LESBIAN/GAY LAW NOTES
ISSN 8755-9021 November 1999
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: firstname.lastname@example.org or email@example.com
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: firstname.lastname@example.org
FRENCH NATIONAL ASSEMBLY APPROVES "SOLIDARITY PACTS" FOR UNWED COUPLES OF EITHER SEX
Voting 315-249 on Oct. 13, the French Parliament approved a proposal by the governing Socialist Party to enact legislation that will allow both same-sex and opposite-sex partners to register their unions and obtain legal recognition and benefits equivalent to spouses for many purposes of civil law. _New York Times_, _Washington Post_, Oct. 14. The legislation was presented in fulfillment of a campaign pledge by Prime Minister Lionel Jospin.
The proposal to recognize "civil solidarity pacts" had fared less well in prior consideration by the Parliament, but in its broadened form, extending to virtually any cohabitants regardless of sexual relationships, the measure commanded enough support to go forward. However, conservative opponents of the legislation indicated they would petition the Constitutional Council for a ruling on the validity of the measure. French Justice Minister Elisabeth Guigou stated that the new law will "offer a solution to 5 million people who live as couples without being married," of whom roughly 600,000 are estimated to be same-sex couples.
In order to meet the objections of many municipal mayors to any involvement in recognizing same-sex couples, the registration will take place at courthouses rather than city halls. Under the law, after three years of faithful cohabitation, a couple may file tax forms jointly and claim various other rights of married, couples, similar to the rights afforded registered partners in Sweden, Norway, Denmark and the Netherlands. The areas of legal recognition will extend to laws on inheritance, housing, and social welfare, and will enable gay French citizens to sponsor their non-French partners for immigration and citizenship purposes. However, the measure makes no mention of rights to adoption.
With this measure, France has become the largest country in Europe, in terms of population, to recognize same-sex couples as having a legal status akin to marital couples. However, it seems likely that the Netherlands will be the first to open the institution of marriage, itself, to same-sex couples, when final action is taken in a year or two on a measure introduced by the governing coalition this past summer in the Dutch parliament. A.S.L.
U.S. DISTRICT COURT PERMITS LAWSUIT AGAINST SALT LAKE CITY SCHOOL DISTRICT BY LOCAL GAY/STRAIGHT ALLIANCE TO PROCEED TO TRIAL
A lawsuit filed against the Salt Lake City School District by a local Gay/Straight Alliance and three of its members will advance to the pre-trial stages of litigation next month. The student group alleges that the school district violated the federal Equal Access Act (20 U.S.C. sec. 4071) and the First Amendment when it selectively denied the Alliance access to school facilities for its weekly meetings. In a fifty-five page decision that was not officially published at presstime, _East High Gay/Straight Alliance v. Board of Education_, No. 2:98CV193J (U.S.Dist.Ct., D. Utah, Oct. 6), Judge Bruce Jenkins denied material portions of both parties' summary judgment motions. As a result of the court's ruling, the plaintiffs will have the opportunity to prove at trial that the school district has an unwritten discriminatory policy aimed at eliminating all lesbian and gay-positive messages from school forums.
In 1996, the Board of Education of the Salt Lake City School District adopted a written policy which prohibits student organizations "not directly related to the school's curriculum" from meeting on school property during non-instructional time, including lunch hours. The policy also prevents non-curricular organizations from taking advantage of other school resources to promote their activities, such as access to the bulletin board and PA system. The plaintiffs allege that the underlying and unspoken purpose of the policy is to exclude lesbian and gay-positive groups such as the Alliance from the school. (According to a news release issued by plaintiffs' counsel -- Lambda Legal Defense, the National Center for Lesbian Rights, and the ACLU -- the Board terminated school access for forty-six non-curricular school clubs,
including the Young Republicans and Students Against Drunk Driving, to accomplish its discriminatory goals against the Alliance.)
Judge Jenkins ruled that under the Equal Access Act, a school district may lawfully limit access to its facilities to curriculum-related student groups. However, once a school opens its doors to even one non-curricular group, it is unlawful to discriminate or deny equal access to other groups on the basis of the group's message or the content of its meetings. While the plaintiffs conceded in their motion papers that the Gay/Straight Alliance is a non-curricular organization, they maintained that the school district had permitted five other non-curricular groups, including the Future Homemakers of America, the Future Business Leaders of America, and the Improvement Council of East High (a student government group) to utilize school facilities and resources.
The court concluded as a matter of law that the school district is presently in full compliance with the Equal Access Act because all five student groups cited by the plaintiff are sufficiently related to the school's curriculum. The defendant is therefore under no legal obligation to permit a non-curricular group such as the Gay/Straight Alliance to meet on school grounds during non-instructional time. However, Judge Jenkins noted that until 1998, the Improvement Council was not integrated into student government, and academic credit was not given to students participating in its activities. The court therefore found that the defendant violated the Act during the 1997-1998 academic year, and granted summary judgment to the plaintiffs for that limited time period.
As to the plaintiffs' First Amendment claims, the court ruled that a school is a "limited public forum." According to the court, the Board of Education may lawfully limit subjects of speech appropriate in schools, but may not restrict viewpoints with which they do not agree. "The limited public forum allows for the expression of all viewpoints so long as the content they express falls within the permissible subject matter of the forum," Judge Jenkins noted. The school maintained that they complied with this parameter, because they only limited the subject
of permissible speech --- in this case, to curriculum-related subjects. The plaintiffs alleged that this restriction was a subterfuge for discrimination, and that the Board of Education was actually motivated by the desire to exclude specifically all lesbian and gay positive messages from its schools.
The court held that subject matter restrictions are themselves subject to judicial scrutiny, and will be upheld only if they are "reasonable in light of the purpose served by the forum and [are] not an effort to suppress expressions merely because the school officials oppose the
speaker's view." Judge Jenkins concluded that the plaintiffs presented sufficient evidence in the form of deposition testimony and affidavits to raise a genuine issue of material fact on this point. The court also took into consideration the fact that the school recently denied access
to a curricular-related group called the "Rainbow Club", whose intended activities would include the dissemination of information concerning "the impact, contributions and importance of gay, lesbian, bisexual and transgender individuals." The court ruled that these issues could not be resolved at the summary judgment phase of litigation, and scheduled a pre-trial conference for November 5, 1999 to address them in greater detail.
According to the Salt Lake Tribune, the Gay Straight Alliance continues to meet on school property pursuant to the Utah Civic Center Act, which allows community groups to rent space from schools as long as they provide liability insurance and adult supervision. The Gay/Straight Alliance is in its fourth year, and attracts between 15 to 35 regular members to its weekly meetings. _Ian Chesir-Teran_
LESBIAN/GAY LEGAL NEWS
Britain's Highest Court Follows Braschi: Same-Sex Partner is Family Member
On Oct. 28, in Fitzpatrick v. Sterling Housing Association Ltd. (available at http://www.parliament.the-stationery-office.co.uk/pa/ld/ldjudinf.htm), the highest court in Britain, the House of Lords, held by 3 to 2 that a same-sex partner is "a member of the original tenant's family" and could therefore succeed to the tenancy of a rent-controlled apartment after the death of the original tenant. Martin Fitzpatrick and John Thompson "had been partners in a longstanding, close, loving and faithful, monogamous, homosexual relationship." They lived together in the apartment from 1976 until Thompson's death in 1994, when the landlord sought to evict Fitzpatrick. He had spent the last eight years providing 24-hour care to Thompson, who had disabilities resulting from an accident in 1986.
The lead opinion was by Lord Slynn of Hadley (in the majority with Lord Nicholls of Birkenhead and Lord Clyde). He began by rejecting Fitzpatrick's first argument, that he qualified as the spouse of Thompson, because the Rent Act 1977 deemed a "person who was living with the original tenant as his or her wife or husband" to be a spouse. He did not think "that Parliament as recently as 1988 [when the definition of spouse was extended] intended that these words should be read as meaning 'my same sex partner' ... If that had been the intention it would have been spelled out. ... Whether that result is discriminatory against same-sex couples ... may have to be considered when the Human Rights Act 1998 is in force [Oct. 2, 2000]." All five Law Lords agreed on this point. (Ward L.J., dissenting, had found for Fitzpatrick on this point in the Court of Appeal. See  LGLN 149.)
Although Fitzpatrick could not be a spouse, which "requires partners of different sexes," Lord Slynn held that he could still qualify as "a member of the original tenant's family." The word "family," first added to an earlier version of the Act in 1920, "is to be applied flexibly, and does not cover only legally binding relationships ... The hallmarks of the relationship were essentially that there should be a degree of mutual inter-dependence, of the sharing of lives, of caring and love, of commitment and support. In respect of legal relationships these are presumed, though evidently are not always present as the family law and criminal courts know only too well. In de facto relationships these are capable, if proved, of creating membership of the tenant's family. ... [T]he question is ... who in 1994 or today ... are capable in law of being members of the tenant's family. It is not who would have been so considered in 1920. ... [I]t is necessary to have regard to changes in attitude. ... [A]s a matter of law a same-sex partner can establish the necessary familial link."
After citing Braschi v. Stahl Associates, 544 N.Y.S. 2d 784 (1989), and El-Al Israeli Airlines Ltd. v. Danilowitz (1994), Lord Slynn rejected the suggestion "that the result which I have so far indicated would be cataclysmic. ... [The same-sex partner will have to] establish ... the necessary indicia of the relationship. A transient superficial relationship will not do even if it is intimate. Mere cohabitation by friends as a matter of convenience will not do. There is ... a minimum residence qualification [two years] ... Far from being cataclysmic it is ... in accordance with contemporary notions of social justice. In other statutes, in other contexts, the same meaning may or [may] not be the right one. If a narrower meaning is required, so be it. ... [Far from] undermin[ing] the traditional ... concept of marriage and the family ... [i]t merely recognises that, for the purposes of the Act, two people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations."
For Lord Nicholls, once it is accepted that unmarried different-sex partners are members of a family, "there can be no rational or other basis on which the like conclusion can be withheld from a similarly stable and permanent sexual relationship between two men or between two women. ... [T]he intimate mutual love and affection and long-term commitment that typically characterise the relationship of husband and wife ... can exist in same sex relationships as in heterosexual relationships. ... [T]he concept underlying membership of a family for present purposes is the sharing of lives together in a single family unit living in one house." But he noted that "[t]he decision leaves untouched questions such as whether persons of the same sex should be able to marry, and whether a stable homosexual relationship is within the scope of the right to respect for family life in article 8 of the European Convention on Human Rights."
Lord Clyde defined "the common bond in a partnership of two adult persons which may entitle the one to be in the common judgment of society a member of the other's family" as "one of love and affection, not of a casual or transitory nature, but ... permanent or ... intended to be so," and involving "a readiness to support each other emotionally and financially, to care for and look after the other in times of need, and to provide companionship in which mutual interests and activities can be shared and enjoyed together. It would be difficult to establish such a bond unless the couple were living together in the same house. It would also be difficult to establish it without an active sexual relationship ... or at least the potentiality of such a relationship. ... [T]he existence of children is not a necessary element. ... [F]amily units may now be recognised to exist both where the principal members are in a heterosexual relationship and where they are in a homosexual or lesbian relationship." Yet he was not holding that "a homosexual partnership is like or is akin to [a married or unmarried different-sex couple]," and "[i]t would be wrong to regard the present case as one about the rights of homosexuals"(?).
According to Lord Hutton, dissenting, "[i]n 1920 the fact of homosexuals living together in permanent relationships was known to Parliament, and if a homosexual couple was not intended by Parliament to come within the term 'family' at that date I do not consider that changed public attitudes towards homosexuality mean that a new state of affairs has come into existence which extends the meaning of that term." He did not see "why two elderly spinsters who live together for mutual support and companionship ... without any sexual element ... should not qualify." The decision "could have considerable implications for the social life of this country and in other spheres of the law" and should therefore be left to Parliament. Lord Hobhouse of Woodborough, also dissenting, agreed that "devoting and caring friends who .. have never engaged in sexual relations with the tenant" were as meritorious, and that it was not for the courts "to equate [homosexual] relationships with heterosexual ones ... It is an improper usurpation of the legislative function, for a court to adopt social policies which have not yet been incorporated in the relevant legislation."
The Fitzpatrick decision is a landmark in Britain, both for its symbolic recognition that same-sex couples are families, and for the rights and obligations that this recognition may confer. A LEXIS search suggests that over 200 provisions of British statutes refer to a "member of the family." Fitzpatrick will be highly persuasive, although not binding, in relation to these provisions. A victory on the "living as husband and wife" point would have been more significant, in that this expression is frequently used in legislation and regulations, such as on compensation claims by dependants after deaths caused by negligence or criminal conduct. (The surviving male partner of a man killed in the April 1999 Soho bombing was denied compensation.) But Fitzpatrick might serve as a catalyst for action by the U.K. Parliament to equalize the treatment of same-sex couples and unmarried different-sex couples, at least in selected areas. The first anomaly to be addressed could be the legislation on succession to public sector tenancies, with which Fitzpatrick (a private sector case) will not assist, because "member of the family" is defined as including only spouses, persons "living together as husband and wife,<70> parents, grandparents, children, grandchildren, brothers, sisters, uncles, aunts, nephews and nieces. _Robert Wintemute_
Supreme Court Case May Affect Co-Parent Custody/Visitation Disputes
On Sept. 28, the U.S. Supreme Court granted a writ of certiorari in _Troxel v. Granville_, 1999 WL 551940, agreeing to review the Washington Supreme Court's decision in _In re Custody of Smith_, 969 P.2d 21 (Wash. 1998), in which the state supreme court ruled that the federal constitutional rights of privacy and liberty protected by the Due Process Clause of the 14th Amendment bars a state from ordering a parent to allow a child's grandparents to visit with the child.
The _Smith_ decision was actually a consolidation of three cases arising under Washington's child custody statute, which authorizes grandparents and other "third parties" who have established a relationship with a child to seek visitation with that child. In the case that reached the Supreme Court, Gary and Jennifer Troxel had obtained a court order for visitation with their two young granddaughters. Their son Brad, the girls' father, had committed suicide in 1993 and their mother had remarried to a man who adopted the children. Although the parents had allowed occasional visitation, the Troxels sought to protect their right to more frequent visitation and obtained the court order, which the parents had opposed. The state supreme court found that the order violated the established due process rights of parents to control the upbringing of their children.
The U.S. Supreme Court has developed a line of precedent going back to the early part of the century respecting the constitutional rights of parents, in key cases involving both public education and child custody. Indeed, lesbian and gay birth parents have relied on those cases to assert their rights to custody or visitation with their children after leaving heterosexual marriages. But, depending how the Court rules in _Troxel_, those same rights might be erected as a barrier when same-sex couples split up and a birth or adoptive parent refuses to allow their former partner to continue having contact with the child they were previously raising together.
Indeed, on June 23, 1999, using a very similar constitutional theory, a Florida Court of Appeal ruled against a lesbian co-parent who was seeking visitation with the children she had been raising, citing the express right of privacy contained in the Florida constitution. The decision in _Kazierazak v. Query_, 1999 WL 415215 (Fla.App., 4th Dist.), provides a disturbing preview of what may be in store. A.S.L.
Tennessee Appeals Court Rules Lesbian Co-Parents Lack Standing to Seek Visitation
The Tennessee Court of Appeals rejected the petition of two non-biological lesbian mothers who were seeking visitation rights with children whom they had raised prior to the dissolution of the relationship with the children's biological mothers. In _White v. Thompson_ and _Coke & Dooley v. Looper_, 1999 WL 787517 (Sept. 27), the court relied on Tennessee statutory law to deny Pamela Kay White and Mary Helen Looper standing to bring visitation claims.
