Date: Sat, 1 May 1999 11:17:01 EDT From: ASLeonard@aol.com LESBIAN/GAY LAW NOTES May 1999 LeGal Foundation of the Lesbian & Gay Law Association of Greater New York Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: or Contributing Writers:Ian Chesir-Teran, Esq., New York City; Courtney Joslin, Providence, Rhode Island; 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; 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, NY Law School Student, New York City. Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212<196>353<196>9118; e-mail: LeGaL Homepage: Law Notes on Internet: (c)1999 by the LeGaL Foundation of the Lesbian & Gay Law Association of Greater New York =20 $50/yr by subscription; Canadian Rate $55; Other International Rate US$60 = =20 ISSN 8755-196-9021=20 11TH CIRCUIT RULING IN HIV PRISON CASE A SET-BACK FOR PRISONERS WITH HIV In a 9-3 en banc ruling in a long-running case involving the Alabama prison system's treatment of prisoners infected with HIV, the U.S. Court of Appeals for the 11th Circuit has adopted a narrow interpretation of protection under Section 504 of the Rehabilitation Act, 29 U.S.C. section 794, that could render the statute virtually useless in combatting discrimination against persons with AIDS in prisons. _Onishea v. Hopper_, 1999 WL 190763 (April 7). The decision appears to contradict the approach the Supreme Court took last term in its interpretation of similar provisions of the Americans With Disabilities Act in _Bragdon v. Abbott_, 118 S.Ct. 2196 (U.S. 1998). In June 1988, the ACLU Prisoners' Rights Project filed its lawsuit under Section 504, challenging the restrictive approach that the Alabama Department of Corrections takes with HIV-positive prisoners. Such prisoners are placed in segregated housing and are excluded from a wide range of prison programs and activities, including a variety of jobs both in the prison and on limited release, classes, athletic activities, entertainment events, religious services and the like. In some instances, a separate version of an activity is provided for the HIV+ prisoners. The plaintiffs have argued that the denial of participation in these activities violates the requirement of Section 504 that otherwise qualified disabled individuals not be excluded from participation in or benefiting from programs and activities receiving federal financial assistance. There is no dispute that the Alabama prison system is the recipient of federal funding. The defendants have argued throughout the litigation that they are unable to let HIV+ prisoners participate in these programs without exposing other prisoners and prison staff to unacceptable risks of HIV infection, and that it would be too expensive to hire the additional corrections officers that prison officials contend would be needed in order to manage such participation safely. =20 In the first trial of this case, the plaintiffs challenged the practice of denying participation in certain programs to HIV+ prisoners, and also challenged the practice of offering certain other programs only in segregated settings, on both constitutional and statutory grounds. The district court ruled for defendants on both grounds, finding no constitutional violation and holding that HIV+ prisoners were not ``otherwise qualified'' to participate in the programs under section 504. On appeal, the 11th Circuit affirmed the constitutional ruling but remanded the statutory ruling, finding that section 504 requires a program-by- program analysis to determine whether relief is warranted, rather than the broad-brush approach taken by the trial court. See _Harris v. Thigpen_, 941 F.2d 1495 (11th Cir. 1991). On remand, the trial court evidently did not follow the court of appeals' direction, or at best followed it in form only, for it determined, in virtually identical language in each part of its decision, that section 504 did not require the prison to change any of its policies. This decision was appealed to a three-judge panel, which agreed with the plaintiffs that the trial court had not properly followed the mandate of the court of appeals. See _Onishea v. Hopper_, 126 F.3d 1323 (11th Cir. 1997). (The panel opinion was by Senior Circuit Judge Kravitch; the second vote for reversal came from U.S. District Judge Tom Stagg (W.D.La.); Circuit Judge Cox dissented, and is the author of the en banc majority opinion.) However, that ruling was vacated for en banc review, 133 F.3d 1377 (11th Cir. 1998), resulting in the disastrous opinion issued on April 7. The linchpin of the en banc decision is the court's consideration of the issue of ``significant risk.'' There can be little argument at this stage of the game that HIV+ prison inmates have a disability as the term is used in the Rehabilitation Act, and are thus entitled to participate in all prison programs for which they are ``otherwise qualified.'' As construed by the Supreme Court, section 504 bars discrimination against persons with disabilities whose participation does not present a ``significant risk'' to the health or safety of others. In _School Board v. Arline_, 480 U.S. 273 (1987), the Court specified the factors to be examined in this connection as ``(a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.'' The Court also stated that the determination should be ``based on reasonable medical judgments given the state of medical knowledge,'' and noted with approval regulations that required those subject to section 504 to make reasonable accommodations as necessary to allow qualified individuals to participate in federally-assisted programs. In his decision for the en banc majority, Circuit Judge Cox embraced the approach of several circuit courts adopted in cases where HIV-infected health care workers were challenging the termination of their medical practices. Those courts have almost unanimously taken the position that in light of the potential harm of contracting HIV infection, there is a ``significant risk'' to the health and safety of others if medical experts say that transmission is theoretically possible under the circumstances of the plaintiff's employment. As the 11th Circuit now formulates its approach, if the defendant establishes through expert testimony that there is ``any risk'' that HIV could be transmitted by the plaintiff to others, then there is a ``significant risk'' due to the severity of the injury caused by transmission, and the plaintiff will be found not ``qualified'' for protection, and that the medical evidence to be relief upon will represent the state of knowledge at the time the complaint was filed, even though this case concerns on-going practices and is now being decided a decade after the complaint was filed. All of the cases from the other circuits involved health care workers whose jobs included, at least theoretically, performance of invasive procedures with the possibility of accidental blood exchange between health care worker and patient. What is extraordinary in the _Onishea_ case is the way the court extends this analysis to every program provided by the prison and, based on a general characterization of prisoners as prone to violence and unpredictable in their actions, finds that there is a ``significant risk'' of the transmission of HIV if, for example, HIV-infected prisoners are allowed to attend chapel together with uninfected prisoners, or to participate in work- release programs in the community. Although the plaintiffs had pointed to evaluation systems that the prison uses in classifying prisoners as high or low risk for violence, the court found that the prison system had no obligation to use this system to identify HIV+ prisoners who might be allowed to participate in programs without significant risk to others. And the court gave no weight to the lack of actual evidence that HIV-transmission would occur in the hypothetical situations it described. =20 Although the Supreme Court did not directly resolve this issue in _Bragdon v. Abbott_, it did make clear that any insistence on a no-risk situation in order to extend protection to somebody with HIV is inconsistent with the statute. Dr. Bragdon, a dentist, had argued in that case that because of the theoretical risk that he might contract HIV-infection from treating Sidney Abbott in his office, he was justified under the public accommodations provisions of the ADA in refusing to provide dental care to her. The First Circuit had found that the treatment presented no significant risk to the dentist; the Supreme Court remanded that portion of the decision for further evidence on the point, finding that the evidence upon which the First Circuit relied was not necessarily dispositive. (On remand, the First Circuit reaffirmed its earlier determination, and Dr. Bragdon has made noises about attempting another appeal to the Supreme Court.) The Supreme Court said that ``because few, if any, activities in life are risk free, _Arline_ and the ADA do not ask whether a risk exists, but whether it is significant,'' and that question, said the Court, is ``one of statistical likelihood'' based on an ``objective assessment of the risks posed.'' In her dissenting opinion from the en banc decision, Circuit Judge Barkett emphasized this conflict with the _Bragdon_ dicta, and also emphasized that the district court had plainly failed to undertake a careful, program-by-program analysis, but had rather come to the same conclusion with respect to each of the programs based on a virtually identical analysis that took no account of the individual nature of each program. In a separate dissenting opinion, Circuit Judge Hull observed that the duty of reasonable accommodation had never been seriously analyzed by the district court, which had rejected the possibility of evaluating individual prisoners and granting programmatic access to those who had a low predictive risk of violence or non-compliance with program rules.=20 The plaintiffs are represented by ACLU National Prison Project attorneys Ayesha N. Khan and Margaret Winter, with amicus assistance from Elizabeth A. Seaton on behalf of the Whitman-Walker Clinic Legal Services Department in Washington, D.C. A petition for certiorari is likely. A.S.L. LESBIAN/GAY LEGAL NEWS=20 2nd Circuit Recognizes Right to Privacy in Prisoner's Transsexual and HIV Status In _Powell v. Schriver_, 1999 WL 223434 (2d Cir., April 2), the U.S. Court of Appeals for the 2nd Circuit held that prisoners have a right to privacy concerning their status as a transsexual and their HIV status. =20 Dana Kimberly Devilla filed suit in the U.S. District Court for the Western District of New York under 42 U.S.C. sec. 1983, alleging that the defendants had violated her constitutional right to privacy, deprived her of her constitutional rights to life, liberty, due process of law and equal protection as guaranteed by the 5th and 14th Amendments, and inflicted cruel and unusual punishment in violation of the 8th Amendment, in addition to several state law causes of action. On December 31, 1991, Correction Officers Lynch and Crowley were escorting Devilla to Albion's medical facility when Lynch told Crowley, in the presence of other staff members and inmates, that Devilla had had a sex change and that she was HIV+. Devilla alleged that, as a result of Lynch's comment, her HIV status and her status as a transsexual became known throughout the prison and that she thereafter became the target of harassment by guards and prisoners. In April of 1995, Devilla died and her executor, the Reverend Wayne Powell, was substituted as plaintiff. During the course of the trial, the district court dismissed several of Devilla's claims, including her 8th Amendment claim, on the ground of qualified immunity. As a result, only two questions were put to the jury: (1) whether Lynch's comment violated either Devilla's constitutional right to privacy or the state statute protecting the confidentiality of HIV status; and (2) whether Warden Schriver had violated Devilla's constitutional right to privacy by failing to properly train Lynch. After two days of deliberations, the jury returned a verdict in favor of Lynch but against Schriver, awarding Devilla $5,000 in compensatory damages and $25,000 in punitive damages. After the verdict, Schriver filed a motion asking that the verdict against her be set aside on the grounds that (1) she was protected by the doctrine of qualified immunity and (2) the verdict was inconsistent with the verdict in Lynch's favor. This motion was granted by the district court, and an amended judgment was entered in favor of all defendants. On appeal, the 2nd Circuit, in an opinion by Circuit Judge Jacobs, affirmed the judgment in Schriver's favor on the ground that Schriver was protected by qualified immunity, but vacated the judgment and remanded for further proceedings on Devilla's 8th Amendment claim. In affirming the judgment for Schriver on the privacy claim, however, the court recognized that prisoners do have a constitutional right to privacy concerning their HIV status and their status as transsexuals. The court began by examining its earlier opinion in _Doe v. City of New York_, 15 F.3d 264 (2d Cir. 1994), in which it held: ``Individuals who are infected with the HIV virus clearly possess a constitutional right to privacy regarding their condition.'' The question for the court was whether this holding was broad enough to cover prisoners and transsexual status. In holding that the right to privacy did encompass one's identity as a transsexual, Judge Jacobs explained that this interest in privacy, ``like the privacy interest of persons who are HIV positive, is particularly compelling. Like HIV status, * * * transsexualism is the unusual condition that is likely to provoke both an intense desire to preserve one's medical confidentiality as well as hostility and intolerance from others.'' The court next addressed whether the right to privacy in one's HIV status established in _Doe_ extended to the context of prisons. Because ``inmates `retain[] those [constitutional] rights that are not inconsistent with [their] status as * * * prisoners or with the legitimate penological objectives of the corrections system[,]' * * * [i]t follows that prison officials can impinge on that right [to privacy in one's HIV status] only to the extent that their actions are `reasonably related to legitimate penological interest.''' While the court acknowledged that there are circumstances in which disclosure of an inmate's HIV status would further such legitimate penological objectives, ``the gratuitous disclosure of an inmate's confidential medical information as humor or gossip * * * is not reasonably related to a legitimate penological interest[.]'' Therefore, the court held that Lynch's disclosure violated Devilla's constitutional right to privacy. Similarly, the court concluded that disclosure of Devilla's transsexualism was also not related to such legitimate interests. After holding that Lynch's comments violated Devilla's constitutional right to privacy, however, the court held that the verdict in Schriver's favor should be affirmed under the doctrine of qualified immunity because at the time of Lynch's disclosure, ``the right of a prisoner to maintain the privacy of medical information was not clearly established.'' Finally, the court reversed the district court's dismissal of Devilla's 8th Amendment claim on the ground of qualified immunity. ``By December of 1991, a reasonable prison official would have known that under the Eighth Amendment he could not remain deliberately indifferent to the possibility that one of his charges might suffer violence at the hands of fellow inmates. . . In our view, it was as obvious in 1991 as it is now that under certain circumstances the disclosure of an inmate's HIV-positive status=20 and -- perhaps more so -- her transsexualism could place that inmate in harm's way.'' The court asserted, however, that its remand of this claim did not express a view as to whether Devilla stated a valid 8th Amendment claim or whether defendants were entitled to qualified immunity on some other ground. _Courtney Joslin_ 6th Circuit Reaffirms That Equal Protection Clause Does Not Protect Gays From Discrimination Holdings by the U.S. Supreme Court to the contrary notwithstanding, the U.S. Court of Appeals for the 6th Circuit persists in its view that the federal constitutional guarantee of equal protection of the laws does not apply to gay people. In _Preston v. Hughes_, 1999 WL 107970 (Feb. 10) (unpublished disposition), a 3-judge panel, in an offhand way, cites a 20-year old 9th Circuit case for the proposition that a gay person may not assert an equal protection claim. No member of the panel of Circuit Judges Jones, Nelson and Boggs claimed authorship of this=20 unpublished opinion. John Preston, a Kentucky prisoner proceeding pro se, was protesting the decision of the Kentucky Parole Board ordering him to serve out a life sentence that was imposed in 1964. He is now 68 years old.=20 Preston asserted numerous claims under 42 U.S.C. sec. 1983, including that the Parole Board was discriminating against him due to his sexual orientation. The Parole Board moved to dismiss the case. Citing _DeSantis v. Pacific Telephone_, 608 F.2d 327 (9th Cir. 1979), a private sector employment discrimination case in which the 9th Circuit rejected claims of sex discrimination by gay litigants under both Title VII and Section 1983, the 6th Circuit panel stated that ``Preston is not a member of a protected class. . . as a homosexual.'' This conveniently overlooks the U.S. Supreme Court's decision in _Romer v. Evans_, 517 U.S. 620 (1996), holding that an anti-gay Colorado constitutional amendment violates the Equal Protection Clause, which one would have thought binding precedent on the question. It also conveniently overlooks _Nabozny v. Podlesny_, 92 F.3d 446 (7th Cir. 1996), the first gay equal protection claim to be decided post-_Romer_, finding that a school district's intentional failure to address harassment claims raised by a gay student violated his right to equal protection of the law. =20 It is, however, entirely consistent with the 6th Circuit's wilful defiance of _Romer_ in its handling of Cincinnati Issue 3, _See, Equality Foundation of Greater Cincinnati v. City of Cincinnati_, 128 F.3d 289 (6th Cir. 1997), pet. for reh. en banc denied, 75 Fair Emp. Prac. Cas. (BNA) 1763 (1998), cert. denied, 119 S.Ct. 365 (1998). Perhaps the Circuit judges are taking the Supreme Court's decision not to review the Cincinnati case as a signal that _Romer_ does not require any acknowledgment that gays alleging governmental discrimination are entitled to judicial consideration of their equal protection claims. =20 To judge by the balance of the opinion in _Preston_, the petitioner is most likely an accomplished jailhouse lawyer who has spent his decades behind bars coming up with numerous theories as to why he was being treated unfairly, and the court dismissed all of them. A.S.L. ALABAMA LAW PROHIBITING SALE OF DILDOS AND VIBRATORS UNCONSTITUTIONAL An Alabama law which prohibited the sale of dildos and vibrators has been st= ruck down for violating the Due Process clause of the 14th Amendment, becomi= ng the third statute of its kind in the nation to be declared unconstitution= al. _Williams v. Pryor_, 1999 WL 181876 (N.D. Ala., March 29). In a thorou= gh and suspenseful opinion, U.S. District Court Judge Smith concluded that t= he provision at issue could not survive ``rational basis'' review largely be= cause it was overbroad and interfered with sexual expression related to marr= iage, procreation and familial relationships. The court granted the plainti= ffs' application for a permanent injunction, barring future enforcement of t= he law by state officials. In 1998, the Alabama Legislature amended the Anti-Obscenity Enforcement Act = to criminalize the sale of ``any device designed or marketed as primarily us= eful for the stimulation of human genital organs.'' First time violators fac= ed a fine of up to $10,000 and up to one year imprisonment or hard labor. T= he law did not prohibit the use of dildos or vibrators in the state, nor did= it prohibit bringing into Alabama a vibrator or dildo which was purchased i= n a sister state. Six plaintiffs -- four heterosexual women and two businesses which cater to = heterosexual women -- challenged the statute pursuant to 42 U.S.C. sec. 1983= . The four individual plaintiffs ranged in age from 30 to 50; two were divo= rced. All four women admitted using sexual devices for therapeutic purposes= related to sexual dysfunction, or as an alternative to sexual intercourse. The plaintiffs were represented by the ACLU and Michael Lawrence Frees of Wa= tson, Fees & Jimmerson, PC. The parties filed a stipulation of facts, which included evidence from two