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
any such same-sex marriage would be invalid.  Florida Circuit Judge Arthur Rothenberg has
appointed retired Judge David Tobin as a mediator, hoping that the matter can be settled
amicably before trial, but a tentative trial date in October has been set.

_Kansas_   A letter from the ACLU has extracted an apology and change of policy from the
Topeka an Shawnee County Public Library, which conceded that it should not have forbidden
one its employees, an ardent P-FLAG member named Bonnie Cuevas, to speak about the
Supreme Court's _Lawrence v. Texas_ decision during her worktime.  Evidently, Ms. Cuevas
spoke about the decision in response to questions from co-workers and phone calls from excited
friends, and was then told by two library managers that another employee had complained that
Ms. Cuevas was creating a "hostile work environment." They evidently decided to accommodate
the homophobe and silence Ms. Cuevas, but the ACLU reminded them that as a public institution
they are bound by the First Amendment. _ACLU Press Release_, Aug. 5.

_Louisiana_   The City of New Orleans, defending its domestic partner registry and health
benefits program against a lawsuit by a conservative citizens group challenging its legality,
invited Lambda Legal Defense and Education Fund to join the case as an amicus intervenor to
assist in obtaining a grant of summary judgment or dismissal.  The city filed its motion before
Civil District Judge Yada McGee on Aug. 14.  Lambda is representing Peter Sabi, a city building
inspector, whose partner, Philip Centanni, Jr., a freelance writer, is presently benefitting from the
health insurance coverage. _New Orleans Times Picayune_, Aug. 15.

_Massachusetts_   The _Boston Globe_ reported on Aug. 24 that the Massachusetts Supreme
Judicial Court will be hearing arguments in two cases during September presenting the question
whether opposite-sex domestic partners of injured persons can sue for loss of consortium.  In the
_Fredette_ case, the couple had obtained a marriage license and the accident that disabled
Barbara Fredette's partner, David Tremblay, occurred two days before their scheduled wedding. 
In the other case, plaintiff Alexandra Fitzsimmons and Sean Brann had been living together for
eleven years, jointly owned a home and had done a fair amount of non-traditional family
planning in terms of beneficiary cross-designations on insurance and retirement plans, when
Brann was injured in an accident.  In both cases, lower courts have ruled that Massachusetts
limits consortium actions to legal spouses, and the plaintiffs are arguing that the common law
doctrine should be broadened to account for non-traditional families.  The SJC's anticipated
ruling in the same-sex marriage case is expected to be important in resolving these controversies.

_Massachusetts_   The _Boston Globe_ reported on July 15 that a civil trial jury in Suffolk
County Superior Court had awarded Michael Salvi about $624,000 in damages in a sexual
harassment case.  Salvi, who is gay but was not "out" on the job when the harassment began, was
working as a county corrections officer.  After about four years on the job, he learned that rumors
were swirling around the workplace about his sexual orientation.  He began to receive harassing
phone calls and found a package with blocks spelling out "fag" on the porch of his house.  He
filed an internal police complaint, but an internal investigation concluded there was "no support"
for his allegations, and he was transferred to a different assignment that he perceived as inferior. 
Salvi became so despondent due to the harassment that he attempted suicide, and ultimately quit
his job when complaints to management were unavailing in solving the problem. _Salvi v.
Suffolk County Sheriff_, No. 00-3374 (Mass. Super. Ct., June 30, 2003), BNA _Daily Labor
Report_ No. 136, 7-16-2003, p. A9.  

_New York_   Sometimes non-gays benefit from legal doctrines that gays pioneered.  In
_DeJesus v. Rodriguez_, NYLJ, 8/20/2003, p. 23 (N.Y. City Civ. Ct., Richmond County), a
Staten Island civil court judge found that a heterosexual couple that had co-habited for ten years
were "domestic partners." When the man moved out after a violent argument and then sought to
capture sole ownership of the premises in his own name, the judge found that the woman, as a
domestic partner, could not be ejected through a summary proceeding.  Gay housing rights
precedents precedents from the N.Y. courts were cited and extensively quoted by Judge Ronni D.
Birnbaum.

_North Carolina_   In the first practical application of _Lawrence v. Texas_ by a state court,
Mecklenberg County District Court Judge Nate Proctor dismissed two charges of soliciting
sodomy in a park that were pending against a man who was not named in news sources.  Proctor
said that the state's sodomy law was invalidated under _Lawrence_, and thus solicitation to
engage in the conduct was no longer criminal.  Trial court decisions are not binding on anybody
else, but it's nice to see that _Lawrence_ was, at least in this instance, self-enforcing.
_Washington Blade_, Aug. 12; _Charlotte Observer_, July 12.

_Pennsylvania_   Opponents of gay rights in Allentown, Pennsylvania, backed up by the anti-gay
Alliance Defense Fund of Phoenix, Arizona, filed suit to challenge the recently enacted gay
rights ordinance in that city.  The suit was filed July 16 in Lehigh County Court, claiming that the
new ordinance violates the religious free exercise rights of four plaintiffs by forcing them to
"accept morally repugnant lifestyles" when hiring employees or renting houses. _Allentown
Morning Call_, July 25.

_Wisconsin_   The Court of Appeals of Wisconsin affirmed a ruling by Dane County Circuit
Judge Robert DeChambeau that Sam's Club, an operation of Wal-Mart, did not violate the state's
human rights law, which forbids discrimination on the basis of personal appearance, when it
discharged Tonya Maier because she wore an eyebrow ring to work in violation of the company's
appearance code.  The court concluded that the appearance code was adopted "for a reasonable
business purpose," and thus could be enforced by the employer, notwithstanding the statute.
_Sam's Club v. Madison Equal Opportunities Commission_, 2003 WL 21707207 (July 24,
2003). A.S.L.

Criminal Litigation Notes

_California_   San Luis Obispo County Superior Court Judge Christopher Money imposed $300
fines and 100 hours of community service on William Bugenig, 22, and Nicolas Taliaferro, 20,
after finding that they had pelted a California Polytechnic gay student organization booth with
eggs last February during an outdoor event near the campus.  Although the prosecutor did not
label their conduct a hate crime, the Penal Code describes the misdemeanor civil rights and
vandalism provisions under which they were charged as causing property damage for reasons
such as a person's sexual orientation or race, according to an Aug. 26 report in the _San Luis
Obispo Tribune_.  The judge also sentenced each of the men to 18 months on probation. 
According to the news report, more than $500 of damage was done to the booth in this incident.

_Louisiana_   Affirming a conviction for aggravated battery caring a sentence of ten years hard
labor without benefit of probation, parole, or suspension of sentence, the Louisiana Court of
Appeal rejected an argument by Dayshawn Brown that the "homosexual victim provoked the
attack by taunting him and suggesting that they had a relationship." _State v. Brown_, 2003 WL
21763502 (La. Ct. App., 4th Cir., July 23, 2003). "We find the record in this case supports the
defendant's sentence," wrote Judge Michael E. Kirby. "The defendant can offer no justification
for shooting the victim several times and inflicting life-threatening injuries.  Certainly the fact
that the victim was homosexual and indicated he knew the defendant provided no reasonable
provocation for the attack.  The ten-year sentence is the mandatory term.  In light of the
seriousness of the crime, the trial court did not abuse its discretion."

_Michigan_   The Court of Appeals of Michigan ruled in _People v. Keep_, 2003 WL 21995221
(Aug. 21, 2003) (unpublished opinion) that a murder victim's alleged sexual proposition of the
defendant did not provide sufficient mitigation to reduce the offense from second degree
homicide to manslaughter.  Defendant Michael Keep was a cellmate of the victim, Paul Chmiel,
at Brooks Correctional Facility in Muskegon County.  According to the court's per curiam
opinion, which appears to accept all of Keep's factual allegations, Chmiel was "apparently a
homosexual" to whom Keep took "an immediate dislike," and Chmiel continually solicited Keep
to engage in sexual activity until finally Keep snapped and strangled Chmiel in their cell. 
Chmiel's body was found just outside the cell by guards who were searching for him when he did
not show up for a regularly scheduled class.  Medical evidence appeared to indicate that Chmiel's
asphyxiation took place without a struggle.  A prison counselor testified that Keep had
approached him some time prior to the murder, complaining about Chmiel's sexual propositions
and asking for a transfer to a different cell, and that Keep had been advised that the counselor
would try to take care of this for him.  The jury convicted Keep of homicide.  On appeal, Keep
argued that the sexual propositions of Chmiel sufficed to make this a manslaughter case, but the
court was not convinced, finding that "a significant amount of evidence was introduced to
suggest that the circumstances under which Keep killed Chmiel were not such as would mitigate
the offense to manslaughter," the court finding that non-violent sexual propositions "was not
such as would provoke a reasonable person under the same circumstances." The court also noted
that Keep was 4-6 inches taller and 100 pounds heavier than Chmiel.  A.S.L.

Federal Legislative Notes

_Military_   U.S. Rep. Barney Frank (D.-Mass.) has introduced H.R. 2676, a bill to amend the
Uniform Code of Military Justice to allow private consensual sodomy in the military.  Frank has
introduced the same bill before, but it drew a bit more attention this time because his introduction
came shortly after the Supreme Court ruled that gay people have a constitutional right to engage
in sodomy.  If enacted, the measure would be known as the 'Anti-Hypocrisy Act of 2003,' and
would limit the application of the military ban on sodomy to nonconsensual acts, those involving
compensation for sex, or those in which minors are involved.   Meanwhile, on August 21 the
Center for the Study of Sexual Minorities in the Military, based at the University of California at
Santa Barbara, issued a press release announcing that retired Judge Advocate General for the
Navy, Rear Admiral John D. Hutson, has called for the repeal of the "don't ask, don't tell"
policy, calling the ban "virtually unworkable in the military." At the same time, it was reported
that the Pentagon is considering proposing its own amendments to the Code to bring military law
in line with the recent Supreme Court ruling.  Could this be the beginning of the end of "Don't
Ask, Don't Tell?" Stay tuned. _Washington Post_, August 4.

_Immigration_   Senator Patrick Leahy (D-Vt.) has introduced a Senate counterpart of the
Permanent Partners Immigration Act, which had been introduced in the House by Rep. Jerrold
Nadler (D-NY) on Valentine's Day.  The bill would modify U.S. law to provide same-sex
partners of U.S. citizens and lawful permanent residents the same immigration benefits that are
enjoyed by legal spouses.  The bill was introduced with the support of five co-sponsors: Mark
Dayton (D-Minn), Edward Kennedy (D-Mass), John Kerry (D-Mass), Jim Jeffords (I-Vt), and
Russell Feingold (D-Wis).  The House measure has 116 co-sponsors.  Fifteen other countries
currently recognize same-sex couples for immigration purposes: Australia, Belgium, Canada,
Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway,
South Africa, Sweden, and the United Kingdom.  Chances of passage are considered slim in both
houses, given the hostility of the Republican leadership toward this proposal. _365Gay.com_,
Aug. 1.

_California_   The nation's largest state has enacted a ban on discrimination on the basis of
gender identity.  On Aug. 2, Governor Gray Davis signed into law AB 196, which takes the
definition of gender identity from the state's Hate Crimes Law and inserts it into the Fair
Employment and Housing Code.  California is only the fourth state to adopt explicit statutory
protection against such discrimination, although judicial decisions and administrative opinions in
several other jurisdictions also provide legal theories for protection.   With the signing of this
bill, discrimination on the basis of gender identity and expression becomes illegal by statute in
California, Minnesota, Rhode Island and New Mexico. _Trangender Law & Policy Institute Press
Release_, Aug. 3.  A.S.L.

State and Local Legislative Notes

_California_   Both houses of the legislature have approved a resolution calling on the Boy
Scouts of America to accept as leaders all qualified men and boys, regardless of sexual
orientation or religious belief.  The resolution, which passed the Assembly in April on a 43-2
vote and was approved by the Senate on Aug. 25 by a vote of 22-15, was authored by openly-
lesbian Assemblywoman Jackie Goldberg (D-Los Angeles).  The resolution, while extolling the
Scouts for their good works, stated: "The discriminatory policy of the Boy Scouts of America is
contrary to the policy of the State of California." _Los Angeles Times_, Aug. 26.

_California_   On Aug. 6 the California Board of Equalization voted to treat registered domestic
partners the same as married couples for property and inheritance tax purposes upon the death of
one partner.  The vote was strictly along party lines, 3-2.  Under the new rule, property will not
be reassessed upon the death of a partner, similar to the exemption already in effect for married
partners, and thus property taxes will not increase for the survivor.  Board Chairwoman Carol
Migden, an openly-lesbian former state legislator who sponsored the measure, stated, "I think
this is a step toward parity and equity, inch by inch." The rule will go into effect this fall, and
would only apply to partners who have registered under state law.  Registration requires payment
of a $10 fee to the Secretary of State.  The Los Angeles County Assessor, Rick Auerbach, stated
that he supported the idea embodied in the new rule, but felt that the Board did not have authority
to adopt this policy change, because the existing exemption derives from legislation by the public
in the form of a 1978 state constitutional amendment, which exempted married couples from
property reassessment upon the death of a partner.  Auerbach asserted that the rule would have a
firmer foundation if embodied in a constitutional amendment. _Los Angeles Times_, Aug. 7.

_California_   Both the State Assembly and the Senate have approved versions of A.B. 205, a
bill that would expand the list of existing registered partnership rights under state law to an
extent that would rival the Vermont Civil Union Act.   Gov. Gray Davis announced on Aug. 16
that he would sign the bill, and reaffirmed his promise after the Senate voted to approve the bill
by a vote of 24-14 on Aug. 28.  Lt. Gov. Cruz Bustamante, who is a candidate to succeed Davis
if the governor loses the recall vote scheduled for October 7, has also announced his endorsement
of the bill.  The leading Republican candidate in the recall election, celebrity and former body-
builder Arnold Schwarzenegger, has not taken a public position on the bill, although he has
generally professed support for gay equality and, in interviews during the last week of August,
stated that he supported domestic partnership but not same-sex marriage.  Anti-gay forces in the
state contend that the bill would violate Proposition 22, a referendum measure that prohibits the
state from authorizing same-sex marriage, and vowed to file a legal challenge if the bill is
enacted.  Los Angeles Assemblymember Jackie Goldberg is the lead legislative sponsor.  The bill
would continue the process begun in 1999 when the state established a domestic partner registry
for same-sex couples and elderly opposite-sex couples and, in subsequent enactments, began to
extend various rights to registered partners.  Prior bills have already given partners inheritance
rights, hospital visitation, medical decision-making rights for incapacitated partners, the right to
sue for wrongful death, and rights to adopt a partner's children (recently confirmed by the
California Supreme Court in a case that arose prior to the effective date of the statute).  The new
bill would extend the state's community property laws to registered partners and would
essentially treat registered partners the same as marital partners for purposes of child custody,
support and alimony rules.  The bill would also establish a Family Court proceeding for
partnership divorce for those who had been registered as partners for more than five years or who
had children or substantial joint property holdings.  Registered partners would have the same
rights as spouses with respect to a deceased partner's autopsy and funeral arrangements, would
enjoy the spousal testimonial privileges, and would make partners jointly responsible for each
others' debts.  However, due to the entanglement with federal tax law, the bill would not affect
the right to file joint tax returns, and due to federal preemption in the area of employee benefits,
the bill does not require employers to treat registered partners of their employees the same as
spouses for purposes of employee benefits programs.  (Of course, employers can do so
voluntarily, and many California employers have adopted benefits plans in order to be eligible to
bid on city contracts in San Francisco and Los Angeles, where municipal ordinances limit
eligibility to employers who provide such benefits.)  A statewide lobbying group, Equality
California, has proclaimed that if this bill is enacted, California will be essentially on par with
Vermont in extending legal rights and responsibilities to same-sex partners.  Vermont was
significant for being the first, but California would be even more significant, as it is the largest
state by population and is home to about one-sixth of all the same-sex adult cohabiting partners
counted in the 2000 census. _Equality California Press Release_, Aug. 28; _San Francisco
Chronicle_; _Los Angeles Times_ (both Aug. 17 & Aug. 29).

