From: aleonard@nyls.edu (Arthur Leonard - Faculty)
To: ron@abacus.oxy.edu
Date: Fri, 27 Aug 1999 16:24:56 -0400


LESBIAN/GAY LAW NOTES
ISSN 8755-9021 September 1999

Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St.,
NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: asleonard@aol.com
or aleonard@nyls.edu

Contributing Writers: Elaine Chapnik, Esq., New York City; Ian
Chesir-Teran, Esq., New York City; Steven Kolodny, Esq., New York
City; Todd V. Lamb, Esq., New York City; Arthur J. Levy, Esq.,
Brooklyn, N.Y.; Mark Major, Esq., Long Island, New York; Sharon
McGowan, Harvard Law Student, Cambridge, Massachusetts; K. Jacob
Ruppert, Esq., Queens, New York; Daniel R Schaffer, New York City;
Dirk Williams, Esq., Boston, Massachusetts; Robert Wintemute, Esq.,
King's College, London, England; Leo Wong, New York Law School
Student.

Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340,
NYC 10003. 212-353-9118; e-mail: le-gal@interport.net


N.J. SUPREME COURT UNANIMOUSLY RULES FOR GAY SCOUT; CHICAGO TRIAL
JUDGE FOLLOWS SUIT  

For the first time, the highest court of a state has found that the
Boy Scouts of America's policy of excluding gay people from
membership or leadership positions violates a state law ban on
sexual orientation discrimination by places of public
accommodation.  Ruling unanimously in _Dale v. Boy Scouts of
America_, 1999 WL 565900, on August 4, the New Jersey Supreme Court
found not only that the Scout policy violates state law, but that
1st Amendment defenses raised by the Scouts were unavailing.  And
on August 12, Cook County, Illinois, Circuit Judge Stephen A.
Schiller ruled similarly that the Scouts' policy violates the
Chicago Human Rights Ordinance in _Chicago Area Council of Boy
Scouts of America v. City of Chicago Commission on Human Relations
and Richardson_, No. 96 CH 03266 (Cook County [Il.] Cir. Ct.).

James Dale joined the Scouts in 1978 as an 8-year-old, and advanced
through the ranks to become a highly-decorated Eagle Scout.  After
graduating from Scouting, he applied to be an adult scout leader,
and was accepted as an assistant Scoutmaster in Monmouth County,
New Jersey.  After a newspaper article appeared in which he was
identified as a leader of the gay student organization at Rutgers
University, he received notice that he was being expelled from the
Scouts.  Upon his further inquiry, he learned for the first time
that the Boy Scouts of America claims to have a formal policy
excluding "homosexuals" from being members or leaders.

According to the BSA, the requirement of the Scout Oath that an
individual be "morally straight" and the requirement of the Scout
Handbook that all members be personally "clean" means that gays may
not participate.  During the course of this and other lawsuits
challenging the organization's policy, the Scouts maintain that
teaching "traditional family values" is an intrinsic part of their
program.  The trial judge in Dale's lawsuit agreed with the Scouts,
and ruled against Dale, but was reversed by the Appellate Division
and, ultimately, by the Supreme Court.

Writing for the court, Chief Justice Deborah Poritz first rejected
the defendants' argument that the Scouts are a private club, exempt
from the public accommodation requirements of the state's Law
Against Discrimination.  Rejecting this claim, Poritz pointed to
the size of the organization and its traditional of inclusivity. 
Indeed, internal Scout policy statements indicate that the
organization is open to any boy who wants to participate and is
willing to take the oath and pay whatever fees are involved. 
Poritz also noted that the organization's activities involve a
range of other public institutions as co-sponsors or hosts of its
events, including government agencies such as police and fire
departments, public schools, and the military.

Furthermore, New Jersey has sided with those state courts that have
expansively interpreted "place of public accommodation" statutes to
go beyond the literal connotation of a physical place and extend
generally to organizations that provide goods, services, and
participation opportunity to a broad public, such as the Little
League or the Boy Scouts.  In addition, Poritz found that the
Scouts did not qualify for any of the recognized exceptions to
coverage as a public accommodation, being neither "distinctly
private," a religious educational facility, nor a body standing _in
loco parentis_ to children.  

Poritz found without difficulty that the Scouts' exclusionary
policy had the effect of denying a "privilege" or "advantage" based
on the sexual orientation of the individual, thus bringing it
within the prohibition of the statute, but upheld dismissal of
Dale's appended common law claim, finding that it was duplicative
of the statutory claim.

The Scouts attempted to mount two constitutional defenses under the
1st Amendment, claiming a privilege to discriminate under the
freedoms of intimate association and expressive association. 
Neither claim fared well with the court.

The freedom of intimate association, first identified as such in a
plurality opinion for the U.S. Supreme Court by Justice Brennan in
_Roberts v. U.S. Jaycees_, 468 U.S. 609 (1984), has generally been
depicted as applying to a person's decisions about whom he or she
will closely associate with in the familial setting.  It has not
been invoked successfully by business social membership
organizations such as the Kiwanis, Rotary, or Jaycees, and Poritz
rejected the attempt to invoke it by the Scouts.  Even conceding
that a typical Scout troop may have only 15-20 members, Poritz
noted that the U.S. Supreme Court had refused to recognize intimate
association rights for a Rotary chapter with "as few as twenty
members," and pointed out that Boy Scout troops are generally
"unselective in their membership. . .  Any boy between the ages of
eleven and seventeen can join; indeed, Boy Scouts has quite clearly
said that `any boy' is welcome."

Poritz noted that the organization's own publicity has always
stressed its inclusive and non-selective membership criteria, and
has made a public commitment "to ensure that its membership is
`representative of all of the population.'"

As to the expressive association claim, which was also explicated
in _Roberts_ and other cases involving business associations,
courts have been wary of upholding categorically exclusionary
membership policies without some clear showing that the exclusion
was necessary to forward the articulated purposes of the
organization.  Here, the Scouts failed to show that expressing
disapproval of homosexuality was clearly a core part of the
organization's reason for being.  Indeed, disapproval of
homosexuality is not expressly stated in any of the organization's
official publications, and one only finds such disapproval by
somewhat strained interpretation of general language that does not
even mention the issue explicitly.  

Wrote Poritz, "We find that the LAD [Law Against Discrimination]
does not violate Boy Scouts' freedom of expressive association
because the statute does not have a significant impact on Boy Scout
members' ability to associate with one another in pursuit of shared
views.  The organization's ability to disseminate its message is
not significantly affected by Dale's inclusion because: Boy Scout
members do not associate for the purpose of disseminating the
belief that homosexuality is immoral; Boy Scouts discourages its
leaders from disseminating _any_ views on sexual issues; and Boy
Scouts includes sponsors and members who subscribe to different
views in respect of homosexuality."

While agreeing with the defendants' contention that Boy Scouts
expresses a belief in moral values and uses its activities to
encourage the moral development of its members, the court was not
"persuaded . . . that a `shared goal' of Boy Scout members is to
associate in order to preserve the view that homosexuality is
immoral."  More specifically, the court found that the terms
"morally straight" and "clean" found in Boy Scout literature did
not necessarily communicate any negative message about
homosexuality.  "We doubt that young boys would ascribe any meaning
to these terms other than a commitment to be good," concluded
Poritz.  Responding to the argument that "the immorality of
homosexuality can be implied from the moral principles expressed by
the Scout Oath and Law," Poritz said, "Yet, Boy Scouts teaches that
`moral fitness' is an individual choice and defers the ultimate
definition to its members," quoting words to that effect from the
Scoutmaster Handbook.

Poritz found further support in the Scouts' 1st Amendment arguments
for the proposition that "Dale's expulsion constituted
discrimination based solely on his status as an openly gay man. 
The United States Supreme Court has not hesitated to uphold the
enforcement of a state's antidiscrimination statute against an
expressive association claim based on assumptions in respect of
status that are not a part of the group members' shared expressive
purpose," she argued, citing _Roberts_ among other cases.

"The original termination letter Dale received indicates that Dale
was expelled because of his status and not because his membership
conflicted with Boy Scouts' message."  Poritz found "revealing" the
disjunction between the Scouts' arguments that they are a private
organization and "the organization's general philosophy on open
membership. . .  When contrasted with its `all-inclusive'
philosophy, Boy Scouts' litigation stance on homosexuality appears
antithetical to the organization's goals and philosophy.  The
exclusion of members solely on the basis of their sexual
orientation is inconsistent with Boy Scouts' commitment to a
diverse and `representative' membership.  Moreover, this
exclusionary practice contradicts Boy Scouts' overarching objective
to reach `all eligible youth.'  We are satisfied that Boy Scouts'
expulsion of Dale is based on little more than prejudice and not on
a unified Boy Scout position; in other words, Dale's expulsion is
not justified by the need to preserve the organization's expressive
rights."

Blasting the defendant for relying on stereotyped views of gay
people in opposing Dale's continued membership, Poritz wrote, "The
sad truth is that excluded groups and individuals have been
prevented from full participation in the social, economic, and
political life of our country.  The human price of this bigotry has
been enormous.  At a most fundamental level, adherence to the
principle of equality demands that our legal system protect the
victims of invidious discrimination."

Poritz also rejected the Scouts' reliance on a pure freedom of
speech argument, finding that Boy Scout leadership (such as Dale's
former assistant Scoutmaster position) is not a form of `pure
speech' such as the St. Patrick's Day Parade, as to which the U.S.
Supreme Court ruled in _Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston_ that organizers could exclude an openly-
gay group from participating as an identified entity.  Poritz found
that there was no indication that Dale sought the scoutmaster
position for the purpose of teaching about homosexuality or making
a political statement.  "Dale does not come to Boy Scout meetings
`carrying a banner,'" she wrote, finding that he <69>has never used
his leadership position or membership to promote homosexuality, or
any message inconsistent with Boy Scouts' policies."

In a vehement concurring opinion, Justice Alan Handler specifically
identified and condemned the stereotypical thinking about gay
people that seemed to dominate the Boy Scouts' litigation strategy
in the case.  "One particular stereotype that we renounce today is
that homosexuals are inherently immoral.  That myth is repudiated
by decades of social science data that convincingly establish that
being homosexual does not, in itself, derogate from one's ability
to participate in and contribute responsibly and positively to
society," wrote Handler.  "Like stereotypes about an individual
based on race or sex, similar assumptions about a lesbian or gay
man are false and unfounded, and reveal nothing about that
individual's moral character, or any other aspect of his or her
personality."  Additionally, wrote Handler, "The myth that a
homosexual male is more likely than a heterosexual male to molest
children has been demolished. . .  In light of this evidence, the
belief that a gay scoutmaster poses a risk to young boys because of
his sexual orientation is patently false, and cannot in any way
bolster Boy Scouts' First Amendment defense.  Accordingly, it must
be rejected as an unfounded stereotype."

Handler went on to denounce sodomy laws as being representative of
the same sort of stereotyped thinking that was animating the Boy
Scouts' position in this case, and pointedly noted last year's
decision by the Georgia Supreme Court, invalidating that state's
sodomy law and thus overturning the state's prior victory in
defense of that law in the U.S. Supreme Court in 1986.  

Concluded Handler, "Stereotypes cannot be invoked to extend the
meaning of self identifying expression of one's own sexual
orientation, and thereby become a vehicle for discrimination
against homosexuals.  Such stereotypes, baseless assumptions, and
unsupported generalizations reflecting a discredited view of
homosexuality as criminal, immoral and improper are discordant with
current law and public policy.  Accordingly, they cannot serve to
define contemporary social mores and morality.  Boy Scouts'
adherence to `traditional more values,' its `belief in moral
values,' and its uncontroverted purpose to `encourage the moral
development of its members,' remain undisturbed and undeterred by
Dale's open avowal of his homosexuality."

Dale is represented in this case by Lambda Legal Defense Fund
senior staff attorney Evan Wolfson, with cooperating attorneys from
Cleary, Gottlieb, Steen & Hamilton and New Jersey local counsel
Lewis Robertson.  Reacting to the court's decision, spokespersons
for the Boy Scouts of America stated their disagreement with the
court and vowed to seek review in the U.S. Supreme Court.  The
decision appears contrary to rulings in several other
jurisdictions, including a 7th Circuit decision rejecting a
challenge to the BSA's exclusion of atheists as well as a
California Supreme Court ruling finding that the Scouts are a
private organization beyond the reach of state public
accommodations law. 

Nonetheless, and despite the 7th Circuit ruling, which was
pointedly ignored in his opinion, Cook County Circuit Judge
Schiller upheld the Chicago Human Relations Commissions'
determination that the Scouting policy violates the local law on
employment discrimination.  (Unlike the New Jersey case, which
involved a volunteer leader, the Chicago case arose out of an
enquiry about a staff position.)

G. Keith Richardson, a former Eagle Scout, was looking for a job
and called the Chicago Area Council of the Boy Scouts to inquire
about openings.  During the conversation, he asked whether being
gay would disqualify him, and was told that it would.  He then went
to the Human Relations Commission and filed a discrimination
charge, without even formally applying for a position with the
Scouts.  After lengthy hearings, the Commission concluded that the
Scouts policy violated the Human Rights Ordinance and ordered the
respondents to pay $500 in damages and more than $335,000 in
attorney fees to Richardson, who was represented by ACLU of
Illinois staff attorney Roger Leishman and volunteer attorney
Charles H. R. Peters of Schiff, Hardin and Waite.  The Commission
also imposed a $100 fine payable to the City and issued an order
requiring the Scouts to drop their anti-gay policy.

In their appeal to the Superior Court, the Scouts argued that their
policy is constitutionally protected and challenged the validity of
the local ordinance.  Schiller found that the state constitution's
home rule provisions provide ample authorization for Chicago to
pass a civil rights ordinance, and that the Illinois Human
Relations Act (which does not ban sexual orientation
discrimination) specifically allows municipal ordinances to go
further than state law in banning discrimination.  

Turning the Scouts' claim for exemption as a religious association,
Schiller concurred with the city commission's conclusion that the
Scouts were not a religion (despite the oaths and creeds) because
the organization's approach is to enroll boys from all different
religious backgrounds and to encourage religiosity, but not any
particular religion.  Further, quoting from the _Dale_ decision,
Schiller found that the Scouts are a "nonsectarian" organization,
and are not distinctly private in a way that would justify being
shielded from application of the civil rights ordinance.

However, as Richardson never actually applied for the job, Schiller
found that the Commission should not have awarded him damages or
attorneys fees.  Instead, Schiller relied on the Commission's own
authority to initiate cases where discriminatory policies come to
its attention, and upheld the $100 fine and the order to end
discrimination against gays.  (As Richardson's attorneys were not
charging him fees, the lack of an award does not harm him, although
it probably disappoints the Illinois ACLU!)  

As in New Jersey, the Scouts promptly announced they would try to
appeal the Chicago decision. 

Meanwhile, in Providence, R.I., the state chapter of the Scouts
attempted to adopt a "don't ask, don't tell" policy, offering to
reinstate a gay Eagle scout who was dismissed from a staff position
when he revealed his sexual orientation in response to a question
posed during an investigation of allegations that another member of
the state organization had engaged in improper sexual activity with
underage Scouts.  Threatened with possible legal action under Rhode
Island's recently-enacted law forbidding discrimination on the
basis of sexual orientation by employers, the local chapter decided
that it was improper to have asked any of its staff members about
their sexual orientation, and that closeted gays could be employed
or serve as volunteers.  This stance was quickly disavowed by the
national organization as soon as it came to light in the press.  
A.S.L.

LESBIAN/GAY LEGAL NEWS 

Missouri Appeals Decision Raises Questions About Continued
Application of Sodomy Law to Consensual Gay Sex

A July 6 decision by the Missouri Court of Appeals, reversing the
sexual misconduct conviction of a man accused of having sex with a
13-year-old boy, has raised doubts about whether consensual gay sex
is still illegal in Missouri, prompting Attorney General Jay Nixon
to request a clarification from the court.  In _State of Missouri
v. Cogshell_, 1999 WL 463455 (Mo.App., W.D.), the court construed
the sexual misconduct law, the only provision of the penal code
specifically criminalizing "deviate sexual intercourse," to apply
only to non-consensual sex.

The case arose out of an extended relationship between defendant
William Cogshell, Jr., and a teenage boy, identified in the opinion
by Presiding Judge Edwin H. Smith as "T.B." Cogshell met T.B. in
the summer of 1996 and asked him if he wanted to make some money. 
T.B. testified that he suspected what Cogshell meant and declined
the offer, but then contacted Cogshell a month later because he
needed some money.  Cogshell drove T.B. to his house and offered to
pay him if T.B. would let Cogshell perform oral sex on him.  Over
the following months, Cogshell had sex with T.B. several times and
gave him "numerous gifts." In May, 1997, T.B., while present in
Cogshell's house, told Cogshell he didn't want to have sex with him
any more, and Cogshell demanded a return of his gifts.  T.B. was
wearing several items of clothing given to him by Cogshell, so he
took them off and started to walk home wearing only his pants, but
then decided he didn't want to go home in that condition and
returned to Cogshell's house.  Meanwhile, Cogshell had called the
police to report a prowler.  When a police officer arrived at his
house, he found T.B. laying on the porch crying.  When questioned,
T.B. said he had been kicked out because he had refused to have sex
with Cogshell.  When Cogshell was questioned, he told the police
officer that T.B. was his "lover" and admitted to having fondled
him, but denied having had intercourse or oral sex with T.B., or of
forcing T.B. to do anything.