e= xperts in human sexuality. Dr. Alfred Jack Turner stated that he recommends= the use of dildos and vibrators to his female patients who are anorgasmic, = to older patients and patients with disabilities ``who are having difficulti= es with sexual expression,'' to patients who fear contracting sexually-trans= mitted diseases, and to those who ``cannot find sexual partners due to lack = of physical attractiveness or obesity.'' Dr. Pepper Schwartz, who offered e= xpert testimony in the Hawaii same-sex marriage trial, stated that vibrators= are a commonly accepted form of sexual pleasure, release and therapy in the= United States, ``most usually used in couple relationships, but also used b= y women and men alone.'' The court began its analysis humbly, by acknowledging the constitutional mag= nitude of the judiciary's role in cases which raise substantive due process = claims. Judge Smith observed that ``by extending constitutional protection = to an asserted right or liberty interest, we, to a great extent, place the m= atter outside the arena of public debate and legislative action.'' The cour= t highlighted that that the Supreme Court has afforded heightened due proces= s protection only to a very narrow set of ``fundamental rights:'' the right= to marry [someone of the opposite biological gender], to bear children, to = direct the education and upbringing of one's [biological or adoptive] childr= en; to marital privacy; to use contraception; to bodily integrity; to choose= abortion; and to refuse unwanted lifesaving medical treatment. The plaintiffs did not argue per se for the recognition of a new fundamental= right. Rather, they claimed that the rights to privacy and personal autono= my, which were already woven into the Due Process Clause by the Supreme Cour= t, are sufficiently broad to protect against laws prohibiting a person ``fro= m engaging in private sexual activity which is not proscribed by law.'' Jud= ge Smith rejected this argument, pointing to _Bowers v. Hardwick_ and other = cases in which the Supreme Court has held that substantive due process does = not protect all private sexual conduct, whether or not proscribed by law. The court ultimately agreed with Alabama's position that the purchase and us= e of dildos and vibrators is not ``so deeply rooted in our history and tradi= tions'' or ``so fundamental to our concept of ordered liberty'' as to be a p= rotected liberty interest. Despite the evidence in the record that such dev= ices may very well have medical and therapeutic uses for women who are anorg= asmic or suffer from other sexual dysfunctions, Judge Smith concluded: ``The= Supreme Court simply has placed the bar too high.'' The court ruled that t= he challenged law would not be subject to strict scrutiny, but need only sur= vive rational basis review. The court therefore directed its attention to d= etermining whether ``a legitimate governmental interest supports the state's= legislation, and the resulting law bears a rational relation to that intere= st.'' The court examined three distinct interests which were alleged by the govern= ment to support the passage of the statute at issue: (1) to protect childre= n and unwilling adults from exposure to obscenity; (2) to ban the sale of ob= scene material; and (3) to legislate the belief ``that auto-eroticism, for i= ts own sake, unrelated to marriage, procreation or familial relationships is= an evil, an obscenity detrimental to the health and morality of the state.'= ' The court ruled as a matter of law that all three are legitimate governme= ntal interests. According to Judge Smith, ``statutes aimed at effecting a s= ense of public morality address legitimate state objectives. . . This court= finds that Alabama has a legitimate interest in prohibiting the commerce of= sexual devices.'' On what basis, then did the court strike down the law? Judge Smith conclude= d that the scope of the law was not rationally related to the state's otherw= ise proper interests. As to Alabama's interest in banning public displays o= f obscene materials to protect children and unwilling adults, the court rule= d that the statute was overbroad and arbitrary. ``Innumerable measures far s= hort of an absolute ban on the distribution of sexual devices would accompli= sh the state's goals,'' Judge Smith posited. According to the court, the la= w was ``an exaggerated response to the State's concerns.'' Eight states -- Alabama, Colorado, Georgia, Kansas, Louisiana, Mississippi, = Texas and Virginia -- have enacted laws criminalizing the sale, distribution= or promotion of sexual devices such as dildos and vibrators. Courts in Col= orado, Kansas and now Alabama have struck down these laws. Texas is the only= state whose law has sustained judicial challenge. It is somewhat suspicious that none of the plaintiffs in this case were bise= xual, lesbian or gay. After all, Alabama's sodomy statute only prohibits ``= any act of sexual gratification between persons not married to each other in= volving the sex organs of one person and the mouth or anus of another.'' We= may lawfully use dildos and vibrators in Alabama with impunity. The plaint= iffs did not even manage to escape from _Bowers_, despite the uniformly hete= rosexual orientation of the plaintiffs. Perhaps the lesbigay community can t= ake some tacit solace and recognition from the fact that Judge Smith cited _= Romer v. Evans_ when the court gave ``teeth'' to its rational basis review a= nd struck down the Alabama statute. _Ian Chesir-Teran_ Lesbian Mother Achieves Initial Victory In Attempt to Reverse Adverse Custod= y Decision The Court of Appeals of Indiana ruled April 29 that Perry County Circuit Jud= ge David E. Evrard erred in failing to determine whether his court had juris= diction of the attempt by John H. Pryor to wrest custody of his child away f= rom Debra L. Pryor based on her sexual orientation. _Pryor v. Pryor_, 1999 = WL 250779. In so doing, Judge Riley, writing for a unanimous three-judge pa= nel, found it ``necessary'' to remind the Judge Evrard that on remand, if he= finds that he does have jurisdiction, he is not to premise a change of cust= ody on the sexual orientation, actual or perceived, of Debra. John and Debra Pryor, who were living with their son, A., in Perry County, I= ndiana, separated in February 1997, and Debra moved with A. to Kentucky on F= ebruary 28. She enrolled A. in school there. Subsequently, John determined= that Debra is a lesbian and decided to ``save'' his child from exposure to = harassment and ridicule by seeking a divorce decree and an award of custody.= On February 4, 1998, John filed for divorce and custody in the Perry Count= y Circuit Court, and obtained an ex parte order granting him temporary custo= dy, which he served on Debra by certified mail to her home in Kentucky. Deb= ra then immediately filed suit in the Ohio Circuit Court in Kentucky, seekin= g a divorce and custody of A. =20 There followed a complicated sequence of events, culminating in the Judge Ev= rard of the Indiana court granting the divorce, awarding John custody, and h= olding Debra in contempt for refusing to turn over the child. Meanwhile, De= bra claimed to have obtained a custody award from the Kentucky court, althou= gh John's lawyer claims that the Kentucky court had stayed its jurisdiction = in favor of the Indiana court. Debra appealed Judge Evrard's ruling, raisin= g two issues: whether the Indiana court had jurisdiction, in light of the fa= ct that Debra and A. had been residing in Kentucky for almost a year when Jo= hn filed his petition, and whether the trial court violated her constitution= al right of equal protection by premising the custody award solely on her se= xual orientation. The appeals court found that Evrard erred by failing to follow the procedure= specified under Indiana's version of the Uniform Child Custody Jurisdiction= Act, Ind. Code secs. 31-17-3-1 et seq., which requires that when a court is= presented with a child custody dispute having an interstate dimension, it i= s supposed to perform an analysis at the outset to determine whether it is p= roper to assert jurisdiction. There is no indication that Evrard performed = such an analysis, and indeed, the provisions setting forth the analysis to b= e made would likely be resolved in favor of Kentucky rather than Indiana jur= isdiction, based on the length of A's residence in Kentucky. The claim by J= ohn's lawyer that the Kentucky court had stayed its hand, however, is a comp= licating factor under the analysis. The court remanded with instructions to= Judge Evrard to perform the UCCJA analysis before ruling on the merits of t= he custody dispute. Addressing Debra's second point, the court declined to rule on the merits of= the equal protection claim ``until the trial court has made its jurisdictio= nal determination,'' but Riley wrote: ``We find it necessary to provide the = trial court with the instruction that sexual orientation as a single parenta= l characteristic is not sufficient to render that parent unfit to retain phy= sical custody of a child.'' Citing its 1981 ruling in _D.H. v. J.H._, 418 N= .E.2d 286, which held that ``homosexuality, standing alone without evidence = of any adverse effect upon the welfare of the child does not render the homo= sexual parent unfit as a matter of law to have custody of the child,'' Riley= observed that there seemed to have been no evidence presented in the presen= t case of any adverse effect on A's welfare ``as a result of Debra's homosex= uality.'' However, Riley said the trial court would need to make a custody = determination based on the best interests of the child, with no presumption = favoring either parent. The court retained jurisdiction of the case with instructions that Evrard pe= rform the jurisdictional analysis and report back to the court in 30 days. Debra is represented by Sean C. Lemieux, a gay staff attorney at the Indiana= Civil Liberties Union who specializes in lesbian/gay and AIDS civil rights = litigation. A.S.L. Illinois Appellate Court Finds Female Couple To Be in ``Conjugal'' Relationship; Terminates Maintenance Payments >From Ex-Husband Affirming a trial court's decision to terminate maintenance payments to Carol Weisbruch from her ex-husband, the Appellate Court of Illinois, 2nd District, ruled, in a matter of first impression for Illinois, that a same-sex couple can be found to be engaged in a ``conjugal'' relationship, even where there was no evidence that their relationship is necessarily sexual in nature. _Weisbruch v. Weisbruch_, 1999 WL 216424 (April 14). Carol and John Weisbruch were married in 1968 and had two children together. They were divorced in 1980, with Carol taking custody of their two sons. John was required to pay $1250 a month in child support and maintenance (with no allocation made in their settlement agreement between these two categories). Under the terms of the settlement agreement, ``Thirty days after Wife's remarriage, the parties shall agree to an amount for child support and if the parties can not agree, then the matter shall be submitted to the Circuit Court of McHenry County, Illinois, for adjudication.'' An Illinois statute, sec. 510(c) of the Marriage and Dissolution of Marriage Act, provides that unless the parties agree otherwise in a written agreement, ``the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.'' In 1989, Carol purchased a single-family house in joint tenancy with Sandra Diesel, and they have lived together in the house since that time. By 1990, both of the children had reached the age of majority, but John continued to make the monthly payments until May 21, 1997, when he petitioned the court to terminate his payment obligation on two grounds: both children had reached majority, and Carol no longer required maintenance because she had been ``economically rehabilitated'' and because she was ``engaged in a continuing conjugal relationship with Sandra Diesel.'' At trial, Carol argued that she and Sandra did not have a sexual relationship, occupied separate bedrooms, and could not be consider conjugal partners because they are not married and Illinois has a law banning same-sex marriage. However, the record showed that Carol and Sandra are joint obligors on the mortgage, share household expenses, and have done the equivalent of ``lesbian family planning'' (i.e., wills, financial and medical powers of attorney, etc.). Sandra is the principal beneficiary under Carol's will. (Carol testified that her intent was for Sandra to inherit her only substantial asset, her ownership interest in the house, and then to liquidate the asset and divide the proceeds between Carol's sons.) The trial court concluded that the settlement agreement was not dispositive of the question, that Carol was not fully financially rehabilitated and still needed $950 a month, but that, because she and Sandra were living in a conjugal relationship within the meaning of sec. 510(c), all maintenance should be terminated. The Appellate Court affirmed, in an opinion by Presiding Judge Bowman. While conceding that several dictionaries defined ``conjugal'' in terms of a marital relationship, Bowman noted that the Illinois Supreme Court had rejected the argument that the lack of sex rendered a relationship non-conjugal. In _Marriage of Sappington_, 106 Ill.2d 456 (1985), the ex-wife was living with a man who was claimed to be impotent and on that basis sought to defeat her ex-husband's attempt to terminate maintenance obligations under the statute. The court held that the financial implications of the wife's relationship were the most relevant to deciding the maintenance issue, rather than the sexual nature of the relationship. The dictionary definitions do not mention sex.=20 ``Thus, assuming for the sake of argument that petitioner and Diesel were not engaged in a sexual relationship,'' wrote Bowman, ``does not automatically prevent their relationship from being considered conjugal.'' ``Whether a paying spouse's maintenance obligation may be terminated because the receiving spouse is engaged in an ongoing relationship with a member of the same sex is an issue of first impression in Illinois,'' Bowman wrote. Referring back to the _Sappington_ decision, the court found that ``the purpose of section 510(c) is not to control public morals.'' In that case, the Illinois Supreme Court had made clear that 510(c) should be construed in light of financial circumstances, expressing the policy view that the provision was enacted ``at least in part, to relieve the injustice from a continuing obligation to support an ex-spouse who is supporting another with the payments or receiving support from another. . . . In this context, it makes no difference to the paying spouse whether the ex-spouse's new relationship is one that society is prepared to recognize as legitimate or can be legally consummated by marriage. We note that Illinois does not recognize common-law marriages between members of the opposite sex, yet such a relationship may trigger the termination of maintenance.'' Finally, the court saw as unavailing Carol's attempt to paint her relationship with Sandra as merely a roommate relationship entered into for financial convenience. ``The trial court set forth extensive factual findings in support of its conclusion that petitioner and Diesel were engaged in a conjugal relationship. The evidence recited above demonstrates far more than a casual friendship. The fact that Diesel is the primary beneficiary of petitioner's will, deferred income plan, retirement plan, and life insurance policy demonstrates that she and Diesel are far more than roommates, as petitioner contends, and these actions cannot be explained by considerations of convenience. Although petitioner claims not to understand fully the terms of her will, the fact is that she has chosen specifically to disinherit her two sons -- who she testified are the most important people in her life -- except for token bequests. If the intention of the will was for Diesel to divide the property between the children, specific bequests would be unnecessary. The trial court's finding was not against the manifest weight of the evidence.'' Although at one point in the opinion, Bowman refers to expert testimony by a clinical psychologist at trial on the question whether ``two people of the same sex, though professing to be heterosexual, may engage in a conjugal relationship,'' from the overall tone of the opinion, it appears that the appellate court was skeptical about the claim that Carol and Sandra are not lesbians engaged in a relationship. While the court did not come right out and say as much, the opinion is carefully drafted to emphasize the lack of evidence about sex between the two women and the way the testimony focused on the public nature of their interactions. Reading this opinion, one suspects that Judge Bowman believed these women are engaged in a lesbian relationship but believed that denying the sexual nature of their relationship was essential to winning this case. A.S.L. Texas Appeals Court Reverses Two Convictions of Sexual Assault by Gay Man Henry Valdez, convicted of sexually assaulting two men he had met while empl= oyed at a group home for mentally impaired individuals, has won a reversal a= nd new trials in _Valdez v. State_, 1999 WL 250588 (Tex.App. April 29) and _= Valdez v. State_, 1999 WL 250338 (Tex.App. April 29). The same panel of the= El Paso appeals court decided both cases, in separate opinions by Justice S= usan Larsen. Valdez was tried separately in the two cases, found guilty of = sexual assault in both, and sentenced in each case to 11 years in jail and a= fine of $2500. In the first case, Valdez was charged with assaulting R.F., a former residen= t of the group home, in the restroom of a Subway Sandwich shop where Valdez = was having dinner with R.F. and R.F.'s roommate. R.F. testified that Valdez= attempted to initiate anal sex with him in the restroom, but that R.F. hit = Valdez and stopped him from completing the act, but R.F.'s testimony on dire= ct and cross was inconsistent and might have led to the conclusion that Vald= ez actually accomplished penetration before R.F. rebuffed the act. Valdez t= estified that he did not initiate anal sex, and at most touched and kissed R= .F. with R.F.'s consent. At trial, the court refused to instruct the jury t= hat it could consider lesser included offenses of simple assault or homosexu= al conduct. The difference is significant, since sexual assault, a felony, = carries a range of 2 to 20 years imprisonment and a substantial fine, while = assault or homosexual conduct, both misdemeanors, carry a maximum punishment= of a $500 fine. The court found that the trial judge erred in failing to charge on simple as= sault, concluding that it is a lesser-included offense and that depending wh= ich version of R.F.'s testimony is believed, a jury could have concluded tha= t the evidence met the requirements of simple assault but not of sexual assa= ult. However, the court deferred deciding whether homosexual conduct should= be considered a lesser included offense in this case, ``as there is no evid= ence in this record suggesting that if Valdez is guilty, he is guilty only o= f homosexual conduct.'' That is, if Valdez is guilty of engaging in the con= duct charged in the indictment, his offense is either sexual assault or assa= ult. By his own testimony, he did not engage in homosexual conduct, defined= in Texas as ``deviate sexual intercourse'' consisting of anal or oral sex. In the other case, Valdez was charged with forcing H.O., another group home = resident, to have anal sex with Valdez in Valdez's home while H.O. was there= on a visit. H.O. had apparently visited Valdez on several occasions, slept= over in Valdez's bed on at least one occasion, and had sex with Valdez in b= ed and in the shower. Valdez did not deny having sex with H.O. on several o= ccasions, but insisted that their intercourse was always consensual. Indeed= , there was evidence that H.O. was not really unhappy about the sex, but had= made the mistake of talking about it back at the group home, where supervis= ors responded by revoking his bus pass and contacting the police. As in the other case, the trial court refused to charge on any lesser offens= es than sexual assault. Again, Valdez asserted on appeal that the court sho= uld have charged the jury on simple assault and homosexual conduct. In this= case, Justice Larsen reached the opposite conclusion from the other case, f= inding that a simple assault charge was not appropriate but that a homosexua= l conduct charge was appropriate and should have been given. In this case, = unlike the other case, there was no contest over the fact that Valdez did ha= ve anal sex with H.O. Consequently, if the jury believed