_California   Los Angeles County_   On Aug. 26 the Los Angeles County Board of Supervisors
voted to extend death benefits to the domestic partners of retired county workers, giving them
parity with the married partners of heterosexual employees.  This is in addition to existing
partner benefits, including medical and dental insurance, and beneficiary designations for life
insurance and receipt of unused portions of pension assets. _Advocate.com_, Aug. 27.

_California   San Diego_   On July 28, the San Diego City Council gave unanimous approval to
a proposed amendment to the city's Human Dignity Ordinance, adding "gender identity" to the
list of prohibited bases for discrimination in the city of San Diego.  The term is defined as
"having or being perceived as having a gender-related identity or expression whether or not
stereotypically associated with a person's actual or perceived sex." The ordinance, originally
passed in 1990 and also covering sexual orientation discrimination, applies to employment,
housing, city services, business establishments and educational institutions.  

_Florida   Largo_   City Commissioners in Largo, Florida, followed up a contentious public
hearing on Aug. 5 with three hours of heated debate and a 4-3 vote to reject a proposed municipal
human rights ordinance, which would have prohibited discrimination in the city on the basis of
race, religion, gender, disability, gender identity and sexual orientation.  The mayor, who voted
no, said that the proposed ordinance had "divided" the community.  This, of course, demonstrates
why it was needed. _St. Petersburg Times_, Aug. 6.

_Florida   Sarasota_   The Sarasota City Commission voted unanimously on Aug. 5 to approve
an ordinance prohibiting discrimination on the basis of sexual orientation, become one of about a
dozen local jurisdictions that prohibit such discrimination in Florida.  The ordinance, which
covers employment, housing and public accommodations, becomes effective October 1.  It
provides that complaints can be filed with the city's Human Relations Board, and authorized the
Board to sue in the circuit court in cases where a satisfactory settlement of meritorious claims
cannot be achieved voluntarily.  Only employers of five or more employees are covered, and
compensatory damage claims against businesses with fewer than 15 employees are capped at
$100,000. The ordinance fulfilled the will of local voters, who passed an anti-discrimination
amendment of the city's charter last November with 73 percent of the vote, but left the matter of
coming up with implementing legislation to the Commission.  Those who testified against the
proposed ordinance before the Commission raised primarily religious objections. _Sarasota
Herald-Tribune_, Aug. 5.

_Illinois_   Some states just want to be sued. . .  On Aug. 5, Illinois Governor Rod Blagojevich
signed into law an amendment to the state's Lawsuit Immunity Act, waiving Illinois's sovereign
immunity rights under the 11th Amendment to suits for violation of federal employment-based
civil rights laws.   On the same date, the governor also signed a bill creating the Illinois Civil
Rights Act of 2003, which provides a right of action for disparate impact discrimination for state,
county or local government employees in Illinois.  The purpose was to counter the U.S. Supreme
Court's 2001 decision in _Alexander v. Sandoval_, 121 S. Ct. 1511, which effectively shielded
state government employers from such liability under Title VI of the Civil Rights Act of 1964
(which forbids discrimination by programs receiving federal financial assistance). BNA _Daily
Labor Report_ No. 154, Aug. 11, 2003.

_Kansas - Shawnee County_   Shawnee County Commissioners voted unanimously on July 21
to ban sexual orientation discrimination in county employment.  The measure had been
introduced by County Commission Chairman Vic Miller, who said nobody had asked him to
bring up the measure, but he thought the County should make a policy on this issue in light of the
Supreme Court's _Lawrence_ decision, which has the effect of striking down Kansas's sodomy
law.  He said he had been reluctant to propose such a measure previously due to the state's
criminal law. _Topeka Capital-Journal_, July 22.

_Minnesota   Duluth_   The Duluth City Council voted 5-2 on Aug. 11 to approve a resolution
recognizing the Duluth Superior Gay Lesbian Bisexual Transgender Ally Queer and Intersex
Pride Festival, scheduled to take place in that city over the Labor Day Weekend.  But Mayor
Gary Doty had vetoed similar resolutions in the past, and announced that he planned to veto this
one as well. "Government has no business expressing official support for any one lifestyle," said
Doty.  Six votes would be needed to override the veto. _Duluth News-Tribune_, Aug. 12 & 13.

_Minnesota   Minneapolis_   The Minneapolis city council approved a group of proposals
concerning domestic partnership on Aug. 22, and Mayor R. T. Rybak signed all the measures into
law on Aug. 25.  One, pattered on a recent New York City enactment, will extend recognition to
domestic partnerships formed in other jurisdictions.  Another banned discrimination in fees
between "a person with a spouse and a person with a domestic partner or between a person with a
spouse and children or a person with a domestic partner and children" in the areas of real estate,
public accommodations, public services and professional organizations.  A requirement of
existing local law that at least one member of a partnership be a Minneapolis resident in order to
register a domestic partnership with the city was repealed, thus opening the city's registry to any
couple regardless of residence.  The housing maintenance code was revised to include domestic
partners within the definition of family for purposes of zoning requirements.  The measures were
all approved unanimously, according to a report to the Gay Marriage Listserve by David Strand
of Minneapolis, upon which this summary is based.

_Minnesota   Moorhead_   The city council in Moorhead, Minnesota, voted unanimously on
July 21 to amend the city's civil rights ordinance to add "sexual orientation" to the list of
forbidden grounds for discrimination, according to a brief report in _The Advocate_ (September
2).  

_Missouri   Kansas City_   The Kansas City Council voted 11-1 on Aug. 28 to approve a
domestic partnership ordinance with the support of Mayor Kay Barnes.  The ordinance
establishes a registry in the city clerk's office, and will provide sick and funeral leave benefits to
city employees in committee relationships, whether same-sex or opposite-sex.  The original
legislative package that had been announced in April had also included health insurance coverage
for registered partners of city employees, but the mayor and council decided that this issue should
be addressed next spring as part of the city's negotiation of renewal of its current health
insurance policies. _Kansas City Star_, Aug. 29.

_New York   Nassau County_   On a strict party line vote of 10-9, the Nassau County legislature
voted to approve a labor agreement that, among other things, provides domestic partner benefits
for county employees.  Members of the Republican minority objected to the partner benefits
provision, purportedly on grounds of expense. _Newsday_ (Aug. 16) observed that Republicans
in Nassau depend on cross-endorsement and support from the Conservative Party, whose Nassau
County chairman stated both fiscal and "moral" objections to providing benefits to unmarried
partners.

_North Carolina   Charlotte_   On Aug. 25, the Charlotte City Council voted to put on the
agenda for discussion a proposal to extend health benefits to same-sex partners of city
employees.  The discussion was reportedly quite heated, degenerating into a "passionate shouting
match," according to a report in the _Charlotte Observer_ on Aug. 26.  The counsel voted 8-2 to
consider on Sept. 8 whether to create a committee to study the issue and make legislative
recommendations.  

_Ohio - Cleveland Heights_   The Cleveland Heights City Council has voted to put a question on
the general election ballot on Nov. 4, asking residents whether to create a domestic partner
registry that would be open to opposite-sex and same-sex unmarried couples.  The proposal does
not extend any concrete rights, other than issuance of an official recognition certificate, but the
idea had an explosive effect in the council, with some Democratic members threatening to leave
the party over this issue, claiming that the local Democratic Party had become the captive of gay
rights interests.  The city already provides health benefits to same-sex partners of municipal
workers.  _Cleveland Plain Dealer_, Aug. 5.

_Pennsylvania_   Governor Ed Rendell issued an executive order on July 28 adding "gender
identity or expression" to the list of characteristics in the non-discrimination policy governing
executive branch agencies in the state of Pennsylvania.  According to a July 29 report in the
_Philadelphia Inquirer_, this made Pennsylvania the second state after Kentucky to ban such
discrimination by governor's executive order.  With a recent bill-signing by California Governor
Gray Davis (see above), Pennsylvania and California join four other states (Kentucky,
Minnesota, New Mexico and Rhode Island) in which the government has bound itself, either by
statute or executive order, not to discriminate on this basis.  A spokesperson for the governor
clarified that the policy only covers the governor's cabinet agencies, and does not extend to other
public institutions such as the state university.  Interestingly, a former governor of Pennsylvania,
Milton Shapp, was the first in the nation to issue an executive order banning sexual orientation
discrimination by a state government, back in the 1970s. * * *  Rendell's administration has also
agreed to a contract demand by the union representing 13,000 social service workers to expand
eligibility for family and medical leave to same-sex domestic partners.  Under the four-year
collective bargaining agreement, which was effective July 1, 2003, workers will be able to use
paid sick leave time to take care of ill partners or their children, or can use bereavement leave
when a partner or member of the partner's family dies.  The new benefit will also make available
up to 12 weeks of unpaid family or medical leave to care for domestic partners.  The contract
does not, however, extend eligibility for health care benefits.  The administration was reported to
be planning to extend this benefit to about 13,000 non-union state government employees. 
However, a majority of the state's employees are represented by other unions that did not request
this benefit in collective bargaining; as to them, the benefits cannot be extended unilaterally and
would be subject to negotiation.  In reporting on the new benefits on Aug. 6, the _Philadelphia
Inquirer_ speculated that conservatives in the state legislature may attempt to block the extension
of leave eligibility to non-union workers, but were unlikely to be able to affect benefits that had
been negotiated with the union. * * * Finally, Rendell made history by appointing an openly-gay
man, Stephen Glassman, to be the new chairman of the Pennsylvania Human Relations
Commission, which enforces the state's statutory law against discrimination (which does not, at
present, include sexual orientation or gender identity).  Glassman has been a member of the
Commission since May 2002, when he was appointed by Rendell's Republican predecessor,
Gov. Richard Schweiker. _Patriot-News_, Harrisburg, Aug. 11.

_Virginia_   The Board of Commissioners for the Virginia Housing Development Authority has
voted to lift a ban on home loans for unmarried couples.  The ban had been enacted in the early
1980's, but was briefly suspended during the mid-1990's.  Gov. Mark Warner, a Democrat, had
supported ending the ban, and was the appointing authority for 7 of the 11 Commisioners.  In
casting their votes, members of the board stated that the policy created an unnecessary burden on
low-income, elderly and disabled people, single parents, and other non-traditional families.  The
Family Foundation of Virginia, a group that advocates for "traditional family values," stated that
it will lobby the legislature to overrule the Commissioners and re-establish the ban. _Norfolk
Virginian-Pilot_, July 25. A.S.L.

Law & Society Notes

_Public Approval of Gays and Same-Sex Marriage_   Many news stories over the summer
reported that there had been a "backlash" in public opinion polls in the furor following the
Supreme Court's ruling in _Lawrence_ and the subsequent outcry by conservative talk radio
hosts and religious leaders, picking up on Justice Scalia's dissenting comments that the Court's
opinion was paving the way for same-sex marriage.  While there was a decline in support for
same-sex marriage reflected in summer opinion polls, it is well to take a longer view and
compare these results over time.  On Aug. 29, the _San Francisco Chronicle_ published the latest
Field Poll, a survey of California adults, which showed that approval for same-sex marriage had
gone from 28% in 1977 to 39% in 1997 to 42% in the most recent poll this summer.  That 42%
may be a modest decline from the numbers being reported late in the spring, but it is a substantial
increase over the past 25 years of polling on this question, showing that overall incremental
progress in moving public opinion is continuing.

_Earnings Differentials_   Two new studies published in the _Industrial and Labor Relations
Review_ (see below in Publications Noted) examine earnings disparities associated with sexual
orientation.  Varying some of the definitions and analysis used in prior studies, the authors of
both studies conclude that openly gay or bisexual men suffer a substantial income disadvantage
compared to heterosexual men (and an especially larger disadvantage compared to married
heterosexual men).  Conversely, openly lesbian or bisexual women may actually enjoy an income
advantage over heterosexual women.  In attempting to explain these disparities, both studies
suggest that discriminatory attitudes against gay men, lesbians and bisexuals may play a role, but
that other factors may also be significant, including career choices that people make that may
themselves be influenced by sexual orientation.  Gender and marital status were seen as having
significant effects, as well as gender non-conformity.  It was observed in one of the studies that
openly gay men tend to "cluster" in some occupations that are more female-identified, and
female-identified occupations tend to be underpaid in our society relative to male-identified
occupations.  Conversely, openly lesbian workers tend to "cluster" to a greater degree than
heterosexual women in some occupations that are more male-identified, and as a result the
relative wage advantage of working in such occupations may outweigh the income effects of
negative attitudes by employers towards lesbians.  Both articles are full of statistical data, drawn
from the General Social Survey that is the mainstay for sociologists.  Both articles reveal the
importance of pinning down a definition of the subject study group before attempting to make
comparisons and draw conclusions.  An earlier path-breaking study by Lee Badgett, published in
1995, used a much broader definition of the subject group in order to obtain statistically
significant samples from earlier databases; the newer studies use much narrower definitions and
have access to several more years of data during which the Survey was asking relevant questions
about sexual behavior (which they had only begun to ask a few years before Badgett's analysis
was completed).  The result is that these studies confirm Badgett's conclusions about the
negative effect on male income (and even show that Badgett's analysis understated the negative
effect), but to question Badgett's conclusions about women's income.  Regardless whether one
agrees with the proposed explanations and analysis, these articles will be significant for those
seeking to make policy arguments in support of gay civil rights legislation.

