LESBIAN/GAY LAW NOTES
ISSN 8755-9021 September 2003

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: Fred Bernstein, Esq., New York City; Joshua Feldman, Student, NY Law
School '05; Joseph Griffin, Student, NY Law School '05; Alan J. Jacobs, Esq., New York City;
Steven Kolodny, Esq., New York City; Todd V. Lamb, Esq., New York City; Mark Major, Esq.,
New Jersey; Sharon McGowan, Esq., Washington, D.C.; Tara Scavo, Alumna, NY Law School
'03; Daniel R Schaffer, New York City; Audrey E. Weinberger, Student, NY Law School '05;
Robert Wintemute, Esq., King's College, London, England.

Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-
9118; e-mail: le_gal@earthlink.net.  Inquire for subscription rates.

(C) 2003 by the Lesbian & Gay Law Association Foundation of Greater New York.


CALIFORNIA SUPREME COURT APPROVES SECOND-PARENT ADOPTIONS

The Supreme Court of California has ruled that the state's family code does not prohibit second-
parent adoptions, becoming the fourth high court (after Massachusetts, New York and Vermont)
to sanction second-parent adoptions in its jurisdiction. _Sharon S. v. Superior Court of San Diego
County_, 73 P.3d 554, 2 Cal.Rptr. 3d 699 (Aug. 4).  The four-judge majority concluded that
section 8617 of the Family Code, which applies to independent adoptions and ordinarily requires
that a birth parent's rights be terminated once an adoption is finalized, is not mandatory and can
be waived by the parents if waiver would be in the child's best interests and would not otherwise
violate public policy.

Although the specific facts before the court concerned the second-parent adoption of a child born
to a lesbian couple, the majority did not limit its ruling to same-sex couples or to couples in
general. This raises the possibility that the decision will be relied upon in the future to seek
finalization of "non-traditional" adoptions   including kinship adoptions (such as the adoption of
a child by two adult siblings), adoptions by two people who either cannot or choose not to marry
or register as domestic partners, or even adoptions by more than two people. Whatever its
prospective application, the Supreme Court's ruling has the immediate effect of renewing the
legitimacy of approximately 10,000 to 20,000 second-parent adoptions that have been finalized
in California over more than a decade through the independent adoption process.

The underlying facts highlight how some individual lesbian and gay litigants have used
heterosexist laws as a sword to try to defeat the claims of former partners after a same-sex
relationship has ended.  

Sharon and Annette attended Harvard Business School together and were in a committed
relationship from 1989 through mid-2000. In 1996, after being artificially inseminated by an
anonymous sperm donor, Sharon gave birth to Zachary. With Sharon's consent, Annette
petitioned to adopt Zachary as a "second parent."  The trial court granted the application, and did
not require Sharon to terminate her own parental rights in order for Annette to also become
Zachary's legal parent. 

Sharon gave birth to her second son, Joshua, in 1999 after being artificially inseminated with the
sperm of the same anonymous donor. Sharon signed the appropriate paperwork to begin the
process for Annette to be designated Joshua's second legal parent.  The paperwork, like that for
all independent adoptions in California, gave Sharon the right to revoke her consent to Annette's
adoption of Joshua within 90 days. (The statutory window period has since been shortened to 30
days.) Sharon never revoked her consent during this window period, and Annette filed her
adoption petition in due course. In April of 2000, the San Diego County Department of Health
and Human Services recommended to the court that Annette's petition be granted, consistent
with the formal policy it had enacted in 1999 approving second-parent adoptions.

Complications arose when the couple separated prior to finalization of the adoption. After
successfully postponing the hearing on Annette's adoption petition several times, Sharon
ultimately moved for court approval to withdraw her consent to the second-parent adoption. HHS
continued to recommend that Annette's petition be granted, since she had shared in planning and
handling Joshua's daily care since birth, and had a close and loving relationship with Joshua as
his second parent. After obtaining a domestic violence restraining order against Annette, Sharon
moved to dismiss Annette' adoption petition altogether, arguing that Sharon's consent to the
adoption had been procured through fraud and duress, and that withdrawal of her consent was in
Joshua's best interests. Court-appointed counsel for Joshua supported Sharon's application,
arguing that the attorney who had facilitated the adoption process did not comply with statutory
requirements when she represented Annette and Sharon simultaneously. The trial court denied
both of Sharon's motions since Sharon had not withdrawn her consent during the 90-day
statutory window period, and since, in the court's judgment, the adoption was likely to be in
Joshua's best interests.

On appeal, Sharon argued that the adoption was not statutorily authorized, and the court was
without jurisdiction to grant Annette's petition, because section 8617 requires full termination of
a birth parent's rights in every independent adoption, something Sharon never consented to. The
appellate court agreed, ruling in a divided opinion that with the exception of adoptions that are 
finalized pursuant to California's stepparent adoption statute (which, until California's domestic
partnership statute became law in 2001, applied only to married heterosexual couples), there is no
statutory basis to finalize an adoption where the consenting biological parent does not relinquish
all parental rights. The court of appeal's decision raised troubling questions for thousands of
families who had used the independent adoption process to effectuate second-parent adoptions.

Would adoptions finalized years if not decades before be deemed void retroactively? According
to the Supreme Court, the answer to this question was a resounding "no." Six of the seven
justices ruled that section 8617 of the family code did not bar same-sex, second-parent
independent adoptions. The high court reversed the decision of the court of appeal and remanded
the cases for further proceedings.

Writing for the four-judge majority, Justice Kathryn Mickle Werdegar began her analysis by
noting that a party who stands to benefit from a statutory provision (in the case of an independent
adoption, the adoptive parent) may waive that benefit if the statute does not prohibit waiver.
Here, the court concluded that nothing in section 8617 "or in any other statutory provision,
prohibits the parties to an independent adoption from waiving the benefits of section 8617 when
a birth parent intends and desires to coparent with another adult who has agreed to adopt the
child and share parental responsibilities." This conclusion was buttressed by a 1925 California
Supreme Court decision (_Marshall v. Marshall_, 196 Cal. 761), which sanctioned heterosexual
stepparent adoptions even before the California legislature passed its stepparent adoption statute
in 1931. Justice Werdegar explained: "In _Marshall_, we effectively read second parent adoption
into the statutory scheme, by approving a type of second parent adoption, stepparent adoption,
which at that time the adoption statutes did not expressly authorize. In so doing, we necessarily
determined that relinquishment of the birth parent's rights was not essential to adoption and that
section 8617's predecessor was not mandatory."

The majority explained that public policy considerations also favored the continued recognition
of second-parent adoptions. In addition to the financial benefits and family stability that they
provide to adopted children, second-parent adoptions ensure that people who actively plan to
raise a family together do not (and cannot) walk away from their commitments. "Unmarried
couples who have brought a child into the world with the expectation that they will raise it
together, and who have jointly petitioned for adoption, should be on notice that if they separate
the same rules concerning custody and visitation as apply to all other parents will apply to them,"
Justice Werdegar stated.

The majority disposed of several constitutional arguments raised by Sharon. Among these was
Sharon's contention that the California Department of Social Services, an agency of the state's
executive branch, had engaged in legislative activity when it drafted and supplied forms that
recognized second-parent adoptions. The court concluded that since the independent adoption
statute did not specifically prohibit second-parent adoptions, and since the CDSS was authorized
by the legislature to promulgate documents to effectuate the purpose of the adoption statute, the
CDSS acted within its authority and construed the independent adoption statute "reasonably"
when it drafted the forms used by Sharon and Annette.

The court also rejected Sharon's due process argument, based on the 2000 United States Supreme
Court decision of _Troxel v. Granville_, 530 U.S. 57, which struck down a Washington State
statute providing that any person could petition for visitation of an unrelated child, and that the
court could order such visitation if it was in the child's best interests. The California Supreme
Court distinguished _Troxel_ by noting that the Washington statute did not in any way require
parental consent. Here, by contrast, Sharon consented to Annette's adoption of Joshua, and did
not revoke her consent during the statutory window period.

The Supreme Court did not grant Annette's adoption petition outright. Rather, it remanded the
case for further proceedings. Two additional issues stand as potential obstacles to Annette
becoming a legal parent to Joshua. First, the Supreme Court directed the court of appeal to assess
whether Sharon's fraud and duress argument has any factual merit. Second, the court noted that
Sharon retained the right to oppose finalization of the adoption on the ground that the new
circumstances make it contrary to Joshua's interest.  (It seems unlikely that the trial court will
deny Annette's petition on "best interests" grounds. Shortly before the Supreme Court's ruling,
the trial court was called upon to assess an interim visitation schedule for Annette and Joshua.
The court ruled that pursuant to section 7611 of California's version of the Uniform Parentage
Act    similar to a statutory equivalent of _de facto_ parenthood   Annette was Joshua's
presumed parent entitled to expanded parental rights.)

Justice Marvin Baxter concurred with the court's ruling, noting that the decision to approve
second-parent adoptions was "unremarkable," given that so many other jurisdictions already have
done so. But in his separate decision joined by Justice Ming Chin, Baxter chided the majority for
not expressly limiting its holding to second-parent adoptions, i.e., to adoptions that would result
in a child having no more than two legal parents. According to Justice Baxter, if the majority's
decision were to be read literally, "nothing in the Family Code would be left to prevent a child
from having three or four or a village's worth of legal parents, so long as all the would-be parents
agree to waive section 8617 and a sole family court judge sometime, somewhere, finds the
adoption to be in the child's best interest."  The majority responded to this concern by noting:
"Our explicit recognition in this case of the legal ground for second parent adoptions obviously
cannot be taken as authority for multiple parent or other novel adoption scenarios.  Nothing we
say in this case can validate an adoption that is not in the child's interest, omits any essential
statutory element, or is in violation of a public policy
the Legislature may express."  Since the legislature has not expressly limited the number of legal
parents a child may have, one could argue that the majority has not addressed the crux of Justice
Baxter's point. As over-stated as some might consider Justice Baxter's point to be (whether from
a practical or public policy perspective), it is not made out of whole cloth. In his opinion, he
refers to reports of trial court decisions from Alaska and California that already have sanctioned
adoptions resulting in a child having more than two legal parents.

Justice Janice Rogers Brown   nominated last month by President George W. Bush for the
federal appeals court in Washington, DC and considered by some to be a potential US Supreme
Court nominee   explained in her concurring opinion that she does not believe independent
adoptions should be used in the future to effectuate second-parent adoptions. Although Justice
Brown would not disturb past adoptions, and even concurred in the court's judgment as to
Annette based on equitable principles of estoppel, she explained that in her view, the legislature
has limited second-parent adoptions to situations where there is a legal relationship between the
birth and second parent: "The Legislature has twice prescribed the terms by which a child may
gain a second parent without losing the first: only where the two parents are related by marriage
or domestic partnership. This court has no authority to reject the legislative rule for one it deems
preferable."  Accusing the majority of "trivializing family bonds" by "importing the principles of
the marketplace into the realm of home and family," Justice Brown concluded that the California
Department of Social Services' letter interpreting section 8617 so as to allow second-parent
adoption "fails in substance as well as procedure." 

The majority attacked the premise of Justice Brown's argument, noting "any suggestion that the
statutory availability of stepparent adoption implies legislative approval of other kinds of second
parent adoption is belied by the possibility of second parent adoptions being effected through
agency procedures."  (According to Shannon Minter, legal director of the National Center for
Lesbian Rights, very few same-sex second-parent adoptions in California rely on agency
procedures, since an agency adoption entails the birth parent temporarily relinquishing his or her
right to custody of the child to the adoption agency. Although this is done with the express
understanding that the birth parent and the prospective second parent will be designated as the
legal parents of the child by the agency, the even temporary relinquishment of control is a heart-
wrenching if not also risky proposition.)

Justice Brown took the liberty of speculating why the California legislature intended, at least in
her view, reflecting the recent enactment of domestic partnership law, to limit second-parent
adoptions to couples who are married or registered as domestic partners: "The Legislature's
insistence that the adopting parent have a legal relationship with the birth parent reflects the fact
that the adoptive parent's relationship with the child does not exist in a vacuum, but is related to
the parents' relationship with each other  The law permits single individuals to adopt a child on
their own because one parent is better than none. It does not follow, however, that two unrelated
parents are better than one." According to the majority, this narrow view does not take into
consideration the reality and the complexity of family relationships. Justice Baxter's position
would prohibit second-parent adoptions for same-sex couples that cannot register as domestic
partners, such as where both partners do not share a common residence, or where one partner has
a non-immigrant visa.  The majority also highlighted that same-sex couples might choose not to
register as domestic partners for reasons of privacy and confidentiality, but still would want to
ensure that they and their children have the legal rights and protections that arise from a legal
parent-child relationship.