Cogshell was convicted after a jury trial of statutory sodomy
(i.e., sex with an underage person) and sexual misconduct.  The
pertinent paragraph of the sexual misconduct provision, section
566.090, provides: "A person commits the crime of sexual misconduct
in the first degree if he has deviate sexual intercourse with
another person of the same sex or he purposely subjects another
person to sexual contact or engages in conduct which would
constitute sexual contact except that the touching occurs through
the clothing without that person's consent." According to the
state, in this grammatically clumsy sentence that lacks any
punctuation to assist in its interpretation, the final phrase
concerning consent applies only to the last phrase, not to the
entire paragraph and certainly not to the first phrase concerning
deviate sexual intercourse.  The state's interpretation, which is
consistent with the legislative history of the 1994 enactment,
prevailed at trial, and Cogshell was convicted.  He appealed the
sexual misconduct conviction, arguing that under sec. 566.090,
deviate sexual intercourse with a person of the same sex is only
illegal if it is non-consensual.

The court of appeals granted Cogshell's appeal.  Wrote Smith, "In
order to convict a person of sexual misconduct pursuant to sec.
566.090, the State must prove that the sexual contact alleged
occurred without the consent of the victim.  Here, as the State
admits, there was no evidence presented that the appellant engaged
in the acts alleged without the consent of T.B.  The only evidence
presented as to the issue of consent tended to show that the acts
were, in fact, committed with the consent of T.B.  In this respect,
the evidence presented established that T.B. initiated the first
sexual contact with the appellant and was never forced by the
appellant to engage in any sexual contact.  As such, the State
failed to establish the lack of consent."

According to the opinion, the State was now acquiescing in the
decision to reverse the sexual misconduct conviction. (Cogshell did
not appeal the statutory sodomy convictions, and is currently
serving his prison term.)  An August 8 article in the _Columbia
Daily Tribune_ reported, under the title "Nixon: Sex Case Confuses;
Attorney General Seeks Clarification," that the attorney general
was disputing the claim that this ruling means that consensual gay
sex between adults is now legal in Missouri.  According to the
article, "Nixon wants the court to rule that the question of
consent does not apply when the accused were engaged in a
homosexual act. `This court used language that is correct, but has
confused some attorneys, portions of the media, and could cause
confusion in other cases if attorneys do not carefully read this
court's opinion,' assistant attorney general Breck Burgess wrote in
seeking a change in the ruling," suggesting that the court add a
footnote or an extra paragraph to its opinion prior to official
publication, declaring that the consent portion of the statute only
applies to the portion of the law involving "sexual contact," which
applies generally to manual stimulation of the genitals, and not to
the portion covering "deviate sexual intercourse between persons of
the same sex," which involves gay anal or oral sex.  

Given the state of evidence in the case, it may be possible to
argue this one both ways.  T.B. testified that he repeatedly had
oral sex with Cogshell.  Cogshell did not testify in his own
behalf, But he told the police officer, who apparently did testify,
that he had merely fondled the boy ("sexual contact"), but denied
having intercourse.  If Cogshell is believed on this point, then it
is possible to uphold reversal of his conviction consistently with
Nixon's construction of the statute.  But since Cogshell did not
testify, and since the conviction of statutory sodomy (as to which
anal or oral sex is required and consent is not relevant) would
indicate the jury believed T.B.'s account of their sexual
activities, it is hard to see how Nixon's construction of the
statute is consistent with the court's opinion.

Could gay sex in Missouri have been inadvertently decriminalized by
the legislature as part of its general restructuring of the sex
crimes provisions, which took place several years ago?  The
commission charged with drafting revisions to the penal code had
recommended decriminalizing consensual sodomy, but an amendment to 
the draft was introduced in a legislative committee adding back the
reference to deviate sexual intercourse precisely to avoid
decriminalizing, according to the conservative Republican senator
who proposed the addition, Larry Rohrbach.  After enactment,
however, some gay rights advocates in Missouri claimed that the
resulting ambiguous language had decriminalized gay sex, but the
legislature, which had not articulated an intent to do this, had
not taken any steps to change the statute, relying on A.G. Nixon's
assertion that gay sex was still illegal, regardless of consent.

Perhaps the _Cogshell_ ruling will spur the legislature to amend
the statute.  Or perhaps calmer heads will prevail and, in light of
the judicial invalidation of laws against consensual sodomy in
neighboring states of Kentucky and Tennessee, the Missouri
legislature will decide to leave well enough alone and leave this
inadvertent repeal in place. A.G. Nixon, for one, told the local
newspaper in Columbia, Missouri, that he was just doing his job
defending the statute, and actually believed that all sex between
consenting adults should be legal.   A.S.L.

Indiana Appeals Court Issues Second Directive in Custody Dispute

On July 29, the Indiana Court of Appeals issued its second opinion
in _Pryor v. Pryor_, 1999 WL 588245, a long-running custody dispute
between a lesbian mother and her former husband that had been
complicated by questions of interstate jurisdiction.  In the
earlier decision, reported at 709 N.E.2d 374, the court had
remanded the matter for a determination by the Circuit Court as to
whether the courts of Kentucky were asserting jurisdiction over the
case due to the mother's relocation to that state, and, provoked by
the circuit court's earlier decision to grant custody to the
father, the court had reiterated Indiana precedents forbidding
basing a custody award solely on a parent's sexual orientation.

Shortly after the remand, the Circuit Court determined that a
Kentucky court had declined to accept jurisdiction over the custody
issue, and reiterated its custody award to the father.  In this new
decision, Judge Riley, writing for a unanimous panel, found that
the record did not support the custody award, because the decision
appeared to be premised entirely on the mother's residence in a
mobile home with another woman and her past homosexual experiences.

"However," wrote Riley, "without evidence of behavior having an
adverse effect upon A., we find that the trial court had no basis
upon which to find Debra unfit as the custodial parent.  Based on
this evidence alone, we cannot agree with the trial court's
decision to grant John custody of A." Riley noted that as long ago
as 1981, the Indiana Court of Appeals had stated that
"homosexuality standing alone without evidence of any adverse
effect upon the welfare of the child does not render the homosexual
parent unfit as a matter of law to have custody of the child" in
_D.H. v. J.H._, 418 N.E.2d 286 (1981).

Riley concluded that the case must be remanded once again to the
Perry Circuit Court for a best interests determination, but
pointedly noted that the court should determine A.'s best interests
"by allowing Debra an opportunity to offer evidence as to her
fitness as the custodial parent and for John to supply the court
with further evidence of his fitness as the custodial parent rather
than merely attacking Debra's homosexual orientation."

Debra Pryor is represented by Sean Lemieux, a staff attorney for
the Indiana Civil Liberties Union.  A.S.L.

8th Circuit Revives Homophobic Harassment Claim Under Title VII

In _Schmedding v. Tnemec Company, Inc._, 1999 WL 638501 (Aug. 19),
the U.S. Court of Appeals for the 8th Circuit  reversed the
dismissal of a claim of same-sex harassment brought under Title
VII, finding that the plaintiff's factual allegations of homophobic
harassment might support a claim of sex discrimination within the
parameters the Supreme Court specified in _Oncale v. Sundowner
Offshore Services, Inc._, 523 U.S. 75 (1998).

Nicholas Schmedding alleged that he was subjected to harassment
consisting of "taunting him of being homosexual" and spreading
rumors regarding his "perceived sexual preference," accompanied by
unwanted physical touching, including patting him on the buttocks,
asking him to perform sex acts, passing derogatory notes about
aspects of his anatomy, calling him names such as "homo" and "jerk
off," and exposing him to "the exhibition of inappropriate sexual
behavior by others." Viewing these allegations, the district court
concluded that Schmedding was really alleging sexual orientation
discrimination, which is not actionable under Title VII, and
dismissed the complaint.

The court of appeals panels unanimously disagreed with this
characterization of the case.  In a short opinion by Circuit Judge
Beam, the court stated: "We do not think that, simply because some
of the harassment alleged by Schmedding includes taunts of being
homosexual or other epithets connoting homosexuality, the complaint
is thereby transformed from one alleging harassment based on sex to
one alleging harassment based on sexual orientation."  Beam
commented that on appeal, Schmedding had argued that his use of the
phrase "perceived sexual orientation" in his complaint "indicates
or shows that the harassment included rumors that falsely labeled
him as homosexual in an effort to debase his masculinity, not that
he was harassed because he is homosexual or perceived as being a
homosexual." The court found that there was evidently some
"confusion" over the significance of the phrase "perceived sexual
orientation" in the context of this case, and "in light of the
confusion. . . and Schmedding's willingness to amend the complaint
so as to delete it, the best recourse is to remand the case to the
district court with instructions that plaintiff be allowed to amend
his complaint and proceed with the case."

What this augurs for future homophobic harassment cases in the 8th
Circuit is unclear; as similarly unclear is the degree to which
_Oncale_ leaves open the possibility that lesbian and gay
employees, not just heterosexuals who might be perceived as lesbian
or gay, can find protection from workplace harassment provoked by
such perceptions on the part of other employees.  A.S.L.

Court Refuses to Treat Gay Relationship As Business Arrangement

Rejecting the attempt by an estranged gay male couple to construe
their relationship as a business transaction, the Superior Court of
Pennsylvania held that neither party was unjustly enriched by the
financial support and services provided by one to the other over
the course of their thirteen year relationship.  _Mitchell v.
Moore_, 729 A.2d 1200 (April 12).  Writing for the court, President
Judge Emeritus Cirillo treated the dispute as one between alienated
lovers rather than disgruntled business partners and found neither
party to be unduly benefitted as a result of the relationship.

Thomas Mitchell and William Moore met in 1980 and, according to the
court, "quickly developed a romantic relationship."  Mitchell spent
a portion of each year with Moore at his Elverson, Pennsylvania,
farm until 1985, when Mitchell permanently relocated from his house
in South Carolina to Pennsylvania.  Mitchell did not pay rent, but
assisted Moore in maintaining the house and farm, tending to the
farm animals and aiding in the breeding of sheep and birds.  In
1990, Mitchell enrolled in Penn State University for graduate
studies, and was unable to continue his role in the sheep and bird
businesses or to assist with farm maintenance.  Soon thereafter,
the relationship disintegrated, and Mitchell moved out of Moore's
farm in June, 1994.

In 1995 Mitchell sued Moore, seeking compensation for the services
he rendered on the farm under a theory of unjust enrichment.  In
his complaint, Mitchell also alleged that Moore had agreed to
compensate him for his help in running an antique cooperative that
Mitchell had purchased, promised him future compensation by
providing for him in Moore's will, and failed to compensate him for
monetary contributions Mitchell had made toward a real estate
purchase in Florida by Moore.  Moore filed a counterclaim seeking
$139,300 in rent for the 139 months Mitchell lived on his farm
rent-free and as compensation for Moore's payment of Mitchell's
credit card, utility, telephone and other miscellaneous bills over
the course of their relationship.  A jury returned a verdict in
favor of Mitchell and rejected Moore's counterclaims; the Court of
Common Pleas entered its judgment accordingly.  Moore filed a
motion for JNOV (judgment notwithstanding the verdict), arguing
that the jury's decision was against the weight of the evidence and
not supported by the law governing unjust enrichment.  The Court of
Common Pleas denied Moore's motion. 

The Superior Court began its analysis by noting that a denial for
JNOV by the trial court will only be reversed when there has been
an abuse of discretion or an error of law that controlled the case. 
Judge Cirillo first reviewed the elements of a claim of unjust
enrichment:  (1) benefits are conferred on defendant by plaintiff,
(2) appreciation of such benefits by defendant and (3) acceptance
and retention of such benefits under such circumstances that it
would be inequitable for defendant to retain the benefit without
payment of value.  He then emphasized that "[i]n determining if the
doctrine applies, our focus is not on the intention of the parties,
but rather on whether the defendant has been unjustly enriched."  

In its decision, the trial court wrote: "[i]t is not unreasonable
to suggest that the jury believed Plaintiff [Mitchell] in that he
made that life-altering change based on something besides his
desire to develop his relationship with Defendant [Moore].  Given
this potential scenario, it is likely that the jury could have
found that the lack of compensation Plaintiff [Mitchell] received
amounted to an unconscionable bargain and therefore, Defendant's
[Moore's] unjust enrichment."  In critiquing the trial court's
decision, Judge Cirillo pointed out that in order to prove unjust
enrichment, there must be some convincing evidence that the
services provided by the plaintiff were not gratuitous.  The court
relied on various communications between Moore and Mitchell
emphasizing that the work done by Mitchell was "voluntary" and "a
gift to [their] relationship."  Moore and Mitchell celebrated major
holidays together with Moore's immediate family and "conducted
themselves around the home like parties in a loving relationship;
they shared household chores, cooked dinners for each other,
bestowed gifts upon one another, [and] attended events together. .
. ." 

The court was hesitant to suggest that all services provided in
unmarried couples' relationships were "gratuitous," but noted that
the presumption existed and could only be rebutted by clear and
convincing evidence:  "The basis of this presumption rests on the
fact that services provided by plaintiff to the defendant are not
of the type for which one would normally expect to be paid, nor did
they confer upon the defendant a benefit that is unconscionable for
him to retain without making restitution to the plaintiff" (quoting
_Feingold v. Pucello_, 654 A.2d 1093, 1095 (1995) (Beck, J.,
concurring)).

Judge Cirillo further rejected Mitchell's allegation regarding
Moore's promise to "take care of him" in his will.  Moore had
originally bequeathed his farm to Mitchell but those provisions
were later supplanted by a codicil.  Cirillo characterized Moore's
initial bequest as a gift, and said that it was "not equivalent to
a finding that defendant intended to compensate the plaintiff for
his services and that upon failure to remit such monies, the
defendant became unjustly enriched."  In a footnote, Judge Cirillo
noted that Mitchell's dissatisfaction really seemed to stem from
the fact that he believed these promises to be "a forever and
forever situation," and they were more properly characterized as
promissory estoppel claims rather than unjust enrichment.  

Just as lesbian biological mothers are finding courts less willing
to rewrite the relationships between them and non-biological
mothers in custody disputes (see e.g., _E.N.O. v. L.M.M._, 429
Mass. 824, 1999 WL 430460 (June 29)), gay couples generally may
find that the courts are less willing to blind themselves to the
realities of gay relationships by characterizing romantic couplings
as business partnerships.   The Superior Court of Pennsylvania
reversed the decision of the Court of Common Pleas, finding that
"the various benefits . . . received over the parties' thirteen
year relationship were . . . gratuitous in nature."  Furthermore,
Judge Cirillo wrote that "[t]o find restitution (compensation)
proper for services performed in such a relationship, we would
curtail the freedom associated in forming new personal bonds based
upon the important facet of mutual dependence."  _Sharon McGowan_

Court Reverses Conviction of Gay Man on Sexual Assault Charges
Because of Prejudicial Evidence

Finding that the trial court should not have admitted evidence that
the defendant told a police officer he was gay, the Wisconsin Court
of Appeals reversed the conviction of James Tanksley for the sexual
assault of two boys. _State of Wisconsin v. Tanksley_, 1999 WL
557677 (July 30) (not officially published).  

The per curiam opinion is rather sketchy concerning the facts, but
it appears that Tanksley was in a position involving supervision of
a group of boys, perhaps as an athletic coach, camp counsellor, or
other youth leader, and was accused of fondling the genitals of the
boys.  Tanksley maintained he was checking for jock itch, not
seeking sexual gratification, and made the mistake of telling the
police officer who arrested him on the complaint of one of the
boys' mothers that he was gay and was aware of the penalty for
similar crimes in another state.  The trial court allowed the
police officer to testify to these statements, allowed the boy's
mother to testify to a range of hearsay as "relevant" to the issue
of how the charges came to be made against Tanksley, and allowed a
therapist to testify, in effect, that one of the boys had testified
truthfully.  The trial court rejected Tanksley's post-conviction
motions to set aside the verdict.

The state conceded that Tanksley's statements to the police officer
were inadmissable, but argued that this was harmless error.  The
court of appeals did not agree: "These statements have little or no
probative value and are highly prejudicial. . . .  The test of
harmless error is whether there is a reasonable possibility that
the error contributed to the conviction.  We conclude there is a
reasonable possibility that admitting these irrelevant and
prejudicial statements contributed to the convictions." The court
rejected the state's argument that the evidence against Tanksley
was so strong that there is no reasonable probability that the jury
would have acquitted him in the absence of the disputed evidence. 


The court also found that the trial court erred in admitting the
testimony by the boy's mother, who had no first-hand knowledge of
any of the pertinent events, and was critical as well of the expert
testimony of the therapist, finding that it appeared to be based on
hearsay.  But the reversal of the conviction was premised on the
inappropriate admission of the police officer's testimony about
Tanskley's statements.  The case was remanded for a new trial, and
the trial court was specially instructed to take care in
considering the testimony presented on retrial to determine whether
the therapist's testimony relies on inadmissable hearsay and
whether it is "relevant to help the jury avoid making decisions
based on misconceptions of victim behavior." A.S.L.

Virginia Appeals Court Rejects Heterosexual Sodomy Law Challenge

A three-judge panel of the Virginia Court of Appeals unanimously
rejected a federal privacy and due process challenge to Virginia's
ban on oral sex as applied to a 59-year-old man charged with
committing cunnilingus on the 16-year-old daughter of his friends. 
_Santillo v. Commonwealth of Virginia_, 1999 WL 617840.  Although
the court did not rule on the merits of the privacy claim, finding
that this was not truly a consensual case, Chief Judge Fitzpatrick
clearly intimated that in light of _Bowers v. Hardwick_, 478 U.S.
186 (1986), Giulio Santillo would not have prevailed on his claim.

Santillo lived in Florida but stayed in the guestroom in his
friends' Virginia home when in the area on business.  On the
occasions in question, Santillo was visiting and took advantage of
being alone with his friends' 16-year-old daughter to attempt to
initiate sexual activity by the familiar device of offering a
massage.  In the first incident, Santillo placed his fingers in the
girl's vagina; in the second case, he initiated cunnilingus.  In
both cases, the girl cut the activity short and Santillo told her
not to tell anybody about it.  However, she evidently did complain
to her parents, leading to Santillo's prosecution.