_Relationship Stability_   _Proud Parenting Magazine_ reported on March 15 that the Gottman
Institute in Seattle, Washington, described as one of the world's premier research centers in
marriage and family studies, has issued a study finding that same-sex relationships are more
secure than heterosexual relationships.  Pairing an even number of demographically matched
same-sex and opposite-sex couples for comparison, the study found that over the period 1987-
1999, when the relationships were being tracked, twice as many opposite-sex couples broke up as
same-sex couples.  John Gottman, the director of the Institute, who is a psychology professor at
the University of Washington, theorized that same-sex couples feature more mutuality and
respect, entering the relationship on an equal basis.

_Corporate Policies_   Announcing the results of a survey of 250 companies on the Fortune 500
and Forbes 200 lists, Human Rights Campaign Foundation announced on Aug. 25 that there had
been an improvement in corporate policies regarding lesbian and gay employees over the past
year.  HRCF found improvements in policies at about a third of the companies surveyed.  
Airlines, banking and financial services, high-tech and equipment manufacturers and
telecommunications companies scored consistently above-average on the seven factor list that
covered a variety of workplace policies of concerns to lesbian and gay employees.  Twenty-one
companies had a perfect score, up from eleven last year.  None of the companies surveyed scored
a zero this year, while last year three companies had negative responses on all seven factors. 
Almost two-thirds of the Fortune 500 companies surveyed include sexual orientation in their
nondiscrimination policies, and 71 percent have directed advertising specifically targeted to gay
consumers.  The industries that are lagging include hotels, resorts and casinos; mail and freight
delivery companies; and retail and consumer products firms. _Associated Press_, Aug. 25.

_Episcopal Church_   Amidst much public debate and intense media scrutiny, a national
convention of Episcopal Church leaders ratified the decision of New Hampshire church leaders
to select openly-gay V. Gene Robinson as their bishop, the highest church official in the state. 
The vote, taken on August 5, was 62-43 with 2 abstentions.  The vote was taken in the face of
threats by leaders of the Anglican Communion in some other parts of the world to sever their
relationship with the U.S. church. _New York Times_, Aug. 6. Within days, the convention took
another controversial step, approving a resolution that allows local church officials to perform
same-sex union ceremonies of their own devising.  The approved resolution had been watered
down from a stronger proposal to actually approve a liturgy for same-sex unions for the entire
denomination.  There were claims that the resolution as worded had very different meanings for
different people who voted to support it, including the meaning that the Episcopal Church was
abstaining from taking a position on same-sex unions while recognizing that some local bishops
had approved such ceremonies. _New York Times_, Aug. 8.

_Evangelical Lutheran Church in America_   The _Los Angeles Times_ reported on July 26 that
the youth office of the Evangelical Lutheran Church in America had voted at a convention of the
Lutheran Youth Organization to welcome people of all sexual orientations and be listed as a
"reconciling" organization with Lutherans Concerned, a gay Lutheran group.  The reported noted
that 91% of the 300 delegates to the convention voted for the resolution.  At present, the church
does not ordain "actively gay" pastors or perform same-sex marriages, but does allow "celibate
homosexuals" to serve as clergy. 

_Catholic Church - Chicago_   Catholic Charities of the Archdiocese of Chicago announced on
Aug. 5 that it is reevaluating its foster and adoptive placement policies in response to a recent
Vatican pronouncement about how children are harmed by being raised by gay adults. The
statement came in response to a telephone inquiry from a Chicago radio station.  The agency
current policies do not inquire into sexual orientation, although a press release indicated that the
agency "has not knowingly placed any children into the care of same-sex couples or homosexual
individuals; nor have any applicants been turned away based on their sexual orientation."
Catholic Charities receives more than $20 million a year from the city of Chicago to administer
foster homes serving more than 1,000 children at any given time, and also handles about 200
adoptions a year.  A Chicago ordinance bans sexual orientation discrimination by any entity
providing services to the public. _Chicago Sun-Times_, Aug. 6.  The Vatican statement, which
asserted that Catholic politicians must oppose all legislation that would extend legal recognition
to same sex partnerse, stirred up a storm of discussion and protest in many countries and the U.S. 
Many of the U.S. press reports harked back to President John F. Kennedy's efforts during his
election campaign to draw the distinction between his obligations as an elected U.S. official and
his personal obligations as a member of the Roman Catholic Church, and observed that this
pronouncement by the Vatican threatened to undermine the ability of Catholic politicans to
persuade voters that they would not be taking orders from the Vatican about how to vote on
legislation.

_National: Same-Sex Marriage Debate_   Surprise: weighing in against a proposed federal
constitutional amendment to ban same-sex marriage is former U.S. Rep. Bob Barr, the author of
the infamous Defense of Marriage Act.  Barr, who was defeated for re-election and is now in
private law practice, published an op-ed column in the _Washington Post_ late in August in
which he asserted that principles of federalism mandated that the constitution not be amended to
impose a particular solution to the same-sex marriage issue on the states.  He pointed out that
DOMA was intended to assure that each state was free to take whatever approach it wanted on
marriage without obligating other states or the federal government to follow suit. "Make no
mistake," he wrote, "I do not support same-sex marriages.  But I also am a firm believer that the
Constitution is no place for forcing social policies on states, especially in this case, where states
must have the latitude to do as their citizens see fit."

_Don't Ask, Don't Tell, Don't Go on a TV Reality Show_   Michael Jason Tiner, an 8-year
Navy employee with a superb record as a combat systems instructor representing an investment
by taxpayers of tens of thousands of dollars, was honorably discharged from the service for
participating in the Bravo TV reality show "Boy Meets Boy." Part of the gimmick of the show is
that some of the potential boyfriends are actually straight.  Tiner, however, revealed after being
eliminated from competition that he is gay.  The show aired July 29, and he was officially
discharged on Aug. 19.  Your tax dollars at work. _Chicago Tribune_, Aug. 26.  

_California_ - Thinking they were striking a blow against the Boy Scouts' discriminatory
policies, the United Way of Sonoma-Mendocino-Lake adopted a policy in 2001 of not giving
direct grants to any organization (including the Scouts) that discriminates in its membership and
services.  However, donors can make directed donations through United Way to specific
charities.  On Aug. 25, the _Press Democrat_, a local paper in Sonoma County, reported that
directed donations to the Scouts through the United Way during fiscal year 2002-03 were actually
larger than the amounts the Scouts had received through United Way before the non-
discrimination policy was adopted.    In fiscal year 2001-2002, local Scouting received $30,200
in grants and donor-directed support through United Way.  In 2002-2003, the total, all donor-
designated support, was $41,300.  Evidently, the strategy has backfired, although it does give the
United Way the satisfaction of being able to say that it is not directly funding a discriminatory
organization.  It is estimated that Scouting nationwide receives about $85 million a year in grants
and donor-directed support through the United Way's 1400+ local chapters. * * * Meanwhile, a
local Scout unit in Sebastopol, California, has been suspended by the BSA for adopting a non-
discrimination policy.  According to a report in the Aug. 14 issue of the _Press Democrat_,
Venture Crew 488 adopted a statement that they would not discrimination on the basis of a long
list of categories in accepting membership applications, including gender, religion, and sexual
orientation, and "will instead judge on the integrity and character of each applicant." The BSA
denied an application for renewal of the Crew's charter, focusing on this unacceptable non-
discrimination policy. "The policies of the Boy Scouts of America are not pick and choose,"
explained Ralph Voelker, the new executive of the Redwood Empire Boy Scout Council, which
has geographical jurisdiction over Venture Crew 488.

_Illinois_   The board of trustees of the University of Illinois voted on July 17 to grant health and
dental benefits to same-sex domestic partners of university employees.  Seven private colleges or
universities in the state already provide such benefits, but the University becomes the first public
educational institution to do so.  The vote was 6-2.  University officials estimated the cost of the
program at $320,000 to $400,000 a year.  The policy covers campuses in Chicago, Springfield,
and Urbana-Champaign.  University officials expected about 100 employees to apply for the
benefits, out of a full-time workforce of 23,000. _Associated Press_, July 18.

_Massachusetts_   Perverted vigilante justice at work. . . ?  John J. Geoghan, the pedophile priest
whose exposure was key to the spreading scandal in the Roman Catholic Church, was murdered
by a fellow prisoner in his prison cell on August 23.  According to press reports, the other
prisoner, a violent homophobe who is serving a life sentence for a prior gay-bashing murder, beat
and strangled him to death.  Both Geoghan and the accused murderer, Joseph L. Druce, were
housed in the protective custody section in the prison.  Press reports indicated that Druce had
been planning the murder for months, and took advantage of a time when prisoners were allowed
out of their cells and one of the guards was missing from the area.  So much for the ability of the
Massachusetts prison system to safeguard controversial prisoners. _Boston Globe_, Aug. 25;
_New York Times_, Aug. 26.

_New York_   Rocked by scandals involving the local judiciary, the Brooklyn, N.Y., Democratic
Party leaders have approved a new screening panel process that will include non-political groups
for the first time.  Among the groups specifically listed for inclusion in the new process is the
Lesbian & Gay Law Association of Greater New York.  Under the process, party leaders will
bind themselves not to support the nomination for Supreme or Civil Court of any candidate who
has not been found qualified by the newly-constituted screening panel.

_New York_   It seemed like "no big deal" when the New York City Education Department,
impressed by the record of the Harvey Milk School, a program operated by the Hetrick-Martin
Institute for Lesbian and Gay Youth, decided to provide public funding out of the Department's
budget to allow the school to expand to serve more youngsters.  Started in 1984 as a private
school that met the accreditation requirements of the New York State Education Department,
HMS has been a refuge for high school students who could not "make it" in the public schools,
usually due to somewhat gender-bending personas that attracted harassment of a verbal or even
physical nature from fellow students that was not adequately addressed by school administrators. 
At any given time, the school has only had the capacity to handle a small number of students,
since funding limitations led to limitations on physical plant and staff size.  Most of those who
contacted the school seeking admission had to be turned away.  The new public money was
intended to fund a physical expansion that would allow HMS to accommodate a larger
percentage of those seeking to enter its programs while bringing it under the formal operating
umbrella of the public school system.  No big deal, one would have thought. But the _New York
Post_ got hold of the story and blew it up into a "segregated high school for gay students,"
arousing social conservatives and even splitting those in the gay community, some of whom were
troubled that expanding HMS was a way to let the Education Department off the hook for failing
to address issues of homophobia in the public schools.  Newspapers around the country were full
of heated letters and editorials about how gay teens would not learn to get along in society by
attending a segregated high school program.  Indeed, the _New York Times_, falling for the
hype, subsequently ran an anti-HMS op-ed by a gay person who asserted that, by golly, he "came
out" in high school and encountered no problems at all (not the point, buster...), followed up by a 
"troubled" editorial featuring the usual _Times_ dithering.  The _Daily News_ ran its own
editorial, and clearly got the point that eluded the elitist _Times_ editorial board: that HMS is for
the extreme cases, not for the run-of-the-mill lesbian, gay or bisexual student whose high school
career has not been jeopardized, and that it serves an important need in seeing that a group that
would otherwise be dropouts and rejects has a chance at a high school degree and a college
education.   (An impressive 95% of HMS students to date have earned their diploma, for above
the rather abysmal graduation rate for the city high schools.)  It will be interesting to see how this
one plays out, since some conservative elements on the City Council are talking about trying to
countermand the funding decision, although Mayor Mike Bloomberg, a nominal Republican who
is pro-gay, came to the program's defense. * * * An outspoken critic of the Harvey Milk School
and noted homophobe, State Senator Ruben Diaz, filed a lawsuit in New York Supreme Court on
Aug. 13, contending that the funding for Harvey Milk violates laws against segregation and
seeking injunctive relief.  Since HMS does not discriminate in admissions on the basis of sexual
orientation, the likelihood of this suit succeeding appears slim. A.S.L.

_United Nations_   The United Nations is considering the possibility of extending employee
benefits to same-sex partners of its staff.  Reuters news agency reported on August 4 that
Secretary-General Kofi Annan had met recently with senior advisors to consider the adoption of
such a policy, a complicated matter due to the diversity of views about homosexuality among
member nations of the world organization.  Said the Chief U.N. spokesperson, Fred Eckhard,
"Our current policy is to factor in the national laws of the staff member involved, and every
nation has different laws on this matter.  So we are weighing all of that information now as we
contemplate a possible new policy on benefits to staff members who are in something other than
a traditional marital relationship." 

_Virginia_    Jay Fissette, an openly-gay member of the Arlington County Board of Supervisors,
has announced that he will be a candidate in the Democratic primary for Virginia's 8th
Congressional District next year, challenging incumbent Rep. James P. Moran, Jr.  Fissette hopes
to become the first openly-gay non-incumbent man to be elected to Congress.  All the other
openly-gay men who have served in Congress came out after they had already achieved veteran
status in the House of Representatives.  Katherine K. Hanley, chair of the Fairfax County Board
of Supervisors, has also announced her candidacy for this seat.  Speculating that Fissette would
try for the congressional seat was fueled by his decision not to run for an open seat in the
Virginia House of Delegates. _Washington Blade_, Aug. 8. A.S.L.

Other International Notes (by A.S.L. unless otherwise noted)

_Europe_   The International Lesbian and Gay Association's European branch reported that as of
August 1, all of Europe was free from laws against consensual sodomy between adults for the
first time since the enactment of the Byzantine Emperor Justinian's legal code in the 6th Century
C.E.  The final country in Europe to decriminalize consensual sodomy was Armenia, which
enacted a new penal code last spring that went into effect Aug. 1, 2003.  The first country to
decriminalize was France, 200 years ago with adoption of the Napoleonic Code.  But as recently
as 1950 the majority of European states criminalized consensual adult sodomy.  Several major
countries decriminalized after World War II in response to the revelations coming from the
Kinsey Reports in America and responding to movements for legislative reform in countries such
as United Kingdom and Germany.  But the major recent breakthroughs were a 1981 ruling by the
European Court of Human Rights holding that sodomy laws violated the European Convention
on Human Rights (in a case involving Ireland), and the collapse of the Soviet Empire in 1989,
which opened the way for Eastern European countries to join the Council of Europe.  With
significant lobbying input from ILGA-Europe, the repeal of sodomy laws was made a condition
for new countries to become part of the European community.

_Australia   Tasmania_   The Australian state of Tasmania has enacted several relationships
bills proposed by the government that will provide for registration rights for same-sex partners
and other significant relationships, and will allow same-sex partners to adopt children.
_Tasmania Explorer_, Aug. 29.