Sharon S. was represented by Douglas Shepersky, William Blatchley, John L. Dodd and Lisa A.
DiGrazia. Annette F. was represented by Leigh A. Kretzschmar, Kathleen Murphy Mallinger,
and Charles Bird of Luce, Forward, Hamilton & Scripps. Joshua was represented by Terence
Chucas and Judith E. Klein. _Ian Chesir-Teran_

LESBIAN/GAY LEGAL NEWS 

Same-Sex Partners' First Win in International Human Rights Law

On July 24, in _Karner v. Austria_, the European Court of Human Rights found (effectively by 7
votes to 0 on the merits) sexual orientation discrimination violating Article 14 (non-discrimination)
together with Article 8 (respect for home) of the European Convention on Human Rights, where a
same-sex partner was denied a right extended to an unmarried different-sex partner regarding tenant
succession.  (The opinion can be found on the Court's website.)   The facts were essentially the same
as in _Braschi v. Stahl Associates_, 543 N.E.2d 49 (N.Y. 1989) (landlord seeks to evict surviving
same-sex partner after death of official tenant of apartment). However, Siegmund Karner's landlord
succeeded in evicting him, because (unlike in _Braschi_) the Austrian rent-control legislation had
no residual, undefined category of "family member," and because the Austrian Supreme Court held
that (in 1974) the Austrian Parliament had intended the legislation's sex-neutral category of "life
companion" ("a person who has lived in the [apartment] with the former tenant until the latter's
death for at least three years, sharing a household on an economic footing like that of a marriage")
to protect only an unmarried different-sex partner.

To the knowledge of this contributor, who submitted written comments (an amicus brief) on behalf
of ILGA-Europe (the European Region of the International Lesbian and Gay Association), Liberty
(the British equivalent of the ACLU) and Stonewall (the British LGB lobbying and litigation group),
_Karner_ represents the first victory under an international human rights treaty by factually and
legally same-sex partners (vs. partners who are factually different-sex but legally same-sex because
one partner is transsexual).  The court began by considering whether the application should be struck
out of its list of cases, because Siegmund Karner had died in 2000, leaving no heirs who wished to
pursue his application.  The court concluded: "the subject matter of the present application   the
difference in treatment of homosexuals as regards succession to tenancies under Austrian law  
involves an important question of general interest not only for Austria but also for other Member
States of the Convention. In this respect the Court refers to the submissions made by ILGA-Europe,
Liberty and Stonewall, whose intervention in the proceedings as third parties was authorised as it
highlights the general importance of the issue. . . . In these particular circumstances, the Court finds
that respect for human rights as defined in the Convention  . . .  requires a continuation of the
examination of the case . . ."  The ad hoc Austrian judge disagreed, making the vote for finding a
violation of the Convention technically 6 to 1, but he would have joined the majority (consisting of
judges from Bulgaria, Croatia, Denmark, Greece, Italy and Malta) had Mr. Karner been alive.

Turning to Article 14, which does not prohibit discrimination generally but only in the enjoyment
of other Convention rights, the Court had to determine whether one of Mr. Karner's other
Convention rights was sufficiently affected. "The Court does not find it necessary to determine the
[Article 8] notions of 'private life' [which has been held to include sexual orientation] or 'family
life'[which has so far been held to cover unmarried different-sex but not yet same-sex partners]
because, in any event, the applicant's complaint relates to the manner in which the alleged difference
in treatment adversely affects the enjoyment of his right to respect for his home guaranteed under
Article 8 . . . . The applicant had been living in the [apartment] that had been let to Mr W. and if it
had not been for his sex, or rather, sexual orientation, he could have been accepted as a life
companion entitled to succeed to the lease, pursuant to Section 14 of the Rent Act."  The court thus
found it unnecessary to overrule the former European Commission of Human Rights' case law
interpreting "family life" as excluding same-sex partners, but could easily do so in a future case, in
view of the outcome in _Karner_.

Given that Article 14 applied, the court then had to decide whether the difference in treatment could
be justified: "a difference in treatment is discriminatory if it has no objective and reasonable
justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship
of proportionality between the means employed and the aim sought to be realised . . . Furthermore,
very weighty reasons have to be put forward before the Court could regard a difference in treatment
based exclusively on the ground of sex as compatible with the Convention . . . Just like differences
based on sex, differences based on sexual orientation require particularly serious reasons by way of
justification . . ."  The court had earlier noted the arguments of ILGA-Europe, Liberty and Stonewall
that "a strong justification was required when the ground for a distinction was sex or sexual
orientation" and that "a growing number of national courts in European and other democratic
societies require equal treatment of unmarried different-sex partners and unmarried same-sex
partners, and that that view is supported by recommendations and legislation of European institutions
[including] . . . the Parliamentary Assembly of the Council of Europe . . . the European Parliament
. . . and the Council of the European Union . . ."

The Austrian Government argued that the restrictive interpretation of the Rent Act pursued the
legitimate aim of "protection of the traditional family unit.  The Court can accept that protection of
the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify
a difference in treatment . . . [However,]  [t]he aim of protecting the family in the traditional sense
is rather abstract and a broad variety of concrete measures may be used to implement it.  In cases in
which the margin of appreciation [or discretion] afforded to member States is narrow, as [is] the
position where there is a difference in treatment based on sex or sexual orientation, the principle of
proportionality does not merely require that the measure chosen is in principle suited for realising
the aim sought. It must also be shown that it was necessary to exclude persons living in a
homosexual relationship from the scope of application of Section 14 of the Rent Act in order to
achieve that aim. The Court cannot see that the Government has advanced any arguments that would
allow of such a conclusion.  Accordingly, the Court finds that the Government have not offered
convincing and weighty reasons justifying the narrow interpretation of Section 14(3) of the Rent Act
that prevented a surviving partner of a couple of the same sex from relying on that provision.  Thus,
there has been a violation of Article 14 of the Convention, taken together with Article 8." 

_Karner_ establishes a general principle that all governments in the 45 member states of the Council
of Europe (which have combined populations of over 800,000,000 people) that decide voluntarily
to extend a right or duty of married different-sex partners to unmarried (and unregistered) different-
sex partners must, absent a strong justification, treat unmarried (and unregistered) same-sex partners
in the same way.  The most striking feature of the court's reasoning (which overruled the former
European Commission of Human Rights' negative decision on the justification issue from 1983 to
1996)  is its rejection of the argument that it is necessary to exclude same-sex partners from specific
rights and duties of unmarried different-sex partners to protect "the family in the traditional sense." 
This reasoning, which could also apply to exclusion from specific rights and duties of married
different-sex partners, and ultimately to access to civil marriage, can be cited in future cases under
the Convention and in other litigation by same-sex partners around the world.   One such case is
_Edward Young v. Australia_, which is pending before the United Nations Human Rights
Committee, and is very similar to _Karner_, except that the benefit denied to a surviving same-sex
partner (but not an unmarried different-sex partner) is a war widower's pension.  _Robert
Wintemute_

First Openly-Gay Justice of a U.S. State's Highest Court Appointed

Oregon Governor Ted Kulongoski has appointed D. Rives Kistler, an openly-gay man who is a
judge of the Oregon Court of Appeals, to a vacancy on the Oregon Supreme Court.  To the best
of our knowledge, Justice-designate Kistler will be the first openly-gay person to serve as a
justice of the highest court of a state.  (There have undoubtedly been and are now closeted state
high court justices, of course.)  

Kistler, whose background includes clerking for U.S. Supreme Court Justice Lewis F. Powell,
Jr., in the early 1980s, is a summa cum laude graduate of Georgetown University Law Center
(Class of 1981), and also earned degrees from Williams College (B.A.) and University of North
Carolina at Chapel Hill (M.A.).   Kistler had served as an assistant attorney general under
Kulongoski when the governor served as Attorney General of Oregon.  According to news
reports from Oregon, he is very highly regarded as one of the stars of the Oregon judiciary.
_Portland Oregonian_, Aug. 6, and nobody disputes his qualifications for the position.

However, the appointment aroused controversy for reasons having nothing to do with Kistler's
sexual orientation.  The justice whose retirement created the opening for this appointment was
Susan Leeson, the only woman serving on the court.  As a result, Kistler's appointment will leave
the court totally male, which was described as "infuriating" by Katherine O'Neil, the founding
president of Oregon Women Lawyers, who recited the names of three highly qualified women
state judges who could have been appointed.  The only other state supreme court with no women
serving as judges is Indiana's, and women are a majority of the highest court judges in several
states, including, as of this year, New York.  Kistler's appointment was also criticized by rural
legislators, who observed that all of the judges serving on the court of appeals and the supreme
court live in the metropolitan areas of Eugene or Portland, leaving rural Oregon totally
unrepresented on the appellate bench.  One Republican legislator observed that the lack of rural
representation was "one of the biggest issues dividing the state right now," pointing to a recent
initiative that was narrowly rejected by voters that would have required the election of court of
appeals judges from geographic districts in order to rectify this "problem." The measure failed by
only 1 percent of the votes cast.

The _Oregonian_ quoted Kistler's reaction to being the first openly-gay justice of the state's
highest court: "It's obviously something that matters, but ultimately I think what really is
important is how you can contribute to the work of the court. Having that diversity on the
court helps people see things they might miss otherwise. And there's a value in that. But
there's all sorts of diversity people bring to the court. And I assume the governor took those
things into consideration." A.S.L.

European Court of Human Rights Requires Most Health Insurance Plans to Cover Gender
Reassignment

On June 12, in _van Kck v. Germany,_ the European Court of Human Rights held by 4 votes to
3 that German courts violated Articles 6 (right to a fair hearing) and 8 (respect for private life) of
the European Convention on Human Rights, by interpreting a health insurance contract between
a transsexual woman and a private insurance company as not requiring reimbursement of the cost
of the hormones, surgery and other medical treatment required for her gender reassignment. 
Carola van Kck was born male but changed her given name in 1991 and underwent gender
reassignment surgery in 1994.  As an employee of the State of Berlin, she was entitled to
reimbursement of her medical expenses, 50% by her employer and 50% by a private insurance
company.  When the company refused to pay its share, she began a civil action.  Under the
Insurance Contract Act of 1908, the company was obliged to reimburse "expenses for curative
treatment which is medically necessary on account of a disease ... The insurer is exempted from
liability if the insured person has deliberately caused [his or her] own disease ..."

Two courts rejected her claim, holding that, although "her transsexuality constituted a disease,"
the medical treatment she underwent for it was not "necessary."  The Berlin Regional Court
found that "the applicant ought to have had first recourse to less severe means, namely an
extensive psychotherapy of 50 to 100 sessions ... " The Berlin Court of Appeal relied on the
expert's statements "that gender re-assignment was not the only possible curative treatment, but
recommendable from a psychological-psychotherapist point of view in order to improve the
applicant's social situation," and that "gender re-assignment measures could not be expected to
cure the applicant's transsexuality."  Even if treatment were otherwise necessary, Ms. van Kck
was not eligible for reimbursement because "she had herself deliberately caused the disease." 
The Court of Appeal implied that she was not a "true transsexual" but was merely angry at
having been infertile as a man.

The European court majority began by noting that, under Article 6, "it is in the first place for the
national authorities, and notably the courts, to interpret domestic law and that it will not
substitute its own interpretation for theirs in the absence of arbitrariness."  In _van Kck_, the
"arbitrariness" threshold was met because "the German courts' evaluation of the expert opinion
and their assessment that improving the applicant's social situation ... did not meet the requisite
condition of medical necessity [and] ... would have required special medical knowledge and
expertise in the field of transsexualism. In this situation, the German courts should have sought
further, written or oral, clarification from the expert Dr H. or from any other medical specialist.
... "  Nor was "the Court of Appeal ... entitled to take the view that it had sufficient information
and medical expertise for it to be able to assess the complex question of whether the applicant
had deliberately caused her transsexuality."

Turning to Article 8, the majority observed that "the civil court proceedings touched upon the
applicant's freedom to define herself as a female person, one of the most basic essentials of self-
determination. ... [T]he facts complained of ... had repercussions ... on a fundamental aspect of
[the applicant's] right to respect for private life, namely her right to gender identity and personal
development. ... [W]hat matters is not the entitlement to reimbursement as such, but the impact
of the court decisions on the applicant's right to respect for her sexual self-determination ..."  The
defects in the German courts' reasoning that breached Article 6 (a procedural guarantee) also
violated the "respect for private life" branch of Article 8 (which has a substantive component). 
In particular, the Court of Appeal "reproached the applicant with having deliberately caused her
condition of transsexuality[, and] ... found that the applicant ... was ... genuinely male orientated.
In doing so, the Court of Appeal ... substituted its views on most intimate feelings and
experiences for those of the applicant, and this without any medical competence. It thereby
required the applicant ... to show a 'genuine nature' of her transsexuality although ... the essential
nature and cause of transsexualism are uncertain."  

Under both Articles 6 and 8, the majority concluded that "gender identity is one of the most
intimate private-life matters of a person. The burden placed on a person in such a situation to
prove the medical necessity of treatment, including irreversible surgery, appears therefore
disproportionate."  The majority did not decide that the Convention requires reimbursement of
the cost of gender reassignment.  What it decided is that, where a public or private health
insurance plan reimburses the cost of "medically necessary" treatment, the plan must cover the
cost of gender reassignment even if the usual strict criteria for determining "medical necessity"
do not appear to be satisfied.  These criteria must be relaxed in order to respect the transsexual
individual's self-determination of their gender identity, and to take into account the lack of
scientific certainty in this area.