According to the court, Pamela Kay White and Patricia Teresa Thompson were involved in a committed, intimate relationship from 1987 until 1994. After a successful artificial insemination, Thompson gave birth to a son, J.T., in 1993. J.T.'s first name was based upon White's brother and middle name was based upon Thompson's father. White contributed to Thompson's support both during and after the pregnancy. White provided care for J.T. even after the couple's relationship ended in 1994. Although the arrangement worked well at first, Thompson eventually "began to interfere with White's relationship" with J.T. by refusing and/or interfering with visitation and preventing White from talking with J.T. on the telephone.
White filed a petition seeking visitation, alleging that it was in the best interest of the child for White to have a "regular and ongoing visitation" with J.T. Thompson responded with a motion to dismiss, asserting that White lacked standing to assert visitation rights, and that White had not demonstrated that Thompson presented any threat of substantial harm to J.T., so as to justify abrogating Thompson's constitutional parental rights. In her reply, White alleged that she stood _in loco parentis_ to the minor child, and therefore had standing to assert the visitation claim.
In January, 1998, the trial court granted Thompson's motion to dismiss purely on grounds of standing, bypassing questions of "best interest" or "substantial harm" with regard to the minor child, and held that "the relief requested by White is not a part of this Court's inherent jurisdiction."
The second case involved a similar but distinct factual scenario between Debbie Coke and Helen Looper, who had also been in a relationship (although the court is much less explicit in discussing the nature of the women's relationship- due, perhaps, in part to the presence of the biological father, Donald Dooley, in the litigation). In this case, the two women had drafted a "co-parenting agreement," which provided for joint responsibility for raising their child, J.C., and specified that in the event of a breakup, Coke would retain legal custody, but Loper would have "reasonable visitation" but "no financial obligation to J.C." The agreement specifically contemplated the possibility that "certain of the clauses . . . may not be enforceable in a court of law," but nevertheless stated that the women were entering into the agreement to "clarify their intent to jointly provide and nurture J.C., even in the event that they are no longer living together in the family home."
In August, 1996, Coke and Dooley jointly filed a "Complaint for Permanent Restraining Order and for Damages" against Looper. Looper counter-claimed for damages for breach of contract and tort claims, and also sought to permanently enjoin Coke and Dooley from interfering with her relationship and visitation with J.C. In 1997, Dooley moved to dismiss Looper's complaint against him for failure to allege any actions that would support the breach of contract or tort claims, and also for failure "to state any legally cognizable interest as to the minor child, who is not the child of Looper either by blood or adoption, such as would support a claim for rights to the child or for visitation with the child." The chancery court granted Dooley's motion on the pleadings. With regard to Coke's motion to dismiss, the court offered a slightly different rationale: "[I]nsofar as Ms. Looper is concerned, especially with Ms. Coke, the natural mother objecting to her visitation, it's this Court's ruling that Ms. Looper has no claim or interest in that child. . . . The Court is ruling that Ms. Looper has no interest in this child-- no claim on visitation legally, of course. . . .I'm saying that she has no interest in the child that's enforceable under law."
White and Looper jointly appealed, and stated as the question for review: "Whether a petition for visitation may be brought by a woman who, in the context of a long-term relationship, planned for, participated in the conception and birth of, provided financial assistance for, and until foreclosed from doing so by the biological mother, acted as a parent to the child ultimately born to her partner."
The Court of Appeals, in an opinion by Judge Highers, first held that neither White nor Looper qualified as a parent under Tennessee law. In a footnote, the court noted that the presence of a state DOMA (Defense of Marriage Act), restricting the definition of marriage to a man and a woman, eliminated one possible way in which the women could have established a relationship with their female partners that would have qualified them as parents under the law. Despite the fact that "in our society the term 'parent' has become used at times to describe more loosely a person who shared mutual love and affection with a child and who supplies care and support to the child," the court limited itself to the text of the statute, and found "it inappropriate to legislate judicially such a broad definition of the term 'parent' as relating to legal rights relating to child custody and/or visitation." The court warned that such an expansive definition could lead to the vesting of parental rights in grandparents and other care-givers. The court noted that neither White's nor Looper's claims were asserted pursuant to any statutory right that would justify abrogating the constitutional and statutory rights of parents to custody and control of their children.
The court preserved in a footnote, however, the issue as to "whether public policy would preclude the specific performance of visitation set forth in a co-parenting agreement." The agreement did not control this case for two reasons: first, it was not asserted in the case, and second, Dooley, J.C.'s biological father, was not a party to the co-parenting agreement.
The court then reviewed the claim that chancery courts have inherent jurisdiction, extending beyond their statutory jurisdiction, to act in relation to the property and other interests of minors. First, the court noted that even this "inherent jurisdiction" has been limited in light of subsequent statutory provisions. Second, the court noted that non-biological mothers have been granted standing in Massachusetts (1999), New Jersey (1999), Pennsylvania (1996) and Wisconsin (1995). Nevertheless, it relied on previous Tennessee cases to deny standing and turned to cases from sister states for support: Vermont (1997); California (1999); Florida (1995); and New York (1991). In all of these cases, the courts have denied non-biological or non-adoptive lesbian partners standing to seek custody of children "conceived during a same sex bilateral relationship."
The court rejected the de facto parent argument, relying on the California court's explanation that the term "had its genesis in the juvenile dependency system and generally has been used to refer to foster parents caring for dependent children." The court also refused to consider a step-parent analogy, noting that those cases were "premised, in part, upon the effect that the mother's and stepfather's marital union had upon the parties' legal rights and obligations." The court noted again that neither of the women had been married to the biological mothers involved in the dispute.
Finally, the court refused to consider any alleged constitutional parental rights arising from a de facto relationship. Although the women did have a privacy interest with regard to their relationship with the biological mothers, the court summarily rejected any attempt to extend those rights to include visitation to unmarried/ unrelated persons in White's and/or Looper's position.
Among the litigators involved in the case was Shannon Minter (National Center for Lesbian Rights), who wrote the amici curiae brief for NCLR, the ACLU of Tennessee, Tennessee's National Organization For Women (NOW), Memphis NOW, Lambda Legal Defense and Education Fund and NOW Legal Defense and Education Fund. _Sharon McGowan_
First Circuit Rejects Sexual Harassment Claim by Gay Man
Although finding that Robert Higgins had "toiled in a wretchedly hostile environment" at New Balance Athletic Shoe's factory in Norridgewock, Maine, a panel of the U.S. Court of Appeals for the 1st Circuit ruled on Oct. 22 that District Judge Morton Brody had correctly granted summary judgment to the employer on Higgins' claim under Title VII of the Civil Rights Act of 1964. _Higgins v. New Balance Athletic Shoe, Inc._, 1999 WL 907538. Unfortunately, it appears that either mistaken strategic decisions or poor lawyering by Higgins' trial counsel may have had much to do with his defeat.
According to the factual summary by Circuit Judge Selya, Higgins, who is gay and was known to be such by his co-workers, suffered unremitting hostility during his decade of employment at the factory. "Apparently due to his homosexuality, many of his fellow workers mistreated him: they called him vulgar and derogatory names, made obscene remarks about his imagined sexual activities, and mocked him (e.g., by using high-pitched voices or gesturing in stereotypically feminine ways)." In a footnote, Selya commented further: "Examples of abuse populate the record. One person put a sign on the appellant's desk reading `Blow Jobs 25 cents.' Others told him that they did not want him near them because of an aversion to his `kind' or because they feared that he would give them AIDS. On various occasions, co-workers squirted him with condiments, snapped rubber bands at him, and poured hot cement on him. One colleague grabbed him from behind in the lavatory and shook him violently. The same person threatened from time to time to kill him." Higgins alleged that he complained frequently about these matters, but management did nothing to stop them.
Higgins also complained that the company did nothing to accommodate his poor hearing, despite his requests, and, after he was discharged in a dispute with his supervisor over complaints he made about a co-workers, Higgins also claimed that the discharge was in retaliation for his complaints about a variety of workplace issues, some of which might come within the "whistle-blower" variety. The district court granted summary judgement to the employer on all claims.
Unfortunately, it appears that Higgins' sex discrimination/sexual harassment claim was presented to the district court in a rather rudimentary way, failing to capitalize on a variety of theories that might be used to argue that anti-gay workplace harassment is sex discrimination under Title VII. It was not until the case went up on appeal that Higgins first argued theories of sexual stereotyping, or attempted to articulate a "sex-plus" theory that only men, and not women, were targeted for the kind of harassment he endured. Before the trial court, if anything his argument seemed to have been a straightforward assertion that anti-gay workplace harassment constitutes sex discrimination.
Wrote Selya, "We hold no brief for harassment because of sexual orientation; it is a noxious practice, deserving of censure and opprobrium. But we are called upon here to construe a statute as glossed by the Supreme Court, not to make a moral judgment - and we regard it as settled law that, as drafted and authoritatively construed, Title VII does not proscribe harassment simply because of sexual orientation. The appellant argued below for a contrary rule, but the court correctly rejected his importunings. To that extent, summary judgment plainly was appropriate."
As to the new theoretical arguments Higgins presented on appeal, the court held that it could not give them substantive consideration because they were never presented to the trial court. "On this record, we cannot reach the new and different arguments that the appellant attempts to advance on appeal. . . A party who aspires to oppose a summary judgment motion must spell out his arguments squarely and distinctly, or else forever hold his peace. The district court is free to disregard arguments that are not adequately developed, and such arguments cannot be resurrected on appeal. . . The appellant's sex-plus claim never surfaced in the district court. . . The appellant's claim of impermissible stereotyping fares no better. Although he now maintains that the evidence of co-workers mocking his supposedly effeminate characteristics supports an argument for harassment based on sexual stereotypes, he presented that evidence to the district court only as an example of discrimination because of sexual orientation. He did not mention gender stereotyping below and he did not present any considered argumentation along that line. . . Where, as here, arguments made before the trial court and the appellate court, respectively, pull from the evidence common factual threads but weave them into distinctly different legal patterns, the new argument normally is deemed forfeited."
However, all was not lost for Higgins. Although the court also rejected his retaliatory discharge claim, it found that the lower court erred in granting summary judgment on his claim under the Americans With Disabilities Act. Apparently, the district court thought that the defendant could prevail by showing that it had no animus towards Higgins based on his poor hearing. But that is not sufficient; if an employee with a disability requests a reasonable accommodation and it is denied, the Act is violated regardless of any showing of discriminatory intent. Thus, the court of appeals reversed the grant of summary judgment on the ADA claim and remanded, but with a cautionary note: under the recent Supreme Court decision in _Sutton v. United Air Lines, Inc._, 119 S.Ct. 2139 (1999), the district court will have to determine whether Higgins' hearing aid successfully corrects his hearing to the degree that he cannot be considered a person with a disability under the Court's new cockeyed construction of the ADA. A.S.L.
Lesbian Co-Parent Wins Visitation Order From Connecticut Court
Judge Robaina of the Connecticut Superior Court has ordered that a lesbian co-parent be allowed to have regular visitation with the 9-year old girl she was raising with her former partner. _ Antonucci v. Cameron_, 1999 WL 793974 (Sept. 24). Unlike such cases from many other states, this case did not require the court to adopt any novel theories in order to get around restrictive state statutes, because Connecticut's law on visitation gives the courts wide discretion to order visitation for non-parents.
Andrea Antonucci and Kate Cameron met in 1985 and began to live together as a couple in the spring of 1986. After they had been together a few years, they began to discuss having children, and they agreed that Andrea would be the birth mother because her employment and financial circumstances made it logical for her to be the one. However, despite several attempts to become pregnant through donor insemination, she could not have a child, and the couple turned to adoption instead. They learned about a Texas program under which they might adopt the child of a terminally ill parent, and traveled to Texas in 1993, where they met the natural mother of the child they ultimately adopted. They explained to both the natural mother and the adoption agency that they were a lesbian couple and intended to raise the child together. Under Texas law two unmarried adults may not adopt jointly, so they designated Kate to be the adoptive mother because her employment and home ownership circumstances at that time made her the better candidate for approval. The adoption took place in 1994, when their new daughter was five years old.
In November 1997, the relationship fell apart and Andrea moved out, but she and Kate worked out a visitation schedule that lasted nine months until Kate unilaterally ended it, allegedly because she felt that their child was acting badly after her visitations with Andrea. Although Kate barred Andrea from formal visitation, Andrea maintained contact with her daughter through surreptitious visits around the daughter's various activities outside the house, sometimes even with Kate's knowledge. But ultimately Andrea desired a return to a more predictable and open visitation routine, and filed the lawsuit.
The Connecticut visitation statute, Section 46b-59, says that the Superior Court may grant visitation rights to "any person, upon an application of such person. Such order shall be according to the court's best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the court. In making, modifying or terminating such an order, the court shall be guided by the best interest of the child."
In this case, after reviewing the history of Andrea and Kate's relationship with each other and the child, Judge Robaina concluded that it would be in the child's best interest to have regular visitation with Andrea. The judge pointed out that both parents participated in the decision to adopt, that although the law made it impossible for them to adopt jointly, both the natural mother and the various agencies involved knew about their relationship and considered that the child would be raised by both of them, and all the relevant authorities consulted by the court indicated that "the child has significant relationships with, and emotional attachments to both parties." The court also found that the child "is presently described as being bright, intelligent, charming, capable, dynamic and manipulative" and had "indicated a clear desire to have visitation" with Andrea, and that the child's pediatrician, the study that the court had performed, and the attorney appointed to represent the child's interest all recommended a visitation order for Andrea.
The judge quoted a prior ruling by the Connecticut Supreme Court, observing that the traditional model of the nuclear family has been replaced by a diversity of family structures, and that "we are not prepared to assume that the welfare of children is best served by a narrow definition of those whom we permit to continue to manifest their deep concern for a child's growth and development." The court ordered both alternate weekend visitation and visitation two nights a week, as well as allowing telephone contact at other times and making special provisions for holidays. The court also reserved to a later time the question whether Andrea should be ordered to contribute to the support of the child beyond the expenses Andrea will occur in exercising her visitation rights. A.S.L.
Nebraska Supreme Court Orders New Trial for Man Convicted of Raping Lesbian Co-Worker
A man sentenced to seven to ten years in prison for anally raping a female co-worker won a new trial when the Nebraska Supreme Court concluded that the trial court erred by refusing to allow the defendant to offer evidence that the victim had previously engaged in anal sex with men. _State of Nebraska v. Lessley_, 1999 WL 825386 (Oct. 15).
According to the trial testimony of the victim, M.B., she was employed as a security guard by Wells Fargo and was working a day shift at First National Bank in Omaha, Nebraska, on November 23, 1997. Shortly before the end of her shift, the defendant, Richard Lessley, also employed as a guard by Wells Fargo, showed up for his work on the following shift and asked her to take him up to the 9th floor in the elevator so he could watch a football game on television until his shift began. Because the upper floors could only be accessed with a keycard, and only the guard on duty had such a card, M.B. agreed to take Lessley to the upper floor. Shortly thereafter, Lessley asked M.B. to take him up to the 13th floor, which also could only by accessed by the keycard. M.B. did so and testified that while they were on the 13th floor, Lessley came up to her from behind and raped her anally.
At trial, M.B. testified that she was a lesbian and did not engage in anal sex with men. Lessley's attorney sought to introduce evidence that M.B. had told another one of the Wells Fargo guards that she had anal sex with men in order to avoid becoming pregnant, but District Court Judge Corrigan refused to allow admission of the evidence, ruling that any inquiry into M.B.'s sexual orientation or past sexual practices was barred by Nebraska's Rape Shield Law. Lessley was convicted and sentenced.
