ISSN 8755-9021 October 1999

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

Contributing Writers: Elaine Chapnik, Esq., New York City; Ian Chesir-Teran, Esq., New York City; Steven Kolodny, Esq., New York City; Mark Major, Esq., Long Island, New York; Sharon McGowan, Harvard Law Student, Cambridge, Massachusetts; K. Jacob Ruppert, Esq., Queens, New York; Daniel R Schaffer, New York City; Dirk Williams, Esq., Boston, Massachusetts; Robert Wintemute, Esq., King's College, London, England.

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


On Sept. 27, the European Court of Human Rights became perhaps the first final appellate court in the world to invalidate a ban on lesbian, gay and bisexual military personnel under a human rights treaty or constitution. In doing so, it extended the protection of the European Convention on Human Rights against sexual orientation discrimination for the first time beyond the criminal law into the area of employment, and established a standard that will apply throughout the forty-one countries of the Council of Europe, which stretch from Reykjavik to Istanbul to Vladivostok.

The Court's watershed judgments (available at http://www.dhcour.coe.fr) were issued in Lustig-Prean & Beckett v. United Kingdom (Applications nos. 31417/96 and 32377/96), and Smith & Grady v. United Kingdom (Applications nos. 33985/96 and 33986/96). On the main issue, the validity of the ban, the vote was 6 to 1, with judges from Albania, Austria, France, Lithuania, Norway and the U.K in the majority, and a judge from Cyprus dissenting. The two cases arose out of the dismissals of Duncan Lustig-Prean, a lieutenant-commander in the Royal Navy, John Beckett, a weapons engineering mechanic in the Royal Navy, Jeanette Smith, a nurse in the Royal Air Force, and Graeme Grady, a personnel administrator in the Royal Air Force. After unsuccessful judicial review proceedings in U.K. courts (see 1995 LGLN 102, 162, [1996] Q.B. 517), in which they invoked English administrative law and European Community sex discrimination law but were unable to rely on the European Convention (which had not been incorporated into U.K. law), the four applicants took their cases to Strasbourg. They challenged both their discharges pursuant to the ban, and the intrusive questioning to which they had been subjected by military investigators, which included questions about their private sexual activities. (For example, John Beckett was asked who was "butch" and who was "bitch" in his relationship with his partner, and Jeanette Smith was asked whether she and her partner had a sexual relationship with their 16-year-old foster daughter.)

The applicants' main arguments were that both their discharges and the investigations violated their Article 8 rights to respect for their private lives, and their right to be free from discrimination in relation to their private lives under Article 14 together with Article 8. (For these arguments, it is sufficient to read the Lustig-Prean & Beckett judgment. The first 116 paragraphs of the Smith & Grady judgment are virtually identical, except for the facts in paragraphs 11-28.) The majority begin by finding that, under Article 8(1), the investigations "constituted a direct interference with the applicants' right to respect for their private lives. Their consequent administrative discharge on the sole ground of their sexual orientation also constituted an interference with that right." (The majority cited Vogt v. Germany, a 1995 decision of the Court in which the dismissal of a public school teacher for political activities as a member of the Communist Party was found to interfere with her Article 10 right to freedom of expression.)

The onus then shifted to the U.K. government to justify these interferences under Article 8(2). Were they "necessary in a democratic society" for the legitimate aims of "the interests of national security" and "the prevention of disorder"? The majority adopted the same standard of review as in Dudgeon v. United Kingdom in 1981, in which the Court had held that blanket criminalization of all private, consensual, adult same-sex sexual activity violated Article 8. "It is common ground that the sole reason for the investigations conducted and for the applicants' discharge was their sexual orientation. Concerning as it did a most intimate aspect of an individual's private life, particularly serious reasons by way of justification were required." The majority found the interferences "especially grave" because (i) in each applicant's case, information from third parties had "prompted the investigations into their sexual orientation, a matter which, until then, each applicant had kept private"; (ii) the discharges had a "profound effect on their careers and prospects," especially in view of the difficulty of transferring their qualifications and experience to civilian life; and (iii) the "absolute and general character of the policy," which required immediate discharge, "irrespective of the individual's conduct or service record," on grounds of "their innate personal characteristics."

Having declined to rely on morality, conduct, physical capability, courage, dependability, skill, HIV or security risks, the U.K. government argued only that "the presence of open or suspected homosexuals in the armed forces would have a substantial and negative effect on morale and, consequently, on ... fighting power and operational effectiveness ..." This effect would result from "the negative attitudes of heterosexual personnel towards those of homosexual orientation." The majority held that "[t]o the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interferences ..., any more than similar negative attitudes towards those of a different race, origin or colour." The majority also noted "the lack of concrete evidence to substantiate the alleged damage to morale and fighting power that any change in the policy would entail." The applicants argued that "a strict code of conduct applicable to all personnel would address any potential difficulties caused by negative attitudes of heterosexuals." The majority agreed, observing that, "... even if it can be assumed that the integration of homosexuals would give rise to problems not encountered with the integration of women or racial minorities, the Court is not satisfied that the codes and rules which have been found to be effective in the latter case would not equally prove effective in the former." As for "shared single-sex accommodation and associated facilities" (i.e., the showers), "it has not been shown that ... conduct codes and disciplinary rules ... could not adequately deal with any behavioural issues arising on the part either of homosexuals or heterosexuals."

Finally, the majority turned to "European consensus" (always a highly influential factor in the Court's analysis) on the question of lesbian, gay and bisexual military personnel. The majority noted "the evidence before the domestic courts to the effect that the European countries operating a blanket legal ban on homosexuals in their armed forces are now in a small minority. It considers that, even if relatively recent, the Court cannot overlook the widespread and consistently developing views and associated legal changes to the domestic laws of Contracting States on this issue ..." (This was a generous interpretation of the evidence, which may indicate that European consensus will be easier to establish in future. For the majority of the 41 member states of the Council of Europe, especially those in Eastern Europe, there was probably either no evidence before the Court as to the armed forces' policy or practices, or evidence of some discrimination, if not a blanket ban.) The majority thus found that "convincing and weighty reasons have not been offered by the Government to justify the policy against homosexuals in the armed forces or, therefore, the consequent discharge of the applicants from those forces." The same was true of "the continued investigation of the applicants' sexual orientation once they had confirmed their homosexuality." (The U.K. government had defended the intrusive questioning as necessary "to detect false claims of homosexuality by those seeking administrative discharges." This ludicrous argument ignored the fact that the applicants wanted to stay in the armed forces!) Having found that both the discharges and the investigations violated Article 8, the majority concluded that no separate issue arose under Article 14.

In Smith & Grady, the applicants made additional arguments under Articles 3 and 10. Under Article 3, which prohibits torture and inhuman or degrading treatment or punishment, they claimed that the policy and consequent investigations and discharges amounted to degrading treatment. They relied on East African Asians v. United Kingdom (1973), 78-A D.R. 5, in which the European Commission of Human Rights had held that race discrimination could, in special circumstances, amount to degrading treatment. The majority "would not exclude that treatment which is grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority ... could, in principle, fall within the scope of Article 3," but held that the treatment in this case had not reached "the minimum level of severity" that would bring it within Article 3. As for Article 10 (freedom of expression), the majority "would not rule out that the silence imposed on the applicants as regards their sexual orientation, together with the consequent and constant need for vigilance, discretion and secrecy in that respect with colleagues, friends and acquaintances as a result of the chilling effect of the Ministry of Defence policy, could constitute an interference with their freedom of expression." However, because sexual orientation is "an essentially private manifestation of human personality,. . . the freedom of expression element of the present case is subsidiary to the applicants' right to respect for their private lives which is principally at issue," making it unnecessary to consider Article 10.

With regard to all four applicants, Judge Loucaides of Cyprus agreed that the investigations violated Article 8, but held that the discharges were justified. He was convinced by the U.K. government's argument that "particular problems might be posed by communal accommodation arrangements in the armed forces. The applicants would have to share single-sex accommodation and associated facilities (showers, toilets, etc.) with their heterosexual colleagues. ... [T]he problems ... are ... analogous to those which would result from the communal accommodation of male members of the armed forces with female members."

Within four hours of the judgments, the U.K. government had suspended the ban, apparently declining to request a referral to a Grand Chamber of 17 judges under Article 43(1), and instead starting to perform its obligation to comply with final judgments of the Court under Article 46(1). In a Ministry of Defence press release, Defence Secretary George Robertson said: "This Government, like all Governments, has to accept the ruling of the European Court of Human Rights. The details of this complex judgment and its practical implications are being studied carefully. After consulting the Service Chiefs, Ministers will be making their recommendations in a timely manner. In the meantime, cases in the system will be put on hold." Ministers will also have to consider the amount of financial compensation to the four applicants (the Court postponed its decision on this matter) and to at least 80 other discharged members of the armed forces with pending or potential claims.

Lustig-Prean & Beckett and Smith & Grady clearly prohibit a blanket ban on all lesbian, gay and bisexual military personnel, as applied to the discharge of closeted personnel "outed" by third parties. The majority stressed that the applicants had not been open about their sexual orientations. Will personnel who come out voluntarily be protected? It would seem so, in that the U.K. government's asserted justification was the negative effect of "the presence of open or suspected homosexuals," and the majority's rejection of heterosexual hostility as a justification did not distinguish between outed and open personnel. Will the protection cover refusals to enlist or to promote a person known to be lesbian, gay or bisexual? Although the majority stressed the loss of an existing career in these cases, their reasoning could easily be extended to the loss of a potential employment opportunity. Indeed, there is no reason why the judgments cannot be taken as establishing a general principle that any sexual orientation discrimination against an individual (without reference to any partner they may have) in any kind of public sector employment must be justified by "convincing and weighty reasons," which cannot include co-worker prejudice. This is particularly significant in the U.K., where there is no legislation prohibiting sexual orientation discrimination in employment, but where the Human Rights Act 1998 will come into force in October 2000 and will impose a duty on all "public authorities" to comply with Articles 8 and 14 of the Convention. It can even be argued that Lustig-Prean & Beckett and Smith & Grady impose a "positive obligation" on Council of Europe countries to adopt legislation prohibiting sexual orientation discrimination by private sector employers (9 to 12 of 41 appear to have done so to date), although there is not as yet any Court case law supporting such an obligation with regard to other kinds of discrimination. But employment benefits for a same-sex partner (e.g., military housing for same-sex couples) would almost certainly be more controversial, and it is not obvious that the Court would yet be willing to apply Lustig-Prean & Beckett and Smith & Grady in this context. _Robert Wintemute_


Washington Appeals Court Revives Civil Rights Action by Nude Dancers

A unanimous 3-judge panel of the Court of Appeals of Washington ruled Sept. 27 that police officers may have violated the constitutional rights of nude dancers in a Seattle nightclub when they were arrested without a warrant. _Furfaro v. City of Seattle_, 1999 WL 754366 (Div. I).

