LESBIAN/GAY LAW NOTES

ISSN 8755-9021 March 2001

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 A. Bernstein, Esq., New York City; Elaine Chapnik, Esq., New York

City; Ian Chesir-Teran, Esq., New York City; Steven Kolodny, Esq., New York City; Todd V. Lamb,

Esq., New York; Mark Major, Esq., New Jersey; Sharon McGowan, Esq., New Orleans, LA; K.

Jacob Ruppert, Esq., Queens, New York; Daniel R Schaffer, New York City; Travis J. Tu, Student,

New York University Law School '03; Robert Wintemute, Esq., King's College, London, England;

Leo L. Wong (NYLS '00), New York.

Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118;

e-mail: le-gal@interport.net

(C) 2001 by the Lesbian & Gay Law Association Foundation of Greater New York.

SUPREME COURT TAKES ANOTHER BITE OUT OF THE ADA; DECISION ALSO

SUGGESTS LIMITATIONS ON POTENTIAL ENDA JURISDICTION

By the usual 5-4 vote, with the usual suspects in the majority and the dissent, the U.S. Supreme Court

ruled that on Feb. 21 that yet another federal civil rights statute has unconstitutionally subjected state

governments to lawsuits seeking monetary damages by their citizens. This time the offending

legislation is Title I of the the American With Disabilities Act, a federal law passed in 1990 that

forbids employment discrimination against qualified individuals with disabilities. (Not at issue in the

case were the other titles of the ADA, covering public services and places of public accommodation.)

The ruling in _Board of Trustees of University of Alabama v. Garrett_, 2001 WL 167628, was not

unexpected, in light of prior rulings applying similar limitations to the Age Discrimination in

Employment Act and the Fair Labor Standards Act, and in light of the general hostility toward the

ADA implicit in the Court's 1999 decision in _Sutton v. United Air Lines_, 119 S.Ct.2139, and two

companion cases decided at the same time, which had cut back sharply on the size of the "protected

class" under the statute.

The usual gang of five was in the majority: Chief Justice Rehnquist and Justices Scalia,

Thomas, Kennedy and O'Connor. The dissenters, the usual gang of four, were Justices Breyer,

Stephens, Ginsburg and Souter.

The Court's opinion, written by Chief Justice William H. Rehnquist, takes the "New Federalism"

approach to the 11th Amendment discovered by the Court in recent years, and applies it to the ADA,

with devastating results. Under this approach, the 11th Amendment, which by its terms deprives the

federal courts of jurisdiction to hear civil suits in law or equity brought by the citizens of one state

against another state or a foreign country, is broadened to stand for the proposition that the states

are generally immune from civil liability to their own citizens for violations of federal statutes. Unless

the states have expressly waived their immunity, the immunity is apparently absolute in the cases of

statutes enacted pursuant to Congress's enumerated powers under Article I of the Constitution.

However, the Supreme Court has recognized that by ratifying the 14th Amendment, the states have

impliedly waived their sovereign immunity with respect to claims under statutes enacted pursuant to

Congress's enumerated power under Section 5 of that amendment to enact laws enforcing 14th

Amendment rights.

The ADA's application to state governments was premised by Congress on its 14th Amendment

legislative powers to enforce the Equal Protection Clause. However, in recent years the Court has

taken the position that such power is generally co-extensive with the Court's interpretation of the

Equal Protection Clause, so that if a statute would impose liability for conduct that the Court would

find not to violate Equal Protection, the Court may find the state to be immune from liability for such

conduct. In addition, the Court has insisted that for Congress to abrogate state immunity, it must

compile a legislative record documenting relevant state transgressions that require a federal remedy.

In this case, Rehnquist asserted that the ADA's application to state employment failed on both

counts. Reviewing the legislative record, Rehnquist concluded that there was scant documentation

of a particular problem of state employment discrimination against persons with disabilities. (Breyer's

dissent, with an extended appendix summarizing the legislature record, shows that the hearings and

committee report were replete with allegations of state discrimination, but Rehnquist observed that

many of those were anecdotal reports rather than hard evidence, and that most of them related to

public services rather than employment.) Perhaps more significantly, Rehnquist observed that the

ADA went far beyond the dictates of the Equal Protection clause, by requiring reasonable

accommodation and imposing liability in disparate impact cases (where the Equal Protection Clause

has been construed by the Court, at least in the employment discrimination context, to be limited to

disparate treatment claims of intentional discrimination). Rehnquist's analysis will be familiar to

anyone who read the Court's decision in _Kimel v. Florida Board of Regents_, 528 U.S. 62 (2000),

applying the same analysis to the Age Discrimination in Employment Act.

Rehnquist's opinion restricted the Court's holding to Title I, the employment title, of the ADA, and

emphasizes that the sovereign immunity concept applied only to state employment, thus leaving

county and municipal government's still subject to ADA liability. Furthermore, despite the reference

to "law and equity" in the 11th Amendment, the Court's extension of sovereign immunity to suits not

expressly covered by the 11th Amendment has not included a ban on equity jurisdiction, so state

employees could still bring claims for equitable relief, although it appears that the states would be

immune from claims for legal fees in cases where the plaintiffs prevailed in obtaining injunctive relief.

This may leave open the theoretical possibility, at least in those states that have passed their own

discrimination statutes applicable to public employment, for state employees to file suit in federal

court under the ADA seeking injunctive relief, and attaching a damage claim under state law.

However, state laws differ in the range of remedial options they provide for employees, in many cases

falling short of what the ADA had to offer. The decision also does not directly affect federal

jurisdiction under Section 504 of the Rehabilitation Act, which forbids disability discrimination by any

program or entity receiving federal financial assistance, and it is likely that many state employers are

federal assistance recipients. Whether Section 504 jurisdiction in this context will survive the Court

majority's current campaign to shrink federal legislative power remains to be seen.

Justice Stephen Breyer's dissenting opinion does not take on the prior "New Federalism" cases,

instead focusing on showing that Congress had amply documented the need for protection against

disability discrimination by state employees, and arguing that the constitutional claims of persons with

disabilities under the Equal Protection Clause are stronger than Rehnquist's opinion would concede.

The decision not only punches a hole in the protective safety net for persons with disabilities that the

ADA was intended to provide, but also reinforces the lesson from _Kimel_ that Congress may be

similarly limited in efforts to enact a federal ban on sexual orientation and gender identity

discrimination by state government employers. While the Supreme Court has specifically ruled in

past cases that disability discrimination does not warrant strict or heightened scrutiny as a "suspect

classification" under the Equal Protection Clause, the Court has not yet passed on this question

regarding sexual orientation or gender identity. (The Employment Discrimination Act would ban

discrimination on the basis of sexual orientation, and some advocates contend that the bill should be

amended to add gender identity, thus embracing the equality claims of the transgender community

as well.) Most lower federal courts have treated such claims as being subject only to rational basis

review, however, suggesting that the _Garrett_ analysis would apply to any attempt by Congress to

subject state employers to monetary liability for sexual orientation or gender identity discrimination.

This suggests that the legislative proponents of ENDA need to ensure that a full record is compiled

documenting such discrimination by state employers. ENDA is already less comprehensive than other

federal civil rights statutes in eschewing any obligation of affirmative action or any liability for

disparate impact claims, and so might pass the _Garrett_ test on that score. A.S.L.

LESBIAN/GAY LEGAL NEWS

Third Circuit Rejects Public School Harassment Policy on Constitutional Grounds

A unanimous panel of the U.S. Court of Appeals for the 3rd Circuit ruled in _Saxe v. State

College Area School District_, 2001 WL 123852 (Feb. 14), that a public school anti-harassment

code unconstitutional penalizes speech and conduct protected by the First Amendment. The ruling

reversed a decision by U.S. District Judge James F. McClure, Jr. (M.D. Pa.), who had found that

all the conduct covered by the policy was also prohibited by federal law governing educational

institutions that receive federal funding, a conclusion with which the appeals panel emphatically

disagreed.

The State College Area School District adopted its Anti-Harassment Policy in August 1999. The

broad-ranging policy, stating its goal as "providing all students with a safe, secure, and nurturing

school environment," defines harassment as follows: "Harassment means verbal or physical conduct

based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation,

disability, or other personal characteristics, and which has the purpose or effect of substantially

interfering with a student's educational performance or creating an intimidating, hostile or offensive

environment."

The Policy gives the following examples of harassment: "Harassment can include any unwelcome

verbal, written or physical conduct which offends, denigrates or belittles an individual because of any

of the characteristics described above. Such conduct includes, but is not limited to, unsolicited

derogatory remarks, jokes, demeaning comments or behaviors, slurs, mimicking, name calling,

graffiti, innuendo, gestures, physical contact, stalking, threatening, bullying, extorting or the display

or circulation of written material or pictures."

Students or employees of the district charged with harassment would be subject to a wide range of

penalties, including dismissal or termination, depending upon the severity of their offense.

Plaintiff David Saxe, a member of the Pennsylvania state board of education who resides in the State

College area, is the guardian of two public school students. Saxe and his wards are self-described

Christians who believe that homosexuality is a sin, and that they must be free to say so publicly,

including in the schools. Saxe brought suit on behalf of his wards, alleging that the policy would

unconstitutionally deter them from speaking freely on this subject.

District Judge McClure granted the school district's motion to dismiss on the pleadings, finding the

policy facially constitutional, since it was premised on detering or punishing conduct that has the

effect of "interfering with a student's educational performance" or which creates a "hostile

atmosphere." McClure found that the policy did not prohibit "anything that is not already prohibited

by law," and thus could not be unconstitutional.

In reversing McClure's decision, Circuit Judge Alito found it flawed on both counts. First, Title VI

of the Civil Rights Act of 1964, which applies to educational institutions, and Title IX of the

Education Amendments of 1972, contain specific lists of prohibited bases for discrimination, and

neither list includes sexual orientation or "other personal characteristics." Clearly, the State College

policy covers forms of harassment that go beyond those expressly covered by federal law. And, while

federal law allows students to bring suits for harassment, the Alito noted that the standards for

proving such cases require a showing of severe and pervasive misconduct, not merely that somebody

was offended or upset. Relying on the recent Supreme Court decision in _Davis v. Monroe County

Board of Eduation_, 526 U.S. 629 (1999), Alito found that a school's liability in such cases is

"limited to cases in which the school 'acts with deliberate indifference to known acts of harassment'

and those acts have 'a systemic effect on educational programs and activities.'"

As to the constitutional issue, Alito found that the district court's assertion that "harassment has

never been considered to be protected activity under the First Amendment" "exaggerates the current

state of the case law in this area." Indeed, the Supreme Court struck down a municipal hate speech

ordinance in _R.A.V. v. City of St. Paul_, 505 U.S. 377 (1992), precisely on the ground that some

harassing speech has constitutional protection. Wrote Alito, "Loosely worded anti-harassment laws

may pose some of the same problems as the St. Paul hate speech ordinance: they may regulate deeply

offensive and potentially disruptive categories of speech based, at least in part, on subject matter and

viewpoint. Although the Supreme Court has written extensively on the scope of workplace

harassment, it has never squarely addressed whether harassment, when it takes the form of pure

speech, is exempt from First Amendment protection."

Alito then analyzed the First Amendment issue based on the assumption that existing federal anti-

harassment laws applicable to schools are constitutional. First, Alito found that the State College

police "prohibits harassment based on personal characteristics that are not protected under federal

law. . . Insofar as the policy attempts to prevent students from making negative comments about each

others' 'appearance,' 'clothing,' and 'social skills,' it may be brave, futile, or merely silly. But

attempting to proscribe negative comments about 'values,' as that term is commonly used today, is

something else altogether. By prohibiting disparaging speech directed at a person's 'values,' the

Policy strikes at the heart of moral and political discourse--the lifeblood of constitutional self

government (and democratic education) and the core concern of the First Amendment. That speech

about 'values' may offend is not cause for its prohibition, but rather the reason for its protection."

Furthermore, Alito noted that the Policy extends beyond harassment that denies a student equal

access to the educational program, by covering speech "that merely has the 'purpose' of harassing

another," even if the speech does not actually create a "hostile environment" as such. "This

formulation, by focusing on the speakers' motive rather than the effect of speech on the learning

environment, appears to sweep in those 'simple acts of teasing and name-calling' that the _Davis_

Court explicitly held were insufficient for liability."

Consequently, the court concluded that the State College policy violates the First Amendment, and

reversed the district court. The court made clear that a public school can adopt regulations "more

protective than existing law," so long as "those regulations do not offend the Constitution." But it

emphasized that any viewpoint-based regulation would be subject to searching First Amendment

scrutiny, suggesting that only truly severe harassing conduct can subject a student or employee of the

school district to disciplinary action. A.S.L.

Ohio Appeals Court Upholds Denial of Name Change Sought by Lesbian Partners

An Ohio appeals court refused to overturn a trial court's determination denying two lesbian partners

the right to change their last names to a new, common surname on the basis that giving court

approval to the use of the same surname by two unmarried cohabitants

would be against Ohio's public policy of promoting marriage. _Matter of Jennifer Lane Bicknell_,

2001 WL 121147 (Ohio App., 12th Dist., Feb.12, 2001).

The Appellants, Jennifer Bicknell and Belinda Priddy, could have adopted a new name under common

law by simply using the new name, which is permissible except if done for fraudulent purposes.

However, for reasons not given in the opinion by Presiding Judge Powell, the women filed an

application for a name change with the probate court, pursuant to an Ohio statute, which states, in

relevant part, "Upon proof that proper notice was given and that the facts . . . show reasonable and

proper cause for changing the name of the applicant, the court may order the change of name." The

Appellants sought to show that the only standard the court ought to consider was whether they had

a fraudulent purposes, not whether the name change would be against public policy. The appeals

court disagreed. Judge Powell's opinion stated that court approval of a name change requires

additional considerations. The court upheld the trial court's view that the phrase "reasonable and

proper" in the statute could mean more than just "not done for fraudulent purposes."

The court cited _Name Change of Handley_, 107 Ohio Misc. 2d 24 (Probate Ct., 2000), in which the

court found that the public has a proprietary interest in the name Santa Claus and so permitting a man

to change his name to Santa Claus would be against public policy. Although the

Appellants argued that there is no public policy preventing unmarried people from sharing the same

name, the court noted that in 1991 the legislature abolished common law marriages, and cited a

number of cases upholding the principle that Ohio law favors solemnized marriages over

cohabitation. That the Appellants were not asking for judicial sanction of their cohabitation, only the

right to change their last names apparently went over the judges' heads (indeed, from the description

of their relationship, it seems like they certainly would have preferred just to get married).

Nor was their equal protection argument persuasive to the courts, that denying unmarried couples

the opportunity to share a common surname bears no rational relationship to a legitimate

governmental purpose. They argued that they were discriminated against based on marital status and

sexual orientation, because they were unmarried and unable to marry. Judge Powell wrote, "the fact

that the applicant can not legally marry her 'long term partner' because they are both women does

not alter the basic conclusion of law that this court finds to be true, i.e., that it is not 'reasonable and

proper' to change the surnames of cohabiting couples, because to do so would be to give an 'aura

of propriety and official sanction' to their cohabitation." Furthermore, Judge Powell held that the trial

court did not distinguish between unmarried heterosexual couples and unmarried homosexual

couples. In addition, he wrote, the trial court's distinction between married and unmarried couples

was a rational basis for treating the two groups differently in order to promote a legitimate

governmental interest favoring marriage. Accordingly, Judge Powell could find no basis upon which

to hold that the trial court's decision was an abuse of discretion.

Judge Valen wrote a very vigorous dissent, finding that the reasoning of the majority and the probate

court was specious and simply a cover for sexual orientation discrimination, the courts' real agenda.

As Judge Valen stated, "The unspoken argument against granting appellants' requests for name

changes is that it might be equated to approval of the appellants' alternative lifestyle and that the trial

court is entitled to withhold such approval as it deems proper." Valen debunked their arguments that

cohabitation of unmarried partners contravenes public policy and that refusing to grant the name

change somehow protects the sanctity of marriage, citing several statutes that gave special

recognition to unmarried, cohabiting couples, such as the domestic violence statute that gives the

same protection to common-law spouses as to all other spouses. The dissenter pointed out that the

abolition of common law marriages was the result of the need to eliminate problems of proof with

respect to whether two people were legally married, which caused uncertainty in the courts, and not

to promote solemnized marriages over cohabitation. To the contrary, Valen wrote that the courts

should be promoting the public policy of maintaining accurate records of names by liberally granting

name change requests. Otherwise, people would effect name changes by common law, whereby they

would simply begin using the name without registering it with the authorities. The dissent cited

numerous cases and one statute giving homosexuals certain rights, such as the right to adopt, retain

child custody following a divorce, and be protected from domestic violence, supporting the argument

that there was no public policy in Ohio adverse to same-sex partners cohabiting. _Elaine Chapnik_

Ohio Appeals Court Refuses to Recognize Lesbian Co-Parent

An ingenious attempt to use an ambiguous Ohio statute to obtain legal recognition of a lesbian co-

parent has failed. On Feb. 16, the Court of Appeals of Ohio in Hamilton County upheld the refusal

of a trial court to grant legal parenting rights to Shelly Zachritz for the five children she is raising with

her partner, Teri Bonfield. _In re Joseph Ray_, 2001 WL 127666.

