitation with them (the children were living with the
father throughout the litigation), or whether the court found that
this particular lesbian couple's relationship had problems to which
the children should not be exposed.  The trial court apparently
made no finding as to the mother's sexual orientation, although one
suspect's that unspoken conclusions were drawn on the basis of her
housing arrangements.

The court of appeals found that the trial judge's stated
conclusions on this point did not constitute a "palpable abuse of
discretion," and thus must be affirmed.  Judge Young's decision for
the court did note that this factor did not appear to have been
given significant weight by the trial court, which had also found
that the mother intended to purchase a house.  The case seems to
have turned mainly on the finding that the mother continually "ran
down" her ex-husband to the children, but he did not engage in such
conduct regarding her, and so placement with him was deemed
preferable as a way of preserving a good relationship between the
children and both of their parents. A.S.L.

N.Y. Court Enforces Lesbian Couple's Separation Agreement

In an opinion that received front-page play in the _New York Law
Journal_ on April 20, New York State Supreme Court Justice Edward
J. Greenfield ruled in _Silver v. Starrett_ (N.Y. County) that a
separation agreement negotiated by a lesbian couple to terminate
their relationship was an enforceable contract, rejecting arguments
of duress and lack of consideration.

Dr. Barbara Starrett and Ann Silver lived together in Starrett's
apartment for fourteen years.  Silver, who is deaf, had difficulty
holding down a full-time job, and Starrett was actually supporting
her financially most of the time.  Greenfield characterized
Starrett as "a successful doctor who obviously suffers from low
self esteem.  While she is plain looking and considerably
overweight, she describes plaintiff Silver, a younger woman, as
strikingly beautiful, intelligent, but deaf. . ."  Toward the end
of the relationship, "Starrett came to feel that she was being used
financially and emotionally.  She complained that she felt
inadequate, and that Silver accused her of being `too fat and
boring in bed.'" Starrett's stress, compounded by her demanding
AIDS medical practice, led to depression and suicidal feelings, and
after intensive therapy she determined to end the relationship.

Starrett told Silver she wanted to end the relationship.  Silver
responded with a long, emotional letter, followed shortly by a
letter from Silver's lawyer, seeking a negotiated separation
agreement.  Starrett alleges that this letter drove her to a guilty
obsession to end the relationship, under which she was "forced" to
offer financial terms overwhelmingly advantageous to Silver. 
Ultimately, the agreement went through five drafts, during which
both women were represented by lawyers.  The final agreement
obligated Starrett to pay Silver a salary of $30,000 for three
years, and then for two more years to make up the difference
between $30,000 and whatever Silver was then earning, in return for
which Silver was to move out and relinquish all claims against
Starrett (including her proportional share in their country
property, which had been bought mainly from Starrett's earnings).

Silver moved out, and ultimately settled in Seattle, Washington. 
Starrett paid for the first three years, then refused to make
further payments.  Silver sued for the balance due, and Starrett
counterclaimed for the first three years' payments, claiming that
the contract was made under duress and lacked consideration.

Justice Greenfield noted that the standard for duress is very high. 
In a non-marital case, "the question is whether there is
overreaching or unconscionability so that it is clear that the
agreement is not arrived at by consent mutually and freely given. 
The exercise of one's free will is not to be overborne."  The
standard was not met in this case, said Greenfield.  While Starrett
may have been emotionally overwrought and obsessed with ending the
relationship, there was no indication that her will was overborne. 
"Dr. Starrett was not a helpless puppet being manipulated by the
wily Silver.  She had a clear objective -- to get Silver out of her
life."  Greenfield emphasized that the first draft for the
agreement came from Starrett, not Silver, and that both women were
represented by counsel in its drafting. 

Greenfield also noted that in cases of duress, courts look for the
protesting party to disavow the agreement at the earliest possible
time.  In this case, Starrett made three years of payments,
continuing after the immediate emotional turmoil had ended, thus
apparently ratifying the agreement.

As to the consideration argument, Greenfield rejected the
contention that Starrett obtained nothing of value in exchange for
her substantial financial commitment to Silver.  Greenfield found
that Silver had given up potential claims and whatever rights of
tenancy she might have, including claims to the country house in
which the women both had a share.  "Defendant wanted two things and
wanted them enough so that she agreed to pay a considerable sum of
money over a five year period.  She wanted plaintiff out of her
apartment immediately without further disputes or complications,
and she wanted her to relinquich any claim that she might have to
any of defendant's property.  She got what she bargained for."

The agreement provided that in the case of litigation the losing
party would pay fees and costs for the prevailing party. 
Greenfield enforced this to the tune of more than $16,000, on top
of ordering Starrett to make the fourth and fifth year payments
under the contract.  A.S.L.

New York Court Refuses to Dismiss Perceived Sexual Orientation
Discrimination Claim 

Justice Leland DeGrasse of N.Y. Supreme Court, New York County,
refused to dismiss a complaint alleging discrimination based on the
plaintiff's perceived sexual orientation.  _Ferretti v. Mt. Sinai
Hospital_, NYLJ, 4/10/98, p.25, col. 6.  
The plaintiff, Alan Ferretti, received his DDS degree from New York
University College of Dentistry in 1991.  After completing his
general practice residency, Ferretti was accepted into Mt. Sinai's
four year residency program in Oral and Maxillofacial Surgery, and
commenced employment in the program in July 1993.  In his second
rotation in the residency program, Ferretti began to work directly
under defendant Daniel Buchbinder.  Ferretti's complaint alleges
that Mt. Sinai, Buchbinder, and others encouraged by Buchbinder,
discriminated against him based on their perception that Ferretti
was gay.  

Ferretti asserts that he is not gay but nevertheless has been the
victim of discrimination based on his perceived sexual orientation. 
Defendants repeatedly referred to Ferretti as "Nurse."  Justice
DeGrasse noted that in many of the cases involving discrimination
based on perceived sexual orientation the name calling was more
egregious, using epitaphs such as "Bitch" or "Faggot."  However,
DeGrasse found that in a hospital setting calling a male surgical
resident "Nurse" was potentially freighted with homophobic
implications, such as the common stereotype that male nurses are
homosexual.  

In addition, Ferretti was allegedly advised by a member of the Mt.
Sinai Harassment/Grievance Committee that since "he didn't fit in
with the macho surgery environment he should just accept it and
think about what else he would like to do with his life." 
Thereafter, at the end of Ferretti's third year of residency, the
Hospital refused to renew his contract.  The defendants alleged
that Ferretti was incompetent, although he had graduated sixth in
his class from New York University.

Ferretti alleges that the conduct of Buchbinder and Mt. Sinai
Hospital was in clear violation of New York City's Human Rights
Law.  The Human Rights Law provides that it shall be unlawful
discriminatory practice for an employer to discriminate based on
the actual or perceived sexual orientation of an employee.  Justice
DeGrasse found sufficient allegations in the complaint to sustain
this cause of action.  However, since this motion arose from
defendants' motion to dismiss the complaint, the court never
reached the merits of the claim.   

Ferretti also alleged that the defendants' conduct also amounted to
gender discrimination under Title VII.  However, because the court
found that relief may be available to plaintiff under the New York
City Human Rights Law, it declined to reach whether similar relief
will be available under Title VII.  Ferretti's other claims,
including breach of contract, due process, negligent
misrepresentation, constructive fraud, tortious interference with
contract, interference with prospective contractual relations,
prima facie tort, and intentional infliction of emotional distress
were all dismissed by the court.  According to news reports,
despite the court's decision, Mt. Sinai continues to assert that
Ferretti was dismissed for incompetence.  _Todd V. Lamb_

Federal Court Refuses to Rule on Claim that Metropolitan Opera
Discriminates Against "Straights"

In _Brennan v. Metropolitan Opera Association, Inc._, 1998 WL
193204 (U.S.Dist.Ct., S.D.N.Y., April 22), the question determined
by the court was whether Martha Brennan, a former employee of the
Metropolitan Opera in New York City, stated causes of action for
age and sex discrimination under federal and state law, and
discrimination based on sexual orientation under New York City's
Human Rights Law.  On the Met's motion for summary judgment,
District Judge Michael Mukasey ruled that Brennan did not make out 
a case of sex or age discrimination under federal or state law, and
refused to exercise supplemental jurisdiction to determine whether
she had suffered discrimination based on sexual orientation under
the city Human Rights Law (which may have been her strongest
claim).

Brennan, an avowed heterosexual, was originally hired in 1987 as a
secretary to the Met's executive stage director, Phyllis Berkowitz.
She served in that position until 1989, and returned to the Met in
1990 as an assistant stage director under David Kneuss, a gay man
who was Berkowitz's successor. Assistant stage directors serve are
"seasonal" employees at the Met, whose contracts are renewed on an
annual basis.  Brennan's contract was renewed in 1991 and 1992, but
not in 1993. 

Brennan sued the Met, Kneuss, and the Met's General manager, Joseph
Volpe, in 1995, after getting a right-to-sue letter from the Equal
Employment Opportunity Commission.

In its motion for summary judgment, the Met conceded three of the
four elements Brennan would have to prove: 1) that she belonged to
a protected class; 2) that she was qualified for the position in
question; and 3) that she was denied the position.  Their motion
challenged the fourth element required to prove her case: that the
decision not to rehire took place under conditions giving rise to
an inference of discrimination.  In the alternative, the Met argued
that they had articulated legitimate non-discriminatory reasons for
failing to rehire her.  Judge Mukasey found that Brennan simply
hadn't made out her case under the stringent factual standards
which the law required.

On the claim of age discrimination, the court noted that Brennan
had lied about her age on her job application, which was the only
document the Met had which indicated her age.  She stated that she
was 35 on her application in 1987, when she was, in fact, 45 at the
time.  Kneuss stated at deposition that he thought that she was in
her 30's when he met her in 1986.  The court refused to accept her
argument that he should have figured that she was over 40 by 1993. 
That another, younger, woman was subsequently hired does not prove
that Brennan was terminated to make way for her; the court found
that this, in itself, does not make out a case of age
discrimination, nor did the occasional jokes made at the expense of
some of the older workers or occasional professional slights she
said she had to endure from Kneuss.  This did not satisfy the
required showing that there was a hostile work environment based on
age, as there was no showing that the workplace "was permeated with
discriminatory intimidation. . ."

As to the charge of sex discrimination, all that Brennan could
allege was that there was a hostile working environment with regard
to sex -- i.e., that male was "the officially preferred gender" at
the Met -- was that there was an occasion when two gay co-workers
told an off color joke which she overheard, that one of her
co-workers posted some suggestive postcards of men in various
stages of undress by his desk where it could be seen by others, and
that Kneuss made some disparaging remarks about her over the course
of their professional relationship.

The Met showed that Brennan was not making sufficient progress in
her field, and that she had expressed reservations about taking on
the additional responsibilities needed to become a full-fledged
stage director.  The court found that these reasons overcame any
factual inferences which could be drawn evincing discriminatory
intent.  Having found no merit to Brennan's federal law claims,
Mukasey exercised discretion to decline to address her claim of
sexual orientation discrimination under New York City's human
rights ordinance.  _Steven Kolodny_


11th Circuit Court Gives Effeminate Gay HIV+ Convict Reduction In
Sentence For Fear Of Prison Victimization

The United States District Court for the Middle District of Alabama
found credible evidence for a downward departure in the sentencing
of a petite HIV+ gay man "with somewhat effeminate mannerisms" on
account of the risk of victimization in prison. _U.S. v. Ruff_,
1998 WL 133186 (March 20).  This is the latest in a series of
significant cases where the risk of prison rape is considered in
sentencing.

Defendant Gregory Kirt Ruff pleaded guilty to breaking in to a U.S.
Post Office in Alabama and stealing three money orders totaling
$580, stating that he did so in order to prevent his car from being
repossessed and to support a drug habit.  At sentencing he moved
for a two-level downward departure from the sentencing guidelines,
which permits district courts to depart downward to address
circumstances "of a kind, or to a degree, not adequately taken into
consideration by the sentencing Commission and for an imposition of
a sentence of probation."   The government recommended a home
detention in lieu of imprisonment.  The probation officer in his
pre-sentence investigation report recommended a term of 12 months
imprisonment due to Ruff's 1983 probation violation on a burglary
charge.  

Ruff's motion argued that a departure was warranted because of (1)
his vulnerability to victimization in prison due to his personal
history, physiology, and being an openly gay man with "effeminate
mannerisms," (2) his history of depression, (3) his drug addiction,
(4) his history of child abuse, and (5) his present medical and
rehabilitation needs for his HIV+ status, depression, and drug
rehabilitation. 