_Canada_   No fast track for a ruling by the Canadian Supreme Court on the same-sex marriage
bill proposed by the ruling Liberal Party leadership in Canada.  On Aug. 2, Chief Justice
Beverley McLachlin announced that the court had already prepared its docket for the fall session,
and the court would complete that docket before addressing the questions posed by the
government on its proposed bill.  (These questions go to whether the proposed federal law would
be binding on all the provinces and whether the exemption from performing same-sex marriage
ceremonies for objecting religious organizations is sufficient to meet Canadian constitutional
principles of toleration for religion.)  This would mean that the court will not likely begin
considering the draft legislation until late in 2003 or early in 2004, with a ruling sometime in the
spring. _365Gay.com Newscenter_, Ottawa, Aug. 3. * * * In a rare public statement, Chief
Justice Roy McMurtry of the Ontario Court of Appeals defended the court's recent same-sex
marriage decision.  During a question-and-answer session with about 120 high school law
teachers attending an institute at Osgoode Hall Law School, McMurtry stated: "I think our
decision will stand.  Assuming the Supreme Court of Canada, in reviewing the proposed
legislation, finds that the definition of marriage is based on a relationship between two persons,
to the exclusion of all others, I would think there would be serious, and perhaps successful, legal
challenges" to the efforts "of any one province to frustrate that." McMurtry said that his court's
decision was about "human dignity and equality," and he expected it to withstand any attempt at
further judicial review. _Toronto Star_, Aug. 28.

_Croatia_   Gay.com UK reported on Aug. 8 that the government of Croatia is considering
legislation that would provide the same status for same-sex partners that is now accorded to
unmarried opposite-sex partners.  In Croatia, as in much of Europe, unmarried cohabitants enjoy
a variety of family-like legal rights, which emerged from the disestablishment of churches that
had governed family law in many of those countries when they were monarchies.

_Egypt_   An appeals court acquitted eleven men of committing debauchery based on reports of
gay activity.  One judge commented from the bench that it was unfortunate that the convictions
had to be overturned due to procedural errors, stating: "We are so disgusted with you, we can't
even look at you.  What you did is a major sin."   A.S.L.

_Guyana_   The government of Guyana proposed a constitutional amendment that would outlaw
sexual orientation discrimination.  After a lengthy, heated parliamentary debate, the government
moved to refer the matter to a constitutional review committee rather than take a vote.  The
constitution requires a 2/3 majority of the 65 member Parliament to amend the constitution.
_Miami Herald_, July 26. A.S.L.

_Israel_   Reuters reported on July 31 that the city of Tel Aviv, Israel, has granted same-sex
couples the same city discounts as married couples.  Residents who declare their same-sex union
in a notarized statement may receive discounts on city services and sites, such as sports centers
and museums, but does not extend to state benefits, such as child allowances.

_Italy_   Pursuant to a European Union directive issued in 2000, member states of the Union
have until the end of 2003 to enact national laws banning sexual orientation discrimination in
addition to a lengthy list of other prohibited grounds, such as age and disability.  The Italian
government has issued a decree intended to fulfill its EU obligation, but, to the consternation of
Italy's national gay organization, ARCI GAY, the decree takes advantage of permission given in
the EU Directive to make exceptions where it can be shown that "genuine occupational
requirements" require exclusion from particular employment.  
The Italian directive, notes ARCI GAY, leaves open the possibility of authorizing anti-gay
discrimination in the police, armed forces, prison and rescue services on grounds of unsuitability. 
ARCI GAY also contends that the Italian decree fails to comply with procedural requirements
under the Directive.

_Poland_   Senator Maria Szyszkowska has proposed a bill in the national legislature to establish
civil unions for same-sex partners.  Moving ahead of the wishes of gay rights organizations in the
country, she was inspired by a story that authorities had refused to allow a dying man's partner to
visit him in the hospital. "If we are going to be part of Europe," she said, we have to learn to
accept some things that we may not personally agree with.  Tolerance is what a democratic
society is all about." However, recent polls show only 4% support among the general public in
Poland for same-sex civil unions, while 62% are strongly opposed. _Gay.com UK_, Aug. 28.

_South Africa_    On July 31, in _Marie Fourie & Cecelia Bonthuys v. Minister of Home
Affairs_, Case CCT 25/03, the Constitutional Court of South Africa refused an application by a
lesbian couple for leave to appeal directly to the Constitutional Court, from the Oct. 18, 2002
decision of the Pretoria High Court dismissing their constitutional challenge to the exclusion of
same-sex couples from civil marriage.  Instead, the couple's case will be heard first by the
Supreme Court of Appeal (the highest court for non-constitutional matters), which has
jurisdiction over common-law rules.  Appeals from the High Court (a trial court) normally go to
the SCA, but when a statute is challenged as contrary to the South African Constitution, the
appeal goes directly to the Constitutional Court.  Because the "one man and one woman"
definition of marriage is found, not in the Marriage Act, but in a common-law rule (as in
Canada), the SCA will be given a chance to modify the common-law rule to make it conform
with the Constitution, as Section 8(3)(a) of the Constitution requires ("a court ... in order to give
effect to a right in the Bill [of Rights], must apply, or if necessary develop, the common law to
the extent that legislation does not give effect to that right").  Even if the SCA decides to modify
the rule, it is possible that the South African Government will appeal to the Constitutional Court. 
The Lesbian and Gay Equality Project is planning to start a separate class action in the
Johannesburg High Court (Witwatersrand Local Division), which could at some stage be
consolidated with, or supersede, Fourie & Bonthuys. _Robert Wintemute_

_South Africa_   The South Africa Law Reform Commission issued a set of proposals on Aug.
28 to provide legal recognition for non-marital couples, including proposals to open up marriage
for same-sex couples and proposal to establish a civil union status that could be available for
both same-sex and opposite-sex couples.  The commission is hoping to receive substantial
comment from the public and will revise its proposals to reflect such comments and issue the
revised versions next year.  Copies of the proposals can be obtained from the Commission's
website: www.law.wits.ac.za/salc.html.  

_United Kingdom_   On Aug. 14, Judge Charles Harris of Oxford County Court rejected a
discrimination claim brought by five transsexuals who were told to leave a pub after one of them
used the women's toilet.  The five plaintiffs claimed that the owner of the Red Lion in Thornby
had unlawfully refused to serve them.  The Equal Opportunities Commission had agreed with
their complaint that they had suffered discrimination on account of sex, but Judge Harris
disagreed, pointing out that at the time of the incident, they were perceived as men dressed as
women, because only one of them had undergone gender reassignment surgery.  Harris opined
that they were "biologically men in law" and that their conduct in the pub might upset other
customers. "The defendant was not in breach of his obligations," said Harris. "He was entitled to
ask these customers to leave.  They were men clothed and behaving like women.  They were
excluded from the pub, not because the landlord was discriminating against them as women, but
because he took the view that customers were unhappy about men using the women's lavatories."
Expressing satisfaction with the ruling, the pub owner commented: "I don't understand why I am
here, but the law has run sensibly.  You shouldn't have male genitalia in the ladies' lavatories. 
It's as simple as that." A spokesperson for the Commission expressed disappointment, stating:
"The EOC supported this test case because we believe transpeople should have the same right as
anyone else to go into a pub and enjoy a drink."  The Blair government is consulting on proposed
legislation to extend legal recognition to transgendered persons in compliance with European
Union rulings. _The Guardian_, Aug. 15. 

_Uzbekistan_   The _Chicago Tribune_ reported on Aug. 14 that Ruslan Sharipov, an openly-
gay journalist, was found guilty of sodomy at a trial on Aug. 13 and sentenced to 5-1/2 years in
jail.  Sharipov leads an independent group that focuses on media freedom in a country where that
is a scarce commodity, and has been repeatedly detained, beaten and questioned by police
officers.  There were suspicions that this was a political prosecution.

Professional Notes

_Hofstra Law School Gay Fellowship_   The _New York Law Journal_ reported on Aug. 11 that
Hofstra University Law School, in Hempstead, Long Island, N.Y., has established a new program
of Fellowships for the Equality of Lesbian, Gay, Bisexual and Transgender People, and has
awarded three fellowships to entering students for this fall.  The students will receive $25,000
scholarship stipends, and were selected based on their demonstrated commitment to LGBT
issues.  The program is part of the school's amelioration activities in response to its decision to
allow military recruitment to resume on campus in the face of renewed enforcement by the
Defense Department of the Solomon Amendment.  The first three fellows are Jeff Dodge, Jaime
Piazza, and Krista Smokowski.

_Former White Clerk Speaks Out About _Lawrence   The _Albuquerque Journal_ (Aug. 15)
published an interview with Andrew Schultz, a local law firm partner and adjunct professor at the
University of New Mexico Law School, reflecting on _Bowers v. Hardwick_ and _Lawrence v.
Texas_, the Supreme Court's big sodomy law cases.  Schultz clerked for Supreme Court Justice
Byron White during the _Bowers_ term and was the clerk assigned to draft the majority opinion
in that case, which rejected a constitutional privacy challenge to Georgia's felony sodomy law. 
He stated that he had disagreed with the outcome in _Bowers_ at the time, but was just doing his
job.  Justice White was aware of his opposition, and had even asked if he wanted to be relieved
of that case, but he had felt a professional obligation to do the work.  Schultz commented that
clerks are there to assist with decisions, not to make them. "I talk to law students a lot about
clerking," he said. "I tell them, 'You're not as important as you think.'" Schultz is one of only
three New Mexico attorneys who have ever clerked at the Supreme Court.  Schultz commented
that Justice White frequently made substantial revisions to drafts submitted by clerks. "I can
recognize my work in _Bowers_," he said. "I also know a lot was left on the cutting room floor. .
.  I do recall there was not a lot of give and take among the justices in the majority, so there not a
lot of rewriting."   Reflecting on his reactions after reading Justice Kennedy's opinion for the
Court in _Lawrence_, which specifically overruled _Bowers_ and described it as "wrong when it
was decided," Schultz commented: "In some ways, I felt like a 17-year-old monkey had been
lifted off my back.  On one hand I felt very strongly that the majority opinion [in _Lawrence_] is
correct.  But at the same time, it was strange reading [attacks on] the reasoning of something I
helped work on. . .  It's a 180-degree difference both in terms of starting point and what the right
[of privacy] encompasses.  That's a function of changes in the law, six new justices and who
knows, maybe a difference in advocacy. . .  It's a big deal for the Supreme Court to overturn
itself.  They tend to be big issues and they tend to be few and far between   as it should be."   
Schultz is described in the article as a liberal who is a member of the board of directors of the
Anti-Defamation League and a cooperating attorney with the ACLU of New Mexico, which gave
him an award as its cooperating attorney of the year in 1996.

_Another openly-gay California Judge_   California Governor Gray Davis has appointed an
openly-gay attorney, Joseph Biderman, to be a judge of the Los Angeles County Superior Court.

_Le-Gal Part of Brooklyn Judicial Reform Solution_   Democratic Party leaders in Brooklyn,
New York, coping with controversy on the method of selecting judicial candidates, voted on
Aug. 19 to set up an independent screening panel system, and listed the Lesbian and Gay Law
Association of Greater New York as one of the groups that would be called upon to designate a
member to sit on the panel.  The screening panels will evaluate qualifications of potential
candidates for the Brooklyn County State Supreme Court and for Civil Court candidates running
in Brooklyn districts.    _New York Law Journal_, Aug. 20, p. 1. A.S.L.

AIDS & RELATED LEGAL NOTES

Federal Appeals Courts Rip New Holes in ADA Protection

In a startling new development that seems contrary to the rationale of the Supreme Court's main
HIV-related precedent, _Bragdon v. Abbott_, 524 U.S. 624 (1998), in which the Court held that
impairment in procreative ability as a result of HIV-infection could qualify as a disability under
the Americans with Disabilities Act (ADA) for the purpose of determining whether the public
accommodations portion of that law applies to a dentist's discriminatory refusal to treat a patient,
two federal appeals courts have now decided that in order for the ADA to require an employer to
accommodate an employee's physical impairment, the major life activity affected by the
impairment must be logically related to the requested accommodation.  

In _Felix v. New York City Transit Authority_, 324 F.3d 102 (2nd Cir., March 31, 2003), the
plaintiff was a transit authority subway token booth clerk who was diagnosed with insomnia
resulting from post-traumatic stress disorder stemming from an incident that occurred in the
subway.  She requested an accommodation of an above-ground work assignment, which the court
held she was not entitled to have (over a strong dissenting opinion) because her ADA
impairment, the inability to sleep, had not logical relationship in the court's view to her requested
accommodation.  In _Wood v. Crown Redi-Mix, Inc._, 2003 WL 21804996 (8th Cir., Aug. 7,
2003), the court dealt with an employee who had suffered a work-related back injury, which he
claimed had substantially limited his ability to engage in major life activities of working,
walking, bending, turning, standing, lifting, or procreation.  The employee requested a
reassignment from his truck-driving position, which the employer denied.  After reviewing all the
evidence, the court concluded that Wood's only major life activity that was _substantially
limited_ by his impairment was procreation, and that the limitation on his procreative abilities
had nothing to do with his requested accommodation.  Thus, even though Wood could be
considered an individual with a disability under the ADA, he was not entitled to his requested
accommodation.

Of course, in _Bragdon v. Abbott_, the limitations on Ms. Abbott's reproductive ability had
nothing to do with any kind of accommodation that would be required for Dr. Bragdon safely to
provide dental services to her, since the accommodations would involve taking extra precautions
to avoid blood exposure to him, his staff and his other patients.  The Supreme Court held in that
case that Abbott's HIV-infection would qualify her for ADA protection due to its substantial
limitation on her procreative capacities   a major life activity   and never so much as intimated
that the only accommodation she could require from Bragdon was one related to her procreative
impairment.

Bad as the 2nd Circuit's decision was, the 8th Circuit's is worse, since it focuses on impairment of
procreation and holds, in effect, that a person whose only qualification for ADA protection is
procreation may not require any accommodation to deal with other impairments that might stem
from their medical condition unless those impairments are found also to substantially limit some
major life activity that directly relates to the requested accommodation.  Such logic threatens to
deprive HIV+ plaintiffs of almost any assistance under the ADA.  A.S.L. 

Federal Court Holds HIV+ Inmates May Be Segregated

U.S. District Judge John C. O'Meara (E.D. Mich.) Ruled on July 28 that the Michigan
Department of Corrections (MDOC) does not violate federal laws banning disability
discrimination by keeping those HIV+ male inmates who have engaged in sex in prison, isolated
in administrative segregation. _Gibbs v. Martin_, 2003 WL 21909780.  O'Meara's ruling found
that such inmates present a "direct threat" to other inmates, thus a statutory exception to the usual
non-discrimination requirement governing services for persons with disabilities was applicable.