Following up on citizen complaints, the Seattle police sent a detective into Rick's, an adult nightclub, where he recorded his observations about the performance, describing the activities of each dancer. The detective returned to the police station with his tape recording and played it for other police officers. The police officers decided that the dancers were violating a local ordinance governing conduct in adult establishments, and went back to Rick's and arrested thirteen entertainers and the manager for violations of the ordinance. Of those arrested, only one was brought to trial, a dancer who was acquitted by a jury. The city then dropped charges against the others. Then the manager and two of the dancers sued the city and several police officers for violation of their civil rights. After ruling that the police officers had qualified immunity from suit, the court allowed a jury to decide whether the police had probable cause to arrest the plaintiffs. The jury found for the city, and this appeal followed, with the plaintiffs' claims for damages under 42 USC sec. 1983 being the main issue, the trial court having dismissed state law tort claims.

In an opinion by Judge Becker, the court concluded that, as dancing in an entertainment setting is expressive conduct protected by the First Amendment, there should be a judicial determination and the issuance of a warrant before police can arrest dancers. First Amendment protection would be forfeited only if the dance is obscene, and the police could not be left to make this determination on their own. "Without a warrant," wrote Becker, "such arrests operate as a prior restraint and a form of unconstitutional censorship." However, the court concluded that the trial court correctly found the police officers to have qualified immunity from personal liability for damages in this situation. A.S.L.

District Court Denies Motion to Dismiss Lesbian Defamation Claim

A complaint brought in federal court by a woman alleging that her supervisor defamed her by falsely telling another employee that she was a lesbian survived a motion to dismiss in _Thomas v. Bet Sound-Stage Restaurant/Brettco, Inc._, 1999 WL 692020 (U.S. Dist., S.D. MD, Sept. 1).

Plaintiff Marie Thomas, an employee of a restaurant managed and owned, respectively, by defendants Xanadu Management and Bet Sound-Stage Restaurant/Brettco, Inc., alleged, among other things, that her supervisor, Roy Dabney, groped her buttocks, touched her inner thighs and solicited her for sex. Thomas refused his sexual overtures, whereupon, she alleges, he told some of her co-workers that she was a lesbian. Her supervisor allegedly continued this behavior for a year, until she quit her job and filed a complaint with the Equal Employment Opportunity Commission. After receiving a right to sue letter from the EEOC, she filed an action against BrettCo and Dabney (in his individual capacity) alleging defamation, claims of violation of Title VII for sexual harassment, including pattern and practice sexual harassment, constructive discharge, assault, battery and intentional infliction of emotional distress. On September 1, District Judge Williams issued a decision disposing of a variety of motions by both parties, including defendants' motion to dismiss the defamation claim.

Thomas claimed that Dabney told another employee that she is a lesbian. In Maryland, to establish a prima facie case for defamation, "a plaintiff must ordinarily establish that the defendant made a defamatory statement to a third person; that the statement was false; that the defendant was legally at fault in making the statement; and that the plaintiff thereby suffered harm;" and the person was exposed to "scorn, hatred, contempt or ridicule." Judge Williams held that Plaintiff had alleged sufficient facts to establish all elements of a claim for defamation against Dabney, since the statement about Thomas being a lesbian was false, and to quote Williams, "there is no doubt that such comments would expose Plaintiff to contempt, _even_ in today's society" (emphasis added). Williams also held that BrettCo was vicariously liable for defamatory statements made by its employee, Dabney, presumably because such tortious conduct was within the scope of his employment. (But compare below, where Williams found the opposite to be the case with respect to holding BrettCo vicariously liable for sexual assaults committed by Dabney.)

Williams dispensed with Thomas' other claims as follows. He dismissed her claim for intentional infliction of emotional distress, because the alleged conduct causing the distress failed to meet the legal standard that the conduct be so "extreme in degree as to go beyond all possible bounds of decency," and "be regarded as atrocious, and utterly intolerable in a civilized community." Williams stated that the most egregious of Dabney's alleged acts was that he pulled Thomas' trousers down below her underwear. The court found that this conduct did not go beyond vulgar teasing, bad taste and poor judgment, and so did not meet the legal standard to be actionable. Williams also dismissed the claims of sexual harassment and constructive discharge under Title VII against Dabney in his individual capacity. As a matter of 4th Circuit precedent, only employers, not supervisors, can be held liable in their individual capacities for Title VII violations. However, Williams held that Plaintiff Thomas did allege sufficient facts in her complaint to survive dismissal as to the Title VII claims against BrettCo for sexual harassment and constructive discharge, but not the claim for pattern and practice sexual harassment. Only an entire class of plaintiffs, not an individual plaintiff, may bring a cause of action for pattern and practice sexual harassment. Finally, Williams dismissed the claim for assault and battery against BrettCo, citing several Maryland cases holding that an employer cannot be held vicariously liable for sexual assaults committed by its employee, because such tortious conduct is clearly outside the employee's scope of employment.

In sum, the court denied Defendants' motion to dismiss the claims against (a) BrettCo for sexual harassment, constructive discharge, and defamation, and (b) Dabney, in his individual capacity, for defamation and assault and battery, and dismissed Plaintiff's claims of pattern and practice sexual harassment and intentional infliction of emotional distress. _Elaine Chapnik_

Hostile Environment Harassment Aimed at Perceived Lesbian Not Actionable

U.S. District Judge Van Bebber (D. Kans.) granted summary judgement for the employer in a case where a worker at a prison alleged sexual harassment under Title VII of the Civil Rights Act and intentional infliction of emotional distress, based on comments about her sexual orientation. _Metzger v. Compass Group, Inc., 1999 WL 714116 (Sept. 1, 1999).

Beverly Metzger worked for Compass, which provided food services by contract at the Kansas state prison in Lansing. Joey Barlow, also named in the suit, served as the food service director. Metzger started work in March of 1997. After seeing Barlow acting <!69>out of it" on May 2, 1997, Metzger inquired of Barlow and he told her that he was taking Xanax and Prilosec. At a later point Barlow, in front of Metzger, a co-worker, and two inmates, said that Metzger could be the wife of Ellen DeGeneres. Metzger took this to mean that Barlow assumed she was a lesbian. Later that day, a co-worker of Metzger's called Barlow to inform him that he had left his sunglasses in Metzger's work area. On the phone, Barlow told the co-worker to tell Metzger to "suck his dick." The co-worker handed the phone to Metzger, and Barlow repeated the comment to her three times. Metzger contacted Barlow's supervisor. The supervisor told Barlow not to contact Metzger and that she should inform the supervisor of further problems. Metzger declined an offer to transfer to another location. Barlow contacted Metzger for work-related issues but did not subsequently engage in offensive behavior, the court found. Metzger told Barlow's assistant about the earlier phone conversation, and the assistant informed Metzger that Barlow had referred to her as a "gay" or "dyke" on several occasions. Metzger ceased working for Compass on June 30, 1997, when they lost their contract at the prison. She continued to work for the new company which then held the contract.

Metzger alleged that she experienced continuing problems due to Barlow's actions, but the court ruled that there was no "ongoing damage." Metzger alleged that the inmates lost respect for her, and began talking about her, specifically her sexual orientation. In one incident, she was grabbed twice in a cooler by an inmate with whom she had never had problems previously.

Metzger felt compelled to quit. She also began seeing a therapist. The court found that going to the therapist was unrelated to her employment.

Compass argued that conditions required for a hostile work environment sex discrimination claim did not exist. The court found that a "rational jury" could not find that Metzger's workplace was permeated with "discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions" of her employment. The court found that the harassment Metzger faced due to her perceived sexual orientation "cannot serve as the basis for her claim for sexual harassment." There was no evidence that the harassment she experienced "was the result of a general hostility toward women, as opposed to a general hostility toward homosexuals," wrote Judge Van Bebber. The phone call in which Barlow repeatedly told Metzger to "suck his dick" was nothing more than an "offensive utterance..." Similarly, Metzger's claims against Barlow for intentional infliction of emotional distress were rejected.

In granting summary judgement for Compass, the court quoted a ruling which found that "members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language and to occasional acts and words that are definitely inconsiderate and unkind. The law should not intervene where someone's feelings merely are hurt." _Daniel R Schaffer_

Court Blasts Georgia Insurance Commissioner Over Domestic Partnership Issue

Fulton County, Georgia, Superior Court Judge Wendy Shoob ruled from the bench on September 22 that Georgia Insurance Commissioner John Oxendine's refusal to approve the city of Atlanta's domestic partnership benefits plan "was outside the scope of his statutory authority and was an abuse of his discretion," and ordered Oxendine to approve the plan, which would provide insurance coverage for the unmarried domestic partners of city employees. _City of Atlanta v. Oxendine_ (complaint filed March 15, 1999). _Atlanta Constitution_, September 23.

The City of Atlanta first enacted domestic partnership coverage in 1993, but a taxpayer's legal challenge resulted in the Georgia Supreme Court overturning the measure on the ground that it extended benefits beyond the limits of a state law governing public sector employee benefits. The city revisited the issue in a revised ordinance specially tailored to meet the requirements of the state law and the Supreme Court's opinion. In a new taxpayer-initiated lawsuit, the Supreme Court upheld the ordinance in 1997. However, Georgia law requires the state Insurance Commissioner to approve any change in a municipality's benefits plan before it can go into effect, and Oxendine, a stern foe of domestic partnership, refused to give the necessary permission, issuing an opinion that allowing such coverage would violate state law, including Georgia's recently-enacted mini-DOMA, a statute banning recognition of same-sex marriages.

In arguments before Judge Shoob, state attorneys contended that granting recognition to domestic partners would be "unfair, inequitable, would encourage misrepresentation and is contrary to the public policy of the state." An integral part of Oxendine's argument was that domestic partnership condones illicit sex, and the focus here would have to be on the ordinance's coverage of opposite-sex couples, since the Georgia Supreme Court declared last year that the sodomy law is unconstitutional. Consequently, fornication (known locally as the Sin of Michael Bowers), is the "illicit" sex in question. But Shoob found that the ordinance does not mention sexual relationships, and that the government has no business inquiring into the sexual activities of domestic partners.

In the oral argument on September 22, state attorney Harold Melton argued that some domestic partnerships seek to imitate marriage, in defiance of the legislative same-sex marriage ban, but Shoob was unimpressed. City Attorney Robin Shahar, who assisted in drafting the revised domestic partnership ordinance, represents the city in the case. Stephen R. Scarborough, a Lambda Legal Defense Fund staff attorney, represents co-plaintiff Cathy Woolard, an Atlanta city councilmember who seeks insurance coverage for Karen Geney, her domestic partner. An appeal by Oxendine seemed likely, given his ideological commitment on the issue. A.S.L.

District Court Embraces Sexual Stereotyping Theory in Homophobic Harassment Case Under Title VII

Although the court granted summary judgment to the defendant on the ground that the alleged harassment was not sufficiently pervasive or severe to affect the plaintiff's terms and conditions of employment, U.S. District Judge Coar (N.D.Ill.) ruled in _Spearman v. Ford Motor Co._, 1999 WL 754568 (Sept. 9), that a case of homophobic harassment might be brought under Title VII of the Civil Rights Act where it rested on evidence of gender stereotyping.