District Judge Thompson agreed with Ruff and his psychological
evaluator's testimony, and concluded that Ruff's particular
circumstances, which incorporate his personal history and
background, physical condition and appearance, and sexuality, make
him extraordinarily vulnerable to victimization in prison.  Ruff is
a 35 year-old man, 5'5", 115 lbs. and is openly gay who displays
"somewhat effeminate mannerisms," is a former female impersonator,
and is a survivor of childhood and adulthood sexual abuse.  Ruff
was also sexually abused in prison on an earlier conviction.  

None of the allegations concerning the prevalence of sexual assault
in prison or the likelihood of Ruff being assaulted in prison was
refuted by the opposition.  Moreover, a witness from the Bureau of
Prisons testified that the bureau did recognize the risk of rape
within its inmate population.  

Ruff's other claims, although with merit, did not warrant departure
and were denied. 

Turning to the issue of whether this vulnerability for
victimization warrants a two-level downward departure, the court
primarily relied upon _Koon v. US_, 518 U.S. 81 (1996), in which
the Supreme Court adopted the First Circuit's guidelines for
departure, and upon _U.S. v. Hoffer_, 129 F.3d 1196 (11th Cir.
1997).  The court concluded that such extraordinary circumstances
exist to justify a downward departure in Ruff's case.  It noted
consistent holdings where vulnerability to victimization were found
where the defendant had a youthful appearance, was bisexual, had
been threatened by other inmates to be forced into male
prostitution, of small build and had "a feminine cast to his face." 
Furthermore, in cases in which departure is denied, courts have
generally noted the absence of the very circumstances found in
Ruff's case.  

However, the court makes it quite clear that it is not Ruff's
status as a gay man, an effeminate man, or survivor of sexual abuse
that warrants a departure; rather, "[i]t is the fact that [the]
cumulative effect of Ruff's mental and physical characteristics
will substantially increase his risk of sexual assault in prison --
a penalty that not only violates the sentencing guideline's mandate
for uniformity in sentencing, but, depending on the magnitude of
indifference of prison officials to his risk for assault, could
also violate the Eighth Amendment."

Next, the court had to decide to what extent Ruff's sentence should
depart from the sentencing guidelines, realizing that should the
court deny the motion, it could diminish the victimization by
imposing the minimum sentence of four months.  However, with a
one-level departure, the sentence could be one of probation with
home confinement.  The court opted for the latter since it would
remove completely the risk of victimization, would enable Ruff to
begin HIV medical treatment immediately (a prison term would only
place him on a waiting list), and put Ruff in a supervised release
situation for a maximum of five years instead of three, a goal of
better providing Ruff with the needed correctional treatment for
his depression, drug addiction and HIV condition in the most
effective manner.  However, the court did not impose this departure
without a thorough explanation (surely to thwart reaction by
conservative watchdogs) that the departure was a conservative one
compared with other cases dealing with inmate vulnerability to
victimization and that a sentencing court cannot completely remove
the threat of victimization in prison without a drastic departure
from the guidelines.  _K. Jacob Ruppert_

U.S. District Court Upholds Retaliation Claim in Same-Sex
Harassment Case

In one of the first same-sex harassment opinions to apply the
Supreme Court's ruling in _Oncale v. Sundowner Offshore Services_,
Inc., 118 S.Ct. 998 (1998), the U.S. District Court in Maryland
upheld a retaliation verdict based on a pre-_Oncale_ same-sex
harassment claim.  _Ford v. Rigidply Rafters, Inc._, 1998 WL 154409
(April 1).

Plaintiff James Ford sued his former employer, Rigidply Rafters,
alleging sexual harassment by his male supervisor and retaliatory
termination.  Ford prevailed only on the claim that he had been
fired in retaliation for filing a workers compensation claim and
the discrimination lawsuit.  Rigidply then moved for judgment as a
matter of law, arguing (1) Ford never had a valid discrimination
claim because the 4th Circuit had held same-sex harassment was
actionable under Title VII only where the harasser is homosexual,
and (2) Maryland law only allows workers compensation retaliation
claims where the workers compensation claim was the sole motive for
termination.

Senior District Judge Young disagreed.  Young read Maryland's
workers compensation law to allow mixed-motive claims where the
other motive was also illegal.  Noting that _Oncale_ undermined the
defendant's Title VII argument, Young ruled that a plaintiff need
only have a reasonable belief that a violation occurred in order to
establish a retaliation claim.  O.R.D.

Federal Court Upholds 8th Amendment Complaint by Sexually-Assaulted
Prisoner

In a recent case involving extreme prisoner brutality and possible
ant-gay bias by correction officials, U.S. District Judge Denise
Cote (S.D.N.Y.) refused to grant defendants' motion for judgment on
the pleadings.  _Polite v. Barbarin_, 1998 WL 1466787 (March 25). 


Gary Polite filled suit under 42 U.S.C. sec. 1983, alleging
unconstitutional conditions of confinement.  On January 21, 1996,
Polite, a pretrial detainee, applied for a transfer to the gay
housing unit.  Polite does not consider himself gay, although he
had admitted to having engaged in homosexual activity in the past. 
Instead, Polite stated that he had a sudden urge to be in the
company of gay inmates.  Although the officer that interviewed
Polite granted the request, another officer rejected the request
and Polite was transferred to another facility and placed into the
general population.  At this time Polite again applied for a
transfer to the all-gay unit, and although his application was
preliminarily approved, it was again denied later on by the same
officer who denied the first request.  Polite was placed into an
administrative segregation unit, and several inmates who learned of
his transfer request forced him to perform oral sex.  

Finally, Polite was transferred to the all-gay unit, but only after
the Commissioner of the Department of Corrections was informed of
the situation and ordered the transfer.  While in the gay unit,
Polite was stabbed by other inmates and transferred back to the
original facility.  Since then Polite has repeatedly been sexually
assaulted by other inmates.

The defendants moved for judgment on the pleadings on several
grounds, including that Polite had failed to exhaust administrative
remedies, and because the complaint does not include the names of
the individuals who attacked him.  The court concluded that there
was no clear evidence that Polite failed to exhaust his
administrative remedies.  Pointing out that the Defendants did not
state how Polite failed to exhaust available remedies or point out
any administrative procedure that would compensate him for the
repeated assaults, the court refused to dismiss this claim. 

Finally, the court also stated that failure of the complaint to
state the names of the prisoners who assaulted Polite does not
protect prison officials from liability for their deliberate
indifference to his being brutalized.  Citing _Farmer v. Brennan_,
511 U.S. 825 (1994), the court said prison officials can be found
liable under the Eighth Amendment for denying an inmate humane
conditions of confinement if the official knows of and disregarded
an excessive risk to health or safety.  Pointing out that prison
officials knew of the assaults, and leaked Polite's request to be
transferred to the all-gay unit to the other inmates, the court
said that the lack of names does not make the complaint deficient.
_Seth M. Rosen_

U.S. Military Service Issues Heating Up; British Army Moves to
Soften Anti-Gay Ban

Reacting to charges that the U.S. Defense Department is not
properly enforcing the "don't ask, don't tell" policy on military
service by lesbians, gay men and bisexuals, Defense Secretary
William Cohen released an internal Pentagon report on April 6,
confirming that discharges for homosexuality have increased
substantially since the new policy was adopted in 1993.  Without
any data, the Defense Department speculates that this increase is
because more servicemembers are voluntarily "coming out," and Cohen
stated his belief that on the whole the policy is "working well." 
Spokespersons for the Servicemembers Legal Defense Network rejected
this explanation, insisting that the increase was due to the
continuation of "witch hunts" and other abuses of the policy by
military commanders.

Cohen announced that the Defense Department's approach to the
policy would be modified to attempt to secure more uniform and
appropriate enforcement through U.S. defense forces.  The new
procedures will encourage commanders to seek legal advice before
starting investigations, require heightened training on the policy,
adopt guidelines to impose punishment for sexual harassment in
cases where it can be shown that somebody accused another of
homosexuality for purposes of harassment (a frequent scenario when
military women rebuff sexual advances from men), discourage
pretrial agreements for lenience in exchange for "ratting out"
other gay servicemembers, and discourage intrusive investigations
once a servicemember says openly that they are gay.

On another front, Secretary Cohen wrote to Attorney General Janet
Reno on April 1 indicating that the Defense Department should not
agree to any settlement in Timothy McVeigh's case without getting
approval from the Defense Department.  (McVeigh was discharged
after Naval investigators learned his identity from America On-Line
after receiving a tip from the wife of another service member that
an on-line profile suspected of being McVeigh's had gay-suggestive
content.)  The Department is said to fear that a settlement
allowing McVeigh to retire early on a full pension would open the
floodgates for other discharged gay personnel and be a real budget-
buster.  At the end of March, the Justice Department filed an
appeal from the decision by Judge Stanley Sporkin, 983 F.Supp. 215
(D.D.C. 1998), ordering McVeigh's reinstatement.  _Los Angeles
Times_, _Washington Times_, April 8.

Defense Department recruitment officials sent inquiries to numerous
law schools in recent months about their placement office policies. 
_National Journal_, April 25.  Most of the schools that have been
contacted have apparently dropped any ban they might have had on
military recruiters due to concern over losing federal work study
and loan assistance for students, but it was reported that N.Y.U.
and Yale have rejected military overtures.  A fierce internal
debate ensued at Harvard, where it was initially reported that more
than $1 million in federally-provided student assistance might be
at stake.  Meanwhile, U.S. Rep. Gerald Solomon, author of the
federal measure to blackmail schools into allowing access to
military recruiters by threatening to withhold federal money,
announced that he will retire from Congress at the end of this
term. A.S.L.

10th Circuit Dismisses Defamation and Privacy Actions by
Transsexual Businessperson

The U.S. Court of Appeals for the 10th Circuit has upheld a
decision by the district court in New Mexico to dismiss an action
by a post-operative transsexual against _Business Week_ magazine
for a 1994 article which referred to the plaintiff's personal
history as part of an investigative report on certain marketing
practices in the securities industry.  _Schuler v. McGraw-Hill
Companies, Inc._, 1998 WL 193132 (April 22), unpublished
disposition, affirming 1997 WL 809755, 25 Media L. Rep. (BNA) 2409
(D.N.Mex. 1997).  

Eleanor Schuler, born John Huminik Jr., had a colorful career as a
U.S. intelligence agent during the 1960s, and wrote an
autobiography about then-his exploits, titled "Double Agent." 
Later, Huminik became a businessperson and was the subject of
enforcement actions by the SEC which were settled in consent
decrees. Huminik underwent sex reassignment, becoming Schuler, and
continued in her business career.  

The 1994 _Business Week_ article was devoted to exposing alleged
problems with the methods used by the American Stock Exchange to
designate certain stocks as worthy of investor attention by listing
them in an "Emerging Company Marketplace."  The article selected
Printron, Schuler's then-current business venture, to illustrate
its point, and the article, according to Schuler, imputed various
kinds of wrongdoing to her, including an implication that she had
changed her sex in order to conceal past wrongdoing from current
investors, the SEC, and the Amex.  

In upholding dismissal of claims of defamation, invasion of privacy
and prima facie tort, the courts found that all the challenged
parts of the article were either true statements, questions that
did not imply defamatory or false answers, or statements of opinion
that were not actionable under the circumstances.  Additionally,
the courts found that many of the statements Schuler found
objectionable were criticisms of the AMEX or the SEC rather than of
her and her company. A.S.L.

Domestic Partnership & Marriage Notes

New state laws explicitly banning recognition of same-sex marriage
were enacted in Iowa and Kentucky in April.  _Washington Blade_,
April 10; _Cedar Rapids Gazette_, April 17.  In both cases, the
measures passed both houses of the state legislatures by
overwhelming votes.  However, a similar measure in the Maryland
legislature was killed in committee on April 10.