Judge Ress (from Germany) made this clear in his concurring opinion:  "The term 'necessary' in
relation to gender surgery must therefore be interpreted with a view not only to respecting the
difficult situation of potential transsexuals but also to taking into account the findings of science
... [W]here ... the doctor who examined the person concerned came to the conclusion ... that the
applicant was a transsexual and that transsexuality constituted a disease and ... recommended the
operation, the decision of the applicant should always be the final and decisive factor to indicate
that the operation was necessary. I think that this type of case ... can be clearly distinguished from
other medical cases. ... It is a most intimate and private aspect of a person's life whether to
undergo a gender-reassignment operation, and therefore the courts, in considering the necessity
of an operation should take into account, as one of the decisive factors, the wishes of the
transsexual."

The three dissenting judges disagreed "that there is anything disproportionate about requiring a
person such as the applicant to prove the medical necessity of treatment including irreversible
surgery. ... [The majority's finding,] we fear, means that the medical necessity of surgery would
have to be assumed in every case involving a transsexual. ... The likely consequence indeed
would be the exclusion of such cover from medical insurance policies to the great disadvantage
of transsexuals in general."  However, the majority's reasoning suggests that they would uphold
some criteria for determining "medical necessity," and that they would not permit a blanket
exclusion of gender reassignment from health insurance policies.  _Robert Wintemute_  

State Domestic Partnership Registration Law Does Not Preempt S.F. Anti-Discrimination
Ordinance

The mere fact that the state legislature has established a domestic partner registry does not
preempt the field of legislation pertaining to domestic partnerships, the U.S. Court of Appeals for
the 9th Circuit ruled on July 29.  Under the California Constitution, a community, such as San
Francisco, may require those awarded contracts by the local government to grant employees'
domestic partners benefits equivalent to those given employees' spouses,  even though the state
has also passed legislation regarding domestic partners.  The doctrine of preemption does not
apply. _S.D. Myers, Inc. v.  City & County of San Francisco_, 336 F.3d 1174 (9th Cir. July 29,
2003).  

This was the second time that _Myers_ litigation challenging the city ordinance reached the 9th
Circuit.  In 2001, the court sustained the San Francisco ordinance against assertions that it
violated the U.S. Constitution's "dormant commerce clause," the 14th Amendment's due process
clause, and the California Constitution, and that it was preempted by the Employee Retirement
Income Security Act of 1974 (ERISA). The court remanded the case, however, so that the trial
court (the U.S. District Court for the Northern District of  California) could consider whether the
state's then-recently-enacted Domestic Partnership Law had preempted the city's ordinance.  The
district court held that state law does not  preempt San Francisco's ordinance. Myers appealed.  

S.D. Myers, Inc., an Ohio-based corporation, had bid in 1997 on a  servicing contract for city-
owned electrical transformers located outside of San Francisco within California. Although
Myers was the lowest bidder,  it was denied the contract because it refused to certify a
willingness to comply with Ordinance 12B, requiring that firms provide equivalent  benefits to
domestic partners. Myers contended that compliance was  contrary to its religious and moral
principles, and sued to have the Ordinance declared invalid. Ordinance 12B covers not only a
contractor's operations within the city and county, but also any operations on land outside of San
Francisco if the property is owned or controlled by the city and the contractor's presence at that
location is connected to a contract with the city.

Myers was represented in this appeal by California Advocates for Faith and Freedom, and, in the
earlier case, by the American Center for Law and Justice. Although in the earlier case San
Francisco was joined by the ACLU and Lambda Legal Defense as amici, no amici appeared on
the city's's behalf  in this appeal.)

The only issue in this appeal was whether California Family Code  297 to  299.6, governing
the creation and registration of domestic partnerships,  preempts local S.F. Ordinance 12B. Under
the California Constitution, a locality may make or enforce, within its boundaries, all local, police,
 sanitary, and other ordinances and regulations not in conflict with general laws. A local law
conflicts with a state law if it (1) duplicates a law, or (2) contradicts a law, or (3) enters into an
area fully occupied by state law.

The S.F. ordinance does not "duplicate" state law because it is one type of measure, an anti-
discrimination law, while the state law is another type, a law establishing a registry, that does not
attach any specific rights to registration. The laws serve two different functions; one is
not duplicative of the other, held the court.   For essentially the same reasons, the court held that
Ordinance 12B does not contradict the state's Family Code. The laws have two different purposes..
A state may "fully occupy" an area either expressly or by implication.  Neither type of occupation
occurred here, stated the court. In fact, the state statute expressly provides that a locality may
retain or adopt ordinances, policies, or laws that offer "rights within that jurisdiction" to domestic
partners as defined by state law, or as more broadly defined by local law, or that impose duties
upon third parties (not restricted by jurisdiction) regarding domestic partners, that are in addition
to the rights and duties set out in the state law. Cal. Family Code  299.6(c).

Myers contended that, by including the phrase "within that jurisdiction" in the statute, the state
fully occupied the area of domestic partnership law when an employer operates outside the
jurisdiction of the locality. San Francisco, on the other hand, noted that "within that jurisdiction"
is only attached to "rights," not to "duties"; it contended that it may impose duties upon
contractors wherever located, if the contractors wish to do business with the City. The 9th Circuit
panel agreed with the City's contention, holding that a city may exercise proprietary powers over
property it owns even if that property lies outside the city's corporate boundaries.  The
legislature, furthermore, did not implicitly exercise full occupation of the area, which would be
signaled by, inter alia, (1) complete coverage of the subject matter by state law, or (2) partial
coverage by state law in such a manner as to indicate that regulation of the area is a "paramount
state concern that will not tolerate further additional local  actions." (Citing _Sherwin-Williams
Co. v. City of Los Angeles_, 4 Cal. 4th 893,
 898, 844 P.2d 534, 537, 16 Cal. Rptr. 2d 215, 218 (1993). Neither signal appears in this case. "A
municipality's ability to contract exclusively with businesses that do not discriminate on the basis
of domestic partner status has not been 'fully,' 'completely,' or even 'partially' covered by
 state law." Municipal contracting choices in this area have not been addressed by the
Legislature. 

 The Court of Appeals therefore affirmed the opinion of the district court, rejecting Myer's new
challenge to the ordinance. _Alan Jacobs_

2nd Circuit Sustains Discharge of Pedophile High School Teacher

 On July 16, the U.S. Court of Appeals for the 2nd Circuit affirmed the termination of a New York
City High School teacher based upon his affiliation with the North American Man/Boy Love
Association (NAMBLA).  _Melzer v. Board of Education_, 2003 WL 21660299.  

Paul Melzer had taught high school science for over thirty years at the prestigious Bronx High
School of Science.  In 1968, Melzer obtained tenure.  In 1980, Melzer became a member of
NAMBLA and over the years served in a variety of capacities, including membership in
NAMBLA's steering committee and as NAMBLA's treasurer.  Melzer also co-founded
NAMBLA's publication, the _Bulletin_, contributed articles and served as editor.  While Melzer
was editor of the Bulletin, various articles appeared including "Staying Safe and Happy as a
Man/Boy Lover", and advice articles on how to deal with police, how to store contraband erotica
to escape discovery, and how to keep the specifics of a relationship with an under-age boy secret
from authorities.

The New York City Board of Education first became aware of Melzer's membership in
NAMBLA in 1984 from an anonymous letter received by the school's then-principal.  At that
time, Melzer was interviewed by the Board's office of the Inspector General, but no
administrative action was taken at that time when he denied the accusation.  The investigation of
Melzer was reopened in 1992.  During the course of the reopened investigation in March 1993, a
local television station aired a three-part news story on public school teachers who were members
of NAMBLA.  The news story featured a secretly recorded video of a NAMBLA meeting at
which Melzer could be seen advising a non-tenured employee of the Board of Education to keep
his NAMBLA membership secret until he acquired tenure.

After broadcast of the news story, the Bronx Science Community, including parents and teachers,
had heated discussions concerning Melzer and his participation in NAMBLA.  Although there
was no evidence that Melzer had ever had inappropriate contact with any students at Bronx
Science, parents were concerned about having an admitted pedophile teaching their children.  As
a result, the Board commenced disciplinary proceedings against Melzer and after thirty days of
hearings held over three years, the hearing officer recommended that Melzer be terminated. 
Melzer's termination was upheld by the U.S. District Court for the Eastern District of New York
and the instant appeal followed.

Writing for the court of appeals, Judge Richard Cardamone applied the balancing test established
by the Supreme Court in _Pickering v. Board of Education_, 391 U.S. 563 (1968).  The
_Pickering_ test requires a court to consider the most appropriate possible balance between the
interest of the employee as a citizen in commenting upon matters of public concern, and the
interest of the State, as an employer, in promoting the efficiency of the public services it
performs through its employees.  The balancing test requires a two-step inquiry: first, a court
must determine whether the speech for which the employee was disciplined relates to a matter of
public concern; and second, if so, the balance between free speech concern is made against
efficient public service to ascertain to which the scale tips.  

Generally, the _Pickering_ test has been applied in situations involving speech directed at an
employer.  However, in this instance, Melzer's termination stems from First Amendment
activities occurring outside the workplace and largely unconnected to it.  In addition, the activity
that prompted the Board of Education to fire Melzer was not a specific instance of speech, but an
associational activity of which speech was an essential component.  

Applying the _Pickering_ test, the Court found that the speech at issue, essentially advocacy
concerning pedophilia, was about matters of public concern.  However, even though Melzer's
freedom to associate with and advocate for NAMBLA is protected by the First Amendment, the
court upheld Melzer's termination, finding that the Board of Education demonstrated that
Melzer's association and his degree of active involvement in NAMBLA caused a disruption to
the school's mission and operations justifying his termination.  As a result, without any
allegation that Melzer had ever engaged in any inappropriate behavior with any of the students at
Bronx Science, his mere association with NAMBLA was sufficient to support his termination
from a tenured teaching position.  The thought police are back and running in full force. _Todd
V. Lamb_

2nd Circuit Narrows Application of Vermont Internet Censorship

A unanimous panel of the U.S. Court of Appeals for the 2nd Circuit ruled in _American
Booksellers Foundation v. Dean_, 2003 WL 22016812 (Aug. 27), that the state of Vermont
should be enjoined from applying a statute criminalizing sexually-oriented  communications that
are "harmful to minors" to the kind of internet speech engaged in by the plaintiffs in the case. 
The opinion by Circuit Judge John M. Walker, Jr., thus affirmed most of the conclusions reached
by U.S. District Judge J. Garvan Murtha, but narrowed the remedy, as Murtha had permanently
enjoined all enforcement of the statute.

13 V.S.A. sec. 2802, was enacted in 2000 under the name "An Act Relating to Internet Crimes,"
and built on an existing Vermont statute that penalized the distribution to minors of sexually-
oriented materials that are deemed "harmful to minors." As soon as Gov. Howard Dean signed
the measure into law, this lawsuit was filed, contending that the law violated the 1st Amendment
and the Commerce Clause of the U.S. Constitution.  Being well-advised that the lawsuit was
likely to succeed, in light of the U.S. Supreme Court's ruling in _Reno v. American Civil
Liberties Union_, 521 U.S. 844 (1997), which had struck down a similar federal statute, the
Vermont legislature amended Section 2802 to limit its application to the dissemination of
indecent material to a minor "in the presence of a minor," and created a new section, 2802(a),
applying to the same of material when dissemination occures "outside the presence of the minor"
but the disseminator has "actual knowledge" that the recipient is a minor.  The plaintiffs then
filed an amended complaint attacking the amended statute.  The state argued that the plaintiffs,
none of whom had been prosecuted, lacked standing to challenge the statute, and, on the merits,
that the statute did not violate any constitutional limitations on the state's legislative authority.

The first problem faced by the court was to identify what the statute applied to, since the
language is not perfectly clear.  In challenging standing, the state argued that the statute as
amended applied only to situations where somebody sent a message over the internet to a
recipient that they knew to be a minor, but the court rejected this possibility. "The terms of
Section 2802(a) can be easily read to apply to material placed on a website or shared with an
email or internet discussion group," wrote Judge Walker. "When people post information onto a
website available to the public, they 'distribute' or 'give away' the information. 'Actual
knowledge' that a recipient is a minor is possible not only in cases of two-person email but also
when the disseminator of the material knows that there will be minors among the many people
who visit the website or participate in the discussion group." Walker noted that there is no
authoritative construction of the statute by the Vermont Supreme Court along the lines argued by
the state.