According to the court's per curiam opinion, Shelly and Teri have resided together in a "committed

same-sex relationship" since 1988. In that time, Teri has adopted two children and bore three others

through anonymous donor insemination. Shelly participated in all this activity and has been the

primary caregiver for the children. However, because Ohio courts have not been willing to approve

"second-parent adoptions" under the state's archaic

adoption statute, Shelly has been unable to adopt the children.

Section 3109 of the Ohio statutes allows a parent to file a motion "for shared parenting" which will

be granted if "shared parenting is in the best interest of the children and approved by the court." In

that case, "the court may allocate the parental rights and responsibilities for the care of the children

to both parents and issue a shared parenting order." Teri filed such a motion, arguing that Shelly is,

de facto, a parent of Teri's five children. Teri argued in support of her motion that the term parent

is not specifically defined for this section, so the court could adopt a broad, reality-based definition.

The court rejected this argument, however, in a short opinion that appeared to signal some regret at

the limitations of judicial power. The court noted that a definition of "parent-child relationship"

appears elsewhere in the Ohio statutes and has been applied in past cases to disputes arising under

the shared parenting statute. That definition makes clear that only a "natural or adoptive" parent is

a legal parent within the meaning of the statute.

"Although we have concluded that existing Ohio law does not permit Teri and Shelly to enter into

a shared-parenting plan, we do not intend to discredit their goal of providing a stable

environment for the children's growth," wrote the court. "Our respect for such a goal does not,

however, provide us with an appropriate basis for disregarding the relevant statutory

language. It is for the legislature, not this court, to recognize a broader definition of 'parent' than

that currently contained in the Revised Code."

The court also rejected the argument that refusing to grant a shared parenting order violates Teri's

constitutional right to decide how to raise her children. The court observed that

Teri's decision to co-parent with Shelly is not entitled to legal recognition, so long as the state

doesn't try to interfere with that right. The proper place to assert the constitutional right would be

in opposition to any attempt by the state to prevent Shelly and Teri from co-parenting. A.S.L.

7th Circuit Adopts Bizarre Evidentiary Analysis to Reject Habeas Petition by Man Convicted of

Murder After Admission of Prejudicial Evidence -- Gay Porn

According to the U.S. Court of Appeals for the 7th Circuit, evidence that a murder defendant owned

gay porn is admissible to support a prosecution theory of "homosexual overkill" -- a term that appears

to refer to the type of especially brutal attack to which some gay men fall victim. The paradox -- that

evidence the defendant enjoyed viewing homosexual acts should be admissible as proof of his

"motive" to murder a presumed sex partner -- is never addressed by the court. In an opinion by Judge

Evans, the court rejects defendant Joachim Dressler's argument that admission into evidence of the

legally obtained magazines and videos violated the First Amendment, as well as his arguments

grounded in Wisconsin evidence law. _Dressler v. McCaughtry_, 2001 WL 82852 (Feb. 1).

James Madden set out to raise money for an environmental group by knocking on doors in the small

town of Raymond, Wisconsin. Two days later his legs and torso were found in yellow plastic bags

in a nearby field. His skull and arms turned up two weeks later--also in yellow plastic bags. Tests

revealed that Madden was the victim of a vicious attack that continued after his death. Dressler, a

married man with children who lived on Madden's route, admitted to once owning yellow plastic

bags; pursuant to a warrant, police searched Dressler's home, seizing firearms, knives, and a briefcase

containing magazine photos of mutilation victims, and several commercially available videos depicting

violent acts. Also seized were magazines and tapes depicting non-violent gay sex.

Several weeks later, Dressler told a neighbor that he had killed Madden, although he blamed a

shooting accident. Dressler was arrested and charged with first degree murder. At trial, prosecution

expert James Jentzen argued that Madden's dismemberment was "consistent with homosexual

overkill." There was no evidence in the case that the victim was homosexual or that the murder

involved homosexual contact, nor did any physical evidence link Dressler to the victim. The trial

court admitted, over Dressler's objections, the magazines and videotapes as "other acts" evidence

under Wisconsin Statute sec. 904.04(2), holding that they were relevant to the State's theory of

homosexual overkill because "they were probative of Dressler's homosexuality and fascination with

violence" -- and thus proved motive.

The defense claimed that Dressler's confession to his neighbor was a fantasy, comprised of bits and

pieces of actual experiences -- a phenomenon it called "confabulation" and attributed to Dressler's

alcoholism. One of those actual experiences, apparently, was a visit, two weeks after Madden's

death, from Keith Erickson, who came to inquire about a car Dressler was selling. The two men

ended up shooting rifles in Dressler's backyard and -- according to the court -- "[w]hen they were

finished shooting" they had sex. Erickson testified at trial (over defendant's objections). That

testimony, along with the videos and magazines, played a prominent role in the government's case.

The jury convicted Dressler, who will be eligible for parole in 2051.

Seeking post-conviction relief in the trial court, Dressler claimed that the government's use of the

photos and tapes violated the First Amendment. The trial court denied Dressler's motion without

explanation. His appeals in the Wisconsin courts, and his petition for certiorari to the United States

Supreme Court, were denied. On April 22, 1997, Dressler petitioned the United States District Court

for the Eastern District of Wisconsin for a writ of habeas corpus. Magistrate Judge William

Callahan rejected Dressler's First Amendment argument on both procedural and substantive grounds;

however, he found the argument to be "debatable among jurists of reason" and certified the issue for

appeal.

Writing for the 7th Circuit panel, Judge Evans first addressed the First Amendment issue. Dressler

claimed that admitting legally-obtained pornography into evidence "effectively eviscerate[d] the First

Amendment protection to look at, read or possess such materials" and thus conflicted with the

Supreme Court's First Amendment jurisprudence. The court wrote: "The fundamental flaw in

Dressler's First Amendment argument . . . is that he was not convicted of possessing, distributing, or

looking at the videos and pictures in question. Although they may have helped convict Dressler of

murder, he never explains how his right to possess or look at them was affected by their use as

evidence against him. . . . Innocent citizens, who presumably would not face a mountain of other

circumstantial evidence of their guilt, need not fear a murder prosecution based on the mere

possession of lawful videotapes and photographs. The guilty, however, should be wary." This

passage appears to subvert the presumption of innocence. The materials were admissible, the court

seems to be saying, because Dressler was found guilty. But he was found guilty in large part because

the materials were admitted.

The court then explained why, in its view, it was permissible for the jury that convicted Dressler to

draw logical inferences from his possession of photos and tapes: "If Dressler were accused of causing

an explosion, a jury could logically infer his guilt from the fact that a bomb-making manual was found

at his home. There is no principled way to distinguish Dressler's videotapes and pictures from the

bomber's manual." The court's logic is weak -- a bomb manual makes it possible to build a bomb;

there is no suggestion that any of the materials possessed by Dressler made it possible for him to

murder Madden. The analogy (to the extent it seems to compare photos of consensual homosexual

intercourse to bomb-making instructions) is also patently offensive.

The court then turned to the evidentiary question. The court noted that the admissibility question was

beyond the scope of the certificate of appealability; in addition, it observed, evidentiary rulings of

state trial courts are normally not subject to habeas review. Nonetheless, it proceeded to decide the

issue. Judge Evans first addressed the relevance of the evidence. He wrote: "A person obsessed with

violence is more likely to commit murder, and therefore the videos and photographs are relevant. .

. . Similarly, a person who possesses photographs of homosexual acts coupled with depictions of

extreme violence might be more inclined to commit a crime exhibiting the characteristics of

homosexual overkill." In fact, it may be possible to construct a syllogism under which evidence of

possession of non-violent gay porn increases the likelihood that Dressler murdered Madden. But it

may be just as easy to construct a syllogism in which the possession of porn makes it less likely that

he did so, under the theory that the use of pornography as an outlet reduces the desire to commit

antisocial acts. Moreover, the court's use of the phrase "coupled with" seems to suggest, incorrectly,

that some of the materials possessed by Dressler wedded homosexuality to violence.

Having found the evidence to be relevant, the court failed to consider whether it was more prejudicial

than probative (an essential step in any admissibility decision). Yet evidence that Dressler, a married

man with children, collected homosexual porn and engaged in homosexual acts while his family was

away, would seem to be highly prejudicial. As to the propensity question, the court held: "Although

evidence of the general character of a defendant is inadmissible to prove he acted in conformity

therewith, sec. 904.04(2) contains an exception to the rule of inadmissibility for evidence offered to

prove, among other things, motive, intent, plan, or absence of mistake or accident. Here, the pictures

depicting violence were offered to prove Dressler's fascination with death and mutilation, and this

trait is undeniably probative of a motive, intent, or plan to commit a vicious murder. . . . Finally, the

pictures of homosexual acts, given the State's homosexual overkill theory, clearly go to motive."

For courts interpreting the character evidence rules to stretch the meaning of "motive," "intent," and

"plan" is commonplace. But how the possession of homosexual porn -- depicting non-violent,

consensual gay acts -- supports a homosexual overkill theory remains a mystery. Indeed, the court

accepted the government's "homosexual overkill" theory despite the fact that, in the entire body of

federal and state case law available on Lexis and Westlaw, the phrase "homosexual overkill" _never_

appears outside the Dressler case. (Search done February 14, 2001.)

Dressler filed a petition for rehearing with the Seventh Circuit Court of Appeals on February 14,

2001. This writer, who learned about the case when he was asked to write about it for the

_Lesbian/Gay Law Notes_, helped Wisconsin solo practitioner James Mathie draft the petition for

rehearing. _Fred A. Bernstein_

Federal Court Allows Connecticut Lesbian Co-Parent to Pursue Equal Protection Claim Against State

Agency Employees; Rejects Family-Based Due Process Claim

In a mixed ruling on a motion to dismiss, U.S. District Chief Judge Covello (D. Conn.) ruled Feb. 12

that a lesbian co-parent could maintain an Equal Protection claim against state child welfare agency

officials who excluded her from participation in matters involving her partner's child, but could not

maintain a Due Process claim for interference with her family rights. _Zavatsky v. Anderson_, 2001

WL 170469.

Karen Zavatsky and her partner, unnamed in the decision, live together in East Haven, Connecticut.

In 1989, her partner gave birth to their son, Terrel Alston, who has suffered from various

psychological disturbances and has been in and out of treatment programs ever since. Zavatsky and

her partner presented documentation to the Department of Children And Families (DCF) about the

nature of their relationship beginning in mid-May 1997. Later in 1997, while Terrel was a committed

patient at Hall-Brooke Hospital inn Westport, a psychiatric facility, several of the named defendants,

employees of DCF, petitioned the Juvenile Court to declare Terrel a neglected child and place him

in foster care. In her complaint, Zavatsky alleges that the defendants "concealed" from the court the

nature of her family relationship with her partner and Terrel, and that this violated DCF rules about

including parents' non-marital partners in such situations. The state court placed Terrel in foster care

in response to the petition. Zavatsky alleges that while Terrel has been in foster care, the defendants

refused to acknowledge the family unit, or to accord Zavatsky any right of participation in

"conferencing and planning relating to" Terrel. She also alleged that the defendants refused to

provide information or to allow contact at various times, and excluded her from the family

reunification program, and that had she and her partner been a heterosexual couple, she would have

been allowed to participate.

Based on these factual allegations, Zavatsky brought suit in federal court under 42 USC sec. 1983,

alleging violation of her due process and equal protection rights, and adding a supplementary claim

of violation of state constitutional law. (Connecticut also has a sexual orientation discrimination

statute, but it is not mentioned in the court's decision.) The defendants moved to dismiss, asserting

that Zavatsky failed to state a cognizable federal claim and that, in any event, they were qualifiedly

immune from suit because no established federal rights had been violated.

Judge Covello granted the motion to dismiss regarding the claim of interference with family rights,

but denied the motion as it related to the equal protection claim. Covello found that there is a well-

established federal constitutional right to protection from state interference with family integrity, but

that the existing cases have recognized that right almost exclusively in the context of traditional

married spouses and their children. Although there are cases stretching the right to include more

distant relatives, Covello found scant support for the proposition that Zavatsky's relationship with

her partner and partner's child would fall within this area of established law. This finding is

important, because the qualified immunity doctrine would shelter the defendants from liability for their

discretionary acts unless a person in their position could be held to know that their actions violated

a federally-protected right.

Wrote Covello, "the relationship between Zavatsky and Terrel does not appear to be one previously

recognized by courts as triggering the right to family integrity." After setting out a variety of factors

that a court might consider in making such a determination, Covello wrote: "The court recognizes

that over the course of this case, Zavatsky could potentially answer these questions in a way that

would suggest a very loving and intimate relationship between her and Terrel. Under the current state

of the law, however, even such an intimate and committed relationship is insufficient to trigger the

protection afforded families under the Fourteenth Amendment." Consequently, this part of Zavatsky's

claim was dismissed.

On the other hand, Covello found that Zavatsky had stated a cognizable constitutional claim by

alleging that the defendants had departed from the DCF rule on the rights of partners of parents to

participate in proceedings involving their partners' children, solely on the basis of her sexual

orientation. Although the court found that sexual orientation is not a "suspect classification," citing

_Romer v. Evans_, 517 U.S. 620 (1996) in the usual sloppy way for this proposition (_Romer_ did

not address the question), on the other hand it found, at least based on the allegations in Zavatsky's

complaint, deemed to be true for purposes of the motion to dismiss, that an allegation of unequal

treatment based solely on a person's sexual orientation does state an equal protection claim, and that

once _Romer_ was decided, the principal was established that a government agency's sexual

orientation discrimination without any articulated rational justification is unconstitutional. "Whether

the resulting facts here are sufficient to overcome the presumption of rationality is a close question,"

Covello wrote, but the court placed particular emphasis on the allegation that the defendants were

violating the department's own rules. "Zavatsky has stated an equal protection violation because there

would appear to be no 'readily apparent' justification for the defendants' deviation from the agency's

internal policy. . . Without any rational basis for the defendants' classification, the court cannot, at

this stage, conclude that Zavatsky's complaint fails to allege a violation of a constitutional right."

The court did dismiss all claims against two of the named defendants, because Zavatsky's complaint

failed to specify their personal involvement in the decisions being challenged. It also appeared that

Zavatsky's counsel may have been less than clear in describing the supplemental claims, because the

court agreed with the defendants that those claims should be dismissed to the extent that they sought

to use 42 USC sec. 1983 as a vehicle to present state constitutional claims. But the court concluded

that the complaint could be construed to advance the state claims separately from the sec. 1983

claims, and on that basis refused to dismiss the state constitutional claims. Thus, Zavatsky will be

entitled to proceed against the agency employees on her equal protection and state constitutional

claims. A.S.L.

Federal Court Holds Transsexual Stated 8th Amendment Claim for Denial of Treatment in Prison

While dismissing claims brought pursuant to the 14th Amendment and 42 USC 1983, a Pennsylvania

federal district court sustained a transsexual prisoner's claims under the 8th Amendment and state

medical malpractice law for the failure of prison officials to attend properly to her medical needs

while incarcerated._Wolfe v. Horn_, 2001 WL 76332 (E.D. Pa., Jan. 29). The opinion demonstrates

the tremendous deference given by courts to medical professionals, whose assessment of whether

ongoing hormone therapy or other types of treatment are medically "necessary" or "appropriate" can

dramatically impact the lives of those men and women who are transitioning.

Wolfe, a male-to-female preoperative transsexual, who legally changed her name from James to

Jessica in 1996, struggled with a gender identity disorder from an early age. District Judge Brody

acknowledged that her medical history reflects depression, alcoholism and suicidal impulses. Since

1996, Wolfe has undergone extensive hormone therapy under the supervision of an endocrinologist

from the Persad Center in Pittsburgh. As well as taking Estrace and Lupron to suppress Wolfe's

production of testosterone, Wolfe was also prescribed Prozac for depression. On March 13, 1996,

Wolfe was arrested and detained at Allegheny County Jail, but she was able to continue her hormone

treatment while incarcerated. (The opinion does not specify the reasons for her arrest.)

On July 29, 1996, after being sentenced to a minimum of five years imprisonment, Wolfe was

transferred to SCI-Pittsburgh, where she also received treatment. However, in August, 1996, Wolfe

was transferred to SCI-Camp Hill, where she was examined by Dr. John Mitchell Hume. Despite

Wolfe's explanation about her medical condition and the necessity of continuing her hormone therapy,

Hume told Wolfe that he would discontinue her treatment, and noted on her chart that the hormones

posed a health risk to Wolfe because she smoked, was forty pounds overweight, and had marginally

elevated blood pressure. Hume did, however, refer Wolfe to another psychiatrist for a second

opinion. Even though that psychiatrist allegedly promised to reinstate Wolfe's hormone therapy,

Hume refused to approve the treatment because there was no notation of this promise in Wolfe's file.

Hume prescribed psychotherapy, group therapy and Prozac. Hume did not, however offer to

gradually taper-off the hormones, did not advise Wolfe that she would experience withdrawal

symptoms, and did not monitor her progress through withdrawal.