Mr. Spearman, who is black, was subjected both to racial and sexual taunts, in some cases blatantly homophobic. The opinion says nothing about his sexual orientation. But the court notes that "Spearman appears to have been singled out because of the way he projected his gender, or how his gender was perceived by his co-workers. Co-workers speculated on Spearman's sexual orientation based upon their perception of him as a man, and not on any comment by Spearman himself on his sexual orientation. . . Title VII does not permit an employee to be treated adversely because his or her appearance or behavior does not conform to gender stereotypes." Judge Coar found that although the Supreme Court had vacated a 7th Circuit ruling, _City of Belleville v. Doe_, for reconsideration in light of _Oncale_, the Court's same-sex harassment case, the 7th Circuit had subsequently appeared to reaffirm its reasoning in _Belleville_ in the case of _Shepherd v. Slater Steels Corp._, 168 F.3d 998 (7th Cir. 1999), thus making it possible for district courts within that circuit to continue using the gender stereotyping theory embraced in _Belleville_. A.S.L.

Nebraska Supreme Court Refuses to Address Merits of Alleged Hermaphrodite's Protest Over Terms of Incarceration

In _Rehbein v. Clarke_, 598 N.W.2d 39, 257 Neb. 406 (Aug. 6, 1999), the Nebraska Supreme Court refused to address the merits of a challenge to the locus of his incarceration by an alleged hermaphrodite, on the grounds that this pro se litigant had used the wrong type of writ to seek to invoke the jurisdiction of the court.

Cary Rehbein was convicted of felony murder, sentenced to life imprisonment, and sent to a prison for men to serve his sentence. Rehbein claims that the trial court failed to perform an adequate presentencing investigation, which would have disclosed that Rehbein is a hermaphrodite with a genetic makeup more female than male, and thus that Rehbein should not have been sent to serve a sentence in a male prison. Evidently, Rehbein raises this contention for the first time not in a direct appeal of his sentence, but by filing a motion for a writ of habeas corpus in the Lancaster County District Court, contending that his counsel gave him ineffective representation in this and other regards.

Sustaining the district court's denial to grant the writ, Justice Wright authored an erudite opinion on Nebraska writ pleading that will undoubtedly strike Rehbein as pure hocus pocus and gobbledy-gook. (This is the kind of thing that gives lawyers and courts a bad name...) Finding that Rehbein had made no allegations going to the jurisdiction of the district court over his original criminal trial, or the regularity of the proceedings, Wright opined that a state court writ of habeas corpus would not be available to challenge the terms of his confinement. But, wrote Wright, "We express no opinion as to whether Rehbein may challenge his confinement through a writ of mandamus or other method. See 68 Neb. Admin. Code, ch.9, sec. 004 (directs Department of Correctional Services to assign female inmates to Nebraska Center for Women)." Wright also cites a federal case brought by a transsexual inmate to protest prison living conditions and medical treatment. So poor Rehbein must begin anew seeking a different kind of writ. A.S.L.

2nd Circuit Rules Display of Male Nude Photos Did Not Create Sexually Harassing Workplace

Affirming a decision of the district court, a panel of the U.S. Court of Appeals for the 2nd Circuit ruled on Sept. 21 in _Brennan v. Metropolitan Opera Association_, 1999 WL 731762, that a female, heterosexual assistant director who was not re-engaged by the Met had not stated a valid claim of age discrimination or sexual harassment, the latter claim premised largely on her exposure to photographs of nude and semi-nude men kept on an office bulletin-board by one of her male co-workers.

Martha Brennan's work station at the Metropolitan Opera was in an office shared with several other assistant directors, mostly women. One of the male assistant directors posted the nude male photos on a bulletin board in the office. Brennan protested that she was offended by the photos and took them down, but the other employee put them back on the bulletin. When the stage director learned about this controversy, he stated that all the assistant directors were adults and could work out any problems among themselves. On another occasion, Brennan claims that she overheard the stage director and another male engaged in lewd banter with each other, but on appeal she did not raise this as evidence of a hostile environment. In support of her hostile environment claim, Brennan argued that maintenance of the photos on the bulletin board throughout her tenure at the Met created a hostile environment on the basis of sex.

In rejecting this claim, Circuit Judge Parker noted that Brennan had presented no evidence to show that the posting of nude male photos would be more offensive to women than to men. Furthermore, the court concluded that the posting of such photos, standing alone, seemed insufficiently severe to be said to have affected Brennan's terms and conditions of employment. Dissenting on this point, District Judge Patterson, sitting by designation, argued that the question of the offensiveness and seriousness of the impact of the photographs created a fact issue for a jury to decide, rather than to be disposed of by the court on a motion for summary judgment as a matter of law.

Brennan's age discrimination claim fell apart because she had misrepresented her age by ten years on her Met employment application, and the stage director, who made the decision not to re-engage her, thought that she was within the same age range as the woman Brennan alleges was her replacement. Further, the court found that due to the Met's method of retaining assistant stage directors for one-year contracts associated with particular operas produced in the contract year, it was not really appropriate to speak of any particular assistant stage director as being hired to replace another assistant stage director. Since there was no evidence that the decision not to re-engage Brennan was based on her age, summary judgment on this claim was affirmed as well.

At the district court, Brennan had also presented a supplemental claim alleging sexual orientation discrimination under the New York City Human Rights Ordinance. When the district judge granted summary judgment to the Met on her federal law claims, he declined to exercise continuing jurisdiction over the state law claim. Brennan did not appeal this part of the decision, but it would have been interesting to see how the circuit court would handle a sexual orientation hostile environment claim brought by a heterosexual employee complaining about the behavior of gay men in her work place. A.S.L.

Virginia Court Upholds Conviction of Man for Murdering Girlfriend for Lesbian Affair

In _Eliot v. Commonwealth_, 517 S.E.2d 271 (Aug. 10, 1999), the Virginia Court of Appeals sustained the conviction of second degree murder against Benjamin Scot Elliott for killing his girlfriend, in part, because of her relationship with another woman. Judge Lemons, writing for the court, found that the jury's decision was supported by the weight of the evidence and that statements of the victim were properly admitted under the state of mind exception to the hearsay rule.

On February 19, 1997, Elliot loaned his car to his girlfriend, Misty Dawn Dellinger. Dellinger returned at 7:30, an hour later than she was to supposed to have returned from running errands. According to Scott Minnock, who was visiting Elliot, Dellinger told Elliot upon her return that she had been with her lesbian lover, Sarah Jackson, that afternoon.

Elliot had been aware of the relationship between Dellinger and Jackson, and had previously expressed animosity toward Jackson. Dellinger initially joined Elliot in a back bedroom, but then the two emerged to sit with Minnock in the living room. According to Minnock, Elliot stood over Dellinger as she watched television, and then Minnock "heard the gun go off.<!70> When Minnock looked up, he saw Elliot holding a gun "'pointed toward Dellinger's direction' a few feet from the victim." Dellinger died as a result of the gunshot wound. Elliot insisted that the shooting was an accident. He maintained that he was unfamiliar with how to put on his holster, and that the gun went off in the course of jerking the gun around. In particular, Elliot claimed that he ""didn't pull the trigger back" on the gun.

In rebutting this story, the Commonwealth called a firearms expert, who testified that Elliot's weapon was of the type where "you have to cock the hammer back and then pull the trigger." The expert explained that there is a safety feature of the weapon that is engaged only when the trigger is pulled. The Commonwealth also called Michael Waldron, who testified that a few months prior to the fatal shooting, Dellinger had visited his house and told him that Elliot had threatened to kill her if she tried to leave him. Jackson also testified that, on the day of the shooting, Jackson had warned Dellinger not to be late or Elliot would become "mad at her." Dellinger responded that she wanted "to get a job and to get a car" so that she could leave Elliot and that she and Jackson "could move away together."

In his appeal, Elliot insisted that the conviction was not supported by the weight of the evidence. The Court of Appeals dismissed this claim summarily, noting that on a "sufficiency of the evidence" appeal, all inferences should be made in the light most favorable to the Commonwealth. In addition, under Virginia law, every unlawful homicide is presumed to be murder in the second degree. Specifically, Judge Lemons held that the "Commonwealth's evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that Elliot was guilty of second degree murder and use of a firearm in the commission of murder."

Elliot also insisted that the testimony of Waldron and Jackson should have been excluded as hearsay. The court first noted that even hearsay evidence is permissible when it is not offered for the truth of the matter, but for some other purpose. But even hearsay offered for its truth is admissible "if it falls within one of the recognized exceptions" to the rule. In this case, use of the testimony of Waldron and Jackson is permissible because it qualifies under the state of mind exception, which is only relevant in cases where the defendant alleges self defense or suicide, neither of which were claimed by Elliot. But the state of mind of Dellinger was relevant in order to prove the state of mind of the accused, so long as there is "some nexus. . [that] inferentially implicates the accused, such as showing previous threats made by the defendant towards the victim, narrations of past incidents of violence on the part of the defendant or general verbalizations of fear of the defendant."

The court found Waldron's testimony acceptable under this standard- "It is devoid of any obvious indication of fabrication or contrivance and the nexus to the defendant is obvious- it relates a conversation between the defendant and victim which demonstrated the nature of their relationship and provided a motive for murder." Specifically, the court found that Dellinger's responses to Waldron and Jackson established her state of mind -- "namely, her intention to leave Elliot.<!70> The court approved Waldron's testimony and further found Jackson's statements to be acceptable as corroboration. Finally, the statements of Waldron and Jackson rebutted Elliot's contention that his relationship with Dellinger was "fabulous" and, according to the court, "provides a motive for murder." _Sharon McGowan_

Ohio Federal District Court Dismisses Employment Discrimination Claim

The United States District Court for the Northern District of Ohio rejected the sexual and racial employment discrimination claims of a student nurse, finding that a coworker's talk about the coworker's lesbian relationship did not alter the conditions of employment or make it more difficult for plaintiff to do her job. Wittenberg v. St. Charles Mercy Hospital, 1999 WL 681505 (N.D.Ohio, Aug. 20)

In her Title VII action Coral Wittenberg claimed that she was subjected to a hostile working environment because a coworker talked to her about explicit details of the coworker's lesbian relationship. When Wittenberg, an African-American woman, told the coworker that she did not want to hear about the relationship, the coworker allegedly "said something to the fact that the lesbians or gays had aligned themselves with the niggers." Finding that the conversation about the lesbian relationship was clearly unwanted and intentional, and "may be inappropriate and unprofessional," the court held that such conversation was not severe or pervasive, and did not make it more difficult for Wittenberg to do her job. Wittenberg conceded that the racial slur was an isolated incident; thus she failed to meet the circuit's "more than sporadic" standard for racial slurs rising to the level of discrimination.

