LESBIAN/GAY LAW NOTES ISSN 8755-9021 January 1999 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; Steven Kolodny, Esq., New York City; Todd V. Lamb, Esq., New York City; Arthur J. Levy, Esq., Brooklyn, N.Y.; Mark Major, Esq., Long Island, New York; Sharon McGowan, Harvard Law Student, Cambridge, Massachusetts; K. Jacob Ruppert, Esq., Queens, New York; Daniel R Schaffer, New York City; Dirk Williams, Esq., Boston, Massachusetts; Robert Wintemute, Esq., King's College, London, England; Leo Wong, New York Law School Student. Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: le-gal@interport.net LeGaL Homepage: http://www.le-gal.org Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln (C) 1999 by the LeGaL Foundation of the Lesbian & Gay Law Association of Greater New York $50/yr by subscription; US$55 Canada; US$60 Other International OREGON APPEALS COURT GIVES UNPRECEDENTED DOMESTIC PARTNERSHIP VICTORY TO GAY LITIGANTS In one fell swoop, the lesbian and gay community in Oregon has won a triple victory with a unanimous December 9 decision by the Oregon Court of Appeals in _Tanner v. Oregon Health Sciences University_, 1998 WL 869976. Ruling on the defendants's appeal of a 1996 trial court decision that ordered the Oregon Health Sciences University to provide health and life insurance benefits to the same-sex domestic partners of its employees, the appeals court found that failure to award such benefits would violate the state constitution's equal protection provision, Art. I, sec. 20, the first time an appellate court has issued such a ruling on the merits. The court implicitly held that such benefits are mandated for _all_ public employees in Oregon, not just state employees. The court also held that anti-gay discrimination is covered as "sex discrimination" under the state's civil rights law, ORS 659.030(1)(b), thus giving activists an unexpected victory that they have been unable to win in the legislature. This is the first time a state appellate court has interpreted a state civil rights law banning sex discrimination to cover discrimination on the basis of sexual orientation. Finally, and perhaps most historically, for the first time a state appellate court has ruled that gay people are a "suspect class" for purposes of ruling on discrimination claims against the state government, potentially setting the stage for a lawsuit seeking same-sex marriage licenses. The case arose out of the refusal of the University, at that time a state agency, to extend benefits to the lesbian partners of three women employed on its staff. The women and their partners, Christine Tanner, Barbara Limandri, Regina Phillips, Lisa Chickadonz, Terrie Lyons, and Kathleen Grogan, sued under the state civil rights law and the state constitution. In a historic decision, Multnomah County Circuit Court Judge Stephen L. Gallagher ruled in August 1996, 1996 WL 585547, that the failure to provide these benefits violated both the state civil rights law and the constitutional provision, and ordered the state to extend group insurance benefits to unmarried domestic partners of its gay employees. The state appealed the ruling, but also complied by adopting a domestic partner benefit plan for state employees that went into effect last June. Also, while the case was pending, the legislature reorganized the state's higher education system and transformed the University from a state agency to a public corporation, thus casting potential doubt on the trial court's ruling. On appeal, however, the court concluded that the University remained subject to constitutional suit as a government employer. This was significant on two counts. First, only government employers can be sued for constitutional violations. Second, due to the preemptive effect of the federal Employee Retirement Income Security Act, a state court lawsuit may not be brought against a _private_ sector employer to seeking domestic partnership benefits. Analyzing the discrimination claim under Oregon's Civil Rights Law, which prohibits employment discrimination on the basis of sex, Judge Landau's opinion focused on a key phrase that does not appear in most federal or state civil rights laws. In addition to banning discrimination based on the sex of an employee, the Oregon law also bans discrimination based on the sex "of any other person with whom the individual associates." Taking up a suggestion that the Oregon Supreme Court made in a 1988 case, _ACLU v. Roberts_, 752 P.2d 1215, Landau concluded that this phrase outlaws discrimination on the basis of sexual orientation, since logically such discrimination is based on the sex of the person or persons with whom the employee might have a sexual relationship. However, another provision of the civil rights law, ORS 659.028, pertaining to employee benefits, prevented the court from basing its decision on this statute. This provision states that it is not unlawful for an employer to "observe the terms of a bona fide employee benefit plan, such as a retirement, pension or insurance plan, which is not a subterfuge to evade the purposes of this chapter." The court found that the University's insurance programs are bona fide employee benefit plans, and that there was no evidence that the University had adopted them specifically to discriminate against gay people, so they could not be a considered a "subterfuge to evade the purposes" of the civil rights law. (In effect, the court ruled that in the area of employee benefits, only intentional discrimination is covered by the statute.) But all was not lost, because there was still the constitutional claim. Here again, the unique phrasing of Oregon's laws was crucial to the court's decision. Unlike the federal equal protection clause or the equivalent provisions of most state constitutions, which broadly state that the government may not deprive any individual of equal protection of the laws, Oregon's provision states: "No law shall be passed granting to any citizen or class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." The court first had to determine whether gay people constitute a "class of citizens," then whether the insurance plans constituted class-based discrimination, and finally whether such discrimination was constitutionally justified. Determining the strictness of judicial review to be applied to these question was a crucial first step, and here the court made a very significant ruling. Under Oregon constitutional law, discrimination against a "suspect class" is "subject to a more demanding level of scrutiny." Judge Landau found that suspect classes are "distinct, socially-recognized groups that have been the subject of adverse social or political stereotyping or prejudice," and that "if a law or government action fails to offer privileges and immunities to members of such a class on equal terms, the law or action is inherently suspect and. . . may be upheld only if the failure to make the privileges or immunities available to that class can be justified by genuine differences between the disparately treated class and those to whom the privileges and immunities are granted." Landau stated that "we have no difficulty concluding that plaintiffs are members of a suspect class. Sexual orientation, like gender, race, alienage, and religious affiliation is widely regarded as defining a distinct, socially-recognized group of citizens, and certainly it is beyond dispute that homosexuals in our society have been and continue to be the subject of adverse social and political stereotyping and prejudice." Further, "we must determine whether the fact that the domestic partners of homosexual OHSU employees cannot obtain insurance benefits can be justified by their homosexuality. The parties have suggested no such justification, and we can envision none." The University's defense was that it was distinguishing among employees based on marital status, rather than on sex or sexual orientation, and that marital status discrimination has not been held to violate the Oregon constitution. However, here the court pointed out another significant difference between federal and state constitutional law. The U.S. Supreme Court has ruled that the federal equal protection clause only outlaws intentional discrimination. By contrast, the Oregon courts have accepted the theory that apparently neutral policies may violate the guarantee of equal protection if they have the actual effect of discriminating. "OHSU has taken action with no apparent intention to treat disparately members of any true class of citizens," wrote Landau. "Nevertheless, its actions have the undeniable effect of doing just that. . . What is relevant is the extent to which privileges or immunities are not made available to all citizens on equal terms." Because gay people cannot marry their partners to qualify for these benefits, then "the benefits are not made available on equal terms. They are made available on terms that, for gay and lesbian couples, are a legal impossibility." Interestingly, this analysis brings directly into question the refusal of Oregon to issue marriage licenses to same-sex couples. In a footnote, Judge Landau commented that the parties had not raised the issue of a constitutional challenge to the ban against same-sex marriage, and so the court would not address that issue. But the logic of the constitutional ruling suggests that such a challenge might succeed, at least in front of this three-judge intermediate appellate panel. Thus, the end result of the court's ruling is three-fold: First, same-sex partners of public employees in Oregon are entitled to participate in employee benefits programs on the same basis as legal spouses of public employees. Second, apart from the issue of employee benefits, all employers in Oregon, whether public or private, are prohibited from discriminating on the basis of sexual orientation. Third, state and local governments in Oregon may not discriminate in any respect against gay people unless they have a truly compelling justification, setting the stage for potentially interesting developments not only in the area of marriage but potentially in other state policies as well. State officials expressed uncertainty about whether to appeal this ruling to the state's highest court, especially since the state had voluntarily extended eligibility for benefits to same-sex partners of state employees in response to the trial court's ruling, but it would not be surprising if local government officials were to pressure the state to appeal. Some Republican state legislators outlined a strategy to place several questions on the state ballot for a May referendum seeking to overturn this decision, to require citizen referenda on all gay rights measures, and to reserve to local government bodies the right to decide whether to adopt