In late September 1996, after Wolfe had exhausted her last supply of Estrace, she suffered severe

withdrawal symptoms, including headaches, nausea, vomiting, cramps, hot flashes and hair loss. In

addition, Wolfe's masculine traits reemerged, including a deeper voice, diminished breast size and

additional body hair, which also exacerbated Wolfe's depression. In October 1996, Hume told Wolfe

that she had "survived the withdrawal" and would no longer receive any hormones. Dr. Martin Lasky,

the Medical Director at SCI-Camp Hill, affirmed Hume's recommendations, and after personally

evaluating Wolfe upon her arrival, instructed a physician's assistant not to refill Wolfe's Estrace

prescription. Wolfe appealed this decision to Kenneth Kyler, Superintendent of Camp-Hill, and

Martin Horn, the Secretary of the Pennsylvania Department of Corrections. Neither Kyler nor Horn

interfered with Hume and Lasky's medical determinations.

In November 1996, Wolfe was transferred to SCI-Mahanoy, where she is still incarcerated. At this

facility, she was evaluated by Dr. Louis Martin, and Peter Baddick. Neither reinitiated her hormone

therapy. Martin initially provided Wolfe with counseling sessions and prescribed her Prozac.

However, in January 1997, Baddick determined that he would not recommend treatment at that time.

Several months later, Baddick reported that he would not prescribed hormone therapy because

surgery was not available, and because the hormones might increase Wolfe's

risk of cancer and thrombophlebitis. Wolfe appealed this decision to Martin Dragovich, then-

Superintendent of SCI-Mahanoy unsuccessfully. Throughout her incarceration, Wolfe has been

identified as "James," housed with male prisoners, and prohibited from wearing female

undergarments, makeup or long hair.

As an initial matter, Judge Brody noted that Wolfe was now seeking neither a sex change operation

nor the commencement of hormone therapy. Rather, "she seeks some form of therapy to alleviate her

suffering from transsexualism while in prison." In considering the defendants' motion for summary

judgment, the court first analyzed Wolfe's 8th Amendment claim, which required her to show that

there was (1) "deliberate indifference" (2) to her

"serious" medical need. The court acknowledged that transsexualism is a "serious" medical condition,

and proceeded to address whether the defendants had been deliberately indifferent. The court found

it noteworthy that Wolfe was already under the care of medical professionals when convicted, and

contrasted her case with those cases involving prisoners who sought to initiate a new course of

medical treatment after incarceration. The court was hesitant to second-guess the medical judgment

of the prison officials who were treating Wolfe, but did point out that, although Wolfe had received

"some" medical attention while in prison, it was unclear from the record whether she had in fact

received any treatment for

transsexualism, as opposed to merely her depression. Because this question was still unresolved, the

court denied summary judgment on Wolfe's 8th Amendment claim as to whether the defendants were

"deliberately indifferent" to her gender identity disorder.

With regard to her equal protection claim, Brody noted that Wolfe could point to no other "similarly

situated" prisoners who sought treatment for transsexualism, let alone demonstrate whether their

claims were taken "seriously." The court found that no other prisoners were allowed to wear makeup

or cross-dress, and rejected any analogy Wolfe tried to draw between those prisoners who wanted

to wear their hair long for reasons of religious

observance. Finally, the court maintained that because the prison's policy was grounded in a legitimate

penological concern - "security concerns" resulting from "Wolfe's becoming 'feminized' in an all-male

prison" - her equal protection claim failed. Ultimately, the court determined that her Fourteenth

Amendment claims had no merit, and were merely "deliberate indifference allegations under the cloak

of equal protection."

The court then addressed the defendants' defense of qualified immunity to Wolfe's sec. 1983 claim

for money damages. The court reiterated that state officials are entitled to qualified immunity if "their

conduct did not violate clearly established statutory or constitutional rights of which a

reasonable person would have known." However, the court was required to assess "whether these

officials knew or should have known that their actions violated clearly established law, given the

information that they possessed." Because Kyler, Dragovich and Horn were lay prison administrators

and not medical professionals, the court determined that they

might reasonably have believed that Wolfe was receiving "some" treatment for her transsexualism.

The court found it "objectively reasonable" for them to rely on the assessment of the medical

professionals, and found qualified immunity appropriate. In a footnote, Judge Brody noted that while

Wolfe's claims for injunctive relief were moot against Kyler and Dragovich, her request for injunctive

relief against Horn remained.

On the other hand, Defendants Lasky, Hume, Martin and Baddick were private individuals who were

not entitled to qualified immunity under sec. 1983. Therefore, the court addressed these defendants'

alternative defenses. The court found that there was an issue of fact, precluding summary judgment,

on the issue of whether Wolfe knew or should have known that the October 1996 decision not to give

her hormones was a "final" decision, causing the statute of limitations to begin to run, due to

statements by Hume that he needed medical records from Persad in order to render a final decision

about her course of treatment. The court also rejected any defense of issue preclusion based on other

claims previously brought by Wolfe in _Wolfe v. Commonwealth of Pennsylvania_, C.A. 98-1132

(W.D. Pa. 1998), because in that case, the court had only determined that (1) Wolfe had no

constitutional right to a sex change, (2) Wolfe did not have a constitutional right to serve her sentence

in a state hospital, as opposed to an all-male correctional facility, and (3) the Constitution does not

recognize preoperative transsexuals as a protected class. The issues raised by Wolfe in this case were

sufficiently distinct as to avoid any claim of issue preclusion.

The Court also discredited the argument by Hume, Baddick and Martin that Wolfe's complaint should

be dismissed for failure to produce evidence of "physical injury," emphasizing that in addition to

mental and emotional suffering, Wolfe also experienced physical harm in the form of headaches,

nausea, growth of body hair (etc.), which clearly satisfied the "physical injury" requirement. Baddick's

defense that Wolfe was attempting to hold him liable under a theory of respondeat superior was

without merit because there had been a sufficient showing of Baddick's personal involvement in this

case, including his own examination of Wolfe and determination of what treatment would be

appropriate, along with his reporting to Wolfe that she would not receive hormone therapy. The court

refused to consider Baddick's defense of "good faith" on summary judgment, noting that this defense

required determinations of credibility and the weighing of evidence, which were factual assessments

rather than legal ones.

Finally, the court sustained Wolfe's claims of medical malpractice against Hume and Martin for the

same reasons offered for its 8th Amendment "deliberate indifference" analysis - "because there is a

triable fact issue concerning deliberate indifference to serious medical needs, there is also a fact

question concerning negligent malpractice under Pennsylvania law." The court did add a footnote,

however, suggesting that even though these claims had survived summary judgment, at trial the

defendants might be found to have been neither deliberately indifferent nor negligent. Finally, Lasky's

and Baddick's argument that Wolfe's medical expert had not used "the magic words" - i.e., that their

testimony was rendered within a "reasonable degree of medical certainty" - was also dismissed as

immaterial by the court.

In total, the court sustained an 8th Amendment claim of "deliberate indifference" against Horn with

regard to injunctive relief only. However, Wolfe's claims for money damages against Hume, Martin,

Lasky, and Baddick survived, along with her state law claim of medical malpractice. Her equal

protection claim failed entirely, and Dragovich, Horn and Kyler escaped any monetary liability under

sec. 1983 due to their qualified immunity. With the exception of the court's relatively dismissive

analysis in the equal protection section of the opinion, the court's disposition and language

demonstrated an increased sensitivity to the plight of transsexual prisoners who are dependent on the

care of medical professionals, who may range from ill-informed to thoroughly trans-phobic. _Sharon

McGowan_

Wisconsin Appeals Court Rejects Challenge to Madison Teachers DP Benefits Program

Rejecting a challenge mounted by three residents of the city of Madison, the Court of Appeals of

Wisconsin has ruled that local school districts have the statutory authority to pay for health insurance

coverage for their employees' unmarried domestic partners. _Pitchard v. Madison Metropolitan

School District_, 2001 WL 108716 (Feb. 8). The unanimous appellate panel concluded that

Wisconsin state law grants school districts expansive powers to structure the benefits they choose to

offer to their employees, and affirmed Dane County Circuit Court Judge Angela B. Bartell's order

dismissing the plaintiffs' complaint for injunctive relief.

Since 1997, the collective bargaining agreement between the Madison Metropolitan School District

and Madison Teachers, Inc. has allowed eligible teachers to register for health insurance benefits as

an individual or as a family. Under the contract, family coverage includes either an employee's spouse

and dependent children, or an employee's "designated family partner" (DFP) and dependent children.

To qualify for DFP coverage, the participants must be 18 or older, unmarried for at least six months,

and must live together and be in a "relationship of mutual support, caring and commitment and intend

to remain in such a relationship in the immediate future." According to Bob Nader, acting director

of the school district''s human resource office, 74 of the district's 4,1000 workers have registered

for domestic partner coverage (_Capital Times_, Feb. 8).

Helen Pritchard, Mason Sproul and Stephan Tadevich, three taxpayers from Madison, maintained that

the provisions of the collective bargaining agreement relating to domestic partner benefits were _ultra

vires_, and objected to the use of public funds to pay for such benefits. According to the plaintiffs,

since Wisconsin law (Wis. Stat. Secs. 66.185) explicitly permits a school district to provide benefits

to its "employees, officers, and their spouses and dependent children," by omission, school districts

are forbidden to provide benefits to other categories of individuals such as domestic partners. The

appellate court disagreed.

Writing on behalf of the three-judge panel (with the stoicism expected from an opinion focusing on

statutory construction), Judge Margaret Vergeront explained that under Wisconsin law, the statutory

duties and powers of school boards must be broadly construed. The court traced the legislative

history of the statute cited by the plaintiffs, and found no evidence that there was an intent to limit

the otherwise explicitly broad discretion given to school boards to negotiate contracts and benefits

with for their employees.

The court declined to address the plaintiffs' argument that providing health care benefits to DFP's

is against Wisconsin public policy. Judge Vergeront wrote: "We agree with the trial court that it is

not the role of the trial court, just as it is not the role of this court, to weigh the social and political

policy implications of the manner in which the District has chosen to exercise the powers granted to

it by the legislature."

The court's decision opens the door for other school districts and local governmental entities in

Wisconsin to provide health care benefits to domestic partners. Additionally, the rationale underlying

the court's opinion presumably would allow additional employment fringe benefits - such as

bereavement leave or life insurance - also to be extended to domestic partners.

Lambda Legal Defense & Education Fund submitted an amicus brief co-authored by Lambda senior

counsel Patricia M. Logue and staff attorney Marvin C. Peguese in support of the school district's

defense of the benefits program. _Ian Chesir-Teran_

Self-Defense and Heat of Passion Inapplicable to Murder of Gay Mississippi Man

Steven Allen Sanders, serving a life sentence for murder, sought unsuccessfully to appeal the rejection

of testimony about sexual activities between himself and his same-sex victim that occurred sixteen

years before the murder. On February 1, the Supreme Court of Mississippi affirmed rejection of the

testimony as irrelevant to Sanders's claim of self-defense. _Sanders v. State of Mississippi_, 2001 WL

83933 (Miss.).

In 1981, at age 15, Sanders ran away from home, moved in with, and became involved sexually with

Marvin Watts, a "much older man." After several months "the romance waned, Sanders moved out,

repented his homosexuality, and began a heterosexual life which he still maintains." In 1998 after

Sanders again moved in with Watts to save money, Watts made sexual advances which Sanders

rejected. After a few days Watts asked Sanders to leave. Sanders left, returning two days later to

retrieve his property. Sanders, who had been drinking, argued with Watts. Sanders testified that

Watts (who had grabbed his arm earlier) jumped up when Sanders tried to pass. The court could not

determine whether Watts was seated or standing when Sanders struck him on the arm and head with

a hammer. Sanders discarded the hammer in bushes outside the apartment and ingested cocaine.

Sanders returned to the apartment twice that afternoon to steal appliances, at which times, he

testified, Watts was sitting on the couch snoring. The next day Watts was found dead from a

penetrating blow to the head.

At trial Sanders argued self-defense, contending that the entire history of his relationship with Watts

was material, relevant, and probative of the issue of his state of mind at the time he struck Watts.

Sanders' attorney argued that Watts had forced sexual contact on him, causing Sanders to fear Watts.

The prosecutor countered that details of Sanders' relationship with Watts 16 years earlier were too

far removed to be relevant, and that Sanders had gotten before the jury testimony to the fact that he

had been involved in a homosexual relationship with Watts 16 years earlier but did not wish to

continue it. The Supreme Court held that, by failing to proffer the facts to which Sanders would

testify had the objection not been sustained, Sanders' lawyer failed to properly preserve the

testimony, rendering the court incapable of determining materiality. The court also held that the trial

court properly refused Sanders' proffered jury instruction defining heat of passion because the

proposed instruction incorrectly excluded the language "passion or anger suddenly aroused at the

time by some immediate and reasonable provocation." _Mark Major_

Illinois Appellate Court Rejects Convicted Murderer's Attempt to Invoke Homophobia of Other

Potential Killers as a Defense

On Jan. 5, an Illinois Appellate Court held that a defendant accused of the murder of a homosexual

man may not introduce evidence of other possible suspects for the crime based solely upon the prior

homophobic acts of the other persons. _State v. Nitz_, 2001 WL 87734.

Richard C. Nitz stood trial for the brutal murder, which included a decapitation, of Michael Miley,

a homosexual man. At Notz's first trial, the jury convicted him of first degree murder and imposed

a death sentence. The Illinois Supreme Court reversed, finding that Nitz was unfit to stand trial

because he was taking psychotropic medications during trial, and remanded the case for a new trial.

_State v. Nitz_, 173 Ill.2d 151, 670 N.E.2d 672 (1996). At the second trial, Nitz was convicted of

first degree murder and sentenced to life in prison. Nitz appealed the verdict, claiming, among other

things, that he was not permitted to present evidence concerning other possible suspects to the crime.

At trial, as part of its explanation of the crime, the State introduced evidence concerning Nitz's

homophobia. In response, Nitz wanted to introduce evidence of other people in the community who

were homophobic. Nitz also wanted to attack some of the State's witnesses based upon their alleged

homophobia. Apparently, one witness was married to a known homophobe, and two others had been

involved in the shooting of another homosexual the night before Miley was killed. The trial court

refused to hear this evidence.

Judge Kuehn, writing for the Appellate Court, affirmed the finding of the trial court. The Court held

that the trial court properly exercised its discretion in refusing to allow evidence of other people who

harbored bigoted feeling towards homosexuals in the community. Proof of homophobia lacks

relevancy unless that homophobia can be linked to the crime itself. Citing _People v. Smith_,122

Ill.App.3d 609, 461 N.E.2d 534 (1984), the court asserted that without facts showing a connection

between the other homophobic individuals and the murder of Miley, introducing evidence of

homophobia to support a claim that someone else committed the murder is nothing more than "rank

speculation," and such evidence was properly excluded. Consequently, the Appellate Court rejected

the appeal and affirmed Nitz's conviction and sentence in full. _Todd V. Lamb_

Sexual Stereotyping Claim Survives Dismissal Attempt

In _Jones v. Pacific Rail Services_, 2001 WL 127645 (Feb. 14), U.S. District Judge Kennelly (N.D.

Ill.) rejected a motion to dismiss a Title VII claim premised on sexual stereotyping of a man.

Terrence Jones has worked for Pacific Rail Service as a groundsman since February 1999. He claims

that a male co-worker named Fred continually harassed him in the men's locker room by making

statements such as "your hands are so soft -- what are you doing after work?" and "why don't you

come strip for me?" Jones claims he complained to the company, but that it took no corrective action

to end the harassment. In his legal complaint, Jones alleges hostile environment sexual harasmsnet

in count 1 and harassement based on failure to conform to sexual stereotypes in count 2. Pacific Rail

filed an answer to count 1, but moved to dismiss count 2 for failure to state a legal claim.

In rejecting the motion, Judge Kennelly noted that the Supreme Court has ruled in _Oncale v.

Sundowner Offshore Services, Inc._, 523 U.S. 75 (1998), that harassment claims under Title VII can

be brought by men who are being harassed by other men, provided the plaintiff can show he is being

harassed because of his sex. "_Oncale_ does not on its face preclude a plaintiff from advancing a

theory of same-sex harassment based on his perceived non-conformance to gender-based

stereotypes," wrote the judge, pointing out that the Supreme Court had recognized gender-

stereotyping as a basis for Title VII liability in _Price Waterhouse v. Hopkins_, 490 U.S. 228 (1989).

Furthermore, the court noted that the 7th Circuit has upheld a sexual harassment claim based on

gender stereotyping in _Doe v. City of Belleville_, 119 F.3d 563 (7th Cir. 1998), vacated and

remanded, 523 U.S. 1001 (1998). Although the Supreme Court vacated the Belleville decision for

reconsideration in light of _Oncale_, Judge Kennelly asserted that _Belleville_ was decided on two

alternative theories, only one of which was discredited by the _Oncale_ court: that harassment of a

sexual nature is always actionable under Title VII. The other theory, upholding a claim of harassment

based on failure to conform to gender stereotypes, continues to be followed by district courts in the

7th Circuit.

While denying the motion to dismiss, the court commented: "It remains to be seen, of course, whether

Jones actually will be able to establish that he was harassed based on his gender, but that is an issue

for another day." A.S.L.

2nd Circuit Says Employee Can Be Fired for Dating

On Jan. 8, the U.S. Court of Appeals for the 2nd Circuit affirmed that an employee fired for engaging

in a romantic relationship with a coworker may not seek relief under the New York law barring

termination based on an employee's "recreational activities" outside the office. _McCavitt v. Swiss

Reinsurance America Corporation_, 2001 WL 15587.