At trial, Santillo moved to dismiss the charges, arguing that the
sodomy law as applied to his situation was a violation of his
constitutional rights of privacy and due process (vagueness).  The
trial judge, Fairfax County Circuit Judge Gerald Lee, denied the
motion, asserting that what the state was attempting to prove was
other than a consensual situation between adults.  On appeal, Judge
Fitzpatrick agreed with Judge Lee that this was not truly a
consensual case.  Although Santillo did not use force and desisted
from his sexual conduct when his "victim" cut it short, this did
not strike the court as sufficiently consensual to raise a
constitutional privacy issue.  The court also noted the age
disparity, casting doubt on whether these incidents really involved
two "adults."

After briefly summarizing the federal constitutional privacy cases,
and noting particularly the Supreme Court's refusal to invalidate
Georgia's sodomy law in _Hardwick_ based on the lack of any
traditional protection in western society for "homosexual sodomy,"
Fitzpatrick continued: "In the instant case, appellant seeks to
extend the recognized right of privacy to cover an individual who
engages in heterosexual sodomy.  However, under the circumstances
of this case, we hold that appellant's actions were not within the
ambit of any constitutionally protected zone becuase they did not
involve sexual relations between two consenting adults.  Viewed in
the light most favorable to the Commonwealth, the evidence
established that appellant acted without the consent of the
sixteen-year-old victim. . .  Because we hold the evidence
established that the relations in this case were non-consensual, we
decline to decide the constitutionality of Code sec. 18.2-361, as
it applies to heterosexual acts between two consenting adults."

After quoting the _Hardwick_ opinion's assertion that "no
connection" had been demonstrated between "homosexual activity" and
the various activities that had previously been found to be
protected by the constitutional privacy right, Fitzpatrick
asserted: "Similarly, appellant has failed to demonstrate any
connection between one of the enumerated fundamental rights and the
actions he now alleges are constitutionally protected.  In this
case, it would be outrageous to sanction the advances of a fifty-
nine-year-old man who took advantage of his position of trust with
the young victim and her family.  This is not the `privacy'
protected by either the Due Process Clause or the _Griswold_ line
of cases."

The court also briefly addressed the vagueness argument, finding it
to be wholly without merit as prior Virginia cases had made very
clear that oral sex of the type attempted by Santillo came within
the prohibition of the statute.  In a sentence that would send
chills down the spine of any fan of Bill Clinton, Fitzpatrick
wrote: "The statute clearly provides that the acts prohibited
involve contact between the mouth and the genitals, including
heterosexual oral sex."  Good thing the White House is over the
border in D.C. . .  A.S.L.

Location Not Controlling in Indecent Exposure Conviction

In a July 29 opinion by Justice Wittig affirming an indecent
exposure conviction, the Court of Appeals of Texas held that it was
reckless of a man to presume that people in an adult bookstore
theater, who were not offended by displayed graphic materials and
film content, would not be offended by seeing similar nudity and
sex acts in person. Broussard v. State, 1999 WL 548259 (Tex.App.-
Hous. (14 Dist.)). The court also ruled that evidence of the
extraneous offense of public lewdness was part of the same
transaction as the indecent exposure, and thus that it was relevant
contextual evidence rather than inadmissable character evidence.

William Broussard exposed his penis, was masturbated by, and
engaged in oral sex with another patron in the theater of an adult
bookstore. When the two were arrested by an undercover officer
present in the theater, there were about three other people visible
(excluding one who masturbated and left without incident). The
appellate court found this evidence sufficient "to allow one to
infer [Broussard] knew others were present who might be offended or
alarmed," which is an element of the exposure offense. 

Broussard asserted that he was not reckless due to the "seediness"
of the location, relying on a case in which a nudist (along with
more than a hundred other nudists) was naked on a remote area of a
secluded but public beach. A split decision held the nudist not
reckless because "the State produced no evidence that [he] was
aware of but consciously disregarded a substantial and
unjustifiable risk that others would be present."  Citing the "vast
distinction of the isolated beach vis a vis the I 45 Gulf Freeway
theater location not to mention the disparate conduct," the
appellate court found more analogous a case where a defendant
argued that he did not deviate from the standard of care of a
person patronizing an adult book store by inserting his penis
through a hole in a partition (invited by an officer's gesture).
That court found the evidence sufficient, where the defendant did
not know who else was present, because "even if location were" a
controlling issue, there were no signs or advertisements warning of
live nudity.
 
At trial, Broussard also had objected to the admission of evidence
that the other man masturbated him and performed oral sex.
Broussard argued that evidence of the extraneous offense of public
lewdness was offered for purposes of proving his character, in
order to show that he acted in conformity with it on the occasion
in question, and also that the probative value of the evidence was
outweighed by its potential for causing unfair prejudice. On the
first point the appellate court affirmed the admissibility of the
evidence as demonstrating Broussard's intent to gratify his sexual
desire. On the second point, Justice Wittig's opinion "recognize[s]
masturbation and homosexual conduct occurring in a public setting
with an apparent stranger might cause disgust and repulsion to
members of the general public. This self-induced prejudice is
apparent." The court nonetheless held that the danger of unfair
prejudice did not outweigh the probative value. _Mark Major_

Despite Rejection of Trial Court's Stereotyped Conjectures About
Father's Sexuality, Alabama Court Affirms Denial of Custody

After rejecting "the primary factor" specified by the trial court
in denying custody of his son to a divorcing man -- that the man
was believed to be bisexual -- the Court of Civil Appeals of
Alabama nonetheless upheld the denial of custody.  _D.L. v.
R.B.L._, 1999 WL 553770 (July 30).  The Chambers Circuit Court
judge believed that the the man was bisexual, in part, because he
took "feminine-type" furniture as part of the divorce settlement. 
     

The couple was married in 1981 and the wife filed for divorce in
April 1998.  They both agreed that she would have custody of the
daughter.  He contested custody of the son.  The wife asserted that
he was bisexual, which the husband denied.  She acknowledged that
she never found him in any "compromising" situations, but said that
"maybe once out of a month" he spent time with his male friends,
which made her feel "insecure."  Aside from these times he was at
home, according to the wife, except when he was at work or at
church.    

The Circuit Court examined his some of his underwear offered in
evidence by the wife; according to the wife, there was a "stain or
discharge."  The Circuit Court Judge examined a pair of the
husband's underwear, but did not admit it into evidence, as no
scientific proof was presented regarding the nature of the alleged
"discharge."  Additionally, the Circuit Court took note of the
husband's taste in furniture.  As part of the divorce settlement,
he took the dining room suite which belonged to his sister and a
hutch, which he was still paying for.  The Circuit Court judge
determined that these items were "feminine-type furniture" and thus
evidence of the husband's bisexuality.  

The Appeals Court, in an opinion by Judge Thompson, rejected the
finding of bisexuality as based on "conjecture and speculation." 
The Appeals Court further found that there was "absolutely no
direct evidence tending to indicate" that the husband is bisexual.
"It appears that the primary factor upon which the trial court
based its custody decision was its finding of fact regarding the
husband's sexuality," Thompson wrote.  

The Appeals Court then proceeded to uphold the denial of custody,
anyway.  The court asserted that it could affirm a judgement "on
any valid basis, regardless of whether that basis was accepted, or
even considered by the trial court," citing _Cove Properties, Inc
v. Walter Trent Marina, Inc._, 702 So.2d 472 (Ala. Civ. App. 1997). 
The other information the appeal court reviewed was that the wife
was stricter with the son and addressed his low school grades.  The
court further noted that the husband did not have a home of his own
and worked in the evenings.  While the divorce was pending, he and
the son stayed with two relatives, one during the week and the
other on the weekends, which the court evidently felt to be
disadvantageous for the son.  The case was remanded, with orders to
enter a new judgement which deletes reference to the husband's
sexuality.  _Daniel R Schaffer_

Gay Connecticut Man Loses Opportunity To Sue Employer Under State's
Anti-Discrimination Law.</B>

Connecticut's highest court granted summary judgment on 2 of 3
claims brought by a gay man alleging discriminatory discharge and
emotional distress when fired from his company insurance job. 
_Denault v. Connecticut General Life Insurance Company_, 1999 WL
549454 (Conn. Super. Ct.,  June 29).  Most damaging, one of the
motions granted was for defendant's alleged violation of the
Connecticut anti-discrimination statute protecting plaintiff on the
basis of sexual orientation.

Plaintiff Donald Denault was hired by Connecticut General Life
Insurance Company (Connecticut General) in February of 1987.  He
advanced in the company and applied for an open position in the
Milford CT office.  The hiring manager in that office, Jim McGrath,
worked with plaintiff before and groomed him for the job.  Denault
told McGrath that he was gay and Denault was assured that it would
not present a problem.  Denault was interviewed by office manager
Steve Dillman and was subsequently hired in January of 1991.  While
working in the Milford office, Denault was supervised by Dillman,
McGrath, and three other men, but primarily worked for McGrath.

According to Denault's depositions, almost immediately after
beginning the new job, he was asked about his sexual orientation. 
Denault further stated that he was excluded from social gatherings
with the other male employees, although another person with the
same position was not so excluded.  Denault never asked to be
included in these social functions and McGrath did invite him,
either before or after he began the new job.  Denault further
stated that his co-workers spoke to him in a "different tone."

After six months, Denault claimed that the discrimination became
more overt: a joke made by McGrath about whether anyone marched in
the Gay Pride Parade the previous weekend, Dillman described a
complication Denault had with a job function as "a woman thing" and
was reported to have referred to Denault as "one of those people"
while gesturing effeminately.  Denault complained to McGrath, who
replied that it was of no concern.  All the while Denault received
good performance evaluations and pay raises, although he claims
McGrath limited his incentive earnings, and that his inquiries
about  advancement opportunities were vaguely answered.

In December of 1992, Denault had enough and confronted McGrath and
demanded that he be treated fairly like the other employees. 
McGrath became angry but backed off.  Five months later, Denault
was fired for allegedly falsifying a part of one transmittal form
and for expense report improprieties.  Denault did not deny these
charges, but explained that it was done at the command of McGrath. 
According to the company, the consensus to fire Denault was reached
by three people who had never met Denault, worked in the Milford
office or knew that Denault was gay.  McGrath claims he did not
know of the firing until after Denault was terminated.

Denault filed a four-count suit for discrimination alleging
violation of the Connecticut Fair Employment Practices Act and
intentional and negligent infliction of emotional distress. 
Denault also claimed compelled self-defamation, which the court did
not pursue.  Connecticut General moved for summary judgment on the
three remaining counts.

Judge Corradino began the opinion by quoting the state's anti-
discrimination statute, which prohibits discrimination against an
employee based on sexual preference.  The court without objection
applied federal case law to the state statute interpretation and
narrowed the motion down to whether a prima facie case for summary
judgment purposes has been established by using either the
_McDonnell Douglas _or _Price Waterhouse_ tests.  _McDonnell
Douglas Corp. v. Green_, 411 U.S. 792 (1973), _Price Waterhouse v.
Hopkins_, 490 U.S. 228 (1989).  The _McDonnell Douglas_ case is
commonly referred to as the "pretext case," i.e., an indirect
showing of discrimination where the defendant claims a
nondiscriminatory reason for its action.  _Price Waterhouse_ is
sometimes referred to as the "mixed-motive" case, where there is a
showing of direct discrimination which the defendant rebuts with
other harbored (but legal) reasons for its actions.  However,
Corradino reminds us that both types of cases involve
circumstantial evidence, since transgressors rarely leave smoking
guns.  Relying on a leading 2nd Circuit case, the court defined its
boundary for interpreting the circumstantial evidence by stating it
"must be tied directly to the alleged discriminatory animus," i.e.,
purely statistical evidence or qualification issues or stray
remarks in the work place by those not involved in the decision
making process.  _Ostrowski v. Atlantic Mut. Ins. Co_., 968 F.2d
171 (2nd Cir. 1992).  After a lengthy treatise comparing and
contrasting the two evidentiary tests applied to discrimination
cases, the court reasoned that, by process of elimination, the
_McDonnell Douglas_ case, as modified in the Second Circuit for a
discriminatory discharge (_McDonnell Douglas_ itself was a
discriminatory failure-to-hire case), is the proper test for
Denault; the _Price Waterhouse _ (mixed motive) test was excluded
because there is no evidence directly reflecting bias in the actual
decision to terminate Denault.

Under the 2nd Circuit variation of the _McDonnell Douglas_ test, a
plaintiff must show (1) he was in the protected group; (2) he was
qualified; (3) he was discharged; (4) the discharge occurred under
circumstances giving rise to an inference of discrimination.  The
court then applied the _Chambers_ analysis to discern what
circumstantial evidence is permissible in a pretext case. 
_Chambers v. TRM Copy Centers Corp._, 43 F.3d 29 (2nd Cir. 1994). 
Under _Chambers_, circumstances contributing to a permissible
inference of discriminatory intent may include the employer's
continuing, after discharging the plaintiff, to seek applicants
from persons of the plaintiff's qualifications to fill the job,
employer's criticism of the plaintiff's performance in terms
evincing prejudice against plaintiff's minority group, invidious
comments about others in the employee's protected group or the more
favorable treatment of employees not in the protected group, or the
sequence of events leading to or the timing of the plaintiff's
discharge.  After a prima facie case is made, the defendant's
evidentiary burden is triggered to show other motives for the
employer's action which were permissible.  Upon this showing, the
burden of proof is then shifted to the plaintiff to make a showing
that the employer's proffered explanation is unworthy of credence
or by reliance on the evidence comprising the prima facie case,
without more.

The court applied this analysis to Denault's facts and again
reasoned that there was no evidence that the team of people who
actually fired Denault knew of his sexual orientation, the
confrontation with McGrath or the alleged harassment.  The court
further stated that "the firing cannot, a priori, be related to any
motive that might have arisen out of the confrontation since there
is no logical reason or basis in fact to transfer any motives that
might have been created in low level, local management to the
people in management who actually made the decision to fire." 
Furthermore, the defendant does not contest that he violated the
company's code of conduct, a copy of which he received, by having
others forge signatures of office managers on expense vouchers and
claiming that he entertained a corporate customer on the company's
expense when he did not.  With the burden of proof not shifting to
Denault to show pretext, there was nothing in the record to support
such a claim other than conclusory statements and unsubstantiated
charges.  Also, the court again declared that there was no evidence
that those who engaged in the discriminatory activity had any
substantial input into the decision to terminate Denault.  The
court granted the motion for summary judgment on this count.

Turning to the question of intentional infliction of emotional
distress, the court deceptively denied the motion for summary
judgment on this count.  It began by relying on a decision this
very court wrote last year where it decided that the extreme and
outrageous conduct complained of can be treated as a question of
law and not of fact that should be decided by a jury, as Denault
argued.  After a lengthy discussion restating the current trend
that mere insults, verbal taunts or even ethnic or racial slurs do
not rise to the level of extreme and outrageous conduct (a
discussion seemingly sealing the plaintiff's fate on this count),
the court called it "a close one" to call, noting that the alleged
harassment involved incidents spanning a long time, but at the same
time that it was not constant or unusually or extremely cruel,
although obnoxious and upsetting if made.

Finally, the court granted defendant's motion for summary judgment
on the charge of negligent infliction of emotional distress, an
action confined only to the actual termination process in an
employment context.  The court reasoned that there was no evidence
that the actual termination process by even the most liberal
definition of that term was conducted in such a way as to cause,
negligently or otherwise, such harm to the plaintiff.  _K. Jacob
Ruppert_

Alaska Supreme Court Reaffirms Ruling on Marriage Ballot Question

On Aug. 17, the Alaska Supreme Court released a new opinion in
_Bess v. Ulmer_, 1999 WL 619092, following up on a preliminary
opinion that had been issued on challenges to three questions that
had been submitted for voter initiative in the state.  One of those
questions, Resolution 71, concerned a prohibition on same-sex
marriage.

The main issue confronting the court was whether the questions were
properly put before the voters as proposed amendments to the state
constitution.  Under Alaska law, there is a distinction between
amendments and revisions, the former being submitted to the voters,
the later being made only by a constitutional convention.  The line
between the two kinds of measures is not particularly distinct.  In
this case, the court attempted to clarify the distinction (although
not entirely successfully, to judge by a dissenting opinion).  In
essence, proposals that would significantly affect the structure of
government, distribution of powers, or alter a significant number
of constitutional provisions is deemed a revision, while a measure
that is narrowly focused and does not substantially affect the
basic structure of state government can go to the voters as an
amendment.

The measure restricting lawful marriages to opposite-sex couples
was deemed an amendment by the court and allowed to go to the
voters, who passed it.  The court did strike out one sentence, in
response to an argument that it might be construed to authorize
criminal prosecution for same-sex couples who engaged in marriage-
like ceremonies conducted by religious bodies that have decided to
sanctify such relationships.  On the representation of proponents
of the amendment that it was not intended to produce such a result,
merely to express the people's sentiment that same-sex marriages
have no legal effect, and was otherwise mere surplusage, the court
decided that language that will not have any operative effect
should not be added to the state constitution, as its legislative
history could fade over time and it might end up being improperly
applied.  A.S.L.

Iowa U.S. District Court Orders State Medicaid Program to Cover Sex
Reassignment Surgery

Iowa's Medicaid program must pay for sex reassignment surgery,
according to U.S. District Court Judge Bennett, ruling July 14 in
_Smith v. Rasmussen_, 1999 WL 527795 (N.D. Iowa).  Judge Bennett
ruled with great care and detail that the state's refusal to pay
for the third and final portion of plaintiff's female-to-male sex
reassignment surgery was an impermissibly "arbitrary" decision,
based solely on his diagnosis of gender identity disorder.  The
court rejected the state Department of Human Services' argument
that sex reassignment surgery is "experimental" and not a
"medically necessary" treatment for gender identity disorder.
Instead, Judge Bennett confirmed the continued vitality of an
Eighth Circuit decision from 1980, _Pinneke v. Preisser_, 623 F.2d
546, in which the appellate court held that under federal Medicaid
regulations and guidelines, decisions concerning medical treatment
must be made by one's physician, and not by "clerical personnel or
government officials" on the basis of misconceptions and bias.