Valdez's testimony= that it was consensual, he should be convicted of the misdemeanor of homose= xual conduct, with a maximum penalty of a $500 fine. However, under these f= acts, Valdez was either guilty of homosexual conduct or, if it was not conse= nsual, of sexual assault, according to the court. A simple assault charge w= as not appropriate. In so ruling, the court followed the precedent set by a San Antonio panel of= the Court of Appeals in _Murphy v. State_, 653 S.W.2d 736 (1983, pet. Ref'd= ), holding that homosexual conduct could, depending upon the circumstances o= f a particular case, be considered a lesser included offense of sexual assau= lt, even though it required the proof of a fact (that both parties are of th= e same sex) that is not relevant to the greater offense of sexual assault. = Normally, to be considered a lesser included offense, a particular offense m= ust not require proof of any facts that would not have to be proved for the = greater offense. Both convictions were reversed and the cases remanded to the District Court = in El Paso. A.S.L. California Court of Appeal Rejects Guardianship Petition From Lesbian Co-Parent Opining that the issue is better directed to the legislature than a court, the California Court of Appeals, 1st District, ruled April 19 that lacking evidence that continued custody by the biological mother would be detrimental to her children, it could not award a guardianship with visitation rights to the estranged lesbian co-parent. _Guardianship of Z.C.W. and K.G.W.; Kathleen C. v. Lisa W._, 1999 Cal. App. LEXIS 335. =20 Kathleen and Lisa started their relationship in 1984, and began living together in 1985. At the time, Lisa's three-year old daughter was living with her. In 1986, the women decided to have another child, and Lisa became pregnant through donor insemination, giving birth in 1987. The child was given Kathleen's surname as a middle name. Both women shared parenting responsibilities, and, as the superior court later found, Kathleen was a de facto and psychological parent for the two children. In 1990, the couple separate, but Kathleen continued to have regular visitation with the children by agreement with Lisa. In 1994, Lisa discontinued the agreement, but Kathleen continued to phone and to make surreptitious visits. When Lisa found out, she went to court to get an order barring Kathleen from attempting to contact her or the children. Responding to issuance of the order, Kathleen filed an action seeking appointment as guardian of the children with visitation rights. The superior court in Alameda County found that under the guardianship statute, Kathleen could not be appointed unless the court found that Lisa's continued custody of the children was detrimental to them. However, the trial court denied Lisa's motion for attorneys fees and costs, and ordered that each party pay half the cost of the lawyer appointed by the court to represent the interest of the children. Affirming this decision on appeal, Presiding Justice Daniel Hanlon found that California appellate courts have rebuffed several attempts by lesbian co-parents to obtain a legally enforceable continuing relationship with the children of their former partners.=20 Although none of the previous cases was a guardianship proceeding, in each the courts had rejected appeals to engage in creative statutory construction in order to produce a result consistent with recognition of the familial nature of the couple and the children. ``Appellant's attempt to obtain visitation rights through a guardianship also fails,'' wrote Hanlon. ``As the trial court recognized, there are no cases granting a guardianship in the absence of clear and convincing evidence that parental custody is detrimental to the children. A finding that an award of custody to the parents would be detrimental to the child is essential before a court may make an order granting custody to a nonparent.=20 Further, there is no statutory authority for a limited guardianship providing for visitation rights to a nonparent. The issue is one that must be addressed to the Legislature.'' While acknowledging that the trial court had found that Kathleen was a de facto and psychological parent to the children while her relationship with Lisa was intact, the court noted that this had changed once the relationship ended. Characterizing this as ``a difficult case for all involved,'' the court encouraged the parties ``to resolve their differences for the benefit of the children.'' In statements to the Associated Press published after the decision was issued (_Sacramento Bee_, April 20), attorneys for both women stated that they had attempted to effect a resolution between their clients, but that it had proved impossible. Lisa accused Kathleen of trying to undermine the children's relationship with her and of being uncooperative. Kathleen's attorney tried to characterize the court's decision as not entirely unfavorable to her client's claim of parental status, pointing to the order that both women split the costs of the attorney appointed to represent the children's interest, but Lisa'a attorney countered by noting that ultimately the court had denied Kathleen's attempt to be appointed guardian to the children. Kathleen is represented by Jennifer Jackson, Lisa by Carol Amyx.=20 A.S.L. Illinois Appeals Court Upholds Life-Sentence for Murder of Alleged Gay Man A divided panel of the Appellate Court of Illinois, First District, voted to uphold a life sentence with a concurrent term of 30 years imposed on Dennis Jackson for the Oct. 28, 1994, murder and armed robbery of Kenneth Posey, who Jackson claimed was a gay man who tried to get him to have sex. _People v. Jackson_, 1999 WL 242639 (April 26). The court was divided over whether to sustain the first degree murder conviction, but even the dissenter agreed that Jackson was guilty of felony murder. According to Jackson's statement to police, he was walking along the street in the afternoon on Oct. 28 when Posey drove up and offered him a ride. He got in the car, they drove to a liquor store where Posey made a purchase, and then drove to Posey's home.=20 Three or four men were there, and from remarks they were making, Jackson concluded that Posey and the others were gay. (Posey told the police officer that he ``didn't like gay people. . . they disgusted him.'' He also told the police officer that he accepted the ride from Posey because he thought he ``could get something'' from him.) Jackson claimed that Posey got the other men to leave and then tried to initiate sexual activity with Jackson in his kitchen. Jackson rebuffed Posey's groping and attempted kiss, punched Posey in the face, and turned to leave.=20 When he felt Posey grasp him from behind on his neck, he became angry, grabbed a butcher knife from the kitchen counter, and stabbed Posey in the chest. When he pulled out the knife, Posey fell face down. Jackson said he wanted to make sure Posey couldn't get up and chase him, so he stabbed him again in the left thigh, removed Posey's watch, bracelet and ring, looked through his wallet, took his car keys, and drove away in his car. Later that day, Jackson sold Posey's jewelry and rented his car to some acquaintances he met. The jury convicted Posey of first degree murder, armed robbery, and felony murder. (The felony murder charge was based on the evidence that Jackson had stolen Posey's jewelry and car, and Posey was killed during the commission of this robbery.) The trial judge sentenced him to life for the first degree murder conviction and concurrently to 30 years for armed robbery. On appeal, Posey tried to convince the court that he was acting in self defense and that the trial judge had failed to charge the jury properly on how to deal with that aspect of the case. An Illinois statute provides that an individual can use force to prevent a criminal sexual assault under circumstances where the individual is in fear of death or serious injury to himself. After reviewing the evidence, the court found that the record did not provide a basis for the self-defense charge: ``No force or threat of force accompanied the touching of defendant's pants in the penis area and the attempted kiss by the victim,'' wrote Justice O'Mara Frossard. ``There is no evidence of sexual penetration or attempted sexual penetration. It is undisputed that the victim made no threatening remarks to defendant; it is undisputed the victim was not armed at any time;=20 and it is undisputed the victim never threatened or harmed the defendant. The first person to use force was the defendant, who punched the victim in the face three times after rebuffing the attempted kiss. =20 ``Moreover, it should be noted that as a result of the victim's conduct, defendant in his own words became, not frightened, but angry, called the victim a name, and punched the victim three times in the face. Defendant's theory that he reasonably believed that he would be sexually assaulted is not supported by the evidence and defies any logical inference from the evidence. Based on the facts of this case, as reflected in the record, the offensive touch and attempted kiss did not cause defendant to fear the victim but instead provoked anger in the defendant.'' Thus, even if the jury believed Jackson's story of what happened (which was based on his statement to the police, since he did not testify in his own defense at the trial), a majority of the appellate court panel found that such a story would not support a self-defense theory to excuse or mitigate his violent response of killing Posey. Dissenting, Presiding Justice O'Brien felt that Jackson was entitled to have the trial judge charge the jury on self-defense, arguing that it was an abuse of discretion for the trial judge not to instruct the jury on any possible defense Jackson might have in what was potentially a capital case. O'Brien noted that the trial court never specifically sentenced Jackson for the felony murder, and since O'Brien joined the other two judges in rejecting Jackson's argument that the factual record would not support a felony murder conviction, O'Brien suggested that the case should be remanded, vacating the sentence for first degree murder, and resentencing for felony murder. A.S.L. Texas Appeals Court Rejects Gay-Basher's Claim of Involuntary Plea The Court of Appeals of Texas rejected convicted murderer Jonathon Gomez's contention that his plea was involuntarily entered, upholding his conviction for beating and stabbing to death in a public park a man Gomez perceived as gay. _Gomez v. State_, 1999 WL 191515 (Tex.App.-San Antonio, April 7). Realizing at a 1995 party that they had consumed all of their beer and cocaine, Gomez and four other men decided to go to the park to ``get money from the queers.'' At the park bathroom they met and began harassing their victim, ``asking him about his sexual orientation, inquiring into what he was doing in the park late at night, and admonishing him that the park was for family use, not homosexual activity.'' The opinion states that ``the men exchanged a few punches'' before the victim attempted to leave; Gomez's party chased the victim and grounded him by hitting him in the head with a thrown beer bottle. Gomez proceeded to knife the victim at least eight times in the back and neck yelling ``die m______ f______, die,'' while the victim pleaded for mercy. Faced with an indictment for capital murder, a death-penalty offense, Gomez agreed to plead guilty to first-degree murder with a sentence of life imprisonment (eligible for parole in thirty years) and testify against his friends.=20 Before accepting Gomez's guilty plea, the trial court verified Gomez's signature on the plea agreement and confirmed his understanding of the terms of the agreement including his responsibilities under the agreement and the punishment that would be assessed if the agreement was honored. The trial court also reviewed with Gomez a document he signed entitled ``Court's Admonishment and Defendant's Waivers and Affidavit of Admonitions,'' acknowledging that he had read the admonitions and that his attorney had explained them to him. Gomez affirmed that it was his signature on this document also and that he fully and completely understood everything contained in it. The trial court then stated that it would accept the terms of the plea bargain and hold Gomez guilty of the offense of murder. After Gomez's sentencing in 1997, he filed the present motion for new trial, claiming his plea was involuntary as a result of ineffective assistance of counsel. The Court of Appeals evaluated Gomez's claim under the _Strickland_ test, which requires a defendant to show that his trial counsel made such serious errors that the attorney was not functioning effectively as counsel and that the defendant was prejudiced by this deficient performance.=20 On that basis, the court rejected Gomez's argument that his trial counsel was ineffective for failing to suggest that Gomez argue that he killed in self-defense. Noting that ``Gomez cannot point out to this court any facts, which in his estimation, support his bald assertion that his actions warranted the pursuit of such a defense,'' the court held that his counsel's alleged failure to explain the law of self defense to Gomez did not fall below the standard for professional assistance. Gomez also claimed prejudice in that his attorney erroneously told him that under the plea bargain he would serve a thirty-year prison term and that Gomez would not have entered a guilty plea in exchange for a life sentence. The court rejected this argument on the weight of evidence to the contrary and affirmed that the trial court did not need to have an evidentiary hearing to determine that Gomez's motion was without merit. _Mark Major_ Georgia Appeals Court Rules Evidence of Homosexual Proclivity Is Relevant to Child Molestation Charge Rejecting an appeal of a conviction for child molestation, the Court of Appeals of Georgia ruled Feb. 19 that the trial court did not err in allowing introduction in evidence of material of a homosexual nature retrieved by the police from the defendant's computer. _Walsh v. State_, 512 S.E.2d 408 (Ga.App.). Defendant William Walsh's appeal of his conviction focused on a police search of his house in November 1986, during which the police seized his computer with his wife's permission. The court rejected Walsh's argument that his 4th Amendment rights were violated by the seizure, pointing out that his wife had purchased the computer and that it was used by the entire family, so her permission was sufficient to authorize the search and seizure in this case. =20 Among the materials obtained from the search of the computer were graphic files that ``included nude pictures of young men and explicit transcripts from homosexual Internet chatroom sessions.'' Walsh objected to the introduction of this material in evidence, pointing out that he was charged with sexual molestation of children, and that the pictures all depicted adults and related to adult activity. Relying on and quoting from prior decisions, the court found that in Georgia evidence showing the ``defendant's bent of mind toward the sexual activity with which he was charged or defendant's lustful disposition'' was relevant to a charge of child molestation. =20 Presiding Judge Pope explained, ``Walsh's child molestation charges concern the inappropriate touching of male children. While the materials at issue do not specifically depict sexual activity involving children, all the materials concern sexual activity between males. The pictures introduced by the state were either of young nude men or involved homosexual acts. The chatroom materials were sexually explicit and related to homosexual activity. `This court ... has consistently held in child molestation cases that [materials] showing natural and unnatural sex acts ... can have a tendency to show a bent of mind toward sexual activity. [Cits.] This [evidence] is admissible to show bent of mind and lustful disposition..., even if the content of the material does not relate to children. [Cit.]' (punctuation omitted.) _Burris v. State_ 204 Fa.App. 806, 808(1), 420 S.E.2d 582 (1992)... Accordingly, we find no error in the trial court's denial of Walsh's motion in limine.'' Apparently, this court was either not presented with, did not understand, or rejected _sub silentio_ the argument that pedophilia and homosexuality are distinct phenomena, and that evidence of a same-sex orientation or same-sex interests is not probative on the question whether an individual is a pedophile.=20 The evidence on which Walsh was convicted, as summarized by the court, would appear to provide a sufficient basis for conviction in the absence of the evidence about homosexuality, however, so the court might justifiably have found the admission of the computer- derived evidence as harmless error. But one is struck by the court's willingness to allow the introduction of potentially prejudicial evidence due to a conflation of two distinct phenomena, which appears based more on social myths than on reality. A.S.L. Michigan Supreme Court Takes Curious Action in Marital Status Discrimination Case In December, the Michigan Supreme Court decided _McCready v. Hoffius_, 586 N.W.2d 723 (Mich. 1998), holding that a landlord's refusal to rent a house to an unmarried heterosexual couple violates the state's ban on marital status discrimination in housing, and that the religious motivation of the landlord does not privilege his actions under the 1st Amendment. The landlord immediately filed a petition for reconsideration. Last November, in judicial elections, two judges who participated in the court of appeals decision that was reversed in _McCready_ were elected to the Supreme Court. They took office while the petition for reconsideration was pending, and they have now joined forces with a dissenting judge from _McCready_ to vacate the portion of the decision dealing with the 1st Amendment issue and to send the matter back to the Circuit Court of Jackson County for ``further consideration of this issue and entry of an appropriate judgment.'' _McCready v. Hoffius_, Nos. 108995/108996, Rehearing 427 (entered April 16, 1999). Two members of the December majority dissented from the court's action. The author of the December opinion, Justice Kelly issued a short dissenting opinion, pointing out that the court had deliberately examined and decided the constitutional question at issue, and that nothing had changed in the few months since that decision was issued to justify remanding the case for reconsideration at the trial level. ``Defendants have raised no newly decided binding precedent in support of their assertion that we erred in our previous holding.'' Dissenting separately, Justice Cavanagh stated: ``If a majority of this court believes that reconsideration should be granted, then I believe that the proper course would be to receive briefs and hear arguments on the defendant's constitutional argument before remanding the case to the trial court.'' Cavanagh pointed out that the defendant's motion for reconsideration was based on the recent notorious 9th Circuit decision in _Thomas v. Anchorage Equal Rights Commission_, 165 F.3d 692 (1999), as to which a petition for reconsideration en banc is now pending in that court, and that there is a split in the federal circuits on the question whether religiously-motivated landlords have a 1st Amendment right to refuse to rent housing to unmarried couples. Cavanagh argues that it makes no sense to send the case back to the trial court without deciding the constitutional issue, if a majority of the court is dissatisfied with the way the issue was dealt with in the court's December ruling. A.S.L. Arkansas Church Loses Tax-Exempt Status For Running Anti-Clinton Newspaper Ad. In an important ruling that can be potentially devastating against the religious right's growing presence in politics, the U.S. District Court for the District of Columbia agreed with an IRS decision to revoking a church's Internal Revenue Code sec. 501(c)(3) tax status for participating on partisan politics when the church took out a full page newspaper ad proclaiming that ``Bill Clinton is promoting policies that are in rebellion against God's Laws.'' _Branch Ministries, Inc. v. Internal Revenue Service 1999 WL 173687 (March 30). Branch Ministries filed a suit against the IRS on a variety of statutory and constitutional grounds. During the 1992 presidential election, Branch Ministries Church of Arkansas, a 501(c)(3) tax-exempt organization, placed a full page anti-Clinton ad in the _Washington Times_ and _USA Today_ proclaiming ``Christians beware. Do not put the economy ahead of the Ten Commandments.'' It asserted that then-Gov. Clinton supported abortion, homosexuality and condom distribution in public schools. It cited various Biblical passages and at the bottom, in fine print, was the church's name, address and a call for donations. The IRS saw it and sent a letter informing the church that an inquiry was underway ``concern[ing] political expenditures" by the church. The IRS requested extensive information to which the church did not respond, except for a denial and a statement that the ad was merely a ``warning to members of the Body of Christ.'' Three months later, the church filed suit seeking to reverse the IRS revocation decision. The basic premise of their statutory claims was that the IRS lacked authority under the Church Audit Procedures Act (CAPA) to revoke that status unless it concluded that a church is not a bona fide church. Plaintiffs also contend that the IRS selectively prosecuted the church on the basis of its political and/or religious views in violation of the Equal Protection Clause and that the revocation violated the First Amendment and the Religious Freedom Restoration Act. District Judge Friedman ruled that the CAPA is clear in its language that the IRS may revoke a church's tax-exempt status if it determines that a church is not a church which is exempt under 26 U.S.C. 501(c)(3), which defines religious corporations as those which do not participate in or intervene in any political campaign on behalf of any candidate for public office. The court held that the IRS had that authority. Turning to the selective prosecution claim, the court ruled that the church failed to meet its burden of showing that the prosecutorial decision had a discriminatory effect and that it was motivated by a discriminatory purpose or intent.