Jess D. McCavitt, a former Swiss Reinsurance officer, brought suit in 1999 claiming that he was

passed over for promotion and then fired when higher-ups learned he was dating another employee.

Although Swiss Reinsurance had no written anti-fraternization policy, the company successfully

argued that termination on the basis of an employee's romantic relationships was not forbidden by

the New York Labor Law.

In its per curiam opinion on the appeal, the court held that the statute protecting employees from

being fired for off-the-clock activities such as sports, exercise, reading or watching television should

not be expanded. In recent years, a series of district court rulings held that cohabitation and personal

friendships were protected recreational activities. But the 2nd Circuit criticized these rulings as

overly broad and favored a statutory construction that preserved the common

law rule of employment-at-will. In so doing, the court may have the diminished the potential

for using the labor law's "recreational activities" provision as a vehicle for securing greater workplace

protections for lesbians and gay men, although, strictly speaking, the federal court's interpretation

of the state statute does not bind the state courts as precedent.

Circuit Judge J. McLaughlin "grudgingly" concurred in a separate opinion. Although he considered

the circuit court bound by precedent, Judge McLaughlin wrote that permitting termination for dating

"would doom the majority of the population to the life of a Trappist monk." The opinion went on

to note that since "[r]omance has a distinctly distinguished history of originating in office contacts,"

the New York Court of Appeals should rule definitively that dating is a protected activity. _T. J. Tu_

Civil Litigation Notes

In _Davidson 1992 Associates v. Corbett_, NYLJ, 2/21/01 (N.Y.C. Civ. Ct., Bronx Co.), the

court found that a 1999 New York Court of Appeals decision precludes the application of the

_Braschi_ non-traditional family recognition factors to housing covered by the federal Section 8

program. In this case, the surviving partner, a woman who had been listed with the landlord for

many years as a "home care attendant," claimed that she had a non-traditional family relationship

with the male tenant. The court agreed that under _Braschi_ she would be entitled to stay in the

apartment, but found that _Evans v. Franco_, 93 N.Y.2d 823, 710 N.E.2d 261, 687 N.Y.S.2d

615 (1999), precludes her claim, holding that the question whether somebody has a right to stay

in Section 8 housing is a matter of federal, not state, law. This holding is significant for same-sex

partners in Section 8 housing.

John Passanante was too fussy about where he wanted to live, evidently, because U.S. District

Judge Cote found little merit to his housing discrimination claims against a real estate company

managing federally-funded Section 8 housing in New York City. _Passanante v. R.Y.

Management Co., Inc._, 2001 WL 123858 (S.D.N.Y., Feb. 13, 2001). Passanante, who is gay

and claims a mental disability, was on various waiting lists for public housing, but when he was

offered apartments, he either rejected them as unsatisfactory or failed to do the necessary

paperwork under Section 8 to qualify for the proffered housing. After dismissing all of

Passanante's discrimination claims, the court reserved judgment on his pending defamation claims.

A gay employee may pursue his claims of religious and sexual orientation discrimination against

an employer whose policies seemed dictated by Mormon pietism, as a result of a ruling by U.S.

District Judge Joseph C. Spero (N.D. Cal.) rejecting the employer's motion for summary

judgment in _Erdmann v. Tranquility, Inc._, No. C-99-4880 JCS (Jan. 24, 2001) (reported in

BNA Daily Labor Report No. 33, Feb. 16, 2001, p. A-2). Del Erdmann, a nursing administrator

at the Tranquility home, did not keep his homosexual orientation a secret, but did not tell most

co-workers that he was gay. He was summoned into a conference by his supervisor after a fellow

employee said he was "uncomfortable" around Erdmann. The supervisor told Erdmann that

homosexuals are "immoral, indecent, and they just want to be promiscuous and go to bed with

everybody." The supervisor, a devout Mormon, told Erdmann that he should tell other employees

that he was a monogamous gay man who was not interested in going to bed with everybody at the

workplace. She also told Erdmann subsequently that if he didn't become heterosexual and a

Mormon, he would "go to hell." Erdmann also alleges that there was a prayer session after each

daily staff meeting, and that he felt pressured to participate. In rejecting the summary judgment

motion, Judge Spero found that Erdmann's allegations could be believed by a jury to constitute

severe and pervasive harassment as required to find a Title VII violation of religious

discrimination. The opinion is not officially reported.

Here's a strange sort of Catch-22. In _Okokuro v. Commonwealth of Pennsylvania_, 2001 WL

185547 (E.D.Pa., Feb. 2001)(not officially reported; exact date of issue not specified in opinion),

U.S. District Judge James M. Kelly granted partial summary judgment against the plaintiff in an

employment discrimination case brought under Title VII. Although the plaintiff did not mention

anything about it in his original complaint to the EEOC or in his subsequent pro se complaint to

the court, at some point during discovery he added to his national origin and race discrimination

claim allegations that the employer, the Pennsylvania Department of Public Welfare, had

discriminated against him because he was perceived as being a homosexual. In its motion for

summary judgment, the state contended that Okokuro could not include this allegation in his case,

because he had not included it in his complaint to the EEOC and thus failed to exhaust

administrative remedies as to this allegation. Judge Kelly agreed, and granted summary judgment

on any sexual orientation discrimination claim. Of course, no mention is made in the opinion that

the EEOC does not have jurisdiction of claims concerning sexual orientation discrimination against

state employers, so that any attempt by Okokuro to file such a claim with the EEOC would have

been futile. To the extent that a state employee can assert a sexual orientation discrimination

claim against his employer in a jurisdiction that does not expressly outlaw sexual orientation

discrimination, such claim would have to be premised on a violation of the Equal Protection

Clause, which presumably would require no exhaustion of remedies. But Mr. Okokuro, being

a pro se litigant, didn't know about that, presumably.

In a lengthy opinion issued on Feb. 22, U.S. District Judge Thomas Griesa (S.D.N.Y.)

countermanded a jury award of $80,000 in compensatory damages to Ellen Fitzgerald, a former

associate at the law firm of Ford Marrin Esposito Witmeyer & Gleser, LLP, who claimed sexual

harassment and constructive discharge in violation of Title VII. 2001 WL 180053. Among other

elements of Fitzgerald's claim of hostile environment sexual harassment, she asserted that various

others at the firm had referred to her as a lesbian and as "butch" on various occasions. Although

this had apparently impressed the jury, Judge Griesa granted the defendant's motion for judgment

as a matter of law, finding that on balance Fitzgerald had failed to establish that the environment

at the firm was sufficiently hostile to meet the high standard set by the Supreme Court in its sexual

harassment cases.

A jury in Alameda County, California, awarded $500,000 to Scott Hoey-Custock, a San Francisco

police officer who claims he was washed out of the Oakland police training program because he

is gay and in retaliation for his complaints about anti-gay harassment by fellow police academy

recruits. _San Francisco Chronicle_, Feb. 17.

U.S. District Judge John Coughenour in Seattle dismissed a discrimination claim brought by gay

former police officer Dan Mathewson at the close of the evidence, finding that Mathewson fell

woefully short of proving a case of intentional discrimination based on sexual orientation.

Coughenour found convincing that the Department's refusal to rehire Mathewson after he had quit

and then reapplied was fully justified by the record of civilian complaints against him for rough

policing in the Capitol Hill area of the city, and that the refusal to rehire had nothing to do with

his sexual orientation. Evidently the court was particularly impressed by the testimony of Police

Chief Norm Stamper, who said he had worked hard to build bridges to the gay community and

had found it "sad" that he couldn't justify rehiring Mathewson. _Seattle Times_, Feb. 13.

Consistent with its general hostility to same-sex harassment claims, the U.S. Court of Appeals for

the 4th Circuit reversed a jury verdict and award of damages to Christopher Lack in _Lack v. Wal-

Mart Stores, Inc._, 2001 WL 119999 (Feb. 13). Lack alleged that the male assistant manager of

his store created a hostile environment by engaging in harassing conduct of a sexual nature, and

also retaliated against him when he complained by making his work schedule worse. The court

of appeals, in an opinion by Circuit Judge King, found that Lack failed to prove he was subjected

to the offensive behavior because he is a man, noting that women had also complained about the

manager's conduct. The court also rejected Lack's argument that some of the conduct could be

characterized as sexual solicitations and come-ons. A.S.L.

Illinois Judicial Ethics Board Charges Judge With Anti-Gay Bias

The Illinois Judicial Inquiry Board filed a complaint before the Illinois Courts Commission on

February 5, charging that Circuit Judge Susan J. McDunn allowed her personal views about

lesbians to interfere with her performance in two uncontested adoption cases involving lesbian

couples. According to the complaint, McDunn did all she could do to delay ruling on the

petitions, and appointed the anti-gay Family Research Council as a "secondary guardian" in one

of the cases, to ensure that somebody would be present to oppose the adoptions. When the

presiding judge in the court, responding to a complaint about McDunn's actions, reassigned the

two cases to himself and granted the adoptions, McDunn attempted to counter this action by

issuing conflicting orders. After the 1st District Appellate Court rebuked McDunn for her actions,

she was reassigned to administrative duties, pending the JIB's determination of charges against

her. Now that JIB has filed formal charges before the Commission, McDunn's administrative

assignment has been continued. Lambda Legal Defense Fund represented the lesbian couples in

getting the matters reassigned and the adoptions approved, and has been pursuing the disciplinary

action against Judge McDunn. Commenting on the complaint by JIB, Lambda senior counsel

Patricia Logue said that what McDunn had done to Lambda's clients "was really extraordinary

and merits this complaint" but is not typical of the Illinois judiciary, according to a Feb. 5 report

in the _Chicago Daily Law Bulletin_. A.S.L.

Boy Scouts Developments

At a New York City Council contracts committee hearing on Feb. 26 devoted to investigating

whether the City should terminate relations with the Boy Scouts, Deryck A. Palmer, a lawyer who

serves on the Greater New York Councils board of the Boy Scouts testified that the local board

disagrees with the national organization's anti-gay policy. _We denounce the national policy; we

do not think it is right," said Palmer. "We would like to be an agent of change. We ask you to

join us to be an agent of change." Members of the committee concluded that rather than go

forward with a measure to terminate the relationship, they should give the local council a

reasonable period of time to seek a change of policy from the national organization. Prior to the

hearing, there were reports in the press that Council President Peter Vallone, an announced

candidate for mayor, had been trying to broker some kind of deal behind the scenes to resolve the

problem. New York City law prohibits sexual orientation discrimination in places of public

accommodations, and City policies forbid contracting with non-religious private entities that do

not follow such a policy. City Schools Chancellor Harold O. Levy had previously ruled that

schools operated by the Board of Education may not sponsor Scout troops under the current

circumstances, but that the Scouts can continue to have access to school buildings for meeting

space on the same basis as other outside organizations. _New York Times_, Feb. 27; _Newsday_,

Feb. 26.

Reacting to attacks on the Boy Scouts for their anti-gay discriminatory policies, Rep. Steve Nass

(R-Whitewater) offered a resolution in the Wisconsin State Assembly honoring the Boy Scouts and

denigrating their critics. Supporters of gay rights managed to get the resolution amended, or as

openly-gay Rep. Mark Pocan (D-Madison) said, "neutered." As amended, the resolution passed

80-15. But the day-long acrimonious debate led to an uproar and an apology when Rep. Mike

Huebsch (R-Onalaska) made comments reflecting on the sexual orientation of Rep. Tim Carpenter

(D-Milwaukee), a bachelor who has refused to discuss his sexual orientation but who helped lead

the charge on behalf of the gay rights supporters. Huebsch later issued an apology. _Capital

Times_, Feb. 14, 15 & 16.

A charity operated by the _Orlando Sentinel_ newspaper in Florida has decided to stop giving

grants to programs run by the Boy Scouts because of that organization's anti-gay policies. The

publisher announced the change of policy on Feb. 14, according to the Feb. 15 issue of the

newspaper.

Boy Scout troops in Fox Valley, Wisconsin, stand to lose all funding from United Way Fox

Cities, as a result of a vote in January by the charity's board to stop funding organizations that

discriminate based on sexual orientation. _Milwaukee Journal Sentinel_, Feb. 7.

The Connecticut Commission on Human Rights and Opportunities has reaffirmed its position that

the State Employee Charitable Campaign may not include the Boy Scouts among its recipients

because of that organization's discriminatory membership policies. The Commission had given

a similar ruling last spring, but a new ruling was requested by Campaign officials in light of the

Supreme Court's opinion in the _Dale_ case. According to the new Commission ruling, while

the Scouts may "exclude persons in the exercise of its First Amendment rights; as a result, such

an organization may not, however, be entitled to benefits conferred by the government if that

organization discriminates. . . [A] constitutional right to discriminate does not equate with a right

to have the government sanction or support an organization's discriminatory policies." Press

Release, Gay & Lesbian Advocates & Defenders, Feb. 9.

Maureen Glover, a former employee of the United Way of Monmouth County, New Jersey, filed

a complaint with the N.J. Division of Civil Rights against her former employer, claiming that it

had subjected her to a hostile environment by requiring her to continue writing checks to the Boy

Scouts of America, in violation of the agency's own non-discrimination policy that bars sexual

orientation discrimination. "Acting as finance director of an organization that supports an agency

that blatantly discriminated against a minority of which I am a member has been a source of

considerable stress to me," wrote Glover in her letter resigning from the agency. _Bergen

Record_, Feb. 26.

The Portland, Oregon, Police Department has discontinued a Boy Scouts-affiliated Explorers

training program, and has reconstituted it as a Police Cadet Program. The decision was made

after Mayor Vera Katz, the police commissioner, had the city attorney's office examine the

Explorer's association with the Scouts. The chief deputy city attorney reported that the affiliation

violates the city's civil rights ordinance, which bars sexual orientation discrimination, and also

violates provisions barring the city from contracting with discriminatory employers. Police Chief

Mark Kroeker approved the move, saying "We didn't want to keep a name that is still connected

with the Boy Scouts. I signed a letter that it's time to change this because of the policy of the

city." This was in contrast to the Los Angeles, California, Sheriff's Department, which is

continuing to negotiate with the Boy Scouts to see whether they could reach an agreement "where

the bylaws can be adjusted or modified to more closely meet the values of the sheriff's office,"

according to a department spokesman. Portland observers have criticized the public school district

for allowing the Boy Scouts to continue recruiting in the schools, especially in light of prior action

by the school board kicking out military recruiters due to the Defense Department's anti-gay

policies. _Portland Oregonian_, Feb. 12. In Madison, Wisconsin, Police Chief Richard Williams

decided to leave the existing Explorer program in place, noting that it was operated under the

rubric of the separately-incorported Learning for Life program, which officially does not maintain

the same discriminatory policies for participants as the Boy Scouts traditional programs. _Capital

Times_, Feb. 15.

The New Jersey State Education Department has been updating its administrative code, which was

last revised in 1975, to reflect subsequent legislative developments, among them the passage of

New Jersey's Gay Rights Law in 1993. A spokesman for the New Jersey School Boards

Association told the _Bergen Record_ (Feb. 9) that a revision of the non-discrimination

requirements of the Code could lead to all Boy Scout troops being expelled from public schools

in New Jersey, although the Education Department released a statement that the matter was still

under discussion.

The United Way of Central Massachusetts voted to withhold funds from all agencies, including

the Boy Scouts, that discriminate on the basis of sexual orientation. Contributions made in

response to last year's United Way campaign will not be affected by the new policy. Last year,

the organization dispenses approximately $3.8 million to 37 different agencies. _Providence

Journal_, Feb. 16.

In Madison, Wisconsin, the Orchard Ridge United Church of Christ has withdrawn its sponsorship

of a Boy Scout troop because of the anti-gay policies of the Scouts, which Rev. Winton Boyd said

was "inconsistent with our policy of affirming and welcoming gay and lesbian people" to the

church. The First Congregational Church, also affiliated with United Church of Christ, is

considering ending its ties to another Boy Scout troop. _Grand Rapids Press_, Feb. 17.

Washington Park United Church of Christ in Denver held a "separation" ceremony on Feb. 11

to mark the termination of its affiliation with Boy Scout Troop 89 over the anti-gay policy issue.

Recited the assembled congregants: "With utmost humility we stand in opposition to the Boy

Scouts of America's discriminatory policy. . . against our gay and lesbian brothers and sisters."

_Memphis Commercial Appeal_, Feb. 17.

The United Way of Tucson and Southern Arizona has announced that, in accord with Tucson city

policy, it will deny "unrestricted dollars" to any organization that discriminates based on sexual

orientation. However, donors can make directed donations that will not be subject to this policy.

The United Way board justified its new policy by saying that it had traditionally tracked local,

state and federal law in determining recipient eligibility, and so was just following up on Tucson's

recent action in adopting such a policy for its own financial assistance to non-profit groups.

_Tucson Citizen_, Jan. 30.

The Jewish Community Center in York, Pennsylvania, decided against dropping its sponsorship

of a Scout troop, but to work within the Scouts to try to change the anti-gay policy. In particular,

the JCC will insist that the troop it sponsors comply with the JCC's non-discrimination policy,

which includes sexual orientation. The JCC has sponsored Troop 37 since 1941. _York Daily

Record_, Feb. 6. A.S.L.