In reversing, Justice McCormack wrote for the court that although the Rape Shield Law would preclude admission of such evidence, which did not come within the narrow exceptions provided by that law, the defense had properly argued that the prosecution's eliciting of testimony about M.B.'s sexual orientation and sexual practices had "opened the door" for the defense to introduce evidence contradicting this testimony, premising this conclusion on the defendant's 6th Amendment right to confront the witnesses against him. Wrote McCormack, "The only issue in this case is whether the encounter between M.B. and Lessley was consensual. Whether intended by the State or not, M.B.'s testimony on direct examination regarding her sexual preference and experience permitted the jury to draw an inference that she did not consent to sexual relations with Lessley. The evidence proffered by the defense would have made this critical inference less probable. The trial court's exclusion of this evidence was error because it materially impaired Lessley's Sixth Amendment right to confront his accuser on the dispositive issue of consent. . . We cannot conclude that the trial court's error was harmless beyond a reasonable doubt. The trial court's refusal to permit Lessley to present evidence of M.B.'s sexual past when the State opened the door to such testimony constituted reversible error that entitles Lessley to a new trial." A.S.L.
Texas Appeals Court Rules a Man Can Never Become a Woman; Rejects Wrongful Death Action by Transsexual Widow
A three-judge panel of the Texas Court of Appeals, sitting in San Antonio, has rejected a claim by a male-to-female transsexual that she has standing to sue for the wrongful death of her husband. _Littleton v. Prange_, 1999 WL 972986 (Oct. 27). In an opinion cruelly dismissive of the rights of transgendered persons to be able to function in the gender they experience as genuine, Chief Justice Phil Hardberger stated, "There are some things we cannot will into being. They just are."
The ruling affirmed a decision by Bexar County District Judge Frank Montalvo to grant summary judgment to Dr. Mark Prange, who accompanied his motion with a copy of the original birth certificate of the plaintiff, Mrs. Christie Lee Littleton, who was born Lee Cavazos, Jr., in 1952. Ms. Littleton began to experience her reality as female in early childhood, and by the time she was 17 was searching for a doctor to perform sex reassignment surgery for her. She enrolled in a program at the University of Texas Health Science Center that culminated in her sex reassignment procedure, legally changing her name in 1977 to Christie Lee Cavazos, and undergoing surgical procedures between November 1979 and February 1980. Doctors involved in her treatment offered affidavit testimony that she was a "true transsexual" whose gender dysphoria could only be resolved by living as a woman.
In 1989, Christie married Jonathon Mark Littleton in Kentucky. Jonathon was fully aware of her background. The marriage lasted seven years until Jonathon's death, allegedly due to the negligence of Dr. Prange. Christie brought an action under the Texas Wrongful Death Act, which authorizes a surviving spouse to seek compensation for the injury caused by the death of their spouse. Dr. Prange opposed the case by arguing that because Christie was born as a man, she could not be legally married to Jonathon and thus was not a surviving spouse qualified to bring a wrongful death action.
In his opinion for the majority of the panel, Justice Hardberger reviewed the history of litigation over the status of transsexuals in England and the U.S., and concluded that, apart from a 1976 New Jersey decision, _M.T. v. J.T._, 355 A.2d 204 (1976), there was no support in U.S. law for the proposition that a post-operative transsexual has legally accomplished a change of sex. Hardberger also emphasized the strong opposition in Texas to same-sex marriage, noting a recently-enacted statute specifically rejecting any recognition of same-sex marriages, and also cited the federal Defense of Marriage Act, which purports to relieve the states of any constitutional obligation to recognize same-sex marriages performed in other jurisdictions (although, curiously, Hardberger did no more than mention DOMA, avoiding any real analysis of its application to this case or possible constitutional flaws).
Expressing aversion to letting a Texas jury try to determine as a matter of fact whether Christie is a man or a woman, Hardberger insisted that the issue could be decided on summary judgment as a matter of law based on uncontested facts. This seems strange, since Christie's sex is a highly contested fact in the case. But for Hardberger, genetics is destiny, unalterably so. Based on the facts submitted by the parties, Hardberger concluded that Christie is a transsexual, and that through surgery "a transsexual male can be made to look like a woman, including female genitalia and breasts," but that the internal organs remain male and the male chromosomes are not changed by the surgery or other treatment. "Biologically, a post-operative female transsexual is still a male." Concluded Hardberger, "Some physicians would consider Christie a female; other physicians would consider her still a male. Her female anatomy, however, is all man-made. The body that Christie inhabits is a male body in all aspects other than what the physicians have supplied."
Hardberger refused to accord any significance to the fact that Christie had applied for and received a court order "correcting" her birth certificate to show her female name and gender, finding that her original birth certificate was correct when it was issued. "The trial court that granted the petition to amend the birth certificate necessarily construed the term `inaccurate' to relate to the present, and having been presented with the uncontroverted affidavit of an expert stating that Christie is a female, the trial court deemed this satisfactory to prove an inaccuracy. However, the trial court's role in considering the petition was a ministerial one. It involved no fact-finding or consideration of the deeper public policy concerns presented. . . The facts contained in the original birth certificate were true and accurate, and the words contained in the amended certificate are not binding on this court."
Concluded Hardberger, "We hold, as a matter of law, that Christie Littleton is a male. As a male, Christie cannot be married to another male. Her marriage to Jonathon was invalid, and she cannot bring a cause of action as his surviving spouse."
In a brief concurrence, Justice Karen Angelini premised her vote on the lack of legislative guidelines for dealing with transsexuals.
Dissenting, Justice Alma L. Lopez argued that Christie's original birth certificate was no longer a valid document upon which the court could premise any factual conclusion. Lopez insisted that Christie had introduced sufficient "controverting evidence that indicated she was female" to create a contested issue of material fact, thus precluding a summary judgment. According to Lopez, the absence of any controlling law in the jurisdiction argued in favor of holding a real trial, and not granting summary judgment and attempting to rule on difficult factual questions as a matter of law. "Under the rules of civil procedure," she wrote, "a document that has been replaced by an amended document is considered a nullity. . . Under this authority, an amended instrument changes the original and is substituted for the original. Although a birth certificate is not a legal pleading, the document is an official state document. . . . In this case, Christie's amended birth certificate replaced her original birth certificate. . . . As a result, summary judgment was issued based on a nullified document. How then can the majority conclude that Christie is a male? If Christie's evidence that she was female was satisfactory enough for the trial court to issue an order to amend her original birth certificate to change both her name and her gender, why is it not satisfactory enough to raise a genuine question of material fact on a motion for summary judgment."
The opinions are perhaps most notable for their complete avoidance of discussing the precise issue that was really before the court: how to construe the wrongful death act in order to effectuate its purpose of compensating a surviving spouse for the loss of her life partner? In this case, what should really matter is Christie's gender as she lived her life, and not her genetic sex. Christie lived as Jonathon's wife, with the legal sanction of the state of Kentucky, for seven years. As such, she was exactly the sort of person intended to be allowed a cause of action for the loss of a spouse. There are many state court decisions around the country acknowledging surviving spouse-type claims on behalf of persons who, it was determined, were in marriages that were legally defective, but the defects of the marriages were held in many instances not to overcome the strong policy reasons for allowing the claim. The court's failure to entertain any sort of sophisticated distinction between sex and gender role produced a decision that seems inconsistent with purposes of the wrongful death statute. A.S.L.
Federal Court Denies Transsexual Inmate's Equal Protection Challenge to Prison Bureau Policy on Treatment
Dee Farmer, an inmate at the federal correctional institute at Butner, North Carolina, who has won fame as the transsexual who took her case to the Supreme Court and won a ruling that the prison's failure to protect her from assaults by other prisoners might state a claim under the 8th Amendment, has lost a round in her current battle to resume the treatments necessary to accomplish her gender change from male to female. _Farmer v. Hawk-Sawyer_, 1999 WL 791945 (U.S.Dist.Ct., D.D.C., Sept. 28). In this opinion, District Judge Kessler disposes of Farmer's claim that the policy on treatment for transsexuals maintained by the federal Bureau of Prisons violates the Equal Protection requirement of the 5th Amendment.
The BOP policy mandates that transsexual prisoners be maintained at the same level of treatment they were experiencing prior to incarceration, unless medical circumstances dictate a departure. In this case, Farmer complains that she was already undergoing hormone therapy preparatory to sex-reassignment surgery and should be allowed to continue it, but she is being denied her hormone therapy. The BOP doctors respond that they are concerned about continuing the hormone therapy for an incarcerated person with AIDS.
In making her equal protection claim, Farmer asserted that prisoners with other serious mental conditions are given treatments seeking to effect a cure or resolve their problems, and that in this sense transsexuals are subjected to differential treatment by being deprived of the continuation of their course of therapy. However, while conceding that there is at least a contested issue of material fact on the question whether Farmer was being deprived of the kind of treatment afforded to those similarly situated to her, Kessler concluded that the BOP has a rational basis for treating transsexuals differently from other prisoners. "BOP's policy is a rational response to legitimate health and safety concerns: hormone therapy brings about drastic and permanent physical changes, and must be closely monitored by trained professionals. Moreover, such treatment cannot be administered lightly, or merely upon the basis of self-reporting. Some independent verification of the inmate's treatment is necessary to ensure the safety and health of the inmate. Further conclusive evidence of the rationality of BOP's policy is the fact that it is consistent with the Benjamin Standards' policy on treatment of transsexual inmates." (The Benjamin Standards are guidelines for treatment of transsexuals that have been devised by doctors specializing in this area of medicine.)
Thus, Kessler granted summary judgment against Farmer on her equal protection claim. A.S.L.
6th Circuit Rejects 8th Amendment Claim by Assaulted Gay Prisoner
Lonnie Dorsey, Jr., a gay man who was twice assaulted in prison, sued officials of the State Prison of Southern Michigan and the director of the Michigan Department of Corrections, claiming that the assaults violated his right to be free of cruel and unusual punishments. _Dorsey v. Palmer_, 1999 WL 777452 (U.S.Ct.App., 6th Cir., Sept. 16). The district court granted summary judgment for the defendants, and the court of appeals affirmed, per curiam, in an unpublished decision.
According to the brief memorandum by the court, Dorsey failed to meet the test set by _Farmer v. Brennan_, 511 U.S. 825 (1994), of showing that prison officials were deliberately indifferent to a known excessive risk to his safety. For one thing, the court found that Dorsey, while complaining that he felt endangered, had refused to tell prison officials the source of threats or even a physical description of the source. After he was assaulted, he was placed in administrative segregation, but then released into general population at his own request when he said that his attacker was not in general population. Thus, the court found, the prison officials couldn't be blamed for failing to have prevented the second attack. Evidently Dorsey also tried to make an equal protection claim on appeal, but the court pointed out that he "did not name any non-homosexual prisoner who refused to identify the source of a threat, yet was placed in protective custody." A.S.L.
Oklahoma Appeals Court Upholds Life Sentence for Murderer of Gay Man
Rejecting an attempt by defendant Alexis Perryman to interject a "homosexual panic" type of defense into his trial for the murder of Charles Meers in 1996, the Oklahoma Court of Criminal Appeals ruled in _Perryman v. State of Oklahoma_, 1999 OK CR 39 (Oct. 18), that District Judge Daniel Owens did not err in excluding proffered testimony on post-traumatic stress disorder by a medical expert.
According to the court's summary of the trial record, Perryman and a confederate, Nick Karlin, were invited home by Charles Meers, who came across them panhandling for change to buy beer outside the Habana Inn in Oklahoma City. Perryman testified that he and Karlin told Meers they were not gay, just so he would not get any ideas, but he still made moves on Perryman once they were drinking at his house, which Perryman claims to have rebuffed. Perryman testified that after he passed out from drinking beer, he woke up to find Meers trying to unzip his pants and beat up Meers, woke up Karlin and started to leave the house. Perryman testified that Meers came after them with a gun, stuck the gun down Perryman's throat and was then incapacitated by Karlin, who stabbed him from behind. Perryman testified that Karlin suggested burning down the house with Meers in it to destroy the evidence, and taking various valuables from Meers' house. The prosecution presented testimony by three witnesses, all of whom recounted what Perryman had told them after the incident, each differing in basic facts from Perryman's trial testimony. The stories Perryman told these witnesses truncated the events to make it seem that Perryman and Karlin killed Meers in defending against his sexual advances.
At trial, Perryman sought to introduce testimony by Dr. Smith that he had suffered abuse from a gay man as a boy and that post-traumatic stress syndrome lingering from this incident would have caused him to respond violently to Meers' sexual advances in a manner beyond his control. The trial court listened to this proffered testimony, but would not allow it to be presented to the jury. Meers was then convicted of murder, arson and theft, sentenced to life on the murder count and to various terms, to be served consecutively, on the other counts.
In rejecting Perryman's challenge to the life sentence for murder, Presiding Judge Strubhar stated that the trial court correctly excluded Dr. Smith's testimony, because Perryman's own defense argument was of the classic self-defense variety, i.e., that Meers came at him with a gun and that in the ensuing struggle Meers was killed. Smith's testimony would not have been relevant to this self-defense case. "The jury was properly instructed on self-defense and heat of passion manslaughter and rejected both based on strong evidence of guilt." However, the court found that the trial judge did commit certain errors in the sentencing hearing with respect to the non-capital offenses (theft and arson), and reduced the number of years to be served on those counts. A.S.L.
Federal Court Upholds Prison Ban on Gay-Depicting Porn
A state prison regulation prohibiting inmates from receiving pornography
depicting homosexual acts was not unconstitutional, the federal district court in New Hampshire ruled on Sept. 30. _Lepine v. Brodeur_, 1999 WL 814277 (not officially published). Plaintiffs, a group of inmates at New Hampshire's state prison, challenged a prison regulation which prohibited them from receiving pornography depicting homosexual acts. Depictions of other "fringe" sexual acts, such as bestiality and sadomasochism, were also prohibited under the regulation, but were not specifically challenged by the plaintiffs.
The opinion by District Judge McAuliffe states that the prisoners "appear to acknowledge" as legitimate the prohibition against homosexual pornography depicting acts between men, but argued that the exclusion of lesbian pornography violated their 1st Amendment rights. The court disagreed, finding that the regulation was reasonably related to legitimate penological interests.
Applying the factors set out in _Turner v. Safley_, 482 U.S. 78 (1987), Judge McAuliffe found that there was a valid and rational connection between the regulation and the prison's legitimate government interests in that the regulation assertedly helped reduce sexual harassment of female prison employees. Secondly, the prisoners had alternate means of exercising their 1st Amendment rights, the court reasoned, because the regulation did not ban all pornography. McAuliffe felt that the impact of accommodating the prisoners would be great, in that the lesbian pornography could exacerbate sexual harassment of female workers and contribute to a hostile work environment for them.
Finally, the court was not convinced that the regulation was an exaggerated response to the problem, and rejected the prisoner's proposed accommodation of prohibiting sexual offenders from receiving the pornography, on the ground that they might still receive the pornography from other prisoners. The plaintiffs, who apparently pursued the case pro se, did not appear to have resources to counter the government's justification for the regulation. _Dirk Williams_
Federal Court Rejects Heterosexual Man's Claim for Domestic Partnership Benefit
On Sept. 17, the U.S. District Court for the Northern District of Illinois dismissed a Title VII sex discrimination claim by a discharged policeman who contended that he would not have been fired had he been a woman coupled with a woman instead of a man coupled with a woman. _Cleaves v. City of Chicago_, 1999 WL 781664.