Three inmates, William Gibbs III, Kim Elmer, and Ricahrd Simmon, who sued the Michigan
Department of Corrections and various prison officials, claimed that the "sexual misconduct" for
which they had been cited and administratively sentenced to a period of punitive segregation was
consensual, a point that prison administrators did not dispute.  Their complaint is that uninfected
prisoners sentenced to punitive segregation for sexual misconduct are released back to the
general prison population after serving their punitive time, but that the HIV+ prisoners are placed
in administrative segregation, which includes denial of many of the paltry amenities of prison life
and subjects the inmates to the psychological stress of isolation.

O'Meara expressed skepticism about several aspects of the plaintiffs' arguments.  He observed
that <!69>one can just as easily get HIV from consensual sex as non-consensual sex," an
inaccurate observation, as the rate of HIV transmission is demonstrably greater if sex is
traumatic, minimal if the sex is oral rather than anal, and virtually nil if the sex is masturbatory. 
O'Meara's written opinion is non-specific as to the nature of the "sexual misconduct" of which
the inmates were accused.  O'Meara also noted, as casting doubt on the consensual claim, that
one of the inmates had been imprisoned for sexual assault in the first place.

O'Meara commented, "I want to emphasize that I think it is hard to determine what is truly
consensual in a prison environment.  Furthermore, prisoners are not supposed to have sex in
prison (even consensual sex) and these Plaintiffs are HIV+.  Although they claim they will not
engage in any more sexual misbehavior, I believe they (as well as all HIV+ prisoners who engage
in sexual behavior) pose a direct threat to other prisoners."

The legal basis for the inmates' discrimination claim was that under Section 504 of the
Rehabilitation Act and the Americans with Disabilities Act (ADA), HIV+ persons have a
disability and are not to be excluded from any program, activity or benefit to which they would
otherwise be entitled solely on the basis of that disability.  In this case, as uninfected prisoners
who are given punitive segregation are subsequently released back to the general prison
population, the plaintiffs argued that the sole reason for their differential treatment is their HIV-
status, and that such discrimination is not objectively justified.

A defendant can subject a person with a disability to differential treatment if the disabling
condition presents a "direct threat" to others.  The "direct threat" exception to the general rule
against discrimination was specifically placed in the law in response to the Supreme Court's
1987 ruling in _School Board of Nassau County, Florida v. Arline_, 480 U.S. 273, holding that
persons with contagious, disabling conditions were protected against discrimination under the
Rehabilitation Act unless they presented a significant risk to others.  Congress codified this by
amending the Rehabilitation Act to include the direct threat exception, and when the ADA was
passed a few years later, the direct threat exception was carried forward into the new law.  There
is some dispute among courts whether the burden is on the plaintiff or  defendant to provide the
evidence necessary to decide this question.  The law also provides that if a reasonable
accommodation can eliminate the threat, then the plaintiff is protected by the statute.

The prison officials argued that any HIV+ inmate who engaged in sexual misconduct in prison
presents a direct threat to transmit HIV to other prisoners. "Plaintiffs in this case have
demonstrated themselves to be individuals who will still engage in sexual activity even though
they are HIV+," wrote O'Meara, without bothering to distinguish between high-risk sex and safer
sex. "That, in and of itself, is a direct threat to the health and safety of other inmates."  The
plaintiffs argued that their sexual misconduct occurred years ago, that they had done their time in
punitive segregation and had been living for an extended period in administrative segregation
without untoward incident, and thus no longer pose a continuing threat of harm, or, as O'Meara
characterized their argument, "that they have learned their lesson."  

But the defendants presented an expert witness, Dr. George Pramstellar, the chief medical officer
of the prison system, who testified that "sexual misconduct" is not usually an "isolated incident"
but, rather, a pattern of conduct.  Pramstellar and other defense witnesses, all prison
administrators, testified that "it is difficult to predict if a prisoner will commit another sexual
misconduct and that the safest policy is to keep the inmate in administrative segregation." 
Unfortunately, most likely due to lack of resources, the inmates were unable to present expert
testimony to counter this evidence. 

O'Meara noted that an even more restrictive policy followed by the Alabama prison system, of
automatically isolating _all_ HIV-positive inmates,  regardless whether they have engaged in any
misconduct, has been upheld in _Onishea v. Hopper_, 171 F.3d 1289 (11th Cir. 1999), in a
decision that was denied review by the Supreme Court. "It seems hard to allow this case to go
forward where the MDOC policy is more restrictive and narrower than the policy upheld in
_Onishea_," O'Meara wrote.  He also noted a prior decision by the U.S. Court of Appeals in
Cincinnati, which has appellate authority over the federal courts in Michigan, which showed
"caution" in "balancing the harms when HIV is involved."

The inmates also argued that if they were provided with condoms by prison authorities, they
could cut HIV transmission risk and eliminate the direct threat.  Judge O'Meara was not buying
this solution: "With all due respect to Plaintiffs' counsel, this argument is without merit," he
wrote. "First of all, prisoners are not supposed to engage in sexual acts with other prisoners. 
Why should the prison provide condoms so prisoners can perform what is prohibited?  Second,
in reality, we are dealing with a prison environment and prisoners are not model citizens.  Should
we trust that prisoners (some, like Plaintiff Ellmer, who are in prison for criminal sexual
conduct) will reliably use condoms when performing prohibited sexual misconduct?"  One can
hear the sarcasm dripping from the judge's pen.

With equal sarcasm, O'Meara asked whether the prison should monitor whether HIV+ inmates
are disclosing their sero-status to their sexual partners. "This is a prison environment," he
insisted, "and we believe that we should defer to prison authorities where appropriate."  O'Meara
concluded that the demand for condoms would place uninfected inmates at risk, and said "they,
too, have a right to be protected from contracting this fatal and incurable disease."

The resistence of prison officials to making condoms available to inmates   the head in the sand
approach that feigns ignorance about situational and real homosexuality in prisons   undoubtedly
contributes to the significant problem of HIV transmission in prisons, but to this court it is
apparently just a bad joke.  A.S.L.

9th Circuit Finds HIV+ Prisoner Pleaded Prima Facie 8th Amendment Violation in Treatment
Dispute

In a rare victory for an HIV+ prisoner seeking redress under the 8th Amendment for denial of
treatment, a panel of the U.S. Court of Appeals for the 9th Circuit ruled Aug. 21 that officials at a
California State Prison appeared to have exhibited deliberate indifference to the serious medical
needs of prisoner Mark Stinson when they refused to provide treatment directed by Stinson's
physician to deal with symptoms related to his HIV+ condition. _Stinson v. Galaza_, 2003 WL
21995339 (not selected for publication in the Federal Reporter).  

According to the court's per curiam opinion, Stinson, who represented himself pro se, was
suffering from painful side-effects from drug therapy.  His doctor had directed that he be
provided with ice to alleviate the symptoms, but, as the court said, "there is evidence in this
record that prison officials simply refused to follow the directions of Plaintiff's treating physician
with respect to treatments designed to combat the onset of AIDS.  Plaintiff's medical need for the
treatment was serious, and there is evidence that the officials were deliberately indifferent to that
need." The court also found that there was evidence of injury to Stinson from the denial of the
ice: he suffered severe dehydration, pounding migraine headaches, and experienced a burning
sensation in his throat, chest, and stomach, that the ice was intended to alleviate.  

Reversing the decision by Judge Oliver W. Wanger of the Eastern District of California, that had
granted summary judgment against Stinson, the appeals court found that Stinson had "offered
sufficient evidence to raise a genuine issue of material fact as to whether Defendants were
deliberately indifferent to his serious medical needs."   The appeals panel also found no merit to
the defendants' claim that they enjoyed qualified immunity in this case, finding that the " law
concerning deliberate indifference was clearly defined at the time the Defendants refused
Plaintiff the prescribed ice, and a reasonable official would have understood that the alleged
actions were contrary to law."

However, the court found that Stinson had failed to produce the necessary evidence to support
his additional claim that he had suffered retaliation in response to his filing an administrative
complaint against one of the plaintiffs in the matter of the ice, and agreed with the district court
that this was not an appropriate case for a declaratory judgment.  Thus, the matter was remanded
solely on Stinson's 8th Amendment damages claim.  A.S.L.

Tennessee Supreme Court Denies Worker's Compensation Claim for AIDS Phobia Based on
Blood-Splashing Incident

In a unanimous decision rendered on Aug. 27, the Tennessee Supreme Court ruled that an
employee who suffered post-traumatic stress disorder as a result of being splashed by a co-
worker's blood was not entitled to compensation under the state's Workers Compensation Law,
reversing a deicsion by the Shelby County Chancery Court. _Guess v. Sharp Mfg. Co. of
America_, 2003 WL 22019137.  Following its own precedents developed in suits for negligent
infliction of emotional distress arising from needle-stick injuries, the court held that proof of
actual exposure to HIV in a context where transmission is likely is a prerequisite for finding a
work-related injury compensable under the state's insurance scheme.

Plaintiff Mary Guess, who has only a high school education, had been an assembly line worker at
Sharp since 1984.  On November 6, 1998, one of her co-workers lacerated his hand, resulting in
some of his blood getting on Guess's hand.  She had no penetrating injury, but she testified that
she did have open cuts on her hands as well as a fresh manicure.  Guess testified that as a result
of getting the blood on her hands, she was "out of control," "nervous," "screaming for help,"
"upset," "shaking," and "hysterical." She believed that her co-worker was HIV+.  Although she
did not know this for a fact, she suspected that he was gay, and she claimed that he was
frequently absent from work for health reasons, that he had friends who had suffered from AIDS,
and that he appeared frail and "looked and acted gay."

Guess testified that the consequences of this incident were quite severe.  She developed a
hysterical belief that she had been infected with AIDS, which was not dispelled by five negative
HIV tests.  Her family practitioner diagnosed "agitated depression" and told her to stay away
from work for six weeks, beginning November 11, 1998.  She developed a horror of germs,
constantly disinfecting her bathroom, had difficult sleeping or going out in public with her
family, and refused to have sex with her husband.  The employer referred her to two
psychiatrists, both of whom found that she had developed real mental problems as a result of the
incident.  The company's expert witness at trial testified that the possibility Guess was actually
infected was "infinitely small" in light of the negative tests and the "unknown status of the
source." (Evidently, nobody thought to ask the co-worker about any of this?? Nothing is reflected
in the opinion one way or the other.)

The trial court decided that Guess had suffered a vocational disability as a result of the
psychological consequences of her injury, and awarded her compensation for a 38% permanent
partial mental disability.  The company appealed to the Special Workers' Compensation Panel,
and Guess cross-appealed, claiming she should have been awarded 75% disability.  Before the
case could be argued, it was transferred directly to the state supreme court for review.

Writing for the court, Justice William M. Barker stated, "We do not question the validity of the
medical experts' diagnoses of Post Traumatic Stress Disorder stemming out of the incident
during which Guess got blood of a co-worker on her hand.  While PTSD can, in some
circumstances, be a compensable workers' compensation injury, the facts of this case are such
that Appellee's injury was not 'arising out of' her employment."

Reviewing the court's past precedents in worker's compensation emotional distress cases as well
as negligent infliction of emotional distress torts suits, Barker concluded that the most significant
precedent "basically stands for the proposition that without proof of actual exposure, the plaintiff
failed to show the proximate cause element of negligent infliction of emotional distress. 
Applying a similar analysis in the context of this workers' compensation claim, we find that
without proof of actual exposure, the appellee cannot show that her injury arises out of her
employment."

Barker asserted that "Guess has offered no credible evidence that she was actually exposed to
HIV.  There is nothing in the record to establish whether the blood in question was even HIV
positive.  Guess's fears of contamination are based on speculation regarding her co-worker's
sexual orientation and her subsequent assumption that he was HIV positive.  Aside from this
speculation by the plaintiff, there was no evidence that the blood with which she came into
contact was infected with the virus. . .  We are unwilling to accept the appellee's subjective
impressions concerning the co-worker's sexual orientation or frail medical condition as proof
that his blood was in fact contaminated.  To do so would be to further the prejudices and
stereotypes surrounding AIDS.  In _Bain_ [the emotional distress case], we specially cautioned
against allowing damages based on an unfounded fear of contracting AIDS on public policy
grounds."

Ultimately, the case seemed to come down to an exercise in line-drawing as a matter of policy.
"If a plaintiff were allowed to recover under the facts of the present case," wrote Barker,
"anybody suffering from a mental injury stemming from any perceived or imagined exposure to
harmful substances or situations would be entitled to recovery.  We find such a result contrary to
the original purpose and continued viability of the Tennessee Workers' Compensation Law."
Consequently, the court reversed the Chancery Court's finding and dismissed the claim.  It also
awarded costs on appeal against Mary Guess.  A.S.L.

N.J. Appellate Division Renders Split Decision on Liability Insurer's Defense Obligations Under
Homeowner's Policy

In an opinion by Judge Fuentes, the New Jersey Appellate Division ruled July 16 that a
homeowner's liability policy does not cover a claim against the homeowner for intentional and
wanton conduct in not disclosing his HIV status to a sexual partner incident to conduct in the
home, but may cover the negligence liability of his adult children for failing to disclose his HIV
status to his sexual partner. _Silvestri v. Dowdy_, 2003 WL 21663716.  The opinion arose out of
a dispute over whether the insurer, Allstate New Jersey Insurance Company, was responsible
under the homeowners policy to provide a defense for the named insured and his children.

Lawrence Dowdy is the named insured on a homeowners policy issued by All-State.  Section II
of the policy covers "Family Liability and Guest Medical Protection."  The policy purports to
cover bodily injury and property damage arising out of an occurrence covered under the policy. 
The policy later defines an occurrence "as an accident, including the continuous or repeated
exposure to substantially the same harmful conditions during the policy period" leading to an
injury.  Those covered under the policy are "you and, if a resident of your household . . . any
relative."  By the context of the preceding language it would seem that Lawrence and his children
would be sheltered under the umbrella coverage intended by the policy.  However, Silvestri's
complaint alleges both negligent and intentional causes of action.  All-State's policy expressly
excludes "an injury intended by, or which may reasonably be expected to result from the
intentional acts or omissions of the insured person."

Judge Fuentes' analysis begins with "well-established principles of insurance law."  The insurer
is obligated to defend an insured when a cause of action is alleged that may potentially fall within
the coverage of the policy, irrespective of the final outcome.  Fuentes cites New Jersey case law
regarding the assessment of such a duty.  The complaint is to be laid "alongside the policy to
compare the allegations with the language of the policy."  The obligation of the insurer to defend
is triggered when the allegations in the complaint, if sustained, would require the insurer to
indemnify the insured, and any doubts are to be resolved in favor of the insured.  Judge Fuentes
acknowledged the well settled policy that contractual exclusion of coverage for intentional torts
is valid. 