Thirty-nine year old plaintiff John Smith, who was born female,
suffers from gender identity disorder, and is now medically and
legally classified as male.  Smith receives Iowa Medicaid
assistance as a "medically needy" person as a result of car
accident in 1978, which rendered him permanently disabled and
unable to work.  Medicaid paid for Smith's hysterectomy and the
removal of his ovaries approximately seven years ago --- in spite
of the fact that Smith considered these surgeries to be in
furtherance of his sex reassignment --- since the surgeries also
were related to medical conditions other than Smith's gender
dysphoria.

In 1997, Smith paid out of pocket for a bilateral breast reduction
and male chest contouring surgery, after Medicaid denied payment on
the alleged ground that Medicaid benefits did not cover sex
reassignment surgery under Iowa law.  When the Iowa Department of
Human Services also denied Smith's application for Medicaid to pay
for his phalloplasty (surgical construction of a penis), Smith
filed suit in federal court and asserted two claims.  First, Smith
alleged that the denial of sex reassignment surgery violated the
federal Medicaid statute and regulations.  Second, Smith alleged
that the denial of surgery for gender identity disorder violates
his right to due process under the Fourteenth Amendment to the
United States Constitution.  Just before trial, Smith withdrew the
due process claim. 

Medicaid provides federal financial assistance to states that
choose to reimburse certain costs of medical treatment for needy
persons. Although participation in the program is voluntary, once
a state chooses to participate, it must comply with federal
statutory and regulatory requirements. State governments administer
the programs.  At issue in the present case was one statutory and
one regulatory requirement:  42 U.S.C. 1396a(a)(17) provides that
"a state plan for medical assistance must include reasonable
standards for determining eligibility for and the extent of medical
assistance under the plan." 42 C.F.R. 440.230(c ) prohibits
discrimination in the decision-making process as to what procedures
Medicaid will cover: "The Medicaid agency may not arbitrarily  deny
or reduce the amount, duration, or scope of a required service to
an otherwise eligible recipient solely because of the diagnosis,
type of illness or condition."

In 1980, the Eighth Circuit ruled that Iowa violated these federal
provisions when, "without any formal rulemaking proceedings or
hearings, the Iowa Department of Social Services established an
irrebuttable presumption that the procedure of sex reassignment
surgery can never be medically necessary when the surgery is a
treatment for transsexualism and removes healthy, undamaged organs
and tissue."  The appellate court affirmed the District Court's
decision in that case, requiring the Department to reimburse the
plaintiff for her male-to-female sex reassignment surgery, and
awarding $500 as compensation for mental anguish and suffering
resulting from the wrongful denial of benefits.

The Iowa Department of Human Services interpreted the Eighth
Circuit's ruling to mean that it could deny Medicaid coverage for
sex reassignment surgery if it followed the state's formal
rulemaking procedures and promulgated a rule excluding Medicaid
coverage for the surgery.  After Iowa paid for the second sex
reassignment surgery in its history in 1991, the Department of
Human Services prepared a report based on a literature review and
a review of services provided by the Medicaid programs in sister
states.  The report concluded that there was no consensus about the
appropriateness of surgery as a treatment for gender dysphoria, and
that other non-surgical treatments were available.  Based on the
report, the Department promulgated a proposed rule excluding
coverage of all sex reassignment surgery, and subjected it to
administrative rulemaking proceedings, including public notice and
comment.  Only one comment was received --- a negative comment from
Smith's counsel (who also represented the individual who received
Medicaid benefits for sex reassignment surgery in 1991) --- after
which the rule was adopted formally and became the law of the state
of Iowa.

The Department argued to Judge Bennett that the process by which it
decided to exclude Medicaid coverage for sex reassignment surgery
was reasonable, and satisfied the requirements of _Pinneke_.  The
Department also took the position that sex reassignment surgery is
"experimental" and "controversial," not generally accepted as a
treatment for gender identity disorder, and thus properly excluded
from coverage under its Medicaid program.  Judge Bennett disagreed
with both contentions. 

The court first concluded that the rulemaking procedures which were
followed by the Department "only went through the motions of
rectifying one of the inadequacies noted in _Pinneke_," and that
"nodding at _Pinneke_ cannot rectify the inadequacies identified in
that decision, and the Department did no more than nod."  Bennett
cited the fact that the Iowa Foundation for Medical Care, which
reviewed the report relied upon by the Department, failed to
contact or involve anyone with actual experience in the treatment
of gender identity disorder.  According to the court, the IFMC
lacked the professional credentials to evaluate the conclusions in
the report. Bennett also chided the Department for promulgating a
blanket exclusion for all sex reassignment surgeries, in spite of
the fact that the medical evidence did not support such a broadly
worded rule.

Judge Bennett then ruled that the Department failed to present
sufficient credible evidence that sex reassignment surgery is
"experimental" and properly excluded from Medicaid coverage.  The
court rejected testimony from the Department's expert witness, Dr.
Kavalier, who had encountered only one case of gender identity
disorder during the past eight years of his general psychiatry
practice.  Dr. Kavalier was not permitted to testify as an expert
witness to issues beyond general psychiatry.  According to the
court, his lack of qualifications in the field of gender identity
disorder diagnosis and treatment "seriously undermines any
likelihood that his evaluation [of Smith] would be an objective one
based on accumulated knowledge and experience."

By contrast, the court was duly impressed with the plaintiff's
expert, Dr. Sharon Satterfield, an associate professor in the
University of Minnesota Medical School and a psychiatrist in the
Department of Family Practice.  During the past twenty-seven years,
Dr. Satterfield has treated over one thousand individuals with some
degree of gender identity disorder.  Fifty to sixty percent of her
current caseload consists of individuals who are gender dysphoric.
Dr. Satterfield acknowledged that sex reassignment surgery is
"controversial," and that there is a lack of a consensus on its
effectiveness, among professionals who are not actively involved in
the treatment of gender identity disorder.  However, Dr.
Satterfield explained that only one form of the surgery could be
classified as "experimental", surgical or hormonal reassignment of
children in their early teens.  According to Dr. Satterfield, sex
reassignment surgery is the only available treatment for extreme
and irreversible cases of gender identity disorder.

The court rejected the Department's post-trial argument that there
was no subject matter jurisdiction over the plaintiff's claims, and
that Smith lacked standing to sue, since Smith had failed to offer
medical evidence at the time of trial that he was ready for the
phalloplasty, or that the procedure was "medically necessary<!70>
in his particular case. Based on a post-trial affidavit from Dr.
Statterfield, Judge Bennett concluded that Smith had shown injury-
in-fact, causation and redressability, which satisfied the
requirements of both Article III subject matter jurisdiction and
Smith's standing to sue.

Based on the evidence presented at trial, the court held that sex
reassignment surgery is not experimental, but a safe and effective
treatment for extreme cases of gender identity disorder where
patients do not respond to psychotherapy or other treatment.  By
refusing to pay for Smith's sex reassignment surgery, the court
ruled that the Department violated 42 440.230(c), by impermissibly
basing its decision on Smith's diagnosis.  The court enjoined the
Department permanently from denying Medicaid payment for the costs
associated with his remaining states of sex reassignment surgery.

The only arguably disappointing aspect of Bennett's otherwise
glowing decision is the fact that it was based on federal Medicaid
law, and not on constitutional due process grounds. The record did
not reveal Smith's reason for withdrawing his Fourteenth Amendment
Due Process claim. _Ian Chesir-Teran_

Federal Court Bars Operation of Michigan Law Against Sexually-
Explicit Material in Cyberspace

U.S. District Judge Tranow has enjoined the operation of Mich. Con.
L. 722.671, scheduled to take effect Aug. 1, on grounds that the
state ban on sexually-explicit material in cyberspace probably
violates the 1st and 14th Amendments of the U.S. Constitution as well
as the Commerce Clause.

In 1999, Michigan amended its obscenity statute to provide criminal
prohibitions against using computers or the Internet to disseminate
sexually explicit materials to minors, and expanded the operation
of the statute generally from obscene matter to "sexually explicit
materials." Several internet service providers, including an HIV
information service and a lesbian/gay bookstore, joined together to
challenge the constitutionality of this measure before it could go
into effect, and succeeded in getting Tarnow to issue a preliminary
injunction on July 29. _Cyberspace Communications Inc. v. Engler_,
1999 WL 557725 (E.D.Mich.).

Judge Tarnow found that the plaintiffs had standing to challenge
the law even though it had not gone into effect, because of the
possibility that they would be open to prosecution immediately upon
the law going into effect because of the sexual content of the
materials they maintained on-line that could be accessible to
children.  Tarnow concluded that because the Internet is a global
information source that does not respect boundaries, any attempt by
one state to regulate Internet content inevitably raises serious
questions under the Commerce Clause, which bars individual states
from stifling interstate commerce.  

As to the 1st and 14th Amendment issues, the court found that the
effect of Michigan's laws would be to force internet content
providers to censor their materials so that everything on-line
would be fit for consumption by children, thus stiflying adult
conversation.  Tarnow pointed out that the Michigan law could even
make it difficult or impossible for minors to access information
important to them, such as HIV prevention information.  Tarnow
observed that software exists for parents to block access to
sexually-explicit materials for their children, thus providing a
less restrictive alternative.  Concluding that it was likely
plaintiffs would ultimately prevail on the merits, and that they
would suffer serious injury that could not be financially redressed
if the statute was allowed to go into effect pending a final ruling
on the merits, Tarnow ordered that Michigan law enforcement
officials refrain from enforcing the statute pending a final
decision in the case.  A.S.L.

Federal Court Dismisses Lesbian's Discrimination Suit Premised on
Supervisor's Affair With Her Male Replacement

U.S. District Judge Gerald Goettel (D. Conn.) has dismissed age,
sex and sexual orientation discrimination claims brought by a
terminated lesbian employee, premised on her replacement by a
younger man who subsequently had a sexual relationship with
supervisor. _Hood v. Kaplan Educational Center, Ltd._, 1999 WL
557492 (July 26).

Cara Hood, a lesbian over age 40, worked for Kaplan for about three
years.  In March 1997, she was promoted to be manager of Kaplan's
New Haven Center, but she was terminated on September 23 of that
year with no stated reasons given.  In January 1998, she was
replaced by an under-40 man who, she alleges, became the lover of
her immediate supervisor.  Reasoning that she was terminated
"because she was not considered available or of interest as a lover
by [her supervisor], because of her sex, age and sexual
orientation," Hood filed suit under Title VII, the Age
Discrimination in Employment Act (ADEA), and the sexual orientation
provision of the Connecticut Fair Employment Practices Act.  The
defendant moved to dismiss for failure to state a claim.

In her response to the motion, Hood conceded that she had not make
the factual allegations necessary to sustain a sexual orientation
discrimination claim under state law, and agreed that this claim
should be dismissed, but persisted in her age and sex
discrimination claims.  Noting 2nd Circuit precedent, _DeCintio v.
Westchester County Medical Center_, 807 F.2d 304 (2nd Cir. 1986),
cert. denied, 484 U.S. 825 (1987), Judge Goettel found that the
scenario Hood alleged does not meet the pleading requirements of
federal employment discrimination law.  In _DeCintio_, the 2nd
Circuit stated that "voluntary, romantic relationships cannot form
the basis of a sex discrimination suit under. . . Title VII," and
Goettel found that the same principle would apply to Hood's ADEA
claim.  Said Goettel, "Plaintiff faces exactly the same predicament
as that faced by any other female or male applicant for the
position: No one but the employee's romantic interest could be
considered for the position because of his special relationship to
the supervisor."

Goettel also observed that because this alleged relationship did
not arise until five months after Hood's termination, it would be
"difficult to conceive of circumstances under which this
relationship. . . could give rise to an inference that plaintiff's
gender was the basis for her discharge." A.S.L.

Discharged Teacher Wins Revival of Defamation Suit

Jane Songer's contract as an elementary school teacher in St.
Helena Unified School District in California was not renewed in
1993.  She asked for a closed hearing before the Board, convinced
that she was discharged because of "her relationship with a lesbian
teacher at the school," but after the hearing the Board found she
was discharged for proper work-related reasons.  According to
Songer, shortly after the Board decision, one of her friends
encountered a Board member in the street, who asked why the Board
had discharged Songer.  This Board member allegedly said, "If you
knew what I knew, you'd know that we made the right decision." 
Songer subsequently sued in federal court for wrongful discharge,
appending a state defamation claim.  Her federal charges were
dismissed, and she brought a defamation action in state court,
which the trial judge dismissed on motion, finding that the alleged
statement by the Board member was a statement of opinion protected
by the 1st Amendment.

Reversing in _Songer v. Dake_, 1999 WL 603796 (July 29)
(unpublished disposition), the California First District Court of
Appeal, in an opinion by Judge Parrilli, stated that it was not
dispositive that the defendant's alleged statement was in the form
of an opinion.  Noting the U.S. Supreme Court's recent weakening of
the traditional opinion/fact distinction in defamation cases, the
court found that the statement, if made, could be found to imply a
factual assertion about Songer's fitness and qualifications as a
teacher, which if untrue might be per se defamatory.  A.S.L.

Changes in Missouri Sodomy Law Entitle Defendant to Resentencing
Hearing

After Mark Graham was charged, tried and sentenced for sodomy for
touching and holding a ten-year-old boy's penis while the boy was
in his charge as part of a church youth group, the state amended
its sodomy law to downgrade the seriousness of the conduct with
which he was charged from sodomy to child abuse, an offense
carrying a significantly lower potential penalty.  The Missouri
Court of Appeals ordered that he be resentenced in line with the
amended law, and remanded his case to the trial court for sodomy
that purpose.  The trial court then imposed a new sentence.  On
appeal again, Graham argued that he was entitled to have a jury
evaluate the appropriate sentence.  In _State of Missouri v.
Graham_, 1999 WL 587292 (July 27), the Missouri Court of Appeals,
Western Dist., agreed, and remanded once more to enable the Clay
County Circuit Court to hold a sentencing hearing before a jury.

The case is most interesting for bringing to light the changes made
in Missouri's sodomy law, which prior to amendment was one of the
few in the U.S. to include within its definition of sodomy or
"deviate sexual intercourse" the act of manual stimulation of a
partner's genitals, whether clothed or unclothed.  The 1994
amendments remove this act from the sodomy statute, treating it as
a much less serious offense of "sexual misconduct," in general, and
child molestation depending on the age of the victim. A.S.L.

Connecticut Court Upholds Right to Sue Fellow Employee for Anti-Gay
Harassment

In _Bogdahn v. Hamilton Standard Space Systems Int'l, Inc._, 1999
WL 596569 (July 21), Connecticut Superior Court Judge Rittenband
ruled that a gay employee can assert a sexual harassment claim
under the state's civil rights law against a harassing fellow-
employee as well as the employer, and refused to allow
technicalities to get in the way of a lawsuit that was filed
pursuant to a release from the state civil rights agency.

Paul Pelletier was a gay employee of Hamilton Standard.  He claimed
that from the fall of 1973 through June 1, 1994, the date he filed
his administrative complaint, he suffered sustained harassment from
two fellow employees, Mark Bond and Bruce McGarry, on account of
his sexual orientation.  Pelletier asserted that he had complained
to the employer, but without receiving any assistance to end the
harassment.  Two weeks after filing his complaint, Pelletier
committed suicide.  David Bogdahn, the administrator of his estate,
filed this lawsuit on behalf of the estate, claiming, inter alia,
the the suicide was attributable to emotional distress generated by
the severe harassment.

Defendants sought to strike certain counts, claiming that the
release Bogdahn obtained from the Connecticut Commission on Human
Rights and Opportunities did not authorize the particular suit that
was filed.  The court noted that there are inconsistencies in the
statutory provisions dealing with trial procedures, and cut through
the technicalities to find that Bogdahn could file the suit, as
Pelletier did file a timely complaint with the commission, and the
commission did subsequently issue a release authorizing a lawsuit
to Bogdahn.

Of more consequence, perhaps, is the court's denial of Mark Bond's
motion to be removed as an individual defendant from the case. 
Judge Rittenband observed that sec. 46a-60(5) of the state law
could apply to an employee if he "aided, abetted, . . the doing of
an act declared to be a discriminatory employment practice or to
attempt to do so," and that the legislature had made sexual
orientation discrimination a prohibited practice in Connecticut. 
The court found that there is a valid cause of action against Bond,
based on the factual allegations of Bogdahn's complaint.  The court
also excused Bogdahn's failure to cite certain relevant statutory
provisions in the complaint, finding that Connecticut's liberal
pleading rules were satisfied by a clear written statement of the
claim, with no need for statutory citations. A.S.L.

Sexual Harassment Plaintiffs Denied Anonymity

The U.S. District Court for the District of Nevada held on April 26
that a confidentiality order proposed by a student suing a teacher
for sexual harassment was unwarranted absent a showing that
disclosure of allegedly intimate information would have any undue
detrimental effect. _Doe v. Lepley_, 185 F.R.D. 605.

Peter Doe, now an adult, was a minor high school student at the
time he alleges he was sexually harassed and assaulted by teacher
Brian Lepley. Doe and his parents moved for a confidentiality
order, described as an agreement, without required consultation
with the defendants. In rejecting the proposed order, the court
relied neither on this procedural bar, nor on confusing language in
the proposal which would have given Doe opportunity to veto the
defendants' discovery efforts.