Byron Cleaves called in sick to his job as a probationary Chicago police officer due to the death of his fiancé's stepfather. Cleaves identified the decedent as his father-in-law and, when the actual relationship was identified, he was terminated for being absent without leave and filing a false report. In arguments that District Judge Bucklo described as "creative and clever but incorrect," Cleaves relied on Chicago's Domestic Partner Benefits Eligibility Ordinance, which provides bereavement leave to same-sex employees who cohabit and are registered with the city as domestic partners. Cleaves reasoned that had he been "an unmarried woman, rather than an unmarried man, the City would have granted him paid leave due to the death of the father of his female domestic partner"; thus, he was fired because of his gender. "Mr. Cleaves' contention, in effect, is that if the City extends bereavement benefits to unmarried same-sex couples who cohabit, then Title VII requires those same benefits to be extended to unmarried opposite-sex couples who cohabit."
The court noted that "Title VII, like most federal civil rights laws, is 'silent on the issue of marital-status discrimination,'" absent gender discrimination, and (without raising same-sex couples' inability to marry), that "the Ordinance does not involve treating men less favorably than women on the basis of marital status, but only treating unmarried same-sex couples differently from unmarried opposite-sex couples." The court held that the discriminatory effect of the Ordinance in this regard is not unlawful discrimination under Title VII, and thus that Cleaves did not state a claim for sex discrimination. _Mark Major_
Illinois Appeals Court Upholds Hate Crime Conviction for Homophobic Outburst in Pizza Parlor
In _People v. Rokicki_, 1999 WL 766113 (Ill. App., 2nd Dist., Sept 28), the Appellate Court of Illinois rejected a challenge to the constitutionality of the Illinois hate crime statute (7201 ILCS 5/12-7.1), and affirmed the defendant's sentence, which called for 2 years probation, performance of 100 hours community service and attendance at anger management counseling.
Kenneth Rokicki was charged with a hate crime based on a predicate offense of disorderly conduct. Rokicki's pretrial motion to dismiss based on the statute's unconstitutionality was denied, and he waived his right to trial by jury. At trial, it was found that Rokicki had gotten into an argument with a male server at a Pizza Hut in South Elgin, Illinois, in October of 1995. Witnesses testified that he called the server "Mary," "faggot," and "Molly Homemaker" during a harangue that lasted over 10 minutes and involved finger waving and fist pounding. The manager of the restaurant testified that he intervened during the incident and was trying to get Rokicki out of the restaurant, stating the only reason that he did not call the police then was because he thought Rokicki would have assaulted the server had the manager stepped aside to go to the telephone. Other witnesses, including the arresting officer and an employee at another Pizza Hut where Rokicki had gone to complain of his treatment at the South Elgin Pizza Hut, supported the claim of homophobic language.
Rokicki denied using homophobic language or threatening gestures at trial, claiming that he got into the argument because the server was handling food with unclean hands. He admitted calling the victim "Mary," stating that the victim would not stop talking and "it was like arguing with a woman."
Rokicki was convicted of hate crime, and his post-trial motion to dismiss on constitutional grounds was denied. He appealed, challenging the statute as unconstitutional where the predicate offense was disturbing the peace, but did not challenge the findings of fact. This
proved to be a fatal error on appeal. The Illinois hate crime statute addresses the motivation of the perpetrator to commit assault, battery, trespass, criminal damage to property, mob action or disorderly conduct and operates as an enhancement to the underlying offense. A person commits disorderly conduct when s/he knowingly "[d]oes any act in such an unreasonable manner as to alarm or disturb another and to provoke a breach of the
peace." This statute had been considered by other Illinois appellate courts, and was found to pass constitutional muster.
The court began by discussing statutes that make specific conduct illegal based on the motivation of the perpetrator, and those that enhance penalties for acts which are already criminal in nature. The former were ruled unconstitutional by the U.S. Supreme Court in _R.A.V. v City of St. Paul_, while the latter were deemed acceptable in _Wisconsin v. Mitchell_. Rokicki urged the appellate court not to follow decisions of the other Illinois appellate courts, which had accepted that the statute does not restrict conduct or speech which is otherwise lawful, but enhances penalties for conduct which would otherwise be illegal. The court rejected Rokicki's argument that conduct necessary to support a charge of disorderly conduct is judged on a sliding scale where the increasing offensiveness of the activity results in increasingly severe sanctions. The court ruled that speech alone could not sustain a charge of disorderly conduct, so his argument that he was being punished for his beliefs failed. Unfortunately for Rokicki, he was found guilty of more than just speech, and because he did not challenge the sufficiency of the evidence, he could not contest whether his actions went beyond mere speech. Likewise, the court did not accept Rokicki's argument that the application of the statute constituted content discrimination, because the legislature was free to determine that conduct resulting from certain classes of motivation created greater societal harms than others. The court also rejected the argument that the statue had a chilling effect on free speech because people might fear that hateful speech might be used to enhance penalties for other illegal conduct later on, as "speculative." _Steven Kolodny_
The Supreme Court has refused to take up again the issue of same-sex harassment under Title VII, on which it opined recently in _Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). On Oct. 12, the court denied a petition for certiorari in _Llampallas v. Mini-Circuits Lab, Inc._, 163 F.3d 1236 (11th Cir. 1998), No. 99-231, a case involving an employee who had maintained a lesbian relationship with her supervisor and ultimately was discharged.
The Boy Scouts of America filed a petition for certiorari with the Supreme Court on Oct. 25, seeking to overturn James Dale's victory in the New Jersey Supreme Court in his discrimination case brought under the New Jersey Human Rights Law, which bans sexual orientation discrimination in public accommodations. The Scouts claim that the New Jersey court erred by failing to recognize a 1st Amendment defense to enforcement of the law against them. _Los Angeles Times_, Oct. 26.
English newspapers breathlessly reported Oct. 28 that a gay male British couple had been declared the parents of surrogate twins born in the U.S. by a Los Angeles Superior Court judge. Barry Drewitt and Tony Barlow, from Chelmsford, Essex, England, will be the official parents of twins Aspen and Saffron, due to be born in December to an American mother, Rosalind Bellamy, who agreed to be their surrogate, carrying the embryos of another woman and the sperm of one of the fathers. _The Express_, Oct. 28; _The Age_, Oct. 29.
Following the lead of a California court, Boulder, Colorado, District Judge Roxanne Bailin has agreed to order that a lesbian couple be recognized as the parents of a child who is shortly to be born to one of them. The biological mother, Anne G., will share parenting duties with Jane K., her long-time companion, according to an Oct. 26 report in the _Denver Post_. Bailin said her Sept. 30 ruling was based on Colorado law, and was not a political action. Anne G. conceived through donor insemination.
Georgia Insurance Commissioner John Oxendine has decided not to appeal a judicial order that will allow the city of Atlanta to go ahead with administration of its ordinance authorizing domestic partner benefits for city employees. Oxendine had opined officially that such benefits would violate state insurance laws and regulations, but the Fulton County District Court disagreed, pointing to a Georgia Supreme Court decision upholding the validity of the city ordinance. Even though the benefits have not been available while this litigation was pending, about 25 employees have already registered their partners in anticipation of the court's ruling. _Atlanta Constitution_, Oct. 26.
No surprise, in light of the stubborn resistance of New York courts against any judicial erosion of the common law employment at will rule, that N.Y. Nassau County Supreme Court Justice Herbert Posner ruled that an employee handbook provision guaranteeing that the company will not discriminate based on sexual orientation is not legally enforceable. Although a majority of states have judicially adopted a "handbook exception" to the employment-at-will rule, finding that the express terms of employee handbooks become part of the contract of employment, no New York court has been willing to take this step. Thus, Jeffrey Mandel's discrimination suit against Computer Associates was dismissed for lack of a legal claim. Mandel, who lives in New York City, had also tried to claim that he could sue under the city's human rights ordinance, which bans sexual orientation discrimination, but Posner found that a city ordinance was not binding on a company that was located outside the city. _The Advocate_, Oct. 9-11, based on an article in _Newsday_ (we have been unable to confirm this story from any other source, and the opinion seems not to have been published yet).
The _Milwaukee Journal Sentinel_ reported Oct. 9 that the ACLU has reached a settlement with the Barron, Wisconsin, school board about a board action banning several gay-theme books from the district's high school library. The ACLU filed suit in the U.S. District Court in Madison, alleging a 1st Amendment violation. Although the district responded by restoring the books to the library, it imposed a requirement that parents give written permission for a student to check one of them out. Under the terms of the settlement, these restrictions will be dropped.
Alaska Superior Court Judge Peter Michalski has dismissed what remained of the lawsuit by Jay Brause and Gene Dugan seeking a marriage license, in light of the vote by Alaskans last year to amend their constitution to ban same-sex marriages. However, the dismissal will be appealed on the question whether same-sex couples might nonetheless be entitled to equal treatment in terms of public employee benefits programs.
Wyoming District Judge Barton Voigt reacted to a "gay panic" defense suggested by counsel for Aaron McKinney in his trial for the murder of Matthew Shepard by suggesting that such a defense may not be recognized in Wyoming. "I am concerned about this and where it is going," said Voigt, outside the presence of the jury after opening statements. "We do not have a gay panic defense. I don't know if I'm going to allow it." Defense counsel are arguing that although McKinney participated in killing Shepard, he should not be found culpable because he was caught in a drunken, drug-induced rage after a sexual advance by Shepard triggered memories of a sexual assault at the hands of another man during his childhood. _Associated Press_, Oct. 28.
On Sept. 28, the Illinois Supreme Court turned down a request by Cook County Circuit Judge Susan J. McDunn to overturn orders that had removed her from presiding over adoption cases brought by lesbian couples. An appeals court opinion found that McDunn had acted unlawfully in trying to assert continuing jurisdiction over the cases after they were withdrawn from her court due to her discriminatory comments and actions in the cases. _Chicago Daily Law Bulletin_, Sept. 29.
U.S. District Judge Carr ruled in _Wittenberg v. St. Charles Mercy Hospital_, 1999 WL 728102 (N.D.Ohio, Sept. 14), that the plaintiff did not suffer actionable hostile environment sexual harassment when she was subjected to hearing talk by a co-worker about the co-worker's lesbian relationships.
The 9th Circuit Court of Appeals has voted to reconsider _Thomas v. Anchorage Equal Rights Commission_, 165 F.3d 692 (9th Cir. 1999), in which a panel of the court ruled that a landlord who refused to rent an apartment to an unmarried heterosexual couple because of the landlord's religious beliefs had a 1st Amendment privilege to violate a local ordinance forbidding housing discrimination on the basis of marital status. The en banc reconsideration will involve a panel of 11 judges. The respondent's petition for en banc review had been joined by numerous state attorneys general and municipalities. _San Francisco Chronicle_, Oct. 20.
The _N.Y. Post_ reported Oct. 27 that Richard Bracco, who identifies himself as a "heterosexual Italian male," filed a sex discrimination suit against Bear Stearns, a major investment company, claiming he was discharged for when he complained that his male boss had demanded sexual favors from him if he wanted a bonus. According to the _Post_ story, Bracco claims that when he asked for a bonus in May 1997, managing director James Drury replied with a sexual request, and when Bracco responded with stunned silence, Drury allegedly said, "Whatever," and left the room. Bracco also cited several other instances of what he considered improper sexual behavior by Drury, and said that Drury called Bracco offensive nicknames and engaged in making racial slurs, and that when Bracco complained, he was told he would be "killed, fired, or both." Drury was discharged in July 1998, according to Bracco's complaint, but is named as a co-defendant in the suit.
The Texas Court of Appeals, 14th District will hear oral argument Nov. 3 in the pending challenge to the Texas sodomy law brought by two gay men who were arrested for engaging in consensual sex in their apartment. _Garner & Lawrence v. State of Texas_. Garner and Lawrence are represented by local counsel Mitchell Katine and Lambda Legal Defense & Education Fund. A.S.L.
Gay Legislative Agenda Sweeps California
October 2 was an extraordinary day for the lesbian and gay community in California. Governor Gray Davis signed into law three bills intended, in whole or in part, to protect or grant rights to lesbians and gay men, and Davis appeared, together with President Bill Clinton, at a gala fund-raising dinner sponsored by Access Now for Gay and Lesbian Equality (Angle) at the Beverly Hilton Hotel in Los Angeles. The event raised about $850,000 to support Democratic House candidates in the 2000 general elections.
The bills Davis signed were passed in a burst of end-of-session activity by the California legislature during the previous month. Perhaps the most significant was A.B. 26, a measure establishing a state registry for domestic partners, requiring hospitals to recognize domestic partners for purpose of visitation, and extending eligibility for health care coverage to the domestic partners of state and local government workers. The law does not extend complete equality of opportunity to enter into a domestic partnership, however; while same-sex partners may register, opposite-sex partners may register only of the couple is age 62 or older. (Evidently, the advocates of domestic partnership ran into the cost issue here; domestic partnership health benefits are relatively inexpensive if limited solely to same-sex couples, but the expense is usually more than doubled if they are also extended to opposite-sex unmarried couples.) Although public employees in many municipalities and several states have obtained domestic partnership health coverage through collective bargaining, executive orders, municipal ordinances, or litigation, California now joins Hawaii as the second state to establish legislatively a statewide system for domestic partnership recognition (in Hawaii under the rubric of "reciprocal beneficiaries").
The other two measures are also quite significant. One adopts a state ban on harassment or discrimination against students or teachers on the basis of sexual orientation, by amending the state's education code to add "sexual orientation" to other characteristics already listed there. Three other states, Wisconsin, Massachusetts, and Connecticut, already have similar rules. Finally, approving a measure that had been vetoed by two of his predecessors, Davis approved A.B. 1001, an amendment to the Fair Employment and Housing Code that will add "sexual orientation" to the other characteristics specified there, thus ending a peculiar situation in which sexual orientation alone among the non-discrimination policies was contained in the Labor Code, with a disastrously short statute of limitations and no active administrative enforcement agency. The new measure, by moving this policy to the Fair Employment and Housing Code, gives the FEH Commission jurisdiction to accept, investigate and prosecute discrimination claims with a more reasonable statute of limitations, and makes clear that both housing and employment discrimination are banned.
Not bad for a day's work. The proud legislative sponsor of the education measure was openly-lesbian Assemblymember Sheila Kuehl, and the equally proud legislative sponsor of the domestic partnership measure was openly-lesbian Assemblymember Carole Migden. Conservative groups have set their sights on a court challenges to the measures, hoping to win judicial declarations that the non-discrimination requirements may not be applied religious schools and colleges, religious bookstores, counseling centers and other organizations that might not come within the tightly worded exemption for religious organizations. _Los Angeles Times_, Oct. 3; _New York Times_, Oct. 4, 1999. A.S.L.
As part of a settlement of a sodomy law challenge brought by the ACLU in Maryland, state officials agreed to an injunction barring them from enforcing art. 27, sections 553 (sodomy) and 554 (unnatural or perverted sexual practices) of the Maryland Code against consensual, non-commercial, private sexual activities. The new pocket parts of the Maryland Code have been published, and the annotations under those sections reflect the lawsuit settlement, stating that Section 553 and Section 554 "do not apply to consensual, non-commercial, private sexual activities, and the State and its agents and employees are enjoined from enforcing those provisions in those circumstances."
Iowa Governor Tom Vilsack signed an Executive Order banning discrimination in state employment on the basis of "race, creed, color, religion, national origin, gender, gender identity, sexual orientation, age, marital status, or physical or mental disability." Although many governors over the past twenty-five years have ordered an end to sexual orientation discrimination within the executive branch of their state governments, Vilsack is apparently is apparently the first to have taken the next step to include "gender identity," thus banning discrimination against transgendered persons and cross-dressers. When an anti-gay activist called on the legislature to overturn the order, Vilsack opined that the Legislature has no authority in the matter. _Des Moines Register_, Oct. 19. The next day, Republican leaders of the legislature, who had criticized the governor, acknowledged that in fact the Legislature's own employment guidelines also mentioned "sexual orientation" as a prohibited ground for discrimination. The leaders claimed they were unaware of this provision, which was contained in a set of guidelines adopted by legislators ten years ago. While sheepishly conceding on the sexual orientation point, some of the Republican legislators nonetheless criticized the governor for protecting "cross-dressers and transvestites," asserting that was "going too far." _Des Moines Register_, Oct. 20.