Criminal Litigation Notes

The war against child pornography may have claimed an "innocent victim" when the N.Y. Court

of Appeals unanimously affirmed the conviction of Paul Fraser on February 20. _People of New

York v. Fraser_, NYLJ, 2/21/01. Fraser, a retired Air Force captain and certified social worker,

had been invited by the Oneida County Deputy Commissioner of Mental Health to join a work

group to develop a treatment program for persons convicted of child pornography crimes. He

decided on his own to compile information he thought would be useful to this task, including

selections of child pornography obtained from the internet. Fraser claims he did so after looking

at NY statutes and concluding that the law against possession of such material had an exception

for "scientific research." When he brought his computer in to have the hard drive replaced, a

technician noticed that there were graphic files with suspicious titles, copied them and turned them

over to the police. Fraser was convicted of possessing a sexual performance by a child, sentenced

to five years probation, 550 hours of community service, and a $1,000 fine, which sentenced was

affirmed by the Appellate Division. The Court of Appeals rejected his argument that the statute

was unconstitutional as applied to him, and rejected his claim that he had made an honest mistake

of law, pointing out that the affirmative defense upon which he sought to rely was contained in

a section of the criminal code that explicitly did not apply to the possession of child pornography

provision. Furthermore, the court rejected his technical argument that a graphic file does not

come within the definition of prohibited matter under the child porn statute.

The _Los Angeles Times_ reported Feb. 24 that a panel of the California 2nd District Court of

Appeal had voted 2-1 on Feb. 23 to remove Superior Court Judge Kathryne Ann Stoltz from

determining whether Robert Rosenkrantz should be paroled. Rosenkrantz was convicted

murdering Steven Redman, who had outed Rosenkrantz to his family and then apparently

provoked the distraught Rosenkrantz. Rosenkrantz has been in prison for 16 years of a 17-to-life

sentence, and Governor Gray Davis has refused to parol him. Judge Stoltz was challenged by the

state as not impartial in the case due to her prior rulings.

Dary Byczek, accused of yelling derogatory remarks at his lesbian neighbors and writing anti-

lesbian graffiti on his truck, was sentenced by Lafayette County, Wisconsin, Circuit Judge

William Johnston to one year probation for disorderly conduct. Johnston did not find Byczek

guilty of a hate crime. However, Byczek is still facing charges of violating restraining orders and

bail jumping, based on complaints filed by the neighbors with local law enforcement authorities.

The women had received a restraining order against him from the Green County Court

Commissioner, which he allegedly disobeyed. _Wisconsin State Journal_, Feb. 25. A.S.L.

Legislative Notes

For the ninth consecutive session, the N.Y. State Assembly has passed a bill that would outlaw

discrimination on the basis of sexual orientation in employment, housing, public accommodations,

education and credit, this time by a margin of 113-33, with almost 40% of the Republicans in the

Assembly crossing the isle to support the Democratic bill. Empire State Pride Agenda director

Matt Foreman contends that there are enough votes for passage in the Republican-controlled

Senate, but the question whether the bill will come to a vote will be decided by the Republican

leadership, which has always succeeded in keeping it bottled up in committee in the past. Because

of municipal and county sexual orientation discrimination measures, a majority of New Yorkers

now live in jurisdictions where such discrimination is unlawful, but the local measures vary

greatly in their remedial provisions. _New York Blade News_, Feb. 16.

The Berkeley, California, City Council voted unanimously on Feb. 20 in support of a proposal

to require city contractors to provide the same benefits to registered partners of employees that

are provided to spouses. The city attorney was directed to present draft legislation for the council

to consider in April. Berkeley would be the fourth city in the U.S. to adopt such a requirement,

following San Francisco, Los Angeles, and Seattle. _Contra Costa Times_, Feb. 22.

The Arizona Senate Commerce Committee voted on Jan. 31 in favor of a bill to protect citizens

of that state from employment discrimination on the basis of sexual orientation. _Arizona

Republic_, Feb. 1.

Residents of Royal Oak, Michigan, will be voting May 1 on a proposed amendment to the city's

human rights ordinance that would prohibit discrimination on the basis of sexual orientation. The

city council voted 4-3 to place the proposal on the ballot, together with a bond issue for fire

department improvements. _Detroit News_, Feb. 15.

The Arkansas House Judiciary Committee rejected a hate crime bill that had previously been

approved by the state's Senate. The bill died in a tie vote on Feb. 20. _Memphis Commercial

Appeal_, Feb. 21.

The West Virginia Senate voted 20-12 on Feb. 23 to approve a hate crime bill that includes sexual

orientation. A similar bill passed the Senate last year, but died in the House Judiciary Committee.

In the interim, elections have changed the composition of the House, and the current chair of the

Committee is a supporter of the bill. _Charleston Gazette_, Feb. 24.

The New Mexico House of Representatives voted 35-31 against a bill that would have added

"sexual orientation" to the state's civil rights laws. All but one Republican member voted against

the bill, but nine Democrats crossed party lines to vote against, thus defeating the measure in the

House, which is narrowly controlled by the Democrats. There is a possibility that a second vote

will be scheduled, if enough defecting Democrats can be persuaded to change their minds. _Santa

Fe New Mexican_, Feb. 16.

San Francisco Mayor Willie Brown and the Board of Supervisors were expected to shortly approve

a change in the city's employee benefits program to provide coverage for sex reassignment

procedures for transgendered city employees. The benefits would become available beginning

July 1. Reflecting the difficulty of the surgery involved, the cost of male-to-female surgery is

about half of the cost of male-to-female surgery. San Francisco will be the only governmental

jurisdiction in the US providing such coverage. It was briefly available in Minnesota, but the

coverage for state employees there was phased out in 1998. _Washington Post_, Feb. 17.

Houston Mayor Lee Brown withdrew a proposal before the City Council to provide employee

benefits for same-sex partners of city employees, stating that he would first concentrate on getting

the Council to pass a law banning sexual orientation discrimination against city employees. But

opponents, unsatisfied with the strategic withdrawal, vowed to petition for a city charter change

to bar providing employee benefits to anyone but employees, their legal spouses and dependent

children. _Houston Chronicle_, Feb. 15. While the debate was going on, the _Houston Chronicle_

reported on Feb. 12 that 7 of the nation's 10 largest cities offer domestic partnership benefits to

their employees. The three holdouts? Houston, Dallas, and San Antonio, all in Texas. The

article reported on the experience of employers who have offered such benefits, reporting based

on interviews with human resources personnel that the plans have all proved less costly than had

been anticipated due to the small number of people who signed up for the benefits relative to the

number who were qualified to do so.

The Utah Senate rejected a law to provide enhanced penalties for bias-motivated crime by a 16-12

margin on Feb. 19. Ironically, just hours earlier the House of Representatives voted 54-17 in

favor of a bill to create enhanced penalties for acts of terrorism against farmers and ranchers. The

contrast was not lost on hate-crime bill sponsor Pete Suazo (D-Salt Lake City), who said that the

difference between the two bills was "simply one of scope." _Salt Lake Tribune_, Feb. 20. * *

* Embarrassed by the inconsistency, the Republican majority called up the hate crimes bill again

on Feb. 20 and it passed by a vote of 21-5. The bill still needs House approval. _Salt Lake

Tribune_, Feb. 21.

The Texas House Judicial Affairs Committee voted 7-2 on Feb. 19 to approve a hate crimes bill

that includes "sexual orientation." A similar bill had been approved two weeks earlier by a Senate

committee. A similar bill that was introduced in the prior session of the legislature was killed

largely due to opposition by then-Governor George W. Bush, stifled in the Senate after having

passed the House. Unfortunately, the Senate committee vote was not positive enough to bring the

measure to the floor, but proponents are working on increasing the margin, and the House sponsor

plans to hold back from bringing the measure to the full House until after the Senate has acted.

_Houston Chronicle_, Feb. 20.

The Colorado Senate Judiciary Committee voted 4-3 in favor of a measure to expand the state's

hate crime law to include age, sexual orientation, and mental or physical disability, on Jan. 29.

Last year, a similar bill passed the House but was killed in committee in the Senate, so the

committee passage was seen as a hopeful sign for enactment this year. _Denver Post_, Jan. 30.

* * * But in a Feb. 21 floor vote, a defecting Democrat in the closely-divided Senate helped

Republicans defeat a measure that would have provided inheritance rights for same-sex couples

where a member of the couple dies intestate. Republican opponents had criticized the bill as a

foot in the door towards same-sex marriage. _Denver Post_, Feb. 22.

On Feb. 14, Valentine's Day, U.S. Rep. Jerrold Nadler reintroduced the Permanent Partners

Immigration Act, which would amend federal immigration law to treat committed same-sex

partners as spouses for purpose of immigration and naturalization rights. Last year's version of

the bill picked up 50 co-sponsors, but never got out of the subcommittee to which it was referred.

_Chicago Tribune_, Feb. 11.

Washington State legislators Sen. Pat Thibaudeau and Rep. Ed Murray have introduced bills in

the state legislature to establish civil unions for same-sex couples. _The Columbian_, Feb. 3.

A.S.L.

Law & Society Notes

San Franciscans were shocked to learn about the brutal mauling death suffered by Diane Whipple,

who was attacked by a dog owned by her neighbors. The next shock arose when they learned that

Whipple, a lesbian, was survived by a domestic partner, Sharon Smith, who wanted to bring a

wrongful death suit but was being advised that California law provides no cause of action for

wrongful death in the case of a same-sex partner. Nonetheless, Smith plans to sue and hopes the

courts will expand the concept of spouse to comprehend her case. _San Francisco Chronicle_,

Feb. 19.

Representatives of southern Louisiana Presbyterians narrowly defeated a proposal to forbid same-

sex unions in their churches at a meeting of the Presbytery of South Louisana on Feb. 20.

However, there was an indication that some voted no not because they supported same-sex

ceremonies but because they felt that the broadly-worded resolution might incidentally also ban

baptizing children of single mothers or performing marriages for heterosexual couples who had

cohabitated prior to marrying. Local presbyteries nationwide are voting on the proposal, which

had been submitted to the local groups for approval by a national body last year. _Times-

Picayune_, New Orleans, Feb. 24.

The school board in Madison, Wisconsin, voted to appoint a full-time counselor to work with gay

and lesbian students, making Madison the fifth such public school system to take such a step, after

San Francisco, Boston, Minneapolis and Seattle. _Milwaukee Journal Sentinel_, Feb. 27.

The Jefferson County, Kentucky, School Board voted to expand its sexual harassment policy,

which had previously covered specific types of harassment (not including sexual orientation), to

cover all forms of harassment. The Board amended its Student Bill of Rights to authorize filing

of complaints when a student has been discriminated against "for any reason." Gay advocates,

who testified at the hearing, were disappointed that the Board did not specifically insert sexual

orientation into the policy, but expressed pleasure that sexual orientation complaints will clearly

be covered by the new policy. _Louisville Courier-Journal_, Feb. 27.

Emerson Electric's annual shareholder meeting included a vote on a shareholder resolution to

require the corporation to adopt a written policy banning sexual orientation discrimination.

Emerson officials contend that the company does not discriminate, but that their practice is to limit

their written policy to forms of discrimination covered by federal civil rights statutes. Janice Van

Cleve, a former Army intelligence officer who spoke in favor of the shareholder resolution,

received a warm welcome from management officials, who complimented her on her "professional

presentation" and invited her to meet with the company's human resources people to discuss the

matter further. Although the resolution received only about 12 percent of the vote, Van Cleve

expressed confidence that the company will voluntarily adopt a written policy soon. _St. Louis

Post-Dispatch_, Feb. 7.

U.S. Attorney General John Ashcroft, whose troubled confirmation process was complicated by

charges of anti-gay animus in his past record (most notably in his opposition to Senate

confirmation of openly-gay Jim Hormel as ambassador to Luxembourg), met Feb. 22 with leaders

of the Log Cabin Republicans, a gay Republican group that had endorsed his confirmation. A Log

Cabin spokesperson said that the organization would be a "resource" to Ashcroft on "civil rights

issues." _Washington Post_, _San Francisco Chronicle_, Feb. 23.

Despite appeals from international human rights groups and gay rights organizations, Missouri

officials refused to stop the execution of Stanley Lingar, a gay man who was sentenced to death

for the brutal 1985 murder of Thomas Allen. There seems no doubt that Lingar committed the

crime, but criticism focused on possible jury bias during the sentencing phase of his case as a

result of the prosecution's presentation of evidence concerning his sexuality. A co-defendant pled

guilty and testified against Lingar in exchange for a prison term. _Los Angeles Times_, Feb. 8.

A.S.L.

Registered Partnership Not Marriage, Says Advocate General in European Court of Justice

On Feb. 22, Advocate General Jean Mischo of the European Court of Justice in Luxembourg (E.C.J.)

delivered his Opinion (currently available in French and four other languages but not English at

http://europa.eu.int/jurisp/cgi-bin/form.pl?lang=en) in Joined Cases C-122/99 P and C-125/99 P, _D.

and Sweden v. Council_, appeals from a Jan. 28, 1999 decision of the Court of First Instance in Case

T-274/97 (available in French at http://europa.eu.int/jurisp/cgi-bin/formfonct.pl?lang=en), [March

1999] LGLN. The case concerns the refusal by the Council (the main E.C. legislative institution) to

treat the Swedish same-sex registered partnership of a Council employee as equivalent to a marriage

in relation to an employment benefit. The Swedish, Danish and Dutch governments have intervened

on the side of D. Advocate General Mischo's Opinion, which is not binding on the E.C.J. but could

prove highly persuasive, urges the E.C.J. to dismiss the appeals.

Advocate General Mischo rejected D.'s three main arguments: (1) the term "married official" in the

European Community's Staff Regulations should be interpreted as including an official who has

entered into a Swedish same-sex registered partnership, because Swedish law treats a registered

partnership as equivalent to a marriage; (2) the failure of the Staff Regulations to include such a

partnership within this term violates the principle of equal treatment; (3) this failure also constitutes

an obstacle to free movement of workers contrary to Article 39 of the E.C. Treaty, because it

discourages Swedish (and Danish and Dutch) workers with same-sex registered partners from leaving

their Member States to seek work in other Member States.

First, he concluded that "marriage" in the Staff Regulations must be given an autonomous and

uniform interpretation, based on the situation in the whole of the E.C. rather than in a single Member

State. Because only 3 of 15 Member States (Denmark, the Netherlands and Sweden) have passed

full, equivalent-to-marriage, registered partnership laws, it could not be said that there had been a

general social evolution in the E.C. permitting the inclusion of a same-sex registered partnership

within the concept of "marriage." Indeed, a 1998 amendment to the Staff Regulations, prohibiting

sexual orientation discrimination by the E.C. against its officials, provides that it is "without prejudice

to the relevant provisions requiring a specific marital status."

Second, he found no violation of the principle of equal treatment, and no need to justify the unequal

treatment, because an official who is party to a registered partnership is not in a situation that is

comparable to that of a married official. Even in Swedish law, marriage and registered partnership

are two juridically distinct categories, with different names and different legal consequences (e.g., in

relation to adoption or joint custody of children). The E.C.J.'s holding in Case C-249/96, _Grant v.

South-West Trains_, [1998] ECR I-621, that E.C. law did not require equal treatment of unmarried

different-sex and same-sex partners, meant that E.C. law did not require equal treatment of married

different-sex and registered same-sex partners. His view was not affected by the European Court of

Human Rights' statement in _Salgueiro v. Portugal_ (Dec. 21, 1999), that distinctions based on sexual

orientation generally cannot be tolerated under the European Convention on Human Rights. (He did

not cite recent binding and non-binding E.C. measures on sexual orientation discrimination, see [Jan.

and Feb. 2001] L.G.L.N.)

Third, free movement of workers does not require that a worker be able to enjoy, in the social system

of the host Member State, benefits that are identical to those of his or her own Member State.

Advocate General Mischo thus urged the E.C.J., whose judgment could be delivered by July 2001,

to leave the question of equal treatment of married different-sex and same-sex registered partners to

the E.C. legislature. _Robert Wintemute_

International Notes

According to a bulletin circulated by the International Lesbian and Gay Association, an Islamic court

in Bosaso, Somalia, has sentenced a lesbian couple to death -- for being a lesbian couple. Bosaso is

identified as the commercial capital of a self-declared autonomous region of Puntland in northeast

Somalia, which is culturally very conservative and where the population submits to strict Islamic law

administered by religious courts. The couple had been living in a committed relationship. The court

found them guilty of "exercising unnatural behavior" and sentenced them on Feb. 19 to death by

stoning. Ironically, the women, who didn't realize they were doing anything "wrong," came to the

attention of authorities when one accused the other of "mistreating" her by refusing to pay for needed

medical treatment. A BBC news report quoted by ILGA said the courthouse was packed with

hundreds of people who applauded the verdict and cheered when the judge handed down the death

sentence. The sentence and execution have not been officially confirmed, and international human

rights organizations have contacted the Somali government to protest. * * * Later news reports

indicate that local officials are denying to the BBC that the incident occurred as had been reported.

Ken Livingstone, first elected mayor of London, England, announced that he has set aside

100,000 pounds in his budget to establish an office for registration of domestic partnerships.