=20 Plaintiffs could not establish that similarly situated churches were not prosecuted, citing only examples of political leaders speaking from church pulpits. The court did not analyze the distinction between the two, other than to say that there was a difference between a church hosting a debate or a political speaker and a tax-exempt church buying an ad stating its opposition to a candidate, attributing the ad to the church and soliciting tax-deductible contributions to pay for the ad. In absence of such evidence, motion for summary judgment was granted to the IRS. The court also ruled against the church on its free exercise of religion as guaranteed under the Religious Freedom Restoration Act and the First Amendment. The church presented no evidence that the government had substantially interfered with the exercise of religion. If it did, the government would have the burden of establishing that the revocation served a compelling governmental reason and that it was carried out in the least restrictive means.=20 The church gave a tax-hardship argument, which was dismissed by the court, reasoning that ``[p]laintiffs were offered a choice: they could engage in partisan political activity and forfeit their [non-profit] status or they could refrain from partisan political activity and retain their [non-profit] status. That choice is unconnected to plaintiffs' ability to freely exercise their religion.'' The court further explained that even if the church had established a substantial burden, the government has a compelling interest in maintaining the integrity of the tax system and in not subsidizing partisan politics. Lastly, the court addressed the church's political expression claims that it was singled out because of its political views.=20 Again, the church failed to provide any evidence of similarly situated churches that have not had their non-profit status revoked. The church argued that churches were ``open fora'' for political expression. The court reminded the plaintiff that the revocation was based on the church taking out a full page ad, not that political activity was taking place on church property. The IRS' motion was summary judgement was granted in its entirety.=20 _K. Jacob Ruppert_ N.Y. Trial Judge Calls for Privacy Protection of Insurance Records In a case involving the ``outing'' of a lesbian by an insurance company clerk, New York State Supreme Court Justice Joseph C. Teresi of Albany called for legislation expanding protection for private information contained in insurance company files, while holding that existing law did not give the plaintiff a claim against the insurance company. The opinion in _Doe v. Community Health Plan-Kaiser Corp._, No. 7342-97, issued in mid- April, was not yet published as we went to press, and this account is based on a news story in the _New York Law Journal_, April 22, 1999. The Jane Doe plaintiff was receiving psychological counseling from a social worker employed by her HMO, Community Health Plan. The social worker wrote in the treatment file about the client's statements concerning her sexual orientation. Soon thereafter, the plaintiff discovered that a CHP records clerk, Christen Adey, was spreading the information obtained from the file to her friends and co-workers that Doe was a lesbian. Doe sued both Adey and the insurer, and moved for summary judgment. Justice Teresi found that Adey is liable, but that there is no cause of action against the insurance company. Since Adey was not authorized to divulge information from client files to outsiders, it could not be argued that she was acting in furtherance of some duty owed to the employer, said Teresi, who found that she ``was acting solely to benefit herself.''=20 Therefore, the insurer could not be subjected to vicarious tort liability. But Teresi pointed out that the case shows how the changing nature of the health care system requires some rethinking of the traditional rules governing medical information. Whereas such information in the past would stay locked up in the files of a doctor or counsellor, today those files must be produced for the managed care company or HMO. Information that a patient or client has reason to believe will be treated as confidential is thus exposed to dissemination by third parties. ``Legislative action is warranted to afford citizens the protection that is both expected and relied upon,'' wrote Teresi, who pointed out that clients have to be forthcoming about confidential information if their counselling is to be beneficial. ``It is imperative that this sort of information be kept confidential. It appears reasonable that an employer, who knows his employees will have access to this type of information, be held to more exacting standards than the present law allows.'' A.S.L. Lesbian/Gay Litigation Notes Russell Henderson, one of two men charged with the murder of Matthew Shepard in October 1998, perhaps the most notorious hate crime prosecution currently pending, pled guilty to kidnapping and second degree murder on April 5 before Wyoming District Judge Jeffrey Donnell in Laramie just as the case was set to come to trial. Donnell sentenced Henderson, who recounted his version of the incident in open court, to two consecutive life sentences. In comments to the press leading up to the trial, Henderson's attorney indicated that the other man accused in the case, Aaron J. McKinney, was actually the mastermind of the kidnapping and murder and that Henderson was more of a witness than a participant.=20 McKinney is set to stand trial this summer, and observers speculated that prosecutors, who were seeking the death penalty in both cases, agreed to a plea bargain with Henderson to get his testimony against McKinney. Local legal experts told the _New York Times_ that there was virtually no chance that Henderson would ever be eligible for parole. _New York Times_, April 6. A man charged with the murder of his same-sex partner will be allowed to raise a ``battered spouse'' defense in a pending trial in New York Supreme Court, Kings County. _People v. Pickett_. N.Y. Supreme Court Justice John M. Leventhal ruled April 22 that, in light of the testimony John Pickett will submit on the reason why he stabbed his partner John Stagno, he should be able to make the argument that courts have accepted in cases involving battered wives who strike out against their husbands in self-defense, and to present expert testimony on this point.=20 According to Pickett's attorney, Arthur Aidala, this argument has not previously been allowed in a New York court in a case involving a same-sex couple, and his research showed only one prior same-sex application in a Florida case from the early 1990's involving two lesbians. According to news reports, the decedent, Stagno, was a jealous and controlling boyfriend who used threats of violence to keep Pickett from ending their relationship. Pickett claims that he stabbed Stagno during the confrontation in which Stagno was threatening him with a knife and a bottle. Jury selection was scheduled to begin during the last week of April. _New York Times_, _New York Post_, April 25. A transsexual subjected to a strip search in a county jail to confirm her gender won $755,000 in damages from a federal jury in San Francisco on April 19, of which $5,000 was punitive damages against the federal deputy who ordered the search and $750,000 was compensatory damages for emotional pain and suffering.=20 _Schneider v. U.S._, U.S.Dist.Ct., N.D.Cal. Victoria Schneider was arrested on a prostitution charge on June 13, 1996, and initially booked as a male, but protested that she was a woman and feared for her safety if placed into a cell with men; the deputy said she would have to submit to a strip search to confirm her sex in order to rebooked as a female. Schneider observed that she had previously been strip-searched by deputies in the same facility a few years earlier and should not have to submit to this again. In arguing that her constitutional rights had been violated, Schneider's attorney, Nanci Clarence, cited a prior 9th Circuit ruling that a strip-search may only be performed when there is reasonable suspicion that the arrestee is concealing contraband.=20 _Los Angeles Times_, April 20. The ACLU of Arkansas has sued the state over a new policy that prohibits lesbians and gay men from being foster parents. The complaint in _Sands v. Child Welfare Agency Review Board_, filed April 6 in the Pulaski County Chancery Court, is brought on behalf of six prospective foster parents, including a gay couple who are already raising two adopted children, and a straight married man who is barred from being a foster parent because his 18-year-old gay son lives at home. (The policy bans approval of foster parents where there is any gay person living in the household.) The complaint alleges that the policy violates existing agency and state laws, as well as the plaintiffs' rights to equal protection, privacy, and intimate association under both the state and federal constitutions. The lawsuit was prepared with the assistance of the ACLU's National Lesbian and Gay Rights Project. _ACLU Press Release_, April 6; _Memphis Commercial Appeal_, April 7. The ACLU of Illinois filed a class action suit in U.S. District Court in Chicago on April 14 seeking to end federal and Illinois government sponsorship of Boy Scouts of America programs, on the grounds that the Scouts discriminate against those who will not affirm a belief in God. The ACLU suit claims that government sponsorship of programs under such circumstances violates the separation of church and state mandated by the First Amendment of the Constitution. The named defendants in _Winkler v. Scott Air Force Base_ are a military installation and the Chicago Public Schools, both of which current sponsor Scout activities. ACLU staff counsel Roger Leishman, who directs the ACLU of Illinois's lesbian and gay rights and AIDS work, is lead counsel for the case. _ACLU Press Release_. A gay man from Dominica, a Caribbean island, who brought a breach of contrac= t action against a Catholic religious order that reneged on its promise of s= ponsorship and support in an educational program in the U.S. after learning = of his sexual orientation, achieved a satisfactory settlement late in April = that will allow him to complete his bachelor degree in the United States. G= regg Thomas was recruited by the Redemptorist order to come to New York to a= ttend St. John's University, with the goal of becoming a priest in the order= . Part of the deal included housing a the St. Alphonsus Formation Residence,= owned by the religious order, and sponsorship for his visa process with the= Immigration Service. At the time he was recruited, Thomas was not told abo= ut or given a copy of the Redemptorist's policy with respect to sexual orien= tation. In February, Thomas charged, the Redemptorist official who administ= ers the residence searched his mail and found a copy of Out Magazine; the of= ficial told Thomas that he was in violation of the order's guidelines, which= allow gay people to serve as priests provided that they are celibate, and r= efrain from any participation in a gay lifestyle or in the gay community. Th= omas claimed that the Redemptorists tried to force him out of the residence,= to suspend their financial support, and contacted the Immigration Service t= o say that they were withdrawing their sponsorship of his stay in the U.S. = Thomas sued in New York Supreme Court in Queens, arguing that the sponsorshi= p documents signed by the order were contractually binding and enforceable. = (This is a doubtful theory under U.S. immigration law.) At the urging of th= e trial judge, the order settled for an undisclosed sum of money which will = make it possible for Thomas to stay in the U.S. and complete his studies at = St. John's. This account of the case is drawn from a May 6 article in _LGNY= (Lesbian & Gay New York)_ and conversations with Thomas's attorney, LeGaL m= ember Tom Shanahan. U.S. District Judge David Levi (N.D.Cal.) in Sacramento ruled early in April that the California Department of Corrections had improperly ``denied, delayed and intentionally interfered'' with medical treatment required by a transsexual inmate in violation of the 8th Amendment's ban on cruel and unusual punishment. According to Judge Levi, the refusal of prison officials to provide hormone treatments for Torey Tuesday South, who was incarcerated on a theft charge, showed that the defendants were ``deliverately indifferent to her serious medical needs.'' South was diagnosed upon incarceration as suffering from gender identity disorder; she continually requested hormone treatments but did not receive them until after she had been twice transferred; she received the treatments at her next facility, but upon subsequent transfer was denied them again. The court found that during periods when she was deprived of the treatments, she suffered dizziness, hot flashes and extended severe stomach upset, as well as unwanted emergence of male physical characteristics. _San Francisco Chronicle_, April 7; _Sacramento Bee_, April 9. =20 Ellis County, Texas, Court-at-Law Judge Bob Carroll apparently can't abide the notion that a child might be exposed to gay people, so he ordered infant Bradyn taken from the home of Rudy Salinas and Scott Dowdle, even though Salinas told the court that he is not gay and that he and Dowdle are merely sharing their mobile home for economic reasons. Salinas and Dowdle, both in their mid-30's, moved in together after divorcing their wives. The two men are raising Salinas's 10-year-old daughter together. Baby Bradyn, who is not related to Salinas, is the son of Salinas's ex-wife, who is in jail on drug charges. The boy's father is also in jail on various other charges, and stated agreement with the judge's decision. Carroll did not explain his order beyond asserting that the ``current placement of the child . . . is not in the best interest of the child.'' Child Protective Service investigators told the judge that it would not matter to them if Salinas and Dowdle were in a homosexual relationship, because that would not affect the best interest of the child, but the agency does not plan to appeal the ruling. But the men were planning to appeal, with support from Fathers for Equal Rights, a Dallas-based organization.=20 _Houston Chronicle_, April 18. =20 Gay & Lesbian Advocates & Defenders (GLAD), New England's lesbian and gay public interest law firm, has filed suit under the federal Equal Credit Opportunity Act, which forbids sex discrimination in lending, against a bank that required a transsexual to go home and change clothes before applying for a loan. The suit on behalf of Lucas Rosa, a male transsexual who frequently dresses in feminine garb, was filed April 29 in the U.S. District Court for Massachusetts. When Rosa, dressed as a woman, requested a loan application from an officer of Park West Bank & Trust Co., the officer asked to see identification. Rosa produced three photo ID's, one depicting him in male dress, one in female dress, and one in gender-indeterminate dress. The officer demanded that Rosa go home and change into male dress before submitting an application.=20 Relying on _Hopkins v. Price Waterhouse_, in which the U.S. Supreme Court found sex-stereotyping to be evidence of sex discrimination a Title VII employment discrimination case, GLAD is arguing that the sex discrimination provisions of the ECOA should similarly be interpreted to forbid lenders from engaging in gender stereotyping of potential borrowers. The complaint also includes a claim of discrimination under the Massachusetts Law Against Discrimination, which forbids discrimination in credit on the basis of sex or actual or perceived sexual orientation. GLAD attorneys Jennifer Levi and Mary Bonauto represent Rosa. A.S.L. Legislative Notes The New Hampshire Senate voted 18-6 on April 22 to repeal the state's statutory ban on lesbians and gay men serving as adoptive or foster parents. A similar repeal had previously been voted by the state's House of Representatives, and Governor Jeanne Shaheen was expected to sign the bill by the end of April. New Hampshire was only the second state to adopt such a ban, following an incident involving the placement of two young boys with a gay couple in Boston that blew up into a New England mass media controversy during the mid-1980s. The first such state was Florida, which enacted its ban in the wake of the 1977 Anita Bryant ``Save Our Children'' crusade. The Florida courts have rejected numerous constitutional challenges to that state's ban; the New Hampshire ban was ``pre-approved'' by the state's Supreme Court in response to a certified question by the legislature while it was pending. =20 The Arizona state house has approved a wide-ranging criminal code reform bill that includes a repeal of criminal penalties for consensual sodomy, adultery, and cohabitation, and that also includes extending protection of domestic violence laws to persons of the same sex who live together. Two openly-gay legislators, Steve May (Rep.) and Ken Cheuvront (Dem.), sponsored the amendment that added the repeal provisions to the measure, with support from Democrats and moderate Republicans. There are no similar provisions in the criminal code reform bill that passed the Senate, so the fate of these provisions rests with the conference committee that will reconcile the bills. The _Tucson Citizen_ (April 24) reported that the conference committee is likely to be ``dominated by social conservatives who oppose the new provisions,'' so celebration may be premature. For the first time, the Texas House of Representatives has approved a hate c= rimes bill that includes sexual orientation among the specified categories. = The bill survived a first vote on April 27, and was expected to receive fin= al passage shortly thereafter. The measure is still pending in the Senate. = Texas enacted a hate crimes law in 1993, but omitted sexual orientation at = that time, and an attempt to amend the bill to add sexual orientation failed= in 1995. Even if the bill passes both houses, Governor George W. Bush has = stated his opposition to the measure in the past, so there is a possibility = of a veto. The 83-61 margin of approval in the House was not sufficient for= a veto override. _Austin American-Statesman_, April 28. A bill to outlaw sexual orientation discrimination made it out of committee to the floor of the Colorado House for the first time this session, only to fall four votes short of enactment on April 14. 24 Democrats and 5 Republicans supported the measure, but 33 votes were needed to prevail. _The Gazette_, April 15. In Maryland, a sexual orientation discrimination bill passed the House of Delegates, but was bottled up by opponents in the Senate Judicial Proceedings Committee. _Washington Post_, April 13.