domestic partnership benefits plans (_Portland Oregonian_, Dec. 19). The six lesbian plaintiffs were represented by Oregon attorney Carl G. Kiss. The ACLU of Oregon and Lambda Legal Defense Fund filed an amicus brief in support of their claim, as did the Oregon Public Employees Union. A.S.L. LESBIAN/GAY LEGAL NEWS Maryland High Court Victory for Gay Dad In a major victory for lesbian and gay parents in the state of Maryland, the state's highest court ruled Dec. 18 that any restriction of gay parents' visitation rights would require the other parent to show actual or potential harm to the child. _Boswell v. Boswell_, 1998 WL 880815 (Md.Ct.App.). The decision in Kimberly Boswell's appeal of Robert Boswell's victory in the intermediate appellate court goes against the predominant trend of appeals courts upholding restrictions on contact between children and their gay parents' lovers or domestic partners. Boswell was represented on appeal by American University Law Professor Nancy Polikoff, a leading authority on the parenting rights of gay people, acting as a cooperating attorney for Lambda Legal Defense and Education Fund. The Boswells were married in 1986 and had two children, a son and a daughter. They separate in August 1994 after Robert came out to his wife. Shortly after the separation, Robert began a relationship with Robert Donathan, and they began living together in February 1995. Kimberly filed for divorce in October 1994. In January 1995, a circuit court judge ordered visitation between Robert and his kids each Wednesday evening and every other weekend. The divorce trial was held early in 1996 before a different judge. At the conclusion of the trial, the judge awarded custody to Kimberly and allowed Robert to have visitation during the day on alternate weekends and Wednesday evenings, but with no overnight stays and excluding contact with "anyone having homosexual tendencies or such persuasions, male or female, or with anyone that the father may be living with in a non-marital relationship." The court placed on these restrictions even though Kimberly had not requested them, thus vindicating Robert's contention during the trial that the judge should have withdrawn from the case because of his anti-gay biases. The testifying expert witnesses did not expressly support these restrictions, although they indicated that the son, in particular, was having some problems adjusting to his father's new living arrangements. Robert appealed the restrictions, which were overturned by the Court of Special Appeals. That court agreed with Robert that the trial record did not support placing any restrictions on visitation. Kimberly then appealed to the Court of Appeals, the state's highest court. The court unanimously affirmed Robert's victory, in a very scholarly opinion by Justice Chasanow that thoroughly surveyed the court decisions in other jurisdictions and decided to follow those that have required a showing of actual harm to the child before these types of restrictions can be imposed. Chasanow wrote that the trial court has to make written findings, based on evidence in the trial record, to support a conclusion that a child would be placed at risk for actual harm if allowed to stay overnight with a gay parent or be exposed to the parent's gay friends or partner. "The court is not allowed to consider one factor, such as a parent's adultery or homosexuality, to the exclusion of all others," wrote Chasanow. The court specifically approved the intermediate appellate court's finding that the lower court had improperly "inferred that such exposure would be per se harmful to the children by virtue of the relationship's apparently `inappropriate' nature." Indeed, wrote Chasanow, the starting point for a court analyzing this kind of case is the proposition that "a child is almost always benefitted by having the maximum opportunity to develop a close and loving relationship with both parents, especially in situations where the parents are separate or divorced. . . and visitation with the non-custodial parent must be as liberal as reasonably practicable, taking into account the need for stability in the children's school and home schedules, the parents' respective work schedules, and how far apart the two parents live from each other, among other factors. Visitation should only be denied in cases of abuse, neglect or harm to the child, as evidenced by a specific showing of detriment. . . There is no conflict between the best interests of the child standard and the requirement of an evidence- based finding of adverse impact on the child caused by a parent's non-marital relationship to justify restrictions or limitations on custody or visitation." The court also emphasized that the standard it was recognizing in this decision applied equally to heterosexual and homosexual parents. "We make no distinctions as to the sexual preference of the non-custodial parent whose visitation is being challenged. The only relevance that a parent's sexual conduct or lifestyle has in the context of a visitation proceeding of this type is where that conduct or lifestyle is clearly shown to be detrimental to the children's emotional and/or physical well-being." And it is noteworthy that the court did not endorse a restriction on visitation based on the son's discomfort with his father's situation. State courts remain sharply split over the question whether it is proper to infer harm to the child from exposure to an openly gay parent's partners and gay friends. Although it is unusual for the U.S. Supreme Court to get involved in these sorts of family law cases, it is possible to argue that severe restrictions, or perhaps denial of visitation, due to a parent's homosexuality is a violation of constitutional rights, so ultimately this issue may get to the Supreme Court for a definitive resolution of the legal principles at stake. A.S.L. Indiana Appeals Court Upholds Restrictions on Gay Dad's Visitation With Children An Indiana appellate court has upheld restrictions on a gay man's visitation rights with his three children. Marlow v. Marlow, 702 N.E.2d 733 (Nov. 25). According to the unanimous Court of Appeals panel, the trial court did not abuse its discretion when it determined that it was not in the children's best interest for Douglas Marlow's live-in lover to be present during overnight visits with Marlow's children. The court also upheld the trial court's decision to forbid Marlow from taking his children to functions "supported by or which otherwise promote the homosexual lifestyle." Douglas and Connie Marlow were married in 1983. Both were raised in conservative, fundamentalist Christian environments, and believed that homosexuality is a sin. Before getting married, Douglas told Connie that he had been attracted to men in the past, but thought this was "a phase most guys went through" and that had passed for him. However, while married Douglas continued to be attracted to men. He and Connie sought counseling to try to save their marriage. But in 1995, Douglas told Connie that he could not ignore his true sexuality any longer. In 1996, he filed a petition seeking to dissolve their marriage. Douglas and Connie adopted three children during the course of their marriage. At the time of the commencement of the dissolution proceedings, the eldest was 8 years old and the younger two were both 5 years old. During the dissolution proceedings, the couple's children lived with Connie, who permitted Douglas overnight visitation on the condition that he not permit other adults to be present. During visitation, Douglas took his children to various pro-lesbigay activities, including an event co-sponsored by PFLAG, a lesbian choir and a gay baptismal service. The evidence showed that after visits with their father, the three children exhibited behavior consistent with emotional distress, including bed-wetting, nightmares and difficulty sleeping. During a four-day hearing, the trial court heard testimony from a clinical psychologist and another counselor referred to by the court as an "expert witness in custody cases." Both recommended against allowing Douglas to exercise overnight visitation. The "expert" witness also recommended against Douglas being permitted to expose his children to the "homosexual lifestyle" in light of the children's religious upbringing and the perceived negative impact the exposure had on the children. The court awarded sole custody of the children to Connie, and granted visitation to Douglas subject to two restrictions: first, that he was not permitted to have non-blood-related relatives in the house during overnight visitation; second, that he could not take the children to functions which promote the homosexual lifestyle. The trial court concluded there was "clear evidence that the father is over-emphasizing the issue of homosexuality with the children." The Court of Appeals concluded that based on the record, there was no abuse of discretion by the trial court since there was a "rational basis" for the court's determination. The appellate panel rejected Douglas' two constitutional challenges to the trial court's decision. Douglas first argued that the decision violated his rights under the Equal Protection clause of the federal constitution, since the trial court's decision was motivated by prejudice. The Court of Appeals disagreed, concluding that the trial court's determination was motivated by the best interests of the children, whose religious upbringing conflicted with the father's "lifestyle." According to the Court, Douglas' "new lifestyle has had an adverse impact on his young children who lack the cognitive ability to reconcile it with their conservative upbringing. . . at the present time, it is in the children's best interest that the issue of sexuality and the discussion thereof should be delayed until each child reaches adolescence." The court also rejected Douglas' argument that the second visitation restriction imposed by the trial court violated Douglas' First Amendment rights and was over broad and vague. Relying principally on a Missouri Court of Appeals decision addressing the same issue, the court noted that the restrictions imposed on Douglas did not limit his activities per se, but only during visitation with his children. The court summarily rejected the notion that the restrictions were overly broad or vague. From the outset of its decision, the panel anticipated and sought to dispel the charge that its ruling stemmed from homophobia. Quoting from a 1992 Court of Appeals decision, the court claimed to apply the following "neutral" tender age principle: "It is not puritanical or unreasonable to attempt to shield a child of tender age from the sexual practices of the visiting parent, whether those practices are homosexual or heterosexual." Even