Wittenberg also based hostile work environment claims on uncorroborated allegations of being touched on separate occasions by eight employees (one a nun) of the hospital and Mercy College training program. For such a claim to succeed, a plaintiff must prove the existence of objectively "severe or pervasive" misconduct to the point that the harassment "alter[s] the conditions of employment and create[s] an abusive working environment." The court found that these were isolated incidents, mostly non-sexual in nature, and evidence suggesting that none of the acts were intentional. _Mark Major_

Nebraska Supreme Court Upholds Adult Video Ruling

In a case that had gone to Nebraska's highest court once before, the supreme court for the state has ruled that much of what a county prosecutor wanted off the video shelves in Sarpy County, Nebraska, was not legally obscene. _Main Street Movies, Inc. vs. Wellman_, 598 N.W.2d 754 (Nebraska, August 27, 1999). The court upheld a 1998 decision (_Main Street I_) by Sarpy County District Judge Ronald Reagan (!) that 15 of 17 rental movies in question did not violate obscenity laws.

Main Street Movies is a small rental and retail video store in Sarpy County, Nebraska. In 1990, a group called Omahans for Decency complained to the Sarpy County D.A.'s office about the store. The county D.A. opted not to prosecute, so complaints were directed toward the Nebraska Attorney General, who sent a letter to the store demanding that the rental and sale of sexually explicitly movies be stopped. Main Street Movies responded by filing a declaratory judgment action seeking determination of whether the sexually explicit videos in question were obscene.

Following a bench trial, the district court entered a judgment declaring that some of the movies were not criminally obscene. The State (which had since joined as defendant) appealed directly to the supreme court. In _Main Street I_ the supreme court overturned Judge Reagan's decision, after determining that Reagan inappropriately based part of his decision on the testimony of then-Sarpy County Attorney Mike Wellman, who testified as an expert witness on community standards vis-a-vis obscenity but was found not to be an expert. The high court remanded for further proceedings. On remand (_Main Street II_), Judge Reagan again ruled that some were not criminally obscene, adding that the contemporary community standard accepts these movies as long as those movies do not depict violence or sex with children, family or animals. The State appealed again directly to the supreme court.

Justice Wright, writing for a split court, had only minor disagreements with Reagan's decision that 2 of the 17 movies in question, after viewing all of them, were obscene beyond reasonable doubt (_Deep Throat III_ and, oddly enough, _Takin' It To The Jury_), and let the decision stand.

Wright applied the First Amendment standard obscenity definition as set forth in _Miller v. California_, 413 U.S. 15 (1973), first making an inquiry as to whether the material depicts or describes patently offensive sexual conduct that may be regulated. If so, the inquiry turns to whether the material is (a) as a matter of fact and when taken as a whole predominantly appeals to the prurient interest or a shameful or morbid interest in nudity, sex, or excretion and (b) patently offensive and (c) lacks serious literary, artistic, political, or scientific value. Under this analytical framework, the court found that the 17 videos fall into the regulated material category but disagreed with the lower court that _Deep Throat III_ had serious literary or artistic value. Nonetheless, it concluded that the lower court's decision would stand, reasoning that "[t]he fact-finder is obviously better suited to determine the limits of tolerance in a particular community regarding the prurient interest test, and for this reason, we give due deference to the trier of fact." Furthermore, the court stated that exposure to minors and the manner in which movies are displayed may "reflect a community's preference about the accessibility to sexually explicit materials," but are not determinative as to a work's obscene or non-obscene status.

_Deep Throat III_ depicts a young woman who, having her first sexual encounter, discovers that her throat swells when she is sexually aroused. Seeking medical attention, she is told that she has a tumor on her larynx. It is later discovered that she is the daughter of the erotic film actress of _Deep Throat_ and that she has inherited her mother's abnormality -- a clitoris in her throat. _Takin' it to the Jury_ depicts a six-person jury deliberating an obscenity case. When discussing the community standard requirements and the specific scenes of the movie that they are reviewing for obscenity, they begin to fantasize about themselves in similar scenes. The court upheld the district court's ruing that the State did not prove beyond reasonable doubt that the latter movie was obscene finding that it "...instruct[s] viewers in the basics of obscenity law with political commentary..."

Justice William Connolly, with Justice Michael McCormack joining, dissented from the majority on one important issue: that most of the movies in question did appeal to prurient interests and that the lower court was "clearly wrong" in concluding to the contrary. "I think the majority's holding [] sets the standard so low as to make this court's...review...meaningless. If the exhibits in this case do not go substantially beyond customary limits of candor in appealing to a shameful or morbid interest in sex, I have difficulty imagining what does." _K. Jacob Ruppert_

Armed Forces Appeal Court Upholds Sodomy Conviction

In _U.S. v. Eggen_, 51 M.J. 159 (C.A. Armed Forces, July 30), Senior Airman Kerry Eggen appealed his conviction of committing forcible sodomy on a male Marine sergeant. The issues before the court were whether the trial court's admission of testimony by the victim's psychiatrist as to whether the victim may have been "faking" emotional upset over the incident constituted improper expert testimony as to the victim's credibility, and whether the testimony of a second prosecution expert constituted improper comment on truthfulness of a defendant who did not testify at trial . The appellate court ruled that the errors were "invited" by defense tactics at trial, and not "plain error" requiring reversal of the conviction, particularly since the trial court offered corrective instructions to the factfinders on the role of expert testimony.

The facts stated in the opinion are rather sketchy. Eggen went out drinking with Sergeant W one evening. According to the opinion, the two shared a hotel room, and "W fell asleep and was awakened to find appellant performing fellatio on him." Eggen's defense was that the act was drunken, but consensual, and that W was lying about his lack of consent to protect himself from being separated from the military. Thus, the Court of Appeals reasoned, the case centered on W's credibility.

W had consulted with a psychiatrist at his base on several occasions after the incident in order to help "in coping on a day-to-day basis following the alleged sexual assault" and this psychiatrist testified as to W's mental state at that time. Defense counsel's cross-examination centered on whether W might have been faking his reaction to the incident. On redirect, the prosecution sought to rehabilitate the witness, questioning at some length the psychiatrist's experience in an ability to detect liars and fakers. Defense offered no objection to that line of questioning. Because there was no objection at that time, a "plain error standard" was applied, and any such error failed to meet this stringent standard.

The second expert was the former Chief of the Sexual Offender Treatment Program at the Naval Consolidated Brig, who was called to testify by the government about the common reactions of adult male sexual assault victims. Defense counsel stipulated to his credentials in the field, and was thus precluded from questioning these credentials on appeal. Defense counsel tried to press the same line of questioning, as to W's motive to lie. On redirect, this witness spoke of how defendants have even greater motive to lie than would the victims. Defense counsel was found not to have objected to this line of questioning, and any resulting error was cured by limiting instructions.

There was a puzzling opinion by one of the judges in the three judge panel, which characterized the admission of the testimony of the second expert as "constitutional" error because the testimony of the expert "opined" to the truthfulness of other testimony, but was "harmless" on balance, because of the curative instruction.

Eggen was sentenced to dishonorable discharge, one year confinement, total forfeitures, and reduction to the lowest enlisted grade, reduced by the appellate court from 9 years' confinement. _Steven Kolodny_

Litigation Notes

The Missouri Court of Appeal ruled July 6 in _State of Missouri v. Cogshell_, 997 S.W.2d 534 (Mo.App., W.D.), that a revision of the state's sodomy law had, in effect, decriminalized consensual sodomy in the state. Attorney General Jay Nixon urged the court to reconsider or clarify its opinion, but the court has refused to do so, and Nixon, who has since told the local press that he believes consensual sodomy should not be a crime, has announced he will not try to appeal the ruling further. (The defendant in the case continues to serve prison time due to conviction under a separate provision of the penal code concerning sex with minors.) Legislators who had opposed a law revision commission's recommendation to decriminalize sodomy had insisted on an amendment to the pending law reform proposal, but apparently botched the job by producing a grammatically inept run-on sentence that was just ambiguous enough to give the court room to conclude that consent was a defense to a sodomy charge.

The lawyer for the losing party in _E.N.O. v. L.M.M._, 711 N.E.2d 886, 429 Mass. 824 (Mass., June 29, 1999), a dispute between lesbian co-parents over custody and visitation issues, has announced that his client will petition the U.S. Supreme Court for certiorari. In the case, the Massachusetts Supreme Judicial Court held that the non-biological mother was a parent who had a right to visitation with the child even though her relationship with the child's biological mother had ended. _Boston Herald_, Sept. 3.

J. Barrett Hyman, an obstetrician practicing in Louisville, Kentucky, has filed a complaint seeking invalidation of the city's recently enacted ordinance prohibiting discrimination on the basis of sexual orientation. Represented in his federal lawsuit by the American Center for Law & Justice, televangelist Pat Robertson's right-wing legal foundation, Hyman alleges that possible enforcement of the ordinance against him would violate his right to practice his religion. Hyman employs a staff of six in his practice, and claims that it is his religious belief that anybody who engages in homosexual conduct is a sinner who has demonstrated "a serious lack of moral character which renders them unfit for employment in a medical practice." Frank Manion, Hyman's local counsel, is relying heavily on a 9th Circuit decision that held enforcement of a marital status discrimination law against a landlord who had religious objections to renting to unmarried couples would violate the 1st Amendment free exercise of religion right of the landlord. (Reacting to the storm of protest against its decision, the 9th Circuit panel that rendered it has vacated the opinion and asked the parties to brief standing questions as it reconsiders the case.) Hyman's biggest problem in bringing suit is that nobody has yet charged him with a violation of the ordinance, so he may have standing problems in seeking his declaratory judgment in federal court. Manion is arguing that civil rights laws prohibiting discrimination based on other, more traditional characteristics, may be supported by a compelling state interest, as evidenced by "suspect classification" analysis under the 14th amendment, but that the Supreme Court has never recognized protection from anti-gay discrimination to be a fundamental right. _Louisville, Kentucky, Courier-Journal_, Sept. 14.

A child's proximity to her school and friends turned out to be the most important factor in Jefferson County, Colorado, District Judge Christopher Munch's decision on custody and visitation in a dispute between former lesbian partners. Leanne Bueker and Kelly Cunningham each sought to be the primary custodian of their nine-year-old daughter. But Cunningham, who has married a man and moved to New York, provided a home where the child would be close to her school and would be able to cultivate school friends in the area where she lives. By contrast, Bueker must transport the child some distance to the Colorado school she would attend. Although Munch found that the child is a "Colorado girl" who prefers the open spaces to New York City, where she testified that she disliked the "hot and muggy weather" during her stay this past summer, he concluded that it would be best for her to spend the school year with her New York mom, and spend summer, winter and spring breaks from school with her Colorado mom. _Denver Rocky Mountain News_, Aug. 26.