In an attempt to uphold the Law Division's summary judgment obligating All-State to provide
legal defense, Dowdy contested that his actions were intentional, arguing that since he wore a
condom during each and every sexual encounter with Frances Silvestri, he could not have
intended or reasonably have expected to transmit the disease and harm her.  Fuentes harps on
Lawrence's erroneous analysis, asserting: "Dowdy misses the point."  Fuentes explained that
Dowdy mischaracterized the question of intent by relating it to actual potential to transmit the
disease.  However, the necessary intent is not to infect another but instead intent is to be assessed
as it relates to the likelihood of causing emotional distress, since that was the basis of Silvestri's
claim.  

Fuentes sustained this point by citing the seminal decision in _Vorhees v. Preferred Mutual Ins.
Co._, 128 N.J. at 183 (1992),  which created an objective test.  The N.J. Supreme Court reasoned
that "when an act is particularly reprehensible, the intent to injure can be presumed from the act,
without an inquiry into the actor's subjective intent."  Dowdy's actions were so inherently
deceitful that any reasonable person should have foreseen the substantial likelihood of causing
such an injury.

Fuentes reversed the lower court's judgment as it relates to Dowdy, holding  that Dowdy, by his
unilateral action of withholding knowledge of his communicable illness, so deprived Frances
Silvestri of her right to self-determination; her right to "choose whether or not to assume the risk,
no matter how slight . . ."  Fuentes demonstrated the wrongfulness of such conduct by restating
N.J.S.A. 2C:34-5b, 43-6a and 43-3b, a law against knowingly misrepresenting such infection by
unilateral non-disclosure.  The penalty carries a maximum of 5 years imprisonment and up to a
$15,000 fine.

Fuentes used the objective test provided by _Vorhees_ and driven by public policy to hold
Dowdy's actions to have been intentional as a matter of law.  The implications of such a ruling
exclude Dowdy from coverage under his homeowners policy, reversing the Law Division's
granting of summary judgment. 

But, as for his adult children, co-defendants in the case, Fuentes reached a different judgment. 
Silvestri's theory presumes a duty imposed upon the children to affirmatively seek out all of their
father's lovers to alert them of his condition.  This is a theory of negligence because it alleges
that the children failed to act by "negligently assuming that their father would tell his fianc‚
about his HIV+ condition."  Even though this claim may be without merit, the court held that
All-State was obligated to defend the children.  If the allegations and the language of the policy
correspond, the insurer has a duty to defend "regardless of the claim's actual merit."  The
children, who lived in the house, were insured, and the alleged cause of action sounds in
negligence, a claim within the policy requiring the insurers to defend.  The court affirmed the
lower court's decision as to this, requiring All-State to defend the Dowdy children.  J.F.

Ohio Appeals Court Upholds 16-Year Sentence in "HIV Assault" Case

The Court of Appeals of Ohio has upheld the imposition of a 16-year sentence on Nader
Gonzalez, who is HIV+, for having sex with a girlfriend without disclosing his HIV status,
rejecting Gonzalez's argument that the statute is unconstitutionally vague and that errors by the
trial court would justify setting aside his conviction. _State of Ohio v. Gonzalez_, 2003 WL
21991343 (Aug. 22, 2003).  The unanimous ruling minimizes prejudicial errors at trial that may
have inflamed the jury against the defendant.

Gonzalez was charged under Ohio R.C. 2903.11(b)(2), which makes it a serious felony offense
for a person who knows that he is HIV+ to engage in "sexual conduct" with another person
without first disclosing his HIV+ status to that person.  It is not necessary that HIV actually have
been transmitted for the statute to be violated, since what the legislature has specifically
criminalized is the act of engaging in sex without making an appropriate disclosure.

According to the opinion by Judge Mark P. Painter, Gonzalez, who lived in Cincinnati, was
diagnosed in June, 1999, when he was hospitalized with AIDS symptoms.  He responded well to
treatment and was discharged after ten days, with a referral to a doctor at an infectious disease
center, who counseled him about medications.  This doctor's notes, introduced at trial, indicated
her concern that he was "depressed" and "in denial" about his illness.  
In November, 1999, Gonzalez met and began a relationship with Giuliana Gelke, who testified
that he told her before they had any sexual contact that he had been ill and diagnosed with AIDS. 
Gelke suggested that they both be tested to be sure; she tested negative and he tested positive. 
They began to have a sexual relationship and always used condoms.  The relationship continued,
off and on, until April 2001, when they mutually agreed to terminate it due to the stress of trying
to maintain an intimate relationship.  An incident where a condom broke during sex contributed
to the ending of their relationship.

On the rebound, Gonzalez met Maria Alvarado while dancing at a Latin nightclub, and began
dating her.  She testified one of his friends told her that Gonzalez was infected, but that he denied
it when confronted, insisting it was a lie. They began having sex about two weeks after they met. 
Alvarado testified that they used a condom the first time, but not thereafter.  She testified that
Gonzalez asked her to use birth control pills to prevent pregnancy.  Only after a second friend
told her that Gonzalez was infected did she go for testing in June, and learned that she was HIV+
a few weeks later.  When she confronted Gonzalez, he denied that he had infected her.  

She went to the police, by which time Gonzalez was in jail in Kentucky on immigration charges. 
A police investigator requested Gonzalez's medical records from the hospital, and then
forwarded them, together with Alvarado's written statement, to the prosecutors, who filed four
felony counts against Gonzalez, one each for the months of April, May, June and July, 2001.

Gonzalez testified that the night before they first had sex he told Alvarado that he was infected
with HIV in response to her inquiry, and that they agreed that they could have sex if they used
protection.  He also testified that he used a condom every time he had sex with Alvarado, and
denied that he had ever asked her to use birth control pills.  He testified that he was afraid of
spreading HIV and of picking up new infections himself, and that he would never expose
somebody to the risk of HIV infection without disclosure.

The jury had difficulty, sending out questions to the judge about how to define "disclosure,"
whether Gonzalez had ever testified about having sex with Alvarado in July, and whether the law
required Gonzalez to make an individual disclosure each time he had sex with Alvarado.  The
trial court's answers do not sound very helpful.  Although Ohio jurors may not take notes and are
not provided transcripts of testimony, the judge told them they would have to rely on their
collective memory about Gonzalez's testimony.  The judge told them to give "disclosure" its
ordinary English usage, and that to find Gonzalez guilty, the jury would have to find that he
failed to disclose, and that such failure was an essential element of each charge.  These answers
do not seem calculated to be particularly enlightening to a puzzled jury.

The jury found Gonzalez not guilty on the April and July charges, and guilty on the May and
June charges.  The maximum sentence for each charge was eight years.  The trial judge gave
Gonzalez the maximum, and ordered that the two sentences be served consecutively, for a total
of 16 years.

Gonzalez argued on appeal that the statute was too vague about disclosure, and that the jury's
own puzzlement was reflected in its questions to the judge.  The court of appeals found the
statute to be perfectly clear, insisting that "the word 'disclose' is not a confusing word or a word
unfamiliar outside of a courtroom."  Judge Painter wrote: "A person of common intelligence
would know that to 'disclose' is to reveal or make known   and that the statute requires a person
who has knowledge that he is HIV-positive to tell his sexual partner that he (or she) is HIV-
positive before engaging in sexual conduct with that partner."  The appeals court was satisfied
with the trial judge's response to the jury's question, and also pointed out that courts in several
other states had rejected constitutional challenges to similarly-worded statutes.

Gonzalez also argued that the jury's split verdict, acquitting him for April and July while
convicting him for May and June, showed further confusion: either he disclosed or he didn't, and
it was unclear whether he had to make a separate disclosure for each sexual contact.  If the jury
believed he disclosed prior to the first sexual contact in April, then how could it find him in
violation of the statute in May or June, but not in July?  Judge Painter's response was that the
jury evidently believe that Gonzalez did not have any sexual contact with Alvarado until May,
and then had no sexual contact with her after June, and that "common sense" would lead the jury
to understand that an initial disclosure to a particular partner is sufficient. While admitting that
the trial judge's instructions could be clearer, the court did not find them deficient enough to
upset the verdict.

The court also made short work of other constitutional arguments, finding that the sentence
imposed on Gonzalez was not "cruel or unusual punishment," and that the statute violated no due
process requirements.  

However, the appeals court found that errors were made at trial.  Painter with Gonzalez that the
prosecutors had violated Ohio's HIV confidentiality law in their acquisition and use of his
medical records.  The law provides that medical records can be obtained through a search warrant
or a subpoena issued by a judge, but in this case the police merely requested the records which
were turned over by the hospital without question.  Consequently, the court found that it was an
error for the trial judge to allow these records to be introduced as evidence.  Unfortunately for
Gonzalez, however, the court found that this was a harmless error, concluding that it would not
have affected the outcome since there were plenty of witnesses who could testify about
Gonzalez's HIV status without need to resort to the medical records.  The opinion does not
consider whether the written comments of the doctor contained in those records may have
prejudiced the jury, especially the comment about Gonzalez being "in denial" about his
condition.  The court also rejected the argument that the hospital's disclosure violated Gonzalez's
rights under the physician-patient confidentiality rule, since it found that the legislature had
intended to waive the rule in such cases.

More serious, however, was the error in allowing Alvarado to testify about her own HIV status. 
She testified that she was not infected before she met Gonzalez, that she had sex with nobody
else during their relationship, and that she was infected afterwards, but there is no indication in
the court's opinion that any testing was done to verify that she was infected with the same strain
of the virus as Gonzalez, or that she had actually tested negative before she began having sex
with Gonzalez.   Furthermore, given the sequence of events, it seems likely that she was infected
before she met Gonzalez.  The jury found that they first had sex in May.  She tested positive for
HIV antibodies in June or early July.  The opinion does not mention what kind of testing she had,
but if it was the routine ELISA antibody test that is in common use, then a positive result from a
June blood sample would not necessarily prove that it was Gonzalez who had infected her. 

More to the point, as Gonzalez argued on appeal, Alvarado's HIV status was irrelevant to the
charge against him, since he was not charged with infecting her.  The statute under which he was
prosecuted made it a crime for someone who knows he is HIV-positive to have sexual contact
with another person without disclosing to them.  Only Gonzalez's HIV-status is relevant as an
element of the crime, and since there was no dispute at the trial about his HIV-status, evidence
about Alvarado's HIV status was not necessary to prove any element of the crime.  Worse than
that, it was inflammatory information, since the jury might well subconsciously be convicting
Gonzalez for infecting Alvarado, which is not what he was charged with, which he stoutly denied
doing, and which, as noted above, he may not have done even if they had unprotected sex.

Painter conceded that "the state had no need to introduce the inflammatory testimony that
Alvarado was currently infected with HIV" and, apart from the improperly admitted medical
records, could have "called any number of witnesses, such as Gonzalez's sister or ex-girlfriend,
to establish that Gonzalez was HIV-positive and knew it before he met Alvarado, without
needing to rely on Alvarado's testimony that she was now HIV-positive."  Thus, this
inflammatory evidence was not relevant to prove the crime that was charged.  Furthermore,
Painter found that the state's argument that this testimony was "background information"
necessary to give the jury "the setting of the case" was an "intelligence-insulting argument."

Nonetheless, Painter found that admitting the evidence, while erroneous, was harmless. "If the
jury had not been told of Alvarado's HIV status, we believe that the outcome of Gonzalez's trial
would have been the same," Painter wrote. "The state provided substantial evidence that, in May
and June, Gonzalez was HIV-positive, knew he was HIV-positive, and engaged in sexual conduct
with Alvarado without disclosing his HIV status.  We admit the revelation that Alvarado had
developed HIV was tragic, and that it no doubt created sympathy in the jurors for Alvarado. But
we cannot believe that the jury's verdicts were based on this sympathy.  The jury's verdicts were
likely based on the substantial evidence the state presented for each element of the crimes."

But, of course, this so-called "substantial evidence" on the question whether disclosure was made
boils down solely to Alvarado's word against Gonzalez's word, so sympathy for Alvarado, based
on a possibly mistaken belief that she had been infected by Gonzalez, could very well have
swayed the jury.  At the very least, with Gonzalez retained in custody because of his immigration
problems in any event, the court could have ordered a new trial with the exclusion of the medical
records and with restrictions on Alvarado's testimony to ensure fairness to Gonzalez.

Gonzalez had also challenged the trial judge's decision to make his sentences consecutive rather
than concurrent, but the court of appeals was unsympathetic there as well.  The trial court had
noted on its worksheet for calculating the sentence that Gonzalez had "sentenced victim to
death," jumping to the conclusion, not at all proved at trial, that Gonzalez had actually infected
Alvarado, and perpetuating the stereotype, outmoded by treatment developments over the past
ten years, that HIV-infection is an automatic death sentence.  Surely these judgments affected the
trial judge's determination that a lengthier sentence was merited in this case.  In upholding the
consecutive sentences, the court of appeals emphasized the seriousness of the offense, as well as
Gonzalez's immigration status and his refusal to acknowledge responsibility for "the felonious
assaults" as well as his "lack of concern for the victim."

Reading this decision invokes a fair amount of dismay, as it is typical of how the niceties of legal
process tend to be ignored by courts caught up in HIV-panic mode.  While it is possible that
Gonzalez is guilty of violating the statute and deserves punishment for his offense, to send an
HIV-positive man to prison for sixteen years on the basis of a compromised verdict by a possibly
confused jury following a seriously flawed trial characterized by the admission of prejudicial,
irrelevant evidence certainly raises some questions about the fairness of the process.  The statute
is intended to deter HIV+ people from misleading others into having unprotected sex with them,
and perhaps the publicity surrounding this kind of prosecution will have that effect on some, but
making object lessons out of people who are trying to cope with HIV should touch the
conscience of the court at least a little bit.  A.S.L.

AIDS Litigation Notes

_California_   After Bruce Hope told his supervisors that he was HIV+, he began to experience
verbal harassment and the administration at the detention center where he was employed began to
build a "paper trail" to discharge him, according to testimony offered at his discrimination trial. 
Hope's case impressed the jury, which awarded him $917,000 in economic damages and $1
million in non-economic damages on his state law discrimination claims in a July 22 verdict.
_Hope v. California_, No. BC258985 (Cal. Super. Ct.).  BNA _Daily Labor Report_ No. 145, A-
1 (7/29/03). 