=20 In Baton Rouge, Louisiana, the Louisiana Senate Committee on Labor and Industry voted 3-2 on April 22 to approve S.B. 999, a sexual orientation discrimination bill. The three committee Democrats voted in favor; two Republicans voted against, and two other Republicans were recorded as absent. The bill exempts businesses with fewer than 15 full-time employees and religious organizations from compliance, and would not require domestic partnership benefits programs. _New Orleans Times-Picayune_, April 23.=20 A.S.L. For the first time, a gay rights bill has emerged from committee in the New = York State Senate and has been placed on the floor calendar. However, propo= nents of the bill, which has passed the State Assembly by a large margin eve= ry year for many years, with bipartisan support most recently, still face an= uphill battle to persuade Senate Majority Leader Joseph Bruno, a Republican= , to bring the measure to a vote. Although the bill has Republican co-spons= orship in the Senate, Bruno has stated his repeated opposition to the measur= e, and in the past the Senate Republican caucus has always voted against all= owing the measure to go to the floor. _N.Y. Blade News_, April 23. The Broward County, Florida, Commission has revised its domestic partnership ordinance, partly in response to a pending lawsuit and partly as a result of cost estimates of compliance. The ordinance, which was originally passed in January, broadly defined domestic partners to include blood relatives of county employees who were living with them; under the revision, only spouses, children, and unrelated adult partners will be covered. The county budget director had informed the Commission that under the broader definition, costs of coverage might increase as much as 30%.=20 Reacting directly to the lawsuit, the Commission amended the ordinance to provide that it may not conflict with federal, state or other local ordinances. Finally, the Commission added a waiting period of at least 30 days between the end of one partnership and the registration of a new one, and specified that no county employee can received benefits for more than one domestic partner in a year. The Commission took its action on April 27. Broward Circuit Judge Robert Andrews was expected to rule shortly on the claim filed by Concerned Citizens of Broward that the ordinance violates the state's Defense of Marriage Act. _Sun Sentinel_, Ft. Lauderdale, April 28. The Cook County, Illinois, Board of Commissioners passed an ordinance that extends employee benefits eligibility for same-sex partners of county employees. The 9-6 vote, with two commissioners voting ``present,'' was taken on April 6 after a heated debate. _Chicago Tribune_, April 7. The Pinellas County, Florida, board of education has become the third in tha= t state to adopt a formal policy to protect lesbian and gay students and sch= ool employees from harassment and discrimination based on sexual orientation= . An initial vote to adopt such a policy for district students, taken in Ma= rch, was expanded to include employees in April. _St. Petersburg Times_, Ap= ril 28. The _Bangor Daily News_ of Bangor, Maine, reported April 28 that the Falmouth Town Council unanimously voted on April 26 to adopt an ordinance banning discrimination on the basis of sexual orientation in employment, housing, credit, education and public accommodations. The ordinance does not apply to renting a room in a private home or employing somebody in a private home. The ordinance follows up on a December action by the Council in which it amended the town's personnel policy to ban such discrimination by the town in its employment practices. A.S.L. Law & Society Notes In an article published in _Science_ on April 23, a group of Canadian scientists announced that their attempt to confirm the ``gay gene'' theory promulgated by Dr. Dean Hamer of the U.S. National Cancer Institute had been unsuccessful.=20 Studying gay brothers from 48 families, they were unable to reproduce Dr. Hamer's research result showing evidence of a similar chromosomal structure in the same genetic location among the brothers. Hamer responded by asserting that other researchers had found evidence to corroborate his findings. _Associated Press_, April 23. _N.Y. Blade News_ (April 23) reports that openly-lesbian San Francisco Super= ior Court Judge Donna J. Hitchens has issued a ``Decree of Parental Relation= ship'' to San Francisco residents Linda McAllister and Leslee Subak on March= 1. At the time, Subak was pregnant by donor insemination and expecting to = give birth in three weeks. Their child, named Max McAllister, was born on M= arch 20. The Decree purportedly removes the need for the women to petition = to make McAllister the child's legal mother through second-parent adoption. = Judge Hitchens was building on a precedent established by Superior Court Ju= dge Thomas Mellon, who, in response to a second-parent adoption petition fro= m a lesbian couple, instead ruled that the women already were the legal co-p= arents of their child, an issued a decree to that effect. Of course, the re= al legal effectiveness of this device remains to be demonstrated, and won't = be truly tested until some legal forum is asked to determine its validity in= another context, e.g., the couple separates and litigation ensues over visi= tation rights. =20 Laws against ``cohabitation'' remain on the books in several states but are generally regarded as a ``dead letter'' in this age when many unmarried adults live together. But they still have consequences, as the _Sunday Star-News_ in Wilmington, North Carolina, reported April 25, recounting how the North Carolina Victims Compensation Fund Commission has turned down numerous claims for compensation by crime victims on the grounds that the victims are illegally cohabiting. The newspaper reports that under the enabling law for the Commission, ``claims must be denied if the victim was participating in a felony or a nontraffic misdemeanor at or about the time he was injured. That includes cohabitation and adultery.'' Bills have been introduced in the state assembly to amend the compensation law to remove this obstacle or to repeal the cohabitation law; the former is believed to have some support, but the sponsor of the later holds out little hope for passage. Since the compensation law was amended in 1994 to add the above-described provision, at least 47 compensation claims have been turned down by citation to the cohabitation law.=20 The article reports that gay rights groups in the state have been leading proponents of repealing the cohabitation law, pointing out that same-sex couples, who are denied the right to marry, are subject to possible prosecution under the cohabitation law. (In some states the application of cohabitation laws has been restricted to opposite-sex couples, but that is apparently not the case in North Carolina.) In response to the mailing of an anti-gay marriage letter to all Vermont res= idents, two of the state's Democratic political leaders have come out in fav= or of same-sex marriage. The Associated Press reported April 30 that Lt. Go= vernor Doug Racine and House Speaker Michael Obuchowski have both indicated = that they would support legal marriage for same-sex couples. The issue is n= ow pending before the Vermont Supreme Court, which is expected to rule short= ly. A spokesperson for Gov. Howard Dean said that the governor would have n= o comment until after the court rules. Further on the subject of same-sex marriage, United Methodist minister Rev. = Jimmy Creech, who was acquitted last year in a U.M. church trial after perfo= rming a marriage ceremony for a lesbian couple, is tempting fate again, havi= ng officiated April 24 in a ceremony for two men in Raleigh, North Carolina.= _Associated Press_, April 28. The Unitarian Universalist Association, a liberal denomination that supports= gay rights and has been openly critical of the Boy Scouts of America for re= fusing to allowing gay people to participate in that organization, has agree= d to remove an explicit condemnation of the Boy Scouts from its church manua= l in order to end a ban by the Scouts on UUA churches awarding religious cer= tificates to Scout members. However, the UUA will issue a separate document= reaffirming its opposition to Scouting discrimination. _Boston Globe_, Apri= l 30. =20 The on-going struggle over domestic partnership benefits at the University of Pittsburgh received continued press attention during April with a faculty assembly vote calling on the University to drop its challenge to the Pittsburgh human rights ordinance and a student hunger strike ending dramatically with the collapse and hospitalization of one of the strikers. Following the collapse of the hunge= r strike, a group of protesters began what they said would be a round-the-cl= ock sit-in outside the school trustees' office. Reacting to an uproar resulting from her prior decision to remove ``sexual orientation'' from the school's official equal opportunity statement, Emporia State University President Kay Schallenkamp has accepted recommendations from faculty and staff organizations to adopt a non-discrimination statement on sexual orientation. The policy statement asserts that the University ``does not tolerate discrimination based on race, color, creed . . . or sexual orientation.'' Student government leaders, who had urged a straightforward reinstatement of the original provision, expressed disappointment that sexual orientation will only be included in a separate statement. Schallenkamp claimed she originally removed ``sexual orientation'' from the official policy on advice of university counsel, who pointed out that sexual orientation was not covered by applicable federal or state law. _Kansas City Star_, April 21. A.S.L. Developments in European and U.K. Law _U.K. Age of Consent_ On April 13, the second attempt since 1997 to equalize the age of consent to sexual activity in the United Kingdom at 16 failed in the House of Lords. (See 1998 LGLN 135 for the first attempt.) The Sexual Offences (Amendment) Bill (1999 LGLN 41) had passed through all its stages in the House of Commons. The debate in the Lords (which runs to 107 pages) is available at http://www.the-stationery- office.co.uk/pa/ld/ldhansrd.htm (April 13, Columns 647-761).=20 Baroness Young led the opposition again. She noted correctly that the Bill ``allows for the first time anal intercourse on 16- year-old girls ... another equal opportunity ... of a rather curious character!'' (The age of consent to male-male or male- female anal intercourse is currently equal at 18, but has a disparate impact on gay and bisexual men.) ``Both teenage boys and girls will now be exposed to all the risks of anal intercourse; they will be far more likely to run the risk of AIDS. It is very interesting that ... any man who has ever engaged in homosexual activity is barred permanently from giving blood by the National Health Service.'' Her main argument was that ``[b]oys in particular are often less mature than girls at 16, and not infrequently ambivalent about their sexuality. Good parents do not want their sons to be encouraged to take up homosexual relationships at such an early age.'' By voting against the Bill, ``we shall be supporting . . . young people . . . good and responsible parents . . . [and] the institution of marriage.'' Lord Cope rejected ``the logic of the `equality' argument . . . [which] would demand their right to homosexual marriage [and] involve a great number of moral and practical problems.'' Earl Ferrers observed that ``the most . . . upright of people can be drawn . . . into stealing, or thuggery, or rape, or murder, or even cannibalism, by the circumstances in which they . . . find themselves. The same applies to homosexuality.'' The Earl of Longford commented that ``[a] lot of women . . . find homosexuals rather harmless, almost pathetic people and seem to like them. So the best speeches in these debates in favour of the homosexual side seem to be made by women . . .'' According to Lord Ashbourne, ``homosexuality . . . is still regarded by conservative psychiatric professionals as pathological, and it can be successfully treated. The law of Almighty God . . . views homosexual activity a crime at any age.'' In spite of a speech in favour of the Bill by the new, 34-year-old, openly gay Lord Waheed Alli, and the support of such groups as the British Medical Association, the Royal College of Nursing, Save the Children, and the Family Welfare Association,=20 the Bill was rejected by a vote of 222 to 146. The 222 against included 120 hereditary peers, most of whom are about to lose their right to vote in the Lords under the Lords Reform Bill. The Sexual Offences (Amendment) Bill will be introduced again in the 1999-2000 session of Parliament. Under the Parliament Acts 1911 and 1949, it can be passed by the House of Commons without the consent of the Lords on 25 January 2000 and will become law a few months later.=20 _European Convention and Group Sexual Activity_. On March 16, the European Court of Human Rights declared admissible a case of sexual orientation discrimination for the third time since its new procedures came into effect on Nov. 1, 1998 (see 1999 LGLN 57- 58 for the other two). This flurry of activity is noteworthy because, since its first judgment in 1960, the court has heard only three clear-cut cases of sexual orientation discrimination, in 1981, 1988 and 1993. _A.D.T v. United Kingdom_ (Application No. 35765/97) (available in English at http://www.dhcour.coe.fr/hudoc) involves a challenge under Articles 8 (respect for private life) and 14 (discrimination) of the Convention to the applicant's conviction for ``gross indecency.'' He and four other adult men had engaged in consensual acts of oral sex and mutual masturbation, not involving sado-masochism or physical harm, in the applicant's home. The sexual activity was illegal because more than two persons took part, which made it not ``in private.'' Similar male-female or female-female sexual activity is legal (see 1997 LGLN 78). The prosecution occurred because a video of the activity had been made, but the charge was based on the acts depicted rather than the making or distribution of the video. Oral argument on the merits will be scheduled for later this year. _European Convention and Unmarried Male-Female Couples_. On Jan. 26, in _Saucedo G=F3mez v. Spain_ (Application No. 37784/97) (available in French at http://www.dhcour.coe.fr/hudoc), the court declared inadmissible an application challenging under Articles 8 (respect for family life) and 14 (discrimination) the refusal of a Spanish court to apply Civil Code provisions on allocation of the matrimonial home and payment of alimony to the ``divorce'' of an unmarried male-female couple. The female applicant had lived with her male partner for 18 years, while she was legally married to another man. For the first 7 years, she could not marry her partner because divorce did not exist in Spain.=20 The court held against her the failure to seek a divorce after 1981, and found that distinctions between legal spouses and unmarried partners had an objective and reasonable justification, i.e., ``the protection of the traditional family.'' The court noted that ``social reality shows the existence of stable unions between men and women [outside marriage] ... It is not however for the court to dictate, nor even to indicate, the measures to be taken in relation to such unions, the question being one within the margin of appreciation of the respondent government, which has the free choice of the means to be employed, as long as they are consistent with the obligation to respect family life protected by the Convention.'' This statement does not bode well for same-sex couples invoking the Convention. Unmarried male- female couples have been held by the court and the European Commission of Human Rights to have a ``family life,'' whereas same-sex couples have been held by the Commission (but not yet by the court) to have only a ``private life'' and not a ``family life.'' =20 _European Community Treaty Amendment_. On May 1, the Treaty of Amsterdam (signed on Oct. 2, 1997) came into force, having been ratified by all 15 member states of the European Union. It inserts a new Article 13 (formerly Article 6a) into the Treaty establishing the European Community (1957 Treaty of Rome). For the text, see 1997 LGLN 104, 148. Article 13 authorises, but does not require, new EC legislation banning employment discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The European Commission (the executive of the EC) is expected to propose legislation soon covering all these grounds (perhaps excluding sex, which is covered by existing legislation). All 15 member states (acting as the Council) must agree, but a member state opposed to the inclusion of sexual orientation might be reluctant to veto a package including racial or ethnic origin and religion. The Commission could respond to a veto in the Council by withdrawing its proposal entirely rather than amending it by deleting sexual orientation. The Council can legislate under Article 13 only by adopting a proposal from the Commission. An interesting stand-off is possible. _Robert Wintemute_ Other International Notes A rumor that will not die. . . Once again the press in the United Kingdom is reporting that the Labour Government intends to bring a proposal to the House of Commons to end the ban on military service by lesbians and gay men. The press speculated that both Prime Minister Tony Blair and Conservative Party Leader William Hague would support the measure and that it would carry, even though the leaders would give members a free vote and not insist on party discipline on the proposal. _Scottish Daily Record_, April 7. _The Independent_ (London, April 25) reported that the British home office has decided to relax the rules on citizenship for gay immigrants who come to England to live with partners who are British citizens. The change would halve the amount of time that the couples have to live together before the immigrant can apply for British citizenship. =20 Anwar Ibrahim, the former Indonesian deputy premier who was convicted on charges of corruption on April 14, has filed his appeal. He has still to stand trial, together with his adopted brother, Sukma, on charges of committing sodomy with Azizan Abu Bakar. Ibrahim had claimed that the sodomy charges were cooked up for political reasons. The court is expected to set a date for the criminal trial when it next convenes to consider this matter on May 4. _New Straits Times_, April 28. A.S.L. Neil Roberts, an Australian man who is barred from driving because of a drink-driving conviction has petitioned the Perth Magistrate's Court for an extraordinary license so he can drive his partner, Steven Roebuck, a person living with AIDS, to medical appointments. Such special licenses are available under Australia's Road Traffic Act of 1974, which states that a magistrate may take into account ``the degree of hardship and inconvenience that would result to the applicant and his family.'' At first, Magistrate Deborah Bennett-Borlase refused to hear the evidence, but she was subsequently persuaded to give Roberts' lawyer, John Hockley, a one-month adjournment to develop more evidence. After the hearing, Hockley vowed to pursue the case to the Supreme Court if need be to establish that gay partners should be considered family members under the Act.