U.S. District Judge Marten (D. Kansas) has dismissed a wrongful death action brought by the survivors of prisoner Stanley Thomasson, allegedly murdered while incarcerated in the federal penitentiary at Leavenworth, Kansas, holding, inter alia, that violence against a male transvestite would not come within the coverage of the federal Violence Against Women Act, 42 U.S.C. sec. 13931. _Thomasson v. U.S._, 1999 WL 690098 (Aug. 23). Plaintiff allege that while Thomasson was in the custody of the prison, he was beaten to death by other inmates who had become intoxicated on alcohol, and that he was singled out for this mistreatment because he regularly dressed, groomed and acted as a woman. Judge Marten found that the plaintiffs failed to exhaust administrative remedies, and thus could not invoke the jurisdiction of the court. However, Marten also proceeded to opine on the invalidity of their VAWA claim, asserting that Thomasson's "gender orientation," rather than his "gender," was the alleged basis for violence against him, and that VAWA was intended solely to deal with violence against women as such. Furthermore, since the defendant is the government and the prison authorities, Marten opined that VAWA would not apply because none of the defendants were charged with themselves committing acts of violence against the plaintiffs' decedent.

A military investigative hearing into the death of Pfc. Barry L. Winchell at the hands of fellow soldiers has revealed that the murder was most probably an anti-gay hate-crime that was premeditated in cold blood, according to various news accounts of the proceedings. Ironically, the hearing proceeded at the same time that the Defense Department announced new guidelines purporting to address the problem of anti-gay harassment in the military - a problem unlikely to be solved as long as the government insists on continuing the hypocritical "don't ask, don't tell" policy on military service by lesbians, gay men and bisexuals.

The Connecticut Commission on Human Rights and Opportunities, which enforces the state's law against discrimination, has issued a Reasonable Cause Finding in the case of _Melanson v. Town of West Hartford_, in which six unmarried couples - four of them same-sex couples - are challenging the town's policy of denying unmarried couples the preferential family membership rate at the town's pool, grandly styled the "Cornerstone Aquatics Center." The town council has previously rejected applications by several couples to get the policy changed to recognize domestic partners. The plaintiff couples are represented by New Haven attorney Maureen Murphy and Mary L. Bonauto, staff attorney at Gay & Lesbian Advocates & Defenders, the Boston-based New England gay rights public interest law firm. The plaintiffs stated their hope that the September 16 determination would encourage the town to amend its policy without further litigation.

Saginaw County, Michigan, Circuit Judge Leopold P. Borello has refused to order the Birch Run Area Schools to amend the high school transcript of a graduate who has changed sex, finding that there was no legal basis to compel such a change. Vicki Hrinik graduated from Birch Run High School as a girl in 1983. Since then, Vicki has become Vic, married and moved to Spokane, Washington, where he is the father of a stepson. Vic sought to have his transcript changed to reflect his current sex, so that he can use it to apply for admission to junior college. The School Board voted last summer to deny the request, saying it did not want to set some kind of precedent. (Why not? Do they think they will be inundated with requests from transsexuals to change their transcripts?) Hrinik sued under the Americans With Disabilities Act and the Michigan Persons With Disabilities Civil Rights Act, but Judge Borello found that neither statute provided a basis for the action. The ADA specifically provides that transsexuality shall not be considered a disability under the federal law. Trying to fit himself under the state law, Hrinik alleged that he was disabled as a man who could not generate sperm. Said Borello, "If such a condition were a disability, then all women would be considered handicapped." Trying to accommodate Hrinik, the school board has agreed to issue a transcript that leaves blank the female/male checkoff box, and that uses only his first initial in place of a first name. Hrinik is represented by gay-rights attorney Rudy Serra. _Detroit News_, September 17.

Jonathan Schmitz was sented to 25-50 years in prison for murdering Scott Amedure after Amedure stated during a taping of "The Jenny Jones Show" that he had a crush on Schmitz. Oakland County, Michigan, Circuit Judge Wendy Potts, announcing the sentence in court on September 14, told Schmitz, "The sentence of this court will rob you of your youth, but it will not rob you of your life." Schmitz apologized to the Amedure family and said, "I'd like to ask God for forgiveness." In a separate civil action, jurors awarded the Amedure family $25 million in damages against Warner Brothers, corporate parent of the television show. That verdict is currently under appeal. _Associated Press_, September 15.

A Virginia jury refused to convict Jeffrey D. Anders, who was charged with soliciting an undercover police officer to have oral sex. Anders was one of eighteen men arrested last year during a police crackdown of cruising activity in Wasena Park, Roanoke, in response to alleged complaints from members of the public about sexual activity in the park. Anders is the second of the arrestees who have been acquitted; one other man, who aggressively solicited sex from the police officer, was convicted. By contrast, in the cases of Anders and the other defendant, it appears that the police aggressively solicited them and prodded them into agreeing, then arresting them. Many of the other defendants pled guilty, reserving their option to appeal their sentences on the ground that the sodomy law is unconstitutional. The Virginia sodomy law was upheld against a constitutional challenge by the U.S. Supreme Court in a summary affirmance in 1975, but subsequent developments, especially _Romer v. Evans_, suggest that a new attack on the sodomy law might be fruitful. The verdict in _Commonwealth of Virginia v. Anders_ was rendered in Roanoke Circuit Court on September 7 after 15 minutes deliberation by the jury. Anders and the police officer were sitting in separate cars, and the evidence showed that the officer persisted in keeping their conversation going as Anders, evidently not all that interested, kept letting it lapse. _Roanoke Times & World News_, September 8.

On September 8, the Illinois Appellate Court agreed to stay an Aug. 12 decision by Cook County Circuit Judge Stephen A. Schiller that the Chicago Area Council of the Boy Scouts of America was in violation of Chicago's gay rights ordinance by refusing to employ gay people. The Scouts are appealing Schiller's ruling. _Chicago Tribune_, September 9.

The Florida 5th District Court of Appeal has withdrawn its July opinion on the defamation suit brought by Rand Hoch, a gay attorney, against a law firm that he alleged defamed him in his prior role as a workers compensation judge. In a new opinion in _Hoch v. Rissman, Weisberg, Barrett_, 1999 WL 741165 (Sept. 17), the court of appeal reaffirms its earlier holding that the trial court should not have granted summary judgment against Hoch on his claim against the Rissman firm, and that the trial court correctly granted summary judgment to another defendant. The new opinion contains subtle modifications to the prior opinion, but does not change the sense of the ruling that public statements that a gay judge might be improperly influenced by sending sexy young men to appear before him is defamatory per se. A.S.L.

Legislative Notes

The Seattle, Washington, City Council voted on Aug. 30 to add "gender identity" to the prohibited grounds for discrimination under the city's municipal code. The addition is intended to provide protection against discrimination for transgendered persons, including transsexuals and transvestites. _Seattle Times_, Aug. 31.

The California legislature ended its session by passing several bills on lesbian/gay issues. One would allow same-sex domestic partners (and opposite-sex partners over age 62) to register with the state to have their partnerships recognized for certain limited purposes, among them employee benefits entitlements for state employees. Another would amend the Fair Employment and Housing Code to add "sexual orientation" as a prohibited basis of discrimination. Another would address the issue of anti-gay bias within the schools. As we went to press, it was uncertain which of them Governor Davis would sign, although there were indications that he would likely approve the domestic partner and employment/housing discrimination measures.

An Oct. 5 municipal election in Albuquerque, New Mexico, will include a ballot question on amending the city's charter (which includes its non-discrimination policies) to include disability and sexual orientation as prohibited grounds of discrimination.

The Henderson, Kentucky, Board of Commissioners voted 3-2 on September 15 to approve on first reading an ordinance that would prohibit discrimination in employment, housing, and public accommodations on the basis of sexual orientation, with a final reading and vote set to take place late in September. _Louisville Courier-Journal_, September 16. A.S.L.

Law & Society Notes

Among the additional private sector organizations that have announced adoption of domestic partnership benefit programs in recent weeks are: StorageTek, in Louisville, CO; Cox Enterprises, a media giant with 55,000 employees in 172 broadcast, print and online media outlets; National Federation of Community Broadcasters; Post-Tribune Stations (six television stations owned by the Washington Post Co.); Motorola Corporation. Most of the plans announced in recent weeks extend only to same-sex partners, and go into effect Jan. 1, 2000, provided human resources computers are still functioning on that date. (Just kidding, folks!)

The _New York Law Journal_ reported September 23 that Melissa Sklarz became the first openly-transsexual person elected to political office when she won a contested race to be a delegate to the New York County Democratic Party's judicial nominating convention. Convention delegates are elected during the New York State primary balloting, which was held this year on September 14, to select party candidates for election to the civil court and to select delegates to the convention that selects party candidates for election to the supreme court. Sklarz was a candidate on a slate fielded by Campaign for a Better Greenwich Village. She introduces a new brand of diversity into New York City politics. A.S.L.

International Notes

The World Association of Sexology, meeting in Hong Kong, endorsed a Declaration of Sexual Rights on Aug. 27 and urged Hong Kong to adopt the declaration. Ng Man-lun, a professor of psychiatry at the University of Hong Kong and a member of the Association, pointed out that Hong Kong sets a higher age of consent for homosexual than for heterosexual sex, in violation of the principles embodied in the Declaration. _South China Morning Post_, Aug. 28.

Homosexuality surfaces across the aisle in England: add to the numerous "outings" of Labour cabinet ministers the announcement by Michael Portillo, former Defence Minister in the Conservative government of John Major, that he was engaged in homosexual activity as an undergraduate at Cambridge. Although currently out of office, Portillo had been widely seen as a potential future leader of the Conservative party should political fortunes change. The British press was, predictably, obsessed with the topic, some observing that Portillo's statement left ambiguous the issue whether he had continued to engage in homosexual activity since his college years. Portillo is married.

Brian Greig, described in the press as Australia's "first gay activist Senator," used his first speech in Parliament to denounce unequal treatment of gay people, even in the policies of the Senate, which did not require him to register his partner's financial interests (for purposes of monitoring compliance with conflict-of-interest rules) the way heterosexual legislators must list their spouses' interests. He also criticized the high age of consent for gay people in Western Australia, 21 years, which he characterized as the "highest in the world." _Sydney Morning Herald_; _Canberra Times_, Sept. 2.

The City Parliament of Berlin, Germany, has reportedly voted to approve a measure to allow residence permits to non-German nationals who are same-sex partners of Berliners.

The South African Law Commission has proposed a revision of the nation's sexual offenses laws, in the wake of court decisions condemning the law against consensual sodomy. The proposal includes lowering the age of consent for homosexual sex from 19 to 16, to equalize it with the age of consent for heterosexual sex. The Commission also proposes to adopt a gender-neutral definition of rape, replacing the current law which restricts rape to penile penetration of a vagina without consent, and to shift the burden of proof of consent in rape cases to the defendant, instead of the current rule that requires the prosecution to prove that sex was non-consensual as an elemtn of the crime. The Commission also proposes compulsory HIV testing of defendants in cases where a crime victim requests it. _Mail & Guardian_, Sept. 13.