Rather the court focused on the absence of any showing (beyond mere
assertion) by the Does that their identities are information of the
utmost intimacy, or that disclosure will have any undue detrimental
effect on them.  The court rejected the implication that because
Lepley had already been convicted and some of the other
individually named defendants had already been the subject of
public scorn and scrutiny, there would be no prejudice to the
defendants. "Lepley is appealing his conviction and Plaintiffs do
not substantiate their claim that the other Defendants have no
reputation to impugn," the court noted. 

Further, "Plaintiffs' Complaint contains harsh allegations against
the character of those named as Defendants.  When a Plaintiff
'attacks the defendants' reputations.... he cannot use his privacy
interests as a shelter from which he can safely hurl these
accusations without subjecting himself to public scrutiny, even if
that includes scorn and criticism. Plaintiff's allegations create
the same risk of public humiliation for the individual
administrators that he seeks to avoid.... defendants have an
interest in responding to plaintiff's accusations both in and out
of court.'"

The court also distinguished the present case from ones in which
anonymous plaintiffs challenged anti-sodomy laws, because the
plaintiffs here did not have to consider admitting to illegal
activities. _Mark Major_

Defense Department Issue No Guidance Amid Renewed Debate About
Military Policy

At the same time that a military investigation into the murder of
Private First Class Barry Winchell was producing startling evidence
of the continued hostility toward gays in the military, the Defense
Department issued some memoranda on enforcement of the "don't ask,
don't tell" policy responding to some criticisms of the way the
policy is administered.  In response to criticisms that individual
commanders have violated the "don't ask" part of the policy by
initiating investigations based on rumors and hearsay, the guidance
documents suggest consultation with higher authorities before
investigations are instituted and recommended increased training
for those who are charged with implementing and enforcing the
policy.  In response to criticisms that military personnel who
report being the victims of anti-gay harassment then find
themselves the subjects of disciplinary investigations, the
guidance documents suggest that such reports should not be used as
the basis to launch investigations into the sexual orientation of
the victims in the absence of credible information that the victims
have in fact engaged in homosexual conduct.  (Remember, of course,
that under the anti-gay policy, "homosexual conduct" includes
stating that one is gay.)  

The silliness of the military policy was dramatically illustrated
on Aug. 26 when the front page of the _New York Times_ reported on
the pending investigation of Steve May, a conservative Republican
state legislator in Arizona who is an Army veteran and currently an
officer in the Army Reserve.  May was "outed" by a political
opponent during his campaign for election to the legislature, but
won election anyway, and the Army didn't seem to be paying
attention.  However, more recently, stung by homophobic statements
by fellow Republican legislators debating a bill that would ban
Arizona municipalities from extending benefits to same-sex partners
of their employees, May lashed out in response, accusing some of
his colleagues of intolerance and homophobia and making no secret
of his own sexual orientation.  Once that story hit the news, the
Army woke up and began investigating whether May should be
discharged from the Reserves for being gay.  

The full text of the recent Pentagon documents can be found on the
website that Stanford University Law School Library is maintaining
on the "don't ask, don't tell" controversies:
<http://dont.stanford.edu>. A.S.L.

Litigation Notes

Jonathan Schmitz has been convicted a second time for the murder of
Scott Amedure, a gay man who confessed during a taping of the
"Jenny Jones Show" in 1995 that he had a crush on Schmitz.  The
jury rejected Schmitz's crime-of-passion defense for a second time. 
(The earlier conviction was overturned on appeal due to errors in
the jury selection process.)  This was actually the third jury to
render a verdict in the case, as a civil trial jury found in favor
of the Amedure family in a lawsuit against the producers of the
television show for negligence. _Associated Press_, Aug. 27.

The California Supreme Court has refused to review the award of
about $1.5 million in damages to Thomas Figenshu, who persuaded a
jury that he was subjected to unlawful sexual harassment on account
of his sexual orientation by members of the California Highway
Patrol.  The jury award was upheld in an unpublished Court of
Appeal decision. _Figenshu v. State of California_, No. S0729219,
rev. denied, 7/14/1999; see BNA _Daily Labor Report_ No. 142, 7-26-
99, at A-7.

An annual event in New York City is the protest by members of the
Irish Lesbian and Gay Association against their exclusion from the
St. Patrick's Day Parade administered by the Ancient Order of
Hibernians.  In _People v. John Mulligan and Eustacia Smith_
(N.Y.City Crim. Ct.), reported in the _New York Law Journal_ on
August 6 (p. 27, col. 5), Judge Ward granted a motion to dismiss
charges against two of the demonstrators for resisting arrest, but
refused to dismiss the charges of disorderly conduct.  Although the
demonstrators were peaceful, they did refuse to "move on" when
police officers instructed them to do so, and Ward rejected the
argument that these charges should be dismissed "in the interest of
justice." According to counsel for the defendants, they were
subsequently offered the opportunity to accept an adjournment in
contemplation of dismissal, a New York procedure that places the
defendants on probation and ultimately erases the charges if they
comply with the terms of the probation.

The Associated Press reported Aug. 12 the first settlement of a
class-action same-sex sexual harassment suit, brought by the Equal
Employment Opportunity Commission against the Long Prairie Packing
Co., headquartered in Long Prairie, Minnesota. $1.9 million will be
distributed to plaintiff class members.  Several of the workers
also filed various tort claims, which have been settled separately,
with no announcement of the settlement terms.

W. Donald Blackwell, a gay man who wrote and directed Broadway
plays during the 1920s and 1930s and subsequently owned a menswear
company in New York, was the beneficiary of a family trust, under
which a large trust fund would go to his child, but if he had none,
would pass to nieces or nephews.  In 1994, Blackwell, then 88 and
residing in an assisted-living facility in Delray Beach, Florida,
adopted his 72-year old same-sex partner, Gordon McKesson, and
arranged to leave the trust money to him.  Blackwell died in 1997. 
Now his niece, Sylvia Rickard, has filed suit in Palm Beach,
Florida, County Circuit Court, contending that the adoption was
void under a Florida statute forbidding homosexuals from adopting. 
If Rickard is successful in voiding the adoption, she will be
entitled to $660,000 in trust fund money.  McKesson, now 77, is
living in Central Florida.  _Orlando Sentinel_, Aug. 15.

U.S. District Judge Ann Montgomery ruled Aug. 9 in _Altman v.
Minnesota Dep't of Corrections_, No. 98-CV-1075 (D. Minn.), that a
public employer violated the 1st Amendment rights of a group of
employees by disciplining them for engaging in unauthorized Bible
reading while they were attending a mandatory diversity training
program on lesbians and gay men in the workplace.  Judge Montgomery
ordered the state to withdraw written reprimands from the
plaintiffs' personnel files.  The court rejected the defendants'
argument that the "silent protest" by the plaintiffs harmed the
efficiency of the agency, observing that the defendant was unable
to show that any actual disturbance of agency functions had or was
likely to occur as a result of the incident. See BNA _Daily Labor
Report_ No. 156, 8-13-99, p. A-4.

A New Jersey state administrative judge, Thomas Vena, has ruled
that Steven R. Maye, an openly-gay retired police officer, is not
entitled to receive an accidental disability pension.  Maye claimed
that he suffered from stress stemming from homophobic remarks he
claims were made by the current chief of police, but was turned
down for the special pension by the Police and Firemen's Retirement
System trustees, and Vena affirmed the decision, finding that the
events Maye complained of did not qualify as "traumatic" events
that directly produced a disability, as required by the pertinent
rules. _The Record_, Northern New Jersey, July 30.

The Kentucky Court of Appeals upheld a jury verdict in a same-sex
harassment claim under the Kentucky Civil Rights Act in _Brewer v.
Hillard_,1999 WL 606466 (Aug. 13).  Hillard alleged that supervisor
Brewer addressed him with sexually explicit names, grabbed his
buttocks, made lewd sexual propositions, including requests for
oral and anal sex. Brewer said he was just trying to inject some
humor in the workplace.  The jury held for Hillard, both on the
civil rights claim and on an intentional infliction of emotional
distress claim.  Taking its cue from the Supreme Court's _Oncale_
decision, the appeals court found the record sufficient to support
a jury verdict of sex discrimination, finding there was no evidence
that Brewer treated women in the workplace in a similarly abusive
manner.  In addition, the court found that the recorded supported
Hillard's emotional distress tort claim as well, which was not
preempted by Workers Compensation since it was asserted directly
against Brewer as an individual, rather than against the employer. 
See BNA _Daily Labor Report_ No. 159, 8-18-99, p. AA1.

The Oregon Court of Appeals has awarded $77,340 in attorneys fees
to the plaintiffs, who prevailed on their claim for domestic
partnership benefits in _Tanner v. Oregon Health Sciences
University_, 1999 WL 512056 (June 16).  The plaintiffs had applied
for $125,677.50 in fees, and the defendants argued in the
alternative either that no fees are authorized for this case, or
that the amount awarded should be no more than $62,838.75,
consisting of hours worked times solo attorney Carl Kiss's usual
hourly rate of $162.50.  The plaintiffs argued that the
extraordinary complexity of the case merited higher compensation. 
The court agreed, but not to the extent urged by the plaintiffs. 
Instead, the court multiplied the hours worked by $200, judging
that this amount above Kiss's usual rate would be adequate
compensation for litigating the historic case.  

Life without parole was the sentence imposed on the killers of
Billy Jack Gaither, a gay man who was murdered, allegedly because
of an unwanted sexual advance, by Charles M. Butler and Steven
Mullins.  Mullins pleaded guilty and then testified against Butler,
who was convicted of capital murder by the jury.  Gaither's family
asked that neither defendant be sentenced to death.  According to
testimony offered at the trial, Mullins and Butler had their own
problems with sexuality; one man testified that he had oral sex
with Mullins during a gay party a year ago, and two other witnesses
testified that they had seen Mullins dancing with Dean.  Gaither's
brother has argued that Mullins killed Gaither to keep him from
telling anyone that they had a relationship. _Los Angeles Times_,
Aug. 6.

In _Kavy v. New Britain Board of Education_, 1999 WL 619587 (Aug.
3), Connecticut Superior Court Judge Graham ruled that a sexual
orientation discrimination claim under the Connecticut Fair
Employment Practices Act may not be brought against individual
supervisors and employees, but that a claim that an individual has
aided or abetted discriminatory practices can be brought against
individuals.  Beth Kavy, a special education teacher, filed a 10
count complaint against the school board and various
administrators, as well as a fellow employee whom she accused of
hostile environment sexual harassment.  The individual defendants
moved to dismiss on the ground that only the board of education, as
employer, could be held liable under the Act.  There is no
appellate authority on the question, and superior courts in
Connecticut are split.  Employing a close reading of the language
of the statute, Judge Graham found that individuals may not be held
liable for employment discrimination, but may be held liable under
the aiding and abetting provision.  On another point that must be
embarrassing for the school board's attorney, Graham rejected the
contention that an individual action may not be brought in the
superior court for sexual orientation discrimination; perhaps the
lawyer did not consult the pocket part in researching the question,
because a 1998 amendment to the statute allows such claims to be
brought, and applies to all pending claims.  Kavy's discrimination
suit continues against the board.  (The court also rejected a
motion to dismiss various tort claims.)

Michigan Circuit Court Judge Leopold Borrello has refused to order
the Birch Run Public Schools to issued an amended high school
transcript for Vic Hrinik, a female-to-male transsexual who needs
a transcript correctly identifying himself in order to pursue
higher education. _Hrinik v. Birch Run Public Schools_, No. 98-
023987-AZ-5 (Saginaw Co. Cir. Ct.).  According to our informant on
this case, Michigan attorney Rudy Serra, the court rejected all of
Hrinik's statutory and constitutional claims, holding that the
school had the discretion to make corrections on transcripts but
would not be ordered to do so by the court.  Hrinik had argued that
his gender dysphora was due to a physical impairment, a hormonal
condition, and thus should be considered a disability under the
Americans with Disabilities Act.  However, the ADA specifically
excludes transsexuality from being considered a disability, which
the court evidently considered dispositive to that claim.  The
court similarly denied coverage under the Michigan Persons With
Disabilities Civil Rights Law, and refused to use a constitutional
privacy theory on Hrinik's behalf.  A.S.L.

Law & Society Notes

The U.S. Senate voted on July 22 to approve legislation that would
expand federal authority to prosecute hate crimes in which people
were victimized due to their sexual orientation, gender or
disability.  The fate of the measure in the House of
Representatives was judged to be quite uncertain. _Associated
Press_, July 23.

As an offshoot of litigation over the San Francisco ordinance
requiring city contractors to extend benefits eligibility to
domestic partners of their employees, major companies in the
airline industry have begun to extend the benefits.  Even though
the Airline Transport Association and United Airlines achieved a
partial victory when U.S. District Judge Claudia Wilken ruled that
the airlines were not required to extend costly fringe benefits to
domestic partners (due to the preemptive effect of the federal laws
governing airline regulation), the court also ruled that "non-
economic" partnership benefit requirements were not preempted, and
late in July the 9th Circuit refused to stay Judge Wilken's
compliance order pending an appeal on the merits of her decisions. 
On July 30, United Airlines announced that it would comply with the
order _and_ that beginning next spring it will extend the health
benefits throughout its company, but only to same-sex domestic
partners.  On Aug. 5, American Airlines, United's leading
competitor, announced that it would follow suit.  On Aug. 9, U.S.
Airways similarly announced it would extend the benefits to its
employees, and some observers predicted the other major carriers
would fall into place soon due to the very competitive labor market
in that industry.  _Washington Post_, Aug. 10.

The national assembly of the Evangelical Lutheran Church in America
voted to put off consideration of a proposal to end the Church's
policy barring actively homosexual clergy.  By a vote of 820-159,
the assembly determined to return the matter for further study,
rather than acting directly on the proposal.  At present, celibate
homosexuals may serve as clergy, and there is reportedly
considerable variation among local congregations on how these
policies are being enforced. _Associated Press_, Aug. 23.

The St. Louis County Council voted 5-0 on July 29 to approve a hate
crime ordinance.  Three members of the Council were absent from the
vote.  County Executive George Westfall announced he would sign the
bill, which was passed by a bipartisan coalition. The bill
designates as hate crimes those motivated by the victim's race,
color, gender, religion, national origin, age, ancestry, sexual
orientation, disability, handicap or health-related condition. _St.
Louis Post-Dispatch_, July 30.

St. Mark's Episcopal Cathedral, in the upscale district of Capitol
Hill in Seattle, Washington, has named an openly gay man, Rev.
Robert Taylor, to be the dean of the Cathedral.  Taylor, a native
of South Africa, will be the first openly gay head of an Episcopal
cathedral.  According to the Episcopal Canon, gays can be ordained
as priests, but the last general convention of the Episcopal Church
in the U.S. narrowly voted down a proposal to extend the liturgy to
allow blessing of same-sex relationships.  The Episcopal Church
gives individual congregations considerable autonomy, however, and
some congregations have endorsed such blessings.  Taylor has
previously served as minister of St. Peter's Episcopal Church in
Peekskill, New York. _The Columbian_, July 30.

General Martin Balza, who will shortly retire as commander of the
Army of Argentina, has suggested ending the imposition of prison
terms on military members found to be gay, but continues to oppose
military service by gay people. _New York Times_, Aug. 25.

Texas Attorney General John Cornyn has been asked to rule whether
it is legal for county clerks in Texas to accept for filing
documents attesting to same-sex domestic partnerships.  The
peculiar request arises from a situation in Travis County (City of
Austin).  Austin enacted a domestic-partnership ordinance extending
benefits to city employees in 1993, but it was repealed in a 1994
referendum initiated by petitioners.  Nonetheless, the Travis
County clerk continued to accept the filing of domestic partnership
certificates from same-sex couples from anywhere in the state.  The
matter was brought to the attention of the Attorney General after
Michael McGowan, the head of San Antonio's Gay and Lesbian
Community Center and a member of the Log Cabin Republicans, asked
the Bexar County Clerk to accept similar filings, the Clerk turned
to the District Attorney for a legal opinion, and she in turn
requested a ruling from the Attorney General.  Under Texas
procedures, the A.G. must issue an opinion within 180 days of
receiving the request. _Wall Street Journal_, Aug. 18.

The _Star-Tribune_ in Minneapolis-St. Paul, Minnesota, reported
that an Aug. 23 event staged by tourism officials from the Cayman
Islands drew a demonstration organized by a gay travel agency to
protest that country's refusal to allow gay cruises to dock there. 
Cayman adopted this policy in 1987 after the landing of a
particularly exuberant group of gay cruise patrons evidently upset
the political powers-that-be on the island.  Said Charlie Rounds,
president of RSVP Travel, "We live in a country where basic human
rights are guaranteed by the Constitution. . . . Can we deny Cayman
Island residents access to our country?  No.  They should not deny
my people access." 

The Maryland State Board of Education was set to adopt a formal
policy banning harassment in schools on the basis of a list of
characteristics, including sexual orientation, but backed down when
confronted with protests from conservative groups.  The critics
contended that the policy would encourage teachers to promote
homosexuality as a normal "way of life." The proposal was
withdrawn, but the Board is expected to take it up again in the
fall.  A compromise proposal would ban all harassment without
specifying characteristics. _Washington Post_, Aug. 26. A.S.L.

English Court Allows Condoms for "Genuine Homosexuals" in Men's
Prisons

On July 5, in _R. v. Secretary of State for the Home Department, ex
parte Fielding_ (Queen's Bench Division, Crown Office List,
CO/590/98),  Mr.Justice Latham refused an application for a
declaration that the Prison Service's policy on condoms is
"irrational," but held that it had been "misinterpreted" in the
case of the applicant and should be "reformulated." (The opinion is
available on Lexis.)