=20 _The West Australian_, April 22. Professional Notes Australian newspapers reported April 19 that Mr. Justice Michael Kirby of the Supreme Court of Australia had finally ``come out'' officially by listing his same-sex domestic partner in his biographical entry in the new edition of _Who's Who in Australia_. That Justice Kirby is gay has been an open secret in government and legal circles for many years, but just not spoken about in the press. Kirby has been no shrinking violet on gay issues, either, having made numerous speeches and published articles calling for outlawing anti-gay discrimination, repealing sodomy laws, and legislating to protect persons with AIDS from discrimination. The _Who's Who_ entry apparently gave the Australian press the opening they needed to report about his sexuality without apologies. =20 Mr. Justice Edwin Cameron of the High Court of South Africa, under consideration by the Judicial Service Commission for appointment to the Constitutional Court, which is the nation's highest court, has disclosed to the Commission that he is a person living with AIDS. According to a statement distributed by members of the law faculty at Witswatersrand University, where the openly-gay Cameron has taught, he decided to make this disclosure ``because of talk in the legal community about my health condition, which it seems best to deal with frontally.'' Cameron emphasized that he could make this disclosure because of his privileged circumstances: ``because I have a job position that is secure; because I am surrounded by loved ones, friends and colleagues who support me; and because I have access to medical care and treatment that ensures that I remain strong, healthy and productive.'' Cameron also stated that ``for millions of South Africans living with HIV/AIDS, these conditions do not exist,'' and expressed hope that his decision to speak about his own situation ``may contribute to a greater climate of openness and caring, and to the prospect of proper medical treatment, for all South Africans living with HIV or AIDS.'' Lambda Legal Defense Fund has hired Matthew Roberts to be Midwest Regional Director in its Chicago office. Roberts, who has a doctorate in public policy and was previously a managing director of public and corporate affairs at Hill & Knowlton, Inc., in Washington, D.C., will be responsible for Lambda's administration, fundraising and public education work in the states of Minnesota, Wisconsin, Michigan, Iowa, Missouri, Illinois, Indiana, and Ohio. His appointment will free up Patricia Logue, Lambda's principal attorney in the Chicago office, to concentrate on civil rights litigation. =20 The HIV Law Project in New York is accepting applications for the position of Litigation Director. The job announcement specified at least 7 years of experience, including impact litigation, basic knowledge of poverty and women's rights law. Job responsibilities include litigating, supervising legal and paralegal staff, training staff, overseeing training to clients and staff at community-based AIDS organizations, program planning and evaluation and reporting to funders. Applicants should send a resume and cover letter by regular mail to: Roma Baran, Esq., HIV Law Project, 841 Broadway, Suite 608, New York NY 10003. The job announcement did not specify compensation or a deadline for submissions, but emphasized that people of color, lesbians, gay men, women and HIV+ individuals are encouraged to apply. =20 A reminder that a conference organized by our contributing writer, Robert Wintemute of King's College, London, on Legal Recognition of Same-Sex Partnerships, will be held at the College on July 1-3, 1999. For information and registration materials, consult: . A.S.L. AIDS & RELATED LEGAL NOTES Maryland High Court: Hospital Not Liable for Resuscitating PWA The parents of a person with AIDS, now deceased, who was resuscitated after cardiac arrest, have failed in their attempt to hold the hospital liable for failing to honor the patient's prior ``Do Not Resuscitate'' request. _Wright v. Johns Hopkins Health Systems Corp._, 1999 WL 225614 (Md.App., April 20). =20 Robert Lee Wright, diagnosed HIV+ during the 1980s, began receiving HIV-related treatment on an outpatient basis at one of the Johns Hopkins clinics in 1990. During a case management assessment in 1993, Wright filled out a form on which he checked off ``Do Not Resuscitate'' and also made a request for assistance in completing a living will and a power of attorney.=20 A few weeks later, he executed a living will, under which he asked that life-sustaining procedures be withheld if two doctors (including his attending physician) agreed that his death was imminent and such procedures would only prolong the process. He also executed a power of attorney, designating his mother to make medical decisions for him if he was incapable of doing so. On July 18, 1994, Wright, then 33, came to Johns Hopkins by ambulance, suffering from acute renal failure. At the time, his attending physician estimated that he had about six months to live. He received treatment, was stabilized, and was to receive a blood transfusion on July 20 before being discharged back to his home. He telephoned his mother to arrange for transportation home and then had the transfusion. Within minutes after the transfusion, he was found unresponsive and without a pulse, having suffered cardiac arrest. The resident assigned to his care immediately directed that CPR be administered, and he was intubated to assist his breathing and placed in the intensive care unit. Then his parents were notified. When his parents arrived at the ICU, his mother overheard a nurse saying that she had ``called the code'' on Wright before looking at the chart. His mother also alleged that the physician in charge of the ICU (not part of the resuscitation team) came to her and apologized on behalf of the team for resuscitating Wright. He said that the team now realized that he had a DNR order on file and a living will. Mrs. Wright asked that the breathing tube be removed and Robert be taken out of the ICU, which was done. He spent two days in a coma, then revived but only enough to moan and call out for his mother, not to carry on intelligent conversation or exhibit awareness of what was happening. He died ten days after the cardiac incident. The Wrights sued Johns Hopkins for resuscitating Wright, intubating him and putting him in the ICU, claiming that the hospital was negligent in not following Wright's directives.=20 Their suit foundered, however, on two critical points. First, the living will, by its terms, would only go into effect if two physicians certified that his death was imminent. His attending physician testified, however, that his death was not imminent; he had an expected life at that point of six months, and the cardiac arrest was characterized as a reversible setback. In addition, although Wright had checked off DNR on the case management form, which was in his central hospital file, there was no DNR indication on his medical chart at bedside, and no evidence that he had actually discussed his wish not to be resuscitated with the doctors who were providing care for him at that time. There had been two prior occasions when Wright had mentioned his DNR desires to doctors treating him at Hopkins, but not during this particular hospitalization. The Court of Appeals, affirming the trial court, found that under these circumstances the hospital had not breached any duty to Wright, and would not adopt a common law rule that would require the hospital to proceed differently than it had under the circumstances. The court was also unwilling to find that Wright's execution of a power of attorney required the hospital to get specific authorization from his mother before attempting to revive him. A.S.L. 10th Circuit Awards Disability Benefits to Person With HIV, Reversing Social Security Administration and District Court The Tenth Circuit Court of Appeals reversed the decisions of an ALJ and the District Court to award a claimant Social Security disability insurance benefits based on his HIV status.=20 _Kapitan v. Apfel_, 1999 WL 191107 (April 5). =20 An Administrative Law Judge rejected Robert Kapitan's claim for Social Security disability insurance benefits on the ground that he had not shown that his condition precluded substantial gainful activity, the standard for an award of benefits. Kapitan's physician's documentation of his disability claimed that he met two regulatory categories of disability: that his HIV infection and HIV encephalopathy were characterized by cognitive and motor dysfunction, and that his repeated manifestations of HIV infection led to a marked restriction of daily living activities.=20 The Tenth Circuit found that the ALJ's rejection of both criteria were not supported by the evidence. =20 The ALJ had rejected Kapitan's eligibility under the cognitive/motor dysfunction category because his complaints of motor dysfunction were intermittent and his cognitive impairment was moderate. Noting that there was no requirement in the regulation that the impairments be severe, the court found that the ALJ had disregarded the physician's opinion without offering any reason for doing so, and had misinterpreted the regulation.=20 As to the second category, Kapitan's physician had listed the disabling manifestations of his HIV infection as schizophrenia, HIV-related motor changes, constant fatigue and recurrent diarrhea. The ALJ had rejected the doctor's claim of a connection between Kapitan's HIV status and his schizophrenia as not being supported by the medical records. The doctor's notes, however, showed chronic psychiatric difficulties, and personality test scores which were consistent with schizophrenia.=20 Also, the court found that Kapitan's other symptoms resulted in a marked restriction of his daily life, concluding that the ALJ had failed to consider the total impact of Kapitan's combination of HIV manifestations and gave no good reasons to reject the doctor's opinion that these manifestations seriously interfered with Kapitan's ability to function independently, appropriately and effectively. =20 The Tenth Circuit reversed the ALJ's decision, and, rather than remand for further proceedings, awarded Kapitan his benefits.=20 _Dirk Williams_=20 Federal Court Rejects HIV+ Applicant's Disability Benefits Claim U.S. District Judge Larimer upheld an administrative finding that Joseph Vincent Batall was not entitled to additional disability benefits, despite HIV infection and suffering from depression. _Batall v. Apfel_, 1999 WL 221763 (W.D.N.Y., April 9.) Batall represented himself in appealing the administrative decision. On Oct. 16, 1995, Batall filed a claim for Social Security disability benefits, stating that he was disabled due solely to HIV infection beginning July 1, 1995. His initial claim was denied. After reconsideration, he was granted disability insurance based on HIV infection and depression as of January 1, 1996. Batall sought additional benefits, claiming disability as of ``early summer of 1995.'' =20 An Administrative Law Judge (ALJ) denied the claim, writing that ``prior to January 1, 1996, Batall had `...a severe impairment or combination of impairments but retained the residual functional capacity to return to the work he performed in the past.''' Batall sued in federal court on October 20, 1997.=20 In his federal suit, Batall claimed that his disability began on September 1, 1995. Batall has a four-year-accounting degree and worked as a collection manager, credit manager, and an accounts manager. Batall was diagnosed with HIV in November 1989. =20 At the hearing before the ALJ, Batall complained of extreme fatigue, vomiting, frequent nocturnal urination, and numbness.=20 The record included a series of written reports by Dr. Wolfe B. Gerecht, Batall's doctor in Missouri, who wrote that Batall had no HIV symptoms, experienced fatigue through August 16, 1994, but noted that Batall had ``no complaints'' save ``a little tiredness . . . [that] ... comes and goes.'' On September 25, 1995, Batall indicated that he slept twelve hours a night and napped during the day, but did not report ``other symptoms'' to Dr. Gerecht. Dr. Thomas Evans, Batall's current doctor in Rochester, New York, indicated that Batall had been treated for ``relatively moderate HIV disease as well as fairly severe depression.'' Dr. Evans's letter notes, ``[i]t should be known that Dr. Gerecht felt that Mr. Batall's disability secondary to combination of his HIV and depression began in July of 1995.'' =20 The ALJ found that Batall's ``description of pain and limitation was exaggerated and inconsistent, and was disproportionate to the objective medical findings.'' While Batall could not lift more than ten pounds, the ALJ found that his past employment did not require such lifting prior to January 1, 1996. =20 Chief Judge David Larimer found that the ALJ's decision was supported by substantial evidence. The court rejected consideration of a new letter from Dr. Gerecht ``which suggested that Batall was disabled after September 1, 1995'' because it should have been presented earlier. ``In any event,'' Larimer wrote, ``Dr. Gerecht's letter is contrary to the medical evidence.'' The court accepted the ALJ's finding that Batall's claims regarding his ability to work ``were not credible.'' _Daniel Schaffer_ District Judge Dismisses Discrimination Claims by Advocates for Persons Livi= ng With HIV/AIDS in Puerto Rico In _Sifre v. Department of Health_, 1999 WL 199576 (March 31), the U.S. Dist= rict Court for the District of Puerto Rico dismissed the claims of three pub= lic health employees who claimed that they were fired for zealous advocacy o= n behalf of clients with HIV and AIDS, in violation of the American with Dis= abilities Act ("ADA") and the Rehabilitation Act. In a series of substantiv= e and procedural rulings, Judge Pieras ruled that two of the employees, who = were not themselves disabled, were not covered under the Act. Only the empl= oyee who was himself blind could pursue a case of discrimination under the A= DA. In addition, Judge Pieras held that neither the ``association provision= '' nor the ``retaliation provision'' of the statutes protected the employees= from adverse employment action because of their activities. Finally, an ina= dequate ``right to sue'' letter prevented the only surviving claim from goin= g forward. =20 The three plaintiffs worked with the Ombudsman Office for HIV/AIDS, which wa= s created at the Puerto Rico Department of Health pursuant to an agreement w= ith the U.S. Department of Health and Human Services, the Office of Civil Ri= ghts and the Department of Health. Elesma Oliveras Sifre (Oliveras), in her= position as Ombudsman, advocated on behalf of patients with HIV and AIDS. = Specifically, she prepared a report on the management of medical records of = patients with HIV/ AIDS, opposed regulations regarding the transfer, disposa= l, exhumation and cremation of corpses of persons infected with HIV/ AIDS an= d the disposition of sero-positive patients, and reported on the harmful eff= ects of scheduling changing on HIV/AIDS health care personnel. For these ac= tivities, Oliveras claimed that she has been the subject of ``persecution, d= iscrimination, retaliation and harassment,'' and was ultimately fired on Jun= e 30, 1997. Carlos Aponte Ortiz (Aponte), who served as the Strategies and = Liaison Coordinator for the Ombudsman's office, alleged that he was transfer= red to another ``dependency'' in the Department of Health, effective June 30= , 1997, because of his positions on HIV/AIDS related issues and advocacy for= the rights of HIV/AIDS patients. Finally, Ruben Roman Cruz (Roman), who is= blind, served as an Investigation Analyst for the Ombudsman's Office. Roma= n claimed that he was dismissed from his position ``for his stance on variou= s regulations relating to HIV/AIDS patients as well as for his advocacy on b= ehalf of HIV/AIDS patients.'' Roman also claimed that, despite the fact tha= t his employer had made reasonable accommodations for his disability, he was= a victim of discrimination based on his blindness. Judge Pieras first ruled that neither Oliveras nor Aponte has made out a pri= ma facie case of discrimination under the ADA because neither met the thresh= old burden of having a disability. Only Roman, who was blind, could meet th= e prima facie requirements, because he alleged that he was qualified for his= position, that he is disabled, and that he lost his position because of his= blindness. Judge Pieras refused to extend the ``association provision'' of= the ADA to this case. The ADA defines ``discriminate'' as ``excluding or o= therwise denying jobs or benefits to a qualified individual because of the k= nown disability of an individual with whom the qualified individual is know = to have a relationship or association.'' Judge Pieras offered as an example,= a husband who is fired because his wife has a disability, and the employer = believes the husband would miss work or leave early to care for the spouse. = Judge Pieras noted that even though the plaintiffs were associated with peo= ple with disabilities, they had not alleged that they lost their positions b= ecause of this association with HIV/AIDS patients: ``To state a claim of as= sociation discrimination, a plaintiff must show that his or her employer too= k adverse action because of stereotypes or unfounded beliefs regarding the a= ssociate's disability.'' In this case, Judge Pieras found that the plaintif= fs did not claim that they were dismissed because of their employer's belief= s regarding people with HIV/AIDS. Instead, they were dismissed because of t= heir advocacy, and hence the claim should be analyzed as a retaliation claim= . He dismissed all of Oliveras's and Roman's claims under the Rehabilitatio= n Act and Roman's claims for associational discrimination. Turning to the retaliation claim, Judge Pieras ruled that the plaintiffs had= failed to prove that they were engaged in ``protected conduct'' under the A= DA and should not be subject to retaliation. In an amazing sentence, Judge = Pieras wrote: ``It is not apparent to the Court how the management of medica= l records of HIV/AIDS patients, treatment of corpses of HIV/AIDS inflicted p= ersons, disposition of patients infected with HIV/AIDS, and the scheduling o= f the `PASET personnel' is related to the conduct prohibited by the ADA rega= rding employment, public benefits or public accommodations.'' Noting that t= here were no other ``specific allegations'' of an ADA violation, Judge Piera= s dismissed these claims with prejudice as well. In determining wither the Defendants could be sued in their personal capacit= y, Judge Pieras noted that the plaintiffs had not argued an ``alter ego'' th= eory, by which the claims might have survived. Referring to one of his own = cases, _Santiago v. Lloyd_, 1998 WL 957775 (December 23), Judge Pieras sugge= sted that ``when a supervisor is more than a mere supervisor, but rather, th= e equivalent of the employer, he can be held individually liable under Title= VII.'' The question of individual liability under the ADA has not yet been= addressed by the Supreme Court or the First Circuit, however, and so, in th= e absence of an alter ego argument, Judge Pieras dismissed these claims with= prejudice. Finally, Judge Pieras eliminated the plaintiffs' remaining claims through pr= ocedural rules. He refused to allow the plaintiffs to amend their complaint= to incorporate a sec. 1983 violation for First Amendment violations, becaus= e the statute of limitations on the sec. 1983 claim had expired. The filing= of an EEOC claim had not tolled the statute because the EEOC claims were no= t ``identical substantive claims'' and because the EEOC had no jurisdiction = over the sec. 1983 claim. Judge Pieras referred to the same analysis in dis= missing the plaintiffs' Puerto Rico tort law claims, whose statute of limita= tions had also expired. Judge Pieras also found the plaintiffs' right to su= e letter inadequate, because it did not conform with federal requirements un= der sec. 1601.28, and the plaintiffs had not demonstrated that they had ``di= ligently yet unsuccessfully attempted to obtain the letter.'' As a result, = Romano's surviving ADA and Rehabilitation Act claims were dismissed without = prejudice. _Sharon McGowan_ 11th Circuit Bars Suits Against Government Officials in Their Individual Capacities Under FMLA Reversing a ruling by the U.S. District Court for the Southern District of Florida, a panel of the 11th Circuit Court of Appeals held in _Wascura v. Carver_, 169 F.3d 683 (March 9, 1999), that a Family & Medical Leave Act claim brought by a former municipal employee may not be asserted against city officials in their individual capacities. According to her complaint, Rosemary Wascura was an employee of the City of South Miami. Her son, Shane, suffered from AIDS, and as he became unable to care for himself, he moved back in with his parents. Wascura informed her supervisors that she might have to take some time off to care for Shane. Although Shane was twice hospitalized between August 1994 and May 1995, Wascura took off only 20 hours during this period and still had about 900 hours of available vacation and sick leave remaining.=20 Nonetheless, the mayor of the city confronted her and demanded that she resign because of her ``situation at home.'' When Wascura refused to resign, the mayor had her terminated at the next City Commission meeting. Wascura sued the mayor and several other city officials in their individual capacities, and also named the city as a defendant, claiming a violation of her right to leave under the Family and Medical Leave Act as well as discrimination under the Americans With Disabilities Act. The individual defendants moved to dismiss the claims against them on grounds of governmental immunity, but their motion was rejected by the district court.