assuming this principle were applied equally to heterosexual and homosexual parents, it does not, in this writer's opinion, account for or justify the second visitation restriction imposed on Douglas by the trial court. The appellate court appears to have concluded that the children's' religious upbringing and their (short-term?) post-visitation emotional distress outweighed Douglas' right to foster a positive relationship with his children by exposing them to positive lesbigay images and role models. Although the court purported to base its decision on the best interests of the children, in the end the ruling wrongly perpetuates the notion that all lesbigay-sponsored activities concern only sex. _Ian Chesir-Teran_ Ohio Appeals Court Rejects Second-Parent Adoption Petition Affirming a decision by the Summit County Probate Court, the Ohio Court of Appeals, 9th Appellate District, held that Ohio adoption statutes must be strictly construed against the application by a lesbian co-parent to adopt her partner's child. _In re Adoption of Jane Doe_, 1998 Ohio App. LEXIS 6230 (Dec. 23). Appellant and Jane Doe's biological mother have been partners since 1981. They jointly planned to have a child, and Jane Doe was born on July 28, 1990. In 1996, the appellant brought a declaratory judgment action seeking to become the adoptive parent of Jane Doe. The probate court found her to be a suitable person to adopt, but also found that under the adoption statute, the birth mother's parental rights would necessarily be terminated if the adoption was granted, and this result was not being sought by the parties. Further, the court apparently rejected the alternative of first terminating the birth mother's parental rights and then letting the lesbian couple jointly adopt Jane Doe. On appeal, Judge Sheila Farmer found that the probate court had correctly applied Ohio law. The statute, R.C. 3107.15(A)(1), expressly states that adoption has the effect of relieving "the biological or other legal parents of the adopted person of all parental rights and responsibilities, and to terminate all legal relationships between the adopted person and the adopted person's relatives, including the adopted person's biological or other legal parents, so that the adopted person thereafter is a stranger to the adopted person's former relatives for all purposes. . ." This wording leaves little room for interpretation, and the Ohio Supreme Court has in past cases ruled that, although adoption decisions are to be made on a case-by-case basis, the statute is to be strictly construed as adoption was not recognized at common law and thus is strictly a creation of the statute. "Although we are mindful of the dilemma facing the parties and are sympathetic to their plight," wrote Farmer, it is not within the constitutional scope of judicial power to change the face and effect of the plain meaning of R.C. 3107.15. This case is not about alternative lifestyles but statutory construction. When we balance the spirit and motivation of the adoption laws (as appellant argues) against the plain meaning of the statutory language created by the state legislature, we are not empowered to find the `spirit' includes the issue presented sub judice." Farmer also commented that deciding the case directly based on the "best interest of the child" standard would "place the `cart before the horse'" because "best interest pertains to the adoption process, not to the legal effects of the adoption." Lambda Legal Defense Fund attorney Patricia Logue participated in the case together with local counsel Peter T. Cahoon and James B. Cahoon on behalf of the mothers, with amicus assistance from Susan J. Becker. Lambda is considering an appeal to the Ohio Supreme Court. Although courts in some other states have reached similar "strict construction" conclusions, there is a growing trend of state appellate courts adopting various interpretive theories to get around the cramped language typically found in adoption statutes in order to render sensible decisions in second-parent adoption cases. A.S.L. 9th Circuit Rejects Anti-Gay Harassment Claim In a brief unpublished memorandum opinion, the U.S. Court of Appeals for the 9th Circuit rejected a sexual harassment claim brought by a gay employee against Bristol-Myers Squibb Co. _Cady v. Bristol Myers Squibb Co._, 1998 WL 822732 (Nov. 17). Jerry Cady, who is out on disability leave from Bristol Myers, claimed that he was fired because he complained to the company about his supervisor's anti-gay remarks. He sued under California law for wrongful discharge, sexual orientation discrimination, hostile work environment, and intentional infliction of emotional distress. Surprisingly, Bristol's response to the complaint was to deny that Cady had been discharged, and to point out that it had taken prompt action against the supervisor who made the anti-gay remarks. The district court granted summary judgment in favor of Bristol. The 9th Circuit's opinion sheds little more light on the case than this brief recitation of the facts. However, the court did note that "although the supervisor's anti-gay comments were certainly reprehensible and unpleasant, they do not in this circumstance rise to the level of a `hostile environment,' particularly in light of the fact that Bristol acted swiftly to severely reprimand the supervisor, forcing him to accept a demotion, benefit reduction, and transfer or be dismissed with a loss of severance pay." As the court did not specify the supervisor's remarks further, it is hard to evaluate the standard it is imposing for finding an anti-gay hostile environment, but from the described severity of the company's action against the supervisor, one suspects it ain't pretty. A.S.L. Federal Judge Inquires About Title VII Harassment Protection for Gays In _Nasim v. Loeber Motors, Inc._, 1998 WL 895728 (N.D.Ill., Dec. 7), Senior U.S. District Judge Milton Shadur faces a complaint that the plaintiff was subjected to sexual harassment by his male co- workers because of his "homosexual orientation." In its answer, the defendant-employer stated that the claim was invalid "because Title VII does not provide redress for discrimination based on sexual orientation." This is, indeed, a debatable assertion in the 7th Circuit, in light of that circuit's decisions in recent years on same-sex harassment claims. So Judge Shadur has issued sua sponte an order to counsel for the parties, asking them to submit a list of "any caselaw or other authorities on which they respectively rely to uphold or to reject that Count II claim." In a footnote, Shadur said: "This Court does not wish argument on the subject in which counsel would seek to explain the significance of any cited authorities. In reaching a decision on the issue, this Court will of course read whatever authorities counsel may choose to cite. Hence the text calls only for citations, without more." Curious... A.S.L. Federal Court Says Equal Opportunity Harassers Still Get Off After _Oncale_ In _Holman v. State of Indiana_, 1998 WL 834121 (U.S.Dist.Ct., N.D.Ind., Dec. 1), Chief District Judge Lee reconsidered an earlier ruling dismissing a sexual harassment claim brought by a husband and wife against their employer, but found that in light of the Supreme Court's _Oncale v. Sundowner Offshore_ decision (118 S.Ct. 998 [1998]), it is even clearer than before that when a harasser targets both men and women for sexual harassment, Title VII does not apply. Karen and Steven Holman both work for the state as maintenance workers, supervised by Gale Ulrich, a male shop foreman. Both Karen and Steven alleged that Ulrich had subjected them to sexual harassment, including unwanted sexual propositions and unwanted physical contact. In September 1997, the district court dismissed their complaint, accepting the employer's argument that any harassment targeted toward them was not "because of sex" because it was targeted equally at both of them. In seeking reconsideration of this ruling, the Holmans pointed to several 7th Circuit and district court opinions with dicta suggesting that the "equal opportunity harasser" might not be insulated from Title VII liability. Based on an initial reading of these cases, Judge Lee decided to undertake a formal reconsideration of his decision. However, after reviewing all the post-_Oncale_ cases and taking into account the Supreme Court's action of vacating the 7th Circuit's decision in _Doe v. City of Belleville_, 118 S.Ct. 1183 (1998), for reconsideration in light of _Oncale_, Lee concluded that the Court has rendered the "because of sex" element central to the question whether particular harassment attributable to the employer is actionable. Consequently, Lee reiterated the earlier dismissal decision, but not without recognizing the anomaly this leaves in sexual harassment law. "Often the court is placed in the position of being the mediator between the reality of legal doctrine and the dictates of common sense," wrote Lee. "The court cannot deny that this is such a case. Certainly, the court is cognizant that to decide as it does creates an anomalous result in sexual harassment jurisprudence which leads to the questionable result that a supervisor who harasses either a man or a woman can be liable but a supervisor who harasses both cannot be. While the court finds that the equal opportunity harasser escapes liability in the current case, it is not condoning the existence of such conduct in the workplace." Quoting Justice Scalia's comment in the _Oncale_ opinion that Title VII is not a "general civility code for the American workplace," Lee concludes: "As such, it does not prohibit all verbal or physical harassment." A.S.L. Michigan Supreme Court Finds Unmarried Cohabitants Protected From Housing Discrimination Reversing two intermediate appellate decisions, the Michigan Supreme Court ruled Dec. 22 that a statutory ban on marital status discrimination applies to the refusal of a landlord to rent a residence to unmarried cohabitants. _McCready v. Hoffius_, 1998 WL 889388. Taking on a much-litigated issue around the country, a majority of the court rejected an attempt to characterize unmarried cohabitation as conduct rather than a protected status, and also rejected the landlord's claim to a religious exemption from compliance with the civil rights law. Two sets of plaintiffs were rejected as potential tenants by the same landlords, who asserted that their religious objections to unmarried cohabitation privileged them to reserve their rentals for married couples or single individuals living alone. The plaintiffs complained to a municipal civil rights agency, which then sent "testers" to apply for the apartments and found that the landlords consistently refused to show the apartments to unmarried cohabitants. However, the