The city council of Madison, Wisconsin, voted overwhelmingly on Oct. 5 to adopt a domestic partnership benefit plan for the city's employees. The city will avoid the difficulties of obtaining domestic partnership insurance coverage by making it a reimbursement plan. City employees who obtain health insurance coverage for their eligible domestic partners and dependents will be reimbursed up to $300 a month for the cost of obtaining such coverage. The council hit on this number because it represents the differential between the city's present cost of insuring single employees and ensuring employees who are married. Domestic partners who are eligible for insurance coverage from their own employer will not be eligible to participate in the city program. The measure passed on a vote of 14-5 after Mayor Sue Bauman spoke in favor of the proposal. _Press Release from Action Wisconsin_.
The Ashland, Oregon, City Council voted Oct. 5 to pass domestic partnership legislation that will allow same-sex couples to register as partners. The council acted on a request by the Lesbian, Gay, Bisexual & Transgender Political Caucus of Southern Oregon. _Portland Oregonian_, Oct. 6.
In the wee hours of the morning on Sept. 28, Henderson, Kentucky, commissioners voted 3-2 to enact an ordinance banning sexual orientation discrimination in employment, housing and public accommodations. _Evansville Courier & Press_, Sept. 30.
CNN reported Sept. 29 that a gay man from China, identified on as Tim Z., has been granted political asylum in the United States based on evidence that he was mistreated in his homeland due to his sexual orientation. Said Tim, "I was personally, physically harmed. I was forced to receive aversion therapy, and I was harassed by the policemen. They beat me up and sexually abused me." Asylum may be granted if an applicant shows a well-founded fear of persecution on grounds of membership in a particular social group. The Immigration Service now considers gay people to be a social group for this purpose. The Chinese Foreign Ministry reacted to the grant of asylum by insisting that China's laws guarantee legitimate rights to every citizen, but that some individuals "find assorted reasons, even lies, in order to obtain foreign residence permits."
Albuquerque, New Mexico, voters were in a contrary mood on Oct. 5, when they voted down a majority of proposed city charter amendments, including one that would have added "sexual orientation" to the non-discrimination categories contained in the charter. The vote was 19,278 to 15,524. In the same balloting, voters rejected salary increases for the mayor and the council. _Albuquerque Journal_, Oct. 6.
"Don't Ask"? Well, maybe a little bit was chipped away from the worst aspects of the U.S. military's anti-gay policy when President Bill Clinton signed an executive order on Oct. 6 increasing the penalties in the military for crimes motivated by hatred based on the victim's race, religion, ethnicity or sexual orientation. In addition, the executive order creates a confidentiality privilege in criminal matters for conversations between service members and psychotherapists. It is common in the military for members to talk about their sexuality with therapists, unaware that the conversations will likely be reported to their commanding officers. Now, the combination of professional ethical obligation and the executive order may shield such conversations, at least in criminal matters. _New York Times_, Oct. 7.
Trying to assert some pressure on Congress to broaden the federal hate crimes law to add sexual orientation, President Clinton cited this issue when vetoing the appropriations bill for the departments of Commerce, Justice and State. Such a measure had passed the Senate, but conferees between the Senate and the House agreed to drop it from the final bill. _Washington Post_, Oct. 27.
The Jefferson County, Kentucky, Fiscal Court, a county legislative body, voted 3-1 on Oct. 12 to adopt an ordinance that forbids discrimination on the basis of sexual orientation in housing, employment and public accommodations. The city of Louisville, which sits in Jefferson County, had previously adopted a sexual orientation ordinance that only applies to employment. The new enactment raises questions of overlapping jurisdiction: will residents of Louisville who encounter discrimination in public accommodations on account of sexual orientation be able to take their complaints to the City-County Human Relations Commission. Jefferson County Attorney Irv Maze told the _Louisville Courier-Journal_ (Oct. 13) that "he believes the broader county law should apply in Louisville," but Louisville City Law Director Bill Stone said he will have to study the measure further before determining whether it will be enforced within the city. Normally, county measures are enforceable in the city if the city does not have a similar regulation. The new ordinance is part of a sudden surge of gay rights legislation in Kentucky, where the Lexington-Fayette Urban County Council and the Henderson City Commission passed similar measures in September. There is also a statewide bill on file, but its supporters have indicated that enactment in the current session is unlikely. A.S.L.
Law & Society Notes
Massachusetts Supreme Judicial Court nominee Judith A. Cowin, a Superior Court Judge, is on the hot-seat due to her handling as a trial judge of a sexual orientation discrimination case brought against a Catholic hospital. Cowin presided over a jury trial in which John R. Walsh was awarded $625,000 in compensatory damages and $650,000 in punitive damages against Carney Hospital on claims that he was subjected to anti-gay harassment and discriminatory discharged because he was perceived as being gay. Based on this case, and particularly on Cowin allowing plaintiff's lawyer to examine an individual defendant, a nun who worked at the hospital, as to whether her religious views about homosexuality motivated her conduct toward Walsh, Cardinal Bernard F. Law wrote to the Governor's Council claiming that Cowin's conduct of the case left her "open to serious charges of anti-Catholicism." In an article published in the _Boston Globe_ on Oct. 6, Eileen McNamara criticized the Cardinal for having failed to inquire into the details of Cowin's handling of the case before placing an anti-Catholic label on her.
Do Tell? The _Los Angeles Times_ reported Oct. 13 that the Air Force, alarmed at the number of highly qualified members who are leaving due to homosexuality, has adopted a new approach to administering the "don't ask, don't tell" policy - retroactive untelling. Officials are now willing to accept recantations of statements that somebody is gay, so long as the recantation takes place within a few days of the original statement. In addition, recruits for the first time are being allowed to explore the details of the military policy with Air Force lawyers in confidential discussions before deciding whether they want to recant their statements. Sounds like the Air Force has discovered a new level of hypocrisy.
The Ford Motor Company of Canada and the Canadian Auto Workers Union have adopted a collective bargaining agreement that provides benefits for same-sex partners of Ford employees in that country, according to a report by gay journalist Rex Wockner based on an A.P. story. * * * * The Boeing Co. has announced that it will offer benefits covering same-sex partners of salaried non-union employees sometime next year. Such employees constitute about half of Boeing's 202,000 member workforce; benefits for unionized workers will await negotiations with the unions. However, a union spokesperson speculated that this unilateral move was intended to "sabotage" the beginning of collective bargaining on a new contract, which was to begin shortly. _Associated Press_, Oct. 24. A.S.L.
Ontario Adds Same-Sex Partners to 67 Laws
Facing a Nov. 20 deadline to comply with the Supreme Court of Canada's May 20 decision in M. v. H. (on the exclusion of same-sex partners from a definition of spouse that includes unmarried opposite-sex partners, see  LGLN 85), the Conservative Government of Ontario pushed a bill through the unicameral Provincial Parliament in three days (Oct. 25-28). The grudging nature of the reform was made absolutely clear in the short title of Bill 5, the _Amendments Because of the Supreme Court of Canada Decision in M. v. H. Act_, 1999 (available at http://www.ontla.on.ca/Documents/documentsindex.htm), and in the Ministry of the Attorney General's press release of Oct. 25. Attorney General Jim Flaherty said: "The only reason we are introducing this Bill is because of the Supreme Court of Canada decision. ... Our proposed legislation complies with the decision while preserving the traditional values of the family by protecting the definition of spouse in Ontario law."
The Act provides same-sex partners with the same rights and obligations as unmarried opposite-sex partners, but does not extend any rights or obligations that are unique to married opposite-sex partners. The Act amends 67 statutes, in most cases by inserting a separate definition of "same-sex partner" alongside the existing definition of "spouse" (which includes married and unmarried opposite-sex partners).
The Ontario Government could have complied with _M. v. H._ merely by amending the single definition of "spouse" struck down in that case. Instead, it chose a comprehensive reform to avoid further litigation with regard to each statutory definition. The Act is a huge step forward for the lesbian and gay community in Ontario, which had seen a similar omnibus bill fail in 1994. However, the "separate but equal" treatment of same-sex partners is likely to be challenged. On August 14, 1998, the Federal Court of Canada (Trial Division) held in _Canada (Attorney General) v. Moore & Akerstrom_ that a separate definition of "same-sex partner" is discriminatory. _Robert Wintemute_
English Lesbian/Gay Law Notes
The BBC reported on Oct. 5 that the Association of Train Operating Companies has instructed its members to recognize same-sex partners of employees as being entitled to the same perks as partners of heterosexual couples. In England, as in Canada, unmarried heterosexual partners are customarily accorded a variety of privileges by employers. Even though the European Court of Justice ruled last year in _Grant v. South West Trains_ that denying similar benefits to same-sex partners does not violate the European charter of rights, South West Trains decided once the litigation had run its course to extend benefits voluntarily.
The _London Independent_ reported Oct. 11 that Lord Chancellor Irvine has changed the judicial application form for appointment to the bench in order to encourage more gay and lesbian lawyers to apply. The form formerly asked persons to state their sexual orientation, which was seen as a deterrent for those who did not wish to "come out" and preferred not to lie on the form. Earlier this year, Irvine had stated that "homosexuality should not be a bar to appointment."
On Oct. 14, the _London Independent_ reported that a senior female executive had been dismissed from her firm for sending an email to the firm's personnel department expressing disgust at the homosexual practices of one of her employees. According to the report, the man about whom she was complaining saw a copy of her email and reported it to a higher-up executive.
Dame Elizabeth Butler-Sloss, the new president of the High Court's Family Division, told the press that people should not "close their minds" to the idea that gay couples or unmarried single parents might be suitable to adopt children. "We live in a different world from that in which I started in the law," she said. "Then I was surprised and dubious about the stability of children living in families with two parents of the same sex. But over the years all research has shown that for some children this turns out to be the best that can be available for them. Consequently, it would be quite wrong when looking at the welfare of the child not to recognize that different children will need different types of parents. We should not close our minds to suitable families who are clearly not within the old-fashioned approach." _The Express_, Oct. 16. However, her statement apparently did not carry much weight with the Blair government, as Health Minister John Hutton announced to a meeting of social workers a few days later that the government did not propose to change the law, which at present permits only married couples or individuals to adopt children. _Daily Mail_, Oct. 19.
The Constitutional Court of Columbia has issued two important rulings concerning the rights of intersexuals, persons who are born with apparently abnormal genitals. Standard medical practice in the U.S. and most of the rest of the world is for the delivering physician to tell the parents that immediate surgery is necessary to insure that the child will not be burdened with gender abnormality. In most cases, this means either removing an undersized penis and constructing an artificial vagina, or cutting down an abnormally large labia, with the surgery being done while the infant is still too young to give its own informed consent. In recent years, a movement has emerged among intersexuals seeking to establish that such surgery should be postponed until the individual is old enough to give his or her own informed consent, on the ground that in many cases the outcome of the surgery is not to the physical or emotional benefit of the individual. In its recent decisions, the Constitutional Court agreed with many of the arguments made by intersexual groups, holding that with the exception of genuine medical emergencies, the surgery should be postponed until the individual is old enough to give informed consent. We are awaiting English translation of the lengthy opinions in the two cases, and will report further details when they are obtained. For more information on intersexuals, see the website maintained by the Intersexual Society of North America, <www.isna.org>.
Gay journalist Rex Wockner reported Sept. 27 that the final draft of Venezuela's proposed new constitution would include a provision forbidding sexual orientation discrimination. If such a clause was adopted, Venezuela would become the fifth nation to ban such discrimination in its constitution, following Canada (by interpretation of the Charter of Rights), Ecuador, Fiji, and South Africa. However, a subsequent internet posting by activists in Venezuela reported, to their disappointment, that the draft that was finally released did not contain the sexual orientation provision.
The _South China Morning Post_ (Oct. 13) reports that a court in Beijing, China, has declared homosexuality to be "abnormal" and "unacceptable to the public." The Sept. 30 ruling from the Xuanwu District Court came in a defamation action by Xu Yanguang against Fang Gang, an author, and his publisher, the Jilin Publishing firm. Xu alleged that Fang's recent book on homosexuality in China alluded to him as gay without any proof, damaged his reputation and caused him emotional distress. The court awarded damages of 9,000 yuan.
In an email announcement to participants in last summer's conference on same-sex relationships at King's College, London, Francois Baur of Zurich reported that the Swiss National Council (the countries legislative body) voted 105-46 in favor of a resolution instructing its Law Commission to draft a Same-Sex Partnership Bill. Once the bill is submitted, it will have to pass both chambers of the legislature, and it is likely that a referendum will be requested by opponents.
The _Boston Globe_ reported Oct. 3 that a new trend has developed in Brazil for the nation's male soccer stars, avowedly heterosexual, to appear naked in the country's leading gay magazine, whose circulation has allegedly increased by 400 percent since the athlete's photos appeared. The article also reported that participation in a Gay Pride March in one of the large cities has more than doubled over the past year, and that 74 of the nation's municipalities have passed laws forbidding sexual orientation discrimination. But all is not without controversy: the pin-up stars have been benched by their coach, who said their action is giving their team a bad image.
The _Chicago Tribune_ reported Sept. 30 that Uganda President Yoweri Museveni, insisting that UN human rights conventions do not necessarily apply to Africa, has ordered the arrest of all homosexuals in Uganda. "I have told the Criminal Investigation Department to look for homosexuals, lock them up and charge them," said Museveni. Ugandan law prescribes life imprisonment for engaging in homosexual acts. Citing the Bible, Museveni expressed outrage at reports that some gay people had held private marriage ceremonies in the country.
The _Washington Blade_ reported Oct. 22 that U.S. District Judge Vaughn Walker dismissed a lawsuit by the parents of a San Leandro public school student claiming that their constitutional rights were violated when their son's teacher made pro-gay comments in the classroom. Walker rejected the parents' arguments in _Godkin v. San Leandro School District_ that their right to free exercise of religion, including the right to direct their child's religious upbringing, was abridged by the teacher's remarks.
Veronica Berrill, a Connecticut public school teacher, has agreed to settle her case against Neal and Kathleen Houde, who wrote to Berrill's employer complaining about her action in banning anti-gay comments in her classroom and demanding that Berrill be investigated by the school board. Berrill had filed a defamation action in state court, which was scheduled to go to trial in Danbury on Oct. 5, but instead the Houdes agreed to a restriction on their actions and a payment of unspecified monetary damages to Berrill. _Washington Blade_, Oct. 22.
The U.S. Senate voted Oct. 7 to confirm President Clinton's nomination of openly-gay attorney Robert Raben, formerly a staff assistant for U.S. Rep. Barney Frank, to become the Assistant U.S. Attorney General for Legislative Affairs. In his new position, Raben will be one of the chief lobbyists for the Clinton Administration in Congress. The White House and lesbian/gay political groups did not publicize the Raben nomination while it was being processed in the Senate, to avoid stimulating anti-gay forces from making it a cause celebre, but Raben has always been openly-gay in his Capitol Hill jobs. Raben's sub-cabinet position makes him one of the highest ranking openly-gay appointees in the Clinton Administration. _Washington Blade_, Oct. 15.
Timothy Westmoreland, an openly-gay lawyer and AIDS policy expert who served for many years as an aide to U.S. Rep. Henry Waxman (D.-Cal.), has been appointed by the Clinton Administration to become Director of the Center for Medicaid and State Operations in the U.S. Dept. of Health and Human Services. As such, Westmoreland will be placed in charge of administering the huge federal Medicaid program, which finances a majority of the HIV-related health care in the U.S. _American Political Network; American Health Line_, Sept. 27.