Actually, the only plaintiffs on whose internet websites the court focused attention were the
ACLU of Vermont and the Sexual Health Network (SHN), and the standing issue seems to have
been litigated with reference to their websites.  ACLU of Vermont's website provides a direct
link to the national ACLU website, which includes material potentially subject to the statute on
subjects such as birth control, safe sex practices, gay and lesbian rights, abortion, and sex
education.  Perhaps more to the point, SHN's website contains "information on a range of sex-
related topics," wrote Walker, "including: sexual addiction, advice for making safe sex practices
more erotic, guidelines on the safe practice of bondage sadomasochistic activities, and
information on how those with disabilities can experience sexual pleasure."  One suspects SHN's
website has more of the kind of communication that Vermont legislators sought to prevent
minors from receiving.  Having found that the statute potentially applied to these websites,
Walker concluded that "the choice that the statute presents to plaintiffs   censor their
communications or risk prosecution   plainly presents a 'realist danger' of 'direct injury,'" thus
giving them standing to challenge the constitutionally of the statute.

That said, the 1st Amendment analysis was quite brief, inasmuch as the court found that the 1997
_Reno_ decision essentially decides this case as well.  There was no evidence that Internet
technology has change sufficiently since 1997 to undermine the Supreme Court's reasoning back
then that this kind of a statute presents direct censorship of speech to adults for the sake of
shielding children, thus requiring a general dilution of Internet speech.  Judge Walker conceded
that if the state's argument about the limited reach of the statute was actually correct, then the 1st
Amendment problems presented by the statute would be minimal, but having rejected that
narrow construction, found that the 1st Amendment problems were substantial enough to
invalidate the statute.

In addition, the court found that the statute violates the Commerce Clause.  Under the doctrine of
"dormant Commerce Clause," a state's attempt to regulate interstate commerce or commercial
activity taking place outside its borders is subject to the limitations imposed by the Constitution
having given to the federal government the sole power to regulate commerce between the states. 
Under Supreme Court precedents, the Vermont statute would be evaluated as an attempt by
Vermont to regulate what internet content providers in other states could put on their websites,
even though their only connection with Vermont is that Vermonters can access their websites and
send and receive email from them.  

"A person outside Vermont who posts information on a website or on an electronic discussion
group cannot prevent people in Vermont from accessing the material," Walker wrote. "If
someone in Connecticut posts material for the intended benefit of other people in Connecticut,
that person must assume that someone from Vermont may also view the material.  This means
that those outside Vermont must comply with Section 2802a or risk prosecution by Vermont."
But such attempts by Vermont to control what goes on outside its borders violates a basic
principle of the division of power between the federal and state governments.  Characterizing
regulation of internet content by individual states as "impracticable," Walker wrote that it was
"likely that the internet will soon be seen as falling within the class of subjects that are protected
from State regulation because they 'imperatively demand a single uniform rule,'" quoting from
an 1852 Supreme Court decision that helped to define the dormant Commerce Clause doctrine.

However, having found that the statute violated the Constitution with respect to the websites of
the ACLU of Vermont and SHN, the court of appeals was not willing to go as far as District
Judge Murtha and permanently enjoin all enforcement of the statute.  As Judge Walker had
noted, there were some potential applications of the statute that present no constitutional
problem, most specifically of somebody sending an individual email to a recipient known to be a
minor, containing sexually-oriented material harmful to that minor.  Thus, it struck the appeals
court as prudent to limit the injunctive relief to the particular issues faced by individuals and
entities in the position of the plaintiffs: content providers for websites or internet discussion
groups that might be accessed in Vermont who provide the kind of sexually-oriented content at
issue in this case. "We enjoin enforcement of Section 2802a only as applied to the internet
speech upon which plaintiffs based their suit and direct the district court to modify the injunction
accordingly," concluded Walker.  A.S.L.

9th Circuit Says Changed Story May Not Be Sole Basis to Deny Gay Applicant's Asylum Petition

The U.S. Court of Appeals, 9th Circuit, instructed the Board of Iimmigration Appeals to
reconsider its decision denying the asylum petition of Saul Gregorio Martinez, a gay native of
Guatemala. _Martinez v. Immigration and Naturalization Service_, 2003 WL 21750801 (July 25,
2003) (not officially published).  

Martinez originally stated in his application for asylum that he had been a member of a student-
led political activist group and suffered persecution for his political beliefs, which he feared
would recur should he return to Guatemala.  At the time of his application, he now says, he
feared that if the U.S. Government knew he was gay, he would face persecution in America.  But
once he obtained competent counsel and was advised that he could seek asylum on grounds of
his sexual orientation in light of his past experiences and the situation for gay people in
Guatemala, he changed his story and told the Immigration Judge at his asylum hearing that the
persecution he suffered in his home country was due to his sexual orientation, not his political
beliefs.  

The IJ concluded that Martinez was not credible because the reason given at his hearing was
different from the reason stated in his application.  Martinez appealed.  The Board of
Immigration Appeals stated that it was "not persuaded by respondent's explanations" and denied
the appeal, without any further or more substantive explanation.  

The 9th Circuit panel voted 2-1 to grant Martinez's petition for review, and remanded to the
Board.  The court said: "Because the BIA stated only that it was 'not persuaded by respondent's
explanation' and provided no legitimate, let alone cogent, reason for rejecting Martinez's 'wholly
consistent' misrepresentation, we remand for proceedings consistent with this disposition."
Unfortunately, the court did not chose to expand on the background for this ruling, which
presumably reflects an understanding that second and third world gays who find themselves in
the U.S. confronted with a short deadline to apply for asylum may be so frightened of revealing
their sexual orientation that they fail to put forward this legitimate reason for requesting asylum
in their initial papers, only to learn once they are in the U.S. for a longer period that the INS now
recognizes gays as a distinct social group subject to persecution in many other countries.  Perhaps
the court did not allude to this due to its decision not to authorize publication of the opinion.

Dissenting, Circuit Judge Kleinfeld argued that the IJ had stated a reason for finding Martinez
not credible   the change in his story   and that his attempt to explain away this problem had not
persuaded the Appeals Board. "Martinez twice lied under oath to the INS," said Kleinfeld, who
pointed out that Martinez had "invented a story" about his political persecution, resulting in
"material misstatements of fact" and "gross inconsistencies" in his asylum application.  Kleinfeld
found the IJ's reason for rejecting the application to be "legitimate" and "cogent." A.S.L.

11th Circuit Court of Appeals Questions Justification for Action Against Adult Establishments

 In 1987, Manatee County, Florida, adopted an ordinance that made the locations of Peek-A-Boo
Lounge and Temptations II, (d/b/a "M.S. Entertainment, Inc."), the county's only two licensed
adult dancing establishments, non-conforming. A constitutional challenge in federal court
resulted in a permanent injunction enjoining the county from enforcing the ordinance against
either of the two lounges involved.  In 1998, Manatee County again enacted an ordinance
directed at adult entertainment, Ordinance 98-46, which provided specific physical requirements
for premises used as adult dancing establishments.  Four months later, the county adopted
Ordinance 99-18, which banned public nudity.  Peek-A-Boo joined with Temptations and
challenged the ordinances in the U.S. District Court, which granted summary judgment to
Manatee County, resulting in the current appeal to the 11th Circuit. _Peek-A-Boo Lounge of
Bradenton, Inc. v. Manatee Co._,  2003 WL 21649675 (11th Cir. 2003, July 15, 2003). 

Circuit Judge Rosemary Barkett, writing for a panel of the Court of Appeals, began by 
observing the inconsistent manner in which the Supreme Court has treated "secondary effects"
jurisprudence, and especially the often vague, frequently non-existent 1st Amendment distinction
between zoning ordinances and public nudity ordinances.  The appellants argued that Ordinance
98-46, which imposes requirements on the physical layout of adult dancing establishments and
allows the Sheriff to search such premises without a warrant, violated both the 4th Amendment's
prohibition of unreasonable searches and the 14th Amendment's guarantee of equal protection.
Beyond noting that such was the case, Judge
Barkett did not discuss the merits of those arguments, but instead examined the 1st Amendment
implications of the two ordinances, in turn, beginning with Ordinance 98-46.

Although the regulations do not explicitly mention exotic dance establishments, or any other 
forms of adult entertainment, Judge Barkett recognized that the regulations "apply only to those
businesses purveying a form of sexually explicit speech," and therefore demand scrutiny under
the 1st Amendment.  Interestingly, having acknowledged the perennial legal fiction wherein these
types of laws address either content or the secondary effects thereof, Barkett elected not to
explicitly determine whether Ordinance 98-46 is content-based or content-neutral.  Instead, she
circumvented the question by declaring that "secondary effects zoning ordinances are subject to
intermediate scrutiny _even though_ they were content- based." With a nod to the deep
controversy surrounding the debate over "secondary effects" analyses of 1st Amendment
questions, Barkett proceeded with an ostensible
secondary effects analysis of Ordinance 98-46.    In considering the "secondary effects" of nude
dancing, Barkett  held that there are three questions the 1st Amendment demands be answered,
but that only one of those questions need be addressed here: is Ordinance 98-46 "narrowly
tailored" to serve the governmental interest at issue while nonetheless allowing for reasonable
alternative avenues of expression? The answer,
she found, is that because "the County failed to rely on any evidence linking the passage of
Ordinance 98-46 to the prevention of secondary effects, it cannot be said that the County has
satisfied even _Renton's_  weak condition that it rely on evidence 'reasonably believed to be
relevant' to the problem of secondary effects."   Against the county's scanty, and in the view of
the Court of Appeals,  utterly insufficient evidence, the appellants produced volumes of evidence
directly contradicting the assertions as to the negative secondary effects.  Moreover, the
appellants' evidence spoke directly to the specific establishments in question, whereas Manatee
County's evidence was based on generalities culled from neighboring counties.  The appellants
introduced into evidence satisfactory health and safety reports issued by the Florida Department
of Health and the local fire department, reports showing lower crime rates near appellants'
businesses than in surrounding areas, sales data revealing an increase in property values of
property located near the appellants' businesses. There was even, with palpable irony, an award
given in 1996 to the Peek-A-Boo Lounge by the Manatee County Sheriff for "outstanding
contribution to the community."  The court reversed without deciding, based on the evidence,
thus shifting the burden to the county to prove that the zoning ordinance was in fact justified due
to "secondary effects." In reversing, Barkett made it clear that the evidentiary burden is "not a
rigorous one," and that municipalities have "wide latitude" in creating legislation to deal with
adult entertainment. 

The court next considered Ordinance 99-46, a general prohibition on  public nudity. Quoting a 
recent Supreme Court decision by Justice Sandra Day O'Connor, Barkett characterized
Manatee's public nudity ordinance as one that "'does not target public nudity that contains an
erotic message,' but rather 'bans all public nudity, regardless of whether that nudity is
accompanied by expressive activity.'" Rather than dwell on the question of whether the
expression of nude dancing merits the protection of the 1st Amendment, Barkett adopted a four-
part [_O'Brien_] test to determine whether the governmental regulation was sufficiently justified
in this instance.  The district court swiftly determined that the first part of the test was easily
satisfied, in that Manatee County was entitled, under its police powers, to regulate nudity.  The
third part of the _O'Brien_  test requires that the government's interest in regulation be unrelated
to the expression of free speech. Because Manatee's ban included all public nudity, and not just
nudity at adult entertainment centers, the court found that this condition was also "clearly"
satisfied.  Justice Barkett spent considerable time examining the second and fourth  prongs of the
_O'Brien_  test, ultimately finding that Manatee County's public nudity ordinance failed both.
This second part of the test requires that the governmental regulation, i.e., Ordinance 99-18,
further a "substantial interest in preventing secondary effects associated with adult
entertainment."  The problem, Barkett found, was that once again the county had failed to
produce sufficient evidence. As with the zoning ordinance, the appellants presented substantial
evidence that directly refuted the "shoddy" facts asserted by the county. Barkett was particularly
displeased that Manatee County had "expressly relied" on a seemingly unfounded determination
that public nudity "increases incidents of prostitution, sexual assaults   [and] other criminal
activity," despite the fact that their ordinance banned public nudity "across the board," and not
just in adult establishments, where, presumably, public nudity _would_  increase such incidents.
In Judge Barkett's words, "we have before us an ordinance adopted only on the basis of
speculative findings and outdated, foreign studies whose relevance to local conditions appears
questionable in light of current data   suggesting that plaintiffs' businesses, which have
operated continuously in Manatee County for over fifteen years, do not cause secondary effects." 