=20 Interlocutory appeal is allowed on governmental immunity rulings. Writing for the court, Circuit Judge Carnes observed that the definition of ``employer'' under the FMLA differs from most other civil rights statutes, but is almost identical to the definition found in the Fair Labor Standards Act. Referring to a prior 11th Circuit decision construing the FLSA's definition of employer in the context of a public employee suit naming individual government officials as defendants, Carnes found that the circuit had ruled that government officials are not ``employers'' in their individual capacities, but only in their official capacities. Carnes found that the prior case, _Welch v. Laney_, 57 F.3d 1004 (11th Cir. 1995), ``establishes as the law of this circuit that a public official sued in his individual capacity is not an `employer' subject to individual liability under the FLSA. Because `employer' is defined the same way in the FMLA and the FLSA, _Welch_ controls this case.'' The district court decision was reversed, with directions to dismiss the complaint against the individual defendants. =20 However, Wascura's action continues against the city. A.S.L. 2nd Circuit Finds District Court Moved Too Swiftly to Sanction Attorney in ``Frivolous'' AIDS Discrimination Case In _Forbes v. Merrill Lynch, Fenner & Smith, Inc._, 179 F.R.D. 107 (S.D.N.Y. 1998), District Judge Constance Baker Motley found that attorney Lee Nuwesra violated Rule 11 of the Federal Rules of Civil Procedure by bringing an AIDS discrimination case that was totally without merit, and ordered him to pay the defendants' attorney fees of $25,000. Nuwesra appealed this sanction to the 2nd Circuit. On April 22, in an unsigned order, a 3-judge panel vacated and remanded Motley's decision. _Nuwesra v. Merrill Lynch, Fenner & Smith, Inc._, 1999 WL 235648. The reversal was not, strictly speaking, based on the merits of Judge Motley's finding, but rather on the court of appeals' determination that she had not followed appropriate procedures in determining the sanction, thus compromising the attorney's right to due process. The defendants had not filed a motion under Rule 11; rather, Judge Motley raised the idea of sanctions sua sponte, and ordered a hearing on the amount of attorney fees. She did not specifically advise Nuwesra in advance of the hearing so that he could prepare an argument on the Rule 11 issues, and restricted the scope of the hearing as well. The court of appeals found that this violated his right to be heard on the merits. The court of appeals found that Rule 11 does not authorize a federal trial judge to impose an attorney fee award against counsel in such manner, but rather authorizes the court to impose the least punitive sanction that would be sufficient to deter the attorney from engaging in similar misconduct in the future. The court found that an award of attorney fees can only be made on motion by the prevailing party, and in this case Merrill Lynch had not filed such a motion. A.S.L. Federal Court Rejects AIDS HIV Discrimination Claim In _Clarke v. North Central Management_, 1999 WL 218557 (N.D. Ill. Apr. 5, 1999), U.S. District Judge Reinhard granted defendants summary judgment in a case brought by an HIV+ plaintiff, Craig Clarke, alleging ADA and ERISA violations. Clarke claimed that the defendants violated the ADA by not providing reasonable accommodations for Clarke's HIV-related condition, failing to promote him because of his HIV status, and discharging him because of his disability. Defendants allegedly violated ERISA by interfering with Clarke's right to a health care plan that was part of an employee benefits package. He claimed that he was discharged two weeks before he was eligible to participate in the health insurance plan because of his disability. Clarke was hired as a front desk clerk at the Hampton Inn in Rockford, Illinois in July 1996, but did not start working until September 3, 1996. He was diagnosed with HIV before he started working and told co-workers and managers that he was HIV+ on several occasions. Clarke received favorable reviews during his tenure, which ended June 20, 1997.=20 During this period, the assistant manager resigned and Clarke wanted to assume the position. Accordingly, he told the general manager, Santolino, that he was interested in applying. Two other employees also sought the position, but Santolino told all three that he wanted to hire from outside the hotel because hiring from within had caused resentment among co-workers in the past. Santolino eventually interviewed only outside applicants and hired Patti Herold, a woman with over five years of management experience. Clarke continued working under Herold but resented not getting the position and chafed under her supervision. On several occasions, Clarke was confrontational with Herold by being ``short'' and ``angry.'' Finally, the uneasy relationship ended with a screaming match on June 13, 1997.=20 During his employment, Clarke asked about his eligibility for health insurance on several occasions. When he first started working, the health plan required 90 days of employment before an employee could receive medical insurance benefits. On October 1, 1996, defendants converted to a self-funded health insurance plan, which changed the employment eligibility requirements to 6 months. The plan also provided two open enrollment dates in any calendar year, January 1 and July 1. According to the defendants, because of the change in insurance plans Clarke was not eligible to apply for coverage until July 1, 1997. Preliminarily, the court recognized Clarke's asymptomatic HIV as a disability, citing _Bragdon v. Abbott_, 524 U.S. 624 (1988). The court held that Clarke failed to show that defendants had refused to provide a reasonable accommodation for his disability. Under the ADA, an employer must make reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee with a disability, unless to do so would pose an undue hardship on the employer. Plaintiff argued that he was disciplined because of his absences, but defendants had only issued a warning. Clarke also alleged that he was singled out and chastised in front of co-workers for his tardiness, but the court reasoned that such insensitive behavior did not support a failure to accommodate claim.=20 Clarke then argued that he was passed up for promotion because of his disability. In a failure-to-promote case, the plaintiff must initially show: (1) he was disabled; (2) he applied for and was qualified for the position; (3) he was rejected for the position; and (4) Herold had similar or lesser qualifications for the job. The court held that Clarke met the first three qualifications, but failed to prove that Herold was less qualified than he. Clarke had only had 6 or 7 months of management-like experience compared with Herold's 5 years of actual management experience. Clarke's final ADA argument was that he was fired because of his disability. Because Clarke presented no direct evidence of discrimination, the court analyzed the claim under the indirect, _McDonnell-Douglas_ burden-shifting approach. Under this framework, borrowed from Title VII law, plaintiff must initially show: (1) that he is disabled within the meaning of the ADA; (2) his work performance met the hotel's legitimate expectations; (3) he was discharged; and (4) the circumstances surrounding his discharge indicate it was more likely than not that his disability was the reason for this adverse action. The court found that Clarke had not met the second and fourth requirements. Clarke did not conduct himself as an employee should, and simply presented no evidence that it was more likely than not that his HIV-infection played a role in the decision to discharge him. Clarke's ERISA claim was also analyzed under the familiar _McDonnell-Douglas_ burden-shifting approach. Because Clarke proved the initial four elements, the burden shifted to defendants to articulate a legitimate reason for his discharge. After this articulation, the court addressed whether Clarke offered any evidence of pretext. The court held that although plaintiff argued that he was fired two weeks before he was eligible to apply for health insurance benefits, defendants had converted to a self-funded group health insurance plan. This change resulted in a delay in Clarke's eligibility date. Subsequently, plaintiffs also changed the eligibility dates to quarterly ones. However, these changes did not evidence an intent to discriminate. A disability does not afford a plaintiff an opportunity to bring suit whenever work conditions do not suit his liking. Rather, the plaintiff must allege circumstances that give rise to an at least an inference of discriminatory intent by the employer.=20 _Leo L. Wong_ Federal Court Allows HIV/AIDS Discrimination Claim to Proceed Chief Judge McAvoy of the U.S. District Court for the Northern District of New York has rejected a dismissal motion filed by the employer-defendant in a case alleging discrimination in violation of the Americans With Disabilities Act, brought by an HIV+ plaintiff. _Dollinger v. State Insurance Fund_, 1999 WL 242625 (April 19). It appears from the opinion that Robert Dollinger, who is not a lawyer, was representing himself through much of the litigation, although he did add a counsel of record while the motion to dismiss was pending. Dollinger, an auditor for the New York State Insurance Fund, was hired as a trainee in 1986, received annual promotions and was assigned to train other auditors in 1988 through 1990. However, he alleges that since 1990 his career has been stalled and he has been passed over for promotions for which he was qualified.=20 Dollinger attributes this to his employer's perception of him as a person with AIDS, his employer's knowledge that he is associated with other persons with AIDS, and retaliation for having filed discrimination complaints. =20 Dollinger filed complaints with the State Division of Human Rights and the EEOC in 1993 and 1997, but his case became tangled up in the procedural minefield characteristic of employment discrimination law, with the consequence that in this decision Judge McAvoy finds that various aspects of the case stemming from the 1993 complaints are procedurally barred from going forward.=20 In addition, Dollinger filed a Title VII employment discrimination claim that has no support in his factual allegations, since the only form of discrimination about which he complains is disability discrimination, which is not covered by Title VII, so McAvoy dismissed the Title VII claim. However, McAvoy found that Dollinger had sufficiently alleged facts to withstand the employer's motion to dismiss his ADA claims: (1) that he was discriminated against because he is HIV+, (2) that he was discriminated against because he associates with people with AIDS and is thus regarded by his employer as having a disability, and (3) that the promotion denials were retaliatory.=20 McAvoy found that on each of these claims, giving Dollinger's complaint the most liberal possible interpretation, it was possible to find that he had satisfied the test for stating a prima facie case and was entitled to a trial. A.S.L. Federal Court Sanctions Plaintiff for Bringing Meritless AIDS-Related Discrimination Suit In _Seawright v. Charter Furniture Rental, Inc._, 1999 WL 181558 (U.S.Dist.Ct., N.D. Texas, Mar. 24), the district court assessed $30,000 in attorneys fees and expenses against the plaintiff and reprimanded his attorney for filing a frivolous lawsuit alleging a violation of the Americans With Disabilities Act, 42 U.S.C. sec. 12101, against his former employer.=20 J. Scott Seawright had been an account manager with Charter, a family-owned firm for several years. His lover, John Hull, was dying from AIDS. As the disease entered its final stages in early 1995, Seawright was Hull's primary caregiver, responsible for administering medications and over 300 injections per week, for maintaining integrity of the IV lines, and for changing clothes and linen. These responsibilities clearly overwhelmed him. He missed work, came in late, and was failing to attend to customer accounts.=20 During this time, Seawright received numerous written and oral warnings concerning his performance. In July 1995, Hull was sent to an out-of-town hospice. Shortly thereafter, Seawright told his employers that Hull had died and asked for a week's vacation time to attend Hull's funeral. Hull had not died, but Seawright wanted to spend time with him while he was still alive. Hull died on August 11, 1995, but no one at Charter knew because Seawright had told them that Hull had died a month before. Seawright's job performance did not improve. When Seawright was discharged in September, 1995, he filed a complaint with the Texas Human Rights Commission, which referred the matter for joint consideration with the U.S. Equal Employment Opportunities Commission. When the THCR and the EEOC found no probable cause and issued him a ``right to sue'' letter, he filed suit in federal court. The gravamen of his complaint was that Charter discriminated against him in the terms, conditions and privileges of his employment on account of his being regarded as having a disability (AIDS or the possibility of AIDS), or because of his association with a person with a person who had AIDS. Unfortunately, Seawright had concealed the nature of his relationship with Hull from his employers. He presented Hull as a roommate, and had told one of the firm's managers that he had a girlfriend who he'd had to help get an abortion. He told his employers that Hull, his ``roommate,'' was dying of colon cancer.=20 Charter won its motion for summary judgment in July 1998 because Seawright had failed to raise a material issue of fact that his termination was related to Hull's AIDS. He could not satisfy the requirement that he was regarded by Charter as having a disability, or the requirement that he was known by Charter to have a relative or associate with a disability. He could not do this because Hull had already died, and in any event, he had actively concealed the nature of Hull's illness and their relationship from management. Hull's AIDS condition did not matter, because Charter was given to believe that Hull had cancer, which would not infect a care giver. =20 The best he could come up with was that he had mentioned Hull's true condition to one or two co-workers, and that management knew or should have known because it was a family-owned business where ``there is a lot of `talk' about everything.'' Management testified that they had no idea that Hull had died of AIDS, and that they had good grounds for terminating Seawright based on poor performance. The court characterized Seawright's opposition as ``speculation.'' Charter was granted attorneys fees, as is permitted by the ADA, because the court found that Seawright knew that his claim was frivolous and groundless. The court found that Charter had dealt with Seawright in good faith, that Seawright had ``spun a web of lies and then filed a lawsuit contending that Charter couldn't have actually believed those lies.'' Charter had warned that they would seek attorneys fees throughout the action, but Seawright had persevered.=20 The court denied Charter's motion for attorneys fees as against his counsel, however, because, even though the court concluded that she had failed to conduct a proper pre-filing investigation which would have revealed the false nature of Seawright's allegations, as is required by Rule 11 of the Fed.R.Civ.Pro., the binding law of the Fifth Circuit mandated that the court apply the least severe sanction which would be adequate to deter such conduct in the future. Because the attorney had never been sanctioned before, and because she was otherwise a prominent member of the employment law bar, board certified in employment law, the court decided that a published reprimand and strong admonition not to engage in such conduct in the future would be sufficient.=20 _Steven Kolodny_ Attorney Liable to Client for Lost Damages in False HIV Diagnosis Suit Against New York City An attorney was liable to his client for $285,000 in damages for malpractice arising from his representation of the client in connection with a lawsuit against the City of New York for damages resulting from an HIV test performed by the City which gave a false positive result. _Baker v. Dorfman_, 1999 WL 191531 (S.D.N.Y., April 6). Although this matter was a legal malpractice claim, the plaintiff Baker had the burden to prove that but for the malpractice, he would have prevailed in the litigation in which he was represented by Dorfman.=20 Baker was tested for HIV in 1993. The laboratory work was done by the New York City Department of Health. The test came back positive. Approximately nine months later, a nurse at Cabrini Hospital realized that the Department of Health had mixed up a number of blood samples, including Baker's. Baker then tested negative for the HIV virus.=20 Thereafter, Baker retained Dorfman to represent him in a lawsuit against the City of New York for negligence and damages resulting from the false positive result. However, Dorfman failed to file a timely Notice of Claim with the City on behalf of Baker and ultimately Baker's lawsuit was dismissed on summary judgment.=20 (Dorfman had apparently misinterpreted or failed adequately to research the question of when the claim accrued.) Baker then brought this lawsuit against his attorney for malpractice. Baker won summary judgment on the issue of liability for malpractice and went to trial solely on the issue of damages.=20 Dorfman argued that in order to prove damages Baker would have to introduce expert testimony of the damage award Baker would have received from the City of New York. However, the court disagreed, and charged the jury that since no expert testimony would have been required in Baker's lawsuit against the City, none would have been required here. The court determined that Baker's damages for lost income and emotional distress could be established through Baker's testimony without the use of expert witnesses. =20 Although this is a legal malpractice claim, it represents a win for people who receive false positive test results for HIV.=20 _Todd V. Lamb_ 9th Circuit Rules on Another ADA Estoppel Claim In _Fredenburg v. Contra Costa County Dept. of Health Services_, 1999 WL 221854 (April 19), a divided panel of the 9th Circuit revived an Americans With Disabilities Act employment discrimination suit that had been dismissed by U.S. District Judge Vaughn R. Walker (N.D.Cal.) on grounds of judicial estoppel because the plaintiff had represented herself as ``unable to perform her job'' in order to get disability benefits. The Supreme Court will shortly be addressing the issue of judicial estoppel in the ADA context in its review of _Cleveland v. Policy Management Systems_, 120 F.3d 513 (5th Cir. 1997), cert. granted earlier this term. January Fredenburg was urged to take a disability leave by her employer after experiencing on-the-job difficulties with co- workers and being diagnosed as paranoid by a psychiatrist and a psychologist, both of whom examined her under a fitness-for-duty examination required by her employer. The first two months of the leave were with pay; after her disability leave pay expired, Fredenburg applied for state disability benefits, which required her to certify that she was unable to perform her job. She received the benefits for several months, until the state agency determined that she was no longer disabled, at which time she attempted to return to work. However, her employer refused to reinstate her unless she submitted to another fitness exam. She refused to do so, instead filing this lawsuit, claiming that the examination requirement violated the ADA as did the employer's refusal to reinstate her. The district court ruled that she was estopped from obtaining ADA protection because she had represented herself to the state disability benefits agency as unable to perform her job, and was thus not a ``qualified individual.'' In addition, the district court found that because she was not a ``qualified individual,'' she could not invoke the protection of the ADA provision on medical examinations. Writing for the majority of the panel, 9th Circuit Judge William Canby found that the district court's ruling placed Fredenburg in an untenable position. Her employer placed her on disability leave, so she sought disability benefits. The benefits she was granted were of a temporary nature, not permanent, and they were revoked at some point. Under these circumstances, Canby was unwilling to find that she should be barred from ADA assistance in her attempt to reclaim her job, noting the possibility that somebody with a temporary disability could recover. ``It is true that Fredenburg took inconsistent positions during this saga, but her employer and the state, considered together, were not treating her consistently either. She has not denied any of the representations she made; the court has not been misled.''