The International Association of Lesbian & Gay Judges, meeting in Seattle during the Lavender Law Conference, has elected Acting N.Y. Supreme Court Justice Michael R. Sonberg to be its news president, succeeding Massachusetts Superior Court Judge Linda E. Giles, who had served as president since 1995. The Association's first president was Los Angeles, California, Superior Court Judge Stephen M. Lachs, who retired from the bench recently and was the first openly gay lawyer to be appointed to the bench in the U.S., by Governor Jerry Brown in 1979. Justice Sonberg is also president of the Association of Lesbian & Gay Judges in New York, and serves as secretary of the Association of the Bar of the City of New York, the nation's largest municipal bar association. The International Association has 50 members representing 10 U.S. states, two Canadian provinces, and Great Britain, and carries an additional 50 judges and judicial officers on its mailing list. _Press Release from International Association of Lesbian & Gay Judges_. Judge Lachs was recently honored by Lambda Legal Defense & Education Fund at its October 17 Liberty Awards event in Los Angeles, at which the other honorees were gay youth advocate Virginia Uribe and (posthumously) civil rights leader Bayard Rustin, who had been an openly-gay advisor to Rev. Martin Luther King, Jr. _Lambda Press Release_, Oct. 14.
The Center for Lesbian and Gay Civil Rights, in Philadelphia, has bestowed its Equality Advocate Award for 1999 on Christine Biancheria, an openly-lesbian attorney who was hailed by the Center for "leading major gay rights litigation in Pennsylvania. Her lawsuit against the University of Pittsburgh has already uncovered anti-gay bias at the highest levels." She has also litigated on the second-parent adoption issue, and is a partner in her own firm, Biancheria, Eriksen, Maliver & Angell, P.C., in Pittsburgh. The Nov. 4 awards ceremony will be co-sponsored with the Center by Women's Law Project and the ACLU of Pennsylvania. _Press Release from Center for Lesbian and Gay Civil Rights_, Oct. 27.
The _Chicago Daily Law Bulletin_ reported Oct. 18 that Nancy J. Katz has become the first openly-lesbian attorney in Illinois to be selected for a seat on the Circuit Court bench. Katz was selected by secret ballots cast by the 261 Circuit Court judges to fill vacancies on the court. She was one of 30 candidates selected byt eh Associate Judge Nominating Committee, chaired by Chief Judge Donald P. O'Connell. Fifteen of the nominees were selected for the bench by the balloting. Katz is a 1983 graduate of Chicago-Kent College of Law, and has been working as an assistant general counsel in the Cook County office of the Illinois Department of Children and Family Services. She served on the Chicago Commission on Human Relations' Advisory Council on Gay and Lesbian Issues from 1990 to 1992. According to the _Bulletin_, another lesbian attorney, Mary S. Trew, has announced she plans to run in the March Democratic primary for a Circuit Court vacancy. Two openly-gay men are already serving on the Circuit Court: Thomas R. Chiola and Sebastian T. Patti, both of whom were elected by the public.
The Stonewall Bar Association in Atlanta, Georgia, presented its Outstanding Service Award on Oct. 28 to Stephen R. Scarborough, a staff attorney at the Southern Regional Office of Lambda Legal Defense & Education Fund, for his efforts in helping to achieve the invalidation of Georgia's felony sodomy law. Scarborough wrote an amicus brief to the Georgia Supreme Court in the historic case of _Powell v. State of Georgia_ in which the law was invalidated; Stonewall was one of the co-signers of the brief, along with Lambda, the Georgia Association of Criminal Defense Lawyers, the Georgia Equality Foundation, and the Atlanta Executive Network. _Lambda Press Release_, Oct. 27. A.S.L.
AIDS & RELATED LEGAL NOTES
Supreme Court Refuses to Review Discrimination Claim Against Karate School
The U.S. Supreme Court announced Oct. 4 that it will not review the 4th Circuit's decision in _Montalvo v. Radcliffe_, 167 F.3d 873 (1999), cert. denied, 1999 U.S. Lexis 4949 (Oct. 4), in which the lower court ruled that an HIV+ youngster could be denied admission into a karate class because of the risk of transmission he would pose to other students in the class. The defendant karate school had offered to provide private instruction to the child, but refused to allow him to participate in the same class with his friends, arguing that to do so would present a "significant risk" of transmission. The 4th Circuit, following the approach of many federal courts in cases involving the employment rights of HIV+ health care workers, purported to apply the risk analysis described by the Supreme Court in its famous _Arline_ decision, and found that the consequences of transmission of HIV are so severe that even though there is only a very small risk that transmission would occur, the overall risk of harm is significant. In a news report about the Supreme Court's denial of review published on Oct. 5, the _Washington Post_ reported: "According to the Centers for Disease Control and Prevention, there has never been a documented case of HIV spreading through contact during a sporting event." According to the news report, young Michael Montalvo, now 15, has been orphaned since the case was brought and is living with relatives. Montalvo had to move from the Richmond area, as news about his HIV status spread and resulted in harassment directed against himself and his family. A.S.L.
California Appeal Court Rules Blood Banks Association Not Liable in 1984 HIV Transfusion Case
A 3-judge panel of the California 4th District Court of Appeal ruled Oct. 28 that the American Association of Blood Banks could not be held liable on a negligence theory for a case of transfusion AIDS dating from December 1984. _N.N.V. v. American Association of Blood Banks_, 1999 WL 977982. In so ruling, the court took on and severely criticized the contrary decision by the New Jersey Supreme Court in _Snyder v. American Association of Blood Banks_, 676 A.2d 1036 (1996).
N.N.V. was an infant requiring surgery in the fall of 1984. The surgery was scheduled to take place in December. His parents claim that prior to the surgery they asked a registered nurse on duty about the possibility that they could round up family and friends to be blood donors, but the nurse could recollect no such conversation and hospital records suggest that a different nurse was on duty at the relevant time. In any event, blood bank blood was used during the operation. A few years later, the V. family was notified that one of the blood donors was "dying from AIDS," and subsequently N.N.V. was diagnosed as HIV+.
In this lawsuit, N.N.V. contends that the Association, a voluntary association that develops the standards by which blood banks are accredited in the U.S., had been negligent by not adopting a variety of methods of screening out HIV-infected donors by the relevant date. The CDC and FDA had concluded that AIDS was probably caused by a blood-borne pathogen by early 1983. In the spring of 1984, the NIH announced that Dr. Gallo had isolated the suspect virus, and that a screening test for the blood supply would be developed and made available in 6 months, but the test was not actually made available until March of 1985. In the meantime, there was controversy over steps that blood banks could take to protect their customers from HIV infection in the absence of a screening test. One proposal, which was politically hot, was to directly question donors about their sexual practices and to exclude gay men and members of other "high risk groups" from donating blood. Another proposal was to routinely advise patients in elective surgery cases to donate their own blood in advance or having family members or others known to them donate blood for their operation. Another proposal was to test all donated blood for hepatitis B, as studies had shown that almost all persons diagnosed with AIDS or pre-AIDS conditions at that time also tested positive for hepatitis B.
The Association did not recommend any of these steps. Rather, the Association, along with other public health organizations, embraced the idea of giving donors a written explanation of what was known about AIDS transmission and offer them the opportunity to indicate whether their blood should be used for transfusions or merely for research purposes. The trial court dismissed the case against the Association, finding that it did not have a duty to the plaintiff.
In affirming by a 2-1 vote, the Court of Appeal agreed that the Association did not have a duty to the plaintiff in this case. Reviewing a multitude of factors that have been considered by California courts in deciding whether a defendant has a duty of care in a particular set of circumstances, the court concluded that there would only be a duty in this case if it were clear that options existed which could be said with reasonable certainty at the time to have substantially reduced the risk of HIV transmission, and the court concluded that as of December 1984 such options were not available. The court emphasized that it saw no moral blame for the way in which the Association dealt with the unfolding AIDS epidemic, and asserted that imposing a duty would not advance any public policy of preventing future harm.
The panel was unanimous in concluding that if there were a duty, the Association's activities would not have breached that duty, with the dissenter on the duty issue concurring with the majority on this part of the opinion.
The court was highly critical of the _Snyder_ decision, in which the New Jersey Supreme Court found that the Association had breached its duty in connection with another 1984 transfusion AIDS case. According to the court in _N.N.V._, the New Jersey court had incorrectly found that the Association had acted as if it did not believe the evidence that AIDS might be transmitted through tainted blood transfusions. But the _N.N.V._ court concluded that the Association had accepted such evidence, and had issued a variety of recommendations to its members consistent with a view that AIDS could be transmitted and practical steps should be taken to cut down the risk. What appeared decisive for this court was its conclusion that at the time there was no proof that any of the options available would have significantly reduced the risk of AIDS transmission, and that, in particular, there was no proof that adoption of any of those methods would have prevented the infection of N.N.V., in light of the scant information about the donor with AIDS in this case. A.S.L.
Missouri Appeals Court Upholds Jury Verdict Against Hemophiliacs in HIV Transmission Cases
In a unanimous decision issued Oct. 5, a three-judge panel of the Missouri Court of Appeals, E.D., Div. 3, rejected a challenge to a jury verdict that absolved Alpha Therapeutic Corp. of liability for HIV infections incurred by a group of hemophiliac patients who were using its blood-clotting products during the early 1980s. _Doe v. Alpha Therapeutic Corp._, 1999 WL 793788.
The main theoretical interest in the case comes from the court's consideration of the learned intermediary defense that was successfully used by Alpha. The trial court instructed the jury that if the plaintiffs' doctors were aware of AIDS risks from use of the clotting products at the time they were being prescribed (and at a time when Alpha could be held to have a duty to notify patients, through their physicians, of the risks), then it would have to rule in favor of Alpha because the physicians' failure to warn their patients would interrupt the chain of causation. On appeal, the plaintiffs objected to this charge, but it was sustained by the court after a brief review of Missouri law on the subject of learned intermediaries and proximate cause. The court also rejected a claim by the plaintiffs that their counsel had been inappropriately limited in their opportunities to depose a key government witness, a doctor from the Food and Drug Administration who testified concerning the state of knowledge about AIDS and hemophilia at various times relevant to the case. A.S.L.
N.Y. Court Refuses to Bar Tardy HIV-Transfusion Suit Due to Hospital's Alleged Misconduct
Although she found that the statute of limitations would bar a negligence claim against a hospital based on a 1984 HIV transfusion incident that came to light in 1987 where the litigation was not commenced until 1998, N.Y. Supreme Court Justice Lorraine Miller refused to dismiss the action, finding that the hospital may have deliberately misled the plaintiff as to the cause of her problems so as to delay the filing of her suit. _Fuchs v. New York Blood Center_, NYLJ, 10/7/1999 (N.Y.Sup.Ct., N.Y. Co.).
The plaintiff received a certified letter from a Lenox Hill Hospital nurse in November 1987, asking her to call as soon as possible to discuss "recently received information relevant to your hospitalization at Lenox Hill Hospital, which may be of importance to your health." When the plaintiff contacted the hospital, she was told that N.Y. Blood Service, the "alleged provider of the transfused blood," had notified the hospital that the donor of one of the units administered to the plaintiff had tested positive for HIV. Plaintiff had herself tested and was positive. She claims that a hospital representative told her and her husband that there was nothing the hospital could have done to prevent her being infected, and got her to sign a release "by threatening to withhold the medical treatment that could save her life unless she promised to not discuss her condition with anyone an to absolve Lenox Hill from liability." The court also noted that the nurse who dealt with the plaintiff was from the hospital's risk management office, and surmised that the hospital was trying to do whatever it could to deter lawsuits over HIV transfusion. On this basis, Justice Miller concluded that it would be equitable to refuse to dismiss the complaint as time-barred, and instead to require litigation over the question whether the facts support allowing the case to go forward.
However, Miller did grant a motion for summary judgment by N.Y. Blood Center, which had adduced evidence showing that it had not supplied the blood that was used for the plaintiff's transfusions. Although N.Y. Blood Center did have a contract to supply blood to Lenox Hill, it turned out that the blood used in this procedure had been collected by Lenox Hill in its own facility and was tested by a different testing service. All the plaintiff had to counter this was evidence of the supply contract, which Miller found insufficient to withstand the motion, characterizing the plaintiff's claim against the Center as being founded on "rank speculation." A.S.L.
Illinois Prisoner Loses Bid to Challenge HIV Testing for Class Participation Due to Pleading Deficiencies
An Illinois state prisoner falls back to square one to bring civil rights and ADA claims against prison officials because of bad pleadings. _Murdock v. Washington,_ 1999 WL 778389 (October 1). The U.S. Court of Appeals for the 7th Circuit granted defendants' motion to dismiss but with prejudice.
In August of 1997, Robert Murdock, a state prisoner, filed a civil rights action under 42 U.S.C. 1986 and under the Americans with Disabilities Act. The defendants were eight prison officials of the Taylorville Correctional Center. Murdock alleged that the defendants violated the ADA and the Fourteenth Amendment by not allowing him to participate in the prison's culinary arts program because he refused to submit to an HIV test. Murdock also claimed that the defendants further violated the Fourteenth Amendment when they confiscated his personal property during a "shakedown." Defendants moved to dismiss for failure to state a claim upon which relief can be granted, and Murdock moved for appointment of counsel and for entry of a default judgment against one defendant who failed to answer timely or file a motion to dismiss. The defendants responded by amending their motion to dismiss and filing a response to the motion for default notifying the court that they had inadvertently omitted a defendant's name when the motion to dismiss was filed. The district court denied Murdock's claim for counsel and allowed defendants to amend their motion to dismiss. Murdock's motion for default was denied as moot since the omitted defendant had joined the motion to dismiss.
In a per curiam decision, the court of appeals agreed with the district court that Murdock essentially "pleaded himself out of court." Murdock failed to state a claim under the ADA because he failed to allege that the defendants perceived him to be disabled, and because he alleged that he was not HIV+, thereby failing to qualify himself as a person with a disability. Further, Murdock did not allege that if he did test positive, he would have been denied participation in the cooking class. Thus, he failed to allege that he was barred from the class because of a disability. The court distinguished this case from an employment-job applicant case wherein medical testing is limited and does not require the applicant to be disabled to make a claim. The court of appeals added that Murdock also alleged that Taylorville required all members of the class to test for HIV, thereby failing to establish that the prison discriminated against him by insisting that he do so.
Turning to the due process claims, the court concurred again with the district court, stating that Murdock had no protected property or liberty interest in the cooking class. As for the confiscated property, Murdock had an adequate post-deprivation remedy in state court. Lastly, the court of appeals ruled that the district court did not abuse its discretion in denying the motion for appointment of counsel or the motion for default judgment stating, that it properly concluded that Murdock was capable of presenting his case. _K. Jacob Ruppert_
Hawaiian Supreme Court AIDS Phobia Case With No Showing of Physical Harm
In _John & Jane Roes v. FHP, Inc._, 1999 WL 793763 (Oct. 6), the Supreme Court of Hawaii recognized a cause of action for negligent infliction of emotional distress based upon fear of developing AIDS following exposure to HIV+ blood, even though the plaintiffs did not contract HIV and there was no other actual physical or other injury or damage.