Police in Kampala, Uganda, are investigating reports that gay people are holding same-sex marriage ceremonies in the city. Ugandan law prescribes life imprisonment for consensual gay sex. _New Vision_, Sept. 13.

The Federal Court of Canada has ruled that Henry Corredor Serrano, a gay Colombian musician seeking asylum, was insufficiently openly gay in Colombia to qualify as somebody with a well-founded fear of prosecution if he returned there. Serrano had claimed that he had to flee his home-town after an ex-lover disclosed his sexual orientation to the police, and that he was beaten by police officers solely because of his sexual orientation. The court affirmed a ruling from the immigration board, which focused on Serrano's continued residence in Colombia for two years after the events in question. Canada has granted asylum on grounds of fear of persecution due to sexual orientation to about 200 applicants since 1992. _Serrano and Minister of Citizenship & Immigration_, IMM-6093-99 (Fed. Ct. of Canada, July 30, 1999). A.S.L.

Professional Notes

Billie Jean King, the legendary tennis player, will deliver the Bon Foster Memorial Civil Rights Lecture sponsored by Lambda Legal Defense Fund in Chicago on October 20 at a luncheon at the Palmer House Hilton. Information about attending can be provided by Lambda's Midwest Regional Office; contact Marty Grochala, 312-663-4413, ext. 29.

Judge Donna Hitchens of the San Francisco Superior Court has been appointed by California Chief Justice Ronald George to the Judicial Council of California, the constitutional body charged with making improvements in statewide administration of the court. Before her election to the bench, Judge Hitchens had founded and directed the Lesbian Rights Project, which has since become the National Center for Lesbian Rights, and she was among the first openly lesbian or gay judges in the U.S. _Bay Area Lawyers for Individual Rights Newsletter_, September 1999.

The Lesbian & Gay Law Association Foundation of Greater New York has announced the continuation of its Dr. M.L. "Hank" Henry Fund for Judicial Internships. A $3,000 stipend will be awarded to a qualified law student to support a 10-week summer judicial internship in New York City during June-August 2000. The program will be designed to give the intern exposure to a variety of courts or tribunals. The program was established in memory of Dr. Henry, whose ground-breaking work encouraged openly lesbian and gay lawyers to seek and achieve judicial office in New York, and is intended for students with a demonstrated interest in, and commitment to, lesbian and gay rights. The Fund values diversity and all interested students are encouraged to apply. The application deadline is February 15, 2000. For full details of the required contents of a letter of application, contact the LeGaL Foundation at: <le-gal@interport.net>, 212-353-9118, or check the Le-Gal website. A.S.L.




The U.S. Court of Appeals for the Ninth Circuit has become the first federal appellate court to rule that the ability to engage in sexual activity is a "major life activity" under the ADA. _McAlindin v. County of San Diego_, 1999 WL 717728 (Sept. 16). The decision expands upon a 1998 U.S. Supreme Court decision which held that reproduction is a major life activity under the ADA. By a 2-1 majority, the circuit panel reversed the district court's order which had granted summary judgment to the defendant County of San Diego.

Plaintiff Richard McAlindin suffers from anxiety disorders, panic disorders and somatoform disorders. In spite of extensive medical treatment, which includes psychotherapy and various medications, symptoms such as the inability to interact with others, insomnia and impotence persist. McAlindin has been a systems analyst for the County of San Diego's Housing and Community Development Department since 1983. McAlindin sued the county after it refused to take proactive measures to transfer him to a new position that accommodated his medical condition. District Court Judge Jeffrey T. Miller granted the county's summary judgment motion, after concluding that the plaintiff had failed to demonstrate that he suffers a physical or mental impairment "that substantially limits one or more of the major life activities of such individual," as the ADA requires.

Reviewing the merits of the county's motion de novo, the majority of the 9th Circuit panel ruled that all three alleged impairments -- insomnia, impotence and the inability to interact with others -- were independently sufficient to meet the "major life activities" requirement of the ADA definition of a disability. As to plaintiff's claims of impotence, Circuit Judge Nelson relied principally on the U.S. Supreme Court's 1998 ruling in _Bragdon v. Abbott_, 524 U.S. 624. The Supreme Court ruled in Bragdon that an HIV+ woman qualified for protection under the ADA because her infection substantially limited her major life activity of reproduction. According to Judge Nelson, Bragdon strongly implied that engaging in sexual relations, whether or not reproductive, is a major life activity. The court also explained that sexuality is akin to other core activities which have been found to qualify as major life activities under the ADA. "Sexuality is important in how we define ourselves and how we are perceived by others[,] and is a fundamental part of how we bond in intimate relations," Judge Nelson wrote.

Circuit Judge Trott criticized the majority's conclusion for failing to require that the plaintiff show a relationship between his sexuality and his employment. "I fail to see any causal connection whatsoever with McAlindin's alleged sexual dysfunction and the job he wants, the job he has, or the adverse employment actions he alleges he suffered. Is the employer supposed to accommodate his impotence?" According to the majority opinion, Judge Trott's question misses the mark since the major life activity prong of a plaintiff's prima facie case only addresses whether a plaintiff has a disability which qualifies her/him for protection under the ADA in the first place. "Whether McAlindin faced substantial limitations in his ability to work is irrelevant to whether his limitations in other major life activities qualify him as disabled for ADA purposes," Judge Nelson explained.

The 9th Circuit's ruling did not explicitly mention the plaintiff's sexual orientation, nor would it necessarily have been relevant to the court's underlying holding. Nonetheless, this case is particularly significant for lesbian and gay men precisely because the Supreme Court's holding in _Bragdon_ does not apply on its face to people who engage in non-procreative sex. For example, the 4th Circuit has already denied ADA protection to one HIV+ gay man because he did not express an interest in having children. By broadly interpreting the holding in _Bragdon_ to explicitly include non-procreative sex, the 9th Circuit has not only expanded the scope of the ADA, but also has legitimized the significance of same-sex intimate personal relations. The plaintiff was represented by Dennis M. Grady of Grady & Associates. The County of San Diego is represented by Lloyd Harmon and William Songer of County Counsel. _Ian Chesir-Teran_

Federal Court Refuses to Enjoin Disclosure Policy on Foster Care

Rejecting a motion for preliminary injunctive relief by the adoptive parents of an HIV+ boy, U.S. District Judge McClure (M.D. Pa.) ruled Aug. 30 that the plaintiffs were unlikely to prevail on the merits of their claim that a foster care agency violated their rights under the Americans With Disabilities Act and Section 504 of the Rehabilitation Act by refusing to certify them as foster parents unless they were willing to disclose their son's HIV status to the parents of any children who might be placed under their care.

According to Judge McClure's detailed findings of fact, Mary Doe has a long and exemplary history as a foster mother, first in New York and later in Pennsylvania where she moved with John Doe, now her husband, who is employed as a taxi driver. Mary Doe is Caucasian and John Doe is African-American. Mary, who won a foster parent of the year award while in New York, has served as a foster parent to numerous children, some of whom she has adopted over the years, including the brothers AJB and MJB. AJB is HIV+ and has suffered from AIDS, but beginning in 1996 responded well to new medications that have lowered his viral load to undetectability and have raised his T-cells to the 450-500 range. Since undergoing these new treatments, AJB has not suffered from any opportunistic infections, and appears to be physically healthy. When John married Mary, he also adopted MJB and AJB. John and Mary applied to a private agency in Pennsylvania to be foster parents, and were approved, but decided they did not want to continue with that agency based on the types of referrals they received. They then applied to the county agency. When the county investigator discovered that one of their sons is HIV+, the agency decided it would have to formulate a policy to deal with the situation. After canvassing other county agencies and consulting with its attorney, the agency adopted a policy that it would not place a foster child in a home where there was another child with an infectious disease, unless the foster parent agreed to disclose the information about this condition to the parents of the foster child. The Does refused to adhere to this policy, observing that they were working hard to maintain the confidentiality of their son's situation, only letting others know about it on a need-to-know basis, because of the discrimination they feared he might encounter if his condition became more widely known.

In concluding that the agency's policy does not, at least in the context of this preliminary injunction motion, violate the laws against disability discrimination, Judge McClure grounded his opinion on a finding that AJB would present a direct threat of infection to an uninfected child placed in the same home. The parties did not dispute that AJB has a disability, and accepted for purposes of litigating the motion that Mr.and Mrs. Doe can claim protection under an ADA provision that bars discrimination against a person because that person is associated with another person who has a disability. They also did not dispute that the agency's policies are subject to the ADA and Section 504.

The agency showed that a substantial portion of the children they place come from difficult home situations that have involved violence and sexual abuse, and that in its experience many foster children act out and engage in inappropriate physical and sexual activity, especially if left unsupervised. The agency expressed concern that it was impossible to predict in advance which foster children would engage in such conduct. The agency presented evidence of the dangers of HIV infection through sexual contact, and asserted that the evidence showed that the aggressor could become infected while sexually abusing an HIV+ victim. Finding this evidence persuasive, Judge McClure ruled that the preliminary relief should not be available to the Does because of the direct threat that might be posed to the health and safety of a foster child placed in their home.

The Does argued that the policy was not properly adopted to meet this situation, and in fact that the agency was more concerned with its own potential liability should a foster child become infected than with the health and safety of the foster children; by allowing placements but imposing the disclosure requirement, the agency was seeking to avoid liability but doing nothing to protect the children, if such protection were actually needed. But McClure was not persuaded by this argument, countering that what the agency was doing was more along the lines of requiring "informed consent" from the parents of foster children before placing those children in a setting posing particular risks.

While stating he did not doubt that the Does were good foster parents who could provide a loving home, and that the county's need for new foster parents was quite real, nonetheless McClure concluded that preliminary relief would be inappropriate. The Does are represented by a team of volunteer lawyers together with the ACLU Foundation of Pennsylvania. A.S.L.

Ohio Supreme Court Recognizes Confidentiality Tort Regarding Medical Records

The Supreme Court of Ohio recognized a tort of breach of confidentiality against a hospital which released medical information in the form of patient registration forms to a law firm, which then contacted patients to offer assistance in accessing Social Security benefits. _Biddle v. Warren General Hosp._, 86 Ohio St. 3d 395, 715 N.E.2d 518 (Sept. 15, 1999).

Warren General Hospital provided its co-defendant, a law firm, with access to patient files which the lawyers screened to identify those whose medical bills might be paid by Social Security Disability. The files were full of confidential information, including HIV test results. After the screening, the law firm contacted the patients, and offered their assistance in helping the patient complete the application and access the benefits. When a paralegal was fired, she told the media about the arrangement. A class of patient plaintiffs sued the hospital and the law firm. Summary judgment was allowed for the defendants and the plaintiffs appealed.