The U.S. Court of Appeals for the 9th Circuit has reversed the
District Court's opinion in _Bennett v. Yoshina_, 1998 WL 136411
(9th Cir., March 27), so the State of Hawaii is _not_ required to
re-run its referendum on whether to have a constitutional
convention at this fall's general election.  The issue is
potentially important on the marriage question, because proponents
of holding such a convention were hoping to use it to amend the
state constitution to overrule _Baehr v. Lewin_, the 1993 case in
which the state supreme court found an equal protection violation
in the state's exclusion of same-sex couples from civil marriage. 
When the referendum on the convention issue was held in 1996, yes
votes outnumbered no votes, but many voters did not mark their
ballots on this question; the state supreme court ruled that an
absolute majority of voters was required to hold the convention. 
The federal district court, in a separate lawsuit, found that this
violated federal due process by changing the rules for the
referendum after the vote was taken, and ordered that a new vote be
held this year.  Convention proponents reacted to the 9th Circuit's
ruling by calling for the legislature to put the convention issue
on the ballot again, which seemed likely to judge by late April
legislative action.  _Honolulu Advertiser_, March 28; _Honolulu
Star-Bulletin_, April 29.

The Oregon Public Employees' Benefit Board voted April 21 to make
domestic partners of state employees eligible for health benefits
on the same basis as spouses, regardless of sex, starting June 1,
1998.  _Eugene Register-Guard_, April 23.  This may prompt
withdrawal of an on-going lawsuit seeking such benefits, _Tanner v.
Oregon Health Sciences University_, 1996 WL 585547 (Or.Cir.Ct.
Multnomah Co. 1996), which is now on appeal in the state court
system.

The _Portland Oregonian_ reported April 7 that municipal employees
of Vancouver, Washington, would be covered by a domestic
partnership benefits plan for health and life insurance, sick
leave, bereavement leave and other leaves that are offered to
spouses, effective May 1.  The plan will be open to both same-sex
and opposite-sex domestic partners.  No city council vote was
required, according to the _Oregonian_, because decision-making
about employee benefits for city employees is delegated to the city
manager, but the council did have a workshop in which the issue was
discussed.  According to the article, other jurisdictions in
Washington State with domestic partner benefits plans are Seattle,
Olympia, Tumwater, and King County.

Backing down from a confrontation with the state government over
their prior decision to extend domestic partnership benefits to
same-sex partners of city employees, the Oakland, California, City
Council voted 8-1 to include opposite-sex domestic partners in the
program.  Two heterosexual employees had filed complaints with the
State Labor Commissioner, who ruled in November that the same-sex
only policy was unlawfully discriminatory.  Los Angeles gay rights
attorney Tom Coleman represented the complainants; Coleman, an
ardent advocate of domestic partnership plans, insists that such
plans should not discriminate on the basis of sex or sexual
orientation against heterosexual domestic partners.  _Oakland
Tribune_, April 23. 

For the first time, a private company that adopted a domestic
partnership benefits plan has decided to terminate its plan.  Ross
Perot announced April 9 that he was ending a program that was
adopted by prior managers during a time when he was distracted by
his political campaigns.  Perot claimed that the decision was not
anti-gay.  Perot Systems had extended benefits eligibility only to
same-sex partners.  Perot said he felt this was discriminatory, but
it would be too expensive to extend benefits to all unmarried
partners of employees, so he abolished the same-sex benefits to be
"fair."  A company spokesperson clarified that the change was
prospective only; employees whose same-sex partners were already
enlisted in the program would continue to receive the benefit. 
_Wall Street Journal_, April 10.

A Pacific Bell employee reported that Pacific Bell and Nevada Bell
have announced a domestic partnership benefits plan for management
employees that will be phased in over about 18 months, with health
benefits to take effect in January 1999.  The company has also
reached an agreement with the Communications Workers of America,
the union representing its non-exempt employees, for a three-year
collective bargaining agreement that will extend domestic
partnership benefits to all non-management employees.

The announcement April 13 that BankAmerica and NationsBank would
merge was accompanied by assurances from NationsBank Corp. CEO Hugh
McColl Jr. that domestic partnership health insurance, a benefit
already enjoyed by BankAmerica employees, would be extended to
NationsBank employees as well as part of the merged corporation. 
The _St. Petersburg (FL) Times_, reporting on the benefits
announcement April 17, cited this as an example of how the merger
would bring significant cultural change to Nationsbank, a North
Carolina based corporation with a conservative southern culture.

The Hartford Financial Services Group is marketing auto insurance
for same-sex couples with the same discount (25%) that it gives to
married couples off the rate that would be charged for two single
people, according to an April 10 report in the _Washington Blade_.

Sign of _The Times_?  On April 17, the _New York Times_ published
an article by its religion reporter, Gustav Neibuhr, about the
spreading phenomenon of clergy-persons who are willing to perform
same-sex union ceremonies despite the official disapproval of their
denominations.  A.S.L.

Legislative Notes

By a vote of 6-1, the Town Council in Bar Harbor, Maine, passed an
ordinance creating a civil action for discrimination on the basis
of sexual orientation on April 21.  Bar Harbor was the first Maine
locality to pass such protection since a Feb. 10 referendum
repealed a statewide gay rights law. The Bar Harbor ordinance takes
effect in 30 days. _Bangor Daily News_, April 22.  In South
Portland, Maine, the council voted 6-1 to place a question before
voters In November on adopting an ordinance that would ban sexual
orientation discrimination.  The only member who voted against the
resolution was Birger T. Johnson, who had introduced the proposed
gay rights law in the council and stated his opposition to making
it into a referendum issue.  Portlanders had voted overwhelming
against a ballot measure to repeal the state's gay rights law,
which unfortunately passed in February.  _Portland Press Herald_,
April 23.

The city council in West Hollywood, California, unanimously voted
on April 20 to direct the city attorney to draft an amendment to
the city's human rights ordinance to insure coverage of
discrimination on the basis of transgender status.  

Reacting to an incident where a gay couple was denied the couples
admission rate to a private beach campground, the Santa Cruz County
(California) Board of Supervisors passed an ordinance banning
sexual orientation discrimination in housing, employment, business
establishments and public accommodations on April 14.  The other
categories covered by the ordinance include age, race, color,
creed, religion, national origin, ancestry, disability, marital
status, pregnancy, and gender, and the ordinance is intended also
to ban discrimination against transgendered persons.  The ordinance
requires mediation prior to initiating a lawsuit.  The city of
Santa Cruz has had such an ordinance for several years, but it did
not cover this incident that arose outside the city limits.  The
Gay and Lesbian Legal Association of Santa Cruz County participated
in drafting the ordinance.

The recently-enacted civil rights ordinance in Fort Collins,
Colorado, faces a new challenge on May 5, when the city council
considers petitions signed by 1,783 registered voters opposed to
the measure.  The council must either repeal the measure, which
bans sexual orientation discrimination, or place it before the
voters in a referendum.  _Colorado Spring Gazette Telegraph_, April
15.

The Columbus, Ohio, Board of Education voted 4-3 to adopt a policy
banning harassment on the basis of sex, race, national origin,
religion, age, disability or sexual orientation.  The vote followed
a lengthy meeting consumed by passionate statements from members of
the public and heated debate among the board members.  Some
opponents argued that the measure would prevent anyone from
objecting to proselytizing gays.  _Columbus Dispatch_, April 8.

Voters in Live Oak, Texas, faced a daunting 27 separate
propositions for amendment of their city charter in a May 2
election.  Among them is Proposition 20, which would amend the
charter to say that persons shall neither be appointed or removed
from employment with the city because of age or sexual orientation. 
_San Antonio News-Express_, April 15. A.S.L.

Litigation Briefs

The U.S. Supreme Court announced March 23 that it would not review
the 11th Circuit's decision affirming a federal district court
ruling that the Florida law criminalizing prostitution does not
violate any federal constitutional rights.  _Roe v. Butterworth_,
129 F.3d 1221 (11th Cir. 1997), cert. denied, 118 S.Ct. 1309
(1998).  

New zoning regulations in New York City that would force many sex-
related businesses to close down or relocate are still on hold,
despite state and federal court decisions finding them
constitutionally valid, as a panel of the U.S. Court of Appeals for
the 2nd Circuit ponders the store-owners' argument that the city
intended to put most of them out of business and provide inadequate
alternative sites for their relocation.  The court heard argument
on April 29 in _Amsterdam Video Inc. v. City of New York_, No. 98-
7270, and _Hickerson v. City of New York_, No. 98-7269, and
immediately after argument ended, Circuit Judge Jose Cabranes
announced that the court would continue the stay against
enforcement.  Opponents of the zoning regulations took hope from
the interest two of the judges showed in a remark attributed to
Mayor Rudolf Giuliani that the law would result in the total number
of shops being drastically reduced, to perhaps no more than 20 or
30.  In order for such a zoning measure to be constitutional, ample
alternative sites have to be available, or else the measure might
be seen as an invalid content-based prohibition of protected
speech.  _New York Law Journal_, _New York Times_ April 30.

Napa Valley College in California has settled a discrimination suit
brought by Professor Raymond Becker, who claimed he was denied a
promotion and salary increases because he is heterosexual.  Becker
alleged that the college is run by a "homosexual cadre" and that he
began to suffer discrimination when he rejected sexual advances
from his department head.  Under the terms of the settlement,
reached three days before trial was to begin, Becker will receive
$40,000 and will retire effective June 2.  _Sacramento Bee_, April
8.

The Idaho State Board of Education has agreed to pay Peter Boag, an
Idaho State University history professor, the $38,734 he had
requested in a grant proposal to study lesbian and gay history in
the Pacific Northwest.  After the proposal was turned down last
year, the ACLU filed suit on behalf of Boag, challenging a content-
based decision in violation of the First Amendment.  This payment
settles the suit.  The state legislature was so angry about the
litigation that it has terminated the grant program under which
Boag applied.  Boag is represented by ACLU cooperating attorney
John C. Hummel.  _Spokesman-Review_, Spokane, Washington, April 18;
ACLU Press Release, April 17. 

The ACLU of New Mexico filed suit in U.S. District Court in
Albuquerque on April 22, challenging a new state law intended to
keep computer-generated, sexually explicit material out of the
hands of minors.  By making it illegal to disseminate any kind of
information that relates to nudity or sexual conduct, the ACLU
argued, the law would block the transmission of masterpieces of
artwork as well as discussions of lesbian and gay issues. 
_Albuquerque Journal_, April 29.  A.S.L.

Law & Society Notes

The Internal Revenue Service persists in heavy-handed treatment of
applications for sec. 501(c)(3) tax-exempt status from gay
organizations.  According to an April 14 press release from Lambda
Legal Defense & Education Fund (which sparked an article in the
_Providence Journal-Bulletin_ on April 15), the IRS responded to an
application from a Rhode Island group that was formed to provide
supportive services for lesbians with cancer by requiring them to
broaden their mission to "all women," not just lesbians.  Lambda
has written a protest letter on behalf of the group.  This recalls
a 1997 incident in which Lambda persuaded the IRS to back down from
its insistence that a North Carolina gay youth support group
include in its charter that it would not "promote" "homosexual
attitudes" in its work.  The IRS has no mandate from Congress to
impose these sorts of policy changes on applicants; its sole role
is to determine whether the corporate purposes of applicants fall
within the categories of charitable activity specified by the
statute.

In a decision that could have implications for custody and
visitation disputes between lesbian or gay parents, the Connecticut
Supreme Court unanimously ruled on April 7 that a woman did have
standing to seek custody of the 14-year-old girl she had raised
from birth, even though she was neither biologically nor legally
related to the girl.  _Doe v. Doe_, 1998 WL 155696.  Because Mrs.
Doe was incapable of conceiving, her husband contracted with a
surrogate to bear a child.  The surrogate surrendered the child at
birth, but Mrs. Doe never bothered to secure a legal adoption of
the child.  The Does are now divorcing, and both seek custody.  The
trial court held that it did not have jurisdiction to entertain
Mrs. Doe's custody claim.  Four members of the Connecticut Supreme
Court, in an opinion by Justice Borden, held that Mrs. Doe's claim
could proceed as a third party claim with an established
relationship to the child.  Three members of the court, in an
opinion by Justice Katz, argued in partial dissent that Mrs. Doe
should be allowed to proceed on equal footing with Mr. Doe as a
"parent" under a "common sense" interpretation of state laws.  Katz
observed that treating Mrs. Doe as a third party overlooks her
status as Mr. Doe's wife, her participation in planning for the
birth of the child, and her having raised the child from birth as
a mother, and places her at an unfair disadvantage under state law
in competing with the father for custody.  In terms of its
potential significance for gay couples, it is worth noting that the
Connecticut courts have not yet definitively ruled in favor of
"second parent adoptions" or joint adoptions by gay couples, but
cases presenting these questions are in the pipeline.  