resulting lawsuits were unsuccessful in the lower courts, as the trial and intermediate appellate judges found that discrimination against unmarried couples did not violate the ban on marital status discrimination because it was based on conduct rather than purely on status. In an opinion for the court, Justice Kelly rejected this reasoning, citing decisions from the highest courts of Alaska and Massachusetts, and quoting a dissenting opinion from Wisconsin to the effect that this reasoning defies "legal examination and legislative resolve alike." The court also rejected the contention that the legislature could not have intended to protect unmarried cohabitants since there remains a Michigan law making criminal "lewd and lascivious behavior" by unmarried persons. The court pointed out that this statute had not been successfully used to prosecute unmarried cohabitants for more than sixty years. Turning the religious objections to application of the statute, the court found that the anti-discrimination law is a law of general application imposing an incidental burden on religious practice by the landlord. As such, it fails to raise any significant issue under the First Amendment, as construed by the U.S. Supreme Court. Turning to the Michigan constitution's protection for religious free exercise, under which the state must show a compelling interest for any policy that burdens religious practice, Justice Kelly found that the legislature's decision to ban marital status discrimination in housing evinced a legislature determination that "the need for housing is so fundamental as to necessitate the passing of the Civil Rights Act. . . The state's need to provide equal access to such a fundamental need as housing outweighs defendants' religious beliefs that they should not rent to an unmarried couple." The court opined that the law does not require the defendants to "violate their sincerely held religious beliefs," but "requires only that, if they wish to participate in the real estate market by offering housing for rent, they must comply with the Civil Rights Act. The burden placed on the defendants' religious beliefs affects their commercial activities sooner than their beliefs." Two members of the court dissented in separate opinions, arguing that the court should leave to the legislature the job of clearing up the possible application of the marital status discrimination ban to housing discrimination against unmarried cohabitants, and protesting the implication that the lewd and lascivious conduct statute is a dead letter where unmarried cohabitants are concerned. A.S.L. Washington Appeals Court Upholds Conviction for Anti-Gay Harassment On Dec. 7, the Court of Appeals of Washington affirmed the juvenile court conviction of David Harrison for malicious harassment on the basis of sexual orientation. _State v. Harrison_, 1998 WL 848046. Harrison was charged with a violation of RCA 9A.36.080(1)(c). Under the statute, a person is guilty of malicious harassment if he or she maliciously and intentionally threatens a specific person or places that person in reasonable fear of harm because of his or her perception of the victim's sexual orientation. The conviction arose from an incident in Bobby Morris Park in Seattle in December 1997. Ara Tripp, a transvestite, was in the park dressed in women's clothing. While walking through the park, Tripp came across four or five individuals sitting on a bench and a second group of four individuals standing further down the path. As Tripp approached, one of the people on the bench yelled "Fag alert" and others started yelling derogatory comments directed at Tripp. The people on the path blocked Tripp's way and the group from the bench came up from behind and stood shoulder to shoulder around Tripp and continued to yell threats and derogatory remarks. After Tripp turned to walk away from the group, someone picked up gravel from the path and threw it at Tripp. Tripp was struck by gravel no less than three times before he got away. Tripp immediately found a parking enforcement officer who contacted the police, who arrived within a few minutes. The police apprehended six individuals, including Harrison, who were positively identified by Tripp as those who had threatened her on the path. After a bench trial, the trial court concluded that the State proved beyond a reasonable doubt that Harrison, together with others, intentionally and maliciously and on the basis of his perception of Harrison's sexual orientation, placed Tripp in reasonable fear of harm. Harrison challenged the conviction for insufficient evidence. The Court of Appeals disagreed, finding that Harrison had joined a group of eight or nine individuals who verbally threatened Tripp and made derogatory comments associated with sexual orientation including fag, dyke, queer and pussy, and physically threatened Tripp by standing shoulder to shoulder and blocking her path. The court accordingly affirmed the conviction. _Todd V. Lamb_ Sailor Wins A Second Shot at Review of Discharge Jim Turner, a Naval tactical air controller with an excellent performance record who was drummed out of the service four years ago on dubious charges of homosexual solicitation, has won an initial victory in attempting to get the Navy to reconsider his "less than honorable" discharge. On Dec. 23, U.S. District Judge Paul L. Friedman ruled in _Turner v. U.S. Navy_, Civ. Act. No. 97- 1653 (D.D.C.), that Turner is entitled to an explanation from the office of the Secretary of the Navy as to why it rejected a recommendation by the Board for the Correction of Naval Records that his discharge be overturned. While Turner was serving on the U.S.S. Antietem in April 1994, another sailor accused him of offering to pay for oral sex. This accusation led to an investigation in which two other sailors made solicitation charges against Turner. The ship's commander directed the Chief Petty Officer to interrogate the sailors involved, after which the CPO recommended nonjudicial punishment and discharge. The captain then convened a proceeding at which Turner's accusers repeated their accusations while Turner, on advice of a lawyer, kept silent. The captain demoted Turner, docked him two months pay, and turned him over to a discharge board, which heard from all the accusers and from Turner, who denied all the accusations. The discharge board recommended a less than honorable discharge. Turner appealed to the Board for Correction of Naval Records, which voted 2-1 to recommend reversing the discharge. The Board found serious credibility problems with the witnesses, and found it "extremely disturbing that an individual can be found guilty and labeled a homosexual without a modicum of corroborative evidence." One member of the Board dissented, contending that the captain had made a reasonable determination and there was sufficient evidence to support the discharge board's findings. The Board's recommendation went to Principal Deputy Assistant Secretary of the Navy Karen S. Heath for review. She rejected the recommendation without explanation, and approved Turner's discharge. Turner then complained to two U.S. Senators, one of whom requested an explanation from the Navy, but a Naval bureaucrat merely sent the senator a letter stating that the case had been reviewed and the decision would not be changed. Turner sued the Navy, contending that his constitutional rights had been violated and, additionally, that the Navy had violated statutory procedural safeguards as well. All parties moved the court for judgment as a matter of law. Deciding to hold the constitutional issues in abeyance for now, Judge Friedman made two important holdings. First, he found that the Pentagon's Directive 1332.14, which establishes procedures for implementing the "don't ask, don't tell" anti-gay military policy, is not a binding regulation, and consequently a court cannot overturn a discharge because the Navy has failed to follow the directive in any particular case. On the other hand, he found that a discharged sailor is entitled to judicial review of the procedural regularity of his discharge, and that such review is rendered virtually impossible when at some stage in the proceeding no reason whatsoever is given for a crucial decision. In this case, Turner was entitled to a serious review of any non-frivolous claim he might raised about the proceeding by which he was discharged. Turner raised a variety of allegations about the trustworthiness of his accusers, and the motivations they might have had for testifying against him. All of his arguments were apparently rejected by the Secretary's office when it refused to follow the Board's recommendation to overturn the discharge, but because the Secretary's office gave no written explanation for its decision, the court was unable to determine whether Turner's procedural rights had been respected. In vacating the decision, Friedman characterized the Secretary's action as a "rubber stamp" of the discharge board. Consequently, Judge Friedman granted Turner's motion to have his discharge vacated and the case sent back to the Navy for a serious review, with explanation, of the Board's recommendation against his discharge. C. Dixon Osborne, Co-Executive Director of the Servicemembers Legal Defense Network, observed that this is the second time in 1998 that a federal court has overturned a Naval discharge decision under the "don't ask, don't tell" policy, recalling the victory last spring of Tim McVeigh, who was drummed out because of gay-related comments in his anonymous America On-Line computer profile. Turner's attorney, Allan Moore, described the decision as a "big victory," but said that "the test will be whether the Navy fulfills that command in the `second chance' that the court has now given it or risks the court's ire and further litigation by trying to dress up and rubber stamp the same result in more palatable clothing." A.S.L.] Armed Forces Appeal Court Upholds Discharge for Gay Sex In _U.S. v. Nadel_, 48 M.J. 485, 1998 WL 830627 (U.S. Ct. App. For Armed Forces, Sept. 14), the court affirmed the conviction of Marine Sargent Robert Nadel on two specifications (i.e., counts) of indecent assault and one of indecent exposure. Nadel argued on appeal that the specifications should have been dismissed as improperly filed because they were the result of an investigation undertaken by the Department of Defense (DoD) Criminal Investigation Division (CID) and not on referral by Nadel's commanding officer. The court rejected this argument because the relevant instructions (i.e., guidelines) were issued as "a matter of investigative priorities and resource limitations" and not to create substantive rights. These instructions were part of DoD Instruction 5505.8 (commonly known as "Don't