The Supreme Court essentially recognizes an independent and new tort in Ohio for the unauthorized disclosure of medical information by a physician to a third party. The court recognizes several exceptions to liability for disclosure such as prior authorization, and disclosures made in connection with a statutory mandate, common law duty, or where necessary to protect some countervailing interest that outweighs the patients' interest in confidentiality. The court rejected the appellants' argument that the attorney-client relationship between the hospital and law firm was such a countervailing interest because the lawyers used the information to make unsolicited phone calls to the plaintiffs. In addition, the court held, the third party (here the law firm) could be held liable for inducing the unauthorized disclosure. The court reversed the grant of the defendants' motions for summary judgment and remanded the case to the trial court. One justice dissented as to posture of the case on remand; another dissent would have immunized the defendants on the theory of the disclosure having been made within the attorney-client relationship. _Dirk Williams_

Wisconsin Court Holds HIV-Status Not Relevant to Sentencing

A unanimous panel of the Court of Appeals of Wisconsin ruled September 21 that the discovery that a criminal defendant is HIV+ does not bear on the correctness of the trial court's sentence on his plea. _State of Wisconsin v. Myers_, 1999 WL 733821 (September 21).

Myers pled no contest to charges of forgery and received a sentence, the specifics of which are not disclosed in the appeals court's opinion. Myers appealed on several grounds, including some purported confusion concerning his wish to plead not guilty by reason of insanity. He also claimed that the trial court erred in refusing to reduce his sentence because of his newly-discovered HIV+ status. Writing per curiam, the court said that "Myers' HIV positive status does not constitute a new factor," which would be required to reopen the sentence on this ground. "A new factor is a fact `highly relevant' to the imposition of sentence. . . It is a factor that frustrates the purpose of the original sentencing. . . Assuming that a diagnosis of HIV translates into a reduced life expectancy, a fact not established in the record, Myers' health and life expectancy were not substantial factors in setting the original sentence and the purposes of the original sentence are not frustrated by changes in his health." Consequently, there was no error in the trial court's refusal to reconsider the sentence on this basis. A.S.L.

HIV Transfusion Case Proceeds on Negligence Claim

Denying defendants' motion to dismiss an HIV transfusion negligence claim, U.S. District Judge O'Neill (E.D.Pa.) ruled in _Kotofsky v. American Red Cross_, 1999 WL 712584 (Sept. 10) (not officially reported) that Pennsylvania's blood shield law, which forbids strict products liability suits in transfusion cases, does not apply to a claim that a hospital and a doctor negligently failed to advise a surgery patient of the option of autologous donation.

Morris Kotofsky was admitted to the defendant medical center as a candidate for coronary by-pass surgery, which was performed on January 14, 1992. Shortly after he was admitted to the hospital, he signed a "Consent to Transfusion of Blood and Blood Components and Release" on a form supplied by the hospital. Five hours after his surgery, he received a transfusion of one unit of packed red blood cells supplied by the Red Cross, which he alleges was the cause of his HIV infection, which was discovered in June 1996 when he tested positive on an antibody test.

In his complaint, Kotofsky alleged that by undertaking to get his informed consent, the defendants had assumed a duty to advise him of the risks of transfusion from unknown blood donors and the advisability of donating his own blood in advance for use during surgery.

Pennsylvania's Blood Shield Law, 42 P.S. sec. 8333, provides that no person can be held liable for injury resulting from lawful transfusion of blood or blood products unless the plaintiff can prove negligence by the defendant, and that all strict liability or warranty claims are ruled out in blood cases. Judge O'Neill observed that Kotofsky's claim alleges negligence, and is thus not affected by this law. The defendants also argued that prior to the 1997 enactment of a state law requiring informed consent for blood transfusions, the Pennsylvania common law did not establish such a requirement. Conceding the point, O'Neill found that nonetheless by voluntarily undertaking to obtain informed consent, the hospital took on a duty to obtain consent non-negligently. O'Neill also noted that the common law rule had been restricted to transfusions during surgery, and that this transfusion took place several hours after surgery. The hospital also tried to shift all responsibility to the doctor, but O'Neill found precedents supporting hospital liability where the hospital originates the informed consent form that is used.

While denying the motion to dismiss on this count, the court dismissed another count claiming the hospital negligently failed to determine that the blood used for the transfusion was safe. A.S.L.

Federal Court Tosses Out Prisoner Suit for Failure to Exhaust Administrative Remedies

In _Overton v. Claussen_, 1999 WL 710513 (U.S.Dist.Ct., D. Colo., Sept. 8), Frederick Overton alleges that while incarcerated in Mesa County Detention Facility, he was improperly deprived for a period of 6 days of his HIV medication. Mesa County Sheriff Claussen moved to dismiss and/or for summary judgment, arguing that Claussen failed to exhaust administrative remedies prior to filing suit, as required by 42 U.S.C. sec. 1997e(a). Overton, representing himself pro se, had filled out a Prisoner's Civil Rights Complaint Form and indicated on it that he had attempted to seek an administrative remedy by contacting the client services manager at the Western Colorado AIDS Project, who had then corresponded with the doctor responsible for inmate treatment without obtaining any success.

Senior Judge Kane found that this was insufficient, as the prisoner's handbook specified a procedure for internal grievances that Overton had not followed. Overton denied having been issued the prisoner's handbook, but Kane indicated that a copy of it was posted in the unit where Overton was confined. A.S.L.

Federal Court Holds Needle-Prick Non-Compensable

Granting the defendants' motion for summary judgment, U.S. District Judge Porteous (E.D.La.) ruled that a needle-prick is not a compensable injury in the absence of evidence of exposure to infection. _Heilman v. Microsoft Corp._, 1999 WL 650810 (Aug. 24).

Plaintiff Clinton J. Heilman, Jr., was employed as a busboy at a local hotel. While attempting to clear a patron's table, he was stuck by a needle wrapped in a napkin, which the patron had used to test his blood glucose levels. Heilman has been tested several times since then for HIV, hepatitis B or C, and syphilis. The obliging patron has also been tested. Both individuals have tested negative. Nonetheless, young Heilman filed suit on September 15, 1998, seeking damages for the emotional distress he claims to have suffered anticipating the possibility that the needle-stick may have exposed him to a serious disease such as AIDS.

Applying the principle of _de minimis non curat lex_ (the law doesn't bother with trifles), Judge Porteous found that Louisiana courts have consistently required the showing of an actual injury in order to award damages. "The affidavits, depositions, and medical testimony submitted in this matter speak only to the emotional distress suffered by the plaintiff in worrying over whether or not he was exposed to a blood related disease, such as AIDS. There has been no medical testimony submitted to show that the plaintiff was damaged by the prick itself. In this case, the plaintiff merely suffered the pain associated with the prick of a needle, something every person is knowledgeable about from their own life experiences. It is the opinion of this Court that the evidence presented fails to show that a genuine issue of material fact exists regarding damages. There are certain things that we encounter in our everyday lives, that are not considered damage giving rise to a cause of action, a needle prick being one such thing. Had this been a situation where the prick caused an infection, there could have been damage sustained." A.S.L.

N.Y. Courts Reiterate Actual Exposure Rule in AIDS Phobia Cases

On Sept. 20, the N.Y. Appellate Division, 2nd Dept., upheld dismissal of an AIDS phobia case brought as part of a divorce proceeding in _O'Neill v. O'Neill_, 1999 WL 758823. Husband claimed that wife defrauded him by failing to inform him that her first husband died from AIDS and that she was a potential carrier of the AIDS virus. While conceding that her first husband died from AIDS, the wife showed that she had consistently tested HIV-negative and remains so today. Furthermore, husband is HIV-negative. Upholding the dismissal of the claims for fraud and emotional distress, the Appellate Division noted, in a memorandum, the established New York rule that AIDS phobia claims may not proceed in the absence of a documented exposure to HIV under circumstances presenting a genuine risk of transmission.

Similarly, granting summary judgment against the plaintiff, New York Supreme Court Justice Bernard F. McCaffrey applied this established rule in _Libasci v. Rockville Centre Housing Authority_, NYLJ, 9/29/99, p.30, col.3 (N.Y. Sup. Ct., Nassau Co.). Plaintiff Libasci, a sanitation worker, was removing trash from the defendant's property when he suffered a puncture wound from a hypodermic needle contained in a trash bag. He went to a hospital emergency room where he was given a tetanus shot and was tested for blood-borne diseases. The initial test and all subsequent tests were negative, and plaintiff never discovered any information about the provenance of the needle. Nonetheless, he sued for emotional distress for fear he might contract AIDS.

Justice McCaffrey quoted the now well-established rule in New York that a "rational belief of infection," standing alone, is not sufficient to state a claim for AIDS phobia. The plaintiff must show actual exposure to an established mechanism of transmission, which in this case would be a hypodermic needle that had traces of HIV-infected blood in it. There was no mention in the court's opinion of what became of the hypodermic needle, including whether it was ever tested for the presence of HIV. A.S.L.

Arbitrator Upholds Discharge of Employee Who Missed Work Due to HIV Trauma

Labor Arbitrator Alan J. Cook has ruled that an employee's fear that he might have contracted HIV did not excuse his work-related absences, and upheld the employee's discharge. _Harbison-Walker Refractories Indresco, Inc. & United Steelworkers of America, Local No. 5619_, 99-2 ARB (CCH) para. 3090. The grievant claimed that his failure to report for work for several days was due to trauma at learning he might have been infected with HIV. He said he did not report this to the employer because he feared the reaction of his fellow employees and didn't want to risk exposing them to infection. The arbitrator found that the employer had consistently worked with employees who had medical reasons for missing work, and that the employer had consistently enforced its attendance rule to discharge employees who were absent without notice. The arbitrator concluded that the company must be the decision-maker in the first instance on whether a particular reason would justify an absence, and the arbitrator could not substitute his judgment on this issue. A.S.L.

AIDS Law & Society Notes

The _N.Y. Times_ reported Sept. 10 that leaders in the U.S. pharmaceutical industry announced they had suspended a lawsuit against the South African government seeking to block a South African law that would make U.S.-patented AIDS drugs available in generic copies for use in South Africa.

President Clinton has vetoed the $4.7 billion budget bill for the District of Columbia government, criticizing attempts by Congress to use its appropriations power to pursue a particular social agenda in the District. The President singled out Congress's effort to block the District from legalizing medical use of marijuana (a topic of concern to people with AIDS), and to block the implementation of needle-exchange programs to combat the spread of HIV. _Washington Post_, Sept. 29. A.S.L.

AIDS Litigation Notes

Ronald Patrick McDonald, an HIV+ North Carolina man, pled guilty in U.S. District Court to participating in a scheme to defraud insurance companies by submitting fraudulent applications for life insurance and then viaticating the policy. According to the indictment, McDonald used a Dallas life insurance agent to help him buy insurance; McDonald signed the applications and returned them to the agent without filling in the health questions; the agent then completed the forms with false answers about McDonald's health, obtaining two policies with a face value of $155,000 from two different companies. McDonald then turned around the viaticated the policies for $18,600 with a viatical company in Florida. A news report indicated that similar schemes are being investigated involving various agents and people with HIV. _Greensboro News & Record_, Sept. 16. A.S.L.