Be careful who you ask. . .  Andrew Adamson was arrested and
handcuffed in his home in Fairfax, Virginia, for soliciting sodomy
when a male maintenance worker who had arrived to give an estimate
on deck repairs was offended by Adamson's alleged solicitation for
oral sex and went to the police.  The ACLU offered to represent
Adamson if he would use his arrest to challenge the
constitutionality of the Virginia sodomy law, but Adamson declined,
not wanting the publicity that would go with being a test case
plaintiff.  Instead, he entered into a plea bargain with the local
prosecutor, under which sentencing would be postponed and the
charges dismissed if he completed forty hours of community service. 
On April 16, Fairfax General District Court Judge Lorraine Norland
dismissed the charges, stating from the bench that she had received
a "glowing" report on Adamson's community service efforts.
_Washington Blade_, April 24.

The Associated Press reported April 25 that Rhode Island Superior
Court Judge Frank Williams has declared the state's law against
anal or oral sex between consenting adults to be unconstitutional. 
Although the Rhode Island Supreme Court has upheld the law several
times, Williams declared that it was unconstitutional for the state
to penalize conduct between unmarried adults while allowing the
conduct to occur between married adults.  The case involved charges
against two men accused of raping a woman in a Block Island bar. 
One of the men, Edward McGovern, was accused of putting his mouth
on the woman's genitals, and sought to defend on grounds of
consent.  A spokesman for the Attorney General said the decision
would not be appealed, and sodomy law reform bills are pending in
both houses of the legislature.  Rhode Island passed a law banning
sexual orientation discrimination in 1995.  

The New York Medicaid program has formalized an informal practice
of denying coverage for sex-reassignment operations.  The program
had covered four such operations between 1991 and 1994, and had
been paying for them since 1976.  Speaking for the state Health
Department, Kristine Smith stated the Department's view that
Medicaid should cover only "medically necessary procedures," and
that "Gender reassignment does not qualify."  The Department
proceeded to finalize the policy despite letters from prominent
psychologists contesting the assertion that such procedures are not
necessary for persons who have gender dysphoria.  _Albany Times
Union_, March 31.

The convicted killer of a gay man has admitted, after being
sentenced to death, that the victim's sexual orientation was a
factor in the murder.  Aaron Christopher Foust told reporters that
he would not have killed hospital administrator David Ward if Ward
had a wife and children.  Ward owed Foust $500 for a drug purchase. 
When Ward resisted paying, Foust enlisted an accomplice and went to
Ward's apartment, where he murdered Ward.  In a statement to
police, Foust claimed that Ward's death was an accident, but
Tarrant County, Texas, jurors were not fooled, convicting him and
sentencing him to death on April 17.  Prosecutors had not argued
that Ward's sexual orientation was a motive for the murder.  Then,
in a jailhouse interview with reporters the following week, Foust
said: "He was a queer, and that, by the way, was one strike against
him with me from the start. . . The truth is that if Ward would've
had a wife and kids, something like that, I would have let him
live.  But with him being queer, I thought, what the hell." 
_Dallas Morning News_, April 26.

History of a certain sort was made when Harvard and Yale
Universities, which house their undergraduates in residential
colleges proctored by live-in faculty members and their families,
announced that a same-sex couple would serve that function
beginning next year at both universities.  At Harvard, Prof. Diane
Eck and her partner, Dorothy Austin, a professor at Drew
University, will do the honors at Lowell House.  At Yale, graduate
student Peter Novak and his partner, Curtis Lee, a store manager,
will preside at Trumbull College.  On-campus response at both
schools was reportedly positive.  _The Record_, Northern New
Jersey, April 24.

California Assembly Member Pete Knight, an arch-foe of same-sex
marriage, will attempt to place his "California Defense of Marriage
Act" on the statewide ballot as an initiative.  Knight's attempts
to get his bill enacted through the legislature have been notably
unsuccessful.  _Associated Press_, April 24.

No controversial books need be donated to the public schools in
Hemet, California, said the school board on April 21, after a local
gay rights group offered to donate books for the school library. 
The board decided to accept the books from the gay group, but
restrict their circulation to students who have permission from
their parents, and adopted prospectively the policy of rejecting
any book donations that would create "undue controversy."  The gay
group withdraw its offer under the circumstances.  The local press
sought comment from the ACLU, where Lesbian and Gay Rights Project
staff attorney Taylor Flynn suggested the policy might be
unconstitutional.  _Riverside Press-Enterprise_, April 22.

Here's a first: Massachusetts Superior Court Judge Carol Ball has
issued an injunction in _Commonwealth v. Peters_, barring William
D. Peters and his friend Frank Labbe from using the internet to
interfere or try to interfere with the rights of any person based
on sexual orientation or perceived sexual orientation.  Peters and
Labbe are accused of having used the internet to identify gay men
whom they would subsequently meet and victimize.  In the particular
case leading to this injunction, they are charged with having lured
a man to an athletic field in Webster, Mass., through on-line chat,
and then beating him severely.  _Worcester Telegram & Gazette_,
April 3.

U.S. District Judge Leonie Brinkema issued an order April 7 against
a public library in Loudoun County, Virginia, holding that
installing a "web filter" that would preclude access to sexually-
related sites on the internet (including lesbian and gay materials)
would violate the First Amendment rights of public library patrons. 
Brinkema found that public libraries, like other public forums, are
"places of freewheeling and independent inquiry" such that access
restrictions require the government to show a compelling interest. 
_Washington Blade_, April 17.

Gay activists in Los Angeles are urging the city to terminate its
co-sponsorship of a Boy Scouts Explorer program, in light of a
recent decision by the California Supreme Court exempting the
Scouts from compliance with the Unruh Civil Rights Act (which bans
sexual orientation discrimination by "business establishments"). 
_Los Angeles Daily News_, April 10.  Gay rights attorney Tom
Coleman began contacting city council members on April 9 to urge
them to end the city's charter partnership with the BSA, on the
ground that a city ordinance requires all contractors with the city
to have a non-discrimination policy covering sexual orientation. 
* * *  In San Francisco, the chair of the Board of Supervisors'
Finance Committee, Mabel Teng, announced that her committee would
drop the Boy Scouts from the city's annual charity drive due to the
organization's exclusionary policies.  _San Francisco Chronicle_,
April 29. A.S.L.

Professional Notes

Elaine Kaplan, an openly lesbian attorney who has been working for
the National Treasury Employee's Union as deputy general counsel,
was confirmed by the U.S. Senate on April 2 to head the Office of
Special Counsel, an independent federal agency that investigates
discrimination complaints by federal employees.  Kaplan is a member
of Gay & Lesbian Attorneys of Washington (GAYLAW).  She is a
graduate of State University of New York at Binghamton, and
Georgetown University Law Center. _Washington Blade_, April 10.

Openly-gay attorney Mark A. Johnson has been elected President of
the Oregon State Bar for a term starting in September 1998. 
Johnson, a 1987 graduate of Boalt Hall Law School in Berkeley,
California, is a former co-chair of the National Lesbian and Gay
Law Association, and is a partner in Findling & Johnson LLP in
Portland, where he practices family law and appellate litigation. 
As far as we know, he is the first openly-gay lawyer to be elected
to the top position in a state bar association.

The State Bar of Texas has created a new section on Sexual
Orientation and Gender Identification Issues, to look at legal
issues regarding gay, lesbian, bisexual, transgender and HIV-
related matters.  An attempt to create such a section was rejected
by the organization's governing board in 1996 by one vote; at that
time the proposal, limited solely to sexual orientation, was
opposed by transgender activists.  Proponents, led by Mitchell
Katine of Houston, were unwilling to give up and formed an alliance
with the transgender activists to propose a more inclusive section. 
Katine is likely to chair the new section.

Robert Eimers, the plaintiff in _In re Florida Board of Bar
Examiners_, 358 So.2d 7 (Fla.Sup.Ct. 1978), the historic case in
which the Florida Supreme Court ruled that openly gay attorneys
could be admitted to practice law, died late in March.

Bay Area Lawyers for Individual Freedom, San Francisco, announced
on April 7 that its co-chairs for 1998-99 will be San Francisco
attorneys Lawrence R. Katzin of Bronson, Bronson & McKinnon, and
Clarie Liu of Thelen, Marrin, Johnson & Bridges.  A.S.L.

International Notes

Aeyal Gross of the Tel-Aviv University Faculty of Law reports that
on March 10 the Israeli Knesset (Parliament) adopted a "Law for the
Prevention of Sexual Harassment" that applies to both same-sex and
opposite-sex harassment.  The law defines sexual harassment to
include "despising or humiliating attitude, which is shown towards
a person regarding his sex, or sexuality, including his sexual
orientation."  Israeli law already outlaws discrimination on the
basis of sexual orientation, and the courts have proven receptive
in recent years to a variety of domestic partnership claims.

The BBC World Service reported that the Namibian High Court has
granted permanent residency status to a German woman who has lived
in the country for eight years on the basis of her long-term
lesbian relationship with a Namibian citizen, overturning two
decision by the Ministry of Home Affairs.

The Associated Press reported on April 27 that Elisabeth Guigou,
France's Minister of Justice, had announced that the government
will proceed with plans to extend legal recognition to same-sex
domestic partnerships, but that the government would not support an
effort to make same-sex marriages legal.

The Chinese government issued a "code of practice" to supplement
existing laws banning employment discrimination on the basis of
sex, disability or family status.  The code advises against
discrimination on the basis of race or sexual orientation, but does
not create an enforceable right.  In addition, based on a survey of
employers, the code suggests that where employees lived or worked
in an employer's home, such discrimination would be acceptable,
saying that the government "considers that a balance must be struck
between that right and the right of individuals to determine who
may enter or live in their homes."  _South China Morning Post_,
April 27.

Heading into general elections, the lower house of the Dutch
parliament voted April 16 to demand that the government propose
legislation in favor of same-sex marriage and adoption by same-sex
couples.  The resolution was in line with government policy on
adoption, but contrary to a February 6 announcement by the
government that it would not propose a same-sex marriage law.  The
vote was 81-56 in favor of the marriage resolution, and 95-42 in
favor of the adoption resolution, according to an internet posting
by Kees Waaldijk of the Universities of Leiden and Utrecht.

The Tokyo District Court ruled on March 30 that a publisher must
stop selling a book that depicts a gay affair between the author,
Jiro Fukushima, and the late novelist Yukio Mishima, because the
book quotes from unpublished letters written by Mishima to the
author.  According to the attorney for the Mishima family, who sued
both Fukushima and the publisher, Bungei Shunju Ltd., this was the
first Japanese court decision to recognize that an unpublished
letter should be treated as copyrighted material that cannot be
published without permission.  A spokesman for the publisher said
they would not appeal the ruling, "But it breaks my heart to think
that a key to understanding Mishima's work is to be hidden from the
public."  _Daily Yomiuri_, March 31.

The _Sunday Times_ in London reported April 5 that the British Army
was planning to end its ban on service by lesbians and gay men,
although it will keep in place a prohibition on homosexual conduct. 
The Royal Navy and Royal Air Force were expected to hold back from
a change for now, but the Army was reported to be particularly
worried that a flurry of pending lawsuits might impose substantial
financial liability on the service.  News reports were ambiguous
about whether the ban on homosexual conduct would apply when
servicemembers had sex with civilians while off-duty and off-base. 
Anonymous "senior officers" were quoted by the _Sunday Times_ as
saying that the policy change "is the only sensible way forward
after the apparent failure of `don't ask don't tell' policies in
other countries that have attempted to turn a blind eye to
homosexuality among their troops."  As soon as the _Sunday Times_
reported appeared, other newspapers contended that the policy
change wasn't really in the offing, but that the Blair Government
had floated the story as a trial balloon to gauge public response.
A.S.L.

AIDS & RELATED LEGAL NOTES

8th Circuit Finds Prison Officials Immune in HIV-Transmission Suit

In _Greer v. Shoop_, 1998 WL 148844 (April 2), the U.S. Court of
Appeals for the 8th Circuit held that three Iowa corrections
officers were entitled to summary judgment under a theory of
qualified immunity, despite their failure to inform a parolee's
lover that he was HIV+ before placing him in her home.  