Ask, Don't Tell") The record reflects that Nadel was stationed in Okinawa when he invited Lance Corporal (L.Cpl.) Timperio out to a beach. He began to massage Timperio's shoulders, then under his shirt, and then grabbed Timperio's groin. Timperio resisted, so Nadel desisted, exposed himself and masturbated. Timperio mentioned the incident to members of his unit, and eventually, it was referred to CID, which had previously undertaken an investigation concerning another incident involving Nadel under more ambiguous circumstances. In that case, Nadel had invited L.Cpl. Keeley back to his room for a massage on repeated occasions. Keeley refused, suspecting this to be a homosexual advance, and reported it to his superiors. Keeley was a member of a different unit from Nadel, and it was unclear whether the "commanding officer" referred to under the regulations had to be from Nadel's own unit or from another. The court ruled in this case that, under the circumstances, there was sufficient credible information to warrant referral otherwise. This case was distinguished from others such as _McVeigh v. Cohen_, 983 F.Supp. 215 (D.D.C. 1998) (where the accused officer was threatened with administrative discharge based on America Online email transmissions), because this case involved criminal charges predicated on nonconsensual acts. Nadel's sentence of bad-conduct discharge, 35 days' confinement, forfeiture of two months' pay and reduction of grade were affirmed. _Steven Kolodny_ U.S. Magistrates Issues Bizarre Ruling on Gay Equal Protection Claim A prisoner who claims that he suffered discrimination because he was perceived to be gay suffered a setback when a federal magistrate misconstrued the law to require that a plaintiff complaining of sexual orientation discrimination must identify himself as gay. _Lewis v. Cook County Department of Corrections_, 1998 WL 879101 (N.D.Ill. Dec. 15). David Lewis, an inmate at the Cook County Department of Corrections, filed a grievance against Officer Germany, a corrections officer, on May 1, 1996, regarding an issue that arose "out of an occasion when Plaintiff was permitted to clean the law library unsupervised." In the instant case, Lewis alleges that he suffered retaliation for filing the grievance. Also, subsequent to this event, several corrections officers observed a visible red mark on Lewis's neck, questioned him about it, and called for a doctor to examine it. The doctor said it was a "hickey," which Lewis denies. Nonetheless, Lieutenant Dougherty then asked Lewis whether he had been attacked or was a homosexual. Lewis responded negatively, saying it was just a pimple. He now claims that his subsequent removal from his library work assignment violated his rights to law library access, and was discriminatory based on his perceived sexual orientation. The defendants moved to dismiss. Magistrate Denlow found no allegations that Lewis was the victim of any sort of official policy of retaliation or discrimination, and so dismissed the complaint as to the Corrections Department and the complaints against the individual named defendants in their official capacities. However, Denlow decided that the retaliation complaint could proceed against the officials in their personal capacities. However, Denlow reached a startling conclusion in dealing with Lewis's equal protection claim. According to Denlow, in _Nabozny v. Podlesny_, 92 F.3d 446 (7th Cir. 1996), a case in which the 7th Circuit recognized an equal protection claim for anti-gay discrimination brought by a gay high school student, the law requires a sexual orientation discrimination plaintiff to identify himself as homosexual in order to state a legal claim. Wrote Denlow: "Plaintiff's pleadings show that he was treated differently, and the motivation for that differential treatment was the hickey on his neck. Plaintiff has not alleged that he is a homosexual. Thus, it remains for Plaintiff to allege that he is a member of an identifiable minority, in other words, that he is a homosexual. Plaintiff's claim for equal protection is denied and he is given thirty-five days to amend his complaint to include a statement regarding possible homosexual orientation if he wishes to bring an equal protection claim." One suspects that Lewis, who is proceeding pro se, was at the disadvantage of not realizing he could state a valid equal protection claim by alleging that he was discriminated against because the officials perceived him to be gay. Either that, or Magistrate Denlow miscomprehends the nature of an equal protection claim, which focuses on the motivation for the defendant's conduct rather than the actual status of the plaintiff. A.S.L. Texas Sodomy Challenge Advances to Appellate State The new Texas sodomy case was launched to the appellate level on Dec. 22 when John Lawrence and Tyrone Garner entered no contest pleas before Harris County (Houston) Judge Sherman A. Ross, who had denied defense motions to quash the charges against the men on constitutional grounds. _State v. Lawrence & Garner_. Lawrence and Garner were arrested and held briefly in jail when a police officer, investigating a false report of a man with a gun, entered their unlocked apartment and apprehended the men having sex. Texas law makes consensual same-sex activity a misdemeanor, and the local prosecutor said he had no discretion under the circumstances to refuse to prosecute. Lawrence and Garner are represented by Lambda Legal Defense Fund staff attorney Suzanne Goldberg and local counsel Mitchell Katine and David Jones. They will appeal to the intermediate appellate courts, in hopes of eventually bringing the case to the Texas Court of Criminal Appeals, the highest court for criminal cases. Previous recent challenges to the Texas sodomy law were successful at the intermediate appellate level, but then fell apart for jurisdictional reasons at the Supreme Court level. This case presents the ideal opportunity to challenge the law before the appropriate state high court. _Houston Chronicle_, Dec. 23. A.S.L. Additional Facts Reopen Question of Warden's Liability for Inmate's Rape The U.S. District Court for the District of Connecticut, citing material issues of fact, denied the renewed summary judgement motion on qualified immunity claims of defendant prison officials accused of deliberate indifference in failing to protect an inmate from an alleged sexual assault in violation of his Eighth and Fourteenth Amendment rights. _James v. Tilghman_, 1998 WL 849393 (D.Conn., Nov. 5). Plaintiff Bobby James alleged sexual assault on October 14, 1991 by his cellmate, Theodore Drakeford. In December, James sued Tilghman, then Warden of the Connecticut Correctional Institute at Somers, and Assistant Wardens Dion and Tozier. In March, 1997, Magistrate Judge Margolis granted defendants' motion for summary judgement, ruling "to be held liable, defendants must have: (1) known that Drakeford posed a substantial risk of serious harm and, (2) disregarded that risk by failing to take reasonable measures to abate it." The ruling found that in August, 1990, Inmate Y claimed that Drakeford had slapped him because Y refused to perform sexual favors for Drakeford. A correctional officer investigated and supposedly found Y's claim to be true. The prison Classification Committee found Drakeford a "threat to the safety and security of the institutional community," and placed him in temporary administrative segregation. In March 1991, Inmate Z alleged that Drakeford raped him. Again, the committee recommended, and Tilghman approved, Drakeford's placement in administrative segregation. One month later, Tilghman again released Drakeford from segregation and sent a Memorandum to the Assistant Deputy Commissioner stating that a doctor's examination of Inmate Z showed no evidence of rape, but that Z still insisted that he had been raped. According to Dion, Tilghman had ordered Drakeford's release from Administrative Segregation due to "a facility emergency requiring immediate additional maximum security cells." Judge Margolis concluded that "defendants made an informed decision that Drakeford posed no risk and there is no evidence that defendants failed to adequately assess the potential risk of harm to Bobby James." Subsequently, in 1997, James' counsel, through a Freedom of Information Act request, obtained an Incident Report "which had not been disclosed to plaintiff's counsel through the discovery process." Dated November 1990, the report was of a rape committed by Drakeford on Inmate X which Drakeford tape-recorded, played back to X, and threatened to play to other inmates if X did not furnish future sexual favors. The writer, a corrections captain who'd already heard about Drakeford, "recommend[ed] another special hearing to get Drakeford out of the general population" and a search of his property to find the tape confirming X's statement. Dion reviewed and signed the report and noted that "ordinary policy and practice would be to forward the [] report to the Warden." Tilghman, however, swore that he had no knowledge of the report; and no hearing was held. Judge Margolis cited the disclosure of Inmate X's accusations as raising material issues of fact as to Tilghman and Dion's claim of qualified immunity, and altered his prior ruling by denying their Renewed Motion for Summary Judgment. _Mark Major_ Litigation Notes Massachusetts Attorney General Scott Harshbarger's office got a preliminary injunction on Dec. 23 against a seventeen year old youth in Easton, Mass., forbidding him from threatening, assaulting, or intimidating anyone because of their sexual orientation. the youth allegedly attacked three teenagers he perceived to be gay in Boston on Nov. 7. _Boston Globe_, Dec. 25. In _State v. Milburn_, 1998 WL 847074 (Dec. 7), the Supreme Court of Appeals of West Virginia upheld the first degree murder conviction and life sentence of Barbara Jean Milburn in the death of her former lover, Judy Jenkins. According to newspaper accounts of the case, Milburn and her adopted son shot Jenkins when Jenkins started dating a married man. Milburn raised a variety of objections to the police investigation and trial court procedures, none of which were accepted by the court. _Charleston Gazette_, Dec. 10. Gay & Lesbian Advocates & Defenders has obtained a probable cause ruling from the Massachusetts Commission Against Discrimination against New England Medical Center and Dr. Richard Reindollar, who refused to provide reproductive health services to Robert Carr, a gay Bostonian who wanted to use the Center's services to provide sperm for donation to the woman who had agreed to bear a child for him. GLAD attorneys Bennett Klein and Mary Bonauto, and cooperating attorney Susan Wilson, represent Carr before the Commission. _GLAD Press Release_, Dec. 