Having found sufficient cause to remand, the court nonetheless  went on to explore the fourth
prong of the _O'Brien_  test, which may as yet come to be known as the "G- string" test. This
test requires that "any incidental restriction on alleged First Amendment freedoms be no greater
than is essential to further the government's interest." Citing recent Supreme Court cases which
held that "pasties and a G-string are sufficient to distinguish a state of lawful dress from unlawful
nudity," Judge Barkett held that Ordinance 99-18 was too broad, and impinged the 1st
Amendment's protection of the "capacity to convey the dancer's erotic message." Seemingly, had
Manatee County not banned G-strings and pasties, there would have been no problem, as the
Supreme Court has already allowed such bans, in that their effect on the freedom of expression
overall is "_de minimis._"  Ordinance 99-18, however, banned all forms of public nudity, and,
just to be clear, expressly banned the wearing of "G-strings, T-backs, dental floss, and thongs."
It's not clear if other oral hygiene products were also banned, but the ordinance did include
within the scope of "nudity" any "opaque swimsuit or lingerie covering less than one-third of the
buttocks or one-fourth of the female breast."  After reversing summary judgment, the case was
remanded to the District Court, where "the County's legislative judgment should be upheld
provided that the County can show that its judgment is still supported by credible evidence, upon
which the County reasonably relies." 
Presumably, in that court, the appellants will revive their arguments based on the 4th, 5th, and 14th
Amendments, as well as the Contract Clause. Those arguments were noted, but not discussed by
the Court of Appeals. _Joseph Griffin_

U.S. District Court Rejects Federal Discrimination Claim Against Foster Care Agency and N.Y.
Courts

In _Baca v. City of New York_, 2003 WL 21638211 (S.D.N.Y. July 11), summary judgment was
granted against Edward Baca, "an HIV-positive homosexual man" who claimed discrimination
based on sexual orientation by the city, a foster care agency under contract with the city, and
several officers of the city and officers and employees of the agency with regard to their oversight
of Baca's activities as a foster parent for three children. Despite the fact that Judge Constance
Baker Motley initially stated that he served "admirably" as a foster parent, no basis for a valid
claim was found.

Baca had become involved in the lives of the first of the children in question in 1992, as he began
offering assistance to the father of one of the children and the child's mother. When the
employee was incarcerated in 1996, Baca invited the mother to move into his three-family house
on West 110 Street. Over time, Baca became more and more involved in the lives of the mother
and her children (there were eventually three boys). He developed a close relationship with them,
and contacted the Administration for Children's Services when he began to suspect abuse. When
the children were taken from the custody of the mother, he was one of several who applied for
custody as a foster parent in 1998, which was granted.

Once custody was granted, Baca had to deal with a caseworker assigned by the agency under
contract with the city to supervise foster care arrangements. From the beginning, the caseworker,
Joy Felix, questioned how living with "a homosexual" would affect the children. The case
describes a pattern of non-cooperation and obstruction by the agency in obtaining required
training, documentation and funds for the care of the children. On home visits, Felix asked these
very young boys if Baca brought men home, whether he had sex in front of them and whether he 
molested them. Charges of molesting the youngest child were made against Baca, which were
later determined to be unfounded. Three "court-ordered investigations" (COI's)were undertaken,
in which various comments by investigating case workers disparaging Baca on the basis of his
sexual orientation were recorded. The maternal grandmother, who was initially denied custody
because she had been living with a drug addict, filed for custody, which was eventually granted
by the Family Court.

Baca sued in federal court to challenge the grant of custody to the maternal grandmother, and
raised claims of discrimination based on sexual orientation and denial of civil rights under 42
U.S.C. secs. 1983 et. seq. and under the New York City Human Rights law. The defendants
moved for summary judgment, which was granted as to all claims except for the claims under the
Human Rights Law, which were dismissed without prejudice.

Judge Motley refused to review the actions of the Family Court regarding the grant of custody to
the maternal grandmother because such a review would be beyond the jurisdiction of a federal
district court. She granted summary judgment for the defendants as to the federal civil rights
claims because, though he was treated badly by the foster care agency in almost every way
possible, Baca could make no showing that he was treated any differently or worse than a non-
homosexual foster parent.  Baca's claims that the state court had been biased in considering the
disparaging comment of the caseworkers in the COI's was rejected because the comments were
deemed relevant evidence for the trial court to consider in deciding who would be the most
appropriate guardian of the children. To the extent that the federal court addressed the question
of whether Baca encountered discrimination in his treatment by the defendants and the state
courts, it determined in this decision that there were independent factual grounds for awarding
custody to the maternal grandmother that were unrelated to Baca's sexual orientation. The court
refused to exercise pendent jurisdiction over Baca's claim under the NYC Human Rights Law
because this claim could be better handled in the state courts in what was deemed an early stage
of the pending litigation. _Steve Kolodny_

Federal Court Accepts 8th Amendment Claim by Transsexual Inmate

Rejecting a contrary recommendation from a federal magistrate judge, U.S. District Judge
Lawrence E. Kahn, whose court is in Albany, ruled in _Brooks v. Berg_, 2003 WL 21649735
(July 15) that a state prisoner at Clinton Correctional Facility in Dannemora is entitled to have
medical attention for her claimed gender identity disorder (GID).  Kahn rejected a prison policy
of refusing to provide treatment to persons whose GID was not diagnosed prior to their
incarceration.

Mark Brooks, who prefers to be known as Jessica Lewis, was aware since childhood of her
female identity, but it was not until she was incarcerated that she first heard about gender identity
disorder and was able to read up on the subject.  Having become convinced that she is a
transsexual and that the disorder she was suffering required treatment, she began to write letters
to various prison officials.   Nobody would answer.  Lewis wrote to several prison officials and
the mental health unit at the prison, but never received a response to any of her letters.  The
letters all requested that she undergo medical evaluation and receive appropriate treatment.

Lewis only turned to the court after all her attempts to receive medical treatment through the
prison system had failed.  From Judge Kahn's summary of the state's position on this case, it
appears that Lewis's requests were being misinterpreted all up and down the line, because, even
in front of Judge Kahn, the state was arguing that it was not obligated to provide gender
reassignment surgery for Lewis, but, as Kahn made clear, that is not what this case is about.

Lewis argued that her 8th Amendment right to be protected from cruel or unusual punishment was
being violated by the failure of the prison system to provide any medical attention.  Judge Kahn
found significant merit to this claim, as research showed that many federal courts, including the
Supreme Court, have now concluded that gender identity disorder can be a serious medical
condition, and it is reasonably well established that the 8th Amendment requires that prisons
provide medical treatment for serious medical conditions of inmates.

On the other hand, there is no 8th Amendment violation merely because an inmate and prison
officials disagree about what treatment is appropriate, and Judge Kahn pointed out that prior
federal prison cases have not established that every transsexual prisoner who desires it is entitled
to have sex-reassignment surgery at the state's expense.  The case precedents are more nuanced
than that, noting that for some individuals psychotherapy is sufficient to deal with GID, while
others can make do with hormone therapy.  If a competent doctor determined that Lewis suffers
from GID but that the suffering can be adequately ameliorated by measures short of surgery,
Lewis would have no grounds for a constitutional claim.  What is significant, however, is that the
decision of what treatment to provide must be made by competent medical authorities based on
an evaluation of the individual case, and not on the basis of an inflexible general policy that does
not take account of individual needs.

Judge Kahn also faced the question of whether the list of individual defendants named by Lewis
in her federal complaint could be held liable for violating her constitutional rights.   Only a
government official who has personally participated in making a decision that is later found to be
unconstitutional can be held liable, and then only if the rights they are charged with violating
were previously "well established" through court decisions.  In this case, Kahn ruled that it is not
enough to show that a letter was sent to an official and the official did not answer.  There had to
be some affirmative action violating Lewis's rights in order for any individual to be liable for
damages, so many of the officials to whom Lewis had written were off the hook.

In this case, Kahn focused on Stan Berg, the supervisor of the unit in which Lewis was housed,
who received letters from Lewis dated March 1 and April 12, 1999.  The court record indicated
that Berg was aware of Lewis' contention that she suffered from GID before she sent her very
first letter in August 1998 to a prison official she mistakenly believed was a psychologist or
psychiatrist, but who was only a counselor.  More significantly, Berg had apparently directed an
underling to arrange for Lewis to get a medical evaluation, but never followed up to see that it
was done, and it wasn't.  

Furthermore, in company with other prison officials on the receiving end of Lewis's letters, Berg
misconstrued the letter to be a demand for a sex-change operation rather than a request for
medical evaluation and appropriate treatment, and Berg had finally responded negatively on the
ground of a prison policy against providing sex-change operations to inmates.   

Since Lewis never had a medical evaluation, Judge Kahn concluded that she was being deprived
of medical treatment for what may be a serious medical condition.  Furthermore, Kahn concluded
that a reasonable prison official on the receiving end of Lewis's letters in 1998 and 1999 would
have reason to know that she was entitled to have a medical evaluation and appropriate
treatment. "Defendants do not contest Plaintiff's claim that he was never treated for GID
notwithstanding numerous requests for treatment," wrote Kahn. "In addition, Defendants have
not provided the Court with any evidence showing that the decision to refuse Plaintiff treatment
was based on sound medical judgment.  Finally, Defendants have failed to submit any evidence
that they were not aware that Plaintiff's health could be jeopardized if treatment was
refused.M170>  (Throughout the decision, Kahn referred to the plaintiff as "he," stating in a
footnote that since the plaintiff had not received any treatment or surgery, Kahn would refer to
the plaintiff in the masculine form.)

Kahn rejected the argument that individual prison officials should be immune from suit because
they were just following an established prison policy, pointing out that the policy itself was of
questionable constitutionality, and that no prison policy mandated denial of all treatment for
GID. "This blanket denial of medical treatment is contrary to a decided body of case law," wrote
Kahn. "Prisons must provide inmates with serious medical needs some treatment based on sound
medical judgment.  There is no exception to this rule for serious medical needs that are first
diagnosed in prison."  So when Lewis first brought up the issue, she was entitled to a medical
examination to determine whether she suffered from GID.  

"Prison officials cannot deny transsexual inmates all medical treatment simply by referring to a
prison policy which makes a seemingly arbitrary distinction between inmates who were and were
not diagnosed with GID prior to incarceration," Kahn observed, pointing out that prison officials
would hardly contend that they could deny treatment for diabetes, schizophrenia, or any other
"serious medical need" simply because it had not been diagnosed before the inmate entered the
prison system.  A.S.L.

California Supreme Court Reverses Conviction for Murdering Gay Elder

The Supreme Court of California, unanimously finding an intent by police to obtain
impeachment evidence in deliberate violation of a custodial suspect's 14th Amendment due
process rights, reversed the jury conviction of Kenneth Ray Neal, 18,  for the second degree
murder of Donald Collins, 69, a gay man.  The court found that Neal's confessions were
involuntary and inadmissible for any purpose. _People v. Neal_, 2003 WL 21639167 (July 14).

Neal lived with Collins on the date of Collins' death. Collins had befriended Neal years earlier,
while Collins was a child care worker and Neal a resident at a group home for boys. Neal
testified that Collins bought him alcohol and drugs, and hid him after helping him escape the
group home. Collins referred to Neal as his grandson, gave him keys to his apartment and car,
and, weeks prior to the murder, had wired Neal travel money to return to the apartment. On April
3, 1999, Neal strangled the seated Collins to death from behind.  Both had drunk alcohol, but
neither was intoxicated. A prior argument over television may have triggered Neal's attack. An
incriminating note, bearing a fingerprint that was not Neal's, signed "Your foster son, J.A.," was
attributed to Neal by expert testimony.  J.A. was a group home youth who lived with Collins
until shortly before Neal moved in, and "was a liar and a thief [and] jealous of [Neal]."  

Neal made three taped statements while in police custody, and testified at trial. The statements
were obtained in violation of Neal's 14th Amendment rights, and the testimony and statements
are inconsistent regarding any sexual motive for the killing. Neal was first interviewed as a
witness at a police station by Detective Martin.  When Martin noted marks on Neal's hands, Neal
claimed that they were days old, and Martin challenged that they looked fresh. Neal then stated
"I'm ready to go right now." Rather than release Neal, Martin gave him Miranda warnings and
pressed on with questioning. Martin communicated his belief that Neal was lying and had killed
Collins. Neal denied both, stated "I am not saying nothing," and invoked his right to counsel nine
times. Martin later admitted that he intentionally continued interrogation in deliberate violation
of Miranda, knowing that statements obtained would be inadmissible for the prosecution's direct
case, but applying a "useful tool" taught by Sergeant Lomeli to garner impeachment evidence.
The court's opinion by Chief Justice George (with Justice Baxter concurring separately), and
California Attorneys for Criminal Justice as Amicus Curiae, decried the apparent "widespread
official encouragement" of police use of this "tool."

Martin then arrested Neal.  Neal answered negatively when Martin asked if his relationship with
Collins was sexual.  Martin played upon Neal's sense of guilt and friendship towards Collins,
threatened "the system is going to stick it to you as hard as they can," and promised to leave Neal
"closer to home" than "Timbuktu" if Neal confessed. Neal was not given food, drink, or counsel,
and was placed in a cell without toilet or sink. He was not taken to the bathroom or provided
with water until the next morning, when he requested another interview with Martin because he
felt guilty and thought that Martin would be able to help him. Martin again recited Miranda
warnings, and promised Neal cigarettes and a letter to his mother. Neal then confessed to Collins'
murder, stating, with credible emotion and detail, that he'd been trying to scare Collins because
"he'd raise his voice ... a lot ... I just got fed up ...snapped ... spur-of-the-moment."  Martin again
asked if "any sexual thing" caused Collins' death. Neal replied that although Collins was gay, he
had never made any sexual advances, and, that if he had, Neal would have "whooped his ass,"
but not killed him. 