The plaintiffs in this case were baggage handlers at Honolulu International Airport. One of the plaintiffs moved a bag containing HIV+ blood specimens, which spilled out onto his hands. Two co-workers assisted in cleaning up and touched the blood. All three plaintiffs assert that they had open wounds on their hands, but subsequently they all tested negative for HIV. The plaintiffs filed an action in Hawaii circuit court that was removed to the U.S. District Court for the District of Hawaii, alleging, inter alia, negligence, failure to warn, negligent failure to advise that the bag was infectious or hazardous, and negligent infliction of emotional distress. The plaintiffs' claims were based solely upon AIDS phobia - they were not HIV+ and there was no other physical injury to anyone or any damage to property caused by the defendant's actions. Because the case presented novel issues of state law, the federal district court sent the case to the Supreme Court of Hawaii to address two issues, namely, whether the courts of Hawaii recognize a cause of action for negligent infliction of emotional distress based upon fear of developing AIDS following exposure to HIV+ blood, and if so, can damages be based solely upon emotional distress in the absence of actual physical or other injury or damage to the plaintiffs or others?
Writing for the court, Justice Levinson reviewed the legal history of the tort of negligent infliction of emotional distress in Hawaii. The traditional rule had always been that plaintiffs could not recover damages for negligent infliction of emotional distress in the absence of some physical harm to them. In _Rodrigues v. State of Hawaii_, 472 P.2d 509 (1970), the plaintiffs alleged that they suffered emotional distress from flood damage to their home caused by the state's negligence. The _Rodrigues_ court articulated new principles, becoming the first jurisdiction to recognize a cause of action for negligent infliction of emotional distress without a showing of actual physical harm to the plaintiff. The court held that "the preferable approach is to adopt general standards to test the genuineness and seriousness of mental distress in any particular case. Serious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case." In _Rodrigues_, the plaintiffs did suffer physical harm to their property, but not physically to themselves. Drawing on _Rodrigues_, Hawaiian courts began permitting recovery for negligent infliction of emotional distress even when the plaintiffs did not themselves suffer physical harm, so long as another person was injured or property was damaged, and it was reasonably foreseeable that a reasonable person would suffer serious emotional distress caused by witnessing such injury or damage. Levinson noted that, to recognize the Roes plaintiffs' cause of action in the instant case, it would be necessary for Hawaiian law to evolve past _Rodrigues_ and create a new standard. Since this was a case of first impression in Hawaii, the court looked to other jurisdictions for guidance.
Levinson cited cases throughout the United States of AIDS-phobic plaintiffs who had come into contact with HIV but had not actually contracted the virus. The court found that the majority of jurisdictions had determined that there is a cause of action for negligent infliction of emotional distress where the plaintiff shows actual exposure to HIV. "Inasmuch as actual exposure to HIV+ blood would in fact pose a direct, immediate, and serious threat to an individual's personal safety, such exposure would foreseeably engender serious mental distress in a reasonable person." The court found that this principle, applied in other jurisdictions, comported with the standards first enunciated in _Rodrigues_. Therefore, the court concluded that, provided that negligence is proven, the Roes plaintiffs are entitled to recover damages if they are able to show that they were actually exposed to HIV under circumstances where the threat of infection was a real possibility. _Elaine Chapnik_
Federal Court Rejects HIV Discrimination Claim by Bank Examiner
An Oregon federal court granted summary judgement to U.S. Bank on Henry O. Leland's claim of discrimination based on being HIV+. _Leland v. U.S. Bank National Association_, 1999 WL 778569 (D.Ore. Sept. 23). Leland sued under the Americans With Disabilities Act and Oregon's law against disability discrimination.
Leland was hired in Sept. 1996 as a temporary employee at U.S. Bank, and was made an investigator on Nov. 13. Between Dec. 1996 and Jan. 1997, co-worker's comments regarding Leland being gay made him uncomfortable. Leland reported the comments and Carol Cookson, a supervisor, reminded workers of the bank's policy against harassment. Leland experienced difficulty at work with a series of assignments and activities that were allegedly not in conformity with company standards. Leland claimed that the practices he used were routine. Leland was also criticized for engaging in surveillance, which the bank said was not part of his duties. The police said the suspect Leland was surveilling was not armed, but turned out to have a handgun when arrested.
In Feb. 1997, Leland contracted pneumonia and was out for one week. During this time his files were not re-assigned, despite a general bank policy of re-assigning files when someone is out for more that a few days. Cookson gave him a positive job evaluation for 1996. Leland missed work for two days and was then hospitalized on March12 for pneumonia. Around March11, Leland's files were re-assigned even though U.S. Bank was unaware at the time that he would be out longer. His files allegedly had problems with them. Leland was made a "floater" to provide training. The change was recommended by Cookson and implemented by Janice McKee, another supervisor. At the time, Cookson claimed that she did not know that he was HIV+. At the same time, another employee, who was not disabled, was made a "floater" because, the bank said, Leland's lack of training warranted additional training for new employees. On March 13, 1997, Cookson visited Leland in the hospital. She delivered a card, criticized his work and informed him of the re-assignment as a "floater." McKee later apologized for Cookson's actions, but affirmed his re-assignment. Leland felt that he was demoted, but the court found that his job title did not "really change" and there was no pay cut. Leland returned on March 27, working half days, and found his worksite moved. The next day he self-identified as being HIV+, filling out an EEOC Affirmative Action Voluntary Disclosure form at the Human Relations Department.
Leland missed work due to illness between April 7 and 11, 1997. He worked part-time until April 25 when he resumed full-time. From late March 1997 until he left in May 1997, his assignments were limited. He worked with one other employee, with whom he had a longstanding friendship. He did not receive additional training and felt ostracized. On May 22, Leland reported that a friend heard that a bartender at a local bar said that he was "dying of AIDS." He identified the person making the statement as an employee at the Portland office. The worker he identified denied knowing him. He was told by a supervisor that "nothing would come of it<!70> when he asked to file a formal complaint. Leland did not report for work on May 29 and applied for a leave of absence the next day. Around June 3, McKee informed him that he was being fired because his Family Medical Leave paperwork was not in. Leland later received leave under the FML and did not return to work. Leland's department was then eliminated in a merger. On May 28, he received a letter from the new bank telling him he could apply for other jobs, which he didn't. The court could not determine if he had quit or was fired.
U.S. Bank argued that Leland is not a "qualified individual with a disability" because he cannot "with or without reasonable accommodation... perform the essential functions" of his job, citing his inability to work since he took his leave. Leland responded that his leaving was a "direct result" of U.S. Bank's conduct arising from fear of his HIV+ status and that harassment forced him to leave his job. Leland said that later he became unable to work due to the progression of HIV.
Leland's claim regarding comments about his sexual orientation were rejected because they did not relate to his HIV+ status. Wrote District Judge Stewart, "This Court will not elevate a few harsh words or `cold shouldering' to the level of an actionable offense." The court also rejected arguments related to the bartender because the comments were heard fourth-hand and were not "sufficiently severe or pervasive."
Leland argued that even if his co-workers did not specifically hear that he was HIV+, they knew because he is gay and twice in one month contracted pneumonia, and treated him differently because of it. He argued that "given the general awareness of the HIV virus in our society, based upon public education campaigns, not to mention general hysteria surrounding the epidemic, it is not unreasonable to assume that others made the same conclusion." Judge Stewart rejected this claim, noting that Leland had developed pneumonia "in the winter no less." Stewart wrote that "if the shoe were on the other foot and U.S. Bank attempted to persuade this court to accept that same assumption about gay men, Leland would most likely claim that such an assumption is discriminatory and unlawful." A co-worker of Leland's who "surmised" that he had AIDS was not relevant, because she was in the "unique position of knowing someone close to her who had died of AIDS." _Daniel R Schaffer_
Connecticut Court Holds Prosecutor Immune From Suit by Victim for Disclosing Criminal Defendant's Claim of Being HIV+ In Court Proceeding
Susan Barese was bitten by a burglar, who was subsequently apprehended by the police. On the date of the defendant's scheduled sentencing hearing, Barese met with the prosecutor, James Clark, who told her that the presentencing report on the defendant said he claimed he was HIV+, and he would likely try to use this fact to get a more lenient sentence. Clark told Barese that he doubted the defendant's claim. Barese says Clark assured her he would not disclose what he was discussing with her. But then he did disclose it during the hearing, telling the judge that had the prosecutor known of the defendant's HIV status when it was deciding how to charge him, it would have charged attempted murder. Barese claims to have suffered severe emotional distress from the prosecutor's public disclosure, which was then reported in the newspapers, that the burglar who bit her was claiming to be HIV+. _Barese v. Clark_, 1999 WL 713487 (Conn. Super., Sept. 1). Barese filed a 4-count complaint against Clark, charging wrongful publication of private facts, breach of privacy and infliction of emotional distress, intrusion upon seclusion, fraud, and intentional infliction of emotional distress.
Clark filed a motion for summary judgment, claiming prosecutorial immunity for the statements he made to Ms. Barese in his office as well as the statements made in court. Granting the motion, Judge Jones found that under Connecticut law prosecutors are immune from suit for statements they make in the course of their prosecutorial role. Jones found that Clark's meeting with a crime victim prior to the sentencing hearing was part of his official role as prosecutor in the case, and that statements made in court for the purpose of anticipating a defense argument on sentencing were also immune. Jones commented in a footnote: "It is noted in deposition testimony that the plaintiff has tested negative for HIV. If the defendant led the plaintiff to believe that he would not disclose the criminal defendant's HIV claim, that, as this case reveals, certainly is very unfortunate." However, Jones concluded, "Inasmuch as the court finds that there is no genuine issue of material fact as to defendant James G. Clark's role in this matter, and inasmuch as he did not abandon his prosecutor's role by addressing the criminal defendant's HIV claim at the sentencing hearing, the defendant's motion for summary judgment is granted as to all counts." A.S.L.
PWA's Win Benefits Eligibility Dispute in New York City
Unanimously rejecting the attempt by New York City Mayor Rudolph Giuliani's administration to require persons living with AIDS to jump through extra hoops to obtain benefits to which they are entitled under federal, state and local law, the New York Court of Appeals ruled October 19 that the City of New York had violated its own Local Law 49, codified at section 21-126 of the city's Administrative Code, by subjecting AIDS benefits applicants to an Eligibility Verification Review process after they were certified as qualified for benefits by the City's Division of AIDS Services Income Support (DASIS). _Hernandez v. Barrios-Paoli_, 1999 WL 957604.
DASIS was started administratively within the city's Human Resources Administration (HRA) in the mid-1980's to facilitate delivery of services to people with AIDS by providing a single point in the city government to which applicants would go to apply for all benefits that were administered by the city. After Giuliani took office as mayor in January 1994, he initiated efforts to sharply reduce the number of people receiving city benefits. To further these efforts, the city administratively adopted a process called Eligibility Verification Review (EVR), under which all benefits applicants, no matter to which program they were applying or where they lived, would have to submit to a complete review of their application, a second round of interviews at a Human Resource Administration office in downtown Brooklyn, and an intense investigation of the assertions in their application (including contacts to doctors, neighbors and others to verify the accuracy of the application). This and other measures had the desired effect, as benefits rolls dropped sharply. Another part of the mayor's effort targeted special programs, such as DASIS, for consolidation into the HRA's bureaucracy. AIDS activists were sharply critical of the idea of terminating DASIS and throwing AIDS benefits applicants into the general pool, and were able to persuade the City Council to enact Local Law 49 by a veto-proof majority; the mayor subsequently signed the measure.
Local Law 49 makes DASIS a permanent statutory agency within HRA, and mandates that anyone eligible for AIDS-related benefits administered through DASIS would be dealt with "at a single location. . . to establish any and all elements of eligibility." Another section of the law provided: "The requirements with respect to such access to and eligibility for benefits and services shall not be more restrictive than those requirements mandated by state or federal statute, law, regulation or rule." Local Law 49 went into effect in 1997. As soon as it did, Daniel Hernandez, a new applicant for AIDS-related benefits, rejected HRA's demand that he submit to the EVR process after having been certified eligible by DASIS, and filed this suit, in which other applicants for AIDS-related benefits joined, asserting that Local Law 49 had terminated any obligation by clients of DASIS to submit to the EVR process.
A state supreme court justice ruled in the petitioner's favor, but was reversed by the Appellate Division, which held that the EVR process did not violate the new law. This ruling was reversed unanimously by the Court of Appeals, in an opinion by Judge George Bundy Smith. The court evidently did not find this a difficult case, in light of the clear language in Local Law 49 mandating that AIDS clients be able to establish their eligibility for all benefits at one location, DASIS, and that no additional requirements for eligibility be imposed by the city beyond those required by federal or state law. The city, in its notice to Hernandez requiring him to report to Brooklyn for the verification process, clearly stated that submitting to the process was a requirement for eligibility for benefits, and that failure to comply would mean he would not receive the benefits. The court found that this was an illegal attempt to impose additional qualifications not required by federal or state law.
In addition to construing the language of Local Law 49, Smith also appealed to its spirit in striking down the EVR requirement. "Finally, the spirit and purpose of Local Law 49 also compel our conclusion. There is no dispute that Local Law 49 was enacted to facilitate access to necessary public benefits and services for individuals suffering from clinical/symptomatic HIV illness and AIDS in New York City. When the meaning of certain terms in a statute is unclear, `a court's role is not to delve into the minds of legislators, but rather to effectuate the statute by carrying out the purpose of the statute as it is embodied in the words chosen by the Legislature' (Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201, 208). Construing Local Law 49 as eliminating EVR investigations for DASIS clients is consistent with the explicit intent of City lawmakers to streamline eligibility determination procedures and requirements for this unique group of public assistance applicants, as evidenced by the words of the statute and the legislative history. . . Thus, the conclusion is manifest."
Housing Works, a non-profit AIDS services group that has frequently been at odds with the city administration over the interpretation of benefits policies, supported legal representation for Daniel Hernandez in challenging the EVR requirement. A.S.L.
Courts Continue to Impose Criminal Penalties for Conduct That Can and Does Spread HIV
On September 15, the Kentucky Supreme Court denied discretionary review in _Hancock v. Commonwealth of Kentucky_, 998 S.W.2d 496 (Ky. App., 1998), in which the appellant was convicted of second degree wanton endangerment based on allegations that he had engaged in sexual intercourse with a woman without revealing his HIV status. Hancock contended that he had disclosed his HIV status to the victim (who was not infected as a result of their intercourse), but she denied it. Perhaps the most noteworthy statement in the court of appeals decision was: "On its face, the indictment was valid. Additionally, Hancock's contentions that M.L.B. consented to sexual intercourse with him and that she knew he was HIV-positive had no bearing on the issue of whether the indictment stated a chargeable offense as a matter of law." . . . The _Toronto Globe and Mail_ reported Oct. 15 that an Italian court in Cremona sentenced a man to 14 years in jail for murder upon proof that he had infected his wife with HIV and she subsequently died from AIDS. . . Knox County, Tennessee, Criminal Court Judge Ray L. Jenkins sentenced Martin Charles Jones to 17 years in prison for exposing three women to HIV. Jones was convicted under a state law making it a crime to engage in conduct that could transmit the virus. According to a report in the _Knoxville News-Sentinel_ (Oct. 16), Jones knew he was infected beginning in 1994 and was repeatedly warned by counsellors against having sex with uninformed partners. Jones was also convicted of statutory rape, as one of his sexual partners was a 17-year-old girl who claims to have been a virgin when she met Jones, but who was both infected and impregnated by him. The news report did not indicate whether the child is also infected. . . . Jerome Murphy, a Willowbrook, Illinois, resident, was convicted and sentenced to 5 years in prison for exposing two police officers to HIV infection. The officers were dispatched to Murphy's apartment after receiving a report of an attempted suicide. They arrived to find Murphy in the kitchen with a cut on his right wrist and the floor covered in blood. The police testified that Murphy threatened to infect them with HIV if they interfered with him, and splattered them with his blood. Neither police officer has seroconverted. _Chicago Tribune_, Oct. 21. > > > Louis C. Saunders has been sentenced to 40 months to 10 years by District of Columbia Superior Court Judge Harold L. Cushenberry, Jr., for having unprotected sex with a woman while being aware that he was HIV+. The woman is now infected and suffering symptomatic AIDS. _Kansas City Star_, Oct. 26. . . . Christopher Truscott, an HIV+ gay male prostitute conducting his business in several cities in New Zealand, was arrested by police on charges of criminal nuisance, and pled guilty to that offense on Oct. 22 in Christchurch District Court. He was remanded for sentencing next month by Judge Murray Abbott. The police had known of Truscott's activities for some time, but felt powerless to take action until they were advised that a little-used section of the country's Public Health Act could be pressed into service. _Christchurch Press_, Oct. 23. A.S.L.