8; _Boston Herald_, Dec. 11. Suffolk County, Massachusetts, Superior Court Judge Charles Grabau decided Dec. 11 that the domestic partnership benefits program created by Boston Mayor Thomas Menino by executive order is preempted by state insurance law, but immediately reported the case for decision to the court of appeals, thus allowing the benefits program to continue as the litigation continues. Grabau also granted a motion by Gay & Lesbian Advocates & Defenders to join the case as representative of the interests of an employee and her partner who are receiving benefits under the Executive Order, thus ensuring that defense of the order will not be left solely in the hands of the city government's attorneys. _GLAD Press Release, Dec. 11_. Prosecutors announced Dec. 28 that they will seek the death penalty against Aaron James McKinney and Russell Arthur Henderson, who are accused of having murdered Matthew Shepard in October. Henderson's trial will begin on March 22, and McKinney's on August 9. Henderson's girlfriend, Chastity Vera Pasley, pled guilty to an accessory charge; McKinney's girlfriend, Kristen LeAnn Price, will stand trial on an accessory charge in May. Press reports of statements made by the defendants to police indicate that Shepard's gay sexual orientation was a factor in the crime. _Associated Press_, Dec. 28. Shepard's family has established the Matthew Shepard Memorial Foundation, to undertake educational activities to combat anti-gay violence. Donations to the fund can be directed to the First National Bank of Wyoming, 2020 Grand Ave., Laramie, WY 82070. _Denver Rocky Mountain News_, Dec. 14. A.S.L. Ruling from the bench on Dec. 17, California Superior Court Judge Thomas P. Anderle dismissed the case of _Jacks v. City of Santa Barbara_, No. 224122 (Santa Barbara County Super. Ct.), in which a local right-wing activist had challenged the city's authority to provide domestic partnership benefits to the partners of city employees. Lambda Legal Defense Fund filed an amicus brief in the case on behalf of the city workers whose benefits were being challenged. _Lambda Press Release_, Dec. 23. Lambda Legal Defense Fund has filed an appeal on behalf of high school teacher Dawn Murray against Oceanside Unified School District, alleging that the district refused to address anti-gay harassment Murray has suffered due to rumors about her sexuality. A trial judge had dismissed Murray's case. Lambda hopes that the appeal, filed Dec. 22 in the California 4th District Court of Appeal, will help to expand protection against sexual orientation discrimination under California's Labor Code by establishing that anti-gay workplace harassment is included in the range of anti- discrimination protection under the law. In another case that received media attention late in December, Bakersfield High School teacher James Merrick has filed a discrimination complaint with the California Labor Department, asserting that his school has engaged in sexual orientation discrimination by allowing parents to transfer their children out of his eighth-grade science classes solely because of his sexual orientation. _L.A. Times_, Dec. 30. Here's a strange sexual harassment claim. Earl Harris, allegedly heterosexual, was assigned as a temporary worker to the New York City Health Department's Office of Gay and Lesbian Health. The Office walls are allegedly decorated with illustrations of gay people, some unclad, some apparently engaged in romantic activity. Harris complained about this, finding the environment uncomfortable, and claims he was discharged for complaining. Harris has filed suit against the city in federal district court, claiming that the Office provides a hostile work environment. His attorney claims this is just like cases filed by women who have complained about pictures of naked women posted in the workplace. Harris's suit seeks to have the pictures removed from the office, back pay, damages and legal fees. _New York Post_, Dec. 30. The Nebo, Utah, School District has announced it will not appeal the decision in _Weaver v. Nebo School District_, No. 2:97-CV-819J (U.S.Dist.Ct., C.D. Utah, Nov. 25, 1998), which held that the District violated the constitutional rights of lesbian volleyball coach Wendy Weaver when she was instructed not to speak about her sexuality publicly and was denied reappointment to coach the high school team. To comply with the court order, the District will rescind its gag order, remove certain letters from Weaver's file, pay her the $1500 she would have been paid had she coached the team in the year in question, and appoint her to coach for the 1999-2000 school year. However, Weaver is not entirely home free, as a right wing local citizen's group has filed a lawsuit against the state seeking revocation of Weaver's teaching license on grounds of moral unfitness. _Salt Lake Tribune_, Dec. 23. Update on the same-sex marriage litigation in Hawaii: The state has filed its brief with the Hawaii Supreme Court, arguing that the court must vacate Circuit Judge Kevin Chang's 1996 decision because of the vote in November to amend the state constitution. The brief, by former Reagan Administration Legal Counsel Charles Cooper, argues that a law passed by the Hawaii legislature in 1994 in response to the Supreme Court's first decision in the case will now take effect by virtue of the 1998 amendment, which confers upon the legislature exclusive authority to determine whether same-sex couples may marry. The 1994 law declared that Hawaii would only authorize marriages between persons of the opposite sex. A.S.L. Legislative Notes The Toledo, Ohio, City Council unanimously passed a measure banning sexual orientation discrimination in the city on Dec. 8. _Cleveland Plain Dealer_, Dec. 10. On Dec. 15, the DeKalb, Illinois, city council amended its human rights ordinance to add sexual orientation to the list of prohibited bases for discrimination, adopting a broad definition that may encompass discrimination against transsexuals and transvestites based on gender identity. The Associated Press reported Dec. 24 that New York State Senate Majority Leader Joseph Bruno, heretofore a staunch opponent of hate crimes legislation, has stated that he is open to reconsidering his position. Hate crime legislation (including bias-motivated anti- gay crimes) has passed the New York Assembly several times but has been bottled up in committee by the Republican-controlled Senate. Republican New York Governor George Pataki is a proponent of the legislation, as is soon-to-retire U.S. Senator Alfonse D'Amato. The Columbus, Ohio, City Council unanimously approved a bill to provide health insurance benefits to domestic partners of the city's municipal employees. The bill covers both same-sex and opposite-sex unmarried partners. Domestic partners are defined as persons having a single, dedicated relationship sharing a permanent residence, both individuals at least 18 years old and not related by blood, mentally competent to contract and financially interdependent. _Columbus Dispatch_, Dec. 15. Psychiatrists Finally Condemn Reparative Therapy Reacting to last summer's vicious anti-gay advertising campaign sponsored by right wing groups, the governing board of the American Psychiatric Association has finally adopted a policy condemning the practice of attempting to alter sexual orientation through psychotherapy. Although the APA officially abandoned its position that homosexuality was a mental illness more than a quarter century ago, it has been a slow struggle within the Association to get organized psychiatry not only to abandon the position that unhappy homosexuals should be provided with therapy to make them straight but officially to condemn the practice. Dr. Nada Stotland, head of the APA's joint committee on public affairs, stated at APA board's quarterly meeting in Denver on Dec. 11 that there is "no evidence" that sexual orientation can be changed by therapy. _Los Angeles Times_, Dec. 12. Besides the symbolic significance of the APA taking this position, there is potential legal significance. Henceforth, it should be possible for individual gay people who are forced into "conversion therapy" to bring malpractice suits against the therapists and to seek revocation of their licenses to practice, on the ground that the professional standard of practice for psychiatrists rejects conversion therapy. A.S.L. International Notes The French National Assembly gave approval to the Civil Solidarity Pact legislation on Dec. 9 by a 316-249 vote. The bill will allow cohabitants, regardless of gender, to enter into a civil solidarity pact that will afford many of the legal rights of marriage, and has sparked furious debates in the Assembly and the press. The bill will be debated in the Senate in March 1999. _Reuters_, Dec. 9. Reuters reported Dec. 11 that the Dutch government has proposed a new law allowing same-sex couples to enter into civil marriages, and that existing registered partnerships by same-sex couples could be converted to marriages. Parliamentary approval is required before the law can take effect, but since the Netherlands has a parliamentary system under which the government represents a coalition with a substantial majority in the legislature, approval seems quite likely. The New Zealand government announced that in order to comply with the Human Rights Act, which prohibits sexual orientation discrimination, it is amending its immigration policies to end discrimination against same-sex couples who wish to settle in New Zealand. The major difference will be that same-sex couples, in common with heterosexual couples in de facto marriages, will have to show that their relationship has lasted at least 2 years to be admitted as a couple. Under current policy, same-sex couples must demonstrate a 4 year relationship. _The Dominion_, Dec. 23. The United Kingdom's policy against military service by openly gay and lesbian people may have suffered a serious setback on Dec. 9 when an industrial tribunal in Croydon, South London, refused to dismiss a sexual harassment claim against the Ministry of Defense by 70 gay men and lesbians who claim that the investigatory process to which they were subjected prior to their discharge was actionable. According to a report in the _Daily Mail_ on Dec. 10, if the Defense Ministry loses the case, scheduled to be tried in March, it could face a court order barring questioning military personnel about their sexual orientation or practices, which would put a decided crimp in the enforcement of the ban. In England, Mr. Justice Hidden ruled at London's High Court that a decision by the North West Lancashire Health Authority to refuse to pay for sex reassignment surgery for three transsexuals was "unlawful and irrational" and had overlooked what