Later that day, Martin re-initiated questioning Neal, reminding him of the prior Miranda warning.
At this third interview, Neal stated that, although Collins had never before made any sexual
advances, in the week prior to the killing Neal awoke on two occasions to find Collins trying to
touch his penis while he slept. At trial Neal testified that he was sleeping face down and fully
clothed on Collins' bed when he "awoke with a start to find Collins lying on top of him, pulling
at his pants in an attempt to forcibly sodomize him." Tthe court's related Neal's statement:
"Defendant and Collins struggled violently on the bed. Defendant finally broke free and 'cussed'
at Collins, and Collins apologized. Collins then sat down in his easy chair... Within two or three
minutes, still angry at the attack and remembering Collins's two recent unwelcome attempts to
touch his penis, defendant strangled Collins."  Explaining the inconsistency between his
testimony and his confessions to Martin, Neal stated "I was just telling [Martin] anything he
wanted to hear so he'd ... leave me alone" and that he did not tell Martin about Collins's attempt
to forcibly sodomize him, even though he told him about Collins's two recent attempts to touch
his penis, for fear of being thought homosexual. On cross-examination, Neal admitted that he had
left Collins's bed as it was. The day after Collins was killed, the bed was found "undisturbed, as
though no one had lain upon it."

The Supreme Court examined the circumstances surrounding Neal's initiation of the second
interview and his confessions, and concluded that the confessions were inadmissible even for
impeachment, because they were made involuntarily.  The circumstances included Neal's youth,
inexperience, minimal education, low intelligence, history of neglect or abuse, incommunicado
confinement for more than 24 hours without food, Detective Martin's threats and promises, and
especially the fact that Detective Martin continued the first interrogation in deliberate violation of
Miranda. The court found that Martin's conduct clearly communicated to Neal that Martin
"would not honor [his] right[s] to silence or ... counsel until [he] confessed," and the harshness of
his detention without bathroom or water "could only have increased his feelings of helplessness."
Although the court found enough evidence to support the jury verdict absent the confessions, it
could not conclude that the People proved that the erroneous admission of the confessions was
harmless beyond a reasonable doubt, because the confessions were the "centerpiece of the
prosecution's case." The court distinguished Neal's case from _Peevey_, 17 Cal.4th 1184 (1998)
(officer's intentional misconduct of continuing interrogation despite suspect's right-to-counsel
invocation did not render resulting statement inadmissible for impeachment purposes), and held
that, at any retrial, Neal's confessions would be inadmissible for any purpose. _Mark Major_

Lewdness Arrests Lead to Disqualification for Realty License

A unanimous three-judge panel of the California Court of Appeal, 3rd District, has upheld a
decision by the state's Department of Real Estate to deny a realtor's license to Fred Harden, who
had been ordered to register as a sex offender after two convictions for "lewd conduct in a public
place" based on his soliciting sex from male undercover police officers in public restrooms.  The
court's opinion in _Harden v. Zinnemann_, 2003 WL 21802259, which will not be officially
published, was announced in August 6.

Section 10177 of the California Business and Professional Code authorizes the commissioner of
the real estate department to deny a license to anybody who has "entered a plea of guilty or nolo
contendere to, or been found guilty of, or been convicted of, a felony or a crime involving moral
turpitude."  The commissioner's authority is discretionary, and is not supposed to be exercised
unless the crime substantially relates to the qualifications, functions, or duties of a real 
estate salesperson.

Harden's convictions were based on similar incidents that occurred on November 18, 1996, and
May 19, 1997, as described in the court of appeal's opinion by Judge Nicholson.  

In the first incident, at Pleasanton Sports Park, Harden approached a plainclothes police officer
who was in a parked car near a restroom and playground.  At the time, two children were 
playing in the playground.  Harden groped his clothed crotch and engaged the officer in
conversation.  The officer suggested they go into the "bathroom," Harden agreed, exposed his
penis to the officer in the bathroom, and was arrested.  The Alameda County 
Municipal Court placed him on three years probation and ordered him to avoid Pleasanton Sports
Park.

Just three months later, Harden was arrested again, this time when he exposed himself to a
plainclothes police officer in a restroom in Hillcrest Park in Concord.  (The officer had followed
Harden into the restroom after Harden had reportedly stared at the officer, who was sitting on the
lawn next to the restroom.)  As he was being taken away to the police station, he reportedly said,
"I know I've got a problem.  I've been arrested for this before."  The Contra Costa Municipal
Court received his plea of "no contest," imposed an additional probation term and counseling
requirement, and ordered him to register as a sex offender.

In February 2001, Harden applied for a license to sell real estate.  The real estate department did
their routine criminal record check and turned up his past record, and a deputy commissioner
informed him that his application would be denied.  Harden was given a hearing before an
administrative law judge.  At the hearing, he testified that he had gone through a difficult divorce
in 1991 and had lost his business to bankruptcy.  He claimed to have been emotionally
distraught, and to have gotten counseling and tried to put his life together.  However, he offered
no expert testimony to support any of these assertions, such as testimony from a counselor,
psychologist or psychiatrist. Nonetheless, the administrative judge issued a decision finding that
the department failed to show that Harden's convictions were substantially related to the
qualifications, functions, and duties of a real estate salesperson, and recommended that he be
issued the license.

However, the commissioner, Paula Reddish Zinnemann, notified Harden that she would make an
independent review of the record before deciding on this recommendation, and she decided to
back up her deputy commissioner.  In a written decision quoted by the court, she focused on a
real estate salesperson's access to house keys, and potential access to "unsupervised children." 
She also cited the recency of his convictions, the second conviction having occurred while he
was on probation for the first, and the lack of expert testimony about rehabilitation. 

Harden filed a petition with the Superior Court, seeking an order that the commissioner issue him
the license.  Harden attacked the fairness of depriving him of a real estate license under these
circumstances, claiming that he had not been accused or convicted of any offense regarding
children and that the commissioner's decision was based on homophobic stereotypes about gay
child molesters.  The superior court judge essentially agreed with the administrative judge (and
Harden).  Although there was no dispute that Harden's offenses involve moral turpitude as that 
concept is defined in California, the court agreed that no substantial relationship had been shown
between the offenses and the job of a real estate salesperson.   The judge specifically found that
there was no indication Harden engaged in any improper conduct towards children, and that the
hearing record provided no support for any inference that he would engage in lewd conduct while
at work.  Thus, the trial judge concluded that the commissioner had "abused her discretion" in
denying him the license.

This time the commissioner appealed, and won a reversal from the 3rd District Court of Appeal,
which found that the record was sufficient to sustain Commissioner Zinnemann's findings.  

Wrote Judge Nicholson, "As shown by Harden's convictions, he has solicited lewd acts in public
parks, where children congregate.  During one such incident, children were nearby.  Furthermore,
the court order that he register as a sex offender conclusively establishes he committed the
second offense 'as a result of sexual compulsion or for purposes of sexual 
gratification.'  As the commissioner noted, a person licensed to sell real estate has access to
people's homes via lock boxes and other means of entry.  Based on his former conduct, it cannot
be said Harden will not use this opportunity, under the right circumstances, to engage in lewd
conduct.  The commissioner's concern for the sanctity of the home and for unsupervised (and, 
in our view, even supervised) children is valid."

Nicholson also criticized Harden's failure to present any expert testimony at the administrative
hearing, providing no basis, in the court's view, for concluding that rehabilitation had helped him
overcome his compulsion to seek sex in public places.  The court did not find convincing the
argument that his criminal record has been clean since the second arrest as proof that he would
not cause further trouble.  Harden may have also made a tactical mistake by trying to paint  his
case as a gay rights case, contending that the commissioner was basing her decision on
stereotypes of gays as child molesters.  This provoked Nicholson to comment, "Contrary to
Harden's attempt to characterize this argument as discrimination against homosexuals, the
Department's argument is well-taken.  Engaging in lewd conduct in a public place, especially a
place available to children, is despicable and threatens the innocence of nearby children,
regardless of the sexual proclivities of the person engaging in the conduct."

This last comment was a bit too much for one of the other appellate judges.  Judge Robie,
concuring in the result, did not sign Nicholson's opinion. "I write separately to emphasize that
Harden's sexuality should have no bearing on this court's decision," said Robie. "There is
nothing in the record to support the inference in the majority opinion that Harden is somehow a
danger or threat to children."  However, Robie agreed that the commissioner's decision should be
upheld, saying she had "acted within the bounds of reason, . . . particularly since Harden
consistently has sought to deny culpability for these offenses and show any real rehabiliation."

One wonders whether the commissioner (and perhaps Judge Nicholson) was engaging in the
fantasy, popular among gay porn producers, of the randy gay real estate agent who ends up
having sex with his customers while showing them houses?  A.S.L.

Minnesota Appeals Court Rejects Gay Brooklyn Man's Discrimination Claim Against Northwest
Airlines

Affirming a summary judgment ruling, the Minnesota Court of Appeals ruled on Aug. 26 that
allowing a jury to consider Michael Harrington's claim that he was shunned by homophobic
flight attendants on a Northwest Airlines flight from Los Angeles to Memphis would be "purely
speculative." _Harrington v. Northwest Airlines, Inc._, 2003 WL 22016032 (not officially
published).

Harrington was a first-class passenger on Flight 552, seated by the window in the last row of first
class.  He testified that prior to take-off he was chatting with the man in the aisle seat and
casually mentioned that he was gay and had a husband.  At the time, a flight attendant was
serving a passenger in the row across the aisle.  Harrington testified that the flight attendant was
turned away from him and showed no reaction to his statement.  He also testified at his
deposition that he is "a 'flamboyant' gay, meaning that he gestures with his hands when
speaking, sits with his legs crossed, holds his hand in a downward position from the wrist, and
wears tight shirts and pants." Harrington stated that this was the only time he said anything about
being gay.

Harrington testified that the flight attendants served drinks in first-class prior to take off but
ignored him, offering drinks to all the other passengers.  He testified that he then specifically
requested a drink but was ignored by the flight attendant, who "did not change his facial
expression or otherwise react to Harrington's request." Harrington also testified that when the
flight attendants came around later during his flight to offer crackers and cookies to first class
passengers, they did not offer anything to Harrington, and he "didn't even bother" to ask for
anything.

The trial judge granted the airline's motion to dismiss Harrington's discrimination claim.  Since
the flight originated in California, the court decided the case by reference to California's Unruh
Civil Rights Law, which has been construed by California courts to forbid discrimination on the
basis of sexual orientation by places of public accommodation.  The trial judge found that the
evidence presented was "insufficient to prove that the flight attendants knew that Harrington is
gay; and even if the evidence were sufficient to support a finding that the flight attendants
believed that Harrington is gay, the evidence was insufficient to prove a link between his sexual
orientation and the alleged poor service."

Writing for the court of appeals, Judge Randolph W. Peterson found no reason to disagree with
the trial court.  He noted that on appeal Harrington had alleged an additional item of
discrimination: everybody else in first class was served a full bacon-and-eggs breakfast, but he
was given only a bagel, but that in his deposition, Harrington had specifically testified that the
drinks and crackers incidents were the only instances of discrimination he was alleging.  The
judge observed that under established precedents, the plaintiff must not only show that he is a
member of a "protected class" to raise an inference of discrimination as part of his prima facie
case, but must also show that the defendant believed him to be a member of the protected class. 
Peterson agreed with the trial judge that Harrington's allegations were insufficient for this
purpose, approving the trial judge's statement that presenting the issue to the jury based on
Harrington's allegations about his own manner of dress and gesture "would not be an effort to
have a jury make a reasonable inference from evidence, but rather an invitation to engage in
stereotyping."

Peterson also noted that at his deposition, "Harrington testified that none of the flight attendants
made any statements or gestures or indicated in any manner other than ignoring him that they
disliked him.  This evidence is not sufficiently probative to permit reasonable persons to
conclude that the flight attendants ignored Harrington because he is gay.  Harrington argues that
the flight attendants must have been homophobic, but no evidence in the record supports that
argument."

Harrington, a resident of Brooklyn, N.Y., represented himself pro se in the litigation.  A.S.L. 

Ohio Appeals Court Sustains Conviction of Gay Man Despite Trial Errors

In a case that bears striking resemblance to the sex-panic convictions of child care workers, the
Court of Appeals of Ohio upheld the conviction of Mark Swartsell on two counts of rape and two
counts of assault based on the uncorroborated testimony of two mentally impaired young men,
despite prejudicial errors on admission of evidence. _State v. Swartsell_, 2003 WL 21998619
(Aug. 25, 2003).  Swartsell was sentenced to concurrent ten-year terms for rape and concurrent 6-
month terms for assault.  One wonders whether the court designated this opinion as unpublished
because the judges knew that their ruling is subject to severe criticism as an example of potential
judicial homophobia.