Affirming the district court, Chief District Judge Webb (D.N.D.,
sitting by designation) discussed the two requirements that must be
met to overcome a defendant's claim of qualified immunity at the
summary judgment level: the plaintiff must allege a specific
violation of a constitutional right, and that right must have been
clearly established at the time of the alleged violation.  Greer's
estate argued that the officers violated Mora Greer's due process
rights by failing to warn her of the fact that the parolee, Perry
Stevens, was HIV+ when he was placed into her home.  The officers,
according to Greer, knew or reasonably should have known, that
Stevens was infected, and knew, or should have known, that upon his
release from incarceration, Stevens was highly likely to engage in
sexual relations with Greer.  Both Stevens and Greer have died from
AIDS. 

The court accepted the plaintiff's contention under the
"state-created danger" theory, which it found to be the
<!69>emerging rule of law in this circuit in 1991," the time of the
alleged violation.  According to this theory, there may be a
constitutional duty to protect an individual against private
violence "if the state has taken affirmative action which increases
the individual's private danger of, or vulnerability to, such
violence beyond the level it would have been at absent state
action."  See _Freeman v. Ferguson_, 911 F.2d 52, 55 (8th Cir.
1990).  However, the court noted that "the privacy issues that
surround a person's medical condition, specifically when that
person is HIV-positive or has AIDS, complicate the application of
the state-created danger theory."  As a result, the court found
that the second prong of the test could not be met; that is, the
duty to inform was not so clearly established in 1991 that a
"reasonable official" would have known that failing to inform Greer
of Stevens' condition would violate her due process rights.  The
court also rejected Greer's argument that state indemnification
statutes eliminated any reason to provide the officers with
qualified immunity, by noting that these provisions had broader
policy goals than merely protecting state employees from having to
pay damages.

Circuit Judge Beam wrote a special concurrence, insisting that the
court was incorrect to assume that the first requirement had been
met, because the duty of the state to protect citizens from private
harm was still a matter of dispute as late as 1990: "It is not
clear, under _DeShaney_ [_v. Winnebago County Dep't of Soc. Serv._,
489 U.S. 189 (1989)], how large a role the state must play in the
creation of danger and in the creation of vulnerability before it
assumes a corresponding duty to protect."  Beam noted that,
according to _Siegert v. Gilley_, 500 U.S. 226 (1991), the court is
required to decide whether a "violation of a clearly established
constitutional right" has been alleged at all.  Beam concluded by
expressing skepticism as to whether the facts alleged by the
plaintiff "would suffice to make out a violation of Mora Greer's
constitutional rights."  As a result, Beam joined the decision to
affirm the district court's grant of summary judgment.  

For the purposes of evaluating the summary judgment claim, the
majority assumed the facts most favorable to the plaintiff.  Yet,
the majority opinion made note of the tension between Greer's due
process rights and Stevens' right of privacy, a tension which
informed Judge Beam's first prong analysis.  In footnote 3 of his
decision, Judge Webb acknowledged that, even though other cases
have defined the application of the state-created danger theory,
"our research has turned up no decisions addressing the
state-created danger theory in a situation such as this." _Sharon
McGowan_

Texas Supreme Court Holds Hospital Had No Duty to Warn Spouse That
Her Husband Might Have HIV

Reversing a decision by the court of appeals, the Texas Supreme
Court ruled March 13 in _Santa Rosa Health Care Corp. v. Garcia_,
41 Tex. Sup. Ct. J. 535, 1998 WL 107928, that the defendant had not
duty to warn Garcia that her husband may have been exposed to HIV. 


Adalberto Balderas, a hemophiliac, had been in touch with the
defendant in the late 1970s in order to obtain Factor VIII
medication to control internal bleeding, but did not have direct
contact with Santa Rose after 1980.  By 1986, Santa Rosa had begun
to contact former patients to warn them that they should obtain HIV
testing if they used Factor VIII.  Seven such notices were sent to
Balderas, but he did not obtain testing and a diagnosis until 1989. 
In the meantime, Balderas married Linda Garcia in 1988.  They were
divorced in 1990.  Garcia has never tested HIV+.  Balderas died
from AIDS in 1993.

Garcia claimed severe emotional distress from fear of developing
AIDS, and that Santa Rosa had a duty to notify her that she was at
risk due to her then-husband's HIV status.  The court of appeals
agreed, reversing a trial court dismissal.  In reversing once
again, for a unanimous court, Justice Spector analyzed the HIV
confidentiality statutes in Texas and concluded that not only did
Santa Rosa lack any duty, it might have subjected itself to
liability for notifying Garcia prior to Balderas's 1989 HIV test,
since the confidentiality law authorizes disclosure by a health
care provider to a patient's spouse only after the patient has
actually tested positive.  A.S.L.

Missouri Court of Appeals Affirms $635,000 Award in AIDS
Discrimination Suit Against State University

Despite a recent study by the _National Law Journal_ revealing that
awards in employment discrimination suits are routinely being
reversed or reduced drastically by appellate courts, the Missouri
Court of Appeals, Eastern District, has unanimously affirmed a
$635,000 plaintiff verdict in an AIDS discrimination suit against
Southeast Missouri State University.  _H.S. v. Board of Regents_,
1998 WL 169366 (Apr. 14).

Plaintiff H.S. learned he had AIDS in 1994 after being admitted to
a hospital with pneumonia.  He suffered from various other
AIDS-related health problems that year including extreme weight
loss, diarrhea, and neuropathy of the feet.  At the time, H.S. was
employed as the Director of Southeast's Student Equal Opportunity
Programs, a position funded largely by several outside grants. 
Rumors of H.S.'s medical condition spread throughout the university
campus.  He confided to his supervisor, Dr. Strom, that his immune
system was "out of whack."

H.S. was fired by Southeast's interim president, Dr. Bill Atchley,
when an audit of one of the grant-funded programs uncovered many
improprieties and other budgetary problems.  The trial court
concluded that H.S. had been singled out to be terminated although
he was not responsible for the misfeasance uncovered by the audit,
or for control of grant funds or even budget management in general. 
Dr. Atchley testified at trial that when he fired H.S. he did not
know H.S. had AIDS.   Dr. Strom testified that she had not
disclosed H.S.'s revelation to Dr. Atchley prior to his decision to
terminate H.S.  

H.S. sued the University, alleging that he had been subjected to
disability discrimination in violation of Missouri Human Rights
Act.  After a bench trial, Judge Fred Copelan ruled in H.S.'s favor
and awarded the plaintiff $500,000 for back pay, front pay,
emotional and physical damage and medical expenses.  The court also
awarded H.S. $100,000 in punitive damages and $35,000 in attorneys'
fees.

On appeal, Southeast's principal argument was that H.S. failed to
meet his prima facie burden at trial because he did not establish
that his disability was a factor which motivated his being
terminated.  More specifically, the school posited that since Dr.
Atchley denied knowing H.S. had AIDS, AIDS could not have played a
part in H.S.'s termination.  The Appellate Court rejected this
argument, and instead deferred to Judge Copeland's assessment of
the trial witnesses and all of the evidence in the record.  Writing
for the unanimous panel, Judge Teitleman highlighted that there was
indeed substantial evidence in the record to prove discrimination
despite Dr. Atchley's denials: H.S.'s overt medical symptoms which
clearly manifested an underlying disability; the "talk" around
campus that H.S. had AIDS; Dr. Atchley's choice to terminate only
H.S., and not the individuals more directly responsible for the
budget, all against the advice of Dr. Strom.  Judge Teitlebaum
explained that these facts taken together supported the trial
court's finding that Dr. Atchley knew H.S. had AIDS.  The court
affirmed the award of punitive damages, which may be granted under
Missouri law when management participates in the alleged
discriminatory conduct.

The _National Law Journal_ noted in its report that plaintiff
verdicts are more likely to be reversed or reduced in federal
courts than in state courts.  Whether the forum of the H.S. case
(state court), or the fact that the claims were based on state law,
had any bearing on the appellate court's decision to affirm, the
ruling is a victory and an encouraging sign for other plaintiffs in
Missouri seeking to combat on-the-job AIDS-related discrimination. 
_Ian Chesir-Teran_

Illinois Federal Court Finds Insurance AIDS Caps Violate the ADA

The U.S. District Court for the Northern District of Illinois on
April 3rd ruled that AIDS-caps in two health insurance policies
were discriminatory in violation of the Americans with Disabilities
Act (ADA).  In _Doe and Smith v. Mutual of Omaha Insurance
Company_, 1998 WL 166856, two HIV+ men held health insurance
policies with maximum lifetime benefits recoverable limited to 
$1,000,000 and a reinstatement of the $1,000,000 benefit limit
after the passage of two consecutive years in which the insured
incurs no expenses. Doe's policy, however, limits benefits
recoverable by PWAs or people with ARC to a lifetime maximum of
$100,000.  Smith's policy limits benefits recoverable by PWAs or
people with ARC to $25,000.

The plaintiffs, represented by the AIDS Legal Council of Chicago, 
successfully argued that Mutual's policy caps on AIDS and ARC
benefits violate the ADA's prohibition on discrimination on the
basis of a disability because they deny plaintiffs access to the
$1,000,000 limit and potential reinstatement of benefits provided
to insureds with other medical conditions.  Mutual argued that the
plaintiffs' ADA claim must fail because they enjoyed access to the
same health insurance policies available to any other (disabled or
non-disabled) person.  Judge Conlon rejected this interpretation,
holding that "to give full effect to Title III's plain language, it
must be deemed applicable to the content of insurance policies." 
In reaching this decision, the judge cited a Department of Justice
amicus curiae brief and five other district court opinions that had
also found the ADA's scope encompassed review of the substance of
insurance policies.

Judge Conlon also rejected Mutual's argument that AIDS/ARC caps do
not constitute discrimination "on the basis of a disability"
because they are a permissible distinction in the level of benefits
provided to one category of disability as differentiated from other
categories.  Mutual cited three rulings which Judge Conlon
characterized as inapposite.  "Unlike the claims in . . . those
cases, the ADA claim in this case focus[es] on Mutual's singling
out of individuals with a particular disability, AIDS, for inferior
coverage as compared to . . . non- disabled individuals.  Indeed,
the _Parker_ court specifically distinguished differentiation
between broad categories of individuals with different disabilities
from the discrimination prohibited by the ADA - discrimination
between the disabled and the non-disabled."

Thanks to the AIDS Legal Council of  Chicago for sending _Law
Notes_ a pre-publication copy of this opinion.  _Mark Major_

California Appeals Court Upholds Imposition of HIV Test

California Superior Court Judge L. Jeffrey Wiatt (L.A. County)
properly ordered an HIV test upon the conviction of David T. Caird
of child molestation, according to an April 23 ruling by the
California Court of Appeal, 2nd District, in _People v. Caird_,
1998 WL 196232.  

Caird was tried in 1996 on charges that while living in his
brother's house in 1986 and 1987, he had sexually molested his
brother's two young daughters, then age 8 and 6.  The 6-year-old,
who was 15 when she testified, claimed that Caird had her pull down
her pants and underpants and lay on top of her, trying to penetrate
her, but stopped when she struggled.  Upon Caird's conviction, the
court invoked Penal Code Sec. 1202.1, which requires the court to
order HIV testing of "every person who is convicted of . . . a
sexual offense listed in subdivision (e). . . if the court finds
that there is probable cause to believe that blood, semen, or any
other bodily fluid capable of transmitting HIV has been transferred
from the defendant to the victim."

Caird argued, unsuccessfully, that there was no evidence that he
had an erection or had transferred any bodily fluids to his niece
in this incident.  The court of appeal, per Presiding Justice
Klein, rejected his argument, saying that all the statute required
was "probable cause" to believe that a bodily fluid was
transferred, and that the "evidentiary standard was met here." 
There was no discussion of the absurdity of ordering an HIV test of
the defendant nine years after the event.  A.S.L.

California Appeals Court Rejects Estoppel Defense in Discrimination
Case

In an important case for the employment rights of HIV+ people, the
California Court of Appeal reversed the summary judgment for an
employer on the theory that the employee's disability claim
allegations estopped him from making arguably contradictory claims
in a subsequent discrimination suit.  _Bell v. Wells Fargo Bank,
N.A._, 73 Cal.Rptr.2d 354 (Cal. App., Apr. 9).  

Wells Fargo employed Andrew Bell as a bank examiner.  When he
learned he had HIV, he requested and received accommodation of his
disability, including a shorter work week and telecommuting.  After
promoting Bell twice, Wells Fargo withdrew the accommodations and
informed Bell he would no longer be allowed to telecommute.  Bell
subsequently applied for and received disability benefits, and sued
Wells Fargo for disability discrimination under the California Fair
Employment & Housing Code.