_District of Columbia_   For several years until news reports about high administrative costs and
low returns to charities destroyed the organization's economic viability, Pallotta Teamworks, the
creation of Dan Pallotta, conducted "AIDS Rides" involving large numbers of bicycle riders
between major cities as fundraising events.  In _Jaffe v. Pallotta Teamworks_, 2003 WL
21872371 (Aug. 8, 2003), the U.S. District Court for the District of Columbia ruled that a
wrongful death action brought by the daughter and estate of Eve Jaffe, who died while
participating an AIDS ride in June 2000, could not be brought because Jaffe had signed a
complete waiver of liability for negligence with respect to Pallotta Teamworks and other
defendants in the case.  Jaffe suffered dizziness and nausea, sought help at a medical aid station
being staffed by volunteers, who administered intravenous fluids to her, but she collapsed and
died the next day without regaining consciousness.  According to the hospital's diagnosis of her
condition, she had suffered full cardiopulmonary arrest.  The lawsuit claimed that Pallotta
Teamworks was negligent in organizing and training the volunteers who staffed the medical aid
stations.  

_Florida_   The Florida 4th District Court of Appeal ruled on July 30 that changes to the state's
Medicaid law enacted in 2000 now trumped the HIV confidentiality statute, to the extent that the
Attorney General's office could subpoena medicaid patient records without a court order as part
of an investigation of Medicaid fraud. _Community Healthcare Centerone, Inc. V. State_, 2003
WL 21750273.  Prior to the 2000 amendments, the HIV Confidentiality Law would have barred
the release of some of the records at issue in this case without a court order.  However, Judge
Klein also noted for the court that the Confidentiality Law has itself been given a narrow
construction, as applying only to actual records of medical test results, but would not apply to a
record where a doctor noted that a patient told the doctor they had previously tested positive for
HIV.

_Kentucky_   The Kentucky Court of Appeals ruled on Aug. 8 that a woman who suffered a
needlestick injury while visiting in a hospital could not bring an action for emotional stress
stemming from fear of contracting an infectious condition, where there was no evidence that the
needle (which was discarded without being tested) was contaminated. _Booker v. Galen of
Kentucky, Inc._, 2003 WL 21828795.  As such, the court lined up with the overwhelming
majority of states that have refused to award emotional distress damages in needlestick cases
where actual injury was not proved.  In this case, the plaintiff was allowed to sue for the actual
needlestick injury and costs of follow-up treatment, and was awarded $1500 in a jury verdict, but
the trial court's grant of summary judgment on the claim for risk of contracting an infection
condition was affirmed by the court of appeals.

_Massachusetts_   The Appeals Court of Massachusetts upheld the Juvenile Court's decision
dispensing with a mother's right to withhold consent for the adoption of her HIV+ children.
_Adoption of Jaclyn; Adoption of Paul_, 2003 WL 21768008 (July 31, 2003) (unpublished
disposition).  The court found that the record supported the lower court's finding that "the mother
engaged in serious neglect of the children's medical and emotional needs.  In particular, the
mother refused anti-retroviral therapy during her pregnancy to prevent the transmission of the
HIV virus [sic] to Paul, refused to test both children for HIV or enroll them in a children's AIDS
program, failed to administer HIV medication consistently to Paul (stating to one social worker
that she was not going to 'give him the medication because he is going to die anyway'), failed to
take Jaclyn for an MRI scan as a follow-up to her seizure, and failed to address or control
Jaclyn's severe behavioral problems." The court also noted testimony by a social worker that the
mother was in "denial" about her own HIV+ status, and had borne another HIV-infected infant
during the pendency of the proceedings.

_Ohio_   Does a forced "drug holiday" when an HIV+ prisoner is transferred between facilities
create a compensable injury?  An Ohio magistrate said "no" in _Hughley v. Pickaway
Correctional Institution_, 2003 WL 21995467 (Ohio Court of Claims, Aug. 13, 2003) (not
officially published).  Inmate Terry Hughley had a 30-day supply of medications making up a
protease cocktail and prozac for depression when he was transferred from Lorain to Pickaway,
and was not allowed to bring his medications with him.  He received a complete physical
evaluation upon arrival in Pickaway, including a medical orientation that included information
about HIV infection, but he was not immedidately provided with new medications and was thus
on an enforced "drug holiday" when he experienced dizziness after completing a seven-hour
work shift, fell and struck his head.  Hughley sued the prison on a negligence theory, claiming
that his injury was a result of the drug deprivation.  The medical director of the facility testified
that interruption of the protease cocktail and prozac for a few days would not cause such an
effect, and further that "HIV medications are frequently administered on an intermittent basis to
avoid an individual building a resistence to the intended effect." Crediting this testimony,
Magistrate Lee Hogan, to whom the matter had been referred for an evidentiary hearing,
concluded that "the evidence fails to establish that defendant breached any duty owed to
plaintiff" and that, even if a duty was breached, the evidence failed to establish "that it was the
proximate cause of plaintiff's dizziness or fall." 

_Washington State_   In _State v. Swofford_, 2003 WL 21694915 (Wash. Ct. App., Div. 2, July
22, 2003) (not officially published), the court of appeals accepted the state's concession that the
trial judge erred by ordered HIV testing of the defendant without making a finding that he had
engaged in conduct that would expose him or others to HIV infection.  Michael Swofford was
convicted of being involved with cocaine distribution, and the judge ordered HIV testing as if
this was routine in any drug conviction.  It is not.  A.S.L.

AIDS Law & Society Notes

_Akron, Ohio_   Some parents in Akron are upset that a popular peewee football coach, retired
firefighter Stephen Derrig, has been disqualified from coaching by the board of directors of the
Ellet Suburban Football League because he is HIV+.  Derrig contracted HIV through blood
exposure on the job, and had to litigate to get his work-related disability benefits recognized, but
had continued to work as a firefighter until his doctors expressed concern for his health from the
strains and burdens of that job.  The board addressed the issue after receiving expressions of
concern (in the form of anonymous phone calls) for the health of participating children.  The
board decided that because the risk to children of HIV exposure from Derrig was not zero, they
should relieve him from coaching.  This sparked outraged protests from many parents of children
who were being coached by the popular Derrig.  The league's director has promised that the
board will reconvene to consider the issue again.  A board member said they had not been
prepared with sufficient information to make a properly informed decision. _Akron Beacon
Journal_, Aug. 7.

_New York_   The _New York Times_ (Aug. 20) reported the death of retired N.Y. Supreme
Court Justice Harold Hyman of Queens County at age 93.  Justice Hyman made history in AIDS
law in the early years of the epidemic when he upheld a policy adopted by the New York City
Board of Education to allow school children infected with HIV to attend school without
disclosing their status beyond a small circle of those who would genuinely "need to know" for
safety reasons.  Justice Hyman granted summary judgment in a suit brought by two local school
boards in Queens, which were demanding to know the identity of students with HIV attending
schools in their districts and to exclude such students.  This was among the earliest rulings on
HIV confidentiality and non-discrimination, and is published at: _Local District Board 27 v.
Board of Education_, 130 Misc.2d 398, 502 N.Y.S.2d 325 (N.Y.Sup.Ct., Queens Co. 1986). 
A.S.L.

PUBLICATIONS NOTED & ANNOUNCEMENTS

MOVEMENT JOB ANNOUNCEMENTS

_ACLU - Illinois_    The American Civil Liberties Union seeks an attorney to specialize in
lesbian and gay rights and AIDS, working as part of both the ACLU of Illinois and the ACLU's
national Lesbian & Gay Rights and AIDS Project.  The person will work primarily in Chicago
and the Midwest with some time spent in the ACLU National office in New York.  The attorney
will be responsible for significant constitutional and statutory litigation, litigation back-up, and
policy work on a wide range of LGBT and HIV related issues.  Work will include all phases of
litigation and policy analysis.  The attorney will also provide technical assistance and advice to
ACLU staff affiliates, private attorneys who handle cases for the Projects and affiliates, and
others who seek help from the Projects.  The staff attorney must be able to speak publicly and to
represent ACLU positions to the media and the public generally.  The job may also include
supervision of support staff and student interns.  The job also requires occasional fund-raising
activities, including attendance and speaking at events, and meeting with donors.  Some travel
will be required.  Familiarity with lesbian and gay rights, AIDS/HIV and other civil liberties
issues is desirable; commitment to those issues is essential.  Excellent analytic skills and the
ability to write and speak clearly are essential.  Significant litigation experience, including
constitutional and federal court litigation, is preferred but not required.  Salary is governed by the
ACLU scale for lawyers, which is based on years out of law school.  Excellent health and welfare
benefits are provided.  Applications will be accepted until the position is filled, which will not be
before October 1, 2003.  Applicants should send a cover letter, resume, and one legal writing
sample to: Harvey Grossman, Legal Director, ACLU of Illinois, 180 North Michigan Avenue,
Suite 2300, Chicago, IL 60601.  The ACLU Foundation is an equal opportunity/affirmative
action employer and actively recruits women, people of color, persons with disabilities, and
lesbians and gay men. 

EVENT ANNOUNCEMENTS

The early registration deadline for the national Lavender Law 2003 conference expires on
September 15.  Fees to attend the conference go up substantially thereafter, so early registration
is encouraged.  For full details and registration materials, view the conference website at
www.lavenderlaw.org.  The conference will be held in New York City beginning October 17 at
the Association of the Bar of the City of New York and continuing that day and through Sunday,
October 19, at the Fordham University Law School at Lincoln Center.  Confirmed keynote
speaker for the opening reception the evening of Oct. 17 is Paul Smith, the Jenner & Block
partner who successfully argued _Lawrence v. Texas_ before the U.S. Supreme Court last term.

The Center for Lesbian and Gay Studies at the City University of New York Graduate Center will
present a panel discussion on the Supreme Court's decision in _Lawrence v. Texas_ on Tuesday,
September 16, from 7 to 9 pm.  The event is free and open to the public.  Panelists include Nan
Hunter, Phillip Harper, Susan Brison, and Ed Stein.  The discussion will be held in Room C-
201/202 of the Graduate Center, which is located at 365 5th Avenue.

On September 18-20, the Hofstra University School of Law and the Hofstra Cultural Center will
present a conference, "Don't Ask, Don't Tell: 10 Years Later".  Registration beings Thursday the
18th at 5 pm, and keynote speaker at the opening reception that night will be Colonel Grethe
Cammermeyer, US Army Nat'l Guard (retired), whose struggles with the military were the
subject of a TV movie.  The Friday session will begin with a military veteran roundtable,
followed by plenary panels about the "justifications" for the policy and legal challenges to the
policy.  The Saturday session will start with a roundtable featuring experts from other countries
discussing how service by openly-gay members has affected their militaries. The afternoon
session will consider how the policy has affected law schools.  The panels include a stellar
collection of experts.  Conference fee is $100; $75 for non-Hofstra students will currently valid
student ID's, and free for Hofstra students, faculty and staff.  CLE credits are available for this
program.  Current information on the program and details about speakers can be found at the
following website: www.hofstra.edu/culture.

LESBIAN & GAY & RELATED LEGAL ISSUES:

Allen, Anita L., _Privacy Isn't Everything: Accountability as a Personal and Social Good_, 54
Alabama L. Rev. 1375 (Summer 2003).

Bezanson, Randall P., and Michele Choe, _Speaking Out of Thin Air: A Comment on_ Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston, 25 Hastings Comm. & Ent. L. J.
149 (Fall 2002).

Black, Dan, Hoda R. Makar, Seth G. Sanders, and Lowell J. Taylor, _The Earnings Effects of
Sexual Orientation_, 56 Industrial & Lab. Rel. Rev. 449 (April 2003).

Blandford, John M., _The Nexus of Sexual Orientation and Gender in the Determination of
Earnings_, 56 Industrial & Lab. Rel. Rev. 622 (July 2003).

Bradney, Anthony, _Developing Human Rights? The Lords and Transsexual Marriages_, 33
Family Law (UK) 585 (Aug. 2003).

Canaday, Margot, _"Who Is a Homosexual?": The Consolidation of Sexual Identities in Mid-
Twentieth-Century American Immigration Law_, 28 L. & Social Inquiry 351 (Spring 2003).

Chang, Helen Y., _My Father is a Woman, Oh No!: The Failure of the Courts to Uphold
Individual Substantive Due Process Rights for Transgender Parents Under the Guise of the Best
Interest of the Child_, 43 Santa Clara L. Rev. 649 (2003).

Clark, Stephen, _Progressive Federalism? A Gay Liberationist Perspective,_ 66 Albany L. Rev.
719 (2003).

Dalton, Susan E., _From Presumed Fathers to Lesbian Mothers: Sex Discrimination and the
Legal Construction of Parenthood_, 9 Mich. J. Gender & L. 261 (2003).

Damrosch, Lori Fisler, _Interpreting U.S. Treaties in Light of Human Rights Values_, 46
N.Y.L.S. L. Rev. 43 (2002-03).

Dowd, Nancy E., _Law, Culture, and Family: The Transformative Power of Culture and the
Limits of Law_, 78 Chi-Kent L. Rev. 785 (2003).

Flumenbaum, Martin, and Brad S. Karp, _Second Circuit Review: After 'Dale': First
Amendment, State Anti-Discrimination Laws_, NYLJ, Aug. 27, 2003, p. 3 (column analyzing the
2nd Circuit's recent decision in _Boy Scouts of America v. Wyman_, 335 F.3d 80 (2003), which
rejected a 1st Amendment challenge to the state of Connecticut's decision to exclude the BSA
from its employee charitable campaign due to the BSA's violation of the state's sexual
orientation discrimination law).

Friedelbaum, Stanley H., _State Equal Protection: Its Diverse Guises and Effects_, 66 Albany L.
Rev. 599 (2003).

Goldhammer, Arielle, _A Case Against Consensual Crimes: Why the Law Should Stay out of
Pocketbooks, Bedrooms, and Medicine Cabinets_, 41 Brandeis L.J. U. Louisville 237 (2002).

Goode, Victor M., and Conrad A. Johnson, _Emotional Harm in Housing Discrimination Cases:
A New Look at a Lingering Problem_, 30 Fordham Urban L. J. 1143 (March 2003).

Harrington, C. Lee, _Homosexuality on_ All My Children_: Transforming the Daytime
Landscape_, 47 J. Broadcasting & Electronic Media 216 (June 2003).

Heyes, Cressida J., _Feminist Solidarity after Queer Theory: The Case of Transgender_, 28 Signs
1093 (Summer 2003).

Heyman, Steven J., _Ideological Conflict and the First Amendment_, 78 Chi-Kent L. Rev. 531
(2003).

Hird, Myra J., _Considerations for a Psychoanalytic Theory of Gender Identity and Sexual
Desire: The Case of Intersex_, 28 Signs 1067 (Summer 2003).

Inman, Janice G., _Dissolving a Same-Sex Marriage_, 4 N.Y. Fam. L. Monthly No. 10, 1 (July
2003).

Johnson, Scott P., and Robert M. Alexander, _The Rehnquist Court and the Devolution of the
Right to Privacy_, 105 W. Va. L. Rev. 621 (Spring 2003).