Glen Fielding, "a practising homosexual who enjoys both active and
passive penetrative sex," had asked for condoms while in a prison
run by the Prison Service and been refused them.  He was later
transferred to a privately run prison and was able to obtain
condoms without difficulty.  After being released on probation, he
challenged the Prison Service's policy.  The version of the policy
given to him initially was that condoms are only issued
exceptionally "to inmates with certain clinical conditions like
HIV," and that there was no clinical evidence of HIV infection in
his case. He persisted and was given a more detailed version of the
policy, under which "doctors are encouraged to prescribe condoms
and lubricants where in their clinical judgment there is a known
risk of HIV infection as a result of HIV risk sexual behaviour." 
The reason for the policy is to protect prison doctors from
negligence claims if a prisoner contracts HIV in prison.

Fielding argued that the policy was irrational because the prison
doctor should not have any discretion:  "If a homosexual prison
inmate presents himself to the authorities requesting condoms, the
only inference that can be properly be drawn is that he is
intending to have penetrative sex, which will by definition carry
with it the risk of the spread of HIV."  He relied on Article 8(1)
of the European Convention on Human Rights as protecting his
"ability to have safe sex."  Latham J. accepted that "the applicant
is entitled to respect under the Convention for his sexual
orientation, and its practical consequences."  However,  "the right
which the applicant asserts is as to his ability to express his
sexuality by way of penetrative sex safely.  Unlike the majority of
those who lose their liberty, imprisonment does not prevent him
from expressing his sexuality at all. This underlines that which
seems to me to be at the root of this case.  The issue ... is how
best to protect the health of prisoners, and the population at
large, from the spread of HIV and other communicable diseases, in
the context of the particular security, welfare and policy
considerations applicable to prisons."

In spite of the "attractive simplicity" of Fielding's "no
discretion" argument, Latham J. held that "the Prison Service is
entitled to take the view that it should not be seen to encourage
homosexual activity in prison.  That might be the message which
would be given to the prison population, and the public at large,
if condoms were available on demand. ... Further, condoms have uses
other than those for which they were designed; it seems to me to be
reasonable for the Prison Service to consider it necessary for that
reason that some control should be exercised.... [I]t does not seem
to me to be irrational to leave the decision to the prison medical
officer. He is the one who can judge whether or not a request for
a condom is made for genuine health reasons.  This may require
investigation, which is more appropriately carried out by a doctor. 
The mere fact that a person asserts that he wants a condom does not
mean that he is a genuine homosexual, nor does it mean that he is
necessarily intending to engage in penetrative or other dangerous
sexual activity, nor does it necessarily mean 
that he is in truth a consenting party to whatever activity is
anticipated."

Latham J. concluded that "the policy is lawful. ... [W]henever a
prison medical officer is satisfied that a request for condoms is
from a genuine homosexual who is intent on indulging in what would
otherwise be unsafe sex, he should prescribe condoms. ... [T]he
policy itself might be reformulated so as to make clear what the
limits of the prison medical officers' discretion should be, so as
to avoid the sort of misunderstanding or misinterpretation which
[occurred here]. ... [A]lthough the particular decision to refuse
to supply condoms about which the applicant complains was wrong, it
was wrong because the policy was misinterpreted, not because the
policy itself was unlawful." 

Latham J.'s judgment is to be welcomed as a strong signal that gay
men should be allowed access to condoms while in prison.  But why
should only men who are willing to state that they are "genuine
homosexuals" be permitted to protect themselves and their partners
against HIV transmission?  Sexual activity in men's prisons must
often involve men who consider themselves heterosexual or bisexual. 
And why does it matter whether or not the sexual activity is
consensual?  Should condoms be denied to a prisoner who is actually
or potentially the victim of anal rape? Is denial of condoms
supposed to deter the rapist?  As for the legality of consensual
sexual activity in men's prisons, Latham J. did not comment on the
legal advice received by the Prison Service that "consenting
[sexual] acts between adult prisoners in a prison cell are not
automatically unlawful and that a prison cell is in many
circumstances capable of being deemed a 'private place' under the
terms of the Sexual Offences Act 1967." _Robert Wintemute_ 

International Notes

The New Zealand Ministry of Justice has published two pamphlets
intended to elicit the opinion of citizens about how the government
should deal with a variety of situations in which same-sex couples
are treated differently from marital couples and unmarried
heterosexual couples.  The first pamphlet, titled _Same-Sex Couples
and the Law: Discussion Paper_, systematically highlights ways in
which the current law is inconsistent with the nation's commitment
to non-discrimination on the basis of sexual orientation, and poses
a series of questions intended to elicit public opinion on these
issues.  The second pamphlet, titled _Same-Sex Couples and the Law:
Backgrounding the Issues_, discusses how other countries whose
legal systems derive from Britain have handled same-sex couple
issues, and provides detailed background discussion of the matters
discussed in the Discussion Paper.  The documents set forth the
issues in a neutral, non-judgmental way, highlighting ways that
same-sex couples are benefits by lack of recognition as well as
ways that such lack is detriment.  The full text of both documents
is available on-line at the following address:
<http://www.justice.govt.nz/reports/1999/same_sex/index.html>. The
deadline for submission of comments to the Ministry is March 31,
2000.

The British Court of Appeal has affirmed a ruling of the High Court
holding that the North West Lancashire Health Authority wrongly
refused to provide treatment for three transsexuals desiring sex
reassignment procedures.  The decision will require the National
Health Service to re-evaluate its approach to the issue.  In the
court judge, Lord Justice Auld wrote: "The health authority's
policy, in my view, is flawed. . . .  Firstly, it does not in truth
treat transsexualism as an illness but as an attitude or state of
mind which does not warrant medical treatment." Auld criticized the
authority's attitude to transsexuals, concluding that they suffered
from "gender identity dysphoria," a real medical condition for
which there is a treatment. _The Independent_, London, July 30.  

U.K. Home Secretary Jack Straw announced the British government's
intention to expand current rules on crime victim compensation to
recognize same-sex domestic partners on the same basis as opposite-
sex unmarried partners.  The move is a reaction to a bombing
incident at a gay bar in London four months ago that left 3 dead
and 50 injured.  To be eligible, gay couples would have to prove
they had lived together for two years, which is the time
requirement currently applied to unmarried heterosexual
cohabitants.  _Toronto Globe & Mail_, Aug. 5.

The British Defence Ministry has issued new guidelines under which
soldiers who have sex-reassignment surgery will be allowed to stay
in the Army.  This action came in response to reports that Sgt.
Maj. Joe Rushton, who now calls himself Joanne, plans to have such
surgery but wants to remain in the service.  Rushton, now 38,
joined the service at age 19, has been married four times and has
a son.  He has been assigned a desk job while undergoing "gender
realignment." Of course, as a woman in the service, Rushton will be
subject to the restrictions on women now enforced in the British
army, limiting her to a non-combat assignment.  The guidelines were
seen as responding to a recent ruling by the European Court of
Justice that discrimination against transsexuals violates European
community law, and were also seen as further evidence that the
Defence Ministry will be ending the ban on service by lesbians and
gay men soon. _Daily Telegraph_, Aug. 2.

Canada's Immigration and Refugee Board has granted asylum to Lidia
Lilliana Araya, who is now living in Toronto, and who claims she
was subjected to physical assault, detention and rape in her native
Argentina because she is a lesbian.  Finding Araya to be a
"credible and trustworthy witness," the Board concluded that she
had "demonstrated a subjective fear of persecution." Last year, the
Board had granted asylum to a lesbian couple from Columbia who
alleged they were raped by police officers there because of their
sexual orientation. _Toronto Sun_, Aug. 26.

Openly gay legislator Svend Robinson of Canada's New Democratic
Party is considering running for the position of Premier of British
Columbia.  The last few premiers of the province have been deposed
due to various scandals.  Robinson told the _Globe and Mail_ (Aug.
27) that he was very concerned about the future of the party in
British Columbia, as well as the future of the province. 

Gay internet journalist Rex Wockner reports that the Constitutional
Court of Colombia ruled July 14 that the military ban on service by
gay people violates constitutional rights to intimacy, free
development of one's personality, and defense of one's family. 
According to Wockner, Magistrate Vladimiro Naranjo Mesa wrote that
gay people in the military are free to reveal their sexual
orientation, live on base with a partner, and be affectionate with
each other away from work.

Patricia Bacon and Kathy Traplin are the first same-sex couple to
adopt a child in the Yukon, Canada, according to the _Lethbridge
Herald_ of Aug. 25.  Bacon is the birth-mother of the child. The
news report does not identify the court that approved the adoption. 


Professional Notes

The Harvard Law School Association Gay/Lesbian/Bisexual Alumni/ae
Committee has undertaken a project to honor U.S. District Judge
Deborah Batts (S.D.N.Y.), the first openly-lesbian or gay person to
win nomination and Senate confirmation as a federal judge, by
commissioning a portrait of Judge Batts to be added to the portrait
collection exhibited at Harvard Law School, of which Judge Batts is
an alumna.  The Committee has begun fundraising to secure the
necessary money to commission the portrait.  Anybody wishing to
made a donation should send a check payable to "Harvard Law School"
with "Judge Batts Portrait Fund" written on the memo line to the
Committee's chair, Scott Wiener, 195 Collingwood St., Apt. 6, San Francisc=
o, CA
94114.  Donations to Harvard Law School are tax deductible.

Lavender Law 1999, the annual conference of the National Lesbian
and Gay Law Association, will be held in Seattle, Washington,
October 22-24. For program and conference information, check the
NLGLA website: <www.nlgla.org> or email them at LAVLAW99@aol.com.

On Aug. 7, the Law Student Division Assembly of the American Bar
Association, representing more than 40,000 U.S. law students,
approved a resolution of support for H.R. 1123, the Frank-Campbell
bill now pending in the U.S. House, that would amend Defense
Department spending rules to lift the bar on federally-funded
student aid at schools that bar military recruiters.  The
resolution was drafted and presented by officers of the 2nd Circuit
of the Division, which includes New York.  The resolution also
reaffirmed the Division's commitment to non-discrimination on the
basis of sexual orientation, and called for presentation of the
resolution to the ABA House of Delegates.  (Resolution No. 99/8-
27.)

The _Boston Globe_ reported Aug. 10 that Barbara Lenk, an openly-
lesbian Harvard Law School alumna who served as a Massachusetts
Superior Court judge for three years in the mid-1990's, is on the
short list being considered by Gov. Paul Cellucci for appointment
to fill one of two vacancies on the Massachusetts Supreme Judicial
Court.  The governor is expected to announce his nominees by Labor
Day.  If appointed and confirmed, Lenk would become the first
openly lesbian or gay appellate judge in the United States.

The national media noted the death of Frank M. Johnson, Jr.,
longtime federal trial and appeals judge, on July 23, but failed to
note that, unlike the Supreme Court, Judge Johnson came out the
right way in _Bowers v. Hardwick_, the Georgia sodomy law decision. 
Johnson was the author of the 11th Circuit opinion, 760 F.2d 1202
(1985), that held that the constitutional right of privacy did
apply to gay sex, and thus that the sodomy law should be reviewed
under the strict scrutiny standard.  In an opinion that was heavily
echoed by Justice Harry Blackmun's famous dissent, Johnson said:
"The benefits of marriage can inure to individuals outside the
traditional marital relationship.  For some, the sexual activity in
question here serves the same purpose as the intimacy of marriage."

We also note the death on Aug. 7 of David Curtis, an openly-gay
lawyer who was chairman of the Vermont State Democratic Party and
a former board of directors member of Lambda Legal Defense &
Education Fund.  During the early 1970s, while heterosexually
married and a Republican, Curtis served as a Vermont state
legislator.  He divorced in 1978 and left Vermont for several years
while going through the "coming-out" process, working as a Legal
Aid lawyer in rural Tennessee.  After his return to Vermont, he was
appointed by Gov. Madeleine Kunin in 1985 to be Defender General of
the state, responsible for overseeing provision of free legal
services to indigent criminal defendants.  Curtis disclosed that he
had AIDS in response to a request from U.S. Senator James Jeffords
(R.-Vt.) for assistance in finding a person with AIDS to testify
before Congress; Curtis became the witness.  In an obituary article
by the Associated Press, Vermont State Representative William
Lippert, described as a close friend, said: "Vermont loses someone
who was an incredibly tireless advocate for civil rights, human
rights." A.S.L.

POSITION POSTINGS

The International Gay and Lesbian Human Rights Commission is
establishing a full-time position in New York City to coordinate
the organization's HIV-related programs.  IGLHRC documents,
monitors, and mobilizes responses to human rights violations based
upon sexual orientation, gender identity, and HIV status.  The HIV
Coordinator will oversee IGLHRC's HIV work and help set priorities
and goals in health-and-human-rights issues for the whole
organization.  The Coordinator will be responsible for conducting
international advocacy on HIV issues, researching HIV and AIDS-
related violations and abuse of human rights, developing policies
to address the right to health and related questions, and
strategize with and assist local HIV and PWA groups.  The job will
involve frequent travel but will be based in New York City.  The
list of qualifications contained in the job announcement is too
lengthy and detailed to include here, but interested persons should
inquire of Kamal Fizazi at kamal@iglhrc.org.  Applications are due
by October 15, with starting date of no later than December 1. 
Salary range is $32,200 to 37,000 plus fringe benefits.  Detailed
cover letter, emphasizing experience with HIV issues, organizing
and administrative skills, foreign language fluency, to: HIV
Program Coordinator Search: IGLHRC c/o Human Rights Watch, 350
Fifth Ave., 34th Floor, New York, NY 10118; fax 212-216-1876.

Lambda Legal Defense & Education Fund has received a Ford
Foundation grant to create a new staff attorney position in its
N.Y.C. headquarters office, focusing on issues of lesbian and gay
youth in foster care.  Qualifications include 4 or more years
litigation or policy experience; experience working with foster
care, youth, or family law; commitment to lesbian, gay and PWA
rights; excellent legal writing and speaking skills.  Salary
depends on experience; excellent benefits.  People of color
especially encouraged to apply.  Cover letter, resume, and writing
sample to: Beatrice Dohrn, Legal Director, Lambda Legal Defense &
Education Fund, 120 Wall St., Suite 1500, New York NY 10005.  More
information is available on Lambda's website:
<www.lambdalegal.org>.

The Empire State Pride Agenda, N.Y.'s statewide gay political
advocacy organization, is accepting applications for the position
of Legislative Counsel.  The Legislative Counsel is a lawyer-
lobbyist focusing on state legislative issues affecting the lesbian
and gay community.  The position involves public speaking, writing,
interacting with legislators and their staffs, dealing with
volunteers, including legal interns, providing staff support to the
ESPA Board's public policy committee, and related duties.  Job
requirements include a J.D. and four years of legal experience, and
excellent written and verbal communications skills.  Demonstrated
commitment to the les/gay community and/or broader social
change/justice movements.  Women and persons of color are strongly
encouraged to apply.  The applicant must also have a current
driver's license. Although the organization is headquartered in
NYC, the legislative counsel will do considerable travel, and spend
extended periods working in Albany when the legislature is in
session. Salary based on experience, with benefits.  Cover letters,
resumes and writing samples should be submitted by September 15 to:
Legislative Counsel Search, Empire State Pride Agenda, 647 Hudson
Street, New York NY 10014.

AIDS & RELATED LEGAL NOTES

Idaho Appeals Court Affirms Criminal Penalty for Exposing Another
to HIV

In Idaho v. Thomas, 1999 WL 551384 (Idaho App. July 26), the Idaho
Court of Appeals affirmed Kerry Thomas's felony conviction for
transferring body fluids which may contain the HIV virus, and his
sentence of 7-15 years.

Thomas met C.G., the victim, at a bar in Boise in April 1996.  C.G.
was described as a male preoperative transsexual.  C.G. testified
that they had several drinks together, discussing C's life as a
transsexual, and went back to C.G.'s apartment, where they had anal
and oral sex (apparently without condoms), but that Thomas did not
ejaculate.  C.G.'s roommates testified that, though neither had
seen Thomas in C.G.'s bedroom, the sound of motion of C.G.'s
waterbed was heard, and one of them spoke to Thomas as he left
early the next morning.  One of them also testified that she knew
of rumors that Thomas had HIV afterwards, and that C.G. was very
upset to learn of these rumors.  The state's expert witness
testified that HIV could have been transferred under the
circumstances described.  Thomas did not testify at trial.

On appeal, Thomas challenged the sufficiency of the evidence and
C.G.'s credibility.  He argued that C.G. had had several alcoholic
drinks that night, that C.G. practices deception by dressing as a
woman in public even though he is biologically a man, that he
suffers from bipolar disorder, that C.G. has been a substance
abuser, and that C.G. has a reputation in the community for being
untruthful and over dramatic.  Because C.G. incorrect testified
that Thomas was not circumcised, Thomas argued that C.G. must have
confused him with someone else.

The court stated that there were two defenses to the charge against
Thomas: 1) that sexual activity was preceded by full disclosure, or
2) that the transfer of bodily fluids had occurred after the
defendant had been advised by a physician that s/he was not
infectious.

The court ruled that there could be no mistake as to the identity
of the accused, based on the testimony of the corroborating
witnesses, and that the testimony as to C.G.'s chagrin when told of
the rumors of Thomas's HIV status was indicative of a lack of
disclosure of Thomas's status.

The court rejected Thomas's challenge to his sentence, which was
within statutory guidelines, particularly since Thomas had a prior
record involving a conviction for statutory rape some years before
where his HIV status had also been an issue. _Steven Kolodny_

Tennessee Appeals Court Reverses Prison Sentence for Criminal HIV
Exposure

The Tennessee Court of Criminal Appeals at Knoxville has reversed
a four-year prison sentence imposed on Chester Lebron Bennett for
exposing his former girlfriend to HIV, finding that the  trial
court should have considered sentencing alternatives not involving
incarceration in his case. _State of Tennessee v. Bennett_, 1999 WL
544653 (July 28) (not officially reported).