Livingstone is considering a proposal to waive the license fee for the first 100 same-sex couples

who apply, as a way of publicizing this policy, which would bring London in line with other

major world capitals where same-sex couples can formalize their relationships, such as San

Francisco, New York, Amsterdam and Paris. Livingstone also plans to perform such ceremonies

himself, and to make the London Assembly headquarters available in case any local town halls

resist performing such ceremonies. _Times of London_, Feb. 27.

Guyana has been convulsed by debate about gay rights since the National Assembly voted on Jan.

4, 55-0, to approve a bill that would place a ban on sexual orientation discrimination in the

nation's constitution. The measure has been sent to the president, but he has indicated his

intention to send it back to the Assembly for further consideration in light of outraged arguments

that have been raised by leaders of religious groups who were evidently caught unawares by the

passage. _Stabroek News_, Jan. 26.

A tragedy sparks a welcome legal reform: In 1999, an anti-gay terrorist set off a bomb at

London's Admiral Duncan, a gay bar, killing three and injuring many others. It was observed

at the time that Julian Dykes, whose wife Andrea was killed in the bombing, was awarded 10,000

pounds compensation under England's criminal compensation system, but that Gary Partridge,

whose partner John Light was killed, received nothing. The essential unfairness of this elicited

much press comment. Now the Labor Government has unveiled a proposal to revise the rules

governing crime victim compensation so as to recognize same-sex partners on the same basis as

opposite-sex partners. (The Crime Injuries Compensation Authority presently recognizes

unmarried opposite-sex cohabiting couples for purposes of victim compensation.) If approved,

the proposed changes could come into force as early as April. They were introduced in the House

of Lords by Lord Bassam on Feb. 19. _Daily Mail_, _The Independent - London_, Feb. 20.

On the eve of his retirement as Chief of the Defence Staff in the United Kingdom, General Sir

Charles Guthrie stated that his views on the issue of gays in the military had been vindicated by

the successful lifting of the ban. "I was one of those people who never thought homosexuality

would make a difference and the measures we have taken have proved me right," he said,

asserting that there had always been gays in the military service, and that the Service had perfectly

effective means to accommodate their presence. _Daily Telegraph_, Feb. 16.

An Employment Tribunal in London has awarded 140,000 pounds in damages to a transsexual

doctor who proved that her former training school, the National School of Hypnosis and Advanced

Psychotherapy, had blocked her accreditation after learning that she had been born male. _The

Independent-London_, Feb. 9.

In Canada, parliament member Svend Robinson has introduced a bill that would open up legal

marriage to same-sex couples. He argued that as gay and lesbian partners have been held entitled

to equal treatment by the Canadian Supreme Court under the Charter of Rights, there is no good

reason to deny them the same legal arrangements as everyone else. Robinson, a New Democratic

Party member, was joined in his introductory statement by Liberal MP's Bill Graham and Carolyn

Bennett, and Bloc Quebecois MP Real Menard. The bill was seconded in the House by NDP

member Libby Davies, and has the declared support of Conservative Scott Bryson. The bill is

given little chance of success as a private member bill, but Robinson expressed hope that the

Liberal party would bring it up for consideration. _National Post_, Feb. 15.

Canada's _National Post_ reported Feb. 1 that a Swedish parliamentary committee has

recommended authorizing homosexual couples to adopt children, having concluded that same-sex

parents are as capable as opposite-sex couples of giving children "a balanced upbringing." The

Justice Minister, Thomas Bodstroem, has expressed support for the recommendation.

In Egypt, gay groups expressed anger that the government had closed down 13 Turkish baths in

Cairo that were the main social meeting place for gay men. This action followed on the closure

of several web sites for gays on government orders. Government officials claimed that the

bathhouse closures had to do with the physical safety of the structures, and asserted that some will

reopen after renovations. _Daily Telegraph_, Feb. 15.

Mexico's Fine Arts Palace was the scene of a Valentine's Day demonstration for recognition of

same-sex partners. The event was scheduled to focus public attention on two bills pending in the

Mexico City Legislative Assembly to establish a domestic partnership registration system in the

city. The city's only openly gay legislator, Enoe Uranga, told the press that the demonstrators

were not seeking same-sex marriage, just registration and recognition for their relationships.

_Arizona Republic_, Feb. 15; _Houston Chroncle_, Feb. 18.

Religious leaders in the Cayman Islands, a British territory, have started a petition drive protesting

the decision by the British government to abolish sodomy laws in the territories. _The Record_,

Northern N.J., Feb. 5. A.S.L.

Professional Notes

Michael Adams, Associate Director of the ACLU's Lesbian & Gay Rights and AIDS/HIV

Projects, will be leaving that organization to join Lambda Legal Defense & Education Fund as

Deputy Legal Director during March. Adams has been with the ACLU's New York office for

four years, during which he has been involved in a wide variety of cases, perhaps most notably

the on-going effort to get the Florida courts to invalidate that state's explicit statutory ban on

adoptions by gay people.

New York attorneys Martha E. Stark and Matthew L. Moore have been elected by the board of

Lambda Legal Defense & Education Fund to be its co-chairs. Stark is a portfolio manager at The

Edna McConnell Clark Foundation and has been Lambda's board treasurer. Moore is an attorney

at Davis Polk & Wardwell. They succeed Cynthia H. Hyndman of the Chicago law firm

Robinson Curley & Clayton, and Donald M. Millinger, special counsel at the Guggenheim

Museum. Lambda is the nation's oldest and largest lesbian and gay public interest law firm.

Rudy Serra was named one of ten "Lawyers of the Year" in the December 25, 2000, issue of

_The Michigan Lawyer's Weekly_, for his work on gay advocacy issues and his defense of men

unfairly prosecuted for gross indecency under archaic state sex crimes laws. Serra is co-chair of

the Sexual Orientation and Gender Identity Committee of the Michigan State Bar's Open Justice

Commission. A.S.L.

AIDS & RELATED LEGAL NOTES

Massachusetts High Court Justice Finds Absolute Protection for HIV Confidentiality in State Law

Reversing a lower court order that would have required a criminal defendant to reveal his HIV status,

Justice Martha Sosman, sitting as a single justice of the court, ruled Feb. 15 in _Commonwealth of

Massachusetts v. Ortiz_, No. SJ-2001-0055, that a state HIV confidentiality law provides absolute

protection against compelled disclosure of an individual's HIV status.

Defendant Luis Ortiz was arrested on Jan. 22, 2001, when police responded to calls about a

disturbance in an apartment in Springfield, finding Ortiz covered in blood and wielding a "large

butcher knife." When police ordered him to drop the weapon, he advanced on the officers,

brandishing the knife. Even after one of the officers shot Ortiz, he continued to resist and had to be

forcibly restrained. During the course of this arrest, the police officers were exposed to alot of blood,

and due to the emergency nature of the situation had been unable to take any protective measures to

prevent exposure. One of the officers immediately began prophylactic treatment to prevent HIV

infection, but two others decided instead to seek an order compelling Ortiz to reveal whether he is

HIV+, as they preferred to avoid taking the medication (with potentially severe side effects) if they

didn't have to do so.

When Ortiz was brought before the Springfield District Court for arraignment on Jan. 25, the

prosecution moved for an order that Ortiz disclose "any and all medical conditions which he suffers

or has been diagnosed in the past relating to infectious disease." Defense counsel objected based on

the 5th Amendment, undoubtedly concerned that the charges against Ortiz would escalate if HIV was

in the picture. At the conclusion of the argument, the trial judge granted the state's motion, but

ordered that any information Ortiz revealed not be used in determining how to charge him. The order

was stayed pending appeal, and the matter was brought promptly before a single justice of the state's

highest court, who heard argument on Feb. 14 and ruled the next day.

Sosman observed that G. L. c. 111, sec. 70F provides that any HIV testing requires "written informed

consent" from the patient, and that health care providers are forbidden from revealing the results of

HIV testing to "anyone other than the person tested absent that person's 'written informed consent.'"

According to Sosman, the statute "as worded. . . provides absolute confidentiality for HIV testing."

No specific exceptions are set forth in the statute, which "strongly suggests that the Legislature did

not intend there to be any exceptions." Sosman found any doubt on this point to be resolved by

subsequent legislative history, in the form of numerous attempts to amend the statute to create

exceptions, all of which have been unsuccessful to date. (One suspects that this decision may provide

the fuel necessary to propel a new amendment into law, however.) Sosman noted, in particular, that

some of the amendments have been aimed precisely at the situation of law enforcement personnel

exposed to a defendant's blood, and that the legislature has heard the policy arguments surrounding

this circumstance and has nonetheless refrained from amending the statute. Sosman also noted,

however, the medical testimony showing that if prophylactic treatment is not commenced very

quickly, it is unlikely to be effective in preventing HIV infection from taking hold after an exposure;

consequently, the issue is in some sense moot for the police officers in this case who had refrained

from immediate treatment.

"It is indisputable that these officers and their families have a compelling desire to know as much as

possible about the risks they do or do not face as a result of this particular incident," wrote Sosman.

"Although the information they seek may be of no actual medical benefit, their plight is compounded

by the sheer uncertainty of what they face. No amount of telling them that the risk of acquiring HIV

from this incident is 'minimal' will provide the reassurance that they need, and it is unquestionably

agonizing to have to wait for months to learn for sure whether any of the officers have been infected

with HIV as a result of the January 22 exposure. Nothing in this decision is intended to minimize or

belittle the difficulties these officers and their families face. This decision merely recognizes, as it

must, that it is up to the Legislature to decide whether the concerns of these officers and others in

their position, warrant any amendment to the strict confidentiality provisions. . . To date, when

directly and repeatedly confronted with that question, the Legislature has decided that no amendment

is warranted."

The state had tried to argue that, strictly construed, the statute only applies to health care providers

who are privy to a patient's HIV information, while the district judge's order was to Ortiz himself,

but Sosman was not persuaded by this argument, characterizing the distinction as "meaningless,"

since any knowledge Ortiz might have about his HIV status would be as a result of being tested.

"Requiring him to disclose those test results is no different than requiring a health care provider to

disclose those results. The import of sec. 70F is clear: The results of HIV testing are not to be

disclosed without the patient's consent." A.S.L.

Federal Court Rules on Expert Qualifications in HIV Transmission Litigation

Expert testimony plays a crucial role in HIV transmission litigation. In _Erickson v. Baxter

Healthcare Inc._, 2001 WL 135709 (U.S.Dist.Ct., N.D.Ill., Feb. 9), District Judge Bucklo ruled on

the plaintiff's challenges to several expert witnesses proffered by the defendants on plaintiff's claim

that her decedent, a hemophiliac, was infected from tainted blood clotting medication in the early

1980s. Plaintiff's decedent died from complications of AIDS and hepatitis in 1998.

Walter Erickson was diagnosed with hereditary hemophilia at age 8, and received intravenous factor

concentrates to prevent bleeding beginning when he was a teenager. From internal references in the

opinion, it appears that Erickson was born around 1962, and thus would have been a teenager when

AIDS began to show up in hemophiliacs around 1981-2. He left a widow, who brought this

wrongful death action against several manufacturers of blood clotting medication. The complaint

alleges that there were technologies in existence by 1981 to test for and eliminate the risk of hepatitis

infection, which defendants did not use, and that the defendants were aware of the risk of viral

transmission leading to AIDS well before they began to take any steps to avoid contamination of their

medications, and failed to warn hemophiliacs like Mr. Erickson of the risk of infection.

Erickson's challenge to defendants' experts required the court to apply amended Federal Rule of

Evidence 702, which was adopted to codify the principles flowing from the Supreme Court's

important decision in _Daubert v. Merrill Dow Pharmaceuticals, Inc._, 509 U.S. 579 (1993),

requiring "that expert testimony must be reliable to be admissible." According to Judge Bucklo, there

are three aspects of the reliability determination: reliable data, reliable methodology, and reliable

application of the methodology.

Erickson objected to the proffered testimony of Dr. Kingsley, whose opinion was that "chronic

hepatitis B develops in only 5-10% of those who become infected." Kingsley did not identify any

source for this figure other than his experience from years of work as an epidemiologist. The court

ruled that this testimony would be inadmissible, stating: "Statistical evidence must have a specific

source to be reliable; a number pulled out of the air is not 'scientific knowledge.' Dr. Kingsley is

barred from offering statistics on viral chronicity in his testimony. For the same reasons, Dr. Holland

[another defense expert] is also barred from testifying that evidence of primary HIV infection occurs

in less than 20% of patients."

Kingsley was also offered to opine about when Mr. Erickson's infection occurred. Kingsley

disagreed with Erickson's doctor, who would testify that the infection likely occurred in 1981.

Kingsley, as an epidemiologist with more than twenty years of experience, "is qualified to testify

about symptoms that are common to multiple viral illnesses," ruled the court, but there was "complete

lack of support" for his speculations about when Erickson was infected. Judge Bucklo observed that

the _Daubert_ opinion is seven years old, so "defendants have had ample time to educate their expert

witnesses about the type of support required for their opinions to be admissible."

The opinion next moves to Dr. Volberding, a frequent expert in AIDS litigation. Volberding was set

to testify that Erickson's HIV infection did not interfere with the treatment protocol for hepatitis B

or C, since Interferon, the drug of choice, can be prescribed for HIV+ patients. Responding to

Erickson's complaint that Volberding cited no authority for that opinion, the defendants pointed to

Volberding's resume, listing 159 articles, 29 reviews, 37 books, book chapters and monographs,

among other things. "But the defendants cannot seriously expect Ms. Erickson to wade through 311

scientific texts without any references to specific pages to support the opinion in question," wrote the

judge. "This would be, in legal terms, like bringing a motion and offering as support only a reference

to the 'United States Code.' Dr. Volberding is barred from testifying about whether Mr. Erickson's

HIV infection interfered with his treatment protocol for hepatitis."

However, the court found that Volberding was qualified to express an opinion about the state of

knowledge in the medical community in 1981 concerning AIDS and factor concentrates, since at that

time he was a practicing hematologist and oncologist. "Although it would be ideal to have a citation

to some medical publication to support this proposition, he may testify about the standards or

common knowledge of the hematology and oncology community." The court also held that two other

defense experts could give their opinions about what the medical community believed at relevant

times concerning particular treatments, subject of course to cross-examination if Erickson uncovered

evidence that contrary views then prevailed.

As to Dr. Aledort, the court rejected some of Erickson's challenges, because his opinions were based

on a review of actual medical records or were supported by peer reviewed published medical journal

articles, but as in the case of Dr. Kingsley, the court refused to allow Aledort to give opinion

testimony about the viability of treating an HIV+ person with interferon for his hepatitis infection,

once again finding that the testimony rested on no authoritative source. And the court also rejected

all testimony by Dr. Lazerson, who was offered to counter Erickson's doctor's opinion that

physicians decided which clotting medication to prescribe based on convenience rather than on

perceived superiority of particular kinds. Erickson's expert was relying on 8 published sources for

that assertion, and Lazerson offered only his personal views and experiences to the contrary. The

court found Lazerson's proffered opinions to be "largely irrelevant."

The court ruled out opinion testimony from Drs. Volberding, Aledort and Holland about the alleged

source of Erickson's hepatitis infection, based on his deposition testimony that when he was a child,

somebody told him he had suffered a needlestick injury. The court found this to be a totally unreliable

basis for an expert opinion. The court also rejected attempts by Drs. Aledort and Holland to testify

that Erickson had been an alcohol abuser, which behavior was a substantial cause of the liver disease

from which he suffered. Neither of these doctors had any personal knowledge of Erickson's history,

but were basing their statements on medical records that were fuzzy at best on the issue.

The opinion suggests that the _Daubert_ standards, as amplified in Rule 702, set a very high bar for

expert testimony regarding AIDS issues dating from the early years of the epidemic, and will rule out

much that has passed as expert opinion in the pre-_Daubert_ litigation over liability of the factor

concentrate manufacturers for HIV transmission. A.S.L.

Court Denies Reimbursement for Medications Prescribed for HIV+ Patient

The U.S. District Court, S.D.N.Y., found that Connecticut General Life Insurance (CGLIC) was not

responsible for prescription costs of nearly $25,000 for which which Town Total Nutrition sought

reimbursement on the account of an HIV+ patient. The prescriptions were for Ann Lee Chayt's

prescription for immunoglobulin (IVIG) for a sinus condition. _Town Total Nutrition v. CIGNA_,

2001 WL 102351 (Feb. 7, 2001).

Town Total sued CGLIC under ERISA. Town Total filled prescriptions for Chayt related to her

chronic bacterial sinusitis condition for 5 months in 1998. Chayt had been treated by Dr. Barbara

Starrett who has been treating HIV patients since 1983. Chayt also had Hepatitis C and according

to Starrett had been an IV drug user. After surgeries in 1996 and 1997 failed to alleviate Chayt's

sinus condition, one the patients of the doctor who performed the 1997 surgery told Chayt that IVIG

had helped them with a similar sinus condition. Dr. Hift, the doctor who performed the surgery,

believed that Chayt was still using IV drugs because she had track marks. He also advised Starrett

that he thought a globulin test should be done prior to prescribing IVIG. Starrett did not have the

test done, as she believed that people with HIV may not test accurately and that there was no test

commercially available. Dr. Tyler Curiel, a doctor for the CGLIC, testified that there was a test

commercially available. Starrett, asked to a "reasonable degree of medical certainty" of the necessity

to prescribe IVIG, said that the "treatment deserves a try." Starrett took Chayt off IVIG after Chayt

had recurring sinus infections.