The defendant was employed by Innovative Support Services, which contracted with the Butler
County Board of Mental Retardation and Development Disabilities to provide residential support
services to clients of the agency.  Swartsell was the direct supervisor of two attendants, Larry
Strong and David Glaub, who worked at a residential treatment facility.  On October 29, one of
the clients at the facility, 19-year-old David B., who has an IQ below 70, told Larry Strong that
"Mark stuck it [his penis] in his butt," according to Strong's testimony.  Strong also testified that
Michael H, age 27 and also having an IQ below 70, told him that "Mark stuck it [his penis] in his
mouth and it tasted bad." Strong told Michael H. to report this to his teacher, Virginia Lester. 
Michael repeated his story to Lester the next day.  She testified that he appeared very upset and
disturbed, and told her, "Mark put his dick in my mouth." Lester took Michael H to the school
nurse, who reported the matter to Childrens Services.  A police detective then interviewed David
B. and Michael H., and then confronted Swartsell, who denied the allegations.  The Butler
County grand jury indicted Swartsell on three counts of rape, two counts of assault, and two
counts of domestic violence, but the state did not prosecute on the domestic violence charges.

At trial, there was litigation over whether the victims were qualified to testify, in light of their
mental disabilities.  The trial judge concluded that they were competent after some quizzing
during which both of them were able to provide the court with various kinds of routine
information, although each of them showed confusion about some of the questions.  When
questioned about their understanding of what it means to tell the truth, both referred to God. 
This was enough to satisfy the trial judge, evidently, and on appeal the court found no abuse of
discretion, refusing to second-guess the trial judge's conclusions.

Swartsell testified in his own defense, denying the allegations of the indictment.  Then the
prosecutor asked him if he is a "homosexual." Swartsell's lawyer objected to the question,
arguing that there was no evidence that homosexuals are more likely to commit anal rape of
males.  The trial court overruled the objection and directed Swartsell to answer the question,
which he did, affirmatively.  During closing arguments, the prosecutor stated to the jury: "The
allegation of sex involved is male on male.  That in itself, to a large extent, is not normal.  Some
reject it entirely.  And we're not gonna pass judgment as far as moral issues, but in a position of
trust. . . he apparently did allow himself to take advantage of two disabled, mentally retarded
individuals."  

The prosecutor also elicited hearsay testimony from Larry Strong and from the school nurse
about statements Michael H. had made concerning sexual contact with Swartsell, to which
Swartsell's attorney apparently did not object.

On appeal, Swartsell argued that the result was improperly prejudiced by the testimony and
argument based on his sexual orientation and by the hearsay evidence.  He also argued that the
verdict was not supported by the evidence, and that he had received ineffective assistance of
counsel.

The court actually agreed with Swartsell that the prosecutor should not have been allowed to ask
him about his sexual orientation or to base any of the closing argument on the fact that Swartsell
is gay.  Judge Powell wrote: "The prosecution used appellant's sexual orientation for exactly the
purpose prohibited by the Revised Code and Rules of Evidence, to show action in conformity
therewith.  We fail to see how evidence of appellant's sexual orientation falls within any of the
exceptions. . .  Furthermore, we fail to see how the probative value of appellant's sexual
orientation was not substantially outweighed by its prejudicial nature.  The trial court erred in
permitting evidence to appellant's status as a homosexual."

However, this was no help to Swartsell, since the court concluded that the error was harmless,
since "Michael H.'s testimony, if believed by the jury, was sufficient to exclude any reasonable
probability that the admission of the statement at issue contributed to appellant's conviction. 
Michael H. testified that appellant 'stuck his dick in my mouth and it tasted bad.'  Furthermore,
Michael H. testified that appellant 'hit me in the face' and then he 'put his dick in my butt.'" All
of the other evidence relevant to the ultimate issues in the case was hearsay, based on what David
B. and Michael H. allegedly said to Strong and the police investigator, and what Michael H.
allegedly said to the nurse.  Yet the court concluded: "In light of all the other evidence adduced at
trial, we cannot hold the admitted statement regarding appellant's homosexuality prejudiced the
defense so as to constitute reversible error." Similarly, although all the testimonial evidence was
either hearsay or the uncorroborated statements of the two mentally retarded young men, the
court rejected Swartsell's argument that the verdict was against the manifest weight of the
evidence and insufficient to convict.  It is well to remember in thinking about this that the burden
on the state to obtain a conviction is proof beyond reasonable doubt.

As usual, it is hard to know how to evaluate this case on the basis solely of the court's
unpublished opinion.  Is it an instance of a gay man being railroaded based on unreliable
testimony and improper tactics by the prosecutor, or is Swartsell actually guilty of taking
advantage of two young men under his care who were not capable of resisting or truly consenting
to sexual advances?  It might be either, but the court's analysis, especially of the issue of
prejudical testimony and argument by the prosecutor about the defendant's sexual orientation,
hardly gives one confidence about the soundness of the verdict.  A.S.L.

Federal Court Finds Boy Scouts A Religious Institution, and Voids City Park Lease on Federal
and State Constitutional Establish Clause Grounds

In an extraordinary decision dealing a substantial setback to the Boy Scouts of America in their
campaign to maintain an anti-gay membership policy, U.S. District Judge Napoleon A. Jones, Jr.
(S.D.Cal.) has ruled that the BSA is a religious organization and that a $1-a-year lease by which
the city of San Diego rented substantial parkland facilities to the Desert-Pacific Council (DPC)
violates the Establishment Clause of the 1st Amendment of the U.S. Constitution. _Barnes-
Wallace v. Boy Scouts of America_, 2003 WL 2184996 (July 31, 2003).  However, Judge Jones
found that on the current state of the record he could not award su mmary judgment on the
Plaintiff's 14th Amendment Equal Protection claim, due to factual issues about the City's
motivation for the leases, and he rejected any claims based on common law theories.

Since 1957, the City of San Diego has leased the 18-acre Balboa Park parcel to DPC for $1-a-
year.  The Council has constructed its headquarters building and various facilities on the site,
including an outdoor theater-type setting for non-sectarian religious exercises (which it was
rapidly converting to athletic uses after the lawsuit was filed).  The original lease required the
Scouts to conduct its activities on the site "without discrimination as to race, color, or creed."
The lease also provided that the general public should have access to the property when its
presence would conflict with scheduled Scout activities.  In 1987, the City made  a 25-year lease
to the Scouts, this time for a small parcel of public parkland on Fiesta Island in Mission Bay. 
This lease, which did not involve even a symbolic rental amount, was intended to provide land
on which the Scouts could construct and operate an aquatic facility.  It contained a non-
discrimination clause that included, as per the city's ordinances at the time, a ban on religious
and sexual orientation discrimination.  In 2000, after the Boy Scouts won the right to continue
discriminating against gay people in _Boy Scouts of America v. Dale_, 530 U.S. 640 (2000), two
San Diego parents and their sons filed suit challenging the continuing Scout operations on public
parklands, as violating their rights under the 1st and 14th Amendments and common law rules
governing access to public forums.  They also alleged violations of California's state
constitution, which contains a stricter ban on government support for religion than the federal 1st
Amendment, at least as the federal ban has been construed in recent years by the U.S. Supreme
Court.

After the law suit was commenced, the Scouts, perhaps fearing that the controversy would lead
the city not to renew their Balboa Park lease when it expires in 2007 (it was a 50-year lease),
approached the city about an immediate extension, which a compliant city government agreed to
for a term of 25 years.   This lease, approved by the city council on Dec. 4, 2001, once again
called for nominal rent although it did impose some new administrative fees effective Jan. 1,
2002.  The new lease includes a non-discrimination provision that adds religion and sexual
orientation to the list of forbidden grounds, as did the 1987 Fiesta Island leases, but the
understanding of the city and the Scouts was that these non-discrimination provisions apply only
to access to the property by non-Scouting individuals and entities.  Thus, as far as the city is
concerned, the Scouts are free to continue excluding gays, atheists and agnostics from members
activities conducted on the city parklands leased by the Scouts.

Judge Jones began his analysis with the Establishment Clause issues.  He noted that recent
Supreme Court precedents holds that government assistant may be extended to religious
organizations as part of religion-neutral programs that are not intended for religious purposes. 
For example, the Supreme Court has upheld school voucher programs that would incidently
benefit religious organizations by including them among the various private schools for which
voucher payments can be made on behalf of students.  In order for the Establishment Clause to be
invoked, the plaintiffs have to show that government aid is going to a religious organization and
that the aid is not being allocated on the basis of neutral, secular criteria.  The plaintiffs argued
that due to the religious nature of the Scouts, and the non-neutral way in which the city leased
parkland to the Scouts, it is reasonable to interpret this as financial assistance to advance
religious indoctrination.  The defendants argued first that the BSA is a non-sectarian
organization, so the Establishment Clause is irrelevant, and second, that a variety of
organizations lease city parkland for various purposes having to do with providing recreational
facilities and services to their members and the public.

Judge Jones first concluded that a "reasonable observer would perceive an advancement of
religion as a result of the City's failure to use a neutral process in selecting lessees." Focusing
primarily on the Dec. 4, 2001, vote to give the Scouts a 25-year-extension on their existing lease,
Jones noted that recent Supreme Court cases require that the issue of government endorsement of
religion be evaluated from the perspective of the "reasonable observer." 

The first component is determining whether the Scouts are a "religious organization," and Jones
had little trouble rejecting their argument to the contrary, finding support for this conclusion in
the briefs filed by the Scouts as well as the Desert-Pacific Council's publications and website. 
He noted that both adult and youth member are "required to have a belief in a formal deity, to
swear a Duty to God," and that "Belief in God is and always has been central to BSA's principles
and purposes." He noted that adult leaders are expected to inculcate such beliefs, and that the
Scout oath requires youth members to affirm that they are "reverent." Furthermore, merit badges
are given for religious work, and Scout assemblies and programs include nondenominational
prayer components. "The undisputed facts show that the BSA engages in religious, albeit
nondenominational, instruction through its various Scout oaths, religious emblems program,
chaplaincy program, Religious Relationships Committee, religious publications, and the
integration of religion in Scouting activities," Jones concluded.  Such a conclusion was not
difficult in light of the widespread sponsorship of Scout troops by churches and synagogues
(although some liberal religious organizations have disaffiliated in recent years in protest against
the Scouts' anti-gay policies).  

The Scouts were arguing that they were not affiliated with any particular religion and therefor
could not be conceptualized as a religious organization, and furthermore that they did not meet
the federal tax definition of a religious organization for purposes of various tax exemptions.  But
Jones dismissed these points in light of the overall record showing the pervasively religious
nature of the Scouts activities, at least as practiced in San Diego.  

The next component of the analysis concerned whether the City lease was done in a religion-
neutral manner.  The Scouts argued that their two leases were made as part of an overall city
leasing program that involved about 100 leases of city property to various organizations, but
Jones rejected the contention that the BSA leases were part of any neutral "program."  He wrote,
"the undisputed evidence shows that the Balboa Park lease is not the result of a selection process
by which any other entities had the opportunity to compete with the BSA-DPC, but is instead the
result of exclusive negotiations between the City and the BSA-DPC.  The City Council voted on
December 4, 2001, eight years before the 1957 lease expired, to continue leasing the property to
the BSA-DPC, after this lawsuit was filed, after the BSA-DPC approached the City and
requested negotiations to extend the lease and after hearing extensive public comment regarding
the Boy Scouts discriminatory policies." (However, the record lacked any evidence about the
nature in which the Fiesta Island lease was negotiated, so Jones concluded he could not grant
summary judgement on the Establishment Claim with respect to that part of the lawsuit.)  Jones
found that the city did have an "established policy" by which private organizations compete for
the right to lease city property, but that these processes were not followed with respect to the
Balboa Park lease.  Although the Scouts argued that nobody else had every expressed interest in
leasing Balboa Park, Jones considered this irrelevant, observing that the burden "was on the City
to take affirmative steps to avoid an Establishment Clause violation by making the lease
available to the religious, areligious and irreligious on a neutral basis." But he found that the City
"provided not even the pretense of neutrality," dealing "exclusively" with the Scouts, an overtly
religious organization.  Although Judge Jones did not use the term, he clearly regarded this as a
"sweatheart" lease, giving the Scouts valuable parkland at a token price, and thus a significant
government subsidy for religious activity.

Thus, he granted the plaintiff's motion for summary judgment as to the Balboa Park lease, while
denying both sides' motions for summary judgment regarding the Fiesta Island lease since there
was not adequate evidence in the record about the process by which that lease was negotiated.