At summary judgment, Wells Fargo claimed that judicial estoppel
barred Bell from pursuing his discrimination claim because he had
admitted, as part of his disability claim, that he could not
perform the essential functions of his job.  The Court of Appeal
disagreed, finding that Bell had not taken positions so clearly
inconsistent that one necessarily excluded the other.  Taking its
cue from a similar case, _Prilliman v. United Air Lines, Inc._, 53
Cal. App. 4th 935, 62 Cal. Rptr. 2d 142 (1997), the court reasoned
that Bell's statement that he was unable to perform the job
functions could have referred to the job as he knew it when his
disability was not being reasonably accommodated.  In addition,
Bell produced a disability application where he stated that he
anticipated returning to his job, but that the date of the return
was "uncertain" and that he had requested reasonable
accommodations.  Summary judgment for the employer was reversed. 
_Dirk Williams_

Ohio Appeals Court Revives Suit Against Hospital on HIV-
Discrimination Claim

On March 19, the Ohio Court of Appeals, 4th District, revived a
suit charging U.S. Health Corporation of Southern Ohio and Dr.
Richard Rooney with discriminating against William B. Fiske, an
HIV+ man, by denial of emergency room service.  _Fiske v. Rooney_,
1998 WL 159928.  This case apparently involves a trial judge who is
hostile to Fiske's claim, since this was the case's second trip to
the appeals court.

Fiske showed up in the ER at defendant's hospital in Portsmouth
complaining of abdominal pain.  Fiske had told the staff upon
arrival that he was HIV+.  An ER physician, Dr. Dale, diagnosed
possible appendicitis, and suggested consulting a surgeon on call,
Dr. Rooney.  Dale left the room briefly, then returned to say that
Rooney would not examine or evaluate Fiske due to his HIV status,
and that Fiske should seek treatment elsewhere.  Fiske then went to
a hospital in Columbus, where he was admitted for several days of
observation but ultimately discharged without surgery.  He sued
Rooney and the hospital for malpractice, discrimination, and
infliction of emotional distress, seeking total damages of
$450,000.  The trial court granted summary judgment to defendants
based on an affidavit from the doctor who heads the company that
operates the emergency room under a subcontract with the hospital,
in which the doctor affirmed that there was no discrimination
against HIV+ people in the emergency room and Fiske received proper
treatment.  The court of appeals reversed that decision in 1995,
663 N.E.2d 1014, finding that the doctor was not qualified to give
an expert opinion on this matter, and remanded for a new trial.

The judge set a tight discovery schedule, and defendants renewed
their efforts to get summary judgment, refiling the same affidavit
that had been tossed out by the court of appeals as well as some
other affidavits and depositions.  The trial court refused a
request by Fiske's attorney for an extension of time to depose two
critical witnesses, whose prior-scheduled depositions had been
postponed due to unavailability of Dr. Rooney's attorney, because
of strenuous objections by the hospital's attorney, assertedly
premised on the length of the litigation.   Then the trial judge
against granted summary judgment to defendants.

The court of appeals found that the trial court abused its
discretion by refusing to extend time for discovery, and since
there were controverted factual issues that related to this
discovery, the summary judgments should be reversed.  The court
also found merit to several other allegations of error by the trial
court, and overturned a variety of other rulings, noting
(astonishingly) that the trial court had totally forgotten to rule
on the emotional distress claim in granting summary judgment, which
the appeals court described as "clear error," as it had previously
ruled that Fiske had stated a prima facie claim for emotional
distress damages.  Surprisingly, however, the court remanded the
case to the same trial judge.

Fiske is represented by Elliot T. Fishman of the Columbus firm of
Fishman & Fey Co., L.P.A.  A.S.L.

Louisiana Appeals Court Affirms Dismissal of Claim Based on
Parent's Fear That Child Will Contract AIDS

In _Walker v. Allen Parish Health Unit_, 1998 WL 146206 (April 1),
the Louisiana Court of Appeal affirmed the dismissal of an
emotional distress claim brought by Lori and Marlan Walker,
premised on the negligence of the defendant that led to their
infant son suffering a needle prick in the hospital's waiting room.

Young Terrance, then 28 months old, placed his hand in a "sharps"
container full of needles that had been used to administer
inoculations in the defendant's clinic and suffered a needlestick
injury.  Lori informed the nurse on duty, who cleaned the wound and
advised getting that Terrance be tested for hepatitis and HIV.  A
baseline test done that day was negative, as have been all
successive tests.  Nonetheless, Lori and Marlan claim to have
suffered severe emotional distress at the thought that their son
might have contracted HIV, and sued on his behalf as well as their
own.  The trial court dismissed, except as to Terrance's claims.

In an opinion for the court of appeal, Judge Gremillion opined that
the hospital did owe a duty of care to Lori and Marlan with respect
to dangers in the waiting room that might affect their son, but
found that they had not suffered sufficient emotional distress to
be compensable in a negligence action.  

"A health care provider is bound to exercise the requisite amount
of care toward a patient that the particular patient's condition
may require," wrote Gremillion. "Here, the Health Unit performed a
baseline blood test on Terrance immediately after the needle stick. 
They further told Lori that she should have Terrance tested in six
months and then periodically for AIDS and hepatitis.  That is all
the Health Unit did.  It did not administer the later tests, it did
not try to locate the needle which stuck Terrance to determine if
it was contaminated with any blood borne disease, nor did it try to
determine if any of the persons vaccinated that morning were
infected.  The emotional distress suffered by the Walkers was a
direct result of the Health Unit's failure to determine and provide
them with such information. Thus, we find that the Health Unit did
owe a duty to the Walkers, which it breached by failing to take any
further steps to relieve them of their fears."

But the court concluded that the harm suffered by the Walkers was
"not genuine and serious."  While there was evidence that they were
made "nervous and upset about the incident," only Lori seemed to
suffer a minor stomach problem attributable to nervousness which
was easily remedied with Zantac.  Also, the hospital submitted an
expert's affidavit showing that the risk that their son was
infected was negligible, and in light of the subsequent negative
HIV tests, any further fear was unreasonable.  Judge Saunders
dissented without writing an opinion.  A.S.L.

Federal Court Assesses Rule 11 Sanctions Against Plaintiff's
Attorney in HIV Discrimination Suit

U.S. District Judge Constance Baker Motley assessed sanctions of
$25,000 against attorney Lee Nuwestra for Nuwestra's handling of
the case for plaintiff in _Forbes v. Merrill Lynch, Fenner & Smith,
Inc._, 1998 WL 164920 (S.D.N.Y., April 6) (to be reported in
F.R.D.).  

Ernesto Forbes alleged in the complaint that he suffered HIV
discrimination from his employer, but there were serious
discrepancies between the allegations in the complaint, Forbes'
deposition testimony, and his testimony at trial, on such critical
issues of when he learned he was HIV+, when he disclosed this to
his employer, or even whether he ever told the employer about his
HIV status or related medical conditions.  Judge Motley found that
Nuwestra, who received the case on a referral from the legal
department at New York's Gay Men's Health Crisis, had inadequately
invested the case before drafting his complaint, and appeared to
have inadequately prepared for his court appearances, to judge by
some of his statements in court.  In particular, Motley noted that
Nuwestra appeared not to understand the difference between being
HIV+ and having AIDS. "It is clearly problematic," she wrote, "for
a lawyer bringing ADA cases to stand in a courtroom in 1997 and
suggest that HIV and AIDS are in fact the same thing."  

Ultimately, Judge Motley concluded that Nuwestra's performance was
sufficiently deficient to justify Rule 11 sanctions by requiring
him to pay defendants' attorneys fees.  However, she concluded that
his conduct was not sufficiently deficient to justify a finding of
bad faith, so she did not impose more punitive sanctions that might
have been available pursuant to 28 U.S.C. sec. 1927 and the court's
inherent disciplinary powers.  A.S.L.

Florida Federal Court Rules Against HIV+ Employee on ADA
Discrimination Claim

The U.S. District Court for the Middle District of Florida found
that an HIV+ former employee's claim for discrimination under the
ADA was time-barred and granted the employer/defendant's motion for
summary judgment. _Zillyette vs. Capital One Financial Corporation
and Capital One Services, Inc_, 1998 WL 181959 (Feb. 13).  Although
not necessary for disposition of the case, the court also commented
on other substantive defenses raised by the employer.

Plaintiff Terry G. Zillyette, Jr., alleged that his former
employer, Capital One, violated Title I of the Americans With
Disabilities Act (ADA) by failing to make reasonable accommodations
for him and for firing him due to his known disability, HIV
infection.  In July 1995, Capital One, a credit card bank, hired
Zillyette as a customer service representative.  From then until
February 1996, Zillyette had nine occurrences of absenteeism
equating to twenty-five full days missed.  Most of the absences
were medically related.  In December 1995, after Zillyette took ill
at a company meeting and required medical assistance, he told his
supervisor that he was diabetic but provided no documentation. 
That month he asked whether he could change his work schedule from
4 ten-hour days to 5 eight-hour days.

In January 1996, Zillyette learned he was HIV+, but did not tell
his employer.  By February, Capital One's management team concluded
that Zillyette's excessive absenteeism warranted discharge. 
Capital One decided to terminate him on February 4, but postponed
it two days due to a senior manager's absence.  On February 5,
Zillyette handed a senior manager a physician's note stating that
he suffered from an "immunologic disease" and could not work more
than eight-hour days, but he was terminated the following morning.

Zillyette filed a discrimination charge with the EEOC, which mailed
a right-to-sue letter on September 4, 1996.  The postal service
made an unsuccessful attempt to deliver the certified letter to
Zillyette on September 5.  A delivery notice was left at his home,
informing him that the letter awaited him at the post office.  A
second and final certified mail notice was left at his home on
September 10.  Zillyette received the letter "on or about"
September 20.  During the 90 day filing period, Zillyette consulted
with an attorney who drafted the original complaint, although he
ultimately filed his complaint _pro se_ on December 12, 1996.

Capital One moved to dismiss, claiming the suit is time-barred
because of plaintiff's failure to file suit within ninety days
after receiving his right-to-sue letter, that Zillyette is not a
qualified individual with a disability under the ADA, that
Zillyette did not notify Capital One of his HIV diagnosis or
request for reasonable accommodation prior to Capital One's final
decision to discharge him, and that Zillyette had improperly joined
Capital One Financial Corporation as a party to the action.

The timeliness issue rested upon whether the 90 day filing period
began from the date when Zillyette received constructive notice
that a right to sue letter was sent (September 5) or when Zillyette
actually received the letter (September 20).  District Judge
Kovachevich reviewed Supreme Court constructive receipt cases and
concluded that there was no reason why the plaintiff should enjoy
a manipulable open-ended time extension of fifteen days before the
filing period begins to run.  Otherwise, Zillyette would control
the limitations period by delaying in picking up the letter from
the post office.  As expected, Zillyette made an argument for
equitable tolling based upon his "impaired mental condition," which
the court denied.  The court found that his complaints of being
"very depressed" with headaches and insomnia fell dismally short of
the narrow exceptions permitting equitable tolling, and was
apparently not so critical as to prevent him from filing his EEOC
discrimination claim within the statutory period.  Zillyette had
also stated in his deposition that he was aware of the 90-day
filing requirement.  

Although the court found the claim time-barred, it also addressed
the defendants' other issues, probably to reaffirm 11th Circuit
precedents on the issues.  Kovachevich found that Zillyette was not
a "qualified individual" because he was not able to satisfy all of
the job's essential requirements despite his disability.  The very
nature of his job as a customer service representative was his
on-site presence, so absenteeism and shorter working days was not
a feasible accommodation.  Furthermore, Zillyette offered no
competent evidence that either of his requested accommodations
would have remedied his attendance problem.

Zillyette's charge of discriminatory discharge was based solely
upon his HIV+ status.  However, Zillyette failed to show that
Capital One had knowledge of his HIV infection, an essential
element of a prima facie case.  Zillyette admitted that he did not
inform his employer prior to discharge that he was HIV+, but
claimed that his employer should have known due to his excessive
medically-related absenteeism and his physician's note stating that
he suffered from an immunologic disease.  The court dismissed this
claim, stating that such vague and conclusory statements revealing
an unspecified incapacity are not sufficient to put an employer on
notice of its obligations under the ADA. _K. Jacob Ruppert_

Federal Magistrate Rules Against Viatical Company on
Incontestability Dispute

Magistrate McKnight (W.D.N.C.) ruled against a viatical settlement
company in its attempt to claim full payment of benefits on a life
insurance policy it purchased from a PWA shortly before he died. 
_Dignity Viatical Settlement Partners v. Cedalion Systems, Inc._,
1998 WL 199652 (April 20).