was "the proper treatment of a recognized illness." _Birmingham Post_, Dec. 22. A last holdout, the Australian state of Tasmania has finally voted to adopt civil rights legislation banning sexual orientation discrimination and incitement to hatred on the grounds of sexual orientation. (All other Australian provinces have some form of sexual orientation discrimination legislation.) In a Media Release transmitted via email on Dec. 9, the Tasmanian Gay and Lesbian Rights Group claimed that Tasmania's new legislation is the broadest in scope of any such Australian law. In Canada, the British Columbia Court of Appeals has ruled that Trinity Western University's decision to maintain a Christian morality code for its students, which includes abstention from permarital sex or any homosexual conduct, does not disqualify the school from official accreditation for an educational-degree program. The province's College of Teachers, the accrediting agency, had refused to accredit the school, claiming that the code violated the province's human rights code, which prohibits discrimination based on sexual orientation. _Toronto Globe and Mail_, Dec. 31. A gay Canadian couple, Michael Hendricks and Rene Leboeuf, has filed a discrimination complaint with the Quebec Human Rights Commission, protesting the refusal of Montreal authorities to issue them a marriage license. _Montreal Gazette_, Dec. 17. A.S.L. Professional Notes The ACLU has announced the hiring of a new staff attorney, Leslie Cooper, who is joining the Lesbian & Gay Rights Project and AIDS Project in the national office in New York. Cooper was formerly a litigation associate at Robinson Silverman Pearce Aronsohn & Berman in New York City, and has been a cooperating attorney for Lambda Legal Defense and a student intern at the ACLU. North Carolina has gained its first openly-gay judge, as Superior Court Judge Ray Warren came out shortly after losing an election to the Court of Appeals. Warren, who characterizes himself as a conservative Republican, told the press that he had only recently come to terms with his sexual orientation. He told his wife in July and the couple separated in September. The Executive Director of the North Carolina Republican Party, Lee Currie, protested that Warren had misled the party. "Ray Warren stood before the Republican Party Executive Committee on July 25th and professed to be a born again Christian," huffed Currie. "We trusted him. He has betrayed that trust." Warren stated that he realizes his future chances of elective office in the state are dim, in light of the local Republican Party's stand on gay issues. Warren, who served as a state legislator before becoming a judge, has four years left to serve on his superior court term. _Greensboro News & Record_, _Raleigh News & Observer_, Dec. 10. The Oregon State Bar has elected openly-gay attorney Mark A. Johnson to be the president of its board of governors. The State Bar is the regulatory agency that controls lawyer admissions, discipline, and CLE for the state of Oregon. Johnson is reportedly the first openly-gay person to serve as the head of any state bar association. _Oregonian_, Dec. 17. New York State Attorney General-Elect Eliot L. Spitzer announced in an interview with the _New York Law Journal_ (Dec. 10) that he would restore an executive order banning sexual orientation discrimination in the New York State Law Department. The order had been revoked by his predecessor, Dennis Vacco, who thereafter discharged most of the openly lesbian or gay attorneys in the office. (Vacco subsequently stated that he would not discriminate on the basis of sexual orientation, but he declined to reinstate the executive order, purportedly because the state's Human Rights Law does not cover sexual orientation discrimination.) The Association of American Law Schools Section on Gay and Lesbian Legal Issues will co-sponsor a program on Gay Rights in the 21st Century at the Association's Annual Meeting in New Orleans. The Section will also present a special program on the continuing difficulties posed by the Solomon Amendment, a federal law that precludes federal funds for any institution that bars military recruitment. The Society of American Law Teachers is also devoting its annual study group meeting at the AALS Meeting to the Solomon Amendment Issue. U.S. Rep. Barney Frank (D.-Mass.) will participate in the programs on the Solomon Amendment. A.S.L. Dr. M.L. "Hank" Henry, Jr., Fund for Judicial Internships A $3,000 stipend will be awarded to a qualified law student to support a 10-week summer judicial internship in New York City under the auspices of the Lesbian and Gay Law Association Foundation of Greater New York (LeGaL Foundation). The program will be designed to give the intern exposure to a variety of courts or tribunals. The Fund for Judicial Internships was established in memory of Dr. Henry, whose ground breaking work encouraged openly lesbian and gay lawyers to seek and achieve judicial office in New York City. The internship is intended for students with a demonstrated interest in, and commitment to, lesbian and gay rights. The Hank Henry, Jr., Fund values diversity. All interested students are encouraged to apply. Applicants for the 1999 summer internship should provide the following information in a letter to the LeGaL Foundation, 799 Broadway, Suite 340, New York, N.Y. 10003. The letter must be received no later than February 15, 1999. The Selection Committee will communicate its selection by March 15, 1999. A personal interview may be required: 1. Law School and anticipated graduation date; 2. Law School grades and class rank (if available), any academic honors earned, extra-curricular and co-curricular activities; 3. Undergraduate and/or other graduate degrees earned, specifying academic institution, major field of study, and extra-curricular and co-curricular activities; 4. Community activities or affiliations or other activities indicating public service; 5. Statement of interest which shall be no longer than 500 words; 6. Names, addresses and telephone numbers of two references who are familiar with the applicant's character and qualifications. Questions concerning the application process or the specifics of the internship program can be directed to the LeGaL Foundation office (212-353-9118). _Daniel R Schaffer_ AIDS & RELATED LEGAL NOTES 1st Circuit Reaffirms Summary Judgement for Sidney Abbott In an important victory for the rights of people infected with HIV, the U.S. Court of Appeals for the First Circuit ruled December 29 that Maine dentist Randon Bragdon unlawfully discriminated against Sidney Abbott, an asymptomatic HIV+ patient, by refusing to fill her cavity in his dental office. _Abbott v. Bragdon_, 1998 WL 887125. The court was reconsidering the case on remand from the Supreme Court's historic June 25 ruling in this case holding that holding that people with asymptomatic HIV-infection are covered under the Americans With Disabilities Act. See _Bragdon v. Abbott_, 118 S.Ct. 2196 (U.S. 1998). The case arose in 1994 when Abbott went to Bragdon's dental office in Bangor, Maine, to have a cavity filled. When Bragdon learned that she was HIV+, he refused to fill the cavity in his office, offering instead to arrange to do so in a hospital setting. Bragdon stated that he was concerned about the risk of infecting himself while working on Ms. Abbott's cavity. Abbott got another dentist to fill the cavity and sued Bragdon for unlawful discrimination under the Americans with Disabilities Act and the Maine Human Rights Act. The federal district judge in Maine granted summary judgment to Abbott, finding that she met the definition of a person with a disability under the ADA, and that filling the cavity in her office would not present a significant risk of infection to Bragdon, his staff or his other patients. The 1st Circuit affirmed, and the Supreme Court granted Bragdon's cert petition. In its first-ever decision in an AIDS discrimination dispute, the Court ruled in June 1998 that Abbott, a person with asymptomatic HIV infection, has a "disability" within the meaning of the ADA. However, the Court expressed reservations about the lower courts' consideration of the evidence on the degree of risk a dentist would face in filling a cavity for an HIV-positive person. The ADA provides an affirmative defense for cases in which the disability creates a significant risk of harm to others. In its earlier decision, the 1st Circuit had relied heavily on two documents to conclude that as of 1994 a reasonable dentist would not believe that filling Abbott's cavity in his office presented a significant risk. First, the U.S. Centers for Disease Control had issued guidelines stating that it would be safe to provide dental care to people with HIV if universal precautions were observed. Second, the American Dental Association had issued a policy statement contending that it was safe for dentists to care for people with HIV. The Supreme Court questioned whether the CDC Guidelines had adequately addressed the issue of significant risk, and whether the ADA Policy was inspired more by ethical concerns than scientific evidence, and sent the case back to the First Circuit for further consideration. The 1st Circuit made short work of the case, hearing new arguments from the parties on Dec. 9 and issuing its decision just three weeks later. Writing for a unanimous panel, Judge Selya found that the CDC Guidelines in effect in 1994 were a continuation of a series of CDC pronouncements on this issue, all advising that dentists could safely treat patients if they used universal precautions against blood-borne agents. And Selya found that the American Dental Association Policy was the work of a scientific panel, not the professional ethics board, which is a separate Association entity that did not play a role in the formulation of this policy. Selya also found that Bragdon had failed to provide any evidence that would give a reasonable basis for him to have doubted the safety of the procedures he was being asked to perform. While it is possible that Bragdon will once again seek Supreme Court review, there seems little likelihood that the Court would want to take another look at this case in light of the careful findings spelled out in Selya's opinion. Bennett H. Klein, an AIDS law specialist at Boston's Gay and Lesbian Advocates & Defenders, has represented Sidney Abbott throughout the case, including arguing the case at the Supreme Court and before the First Circuit. A.S.L. Illinois Supreme Court Adopts Actual Exposure Standard for AIDS Phobia Cases Citing lack of evidence of actual exposure to the HIV virus, the Supreme Court of Illinois denied recovery for fear of AIDS in two cases decided together, _Majca v. Beekil_ and _Doe v. Northwestern University_, 