Jordan, Pamela A., _Does Membership Have Its Privileges?: Entrance into the Council of Europe
and Compliance with Human Rights Norms_, 25 Hum. Rts. Q. 660 (Aug. 2003).

Karst, Kenneth L., _Constitutional Equality as a Cultural Form: The Courts and the Meanings of
Sex and Gender_, 38 Wake Forest L. Rev. 513 (Summer 2003) (includes substantial discussion
of the identity/conduct issue in constitutional litigation about gay rights).

Karst, Kenneth L., _Law, Cultural Conflict, and the Socialization of Children_, 91 Cal. L. Rev.
967 (July 2003) (includes substantial discussion about the gay adoption issue).

Kearney, Robert A., _The Disparate Impact Hostile Environment Claim: Sexual Harassment
Scholarship at a Crossroads_, 20 Hofstra Lab. & Emp. L. J. 185 (Spring 2003).

Korb, Elaine M., and Richard A. Bales, _A Permanent Stop Sign: Why Courts Should Yield to
the Temptation to Impose Heightened Pleading Standards in Sec. 1983 Cases_, 41 Brandeis L.J.
U. Louisville 267 (2002).

Maldonado, Solangel, _When Father (or Mother) Doesn't Know Best: Quasi-Parents and
Parental Deference After_ Troxel v. Granville, 88 Iowa L. Rev. 865 (April 2003).

Newman, Stephen A., _The Teacher Who Advocated Pedophelia [sic]_, NYLJ, August 7, 2003,
p. 2.  (Supporting 2nd Circuit's decision upholding discharge of tenured high school science
teacher who is an active member of NAMBLA).

Nicolas, Peter, _"They Say He's Gay": The Admissibility of Evidence of Sexual Orientation_, 37
Georgia L. Rev. 793 (Spring 2003).

O'Donovan, Katherine, and Roy Gilbar, _The loved ones: families, intimates and patient
autonomy analysis_, 23 Legal Studies 332 (June 2003).

Park, James J., _The Constitutional Tort Action as Individual Remedy_, 38 Harv. Civ. Rts. Civ.
Lib. L. Rev. 393 (Summer 2003).

Patrick, Michael D., _Same-Sex Partnerships and U.S. Immigration Law_, NYLJ, July 28, 2003,
p. 3.

Perry, Michae l J., _Protecting Human Rights in a Democracy: What Role for the Courts?_, 38
Wake Forest L. Rev. 635 (Summer 2003).

Post, Robert, _Law and Cultural Conflict_, 78 Chi-Kent L. Rev. 485 (2003) (uses _Romer v.
Evans_ as an example of the relationship between law and cultural conflict).

Post, Robert C., and Reva B. Siegel, _Legislative Constitutionalism and Section Five Power:
Policentric Interpretation of the Family and Medical Leave Act_, 112 Yale L. J. 1943 (June
2003).

Rizzo, Christopher, _Banning State Recognition of Same-Sex Relationships: Constitutional
Implications of Nebraska's Initiative 416_, 11 J. L. & Policy 1 (2002).

Rubin, Peter J., _Square Pegs and Round Holes: Substantive Due Process, Procedural Due
Process, and the Bill of Rights_, 103 Col. L. Rev. 833 (May 2003).

Rudy, Jesse, _What They Don't Know Won't Hurt Them: Defending Employment-at-Will in
Light of Findings that Employees Believe They Possess Just Cause Protection_, 52 Defense L. J.
343 (2003).

Saldivia, Laura, _The Constitutional Protection of Sexual Minorities in Argentina_, 9 Sw. J. L. &
Trade Am. 331 (2002-2003).

Saunders, Kevin W., _Should Children Have First Amendment Rights?_, 13 Responsive
Community No. 3, 12 (Summer 2003).

Southwick, Christian F., _Ardor and Advocacy: Attorney-Client Sexual Relations and the
Regulatory Impulse in Texas and Across the Nation_, S. Tex. L. Rev. 307 (Winter 2002).

Spade, Dean, _Resisting Medicine, Re/modeling Gender_, 18 Berkeley Women's L.J. 15 (2003).

Sutherland, Kate, _From Jailbird to Jailbait: Age of Consent Laws and the Construction of
Teenage Sexualities_, 9 Wm. & Mary J. Women & L. 313 (Spring 2003).

Turley, Jonathan, _Not as Radical as All That_, Nat'l L. J., July 14, 2003 (commentary on
_Lawrence v. Texas_).

Vance, Susannah C., _An Enduring Fear: Recent Limitations on the Past Persecution Ground for
Asylum_, 91 Ky. L. J. 957 (2002-2003).

_Student Articles:_

Brown, Michael J., _The Children's Internet Protection Act: A Denial of a Student's Opportunity
to Learn in a Technology-Rich Environment_, 19 Georgia State U. L. Rev. 789 (Spring 2003).

Charles, Kimberly, _Sexism is a "Family Value"_, 9 Cardozo Women's L.J. 255 (2003).

Cliett, C. Ray, _How a Note or a Grope Can be Justification for the Killing of a Homosexual. 
An Analysis of the Effects of the Supreme Court's Views on Homosexuals, African-Americans
and Women_, 29 New Eng. J. Crim. & Civ. Confinement 219 (Summer 2003).

_Constitutional Law   Evidentiary (In)sufficiency and the Zoning of Adult Businesses: How Low
Can You Go?   _City of Los Angeles v. Alameda Books, Inc._, 535 U.S. 405 (2002)_, 36
Suffolk U. L. Rev. 935 (2003).

Franklin, Marnie J., _The Closet Becomes Darker for the Abused: A Perspective on Lesbian
Partner Abuse_, 9 Cardozo Women's L.J. 299 (2003).

Laird, Elisa, _The Law is Straight and Narrow, How American Courts Define Families_, 9
Cardozo Women's L. J. 221 (2003).

Lim, Karen, _Freedom to Exclude After_ Boy Scouts of America v. Dale_. Do Private Schools
Have a Right to Discriminate Against Homosexual Teachers?_, 71 Fordham L. Rev. 2599 (May
2003).

Marcy, Sara C., _Banning Virtual Child Pornography: Is There Any Way Around_ Ashcroft v.
Free Speech Coalition?, 81 N.C. L. Rev. 2136 (June 2003).

Markova, Maria, Ashcroft v. Free Speech Coalition_: The Constitutionality of Congressional
Efforts to Ban Computer-Generated Pornography_, 24 Whittier L. Rev. 985 (Summer 2003).

NeJaime, Douglas, _Marriage, Cruising, and Life in Between: Clarifying Organizational
Positionalities in Pursuit of Polyvocal Gay-Based Advocacy_, 38 Harv. Civ. Rts. Civ. Lib. L.
Rev. 511 (Summer 2003) (fascinating analysis and critique of the strategies used by gay rights
organizations).

Reding, Ann M., Lofton v. Kearney_: Equal Protection Mandates Equal Adoption Rights_, 36
U.C. Davis L. Rev. 1285 (June 2003) (comment on trial court ruling in case challenging Florida's
statutory ban on homosexuals adopting children; appeal to 11th Circuit has been argued and
decision is awaited).

Schuster, Lyndall, _Regulating Virtual Child Pornography in the Wake of_ Ashcroft v. Free
Speech Coalition, 80 Denver U. L. Rev. 429 (2002).

Shwayri, Rebecca, _Sex Meets the City: Lowering a City's Evidentiary Burden on Zoning
Ordinances_, 66 Fla. L. Rev. 927 (July 2003).

Silverthorn, Brooke N., _When Parental Rights and Children's Best Interests Collide: An
Examination of_ Troxel v. Granville_ as It Relates to Gay and Lesbian Families_, 19 Georgia
State U. L. Rev. 893 (Spring 2003).

Sultan, Bradley A., _Transsexual Prisoners: How Much Treatment is Enough?_, 37 New Eng. L.
Rev. 1195 (2002-2003).

Tatun, Jonathan, _A Closer Look at_ Bowers v. Hardwick_: State and Federal Decisions
Concerning Sexual Privacy and Equal Protection_, 19 Touro L. Rev. 183 (Fall 2002).

Vance, Susannah C., _An Enduring Fear: Recent Limitations on the Past Persecution Ground for
Asylum_, 91 Ky. L. J. 957 (2002-2003).

Woods, Michael A., _The Propriety of Local Government Protections of Gays and Lesbians
From Discriminatory Employment Practices_, 52 Emory L. J. 515 (Winter 2003).

_Specially Noted:_

The Summer 2003 issue of _Human Rights_, Vol. 30, No. 3, the journal of the American Bar
Association's Section of Individual Rights and Responsibilities, is devoted to Sexual Orientation
and Gender Identity Topics.  The articles include: _Repeal DOMA_ by Judge Deborah Batts (p.
2); _Civil Marriage as a Locus of Civil Rights Struggles_ by Mary L. Bonauto (p. 3); _Lesbian
and Gay Parents in Child Custody and Visitation Disputes_ by Kate Kendell (p. 8); _Family
Matters: Establishing Legal Parental Rights for Same-Sex Parents and Their Children_ by
Tiffany L. Palmer (p. 9); _Protecting Transgender Families: Strategies for Advocates_ by Taylor
Flynn; _The Gay Rights Workplace Revolution_ by Arthur S. Leonard; _Years Behind: What the
United States Must Learn About Immigration Law and Same-Sex Couples_ by Susan Hazeldean
and Heather Betz; _Equal in Word of Law: The Rights of Lesbian and Gay People in South
Africa_ by Wendy Isaack; _Human Rights Heroes: Langrock Sperry & Wool, LLP, and Peter F.
Langrock, Susan M. Murray, and Beth Robinson_ by Patrick McGlone.

The August 14 issue of _Texas Lawyer_ includes a lengthy article by Cristina Smith titled
"Lawyer Life After 'Lawrence'." The article reviews at length the situation for lawyers working
in Texas law firms, and is accompanied by a table showing the largest firms in Texas with
respect to whether they provide domestic partnership benefits to their employees.  Many
prominent openly-gay lawyers from around the state are quoted in the article, including Mitchell
Katine, who was the trial attorney for _Lawrence v. Texas_.  

14 Yale Journal of Law and Feminism No. 2 (2002) contains a symposium titled "Women,
Justice, and Authority," which includes an article by retired Canadian Supreme Court Justice
Claire L'Heureux-Dube, titled "It Takes a Vision: The Constitutionalization of Equality in
Canada".  Justice L'Heureux-Dube was an important voice on the Canadian Supreme Court for
equality rights for lesbians and gay men, helping to pave the way for the recent decisions by
lower Canadian courts in favor of same-sex marriage claims under the Canadian Charter of
Rights.

9 Cardozo Women's L.J. No. 2 (2003) is a theme-issue devoted to feminist jurisprudence,
including quite a few articles, discussing gender issues in society.

AIDS & RELATED LEGAL ISSUES:

Atkins, Katrina, and Richard Bales, _HIV and the Direct Threat Defense_, 91 Ky. L. J. 859
(2002-2003).

Handford, Peter, _Fear of Disease and Psychiatric Injury in Ireland_, 11 Tort L. Rev. 61 (July
2003).

Herman, Caroline, United States v. Oakland Cannabis Buyers' Cooperative_: Whatever
Happened to Federalism?_, 93 J. Crim. L. & Criminology 121 (Fall 2002).

Krishnan, Jayanth K., _The Rights of the New Untouchables: A Constitutional Analysis of HIV
Jurisprudence in India_, 25 Hum. Rts. Q. 791 (Aug. 2003).

Myers, Leah C., _Disability Harassment: How Far Should the ADA Follow in the Footsteps of
Title VII?_, 17 BYU J. Public L. 265 (2003).

Palmer, Caroline, and Lynn Mickelson, _Falling Through the Cracks: The Unique Circumstances
of HIV Disease Under Recent Americans With Disabilities Act Caselaw and Emerging Privacy
Policies_, 21 L. & Inequality 219 (Summer 2003).

Schmidt, Mark A., and Eve D. Mokotoff, _HIV/AIDS Surveillance and Prevention: Improving
the Characterization of HIV Transmission_, 118 Public Health Reports 197 (May/June 2003).

Sun, Haochen, _A Wider Access to Patented Drugs Under the TRIPs Agreement_, 21 Boston U.
Int'l L. J. 101 (Spring 2003).

Tushnet, Mark, _New Forms of Judicial Review and the Persistence of Rights- and Democracy-
Based Worries_, 38 Wake Forest L. Rev. 813 (Summer 2003) (includes discussion of South
African judicial decisions ordering the government to make HIV medications available).

Verkerke, J.H., _Is the ADA Efficient?_, 50 UCLA L. Rev. 903 (April 2003).

_Student Articles:_

Annikwue, Monique, _Breast Still Positive: An Argument in Favor of One HIV Positive
Mother's Right to Breastfeed_, 9 Wm. & Mary J. Women & L. 479 (Spring 2003).

Bagchi, Aditi, _Compulsory Licensing and the Duty of Good Faith in TRIPS_, 55 Stanford L.
Rev. 1529 (May 2003).

Barnes, Stephen, _Pharmaceutical Patents and TRIPS: A Comparison of India and South Africa_,
91 Ky. L. J. 911 (2002-2003).

Bilchitz, David, _South Africa: Right to health and access to HIV/AIDS drug treatment_, 1 Int'l
J. Of Constitutional L. 524 (July 2003).

_Constitutional Law   Medical Marijuana and the Medical Necessity Defense in the Aftermath
of_ United States v. Oakland Cannabis Buyers' Cooperative, 25 W. New Eng. L. Rev. 147
(2003).

Fletcher, Ronald Timothy, _The Medical Necessity Defense and De Minimis Protection for
Patients Who Would Benefit From Using Marijuana for Medical Purposes: A Proposal to
Establish Comprehensive Protection Under Federal Drug Laws_, 37 Valparaiso U. L. Rev. 983
(Summer 2003).

Gill, Ryan, _State Immunity and the Americans with Disabilities Act After_ Board of Trustees of
the University of Alabama v. Garrett, 74 U. Colo. L. Rev. 1239 (2003).

Kreit, Alex, _The Future of Medical Marijuana: Should the States Grow Their Own?_, 151 U.
Pa. L. Rev. 1787 (May 2003).

_Specially Noted:_

Vol. 14.2 of the _Stanford Law & Policy Review_ (2003) includes a Symposium titled
_Developments in Disability Rights_, including several discussions of trends in the law
concerning protection of persons with disabilities from discrimination.

Vol. XLV (2), Pt 2 of the Journal of Law & Economics (Oct. 2002) publishes papers from a
conference title "Regulation of Medical Innovation and Pharmaceutical Markets."

EDITOR'S NOTE:

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

^Z