George Rigsby, an employee of Cedalion, received life insurance
coverage under a group policy issued to Cedalion by Unum Life
Insurance Company of America in 1990.  Rigsby initially obtained
$40,000 of coverage under the plan.  On Feb. 6, 1992, Rigsby
applied to increase his coverage by payment of extra premiums.  He
filled out an application for the maximum increase to which he was
entitled, and filled in the application questions on his health
status by stating he was in "good health -- free from impairment &
disorder," and answered "no" to the question whether he had
undergone treatment within the past five years.  His application
was approved and his total coverage was raised to $85,000,
retroactively to Feb. 1, 1992.  On Nov. 8, 1993, Rigsby assigned
his rights under the policy to Dignity Viatical.  As part of that
transaction, Dignity queried Unum Insurance about the status of the
policy, and was assured that Rigsby was covered for $85,000. 
Rigsby died from AIDS a month later, and Dignity applied for
payment under the policy.  

Taking the position that Rigsby's increased coverage was still
within the contestability period, Unum paid Dignity only $40,000,
and Dignity sued for the remaining $45,000.  Unum's investigation
showed that Rigsby had lied on his 1992 application for increased
coverage; he had been treated for HIV-related problems prior to
submitting the application.

Ruling on cross-motions for summary judgment, Magistrate McKnight
rejected Dignity's theory that the terms of the group plan could be
construed such that no new contestability period started to run
when Unum issued the extra coverage to Rigsby effective Feb. 1992. 
The plain language of the policy would not lend itself to such a
construction.  Furthermore, Dignity could not credibly suggest that
Unum would have issued the increased coverage had it known about
Rigsby's actual treatment history at the time of the application. 
Finally, Dignity sought to assert an estoppel, based on the fact
that it had paid for the assignment of the policy in reliance on
statements by Unum confirming Rigsby's coverage.  McKnight found
that state estoppel principles were preempted by ERISA to the
extent that they might change the meaning of an employee benefits
plan subject to ERISA; in this case, imposing an estoppel would
contradict the clear terms of the plan, which allow the insurer to
contest coverage for up to two years after a policy is in effect. 
Thus, plaintiff's motion for summary judgment was denied and
defendant's was granted, authorizing rescission of the increased
coverage contract and denial of Dignity's claim.  A.S.L.

10th Circuit Continues War on the ADA

In its continuing campaign to gut the Americans With Disabilities
Act, the U.S. Court of Appeals for the 10th Circuit issued several
decisions in recent months rejecting the EEOC's interpretation of
the statute and cutting back on protection for persons with
disabilities.  In _Smith v. Midland Brake, Inc._, 1998 WL 110011,
7 A.D. Cases (BNA) 1560 (10th Cir., March 13), the court held that
if an employee cannot perform their job due to a disability even
with reasonable accommodation, they are not qualified for
protection under the act, even if the employer has other jobs
available that the employee could perform.  The court rejected the
EEOC's position, announced in interpretive guidelines and as amicus
in this case, that transfer to another job may be included within
the duty of reasonable accommodation under the act.  Perhaps even
more seriously, the 10th Circuit is taking a hard line against
recognizing medically-controllable conditions as disabilities.  In
November, the court decided _Sutton v. United Air Lines, Inc._, 130
F.3d 893 (10th Cir. 1997), holding that because a pilot's bad
vision was correctable by glasses, the pilot's vision did not
impair a "major life activity," thus in effect limiting protection
of the act to people whose vision is so poor that corrective lenses
would not make it possible for them to carry on everyday
activities.  Relying on this precedent, the court ruled in _Murphy
v. United Parcel Service_, 1998 WL 105933 (10th Cir., March 11)
(not officially published), that a truck driver with high blood
pressure was not a person with a disability under the act because
his condition is medically controllable, and thus not protected
from discrimination on account of his high blood pressure.  This
decision directly contradicts _Arnold v. United Parcel Service_,
1998 WL 63505 (1st Cir., Feb. 20), in which the First Circuit held
the plaintiff, a person with diabetes, covered under the act, even
though his condition is medically controllable. * * * The
significance of these cases for people with HIV/AIDS is obvious,
most especially the ruling that people with medically-controllable
conditions do not suffer from impairment of a major life activity,
in light of the relative success of recently adopted AIDS
treatments that make possible normal everyday functioning.  A.S.L.

N.Y. Federal District Court Rules Against HIV+ Mother on
Constitutional Claims

U.S. District Judge Frederic Block (E.D.N.Y.) dismissed a complaint
alleging improper conduct by hospital personnel and city child
welfare officials in detaining the newborn daughter of an HIV+
mother for ten days after the birth.  _Kia P. v. McIntyre_, 1998 WL
180603 (April 15).

Kia P., the mother, revealed her HIV status to hospital staff when
she arrived at the hospital to give birth to Mora.  Kia alleges
that she was not treated well by hospital staff after she revealed
her HIV-status.  After Mora's birth, the hospital obtained her
urine sample for drug screening; the sample tested positive for
methadone.  A hospital social worker told Kia that she would be
discharged, but that Mora would be held while the hospital sought
confirmatory testing.  The hospital reported the positive methadone
test to the Child Welfare Administration, whose rules require that
a newborn testing positive be held at the hospital pending an
investigation.  Kia insisted that she had never taken methadone,
and had not used drugs for the past two years.  Ultimately, the
confirmatory test was negative, and Mora was released after ten
days.  During the time Mora was kept in the hospital, Kia was
allowed to visit, including during feeding times.

Kia sued, claiming violations of her rights of due process and
equal protection.  In particular, Kia claimed discrimination based
on her HIV-status, both in the hospital's treatment of her and in
the decision to hold Mora in the hospital for investigation.  In
dismissing her claim, Judge Block found that although a parent has
a liberty interest in custody of her child, the hospital (and the
city's Child Welfare Administration) had a reasonable basis under
the circumstances for instigating the investigation, in the state's
role of looking out for the welfare of the child.  Block
specifically rejected Kia's claim of HIV-related discrimination,
finding that she had made a conclusory allegation to that effect
without specifying any details of discriminatory treatment.  

Block also ruled, alternatively, that the individual defendants had
qualified immunity from suit for constitutional violations. A.S.L.

California Appeals Court Reiterates Earlier Ruling in HIV Assault
Case

In _Guevara v. Superior Court_, 1998 WL 138856 (Cal.App., 6th
Dist., March 27), the court of appeal reiterated its earlier
holding, see 1997 WL 789950 (Dec. 19), that Dennis Guevara could
not be charged with a violation of Penal Code sec. 245(a)(1)
(aggravated assault) for engaging in consensual sex with minor
females while knowing that he was HIV+.  According to the court,
because of the low risk that HIV will be transmitted in one
consensual instance of vaginal intercourse, it was inappropriate to
try the defendant on a charge of assault with a deadly weapon. 
However, the court rejected a constitutional challenge to a
sentence enhancement provision, Penal Code sec. 12022.85, which
would add three years to the sentence of anyone convicted of
somebody who has unlawful intercourse knowing they are infected
with HIV.  Writing for the court, Justice Mihara rejected the
analogy to status-offense cases; defendant Guevara had argued that
enhancing his sentence due to his HIV status was, in effect,
penalizing him solely for being HIV+.  Mihara observed that the
punishment was for engaging in particular, dangerous conduct while
being HIV+.  A.S.L.

Medical Records Discoverable In Personal Injury Case

Reversing a trial court ruling, the N.Y. Appellate Division, 3rd
Department, unanimously held that medical records of the plaintiff
are discoverable in a personal injury lawsuit, even though the
records might reveal the result of an HIV test.  _Coddington v.
Lisk_, 1998 WL 196408 (April 23).

Theresa Coddington sued for injuries she sustained in an auto
accident; she was a passenger in one of the cars.  During
discovery, the defendants requested a medical authorization to
obtain the plaintiff's records from the Ulster County Methadone
Program.  Plaintiff resisted discovery of these records, claiming
that they were not discoverable because they "may include the
results of an HIV test."  The trial court decided these records
were "not material and necessary to the defense of plaintiff's
action" and denied the defendants' discovery motion.

Reversing in a decision by Justice Mikoll, the court found that a
personal injury plaintiff who is claiming damages for "permanent
weakness and instability,. . . permanent effect of pain,. . . and
loss of enjoyment of life," has necessarily put her health status
in issue in the case, and that her "drug addiction records may be
useful in preparation for trial and `may lead to relevant evidence
bearing on plaintiff's claim for damages'" and thus should be
disclosed.  A.S.L.

Doctor's Lawyer Plans AIDS Dementia Defense to Criminal Charges

Gary Parkison, a doctor with AIDS from Concord, California, plans
to assert a "dementia" defense in response to criminal charges of
arson, attempted murder and insurance fraud pending against him. 
_San Francisco Chronicle_, April 6.  Prosecutors claim that
Parkison, who was diagnosed with AIDS in 1992 but continued to
practice medicine, attempted to burn down his office in 1995 to get
out of a long-term lease, and tried to hire a murderer-for-hire to
kill his ex-lover in order to claim $860,000 in life insurance. 
According to Parkison's attorney, Blackie Burak, "He became a
paranoid who then lost all judgment.  He didn't understand the
nature of his acts, and he did not form the mental intent required
for a criminal conviction.  And the funny things is with this kind
of dementia, you can lose judgment on one specific thing -- that
is, his ex-lover -- but he could still appear normal and run a
medical practice."  The _Chronicle_ quoted a psychiatrist who works
in St. Mary's Medical Center's AIDS Dementia Unit in San Francisco
as refuting Burak's claim that dementia can affect only one area of
judgment.  "Dementia is not a very isolated impairment," said Dr.
Dan Karasic.  "It's a much more global disorder."  A.S.L.

Clinton Administration Says Yes to Needle Exchange, No to Funding
Needle Exchange

Preparing for a legislative deadline, U.S. Secretary of Health and
Human Services Donna Shalala was preparing to announce an end to
the ban on federal funding of needle-exchange programs based on
accumulated scientific data that such programs do not increase drug
abuse and do help to prevent the spread of HIV among drug users and
their sexual partners and children.  But at the last minute, she
received word from the White House that President Clinton would not
approve spending any federal money on needle-exchange.  White House
aides indicated that Clinton feared provoking a Congressional
backlash that would have outlawed the programs entirely.  The
national press was, on the whole, very critical of Clinton,
accusing the administration of hypocrisy after a bizarre press
conference on April 20 in which Shalala praised needle exchange
programs but announced that they would not receive federal funds. 
AIDS advocacy groups were livid, having been informed in advance
that the administration was preparing to endorse and fund needle
exchanges.  A.S.L.

Confidentiality Debate Proceeds in Illinois

The Illinois Public Health Department has announced regulations
that would require doctors and other health care professionals to
report by name all diagnosed cases of HIV-infection.  However, the
Department proposed to keep open 64 anonymous test sites around the
state, so that individuals can still be tested without putting
their name on a list or having the result reported.  This struck
observers as replacing one objectionable policy with another:
eliminating anonymous testing may deter people from getting tested,
so it is good to keep the anonymous test sites open, but the new
rule might discourage those who test positive from seeking
treatment for fear that their anonymity will be ended through the
reporting requirement.  All 50 states now require name-reporting of
those diagnosed with CDC-defined AIDS, but only 31 states now
require name-reporting of those in the far larger group that is
HIV+ but not diagnosed with AIDS.  _Chicago Sun-Times_, April 27.

AIDS Litigation Notes

An infertile couple trying to challenge a fertility programs
screening procedures, including HIV testing, ran into a pleadings
snag by failing to allege that either of them would be screened out
under the procedures.  _Sheils v. Univ. of Pennsylvania Medical
Center_, 1998 WL 134220 (U.S.Dist.Ct., E.D.Pa., March 24). 
District Judge Anita B. Brody granted the Medical Center's motion
to dismiss, but dismissed without prejudice and gave plaintiffs
leave to file a new complaint, provided they could truthfully
allege that the screening procedures would prejudice them under
federal or state law.  (They had claimed a violation of the ADA,
the Rehabilitation Act, and Pennsylvania's Human Relations Act.) 
Judge Brody reserved judgment as to whether infertility could be
considered a disability under these statutes.  