Bennett began dating the "victim," a long-time friend, in April
1997.  At that time, Bennett knew that he was HIV+ but claimed he
was "in denial" about his HIV status and did not reveal it
voluntarily to his girlfriend.  They had unprotected sex five times
during the period April 29 through May 3.  She then discovered some
medication that he inadvertently left at her house.  Disbelieving
his statement that it was for his treatment for lung cancer, she
asked a pharmacist, who told her it was for HIV/AIDS treatment. 
She then brought the matter to law enforcement authorities, who
charged Bennett with five counts of violating Tenn. Code Ann. Sec.
39-13-109(a)(1), which creates the offense of "criminal exposure of
another to HIV." Shocked by the charges, Bennett became severely
depressed, attempted suicide twice, admitted himself to a
psychiatric hospital for treatment, and has received counseling at
the Chattanooga Cares Center, where several members of the staff
testified that he had achieved a positive attitude and was now
responsibly dealing with his HIV status.  He has since married
(someone other than the former girlfriend), and revealed his HIV
status to his fianc=82 before his marriage.

Bennett pled guilty to the charges, and the sentencing decision
fell to Hamilton County Judge Stephen Bevil.  Bevil stated that he
would sentence Bennett to four years in jail, essentially as a
deterrence to others. "One of the reasons for incarceration is to
avoid depreciating the seriousness of the offense, I think to do 
anything other than to require [the appellant] to be incarcerated
would be saying to the public out there, `If you've got HIV and
you're infected, it's okay to have sex with someone else and not
tell them because if you are caught when you do it, than what's
going to happen to you is if you're taking care of yourself and
you're participating in the programs then you'll probably get
placed on probation.'" Bevil also took into account that Bennett
had a prior record of simple assaults several years previously.

In reversing this sentence, Judge David Hayes found Bevil's
concerns to be seriously overblown.  Hayes pointed out that for the
level of offense involved, there is a presumption in favor of a
non-incarceration sentence, and the burden is on the state to show
the specific need for deterrence.  In this case, there was no
evidence presented to the trial court on this point. "We are
confident that the granting of an alternative sentence in the
present case will not unravel the moral fabric of Hamilton County,"
wrote Hayes, sounding a bit tongue-in-cheek. "Indeed, it would
appear unlikely that the imprisoning of an obscure indigent
defendant will have little, if any, deterrent effect upon those
likely to commit similar crimes in the future."

Hayes was also critical of the trial court's lack of regard for
Bennett's significant efforts to rehabilitate himself after the
charges were filed.  Hayes commented that "trial courts are
encouraged to impose rehabilitative alternative sentencing options
where permitted by statute.  Our obligation upon appellate review
is to act in furtherance of legislative intent embraced in the
statutes."

The court remanded the case with instructions to consider
sentencing alternatives such as "split confinement, community
corrections and probation coupled with the imposition of reasonable
conditions relating to release."

Defense attorney Karla Gothard told the _Knoxville News-Sentinel_
(Aug. 2) that her "only regret" was that "my client has spent 16
months in jail," and stated her hope that Judge Bevil will sentence
him to intensive probation so that he could resume the counseling
and medical treatment he had begun before going to prison.  A.S.L.

Texas Appeals Court Changes Its Mind in Transfusion Case

Granting a motion for rehearing by the defendant blood center, the
Texas Court of Appeals in San Antonio has decided that the Bexar
County District Court properly granted summary judgment to the
defendant in an HIV-transmission claim arising from a 1983
transfusion. _Aguirre v. South Texas Blood & Tissue Center_, 1999
WL 511540 (July 21), withdrawing prior opinion, 1999 WL 249173
(April 28) (reported in _Law Notes_ of June 1999).

Sandra Aguirre received two units of blood that the hospital
obtained from defendant blood center following delivery of her
second child in July 1983.  She began to experience symptoms in
late 1993 that led her to seek medical attention, and was diagnosed
as HIV+ in 1994, whereupon she sued the blood center for negligence
in its blood collection practices in 1983.  Moving for summary
judgment, the center argued that it had met the then-prevailing
standard of care, and the proof was lacking that Aguirre's HIV
infection was caused by anything the blood center had done.

On the first go-round, the court of appeals reversed the summary
judgment, finding that Aguirre had adduced at least a scintilla of
evidence on each of the elements of a tort claim and should be
allowed to bring her claim to a jury.  On reconsideration, however,
Chief Judge Phil Hardberger (who had written the earlier opinion)
decided that Aguirre fell short on one of the three elements:
causation.  A complicating factor is the blood center's routine
destruction of its donor records from 1983; prior to 1990, when the
blood banking industry collectively changed its practices, it was
standard to destroy donor records after 5 years.  It turns out that
this blood center received its first legal claim concerning HIV
transfusion (which would impose a duty to retain records for
litigation purposes) more than 5 years after the Aguirre
transfusion, and those records were long destroyed by the time
Aguirre tested HIV positive and commenced her lawsuit.

Under the circumstances, in the absence of such records, Aguirre
had no evidence to allege in support of the element of causation
apart from mere speculation.  While the court had earlier been
inclined to let her go forward anyhow, on sober reconsideration,
the court decided that where there is no evidence on an essential
element of the case, the plaintiff should not be allowed to
proceed, since a jury would not be able to find for the plaintiff
under the preponderance of the evidence standard.  Since in this
case the records were not intentionally destroyed to thwart
litigation, but rather in the normal course of business following
then-standard industry practice, it was not the blood center's
fault that the records no longer existed, and Aguirre was out of
luck.

"Summary judgment is a harsh result," wrote Hardberger, "and we
have sympathy for Aguirre.  We acknowledge that the destruction of
records effectively eliminates the ability of Aguirre to attempt to
prove that she received tainted blood.  However, even if Aguirre
were able to identify those donors whose blood she received, and
one of the donors were HIV-positive, this does nothing to show that
South Texas violated the standard of care, such that South Texas
was liable.  Certainly this evidence would create a missing
causation link in that it might show that the tainted blood caused
Aguirre to contract the HIV virus [sic], but it would still be no
evidence that South Texas's breach of the applicable standard of
care proximately caused Aguirre to become infected.  In other
words, identifying an HIV donor would not necessary show that South
Texas was negligent.  South Texas could have asked all the
pertinent medical questions, received negative answers, that is,
followed the applicable standard of care to the letter, and the
infected donor (who may not have known, and in all likelihood
during the relevant time period, would not have known of his or her
infection) would still have donated." A.S.L.

3rd Circuit Revives Discrimination Claim by Disappointed Applicant
for Philadelphia AIDS Agency Position

Dividing 2-1, a panel of the U.S. Court of Appeals for the 3rd
Circuit has revived a race discrimination brought by Cecil Hankins,
an African-American man whose application to be the Director of
Philadelphia's AIDS Activities Coordinating Office, was rejected. 
_Hankins v. City of Philadelphia_, 1999 WL 624602 (Aug. 18). 
Hankins alleged that an official responsible for the hiring
decision told him that the position had been reserved for "the gay,
white community," and that subsequently Richard Scott, a gay white
man, was appointed to the position.  Hankins alleged violations of
Title VII of the federal Civil Rights Act, the Pennsylvania Human
Relations Act, 42 U.S.C. secs. 1983 and 1985, and also alleged
common law conspiracy and interference with contract claims.  In
addition to his allegations of discrimination, Hankins claimed that
he suffered unlawful retaliation for complaining about the
decision.  U.S. District Judge Jay C. Waldman granted summary
judgment in favor of the defendants.

In reversing the grant of summary judgement on the Title VII claim,
Judge Cowen wrote for the majority of the panel that there were
significant disputed fact issues that had to be resolved in this
case, and were not properly resolved on summary judgment.  Unlike
the district court, the appellate panel majority decided that if
Dr. Robert Ross, the city's Health Commissioner, had actually told
Hankins that the position was reserved for the gay white community,
an assertion that Ross vigorously denied, Hankins could make out a
prima facie case of race discrimination.  Furthermore, Cowen noted,
the district court placed great weight on the city's argument that
Hankins did not have the specified job qualifications for the
position, but it appeared that the job specifications had been
altered to make possible Scott's appointment.  Consequently, Cowen
said, there was a factual dispute as to exactly what qualifications
were required, especially as several successors to Scott in that
position also lacked some of the same technical qualifications that
Hankins lacked, and had been appointed outside the civil service
system.

Dissenting, Judge Sloviter argued that the record supported the
trial court's conclusion that Hankins clearly lacked relevant
qualifications for the position, and thus was unable to meet the
standards for surviving summary judgment under Title VII.

The decision is particularly interesting as an illustration of the
tensions in many major metropolitan areas over the allocation of
resources (and the filling of positions responsible for making such
allocations) as between gay community representatives and
representatives of other communities particularly afflicted with
the HIV epidemic.  An appointment decision motivated by political
concerns, or so the trial judge apparently thought, was not
actionable under Title VII, but the Court of Appeals appeared to
believe that if the political motivations express themselves in
categorical racial terms, Title VII would clearly be implicated. 
A.S.L.

Florida Appeals Court Reverses Plaintiff Victory in HIV
Discrimination Case

The Florida District Court of Appeal reversed a plaintiff's verdict
in _McCaw Cellular Comm. of Florida, Inc. v. Kwiatek_, 1999 W.L.
543221 (Fla. App. 4 Dist. Jul. 28), an HIV discrimination case.  
McCaw hired Roger Kwiatek as a customer service representative in
1989.  In 1993, Kwiatek informed his supervisor that he was HIV+,
and requested accommodation of his disability to allow him to
attend doctor's appointments, and later, to work a shorter week. 
The employer agreed to accommodate Kwiatek's disability, all the
while continuing to counsel him for his slipping performance. 
Supervisors encouraged him to think about applying for long term
disability if he could not do his job, and during a leave of
absence, the employer advertised his position in the newspaper. 
Kwiatek ultimately applied for and received long term disability
benefits.  

At the close of the plaintiff's case at trial the employer moved for
a directed verdict, arguing that Kwiatek had not suffered any
adverse employment action because of his HIV-status.  The trial
court denied the defendant's motion, and the jury ruled in Kwiatek's
favor, awarding him $1.3 million in damages.  A directed verdict
should have been granted, the Court of Appeal held, because Kwiatek
had not presented objective evidence of a hostile work environment,
such as evidence that the employer's requests interfered with
Kwiatek's job performance, or that the employer materially changed
the terms and conditions of Kwiatek's employment. The decision is
unusual in that it supplants decisions made by the trial judge and
jury on rather subjective grounds.  So much for deference to the
trier of fact, which heard the witnesses first hand and was in a
better position to evaluate credibility. _Dirk Williams_ 

2nd Circuit Upholds Denial of Disability Benefits to PWA, But
Encourages Reapplication in Light of Subsequent Developments

Luis Castro, who is HIV+ and suffers from back problems, applied for
Social Security disability benefits in September 1994, one month
after being fired as a mail clerk and messenger.  An Administrative
Judge found that he did not qualify as permanently disabled, and the
SS Appeals Council upheld this ruling.  U.S. District Judge David
Trager found there was substantial evidence in the record to support
this determination, and Castro appealed to the U.S. Court of Appeals
for the 2nd Circuit.

In _Castro v. Apfel_, 1999 WL 568022 (2nd Cir. July 30) (unpublished
disposition), a panel of the 2nd Circuit affirmed Trager's decision. 
The record showed that as of the time of the Social Security
hearing, Castro was asymptomatic for HIV infection and "his
immunological laboratory profile was within normal limits."  As to
his back condition, although physicians agreed that he suffered
moderate back pain due to a congenital spine abnormality, he was
still employable as a messenger if he avoided heavy lifting and
excessive bending, and SS disability requires a finding that one is
basically disqualified from performing work for which one has
requisite employment skills.  

However, the court took note of evidence that subsequent to the
Social Security hearing, Castro's lab tests "showed significant
immunological depression, and his physician placed him on viral load
medications."  His T-cells have fallen below 200 and he has received
a full-blown AIDS diagnosis for the first time.  The court observed
that although it was affirming the denial of benefits, "Castro
remains free to reapply for benefits for the period following the
ALJ's decision until the present."  A.S.L.

District Court Upholds Denial of Disability Benefits to Person With
HIV

U.S. District Judge Denise Cote (S.D.N.Y.) upheld the Social
Security Administration's decision to deny disability benefits to
an HIV+ former drug abuser, on the ground that her lack of symptoms
for AIDS left her able to perform sedentary work. _Oyola v. Apfel_,
1999 WL 511970 (July 20).  Plaintiff Beatriz Oyola was infected with
HIV in Puerto Rico in the mid-1980s and subsequently moved to New
York.  Her T-cell count has never fallen low enough for an AIDS
diagnosis, and she has not incurred the usual opportunistic
infections on the list for an AIDS diagnosis, but she has
experienced a variety of physical problems, some of which might be
traced to her periods of drug use as well as possible complications
of HIV infection.  The Administrative Law Judge concluded that she
did not meet the statutory disability definition because her various
physical complaints were not sufficiently disabling to preclude her
from performing work.  In approving this ruling, Judge Cote
emphasized the lack of AIDS symptoms and the rather strict statutory
definition to qualify for benefits, as well as the testimony by
Oyola who admitted to being able to carry on a wide range of normal
activities despite her various physical complaints.  A.S.L.

Prisoner Loses Suit Over Opening of Mail

In _Barker v. Sowders_, 1999 WL 427170 (6th Cir. June 15), a panel
of the U.S. Court of Appeals for the 6th Circuit affirmed summary
judgment against Indiana state prisoner David Barker, who alleged
that his mail containing confidential HIV-related information was
being improperly opened and read outside his presence, and that
prison authorities were spreading rumors that he was HIV positive
in the prison.  The court found that Barker never came forward with
any evidence supporting his theory of the case, and further noted
that he was openly receiving a variety of HIV-AIDS publications, and
thus could not credibly argue that his confidentiality was breached
by somebody in the prison administration reading his mail.  The
court found that the evidence showed, at best, that a prison
employee had been negligent in sorting mail so that some of Barker's
mail was opened outside his presence, which ordinarily would be a
constitutional violation in the 6th Circuit, but the court found
that the policy of opening mail only in the inmate's presence was
established in the prison and that Barker's allegations raised
issues of negligence, not intentional violation of rights.  Since
government officials are not liable for mere negligence in
performing their duties, Barker was a loser here.  A.S.L.

District Court Denies Motion to Dismiss PWA Pre-Trial Detainee's
Mistreatment Claims

A complaint brought by a pre-trial detainee with AIDS alleging
violations of the Americans with Disabilities Act (ADA) and his
rights of equal protection, due process and access to courts
survived a motion to dismiss in _May v. Sheahan_, 1999 WL 543187
(U.S. Dist., N.D. Ill. July 21).

Plaintiff Gregory May, a person with AIDS, was arrested by the
Chicago police for allegedly possessing a controlled substance. May
had been repeatedly hospitalized for AIDS-related illnesses,
including severely swollen feet. His medical condition deteriorated
while in the Cook County Jail.  After a week, he was taken to the
Cook County Hospital, where he was shackled by hand and foot to his
bed. In his complaint, May alleged that the shackles prevented him
from reading, writing, and using the bathroom, and so he defecated
and urinated on himself.  Furthermore, the shackling of his swollen
feet threatened his health and impeded his recovery. He could not
help prepare his defense nor attend court dates, which delayed the
final disposition of his case. This caused him to remain longer in
custody, which impeded access to his attorney. He further alleged
that inmates in the hospital are shackled regardless of the danger
they pose or the risk of escape. May alleged that his treatment was
the result of Sheriff Michael Sheahan's policies, of which Sheahan
had personal knowledge, and that Sheahan demonstrated "reckless
indifference to the constitutional and statutory violations that the
policy causes."

Defendants' motion to dismiss argued that May failed to state a
claim that the shackling policy violated the ADA, the equal
protection or due process clauses of the U.S. Constitution, or his
right of access to courts. District Judge Coary first looked at
whether the plaintiff properly pleaded an equal protection claim,
i.e., did the prison officials purposefully discriminate against him
and treat him differently from others who are similarly situated?
May claimed that, as a pre-trial detainee in Cook County Hospital,
he was similarly situated to detainees at Cook County Jail, who are
not shackled, and thus shackling him violated his rights to equal
protection.  Defendants disputed this, pointing to the obvious
differences in security concerns between Cook County Jail and Cook
County Hospital. However, finding that whether May was in fact
similarly situated is a matter for the trier of facts to determine,
the court denied the motion to dismiss as to the equal protection
claim. 

Judge Coar next looked at whether the plaintiff's complaint stated
a claim for which relief could be granted under the ADA.  An ADA
claim properly brought requires an allegation that the plaintiff was
discriminated against because of an impairment that substantially
limits one or more major life activities, such as caring for
oneself, walking, seeing, hearing or working. The plaintiff must
also show that the defendant's actions were intentional, the
defendant denied a request for reasonable accommodation of the
disability and his or her actions had a disproportionate impact upon
disabled people. Coar determined that May's complaint did meet the
ADA threshold for a liability claim to proceed for the following
reasons: May alleged that (i) he has AIDS; (ii) he is substantially
limited in his ability to walk and reproduce, and can not take care
of himself because of the shackles; (iii) he requested assistance
with his personal care, which was denied by the defendants and (iv)
the shackling policy disproportionally impacted upon disabled
people.  Although everyone, disabled or not, are shackled when in
the hospital, since those with disabilities were more likely to be
hospitalized than those without disabilities, the shackling policy
has a greater impact upon them. Coar refused to dismiss the ADA
claim, holding that whether the requested accommodation was
reasonable and whether shackling disproportionally impacted upon the
disabled must await the trier of facts.