=20 Further, Canby pointed out that the district court's grant of summary judgment had deprived Fredenburg of the opportunity to show that she was qualified for the job, with or without accommodation, when she sought reinstatement. =20 Canby also concluded that the district court erred in holding that the ADA provision on medical exams only protects persons who have disabilities. Using HIV-testing as his example, he pointed out that the provision, by its terms, forbids employer HIV testing of any employees, regardless of whether they have disabilities, unless the employer can demonstrate the job- relatedness of the HIV test. The court's decision sparked a heated dissent from Circuit Judge Alex Kosinski, who charged the majority with departing from circuit precedent and with countenancing a claim by a plaintiff who had told blatantly different stories in every forum in which she appeared. A.S.L. Ohio Appeals Court Affirms Rape Conviction of HIV+ Man The Court of Appeals of Ohio, 8th District, affirmed the conviction of James Russell, who is HIV+, for kidnapping and raping Carl Merritt, a developmentally disabled 17 year-old. In so doing, the court held that it was not error to allow introduction of evidence that Russell was HIV+, as this bore on the issue of consent in the case. _State v. Russell_, 1999 WL 236693 (April 22). The evidence at trial showed that on April 30, 1997, Merritt, a diminutive 5'4" and 120 lbs, with an IQ of 69, was suspended from school for reasons not specified in the opinion. Rather than tell his parents, he took the bus he would normally take to school but instead went to a shopping mall and wandered around.=20 There he was approached by Russell, who was on probation for prior offenses not specified by Judge Dyke in this opinion.=20 Russell sweet-talked him into coming home with him, and there forced Merritt to have sex, with the assistance of another man, although the act of anal sex was evidently not completed.=20 Russell gave Merritt money for a bus ticket home and put him on the bus. Merritt's later statements to his parents and to police led them to Russell. Ironically, Russell had an appointment to see his probation officer at the time he picked up Merritt at the shopping mall and brought Merritt along to the appointment. The probation officer specifically discussed Russell's HIV-status with him, and warned him about the dangers of involvement with a student, telling him to stay away from Merritt, to which Russell had replied he was not interested in Merritt sexually but only as a potential recruit for a basketball league that he ran at the Glenville YMCA. =20 At trial, Russell contended that Merritt was gay and had consented to have sex with him, but this testimony did not apparently convince the court. Russell argued on appeal, among other things, that the trial court erroneously and prejudicially permitted introduction of evidence that he was HIV+. Pointing out that such evidentiary rulings are within the discretion of the trial court, and that Russell was arguing that Merritt had consented to have sex with him, Judge Dyke asserted: ``The evidence of defendant's HIV status was therefore extremely probative of the issue of Merritt's consent. This evidence was also probative of defendant's intent in this matter because shortly before defendant and Merritt went to defendant's apartment, Probation Supervisor Peggy Parker discussed defendant's HIV status with him. She also discussed the potential problems attendant to defendant having a relationship with Merritt and instructed defendant to stay away from him. At this time, defendant indicated that he was not interested in Merritt in that way and that he had simply loaned Merritt money.'' =20 While conceding that ``some prejudice conceivably arises in connection with this evidence,'' Dyke concluded that under the circumstances its probative value was sufficient that the trial court's ruling was not an abuse of discretion. =20 The other major issue on appeal concerned Russell's unhappiness about being labelled a ``sexually violent predator'' with attendant post-release restrictions. The appeals court found that the trial court had actually erred procedurally in how this issue was presented to the jury, but that the error did not justify modifying or reversing the ultimate sentence of the trial court, and affirmed a jail sentence for Russell. A.S.L. Louisiana Appeals Court Upholds Dismissal of ``Fear of AIDS'' Complaint The Court of Appeal of Louisiana upheld a summary judgement in favor of a hospital in a ``fear of AIDS'' case.=20 _Falcon v. Our Lady Of The Lake Hospital, Inc._, 1999 WL 216573 (La.App., 1 Cir., April 1). =20 On December 23, 1993, Susan Falcon was admitted to Our Lady of the Lake (OLOL) for treatment of Crohn's disease. Instead of getting blood from ``directed donors,'' as she had arranged, Falcon was given blood from the general OLOL Blood Bank inventory on January 4, 1994, when she had surgery. David Gremillion, supervisor of the Blood Bank, testified that the blood from the bank had tested negative for HIV. Falcon did not contest this testimony. On November 20, 1996, Falcon sued, alleging negligence, physical pain and suffering, mental anguish and distress, and the loss of enjoyment of life. Falcon's husband, the co-plaintiff, alleged loss of consortium, service and society. The Falcons also claimed that their children suffered the loss of service and society of their mother.=20 Plaintiffs and defendant both sought summary judgement. Judge Michael McDonald dismissed the suit with prejudice on July 1, 1997. The Court of Appeal found, in an opinion by Judge Guidry, that a ``plaintiff must be able to demonstrate the presence of HIV. . . and a channel of exposure or infection. Absent such a showing, a plaintiff's fear of contracting HIV (or other serious illness) would be speculative and not sufficiently reasonable as a matter of law to impose liability.'' In upholding Judge McDonald's finding, the court cited _Vallery v. Southern Baptist Hospital, 630 So.2d 861, 866 (La.App., 4th Cir. 1993), which states: ``[t]o recognize a cause of action. . . when the presence of HIV is not shown (or, at the pleading stage, alleged) is clearly unsound. Fear in such situations may be genuine but it is based on speculation rather than fact.''=20 _Daniel R Schaffer_ AIDS Litigation Notes Nushawn J. Williams, charged with knowingly exposing numerous young women to HIV infection and having actually infected many, was sentenced April 5 to 4-12 years in prison.=20 Williams was the first person in New York State to face prosecution for knowingly infecting somebody with HIV. Under a plea agreement with the Chautauqua County District Attorney, Williams was sentenced in Chautauqua County Court in Mayville, N.Y., having pled guilty to one count of reckless endangerment and two counts of second-degree statutory rape. The cases involved the only two women in Chautauqua County who were willing to testify against Williams, out of about a dozen who have been identified as having been infected by him. Williams faced sentencing in Bronx County for reckless endangerment for having sex with a 15-year-old girl. _New York Times_, April 6. =20 An HIV+ man who was placed in solitary confinement in the Utah County, Utah, jail, has agreed to withdraw his federal discrimination suit against the county after learning that his isolation was an attempt by the county to protect him after word of his HIV status had spread to other inmates. _Deseret News_, April 27. According to a news report, the jail's booking area has unusual acoustics, which resulted in another inmate being able to hear a discussion of L.P.'s HIV status.=20 Jail officials became alarmed when the other inmate immediately began threatening physical harm to L.P., and decided to place him in solitary for his own protection, but never explained their motivation to L.P. After the county offered this explanation, L.P. agreed to drop the suit and forego any claim to damages, and U.S. District Judge Tena Campbell dismissed the suit. L.P. had originally been jailed on a misdemeanor drug possession charge; when he advised the judge about his jail situation, she allowed him to serve part of the sentence at home. =20 The ACLU announced settlement of _Mary Doe v. Outreach Ministries_, a lawsuit pending in U.S. District Court for the Northern District of Illinois, in which a mother alleged that the defendant community center unlawfully required her to have her young son submit to an HIV test after the mother of another child in the Center's program learned that the two children had shared a snorkel in the swimming pool. The exact terms of the settlement were not disclosed, but the _Chicago Daily Herald_ (April 22) reported that officials for the defendant organization characterized the amount involved as ``piddling'' and said that they had admitted no wrongdoing. Kathleen Tyson, who tested HIV+ during prenatal screening, and her husband David, lost custody of their infant son when she revealed to medical personnel that she planned to breast-feed the child, against their caution that such action could transmit HIV. (The child has thus far tested negative for HIV.) Tyson and her husband, who reject the theory that HIV causes AIDS, challenged the custody determination in court, but Juvenile Court Judge Maurice Merten ruled April 20 that the state of Oregon should continue to control custody of the child as a protective measure.=20 However, upon Tyson's promise not to breastfeed the child, he can continue to live with the Tysons. _Associated Press_, April 21. The Colorado Supreme Court has denied certiorari in _Doe v. High-Tech Institute_, 972 P.2d 1060 (Colo. App., July 9, 1998, modified, Aug. 6, 1998), cert. den., March 1, 1999, in which the court of appeals upheld a cause of action for damages for both intrusion upon seclusion and unreasonable disclosure of private facts in the case of a student in a medical assistant training program whose blood was tested for HIV without his consent. File this under ``No good deed goes unpunished.''=20 ``John Doe'' was prescribed Norvir, an AIDS drug, in 1996.=20 At the time, this was hard to obtain in Illinois, but his local druggist at the Evanston store in the Osco chain made valiant efforts and procured a supply for him. He wrote a letter to the druggist, commending his efforts. The druggist passed on the letter to company headquarters, and it was featured in the company magazine, without any attempt to redact the name of the writer. The letter was also posted in the drugstore. Soon Doe was getting threatening phone calls, and his house was vandalized. Somebody sent him a copy of the Osco company magazine, and he put two and two together and realized what was happening, but his health worsened and he didn't get around to pursuing a legal remedy until after Illinois's statute of limitations had run. So he filed suit in Milwaukee County, Wisconsin, Circuit Court, where there are Osco drugstores and copies of the magazine were circulated, and where there is a longer statute of limitations for tort claims. The lawsuit, _Doe v. American Drug Stores, Inc._, alleges violation of privacy. _Chicago Tribune_, April 6. A federal district court jury in Pittsburgh ruled April 14 that a dentist did not violate the rights of a gay man by requiring him to have an HIV test before he could receive treatment from the dentist. _Merchant v. Kring_ (U.S.Dist.Ct., W.D.Pa.).=20 Thomas Merchant had been a patient of Dr. William Kring for eight years, but had never told Kring that he was gay. Merchant's roommate, evidently also a patient of Kring, revealed to the dentist that he was gay. When Merchant showed up for an appointment on February 9, 1995, expecting to get a routine cleaning of his teeth, Kring asked him if he was gay. When Merchant said yes, Kring wrote a prescription for Merchant to get an HIV test and report the result to him. Merchant, believing his rights were violated, sued under the Americans With Disabilities Act and sec. 504 of the Vocational Rehabilitation Act. Kring's attorney argued that Dr. Kring ``recommended a diagnostic test for medical reasons'' and was ``not motivated by any discrimination or malice.'' Kring testified that because gay men are a high risk group, he wanted Merchant to be tested before cleaning his teeth. Merchant's attorney, Samuel Cordes, presented an expert witness, Dr. Mary Vogel, a dentist and clinical professor at the University of Pittsburgh, who testified that there was no medical reason that Kring could not safely examine Merchant or clean his teeth without knowing his HIV-status. (Merchant, by the way, has tested negative for HIV.)=20 _Pittsburgh Post-Gazette_, April 15. U.S. District Judge Marvin Shoob has signed a consent decree in _Foster v. Fulton County_, NO. 1:99-CV-0900 (N.D.Ga., April 16, 1999), specifying improvements in conditions for HIV+ inmates in the country jail. The consent decree commits the county to provide immediate access for HIV+ inmates to any treatment regimen consistent with federal standards set by the U.S. Dept. of Health & Human Services and the national Commission on Correctional Health Care. Plaintiffs in the case had complained about laxness in ensuring continued access to necessary medications, and stated concerns about developing drug-resistant strains of HIV due to interruptions in treatment. _AIDS Policy & Law_, April 30, p. 5. =20 The Supreme Court refused to hear appeals from several lawyers seeking to increase the fees they will receive under settlement of a class action by 6,000 HIV-infected hemophiliacs and their families against several manufacturers of blood clotting medication. _In re Factor VIII or IX Concentrate Blood Products Litigation_, 159 F.3d 1016 (7th Cir. 1998), cert. denied, sub nom _Spece v. Rhone-Poulenc Rorer, Inc._, 1999 WL 59667 (U.S., Apr. 19), and _Mull & Mull, PLC v. Rhone- Poulenc Rorer, Inc._, 1999 WL 59664 (U.S. Apr. 19). _Los Angeles Times_, April 20. A.S.L. AIDS Law & Society Notes A lawyer who claims he reacted to the stress of learning of his HIV infection in 1991 by becoming addicted to crack cocaine, which was why he stole from a client, was indefinitely suspended from law practice by the Ohio Supreme Court on March 31.=20 _Cincinnati Bar Assoc'n v. Arnold_, 1999 WL 178840. Richard Arnold, who was a partner in the Cincinnati law firm of Dinsmore & Shohl, pled guilty to charges of bank fraud when it was found that he had stolen approximately $75,000 from a client through false bills to support his drug habit. His law firm forced his resignation when the theft came to light. Arnold was sentenced to six months in prison and three years of supervised release.=20 The disciplinary authorities found that Arnold has since undertaken rehabilitation and accepted responsibility for his misconduct, and recommended against permanent disbarment.=20 Affirming the recommendations of the hearing panel, the Supreme Court ordered indefinite suspension and provided that ``any petition for reinstatement must establish that respondent has remained drug-free and that he has made full restitution to all parties found by a court to be entitled to restitution.'' The Associated Press reported April 27 that the South African government is proposing legislation to require all persons with HIV or AIDS to disclose their status to public health officials, all those providing care for them, and their immediate family members. The government estimates that 3.6 million South Africans were infected with HIV by the end of 1998, and likened HIV infection to other ``notifiable'' conditions such as tuberculosis and syphilis. Advocates for People With HIV/AIDS in South Africa deplored the proposal, pointing out the people known to have HIV have been subjected to physical attacks and intense discrimination, both of which are illegal but not easily preventable. A.S.L. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: Adams, William E., Jr., _Is It Animus or a Difference of Opinion? The Problems Caused by the Invidious Intent of Anti-Gay Ballot Measures_, 34 Willamette L. Rev. 449 (Summer/Fall 1998) (part of symposium, see below). Boyd, Nan Alamilla, _Shopping for Rights: Gays, Lesbians, and Visibility Politics_, 75 Denver U. L. Rev. 1361 (1998) (symposium). Cain, Patricia A., _Stories From the Gender Garden: Transsexuals and Anti-Discrimination Law_, 75 Denver U. L. Rev. 1321 (1998) (symposium). Case, Mary Anne, _Unpacking Package Deals: Separate Spheres Are Not the Answer_, 75 Denver U. L. Rev. 1265 (1998) (symposium). Engle, Karen, _What's So Special About Special Rights?_, 75 Denver U. L. Rev. 1265 (1998) (symposium). Ertman, Martha M., _Reconstructing Marriage: An InterSEXional Approach_, 75 Denver U. L. Rev. 1215 (1998) (symposium). Franke, Katherine M., _Putting Sex to Work_, 75 Denver U. L. Rev. 1139 (1998) (symposium). Nice, Julie A., _InterSEXionality and the Strategy Question_, 75 Denver U. L. Rev. 1131 (1998) (symposium). Schachter, Jane S., _Taking the InterSEXional Imperative Seriously: Sexual Orientation and Marriage Reform_, 75 Denver U. L. Rev. 1255 (1998) (symposium). Spitko, E. Gary, _Gone But Not Conforming: Protecting the Abhorrent Testator From Majoritarian Cultural Norms Through Minority-Culture Arbitration_, 49 Case Western Res. L. Rev. 275 (Winter 1999). Sterett, Susan, _Husbands & Wives, Dangerousness & Dependence: Public Pensions in the 1860s-1920s_, 75 Denver U. L. Rev. 1181 (1998) (symposium). Valdes, Francisco, _Beyond Sexual Orientation in Queer Legal Theory: Majoritarianism, Multidimensionality, and Responsibility in Social Justice Scholarship_, 75 Denver U. L. Rev. 1375 (1998) (symposium). _Student Notes & Comments:_ Ayotte, Christine L., _Reevaluating the Shareholder Proposal Rule in the Wake of_ Cracker Barrel_ and the Era of Institutional Investors_, 48 Catholic U. L. Rev. 511 (Winter 1999). Beckman, Linda, _Chemical Castration: Constitutional Issues of Due Process, Equal Protection, and Cruel and Unusual Punishment_, 100 W. Va. L. Rev. 853 (Summer 1998). Burnette, W. Brian, _Hawaii's Reciprocal Beneficiaries Act: An Effective Step in Resolving the Controversy Surrounding Same-Sex Marriage_, 37 Brandeis L.J. Univ. Louisville 81 (1998-99). Choi, Alicia M., National Endowment for the Arts v. Finley_: A Dispute Over the ``Decency and Respect'' Provision_, 32 Akron L. Rev. 327 (1999). Doherty, Kelly M., _WWW.OBSCENITY.COM: An Analysis of Obscenity and Indecency Regulation of the Internet_, 32 Akron L. Rev. 259 (1999). Lindberg, Caroline J., _Lisa Grant v. South-West Trains: The Limited Utility of Sex Discrimination Arguments in Securing Lesbian and Gay Rights_, 12 Temple Int'l & Comp. L. J. 403 (Fall 1998). Robertson, Karla C., _Penetrating Sex and Marriage: The Progressive Potential of Addressing Bisexuality in Queer Theory_, 75 Denver U. L. Rev. 1375 (1998) (symposium). Taylor, Laura Beresh, C.R.B. v. C.C. and B.C._: Protecting Children's Need for Stability in Custody Modification Disputes Between Biological Parents and Third Parties_, 32 Akron L. Rev. 371 (1999). Webber, James K., Jr., _The Sixth Circuit Navigates the Post- _Romer_ Wreckage:_ Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati_, 128 F.3d 289 (6th Cir. 1997), 22 Harv. J. L. & Pub. Pol. 351 (Fall 1998). _Specially Noted:_ 34 Willamette L. Rev. Nos. 3 & 4 (Summer/Fall 1998) is a symposium issue on referenda and initiatives. * * * 75 Denver U. L. Rev. No. 4 (1998) is a symposium issue titled: ``InterSEXionality: Interdisciplinary Perspectives on Queering Legal Theory.'' Individual articles are noted above. AIDS & RELATED LEGAL ISSUES: Bland, Timothy Stewart, _The Determination of Disability Under the ADA: Should Mitigating Factors Such as Medications be Considered?_, 35 Idaho L. Rev. 265 (1999). Goddard, Leslie, _Searching for Balance in the ADA: Recent Developments in the Legal and Practical Issues of Reasonable Accommodation_, 35 Idaho L. Rev. 227 (1999). McGlothlen, Condon, Bragdon v. Abbott_: The Supreme Court's First Take on the Americans With Disabilities Act_, 24 Emp. Rel. L. J. No. 4, 91 (Spring 1999). Salbu, Steven R., _Off-Label Use, Prescription, and Marketing of FDA-Approved Drugs: An Assessment of Legislative and Regulatory Policy_, 51 Fla. L. Rev. 181 (April 1999). Salbu, Steven R., _The FDA and Public Access to New Drugs: Appropriate Levels of Scrutiny in the Wake of HIV, AIDS, and the Diet Drug Debate_, 79 B.U. L. Rev. 93 (Feb. 1999). _Student Notes & Comments:_ Sobota, Luke A., _Does Title III of the Americans With Disabilities Act Regulate Insurance?_, 66 U. Chi. L. Rev. 243 (Winter 1999). 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.=20 Correspondence pertinent to issues covered in _Lesbian/Gay Law Notes_ is welcome and will be published subject to editing.=20 Please address correspondence to the Editor or send via e-mail.