The New York Appellate Division, 2nd Dept., has affirmed a decision
from last year in which the trial court found that an
incontestability clause in a life insurance policy precluded the
insurer from refusing to pay benefits on an AIDS-related claim. The
policy-holder was HIV+ at the time he bought the policy, but did
not reveal this to the insurer, which sought to argue (after the
incontestability period had passed) that AIDS was a pre-existing
condition. _New England Mutual Life Ins. Co, v. Doe_, NYLJ,
4/10/98, p.31, col.6.  The Appellate Division's decision does not
discuss the facts of the case.  Doe is represented by LeGaL member
Mark Scherzer.  Lambda Legal Defense Fund filed an amicus brief in
the case, co-authored by Lambda staff attorney Catherine Hanssens
and cooperating attorney Barry Burland of Milbank, Tweed, Hadley &
McCloy.  

A Nevada jury convicted a former substitute high school teacher who
is HIV+ of intentionally trying to transmit the virus to a 16-year-
old boy by engaging in unprotected oral sex without informing the
boy of his HIV-status.  The boy has not sero-converted.  The jury
verdict, rendered on April 24, also found Brian Lepley, 33, guilty
of nine other offenses, including supplying the boy with marijuana. 
At the same time, the jury acquitted Lepley of similar charges
involving a 17-year-old, with whom Lepley also had unprotected oral
sex after disclosing his status.  Oral sex between adults is legal
in Nevada.  Lepley faces a potential sentence of life in prison. 
_Las Vegas Review-Journal_, April 25.

A surgical nurse has won a verdict of $35,000 against a surgeon for
infliction of emotional distress due to potential exposure to HIV. 
Katherine R. Kenny claimed that Dr. Alfred S. Gervin reacted to her
reminder that he should not be prepping a patient for surgery
barehanded by wiping his hands on her arms.  Although Kenny has
repeatedly tested negative for HIV, she developed a great fear that
she was exposed and might contract the infection, suing Gervin in
Richmond Circuit Court (Virginia) for battery and seeking $1.3
million in damages.  Gervin announced he would appeal the verdict. 
_Washington Post_, April 25.  

A Louisiana inmate with HIV charged with spitting at two
corrections officers who were trying to remove him from his
cellblock was convicted by a jury of attempted intentional exposure
to HIV.  James Houston claimed that he did not know at the time
that he was HIV+, but the jury was presented with evidence that he
was receiving AIDS medications at the time.  Sentencing is
scheduled for June 22 by Louisiana 20th Judicial District Judge
Wilson Ramshur.  _Baton Rouge Advocate_, April 14.

Two day-care centers in Beloit, Wisconsin, that had refused to
admit HIV+ children have settled an Americans With Disabilities Act
lawsuit brought by the U.S. Justice Department.  A third center,
which also refused to admit the five-year old boy, still awaits
trial.  The two centers agreed to enroll HIV+ children "unless they
are high-risk cases" (a phrase unexplained in the news report) and
to sponsor seminars on the topic for their staffs.  _Los Angeles
Times_, April 25.  A.S.L.

International AIDS Law Notes

The _Daily Telegraph_ of London reported April 28 that a British
woman with AIDS, Chrysavgi Zarzour, was sentenced to a 7-month
prison term in Nicosia, Cyprus, for having unprotected sex with a
taxi driver.  "Although Zarzour admitted the offense and the fact
that she was drunk at the time, it is no excuse," wrote Judge Haris
Solomonides, according to the news report.

The _Jerusalem Post_ reported March 31 that the Israel Supreme
Court has rejected an appeal by a man convicted of infecting his
girlfriend with HIV.  The man was sentenced by the Beersheba
District Court to 30 months imprisonment and a fine.  The
defendant's lawyer claimed that he had used a condom, and that
since undergoing treatment he has undetectable levels of virus.

The Victoria, Australia, Supreme Court reportedly ruled on April 29
that the conviction of an HIV+ man of the crime of reckless
endangerment was not justified as a strategy to ensure safe sexual
behavior, according to an internet posting by John Godwin of the
Kingsford Legal Centre in Sydney.  We will have a fuller report
when the decision in the _Mutemeri_ case becomes available on-line.
A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Aiken, Jane Harris, _Sexual Character Evidence in Civil Actions:
Refining the Propensity Rule_, 1997 Wis. L. Rev. 1221 (No. 6).

Anderson, Cheryl L. _"Nothing Personal:" Individual Liability Under
42 U.S.C. sec. 1983 for Sexual Harassment As an Equal Protection
Claim_, 19 Berkeley J. Emp. & Lab. L. 60 (1998).

Bamforth, Nicholas, _Sexuality, Morals and Justice: A Theory of
Lesbian and Gay Rights Law_ (London: Washington D.C.: Cassell, 310
p., 1997).

Brittain, John C., _Direct Democracy by the Majority Can Jeopardize
the Civil Rights of Minority or Other Powerless Groups_, 1996 Ann.
Survey Am. L. No. 3, 441 (part of symposium titled "The Legitimacy
of Direct Democracy: Ballot Initiatives and the Law".

Fellows, Mary Louise, _Committee Partners and Inheritance: An
Empirical Study_, 16 L. & Inequality 1 (Winter 1998) (Reviews
census and survey data on opposite-sex and same-sex unmarried
couples, current status under inheritance laws, and surveys public
attitudes on possible change, noting the Hawaii reciprocal
beneficiaries law of 1997 that will extend rights of intestate
succession to "domestic partners" as "revolutionary").

McAllister, Stephen R., _"Neighbors Beware": The Constitutionality
of State Sex Offender Registration and Community Notification
Laws_, 29 Tex. Tech. L. Rev. 97 (1998).

Miccio, G. Kristian, _Closing My Eyes and Remembering My Self:
Reflections of a Lesbian Law Professor_, 7 Col. J. Gender & L. 167
(1997).

Nugent, Robert, _The U.S. Catholic Bishops and Gay Civil Rights:
Four Case Studies_, 38 Catholic Lawyer 1 (1998).

Phipps, Charles A., _Children, Adults, Sex and the Criminal Law: In
Search of Reason_, 22 Seton Hall Legis. J. 1 (1997).

Saunders, Kevin W., _Electronic Indecency: Protecting Children in
the Wake of the Cable and Internet Cases_, 46 Drake L. Rev. 1
(1997).

Strong, S.I., _Justice Scalia as a Modern Lord Devlin: Animus and
Civil Burdens in_ Romer v. Evans, 71 So. Cal. L. Rev. 1 (Nov.
1997).

Varona, Anthony E., _Setting the Record Straight: The Effects of
the Employment Non-Discrimination Act of 1997 on the First and
Fourteenth Amendment Rights of Gay and Lesbian Public
Schoolteachers_, 6 CommLaw Conspectus (J. Comm. L. & Pol.) 25
(Winter 1998).

Wang, Lu-in, _The Transforming Power of "Hate": Social Cognition
Theory and the Harms of Bias-Related Crime_, 71 So. Cal. L. Rev. 47
(Nov. 1997).

Wray, Tsippi, _Lesbian Relationships and Parenthood: Models for
Legal Recognition of Nontraditional Families_, 21 Hamline L. Rev.
127 (Fall 1997).

_Student Notes & Comments:_

Blumberg, Jill H., _Constitutional Law -- Colorado Amendment 2
Violates Equal Protection Clause by Classifying Homosexuals Without
Proper Legislative End --_ Romer v. Evans_, 116 S.Ct. 1620 (1996)_,
31 Suffolk U. L. Rev. 183 (1997).

Broz, Alycia N., Nabozny v. Podlesny_: A Teenager's Struggle to End
Anti-Gay Violence in Public Schools_, 92 N'western U. L. Rev. 750
(Winter 1998).

Burns, James A., Jr., _Review of the Literature -- Personal
Relationships of Employees: Are They Any Business of an Employer?_,
23 Emp. Rel. L.J. 171 (Spring 1998).

Fleming, Sharon J., _Custody Standards in New Mexico: Between Third
Parties and Biological Parents, What Is the Trend?_, 27 N. Mex. L.
Rev. 547 (Summer 1997).

Ford, Jennifer C., _Everything You Always Wanted to Know About
Pornographer Liability (But Were Afraid to Ask)_, 46 Drake L. Rev.
233 (1997).

Goldsmith, Adrianne, _Sex, Cyberspace, and the Communications
Decency Act: The Argument for an Uncensored Internet_, 1997 Utah L.
Rev. 843.

Kelly, Jon-Peter, _Act of Infidelity: Why the Defense of Marriage
Act Is Unfaithful to the Constitution_, 7 Cornell J. L. & Pub. Pol.
203 (Fall 1997).

Koji, Sabine, _Constitutional Law --_ Campbell v. Sundquist_:
Tennessee's Homosexual Practices Act Violates the Right to
Privacy_, 28 U. Memphis L. Rev. 311 (Fall 1997).

Paige, Rebecca S., _Wagging the Dog -- If the State of Hawaii
Accepts Same-Sex Marriage Will Other States Have To?: An
Examination of Conflict of Laws and Escape Devices_, 47 Amer. U. L.
Rev. 165 (Oct. 1997).

Papadopoulos, Mark E., _Inkblot Jurisprudence:_ Romer v. Evans_ as
a Great Defeat for the Gay Rights Movement_, 7 Cornell J. L. & Pub.
Pol. 165 (Fall 1997).

Pizzutillo, Amy E., _A_ Perry, Perry_ Poor Policy Promoting
Prejudice Rebuked by the Reality of the_ Romer_ Ruling:_ Thomasson
v. Perry, 42 Villanova L. Rev. 1293 (1997).

Smith, Peter S., _The Demise of Three-Tier Review: Has the United
States Supreme Court Adopted a "Sliding Scale" Approach Toward
Equal Protection Jurisprudence?_, 23 J. Contemp. L. 475 (1997).

Torbati, Melody, _The right of Intimate Sexual Relations: Normative
and Social Bases for According It "Fundamental Right" Status_, 70
S. Cal. L. Rev. 1805 (Sept. 1997).

_Gay Law Paper Competition for Students:_

The National Lesbian and Gay Law Association (NLGLA) and its
affiliated foundation have announced a student writing competition. 
Entries, which _must be received by July 15, 1998_, may be
submitted by any student enrolled in a U.S. law school during the
1997-98 academic year, and must address a "cutting edge legal issue
affecting the Lesbian, Gay, Bisexual and/or Transgendered
Community."  The First Prize, which will be given in honor of
Michael Greenberg, is: $1,000 cash, publication in the Journal of
Law & Sexuality, free registration, air fare and lodging for the
1998 Lavender Law Conference in Boston in October, workshop
presentation of winning paper at Lavender Law, reprinting of paper
in Lavender Law conference materials.  The two runners-up will be
able to attend Lavender Law 1998 without paying a registration fee. 
Papers should be no longer than 25 pages of 12 point type with one
inch margins and follow standard note and Blue Book citation
format.  Entrant's name should not be on the paper, as papers will
be judged anonymously.  Instead, the entry should be submitted with
a detachable cover page showing the name, school, permanent address
and telephone number of the entrant.  Entries should be mailed to:
NLGLA Student Writing Competition, 1210 Cedar Lane, Nashville TN
37212-5910.  

_Specially Noted:_

A 1997 Case Table for Lesbian/Gay Law Notes, compiled by Seth M.
Rosen, NYLS '99, Professor Arthur S. Leonard, and Charles
Wertheimer, NYLS '97, is now available both in hard copy and
electronically.  Contact our Circulation Manager, Daniel R
Schaffer, for your copy.

AIDS & RELATED LEGAL ISSUES:

_Student Notes & Comments:_

Lebowitz, Todd, _Evaluating Purely Reproductive Disorders Under the
Americans With Disabilities Act_, 96 Mich. L. Rev. 724 (Dec. 1997).

Weston, Maureen C., _The Road Best Traveled: Removing Judicial
Roadblocks That Prevent Workers from Obtaining Both Disability
Benefits and ADA Civil Rights Protection_, 26 Hofstra L. Rev. 377
(Winter 1997).

EDITOR'S NOTE:

All points of view expressed in _Lesbian/Gay Law Notes_ are those
of identified writers, and are not official positions of the
Lesbian & Gay Law Association of Greater New York or the LeGaL
Foundation, Inc.  All comments in _Publications Noted_ are
attributable to the Editor.  Correspondence pertinent to issues
covered in _Lesbian/Gay Law Notes_ is welcome and will be published
subject to editing.  Please address correspondence to the Editor or
send via e-mail.