At the time that Chayt was taking IVIG, she was also taking antiretroviral agents for HIV. The

agents, she said, helped with the sinus condition, but was "insufficient." Curiel testified, as to treating

adult HIV patients with HIV with IVIG, that the "consensus of his peers at the clinical and

immunology level" was that there "was of no significant clinical benefit and

was not cost-effective."

Judge Koeltl, in ruling for CGLIC, found that the IVIG treatment "was not essential for the necessary

care and treatment of an injury or sickness" as use of IVIG in HIV patients had been limited to

"pediatric populations and, in some instances, adult patients with advanced HIV." Chayt did not have

advanced HIV. Koeltl noted Starrett's not having a globulin test done and that Chayt had asked

about IVIG after talking to another patient. _Daniel R Schaffer_

HIV+ Plaintiff Loses Employment Discrimination Claims

In _Ihekwu v. City of Durham_, 2000 WL 33140712 (Dec. 24, 2000), U.S. District Judge Beaty

(M.D. N.Car.) granted the City of Durham's motion for summary judgment as to HIV+ plaintiff

Patrick Ihekwu's claims under the Americans with Disabilities Act, Title VII of the Civil Rights Act,

the Due Process Clause of the U.S. Constitution and other state law claims in violation of the North

Carolina Equal Employment Practices Act.

Ihekwu is a Nigerian-born black male who worked as a parking garage attendant for the City and was

subsequently promoted to a Records Keeper Specialist position with the City's Records Management

Department ("RMD"). In January 1995, his physician told him that he had contracted HIV infection.

He opted not to share this information with co-workers, but he suspects that unknown City

employees obtained records of his prescription medications and conveyed this information to his

co-workers. Ihekwu had no other evidence to support this belief and admits that he did not know

how his co-workers learned of his malady.

The City presented evidence that Ihekwu's co-workers did not have access to his personnel file or his

medical records. Ihekwu alleges that during the latter part of 1996, several of his African-American

co-workers frequently taunted and teased him, talked negatively about him, and made gestures at him

because of his malady and because he was from Nigeria. Ihekwu alleged that he reported the taunts

and comments to his immediate supervisor, John Parker, who recommended that Ihekwu detail his

complaints in writing. Ihekwu also alleged that other incidents occurred to suggest that his

co-workers knew of his sickness and that they took pains to avoid touching the same things that he

had touched. Ihekwu even alleged that his co-workers made jokes about his imminent mortality and

about getting infected with the virus.

In response to Ihekwu's letters, Parker and Margaret Bowers, the RMD Department Head, met with

Ihekwu's alleged tormentors and investigated Ihekwu's complaints. After this consultation, the City

referred Ihekwu to its Employees Assistance Program for psychological counseling and placed

Ihekwu on paid leave for one month. Ihekwu took the leave, but did not undergo counseling because

he felt it would not affect his co-workers' behavior. Moreover, Ihekwu refused counseling because

he did not want to submit his medical information as a condition of receiving the counseling. In his

deposition dated June 1, 2000, he stated that upon his return, his alleged tormentors had been fired

and he faced no additional harassment. However, in his affidavit dated August 11, 2000, he stated

that the harassment continued after he returned from leave and that no actions were taken to curtail

it.

During spring 1997, Ihekwu and the other employees were notified that the RMD was being

decentralized and that they would lose their jobs as part of a reduction in force. While meeting with

superiors, Ihekwu was told that RMD clerks would receive priority status with the City and would

be considered first for all transfer positions for which they applied and were qualified. Although the

City disputes this, Ihekwu believed that his written letters triggered a conspiracy by the City, whereby

the City eliminated the jobs of his alleged tormentors, decentralized his department, and offered him

either undesirable job reassignments or reassignments requiring medical history disclosure. The City

considered him for positions as a parking ticket writer, a position with the Cemeteries Department

and a Records Clerk position with the Police Department. In turn, Ihekwu believed that the City

considered him for the parking ticket writer position because it wanted him to be outside so that he

would not infect the other employees, and for the Cemeteries position so that he would reflect on his

own mortality.

Ihekwu alleged that the others in his department were transferred to more desirable positions

immediately upon the decentralization of RMD. However, he provided no evidence about who was

transferred and what qualifications each transferee possessed. Finally, he claimed that the City

blacklisted him from receiving offers of employment from other municipalities in the state.

The court found that he could not present direct evidence of discrimination, and that he also failed

to satisfy the three-step proof scheme for raising an inference of discrimination under _McDonnell

Douglas Corp. v. Green_, 411 U.S. 792 (1973). Pursuant to 32 U.S.C. sec. 12112 (d) of the ADA,

a covered entity may require a medical examination after an offer of employment and condition an

offer of employment on the results of such examination. Here, Ihekwu refused to comply with this

requirement and was unable to provide sufficient evidence that this was not standard procedure.

The City presented evidence that it did not decentralize the RMD for the purpose of discriminating

against Ihekwu, but rather sought to reduce costs. Ihekwu did not present any evidence that the City

refused to offer him other, more desirable positions in violation of the ADA for which he was

qualified at the time of the decentralization. As for the blacklisting charge, Ihekwu failed to produce

sufficient evidence from which the court could conclude that medical information was included in his

personnel file in violation of the ADA and that this conduct prevented him from getting another job.

The court dismissed Ihekwu's hostile work environment claim and Title VII race discrimination claim

because he failed to follow the ADA's administrative requirements. Ihekwu's initial charge of

discrimination was based upon a refusal to hire claim, which was filed within the requisite time.

However, the hostile work environment claim was untimely, and Ihekwu's Title VII race

discrimination claim was similarly dispatched because it was never before the Equal Employment

Opportunity Commission.

The court's most interesting determination was Ihekwu's Section 1981 claim. The City argued that

there could be no race discrimination because Ihekwu's tormentors were of the same skin color as

Plaintiff, so it was really a national origin discrimination claim. The court declined to follow this

reasoning, noting that the Supreme Court, in _St. Francis College v. Al-Khazraji_, 481 U.S. 604

(1987), concluded that discrimination based upon a person's ancestry or ethnic characteristics is racial

discrimination in light of the understanding of that concept when this post-Civil War statute was

enacted. Whether there was racial discrimination or not, the court concluded that Ihekwu could not

hold the City responsible for the actions of his co-workers.

Section 1983 provides the exclusive remedy for the violation of rights guaranteed by Section 1981.

In enacting Section 1983, Congress intended to impose liability only if a deliberate action attributable

to the municipality itself was the "moving force" behind the plaintiff's deprivation of rights. Ihekwu

was unable to provide sufficient evidence to establish either that the City had an official policy or

custom of racial discrimination in violation of Section 1981 or that the City showed a deliberate

indifference to his treatment. Finally, the court dismissed Ihekwu's due process claim because he

failed to show that he had a protected property interest. In North Carolina, an employee is presumed

to be an employee-at-will absent a definite term of employment or a contract condition that provides

for "for cause" termination only. Ihekwu had no employment contract and thus, no protected

property interest. _Leo L. Wong_

Court-Martialed HIV+ Sailor Gets Excessive Sentence Thrown Out

In an interesting parody of the military's "Don't Ask, Don't Tell" policy toward gay and lesbian

service members, an HIV+ _straight_ sailor got booted for violating the "Do Tell" order. _U.S. v.

Sorey_, 2001 WL 83172 (January 24). A military judge convicted Yeoman Third Class David E.

Sorey of aggravated assault, breaking restriction and for disobeying a lawful order to inform any

sexual partner of his HIV status and its inherent risks. He was sentenced to a maximum term of 43

months confinement, total forfeiture of pay and a bad conduct discharge. Sorey appealed to the US

Navy-Marine Corps Court of Criminal Appeals, alleging an error in the findings of the trial court

which Sorey believes prejudiced his substantial rights evidenced by the maximum sentence.

In April of 1989, Sorey was diagnosed HIV+ and was advised of the necessary precautions to

minimize the risk of transmission to others and he understood that transmission to others could result

in death to that individual. He acknowledged a lawful order given to him that prior to engaging in sex,

he must inform his partner of his HIV+ status and of the attendant risks. He was restricted to base

for 60 days, which he willfully broke one evening when he went to the apartment of "Ms. H."

According to this woman's testimony, Sorey did not inform her of his HIV+ status prior to sex, but

only told her that she had nothing to worry about and that she would be fine (the facts do not state

whether the sex was protected or unprotected). Ms. H stated that she would not have had sex with

Sorey had she known he was HIV+.

In his principal assignment of error, Sorey argued that the military judged erred in admitting a portion

of Ms. H.'s victim-impact testimony during the presentencing case wherein she read from a college

English essay she wrote years ago that described her feelings at that time of being a child of rape, who

witnessed domestic violence and, as an adult, as a victim of domestic violence. Sorey further claimed

that error was committed when the judge permitted her, over objection, to give her opinion on the

appropriate length of confinement ("throw the key away" and "[h]e doesn't need to see the light of

day"), form of illegal punishment ("[h]e needs to be castrated"), and rehabilitative potential ("you

don't deserve to wear that uniform").

In an unpublished-non-precedent decision, Judge H. C. Cohen wrote on behalf of the tribunal that the

findings were correct in law and fact and that there was no error materially prejudicial to Sorey in

those findings. However, as to sentencing, the court did conclude that although admitting into

evidence the content of Ms. H's English composition was not plain error, permitting her to read in

a narrative manner was "fraught with danger" and was an abuse of discretion by the military judge.

Ruling that the evidence should have been excluded, the court found prejudice by default in that they

were "unable to determine how the inadmissible evidence affected the degree of punishment

awarded." The court affirmed the findings but set aside the sentence and sent it back to the Judge

Advocate General of the Navy for appropriate action.

The court based its reasoning upon the military judge's affirmative acceptance of improper evidence

for consideration on punishment when the judge told Ms. H., "[y]ou can say anything you want, and

I have to let you give your testimony in your own way as you are entitled to do," and by overruling

the objection to such testimony. Furthermore, the testimony was not offered by the government for

anything but aggravation as opposed to rebuttal and impeachment evidence or foundational evidence.

"We presume the military judge followed his own ruling and considered the evidence he admitted,

and we further presume that the evidence played a role in the level of punishment adjudged. This

cannot be called harmless error." _K. Jacob Ruppert_

N.Y. Appellate Division Reaffirms Actual Exposure Rule for AIDS Phobia Claims

In a brief per curiam decision issued Jan. 11, the N.Y. Appellate Division, First Department,

reaffirmed New York's adherence to the "actual exposure" rule in AIDS phobia claims. _Kelly v.

Our Lady of Mercy Medical Center_, 719 N.Y.S.2d 50.

The defendant hospital, located in the Bronx, was treating many HIV+ patients in the early 1990s

when this incident occurred. Patient Donna Kelly suffered an injury from a used lancet, and alleges

that she has suffered severe emotional distress since the incident from fear of contracting AIDS.

However, she has consistently tested HIV- over the past seven years, and there is no evidence that

the lancet in question (which was discarded by a nurse before it could be tested) had been used on

an AIDS patient. Indeed, the hospital contends that no AIDS patients were being treated on the floor

of the hospital on which this incident occurred.

Under these circumstances, the court found that the plaintiff could not credibly allege a claim of

negligent infliction of emotional distress, and granted summary judgment for the hospital. Affirming,

the Appellate Division found that the evidence supported this disposition. The appeals court also

rejected the plaintiff's argument, raised for the first time during oral argument of the appeal, that the

nurse's disposal of the lancet before it could be tested, created "special circumstances" justifying the

emotional distress claim by creating uncertainty about the possibility of exposure in light of the patient

population of the hospital. The court also rejected Kelly's attempt to make something of the fact that

it took the hospital years to inform her that none of the other patients being treated on that floor were

HIV+. The court noted that Kelly had never asked the hospital for that information, and had never

raised such a claim at the trial court, thus waiving it. A.S.L.

AIDS Litigation Notes

In _Quinn v. Ultimo Enterprises, Ltd._, 2001 WL 128242 (N.D. Ill., Feb. 9, 2001), District

Judge Holderman almost cut in half the attorney fees requested by Kevin Quinn, who achieved

a satisfactory settlement of his HIV-related employment discrimination claim in a one-day

mediation session. According to the court's brief factual summary, Quinn, a sales employee, was

fired after about 90 days of employment, the day after the company learned he was HIV+. Quinn

filed suit under the ADA, and after brief discovery during which 4 depositions were taken, the

case was resolved before a prior mediator, which Quinn receiving over $200,000 in settlement of

his claim. However, the mediation settlement did not cover attorney fees. Quinn filed a claim

with the court, as prevailing party, for $160,267.50 in fees, $4,980.12 in costs, and $3,723.72

in post-judgment interest, for a total of $168,971.34, based on a claim of 528.5 billable hours of

work by Quinn's attorneys. Judge Holderman evidently found this quite outrageous,

characterizing this as a simple case with minimal discovery, resolved in a single day of mediation,

and cut the total award down to $88,520.12. In particular, Holderman found it "hard to imagine"

that "with the advances made in electronic research" it was necessary for counsel to expend 43

hours on legal research in this case, cutting down the approved hours for legal research to 8!

The Appellate Court of Connecticut ruled in _Barese v. Clark_, 62 Conn. App. 58, 2001 WL

171904 (Feb. 27), the prosecutorial immunity shields a prosecuting attorney from liability to a

crime victim for revealing in a criminal sentencing hearing that the defendant convicted of

assaulting the victim had claimed at the time to be HIV+. The victim, who alleges that the

prosecutor told her prior to the hearing that he would not mention the defendant's HIV status,

filed suit alleging breach of privacy, fraud and intentional infliction of emotional distress.

Without addressing the merits of plaintiff's tort claim, the appellate court affirmed the New Haven

Superior Court's conclusion that the prosecutor's statements during the sentencing hearing were

well within the traditional immunity afforded prosecutors for statements made within the judicial

process.

Alfred E. Gilliam of Bloomington, Indiana, was ordered to submit to HIV testing after he spit in

the face of a jail corrections officer on Feb. 3. McLean County Associate Judge James Souk

ordered the blood test in a Feb. 5 court session at which Gilliam was handcuffed to a wheelchair

and had a medical mask placed over his face "to protect deputies and correctional officers from

additional assaults." _Bloomington Pantagraph_, Feb. 7. To date, nobody has every contracted

HIV from being the victim of spitting.

In _Mofield v. Bell_, 2001 WL 128383 (U.S.Ct.App., 6th Cir., Feb. 6) (unpublished disposition),

the court rejected a claim by a prisoner under 42 U.S.C. sec. 1983 that his civil rights had been

denied when he was transferred to a different location in retaliation for his complaints about

medical care he received for his HIV infection. The court found that "HIV-infected inmates do

not constitute a suspect class that is entitled to special consideration under the Equal Protection

Clause," and that the prison's transfer policies "rationally furthered the legitimate state purpose

of preventing the spread of a communicable disease." The court provided no explanation in its

brief, unpublished disposition, about how it reached its conclusion concerning the rationality of

the prison's policies. The court also rejected, as not timely raised, new allegations by Mofield

about a variety of issues, some related to his HIV status.

Lester Gomez, an HIV+ resident of Marrero, Lousiana, pled guilty to raping two young boys in

exchange for a promise of a life sentence. The prosecutor indicated that Gomez knew he was

HIV+ when he committed his sexual assaults, but that so far the boys have tested negative for

HIV. _Times-Picayune_, Feb. 7. A.S.L.

AIDS Public Policy Notes

The U.S. Centers for Disease Control announced at an AIDS conference held in Chicago early

in February a major new initiative to step up counseling for people newly diagnosed with HIV

infection in order to get them to cut down on activity that might spread the virus to others. CDC

spokespersons program is aimed at cutting down the annual rate of new infections in the U.S.

from 40,000 to 20,000. _Wall Street Journal_, Feb. 7.

The Pennsylvania State Health Department has proposed new rules requiring doctors to report the

names of those who test HIV+ to the health department. HIV infection would be added to the

list of 52 other reportable conditions and diseases. Doctors are already required to report AIDS

diagnoses by patient names. _Pittsburgh Post-Gazette_, Feb. 22.

The Bush Administration's trade representative office announced that the new administration will

not change a policy adopted last year by the Clinton Administration under which the U.S. will not

oppose efforts by third world nations with significant AIDS problems to obtain inexpensive

generic versions of drugs that are patented in the U.S. _Los Angeles Times_, Feb. 21. A.S.L.

AIDS Law International Notes

In Glasgow, Scotland, dentist William John Duff has been sentenced to 21 months in prison for

"culpably and recklessly" exposing his patients to possible HIV infection by repeatedly using

unsterilized equipment. The Dental Council had previously suspended Duff from practice after

determining he was not following appropriate procedures. There is no mention in the news report

on this about whether any of Duff's patients have actually been infected with HIV as a result of

his faulty methods. _Birmingham Post_, Feb. 23.

Stephen Kelly was convicted Feb. 23 of recklessly endangering Ann Craig by repeatedly having

sex with her when he knew he was HIV+. Ms. Craig was infected as a result of his actions. The

High Court in Glasgow, Scotland, will be sentencing him during March. Kelly's attorney had

argued that Ms. Craig knew he was infected when they began their relationship, which she denied.