International AIDS Law Notes

Lawyers representing people with HIV who are encountering discrimination in Japan have established a fund to support legal action by those suffering from side effects of drug treatments as well as those encountering discrimination because they suffer from medical conditions, according to the Sept. 1 issue of _Yomiuri Shimbun_. The first major case to be financed by the fund will be brought against a state-run sanitorium for its treatment of sufferes of leprosy. The 2-billion yen fund was established in May, partly with fees earned by lawyers who represented people with HIV in suits against the government and pharmaceutical companies.

In a much-watched case, Justice Wilson of the High Court of Great Britain ruled that the 4-month-old child of an HIV+ mother should be tested for HIV, despite her parents' wishes that she not be tested. The mother had tested HIV+ several years prior to giving birth, but was not suffering from any opportunistic infections and had adopted the view that doubts the connection between HIV and AIDS. She desired to breast-feed her baby, but a local council felt that this was against the child's interest, and that the child should be tested. Siding with the local council, Justice Wilson said, "This baby has rights of her own. If, as the father suggested, he regards the baby's rights to be subsumed within the rights of the parents, he is wrong." The judge found the advantages to testing in this case to be "very substantial,"seeking to protect the child, if presently uninfected, from becoming infected through further breast-feeding by the mother. _Birmingham Post_, Sept. 4. A.S.L.


Open Positions in Gay and HIV Law

Gay Men's Health Crisis, a New York non-profit organization that is the U.S.'s oldest and largest HIV/AIDS service organization, is accepting applications for a staff attorney position in its Legal Services Department. The position entails representing clients of the agency in immigration and housing discrimination issues, and providing on-site counseling and legal services. Candidates must be admitted to the New York bar and should have some experience in immigration and/or housing law. Knowledge of HIV/AIDS issues and public benefits/entitlements is helpful, and bilingual English/Spanish applicants are preferred in light of the needs of GMHC's client group. "GMHC values diversity and is proud to be an Equal Opportunity employer." Send cover letter stating salary requirements and resume to: C.J. Bacino, Human Resources Manager, GMHC, 119 W. 24 St., New York, N.Y. 10011, or fax to 212-367-1020.

The Midwest Immigrant Rights Center (MIRC) is seeking an immigration attorney to coordinate the Midwest Human Rights Partnership for Sexual Orientation and the Lesbian and Gay Immigration Rights Task Force. The attorney will work with other MIRC staff to provide a broad range of legal services to immigrants and refugees, in particular to the gay and lesbian immigrant community and those with HIV and AIDS. Admission to the Illinois bar is required (or passing bar exam results pending), and Spanish fluency is preferred, as is experience in immigration and/or human rights law. This is an entry level position. Minorities, women, people of color, lesbians and gay men and persons with disabilities are encouraged to apply. Applicants should submit a cover letter, resume, contact information for two references, and salary requirements and history to: Mary Meg McCarthy, Director, MIRC, 208 S. LaSalle St., Suite 1818, Chicago, IL 60604, or fax to 312-551-2214.

Lambda Legal Defense & Education Fund is accepting applications for a new staff attorney position in its New York headquarters. The attorney in this position will focus on issues faced by lesbian and gay youth in foster care, an area in which Lambda has undertaken an ambitious agenda to develop recommendations on policies and services, to advocate for adoption of such policies in target locations, and to explore litigation possibilities to advanced the needs of this neglected population. Applicants should have at least 4 years of litigation and policy experience and experience working with the relevant legal issues. Commitment to the rights of lesbians, gay men and people with HIV are required, and people of color and people with disabilities are especially encouraged to apply. Salary will depend on experience; the job includes excellent benefits, including employer contribution to retirement account. Send cover letter, resume and writing sample by Oct. 15 to: Beatrice Dohrn, Legal Director, Lambda Legal Defense & Education Fund, 120 Wall Street, Suite 1500, New York NY 10005-3904.


Adler, Libby, _Federalism and the Family_, 8 Col. J. Gender & L. 197 (1999).

Bailey-Harris, Rebecca, _Lesbian and Gay Family Values and the Law_, 29 Fam. L. 560 (Aug. 1999).

Beiner, Theresa M., _What Will Diversity on the Bench Mean for Justice?_, 6 Mich. J. Gender & L. 113 (1999).

Blake, Richard Cameron, _The Frequent Irrelevance of US Judicial Decisions in South Africa:_ National Coalition for Gay & Lesbian Equality v. Minister of Justice, 15 S. African J. on Hum. Rts. 192 (1999).

Bonauto, Mary, Susan M. Murray, and Beth Robinson, _The Freedom to Marry for Same-Sex Couples: The Reply Brief of Plaintiffs Stan Baker et al. In_ Baker v. State of Vermont, 6 Mich. J. Gender & L. 1 (1999).

Bryant, Theresa J., _May We Teach Tolerance? Establishing the Parameters of Academic Freedom in Public Schools_, 60 U. Pitt. L. Rev. 579 (Winter 1999).

Chin, Diane T., _Power and the Civil Suit: Utilizing Civil Remedies in the Battle Against Hate Violence_, 1 Georgetown J. Gender & L. 115 (Summer 1999).

Chusid, Jodie Leith, Tanner v. Oregon Health Sciences University_: Justifying the Mandate for Domestic Partner Benefits_, 8 Col. J. Gender & L. 261 (1999).

Colb, Sherry F., _Some Thoughts on the Conduct/Status Distinction_, 51 Rutgers L. Rev. 977 (Symposium 1999).

Coukos, Pam, _Deconstructing the Debate Over Gender and Hate Crimes Legislation_, 1 Georgetown J. Gender & L. 11 (Summer 1999).

Crooms, Lisa A., _"Everywhere There's War": A Racial Realist's Reconsideration of Hate Crime Statutes_, 1 Georgetown J. Gender & L. 41 (Summer 1999).

Elliott, Gary E., _Consensual Relationships and the Constitution: A Case of Liberty Denied_, 6 Mich. J. Gender & L. 47 (1999).

Epstein, Deborah, _Redefining the State's Response to Domestic Violence: Past Victories and Future Challenges_, 1 Georgetown J. Gender & L. 127 (Summer 1999).

Eskridge, William N., Jr., Forward to Symposium, _Legal Regulation of Hate-Based Violence_, 1 Georgetown J. Gender & L. 1 (Summer 1999).

Eskridge, William N., Jr., Hardwick_ and Historiography_, 1999 U. Ill. L. Rev. 631.

Gould, Jon, _The Triumph of Hate Speech Regulation: Why Gender Wins But Race Loses ini America_, 6 Mich. J. Gender & L. 153 (1999).

Heaney, Lois, and Ginger Berrigan, _Sexual Orientation Bias in the Court_, 35 Trial No. 8, 47 (Aug. 1999).

Kendell, Kathryn, _Sexual Orientation and Child Custody_, 35 Trial No. 8, 42 (Aug. 1999).

Kindred, Kay P., _When Equal Opportunity Meets Freedom of Expression: Student-on-Student Sexual Harassment and the First Amendment in School_, 75 N. Dak. L. Rev. 205 (1999).

Koehler, Elizabeth M., _The Variable Nature of Defamation: Social Mores and Accusations of Homosexuality_, 76 Journalism & Mass Comm. Q. 217 (1999).

McCarthy, Martha A., and Joanna L. Radbord, _Foundations for 15(1): Equality Rights in Canada_, 6 Mich. J. Gender & L. 261 (1999).

Miller, Alice M., and Meghan Faux, _Reconceiving Responses to Private Violence and State Accountability: Using an International Human Rights Framework in the United States_, 1 Georgetown J. Gender & L. 67 (Summer 1999).

Pantazis, Angelo, _How to Decriminalise Gay Sex:_ National Coalition for Gay & Lesbian Equality v. Minister of Justice, 15 S. African J. on Hum. Rts. 188 (1999).

Patterson, Michael A., Edward J. Walters, Jr., and Andree M Braud, _Attorney-Client Sex: Too Close for Comfort?_, 35 Trial No. 8, 52 (Aug. 1999).

Rogsa, AnnJanette, _Policing the State_, 1 Georgetown J. Gender & L. 145 (Summer 1999).

Schneider, Elizabeth M., _Engaging with the State About Domestic Violence: Continuing Dilemmas and Gender Equality_, 1 Georgetown J. Gender & L. 173 (Summer 1999).

Somek, Alexander, _A Constitution for Antidiscrimination: Exploring the Vanguard Moment of Community Law_, 5 European L.J. 243 (September 1999).

Taslitz, Andrew E., _Condemning the Racist Personality: Why the Critics of Hate Crimes Legislation Are Wrong_, 40 Boston Coll. L. Rev. 739 (May 1999).

Thaler, Jeffrey A., _Are Schools Protecting Children From Harassment?_, 35 Trial No. 8, 32 (Aug. 1999).

Udell, Collin O'Connor, _Same-Sex Sexual Harassment: Cutting the Gordian Knot_, 4 Cardozo Women's L. J. 409 (1998).

Whitten, Kristian D., _Section Three of the Defense of Marriage Act: Is Marriage Reserved to the States?_, 26 Hastings Const. L. Q. 419 (Winter 1999).

Wildenthal, Bryan H., _To Say "I Do": _Shahar v. Bowers_, Same-Sex Marriage, and Public Employee Free Speech Rights_, 15 Ga. St. U. L. Rev. 381 (Winter 1998).

Wing, Adrien Katherine, _Violence and State Accountability: Critical Race Feminism_, 1 Georgetown J. Gender & L. 95 (Summer 1999).

_Student Notes & Comments:_

Collignon, Brian R., _Taking Into Consideration the "Decency Clause" [_National Endowment for the Arts v. Finley_, 118 S.Ct. 2168 (1998)]_, 38 Washburn L. J. 929 (Summer 1999).

Rasnic, Carol Daugherty, _The Latest Pronouncement from the European Court of Justice on Discrimination Against Homosexuals:_ Grant v. South-West Trains, Ltd., 12 N.Y. Int'l L. Rev. No. 2, 79 (Summer 1999) (case comment).

_Specially Noted:_

Students at Georgetown University Law Center have begun to publish a Journal of Gender and the Law, which they characterize as "the first and only legal journal to address explicitly gender, sexuality, and their intersection." (Students at Tulane who publish a journal called Law & Sexuality might contest the claimed primacy.) The first issue features a symposium on hate crimes; the second, due out in November, will feature a symposium on anti-gay peer harassment in schools. Individual articles are noted above.


O'Brien, Christine Neylon, _To Tell the Truth: Should Judicial Estoppel Preclude Americans With Disabilities Act Complaints?_, 73 St. John's L. Rev. 349 (Spring 1999).

_Student Notes & Comments:_

Steele, Amanda C., Bragdon v. Abbott_: Stretching the Statutory Limits of the Americans With Disabilities Act_, 44 S. Dak. L. Rev. 783 (1998-99).


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.