Turning to the state constitution, which requires the state to give "no preference" to religious
organizations, Jones had little difficulty finding a violation. "In practical terms," he wrote, "the
City has bestowed upon the BSA-DPC   an admittedly religious, albeit nonsectarian, and
discriminatory organization   the benefits of (1) valuable parkland for a nominal fee despite the
City's written policy against leasing that very property to discriminatory organizations; (2) with
the accommodation that the City will not apply the leases' nondiscrimination clauses to the
organization's membership; (3) with the authority to exclusively occupy portions of the leased
parkland for the purpose of administering the BSA-DPC's regional program and operating
endeavors such as the print shop and the revenue-earning Scout Shop with about $1 million per
year in net sales; and (4) the authority to charge the public user fees which are deposited into the
general operating account and not designated for administration or upkeep of the leased
properties." All this through a non-competitive, exclusive negotiating process! "This preferential
treatment has at least the appearance, if not the actual effect, of government advancement of
religion generally and government endorsement of an organization whose religiosity is
fundamental to its provision of youth services in violation of the state constitution's No
Preference Clause," Jones concluded, granting summary judgment to the Plaintiffs on the issue of
the Balboa Park lease, but again denying judgement to either party concerning the Fiesta Island
lease.  In addition, Jones found a violation of the state constitution's separately stated ban on city
governments making any appropriation of public funds or to "grant anything to or in aid of any
religious sect, church, creed, or sectarian purpose."

However, Jones was not ready to make a summary judgment decision concerning the Equal
Protection claims.  Here the problem was that the issue of discriminatory intent by the City in
making the leases remains a sharply contested issue.  Whereas Jones could find that the BSA is a
"religious organization" by relying on that organization's own statements about the role of
religion in its operation, there were no similarly undisputed statements in the record at this point
in the case upon which to based an undisputed conclusion that the city intended to discriminate
against gays or atheists by leasing Balboa Park to the Scouts.  Here, much of the discussion was
consumed by questions about the degree to which the lease excluded the general public from use
of the park, a hotly contested question, since Jones considered the key question to be whether the
decision to lease to the Scouts resulted in the _city's_ intentional exclusion of a substantial
portion of the public from access to city park facilities.  Jones concluded that "there is a
sufficient dispute of material fact to preclude summary judgment in favor of either party on the
issue of whether the City leased the parkland with intent to discriminate against Plaintiffs and
those similarly situated."

The plaintiffs had also argued that the leases violated a common law requirement the public
parkland be preserved for public use and not be diverted to private uses, but Jones found that San
Diego's charter city status relieved it from complying with any such asserted common law rule
under established California precedents dating back more than half a century.

Jones decisively rejected the Scouts' argument that voiding the leases would violated the BSA's
First Amendment rights. "Plaintiffs do not challenge the BSA-DPC's right as an expressive
association to discriminate in its membership against gays and nonbelievers," he noted. "Rather,
plaintiffs challenge the parkland leases as the City's unconstitutional endorsement of the BSA-
DPC as a religious organization and as the means to discriminate against gays and nonbelievers." 
  Here, the court found "no nexus between the purpose of the leases and the protected expression. 
As is set forth above, the City selected the BSA-DPC for preferential treatment.  The leases are
therefore not part of a designated public forum, but are instead a nonpublic forum in which the
City selected its recipient by making the value judgment that the BSA-DPC alone is best suited
to fulfill the City's needs with respect to the parkland.  Whether the BSA-DPC is the lessee of
the parkland has absolutely no impact on or connection with the BSA-DPC's ability to maintain
its discriminatory membership policy," Jones asserted.

"The government does not automatically engage in unconstitutional viewpoint discrimination
when it determines, as it did here, whether to award a government subsidy by making a value
judgment about the recipient's suitability for the subsidy," wrote Jones, relying on the Supreme
Court's decision upholding Congress's imposition of a decency test on the National Endowment
for the Arts in specific response to the funding of gay art!  (Zing!!!)  And, asserted Jones, "The
government's decision to exclude organizations with discriminatory membership policies is
viewpoint neutral when the purpose for the decision is to protect persons from the effects of
discrimination and not to exact a price for the organization's protected expression."

Having granted the plaintiffs' summary judgment motion on the Establishment Clause claims
concerning the Balboa Park leases, the court has effectively ordered the City to evict the Scouts
from their headquarters and other facilities in Balboa Park.  One expects an appeal to the 9th
Circuit accompanied by a stay of this ruling pending further decision.  The local ACLU chapter
provided representation to the plaintiffs in their struggle against the BSA.  A.S.L.

Federal Civil Litigation Notes

_Arizona_   A 9th Circuit Court of Appeals panel divided 2-1 on the question whether an
Arizona law requiring sexually-oriented businesses to close between 1 and 8 am and on Sunday
mornings is constitutional. _Center for Fair Public Policy v. City of Phoenix_, 2003 WL
21730756 (July 28).  The measure was enacted as part of an overall zoning law, and was
supported by public hearings testimony from representatives of groups complaining about the 24
hour operation of the sex stores in their communities.  Writing for the majority, Circuit Judge
O'Scannlain found that the Arizona legislature had acted reasonably, thus satisfying the
intermediate scrutiny standard which a majority of the court believed to apply to this case. 
Dissenting, Circuit Judge Canby found the 1st Amendment argument by the adult business
operators to be valid, explaining how he found it to be inconsistent with the most recent U.S.
Supreme Court precedent on point, _City of Los Angeles v. Alameda Books_, 535 U.S. 425
(2002).  Both sides in the case focused on the swing vote of Justice Kennedy in _Alameda
Books_, but the majority won out and upheld the ban.

_Louisiana_   The unpublished opinion of the court in _Giardina v. Lockheed Martin
Corporation_, 2003 WL 21991644 (E.D. La., Aug. 19, 2003), gives no indication of the
underlying cause of action, with Magistrate Roby's opinion addressing primarily an attorney fee
request.  But the request is interested because it stems from litigation over a motion to compel the
plaintiff, Felicia Giardina, to answer a question posed at desposition concerning the identity of
her domestic partner. "Specifically," wrote Roby, "Lockheed requested that the plaintiff be
required to provide the identity of the person with whom she had a relationship for two years. . . 
The plaintiff objected to the request contending that the identity of the plaintiff's partner is a
'private issue.'  The plaintiff claimed that because her partner had not made her sexual
orientation public, her partner's job and the custody of her partner's child would be placed at risk
if such information was disclosed." But the court ordered Giardina to respond to the question,
and the opinion does not reveal whatever analytical process the court went through to reach that
decision, being primarily concerned with Lockheed's request for fees in connection with
litigating the issue.  The magistrate concluded that Lockheed had not submitted sufficient
information from which the court could determine a "reasonable hourly rate." For Roby's
recitation of the data required, it sounds like it would cost Lockheed more in lawyer's time to
compile and submit the necessary information than it would be worth if it recovered a fee!  

_New York_   A divided panel of the U.S. Court of Appeals for the 2nd Circuit affirmed a
decision by District Judge Larimer (W.D.N.Y.) that the beneficiaries of a man who died when his
practice of autoerotic asphyxiation went awry could not collect under the decedent's
employment-related group life insurance policy, which covered accidental death but did not
cover "intentionally inflicted injury." _Critchlow v. First Unum Life Ins. Co._, 2003 WL
21805542 (Aug. 7, 2003).  Writing for the court of appeals panel, Senior Circuit Judge Van
Graafeiland noted decisions by the 5th and 8th Circuits that had reached the same conclusion: that
when a person dies as a result of an autoerotic asphyxiation experience that goes wrong, that is
death from a self-inflicted injury within the meaning of the standard exclusion in life insurance
policies.  Sharply dissenting, Circuit Judge Kearse argued that a contrary very recent precedent
from the 9th Circuit, _Padfield v. AIG Life Ins. Co._, 290 F.3d 1121 (9th Cir.), cert. denied, 123
S.Ct. 602 (2002), should be followed.  Kearse observed that the 5th and 8th Circuit cases were
diversity cases deciding the issue under individual life insurance polices, whereas this case (and
_Padfield_) arises under the federal Pension Reform Act, ERISA, requiring the court to apply
federal common law.  On the merits, she argued that a repeat player on autoerotic asphyxiation,
such as decedent David Critchlow in this case, who did not intend suicide, had a reasonable
expectation of surviving his experience without injury, and thus this should be considered an
accidental death as per the insurance policy, entitling his beneficiaries to the death benefit.

_Pennsylvania_    Most gay legal observers would account _Boy Scouts of America v. Dale_,
530 U.S. 640 (2000), to be an unfortunate loss for gay civil rights, but on a broader view, it is a
potentially important precedent upholding the right of private citizens not to be forced to publicly
affirm a position with which he disagrees.  This is how it was used by Senior U.S. District Judge
Robert F. Kelly of the Eastern District of Pennsylvania, in ruling in _The Circle School v. The
Honorable Vicki Phillips_, 2003 WL 21649639 (July 15, 2003) that the school district violated
First Amendment rights by mandating that all students either recite the Pledge of Allegiance or
participate in singing the Star-Spangled Banner during every school day. _Dale_ was cited and
relied upon extensively by Judge Kelly in rendering his written opinion. A.S.L.

State Civil Litigation Notes

_Arizona_   Taking U.S. Supreme Court Justice Antonin Scalia at his word, a gay male couple
in Arizona has filed suit seeking a marriage license.  In his dissenting opinion in _Lawrence v.
Texas_, Scalia asserted that the next step on the "gay agenda" was same-sex marriage.  Seeking
to prove him correct, Harold D. Standhardt and Tod Alan Keltner filed a lawsuit in the Arizona
Court of Appeals, seeking an order to the Maricopa County Clerk to issue them a license to
marry. The men applied for a marriage license in the Maricopa County Clerk's office on July 1,
with their attorney present. They have lived together for six years and said they hoped to adopt
and raise children together.  They are relying on state and federal constitutional arguments in
their complaint, filed on July 7. _Washington Blade_, July 18; _Arizona Republic_, July 15.

_Arkansas_   School officials in Pulaski County have settled a lawsuit brought by the ACLU on
behalf of Thomas McLaughlin, a gay student who was subjected to harassment by school
administrators and teachers.  Under the agreement, approved by the federal district court on July
17, the district must inform teachers that they may not discriminate against students on the basis
of sexual orientation in disciplinary matters.  According to the complaint in the case, when
teachers discovered that McLaughlin was gay, he was forced to read anti-gay Biblical materials
and subjected to discipline.  School administrators told him that he was "unnatural." The
agreement also obligates administrators not to "out" gay students to others, as they had done with
McLaughlin. _Washington Blade_, July 25; _Grand Rapids Press_, July 18; _ACLU Press
Release_, July 17..

_California_   Sometimes, filing a lawsuit accompanied by a little publicity will do the trick. 
After Lambda Legal Defense Fund announced that it was filing suit against United Parcel Service
(UPS) on behalf of Daniel Kline, a 20-year employee who had been denied a hardship transfer to
relocate to a UPS office in Chicago to follow his long-time partner, who had received a job
reassignment, UPS announced that it had revised its policy and would extend transfer rights to
same-sex domestic partners.  UPS claimed that it had already decided to grant Kline's appeal of
the initial denial, but had difficulty contacting him before the lawsuit was announced.  Lambda
announced in an Aug. 27 press release that it was still negotiating a settlement of the case with
UPS concerning the promulgation and administration of its policy, and was seeking signatures
from UPS customers on petitions to the company.  Anyone desiring to add their name to the
petition can email Lambda at outreach@lambdalegal.org.

_California_   The Rev. Troy Perry, founder of the Fellow of Metropolitan Community
Churches, the world's largest gay-affirmative Christian denomination, married his longtime
partner, Phillip Ray De Blieck, in a legal marriage ceremony in Toronto, Canada, on July 16, and
returned to California determined to obtain legal recognition of his marriage.  According to a
report published online July 24 in 365Gay.com, Perry announced that he will litigate to force the
government to recognize his marriage, and he encourage other same-sex couples who marry in
Canada to sign up on the MCC website to be co-plaintiffs in the litigation.

_Connecticut_   Judge Owens of the Connecticut Superior Court found in _Connecticut
Commission on Human Rights and Opportunities v. City of New Britain_, 2003 WL 21771973
(July 17, 2003), that there was substantial evidence to support a Human Rights Referee's
determination that the Commission had failed to make out a prima facie case of discrimination
on behalf of Lynne Kowalczyk, a lesbian employed by the New Britain Board of Education who
was asserted claims of disability and sexual orientation discrimination concerning job transfers. 
Judge Owens' opinion suggests that the Referee could reasonably have concluded based on the
allegations in the record that the district acted in a non-discriminatory way when it transferred
Kowalczyk to relieve tensions arising from her termination of her domestic partnership
relationship with another lesbian employee coincident with launching a new relationship with a
different lesbian employee, and the overt hostility between Kowalczyk's former and new
partners, which had expressed itself in verbal harassment and physical confrontations.  A.S.L.

_Florida_   The Associated Press reported on Aug. 18 about the litigation concerning the will of
Gloria Hemingway, who was born Gary Hemingway and is described in the article as "the
transgendered son" of the author Ernest Hemingway.  Gloria was the father of several children
before divorcing wife Ida and undergoing gender-reassignment surgery.  Gloria left a will that Ida
is contesting, claiming that they were remarried in the state of Washington and she is a surviving
heir.  The children who would are beneficiaries in the will are contesting this, and arguing that