U.S. Appeals Court Finds Trial Judge Correctly Refused Downward Sentencing Departure Based on HIV Status of Defendant and Her Child
In _U.S. v. Rivera-Maldonado_, 1999 WL 902265 (Oct. 19), the U.S. Court of Appeals for the 1st Circuit approved a decision by U.S. District Judge Hector M. Laffitte (D. P.R.) refusing a downward departure under the sentencing guidelines of a life-sentence imposed on Ivette Rivera-Maldonado, an HIV+ mother whose young son is also HIV+. Rivera-Maldonado was sentenced for conspiring to distribute cocaine and marijuana and aiding and abetting the use of minors in distributing controlled substances. Despite approving this aspect of the trial court's sentencing decision, the court vacated the life sentence for reconsideration in light of errors of proof on the quantity of drugs involved in the case.
Rivera-Maldonado was convicted at trial of having responsibility for distributing controlled substances totaling 24 kilograms. When the trial court applied the sentencing guidelines, with all pertinent enhancement factors due to the involvement of minors, the total points triggered a mandatory life sentence, which was challenged on appeal on several grounds, including the defendant's HIV status and the health of her child. The court of appeals, in an opinion by Senior Circuit Judge Cyr, found errors in the trial court's handling of the calculation of drugs involved in the case, requiring a reconsideration of where the case falls on the sentencing guidelines.
However, the court found no problem with Judge Laffitte's refusal of a downward departure based on HIV status. In this case, the defendant, despite being HIV+, was apparently healthy. Lafitte had found that "the Bureau of Prisons determined that Maldonado had no difficulty with either her emotional of physical health. Moreover, the court noted that Maldonado appeared to be in `much better physical condition. . . than she was. . . about four, six months ago when she was [originally] sentenced." Cyr commented that to the court's knowledge, asymptomatic AIDS has not been considered a sufficient basis for a downward sentencing departure.
Maldonado had also argued that because her dependent son has AIDS and requires her care, she should be given a reduced sentence. The district judge had noted that he did have discretion to make a downward departure for unusual cases and family circumstances out of the ordinary, but did not believe that this case would qualify. The court of appeals found no basis to disagree, noting other cases that had commented on the necessary deprivation of family contact when a defendant is incarcerated, and concluding that since the district judge recognized that he did have discretion to make a downward departure, the circuit court lacked jurisdiction to respond to Maldonado's argument. Had the trial court mistakenly stated that he did not have discretion to take account of a defendant's family situation, there might have been a basis for the appellate court to vacate the sentence for reconsideration. A.S.L.
AIDS Litigation Notes
The AIDS Law Project won a settlement from Alarmguard, a national security systems company, on a claim that a man was removed from his managerial post soon after his co-workers learned that he was gay and this his partner had AIDS. The anonymous plaintiff filed a complaint with the Equal Employment Opportunity Commission, claiming a violation of the Americans With Disabilities Act's prohibition on discrimination against a person because that person is associated with another person who has a disability. In an Oct. 26 press release, the AIDS Law Project indicated that had a settlement not been forthcoming, the discriminatee would have filed a John Doe complaint in federal district court. _The Legal Intelligencer_, Oct. 27.
The _Detroit News_ reported Oct. 1 that a jury has convicted James Summerville, Jr., of the death of Mikhail Ellis in a stabbing incident that occurred on May 3, 1998. Summerville, who is HIV+, told police that he murdered Ellis because he believed that Ellis had infected him with HIV. However, Summerville denied this story at trial, and instead attributed the killing to depression and jealousy. Summerville faced a mandatory life sentence.
The Connecticut Hospital Association has sued the state of Connecticut in an attempt to forestall implementation of a new law requiring HIV testing of newborn infants. The case, filed on Sept. 30 and assigned to U.S. District Judge Janet Bond Arterton, claims that the law violates the privacy rights of pregnant women, damages the doctor-patient relationship, and may drive women away from medical care. Judge Arterton denied a request for a temporary restraining order that accompanied the filing. _Nat'l L. J._, Nov. 1. A.S.L.
AIDS Law & Society Notes
Treatments for AIDS have become so effective in recent years that new data published by the Bureau of the Census for the year 1998 show that AIDS has dropped off the list of the top 15 causes of death in the U.S. for the first time since 1987. "The age-adjusted death rate linked to HIV infection dropped 21 percent to 4.6 per 100,000 people in 1998, on the heels of a 48 percent decline from 1996 to 1997, reported the _Washington Post_, Oct. 14.
On Oct. 10, California Governor Gray Davis vetoed A.B. 103, which would have established an HIV reporting system in the state using coded identifiers rather than names. Davis was reputedly moved by the estimated cost of the program rather than by any ideological opposition to using coded identifiers. However, on the same date Davis signed A.B. 155, a bill allowing persons with disabilities who return to work to retain their eligibility for Medicaid health-care benefits, and also approved a needle-exchange measure, enhanced protection for HIV-related medical records, and a bill authorizing research in medical use of marijuana that had been advocated by AIDS policy proponents. _AIDS Policy & Law_, Oct. 29. A.S.L.
AIDS Notes from Asia
The Japanese Red Cross Society is apparently experiencing some difficulty in identifying HIV-infected blood. The _Mainichi Daily News_ reported Oct. 8 that two people who received blood transfusions in hospitals in the Kanto and Koshinetsu regions were infected with HIV from transfusions. The Society is reportedly using a new testing method that reduces the window period when a newly-infected persons blood would not trigger the test to only 11-16 days.
An Indian man is challenging last year's Supreme Court of India ruling that apparently bars the issuance of a marriage license to anyone who is HIV+. According to _The Times of India_, Oct. 15, the petitioner is claiming that a denial of a license to him, when he has informed his prospective wife about his medical condition and she has agreed to marry him, deprives him of a fundamental right to life, including the "right to live with dignity, to marry and enjoy his social life." In its decision last year, the court said that as long as a person is not cured of a dangerous disease, his right to marry cannot be enforced through a court of law. _The Times of India_ reported Oct. 25 that there are 4 million HIV+ people in India, estimated to be approximately 10 percent of all those infected in the world.
The _South China Morning Post_ reported Oct. 26 that Vietnam has prohibited people with HIV infection from working in seven occupations: surgeons, dentists, other health workers, acupuncturists, tattooists, hairdressers, and child-care workers. (This list prompts a question as to why the Vietnamese are not concerned with food-handlers, who seem to have become a focus of AIDS-related discrimination in some parts of the U.S.) Organizations in Vietnam attempting to combat the epidemic through public education condemned this decision, arguing that a similar approach had been tried in Thailand fifteen years ago and had not proven helpful in stemming new infections because there is no evidence that infected workers in any of these occupations present serious risks of HIV transmission to their clients or patients. A.S.L.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Axam, Hilary So, and Deborah Zalesne, _Simulated Sodomy and Other Forms of Heterosexual "Horseplay": Same Sex Sexual Harassment, Workplace Gender Hierarchies and the Myth of the Gender Monolith Before and After_ Oncale, 11 Yale J. L. & Feminism 155 (1999).
Cruz, David B., _Controlling Desires: Sexual Orientation Conversion and the Limits of Knowledge and Law_, 72 USC L. Rev. 1297 (July 1999).
Dupper, Ockert, and Christoph Garbers, _The Provision of Benefits to and Discrimination against Same-Sex Couples_, 20 Industrial L. 772 (April 1999) (South African law journal).
Eskridge, William N., Jr., _Multivocal Prejudices and Homo Equality_, 74 Indiana L. J. 1085 (Fall 1999).
Franke, Katherine M., _Becoming a Citizen: Reconstruction Era Regulation of African American Marriages_, 11 Yale J. L. & Humanities 251 (Summer 1999).
Goodyear-Smith, Felicity A., and Tannis M. Laidlaw, _Aggressive Acts and Assaults in Intimate Relationships: Towards an Understanding of the Literature_, 17 Behavioral Sciences & L. 285 (1999).
Greenberg, Julie, _Defining Male and Female: Intersexuality and the Collision Between Law and Biology_, 41 Ariz. L. Rev. 265 (1999) (this is apparently the first law review treatment of the subject of Intersexuality).
Keller, Susan Etta, _Crisis of Authority: Medical Rhetoric and Transsexual Identity_, 11 Yale J. L. & Feminism 51 (1999).
Koonin, Marc A., _Avoiding Claims of Discrimination Based on Personal Appearance, Grooming, and Hygiene Standards_, 15 Labor Lawyer 19 (Summer 1999) (includes section on cross-dressing issues).
Mancini, G.F., and S. O'Leary, _The New Frontiers of Sex Equality Law in the European Union_, 24 European L. Rev. 331 (Aug. 1999).
Nevins, Jennifer L., _Getting Dirty: A Litigation Strategy for Challenging Sex Discrimination Law by Beginning With Transsexualism_, 24 Rev. L. & Soc. Change 383 (1998).
Palarea, Russell E., Michael A. Zona, John C. Lane and Jennifer Langhinrichsen-Rohling, _The Dangerous Nature of Intimate Relationship Stalking: Threats, Violence, and Associated Risk Factors_, 17 Behavioral Sciences & L. 269 (1999).
Sevon, Leif, and Martin Johansson, _The Protection of the Rights of Individuals Under the EEA Agreement_, 24 European L. Rev. 373 (Aug. 1999).
Strasser, Mark, _The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections_ (Praeger, 1999) (comprehensive book on same-sex marriage legal issues).
Sueyoshi, Amy, Reviews of _Asian American Sexualities: Dimensions of Gay and Lesbian Experience,_ edited by Russell Leong, and _Q&A: Queer in Asian America_, edited by David L. Eng and Alice Y. Hom, 25 Amerasia J. 194 (Spring 1999).
_Student Notes & Comments:_
Bodi, Robert F., _Democracy at Work: The Sixth Circuit Upholds the Right of the People of Cincinnati to Choose Their Own Morality in_ Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati_, 128 F.3d 289 (6th Cir. 1997)_, 32 Akron L. Rev. 667 (1999).
Case Comment, _Employment Law - Refusing to Protect Asymptomatic HIV-Positive Employee Under American Disabilities Act -_ Runnebaum v. Nationsbank of Maryland_, 123 F.3d 156 (4th Cir. 1997), 32 Suffolk U. L. Rev. 191 (1998).
Denys, Christine, _Homosexuality: A Non-Issue in Community Law?_, 24 European L. Rev. 419 (Aug. 1999).
Kowalski, Karen M., National Endowment for the Arts v. Finley_: Painting a Grim Picture for Federally-Funded Art_, 49 DePaul L. Rev. 217 (Fall 1999).
McCoy, Andrea, National Endowment for the Arts v. Finley_: First Amendment Free Speech No Longer Guaranteed for the Arts_, 68 Revista Juridica 791 (1999).
Salyer, Glen V., _Free Exercise in Illinois: Does the State Constitution Envision Constitutionally Compelled Religious Exemptions?_, 19 N. Ill. U. L. Rev. 197 (Fall 1998) (argues that Illinois Supreme Court should mandate free exercise religious exemptions from state laws of general applicability).
Siegel, Michael L., _Hate Speech, Civil Rights, and the Internet: The Jurisdictional and Human Rights Nightmare_, 9 Albany L. J. of Science & Tech. 375 (1999).
Wambaugh, Carrie L, _Biology Is Important, But Does Not Necessarily Always Constitute A "Family": A Brief Survey of the Uniform Adoption Act_, 32 Akron L. Rev. 791 (1999).
Immigration Briefings, a publication by the publisher of Interpreter Releases, which is widely read by members of the immigration law bar, devoted its August 1999 issued to a special report on _Gays, Lesbians and Immigration" by D. L. Hawley. The 15-page document covers the history of the enactment, enforcement and repeal of the anti-gay exclusionary policy, naturalization, asylum issues, recognition of domestic partners, adoptions, and HIV-related issues. * * * Painted Leaf Press has published _The Queer Press Guide 2000_, edited by Paul Harris. This provides listing and contact information for approximately 400 lesbian and gay interest newspapers and periodical magazines from all over the world. The editor plans annual updating and invites submissions of listings for new publications. For information about obtaining the book, check the publisher's webpage: <www.paintedleaf.com>. * * * The journal _Church & State_ features a special report in its Oct. 1999 issue titled "The Religious Right's Gay Agenda: Demonizing for Dollars," by Rob Boston, analyzing how the "Religious Right" uses gay issues as a primary fund-raising tool.
AIDS & RELATED LEGAL ISSUES:
Ainslie, Donald C., _Questioning Bioethics: AIDS, Sexual Ethics, and the Duty to Warn_, 29 Hastings Ctr. Rep. No. 5, 26 (Sept-Oct 1999).
Benson, Donald W., _The ADA and Workers' Compensation: How to Use One To Challenge the Other_, 10 Practical Litigator No. 5, 45 (September 1999) (Plaintiffs lawyers should read this one in self-defense.)
Christie, George C., _The Defense of Necessity Considered from the Legal and Moral Points of View_, 48 Duke L. J. 975 (March 1999).
Eidsmoe, Daniel C., and Pamela K. Edwards, _Sex, Lies, and Insurance Coverage? Insurance Carrier Coverage Defenses for Sexually Transmitted Disease Claims_, 34 Tort & Ins. L. J. 921 (Summer 1999).
Heywood, Mark, and Fatima Hassan, _The Employment Equity Act and HIV/AIDS a Step in the Right Direction_, 20 Industrial L. 745 (April 1999) (South African law journal).
Williams, Jim, et al., _AIDS Policy and the Fight Against AIDS Discrimination_, 1998 Lesbian and Gay Law Conference Symposium, 15 N.Y.L.S. J. Hum. Rts. 483 (1999).
_Student Notes & Comments:_
Greaney, Isaac S., _The Practical Impossibility of Considering the Effect of Mitigating Measures Under the Americans With Disabilities Act of 1990_, 26 Fordham Urban L. J. 1267 (April 1999) (persuasive analysis, unfortunately rendered obsolete by Supreme Court decisions issued on June 22, 1999).
Mosiello, Jodi, _Why the Intentional Sexual Transmission of Human Immunodeficiency Virus (HIV) Should be Criminalized Through the Use of Specific HIV Criminal Statutes_, 15 N.Y.L.S. J. Hum. Rts. 595 (Spring 1999).
Veerman, Philip, Guy Tatsa, Paul Druzin, and Rebecca Weinstein, _HIV Prevention, Children's Rights, and Homosexual Youth_, 7 Int'l J. Children's Rts. 83 (1999).
Last month we reported on Melissa Sklarz's election, noting the _New York Law Journal_'s report that she was the first openly-transsexual person to be elected to public office. We should have qualified that as the first in New York known to the _Law Journal_. A reader reminds us that Althea Garrison, a male-to-female transsexual, was elected to a term in the Massachusetts House of Representatives several years ago. We always seem to get letters when we report that somebody was the first to do something. Keeps us on our toes! * * * 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.