_Guardian_, Feb. 24. A.S.L.

AIDS Law & Society Notes

Bush Administration chief of staff Andrew Card created a mini-furor by suggesting that the White

House would eliminate the National AIDS Policy Office. The day Card's statement appeared in

_USA Today_, a White House spokesperson announced that Card had misspoken and the office

would be maintained. _Wall Street Journal_, Feb. 8.

The U.S. Centers for Disease Control & Prevention on Feb. 5 issued a new study showing that

30% of young gay black men are HIV+ in 6 large U.S. cities: Baltimore, Dallas, Los Angeles,

Miami, and New York. Among young gay men, 15% of Hispanics, 7% of Caucasians, and 3%

of Asians were also found to be infected. Overall, the study found that 12.3% of the young gay

men in these cities were HIV+. A co-author of the study described these figures as "strikingly

high and worrisome. . . We have not been putting adequate resources into gay men of color. And

we definitely need to bolster our efforts at reaching them." _New York Times_, Feb. 6.

The District of Columbia Health Department withdrew an AIDS pamphlet titled "A Christian

Response to AIDS" after a protest by the ACLU. The pamphlet, printed with public funds,

advised readers that "Jesus is our hope!" A Health Department spokesperson said that the

pamphlet had been ordered from a publishing house that publishes a variety of brochures that the

city routinely orders, and somebody apparently made a mistake in spending $380 for 1,000 copies

of the pamphlet to distribute at public health fairs. _Washington Post_, Feb. 28.

The Pennsylvania Health Department has proposed adding HIV infection to the list of name-

reportable conditions. At the present time, doctors are required to report the names of those

diagnosed with AIDS, but the names of those testing HIV+ need not be reported. Health officials

claim they can better target prevention programs if they can identify areas of the state with higher

incidences of new HIV infection. _Pittsburgh Post-Gazette_, Feb. 22. A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Calvert, Clay, and Kelly Lyon, _Reporting on Child Pornography: A First Amendment Defense

for Viewing Illegal Images?_, 89 Kentucky L. J. 13 (2000-2001).

Canor, Iris, _Equality for Lesbians and Gay Men in the European Community Legal Order - 'they

shall be male and female'?_, 7 Maastricht J. of European & Comp. L. 273 (2000).

Chambers, David, _The_ Baker_ Case: Civil Unions, and the Recognition of our Common

Humanity: An Introduction and a Speculation_, 25 Vt. L. Rev. 5 (Fall 2000) (introduction to

symposium on Vermont Civil Unions).

Coolidge, David Orgon & William C. Duncan, _Beyond_ Baker_: The Case for a Vermont

Marriage Amendment_, 25 Vt. L. Rev. 61 (Fall 2000) (argument in support of a state

constitutional amendment to overrule Baker v. State and limit marriage to opposite-sex couples).

Cox, Barbara J., _But Why Not Marriage: An Essay on Vermont's Civil Unions Law, Same-Sex

Marriage, and Separate But (Un)equal_, 25 Vt. L. Rev. 113 (Fall 2000).

Davis, Martha F., _International Human Rights and United States Law: Predictions of a

Courtwatcher (The Kate Stoneman Professorship Lecture)_, 64 Albany L. Rev. 417 (2000).

Elman, R. Amy, _The Limits of Citizenship: Migration, Sex Discrimination and Same-Sex

Partners in EU Law_, 38 J. Common Market Studies 729 (Dec. 2000).

Epstein, Richard A., _The Constitutional Perils of Moderation: The Case of the Boy Scouts_, 74

S. Cal. L. Rev. 119 (Nov. 2000).

Franke, Katherine M., _Theorizing Yes: An Essay on Feminism, Law, and Desire_, 101 Col. L.

Rev. 181 (Jan. 2001).

Fruehwald, Scott, _Pragmatic Textualism and the Limits of Statutory Interpretation:_ Dale v. Boy

Scouts of America, 35 Wake Forest L. Rev. 973 (2000) (critiques the New Jersey Supreme

Court's interpretation of the state human rights law in its application of the sexual orientation

discrimination in public accommodations provision to the Boy Scouts of America).

Hunter, Nan D., _Escaping the Expression-Equality Conundrum: Toward Anti-Orthodoxy and

Inclusion_, 61 Ohio St. L. J. 1671 (2000).

Johnson, Greg, _Vermont Civil Unions: The New Language of Marriage_, 25 Vt. L. Rev. 15

(Fall 2000).

Kapur, Ratna, and Tayyab Mahmud, _Hegemony, Coercion, and Their Teeth-Gritting Harmony:

A Commentary on Power, Culture, and Sexuality in Franco's Spain_, 33 U. Mich. J. L. Reform

411 (Spring 2000) (commentary on Perez-Sanchez article, below).

Kujovich, Gil, _An Essay on the Passive Virtue of_ Baker v. State, 25 Vt. L. Rev. 93 (Fall

2000).

Kujovich, Gil, _In Opposition to Amending the Vermont Constitution_, 25 Vt. L. Rev. 277 (Fall

2000).

Kwan, Peter, _Querying a Queer Spain Under Franco_, 33 U. Mich. J. L. Reform 405 (Spring

2000) (commentary on Perez-Sanchez article, below).

Lenaerts, Koen, _Fundamental Rights in the European Union_, 25 European L. Rev. 575 (Dec.

2000).

Mello, Michael, _For Today I'm Gay: The Unfinished Battle for Same-Sex Marriage in

Vermont_, 25 Vt. L. Rev. 149 (Fall 2000).

Morris, Grant H., _The Evil That Men Do: Perverting Justice to Punish Perverts_, 2000 Ill. L.

Rev. 1199.

Nolan, Laurence C., _Legal Strangers and the Duty of Support: Beyond the Biological Tie -- But

How Far Beyond the Marital Tie?_, 41 Santa Clara L. Rev. 1 (2000).

Oberman, Michelle, _Regulating Consensual Sex With Minors: Defining a Role for Statutory

Rape_, 48 Buffalo L. Rev. 703 (Fall 2000).

Perez-Sanchez, Gema, _Franco's Spain, Queer Nation?_, 33 U. Mich. J. Law Reform 359

(Spring 2000).

Post, Robert C., and Reva B. Siegel, _Equal Protection by Law: Federal Antidiscrimination

Legislation After_ Morrison_ and_ Kimel, 110 Yale L.J. 441 (2000).

Rothstein, Honorable Marshall, _Justifying Breaches of Charter Rights and Freedoms_, 27

Manitoba L. J. 171 (2000).

Serra, Rudy, _Michigan's Law of Gross Indecency_, 1 Wayne St. U. J. L. & Soc. 139 (Fall

1999).

Serra, Rudy, and Annette Skinner, _Counseling the Gay, Lesbian, Bisexual or Transgender

Client_, 80 Mich. Bar J. No. 1, 52 (Jan. 2001).

Spindelman, Marc S., _Reorienting_ Bowers v. Hardwick, 79 N.C. L. Rev. 359 (Jan. 2001)

(revisionist analysis attempting to "defang" Georgia sodomy law decision by Supreme Court).

Strasser, Mark, Baehr_ Mysteries, Retroactivity, and the Concept of Law_, 41 Santa Clara L.

Rev. 161 (2000).

Strasser, Mark, _Mission Impossible: On_ Baker_, Equal Benefits, and the Imposition of Stigma_,

9 Wm. & Mary Bill of Rts. J. 1 (Dec. 2000).

Struzzi, Melissa A., _Sex Behind the Bar: Should Attorney-Client Sexual Relations Be

Prohibited?_, 37 Duquesne L. Rev. 637 (Summer 1999).

Von Bogdandy, A., _The European Union as a Human Rights Organization? Human Rights and

the Core of the European Union_, 37 Common Market L. Rev. 1307 (Dec. 2000).

Whitebread, Charles H., _"Us" and "Them" and the Nature of Moral Regulation_, 74 S. Cal.

L. Rev. 361 (Nov. 2000).

Williams, Andrew, _Enlargement of the Union and Human Rights Conditionality: A Policy of

Distinction?_, 25 European L. Rev. 601 (Dec. 2000).

_Students Notes and Comments:_

Coolidge, Greg, _Worshipping a Sacred Cow:_ Curran v. Mount Diablo Council of the Boy

Scouts of America, 29 Southwestern U. L. Rev. 401 (2000).

_Curran v. Mount Diablo Council of the Boy Scouts of America_, 17 Cal. 4f 670 (1998), 28

Southwestern U. L. Rev. 727 (1999) (annual review of California jurisprudence).

Itah, Amy Ruth, _Censorial Community Values: An Unconstitutional Trend in Arts Funding and

Access_, 61 Ohio St. L. J. 1725 (2000).

Jasiunas, J. Banning, _Is ENDA the Answer? Can a "Separate But Equal" Federal Statute

Adequately Protect Gays and Lesbians from Employment Discrimination?_, 61 Ohio St. L. J.

1529 (2000).

Jean, Shelby, _Peer Sexual Harassment Since_ Oncale_ and _Davis_: Taking the 'Sex' Out of

'Sexual Harassment'_, 2000 L. Rev. M.S.U. Detroit College of L. 485 (Summer 2000).

Kruse, Becky, _The Truth in Masquerade: Regulating False Ballot Proposition Ads Through State

Anti-False Speech Statutes_, 89 Cal. L. Rev. 129 (Jan. 2001).

Martin, Jil L., United States v. Morrison_: Federalism Against the Will of the States_, 32 Loyala

U. Chi. L.J. 243 (Fall 2000).

Michalek, Natalie Brown, Littleton v. Prange_: How Voiding Transsexual Marriage Affects the

Fundamental Right of Marriage_, 52 Baylor L. Rev. 727 (Summer 2000).

Monroe, Erin D., City of Erie v. Pap's A.M._: Nude Dancing as a Form of Expression Protected

Under the First Amendment_, 28 Southern U. L. Rev. 79 (Fall 2000).

Recent Cases, _Constitutional Law -- Article III Justiciability -- Ninth Circuit Holds That

Landlords May Not Assert Pre-Enforcement Free Exercise Challenge to Antidiscrimination

Statutes _ Thomas v. Anchorage Equal Rights Commission_, 220 F. 3d 1134 (9th Cir. 2000) (en

banc),_ petition for cert. filed_, 69 U.S.L.W. 3260 (U.S. Oct. 2, 2000) (No. 00-499)_, 114

Harv. L. Rev. 1398 (Feb. 2001).

Recent Cases, _Constitutional Law -- First Amendment -- Academic Freedom -- Fourth Circuit

Upholds Virginia Statute Prohibiting State Employees From Downloading Sexually Explicit

Material. _ Urofsky v. Gilmore_, 216 F.3d 401 (4th Cir. 2000) (en banc),_ cert. denied_, 69

U.S.L.W. 3259 (U.S. Jan. 8, 2001) (No. 99-466)_, 114 Harv. L. Rev. 1414 (Feb. 2001).

Recent Legislation, _Domestic Relations -- Same-Sex Couples -- Vermont Creates System of Civil

Unions -- Act Relating to Civil Unions, No. 91, 2000 Vt. Adv. Legis. Serv. 68 (LEXIS)._, 114

Harv. L. Rev. 1421 (Feb. 2001).

_Specially Noted:_

Direct from the People's Republic of Vermont, the Vermont Law Review presents a

comprehensive symposium issue (vol. 25, no. 1, Fall 2000) on Vermont Civil Unions, including

the full text of the Vermont Supreme Court decision in Baker v. State, the full text of the Civil

Unions Statute, and articles setting out the history of the litigation and the legislation, derived

from a symposium held at Vermont Law School last fall. This will be an essential reference work

for anybody laboring in the field of legal recognition for same-sex partners. Individual copies can

be purchased from the Vermont Law Review for $10 (a bargain!). Write to Business Manager,

Vermont Law Review, Vermont Law School, PO Box 96, South Royalton, VT 05068. Individual

articles noted above.

As widely reported in the press at the time, one of the amicus briefs filed in support of the Boy

Scouts of America in the _Dale_ case came from a group of gay folks who argued that the values

of freedom of association were, in their view, stronger than the principles of non-discrimination,

and thus they urged the Court to reverse the N.J. Supreme Court and uphold the right of the Boy

Scouts to exclude whomever they like from their ranks. For a more fully articulated version of

this viewpoint, see Richard Epstein's brief article about the case at 74 S. Cal. L. Rev. 119 (Nov.

2000), titled "The Constitutional Perils of Moderation: The Case of the Boy Scouts." To those

who have been listening to him over the years, Epstein's analysis here will be nothing new in light

of his past writing about the constitutional illegitimacy (in his view) of Title VII of the Civil

Rights Act of 1964. Epstein espouses a "radical libertarian" philosophy under which the

constitutional guarantees of free speech, protection of private property, and personal liberty

compel a strong distrust of any attempt by the government to dictate the associations and

preferences of private actors in our economy, whether for-profit or not-for-profit entities. There

is much support for such a viewpoint among gay conservatives of the Log Cabin Republican

persuasion, and those who care to understand their point of view would be well-advised to read

this economically-brief, skillfully-argued piece.

AIDS & RELATED LEGAL ISSUES:

Aden, Steven H., _HIV/AIDS and the Public Accommodation Provisions of the Americans With

Disabilities Act_, 9 Temple Pol. & Civ. Rts. L. Rev. 395 (Spring 2000).

Baggaley, Rachel, and Eric van Praag, _Antiretroviral Interventiions to Reduce Mother-to-Child

Transmission of Human Immunodeficiency Virus: Challenges for Health Systems, Communities

and Society_, 78 Bull. Of W.H.O. 1036 (2000).

Burris, Scott, Kathryn Moss, Michael Ullman, and Matthew C. Johnsen, _Disputing Under the

Americans With Disabilities Act: Empirical Answers, and Some Questions_, 9 Temple Pol. &

Civ. Rts. L. Rev. 237 (Spring 2000).

Crossley, Mary, _Becoming Visible: The ADA's Impact on Health Care for Persons With

Disabilities_, 52 Alabama L. Rev. 51 (Fall 2000).

Hetrick, R. Scott, _The Employer's Duties Regarding Communicable Disease in the Workplace_,

24 Am. J. Trial Advoc. 35 (Summer 2000).

Hoffman, Barbara, _Reports of Its Death Were Greatly Exaggerated: The EEOC Regulations That

Define "Disability" Under the ADA After_ Sutton v. United Air Lines, 9 Temple Pol. & Civ.

Rts. L. Rev. 253 (Spring 2000).

Issacharoff, Samuel, and Justin Nelson, _Discrimination With a Difference: Can Employment

Discrimination Law Accommodate the Americans With Disabilities Act?_, 79 N.C. L. Rev. 307

(January 2001).

Leonard, James, _The Shadows of Unconstitutionality: How the New Federalism May Affect the

Anti-Discrimination Mandate of the Americans With Disabilities Act_, 52 Alabama L. Rev. 91

(Fall 2000).

McGowan, Miranda, _Reconsidering the Americans With Disabilities Act_, 35 Ga. L. Rev. 27

(Fall 2000).

Parmet, Wendy E., _Individual Rights and Class Discrimination: The Fallacy of an Individualized

Determination of Disability_, 9 Temple Pol. & Civ. Rts. L. Rev. 283 (Spring 2000).

Rahdert, Mark C., Arline_'s Ghost: Some Notes on Working as a Major Life Activity Under the

ADA_, 9 Temple Pol. & Civ. Rts. L. Rev. 303 (Spring 2000).

Ray, Jamie C., and Stephen S. Pennington, _The Substantial Limitation Approach to Defining

Disability: Why Does It Create an Insurmountable Barrier to Individuals Who are Regarded as

Disabled?_, 9 Temple Pol. & Civ. Rts. L. Rev. 333 (Spring 2000).

Ray, Liza M., _The Viatical Settlement Industry: Betting on People's Lives is Certainly No

"Exacta"_, 17 J. Contemp. Health L. & Pol. 321 (Winter 2000).

Sheperd, Lois, _HIV, the ADA, and the Duty to Treat_, 37 Houston L. Rev. 1055 (Symposium

2000).

Tucker, Bonnie Poitras, _The Supreme Court's Definition of Disability Under the ADA: A Return

to the Dark Ages_, 52 Alabama L. Rev. 321 (Fall 2000).

_Student Notes & Comments:_

Case Note, _The Supreme Court Reverses the Equal Employment Opportunity Commission's

Directive That Disability Determinations Should be Made Without Regard to Mitigating

Measures:_ Sutton v. United Airlines, 52 Maine L. Rev. 425 (2000).

Wickard, William D., _The New Americans_ Without_ a Disability Act: The Surprisingly

Successful Plight of the Non-Disabled Plaintiff Under the ADA_, 61 U. Pitt. L. Rev. 1023

(Summer 2000).

EDITOR'S NOTE:

Due to an error in editing, the article in the February issue of _Law Notes_ written by Travis J.

Tu was incorrectly attributed to T.J. Travis. * * * All points of view expressed in _Lesbian/Gay

Law Notes_ are those of identified writers, and are not official positions of the Lesbian & Gay

Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in

_Publications Noted_ are attributable to the Editor. Correspondence pertinent to issues covered

in _Lesbian/Gay Law Notes_ is welcome and will be published subject to editing. Please address

correspondence to the Editor or send via e-mail.