710 N.E.2d 1084 (Oct. 1, 1998). In the first case, Eileen Majca, a medical office worker, whose duties included scheduling appointments, cleaning the office, and emptying wastebaskets, pressed down into a basket filled with trash and cut her hand on a blood-stained scalpel. Dr. Lacher, whose wastebasket Majca had been emptying and who had used the scalpel in connection with one of two patients he had seen the day before the accident, was not present. Majca immediately went to a hospital emergency room, where she received 6 stitches to close the wound and was given an HIV test. She then returned to the office and discarded the trash, including the scalpel. The HIV test later proved negative, as did 2 subsequent tests, respectively taken 3 and 9 months later. Dr. Lacher did not return for a few months and during the period of his absence Majca came to believe that Lacher had an AIDS-related illness. The standard procedure in the office for disposing of scalpels was to deposit them in a red "sharps" container. When Dr. Lacher did return, Majca did not question him regarding the presence of the scalpel in the wastebasket. Eight months later the doctor died of AIDS-related illness. Majca never learned the identity of the two patients nor what treatment, if any, they had received. There was no evidence that any of the substances on the scalpel, which was unavailable, was infected with HIV. Majca and her husband sued the Estate of Dr. Lacher and Dr. Beekil, who had sublet the space and made it available to Dr. Lacher, for damages resulting from her fear of contracting AIDS for the time period between the cut and her later receipt of reasonably conclusive HIV-negative test results. The trial court granted summary judgment to the doctors, holding there was no evidence of actual exposure to HIV or that Majca was likely to develop AIDS in the future. Both the intermediate appellate court and the Supreme Court of Illinois affirmed. Writing for the Court, Justice Miller held that recovery for such a claim required a showing of actual exposure to HIV; that absent proof of such exposure, a claim for fear of contracting AIDS is "too speculative" to be legally cognizable; it is "unreasonable" for a person to fear infection when that person "has not been exposed to a disease" because a person "will not develop AIDS" without having been exposed to HIV. Miller wrote that such a requirement prevents recoveries based on lack of information or inaccurate information regarding HIV transmission and is an easily usable objective standard. Miller emphatically rejected the notion that a claim for fear of AIDS may be based "solely" upon the fact that a wounding scalpel had been "wielded" by a doctor with AIDS and absent any evidence of actual HIV exposure. In dictum Miller rejected the trial court's alternative holding that Majca was not entitled to recovery because she was unlikely to develop AIDS in the future. Miller wrote that once a person is actually exposed to HIV, a genuine fear of contracting AIDS may exist during the window of anxiety, an interim period when the person exposed will "not know what the future may hold." Miller wrote further that that period ends upon receipt of þreliable HIV- negative test results. Miller further affirmed the trial court's rejection of Majca's attempt to offer a medical expert's conclusory affidavit unsupported by facts. In the second case, _Doe v. Northwestern University_, in which six dental patients similarly sued an HIV+ dental student his dental school for fear of contracting AIDS, Miller denied recovery on the same ground, holding no cause of action was stated. Miller noted the complaint contained no allegation of actual exposure to HIV and cited the following examples of possible sources of exposure that were not alleged in this case: that the doctor bled into a patient's mouth; that the doctor pricked himself with a needle later used on the patient; or other forms of such exposure to the patient. _Arthur J. Levy_ 1982 Case of Transfusion AIDS Dismissed in Texas The Texas Court of Appeals affirmed the grant of summary judgment against a plaintiff who sued her doctor for negligence related to an HIV-tainted blood transfusion she received in 1982. _Fox v. Estrada_, 1998 WL 831666 (Dec 3). Carol Fox received a blood transfusion following surgery in 1982. In 1984, she gave birth to a daughter. Several years later, both mother and daughter were found to be HIV+, and this lawsuit against Dr. Estrada for medical malpractice followed. The court allowed summary judgment for the doctor on Fox's negligence claim on the ground that the injuries were not foreseeable at the time of the transfusion. The Court of Appeals agreed, reasoning that AIDS was not a foreseeable proximate result of a blood transfusion in 1982, and that the doctor could not have foreseen that the transfusion would expose Carol Fox, and her future child, to HIV. The court was not swayed by Plaintiff's argument that the Defendant should have foreseen a risk of some blood-borne disease, because the medical community did not perceive other known blood-borne illnesses to carry a great risk of mortality. _Dirk Williams_ Connecticut Transfusion Recipient Barred From Suing by Statute of Limitations Roberta Ann Sherwood, who received HIV in a blood transfusion at Danbury (Connecticut) Hospital on April 19, 1985, but did not learn that she was HIV+ until she received the result of a blood test ordered by her doctor on September 1, 1994, was barred by the statute of limitations from suing the hospital for negligence, according to a Dec. 2 decision in _Sherwood v. Danbury Hospital_, 1998 WL 867248 (Conn. Super.). According to Judge Radcliffe, Connecticut has rejected the so- called "discovery rule" recognized in some other states, where the time to file a claim is tolled until the plaintiff could or should have discovered that he or she had a legal claim. Under Connecticut law, a negligence claim must be filed within 3 years of the act of negligence. Although there is an exception for claims concerning medical care, under which the time starts to run when the course of treatment ends, Radcliffe observed that there is no evidence that Sherwood's course of treatment by the hospital extended beyond May 1985, when she was discharged following her surgery. Evidently, Sherwood's lawyer resorted to some highflown rhetoric in opposing the hospital's motion for summary judgment, for the last part of Radcliffe's opinion responds rhetorically about the role of a court as compared to a legislature. Radcliffe rejected the claim that failure to afford Sherwood a cause of action at present violates her state or federal constitutional rights. A.S.L. AIDS Law & Society Notes Another voice heard from in the insurance AIDS-cap wars: On Dec. 2, U.S. District Judge Suzanne B. Conlon ruled in _Doe v. Mutual of Omaha Insurance Company_, No. 98 C 325 (U.S.Dist.Ct., N.D.Ill.) (not officially published), that Mutual's concession that it had no actuarial basis for imposing a cap on AIDS-related claims meant that the cap violates the Americans With Disabilities Act Title III ban on discrimination in public accommodations. Mutual hopes to obtain a ruling on appeal to the 7th Circuit that the contents of insurance policies are not subject to the non-discrimination requirements of Title III. The issue has divided federal judges ever since the ADA was passed. _AIDS Policy & Law_, 13:22 (12/25/98). The Associated Press reported Dec. 6 that Brian Stewart was convicted of first-degree assault on Dec. 5 for injecting his 11- month-old son with HIV-infected blood to avoid paying child support. The St. Charles, Missouri, jury recommended a life sentence for Stewart, who will be sentenced on Jan. 8. The victim, now 7 years old, has developed AIDS. Santa Monica, California, attorney Robert Cohen reports that he has filed suit on behalf of Edward Davis, an HIV+ gay man, against Davis's former employer, attorney Shirlee Bliss, alleging harassment and discrimination on the basis of HIV status and sexual orientation. The suit also alleges that Bliss misled the unemployment insurance department by reporting Davis's departure as a quit. The _Los Angeles Times_ reported Dec. 13 that Kevin Dimmick has won a two-year battle to get the state of California to issue him a license plate for his motorcycle reading "HIV POS." U.S. District Judge Susan Illston ruled in Dimmick's favor, stating that "Disease and illness, including those that are terminal, are subjects of wide public discourse," and thus Dimmick's proposed wording has 1st Amendment significance. The Department of Motor Vehicles claimed it had the right to turn down wording that could be considered offensive. Dimmick, claiming that the state attorney general's office "conspired to obstruct justice" on this matter, says he has filed a new lawsuit against the state in federal district court in Oakland. A.S.L. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: Ator, Jennifer J., _Same-Sex Sexual Harassment After_ Oncale v. Sundowner Offshore Services, Inc._: Overcoming the History of Judicial Discrimination in Light of the "Common Sense" Standard_, 6 Am. U. J. Gender & L. 583 (Summer 1998). Chamallas, Martha, _The New Gender Panic: Reflections on Sex Scandals and the Military_, 83 Minn. L. Rev. 305 (Dec. 1998). Murphy, Arthur A., _Defending or Amending "Don't Ask, Don't Tell"_, 102 Dickinson L. Rev. 539 (Spring 1998). Young, Alison Harvison, _Reconceiving the Family: Challenging the Paradigm of the Exclusive Family_, 6 Am. U. J. Gender & L. 505 (Summer 1998). _Student Notes & Comments:_ Booth, Michele L., Shahar v. Bowers_: Is Public Opinion Transformed Into a Legitimate Government Interest When Government Acts As Employer?_, 78 Boston U. L. Rev. 1235 (Oct. 1998). Penick, Bridget R., _Give the Child a Legal Father: A Plea for Iowa to Adopt a Statute Regulating Artificial Insemination by Anonymous Donor_, 83 Iowa L. Rev. 633 (March 1998). _Specially Noted:_ A symposium on issues surrounding the legal treatment of sex offenders was published in 4 Psychology, Public Policy, and Law No. 1/2 (March/June 1998). * * * A symposium on textualism and the Constitution was published in 66 George Washington L. Rev. No. 5/6 (June/August 1998). AIDS & RELATED LEGAL ISSUES: Gostin, Lawrence O., _Tribute to Jonathan Mann: Health and Human Rights in the AIDS Pandemic_, 26 J. L. Med. & Ethics 256 (Fall 1998). Okezie, Justin Amaechi, _The Presumption of Guilt and Compulsory HIV Testing of Accused Sex Offenders: A Case Study of State Ex Rel. J.G., N.S., and J.T._, 6 Am. U. J. Gender & L. 557 (Summer 1998). Parmet, Wendy E., _The Supreme Court Confronts HIV: Reflections on_ Bragdon v. Abbott, 26 J. L. Med. & Ethics 225 (Fall 1998). 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. ^Z