Coar next considered whether May properly pleaded a claim of
violation of his due process rights, quoting cases to the effect
that "a pre-trial detainee's due process rights are violated if the
conditions of his confinement constituted punishment and if the
officials acted with the required state of mind."  The defendants
argued that they did not intend to violate May's constitutional
rights, and that shackling was justified to protect hospital staff
and prevent escape.  In his analysis of defendants' intent, Coar
used both the _Bell_ test and the deliberate indifference test. The
_Bell_ test is premised on the principle that a detainee's rights
are violated when restraints are not reasonably related to
maintaining security, and actually serve as a disguised punishment.
The _Bell_ test consists of four factors: 1) whether there is a
rational basis and legitimate government interest for the policy;
2) whether there are alternative means for the prisoner to exercise
his rights; 3) the impact on prison operation of accommodation of
the prisoner's rights; and 4) whether there are obvious, easy
alternatives to the policy. While the court agreed that there is a
legitimate government interest in maintaining security, the court
was not convinced that the policy's legitimate interest in security
applied without exception to all ill detainees in the hospital. Coar
also noted plaintiff's allegations that no alternative means were
provided to him of exercising his liberty rights to avoid soiling
himself, and that one person was assigned to guard him exclusively.
Therefore, said Coar, it appears unnecessary to have shackled May
to the bed, since the guard could have easily subdued him, inasmuch
as he was ill and had trouble walking. Coar found that, based on the
_Bell_ test, May sufficiently pleaded a claim of violation of due
process rights.

Coar next applied the deliberate indifference test to determine
defendants' state of mind with regard to their intent to violate
May's due process rights.  Did they intend for the prisoner to die
or suffer harm, or act with indifference to a known risk that he
would die or suffer harm?  The plaintiff alleged that he endured
unnecessary suffering through delays in his recovery and that
defendants knowingly permitted the shackling to continue and refused
to alleviate the harm to his condition. The court held that
plaintiff sufficiently pleaded deliberate indifference to survive
the motion to dismiss. 

Lastly, Coar analyzed May's claim of denial of access to the courts. 
To prevail, a prisoner must show that his ability to bring a claim
was impeded unjustifiably by prison officials.  Inasmuch as May's
complaint alleged that he remained in custody longer due to the
delay in disposition of his case, resulting from his not being
permitted to go to court, Coar found that May did properly state a
claim for denial of access to courts sufficient to survive
dismissal.

May's complaint asserted claims against Sheriff  Sheahan in both his
official and individual capacity. In a 42 U.S.C. sec. 1983 action,
an individual defendant can be held liable "if the conduct causing
the constitutional deprivation occurs at [his] direction or with
[his] knowledge and consent." May claimed that Sheahan was
responsible for implementing the policy of shackling pre-trial
detainees in the hospital, and knew that this policy results in
disparate treatment. The court held that these allegations were
sufficient to state a claim against Sheriff Sheahan in his
individual capacity.  Sheahan argued that he is entitled to
qualified immunity from claims brought against him in his individual
capacity. Qualified immunity may be granted to officials who violate
a person's constitutional rights at a time when the constitutional
standards were newly in the development process. The court found
that, during the time period in question, while it was not yet
clearly established that shackling ill detainees violates the ADA,
it was clearly established that shackling ill detainees violates
their equal protection and due process rights and their rights of
access to courts. Coar decided that Sheahan, in his individual
capacity, was entitled to qualified immunity only from the ADA
claim.

The court denied the motion to dismiss as to all claims against all
defendants in their official capacities and granted the motion to
dismiss as to the ADA claim only as to Sheahan in his individual
capacity.  _Elaine Chapnik_

Prospective Adoptive Parents of HIV+ Infant Lose Negligence Claim
Against Adoption Agency and Hospital

The Minnesota Court of Appeals upheld the dismissal of negligence
and breach of contract claims brought by Jodi Montavon and Peter
Brazerol, prospective parents of an HIV+ infant, who sought
compensation for the emotional distress they suffered when the
infant died suddenly in their home. _Montavon v. Wellspring Adoption
Agency, Inc._, 1999 WL 639306 (Aug. 24) (not officially published). 


Montavon and Brazerol claimed that they were assured they were
receiving a healthy baby, and that all tests had been done on the
mother.  Nonetheless, several weeks after taking the baby home from
the hospital, they were informed for the first time that the baby
tested HIV+, and shortly thereafter the child was found dead in her
crib from what was labeled Sudden Infant Death Syndrome.  It appears
that the HIV status of baby and her birth mother was not known to
the adoption agency or the charge nurse who released the baby to the
plaintiffs, the hospital first having confirmatory test results on
the mother only after the discharge.  The court found that neither
the adoption agency nor the hospital had tried to conceal anything
about the baby's health, and further that the emotional distress
suffered by the plaintiffs stemming from the child's sudden death
was not directly related to her HIV status in any event.  A.S.L.

AIDS & Related Legal Briefs

By a 5-5 tie vote announced on Aug. 3, the U.S. Court of Appeals for
the 7th Circuit has refused a petition for en banc review in _Doe v.
Mutual of Omaha Insurance Co._, 179 F.3d 557 (7th Cir., June 2,
1999), in which a three-judge panel held that the ADA's prohibition
of discrimination in public accommodations does not apply to the
substance of insurance policies, thus immunizing insurance companies
from discrimination suits for capping AIDS benefits lower than
benefits available for other illnesses. _AIDS Policy & Law_, Aug.
20.

U.S. District Judge Kennelly (N.D.Ill.) affirmed a magistrate
judge's ruling that the defendants in an employment discrimination
action were not entitled to discovery of the plaintiff's medical
records, including records of drug, alcohol and HIV testing.
_Santelli v. Electro-Motive_, 1999 WL 635449 (Aug. 19).  In her
complaint, Mary Santelli asserted a claim for damages for mental
distress as part of her claim of sex discrimination and retaliation
in violation of Title VII.  Defendant sought discovery of her
medical records, arguing that any emotional distress she was
experiencing could be due to a variety of factors.  In litigating
the motion, Santelli indicated she was not claiming general
emotional distress damages, but rather was limiting her claim to
compensation for humiliation and embarrassment stemming directly for
the alleged discrimination.  On that basis, the magistrate rejected
the discovery request.  On the larger point at issue in the case,
whether a privilege applied to protect Santelli's records of
psychiatric treatment, the court sided with those district courts
that have found such privilege to be waived if the plaintiff puts
her mental state into issue by claiming damages for emotional
distress, but by foregoing such damages in this case, Santelli could
preserve the privacy of those records. On the specific issue of HIV
test disclosure, the court uphold the magistrate's ruling on grounds
of relevance. "The fact that a particular person may have had a drug
or alcohol problem or a positive HIV test has no logical bearing on
whether she felt humiliation or disgust as a result of unlawful
discrimination," wrote Kennelly.

The Appellate Court of Illinois ruled June 10 in _Cut 'N Dried Salon
v. Department of Human Rights_, 713 N.E.2d 592, held that an
insurance company is not a place of public accommodation under the
Illinois Human Rights Act, and thus the Department of Human Rights
was without jurisdiction of a claim of discrimination in the sale
of insurance by an insurance company.  The case has obvious
consequences for people with HIV encountering discrimination by
insurance companies in Illinois.

Upholding the conviction of Brian T. Warden, an HIV+ man, for having
unprotected sex with a woman in violation of a military safe-sex
order in _U.S. v. Warden_, 1999 WL 518820 (U.S.Ct.of App. For the
Armed Forces, July 21), the court of appeals rejected Warden's
argument that the court martial was tainted because a major witness
refuting his alibi was former secretary of one of the court martial
officers, in whom that officer had expressed "great confidence."
Writing for the court, Judge Gierke quoted at length from the
colloquy between the court martial member, the judge, and counsel,
when it came out that the member knew and had worked with a
potential witness, and found that the member appeared to be worried
about any appearance of conflict, raised the issue himself, and had
expressed confidence he could judge the evidence impartially.

In a case described by the judge as "reminiscent of a Greek
tragedy," Franklin County, Ohio, Common Pleas Judge David W. Fais
sentenced Henry Couturier to seven years in prison for exposing a
13-year-old girl to HIV after his conviction of felonious assault. 
The victim, a crack addict who had sex with Couturier and
subsequently tested HIV+, claimed that he never told her he was
infected.  In addition to felonious assault, Couturier was convicted
of corruption of a minor and corrupting a minor with drugs. 
Couturier had testified that he told the girl he had AIDS before
they had sex, but evidently was not believed by the jury. _Columbus
Dispatch_, July 29. A.S.L. 

International AIDS Law Notes

Journalist Rex Wockner reports that the Supreme Court of Venezuela
has ruled July 19 that the government must provide AIDS-related
drugs to all HIV+ persons residing in Venezuela, regardless of
citizenship.  The case was brought by 168 people with AIDS and an
organization, Citizens' Action Against AIDS.  The court also ordered
the government to provide viral-load and other necessary diagnostic
testing.

The British government announced Aug. 13 that all pregnant women in
the U.K. will be offered HIV-screening as part of routine prenatal
care provided by the National Health Service.  Over the past several
years, an average of 50 HIV-infected infants have been born
annually. _Orlando Sentinel_, Aug. 14.

The Legal Assistance Center in Namibia has launched an AIDS Law Unit
to assist Namibians with AIDS in protecting their legal rights.  The
unit is being funded with grants from the United Nations AIDS
Program, the Ford Foundation, and the U.S. government.  According
to Michaela Figueira, coordinator of the new project, Namibia is in
the top three countries in the world in terms of HIV prevalence in
its adult population, as about 20 percent of sexually active adults
are believed to be infected. _The Namibian_, Aug. 24.

_China Daily_ reported July 27 that the Disease Prevention and
Control Branch of Southwest China's Sichuan Province has ordered
compulsory HIV tests for marriage license applicants, following the
first female death from AIDS in the province.

The British Columbia (Canada) Human Rights Tribunal ruled July 26
that the London Life Insurance Co. unlawfully discriminated against
a man, referred to only as J., by refusing to sell him life
insurance because his wife is HIV+.  The tribunal found the refusal
of coverage to lack a bona fide justification and that it was not
in accord with sound and accepted insurance practice, and thus
violative of the British Columbia Human Rights Code, which forbids
disability discrimination. _Globe and Mail_, July 27. A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Fogo, Credence, _Cabining Freedom: A Comparative Study of Lesbian
and Gay Rights in the United States and Canada_, 6 Cardozo J. Int'l
& Comp. L. 425 (Fall 1998).

Goodrich, Peter, _The Laws of Love: Literature, History, and the
Governance of Kissing_, 24 NYU Rev. L. & Soc. Change 183 (1998) (on
government regulation of public erotic conduct, including the Jane
Gallop sexual harassment controversity at Univ. of Michigan).

Grosz, Maya, _To Have and To Hold: Property and State Regulation of
Sexuality and Marriage_, 24 NYU Rev. L. & Soc. Change 235 (1998)
(same-sex marriage).

Havins, Weldon E., and James J. Dalessio, _The Ever-Widening Gap
Between the Science of Artificial Reproductive Technology and the
Laws Which Govern that Technology_, 48 DePaul L. Rev. 825 (Summer
1999).

Karlan, Pamela S., _Some Thoughts on Autonomy and Equality in
Relation to Justice Blackmun_, 26 Hastings Const. L. Q. 59 (Fall
1998).

Karsten, Ian, _Atypical Families and the Human Rights Acts: The
Rights of Unmarried Fathers, Same-Sex Couples and Transsexuals_,
1999 Eur. Hum. Rts. No. 2, 195.

Keller, Susan Etta, _Operations of Legal Rhetoric: Examining
Transsexual and Judicial Identity_, 34 Harv. Civ. Rts.-Civ. Lib. L.
Rev. 329 (Summer 1999).

Knauer, Nancy J., _Same-Sex Domestic Violence: Claiming a Domestic
Sphere While Risking Negative Stereotypes_, 8 Temple Pol. & Civ.
Rts. L. Rev. 325 (Spring 1999).

Kurzweg, Anne Salzman, _Live Art and the Audience: Toward a Speaker-
Focused Freedom of Expression_, 34 Harv. Civ. Rts. - Civ. Lib. L.
Rev. 437 (Summer 1999).

Kuykendall, Mae, _Resistance to Same-Sex Marriage as a Story about
Language: Linguistic Failure and the Priority of a Living Language_,
34 Harv. Civ. Rts. - Civ. Lib. L. Rev. 385 (Summer 1999).

Mickman, Robert, _Discrimination Against Same-sex Couples in Tax
Law_, 13 Int'l J. L. Pol. & the Family 33 (1999).

Niveau, Gerard, Marinette Ummel, and Timothy Harding, _Human Rights
Aspects of Transsexualism_, 4 Health & Hum. Rts. 137 (1999).

Oh, Peter B., _The Proper Test for Assessing the Admissibility of
Nonscientific Expert Evidence Under Federal Rule of Evidence 702_,
48 Defense L. J. 221 (1999).

Parks, Cheryl A., _Lesbian Social Drinking: The role of Alcohol in
Growing Up and Living as Lesbian_, 26 Contemp. Drug Probl. 75
(Spring 1999).

Smith, George P., II, _Civil Liberties, Sexuality and the Law_,
Review Essay, 24 NYU Rev. L. & Soc. Change 333 (1998) (review of
Casswell, _Lesbians, Gay Men and Canadian Law_).

Valverde, Mariana, _The Harms of Sex and the Risks of Breasts:
Obscenity and Indecency in Canadian Law_, 8 Social & Legal Studies
181 (June 1999). 

_Student Notes & Comments:_

Gratton, Regina M., _It's Not Just for Religion Anymore: Expanding
the Protections of the Equal Access Act to Gay, Lesbian, and
Bisexual High School Students_, 67 Geo. Wash. L. Rev. 577 (March
1999).

Hannon, Sherene D., _License to Oppress: The Aftermath of_ Bowers
v. Hardwick_ is Still Felt Today:_ Shahar v. Bowers, 19 Pace L. Rev.
507 (Spring 1999).

Horan, Jennifer E., _"When sleep at last has come": Controlling the
Disposition of Dead Bodies for Same-Sex Couples_, 2 J. Gender, Race
& Justice 423 (Spring 1999).

Jacobson, Robert L., _"Megan's Laws" Reinforcing Old Patterns of
Anti-Gay Police Harassment_, 87 Georgetown L. J. 2431 (July 1999).

Juncker, Eva N., _A Juxtaposition of U.S. Asylum Grants to Women
Fleeing Female Genital Mutilation and to Gays and Lesbians Fleeing
Physical Harm: The Need to Promulgate an INS Regulation for Women
Fleeing Female Genital Mutilation_, 4 J. Int'l Legal Studies 253
(Summer 1998).

Lin, Timothy E., _Social Norms and Judicial Decisionmaking:
Examining the Role of Narratives in Same-Sex Adoption Cases_, 99
Col. L. Rev. 739 (April 1999).

McCoy, Andrea, National Endowment for the Arts v. Finley_: First
Amendment Free Speech No Longer Guaranteed for the Arts_, 50 Mercer
L. Rev. 791 (Spring 1999).

Schmaltz, Kimberly A., National Endowment for the Arts v. Finley_:
Viewpoint Discrimination Masked as the Government's Foray Into the
Realm of Art Patron_, 26 N. Kentucky L. Rev. 337 (Summer 1999).

Schultz, Catherine A., _Victim or the Crime? The Government's Burden
in Proving Predisposition in Federal Entrapment Cases_, 48 DePaul
L. Rev. 949 (Summer 1999).

Toker, Rachel L., _Multiplie Masculinities: A New Vision for Same-
Sex Harassment Law_, 34 Harv. Civ. Rts. - Civ. Lib. L. Rev. 577
(Summer 1999).

Weinstein, Matthew I., _I'm Paying for That? -- Assessing the
Constitutionality of Mandating Student Activity Fees to Support
Objectionable Political and Ideological Activities at Public
Universities in_ Southworth v. Grebe, 44 Villanova L. Rev. 257
(1999).

Yager, Christina S., Oncale v. Sundowner Offshore Services, Inc._:
Judicial Recognition of Same-Sex Sexual Harassment_, 26 N. Kentucky
L. Rev. 357 (Summer 1999).

_Specially Noted:_

Stanford University Law Professor Janet Halley has published an
analysis of the U.S. military policy on service by gay people,
titled _Don't: A Reader's Guide to the Military's Anti-Gay Policy_,
Duke University Press.  The book receives a lengthy review from
University of Chicago Professor Cass Sunstein in the September 6
issue of _The New Republic_.  The final two sentences of Sunstein's
review indicate the general tenor of the discussion: "The `don't
ask, don't tell' policy is an atrocity.  The sooner we are rid of
it, the better." * * * Symposium on Human Cloning: Legal, Social,
and Moral Perspectives for the Twenty-First Century, 27 Hofstra L.
Rev. No. 3 (Spring 1999). * * * The University Press Group of
Hagerstown, Maryland, has published _Intersex in the Age of Ethics_,
an anthology edited by Alice Domurat Dreger, which considers the
ethics of medical treatment of persons born with abnormal or
ambiguous genitalia.

AIDS & RELATED LEGAL ISSUES:

Manji, Ambreena S., _The AIDS Epidemic and Women's Land Rights in
Tanzania_, 1999 Law in Africa No. 1, 31.

Markus, Mona, _A Treatment for the Disease: Criminal HIV
Transmission/Exposure Laws_, 23 Nova L. Rev. 847 (Spring 1999).

Somerville, Margaret, and Sarah Wilson, _Crossing Boundaries:
Travel, Immigration, Human Rights and AIDS_, 43 McGill L. J. 781
(December 1998).

_Student Notes & Comments:_

Horsley, Tim, Pennsylvania Department of Corrections v. Yeskey_: The
ADA and the "Clear Statement" Doctrine_, 26 N. Kentucky L. Rev. 391
(Summer 1999) (Note on case holding ADA applies to prisons).

EDITOR'S NOTE:

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