SEXUAL ORIENTATION DISCRIMINATION CIVIL RIGHTS - ANTI-GAY INITIATIVES Evans, et al. v. Romer and Norton (Colorado) VICTORY! In an eloquent ruling which upheld a preliminary injunction against Amendment 2, the Colorado Supreme Court held the anti-gay amendment passed by Colorado voters last November, infringes upon a fundamental constitutional right of lesbians and gay men to participate in the political process. Unless the state can demonstrate at a trial later this year a compelling reason to justify Amendment 2's interference with that participation, the Colorado Supreme Court indicated it will strike down the amendment as unconstitutional. In its ruling, the nearly unanimous Court adopted arguments, sometimes verbatim, made by Lambda and our co-counsel against Amendment 2. The Colorado Supreme Court also fully rejected arguments made by the state in its appeal of the preliminary injunction against enforcement of the amendment granted by a state district court last January. Shortly after the Court announced its ruling, Colorado's Governor and Attorney General (the defendants in the lawsuit) stated that they plan to seek review by the United States Supreme Court. Currently, a trial on the constitutionality of Amendment 2, at which the state must try to meet the very high standard set by the Colorado Supreme Court, is scheduled for mid-October. At that time, Lambda and our co- counsel will ask the court to declare that Amendment 2 violates the United States and the Colorado constitutions and to permanently block the amendment from going into effect. The proposed amendment, passed by voters last November, prohibits all branches of the State including cities, school districts, and courts from passing legislation or adopting policies to protect lesbians, gay men, and bisexuals from discrimination based on their sexual orientation. Finding that Amendment 2 infringed the plaintiffs' fundamental right "not to have the State endorse and give effect to private biases," the trial court ruled last January that, absent a compelling reason to justify such discrimination, the amendment would violate the Federal constitutional guarantee of equal protection of the law. On July 16th, the trial court also refused to dismiss all but two of the eleven claims against Amendment 2 stated in the our complaint. In addition to several individual Colorado residents including tennis champion Martina Navratilova, who is an Aspen resident and a local school district, plaintiffs include the cities of Aspen, Boulder, and Denver, where existing gay rights protections will be repealed if the amendment takes effect. Staff Attorney Suzanne Goldberg and Cooperating Attorney Clyde Wadsworth of Wilson, Sonsini, Goodrich & Rosati in Palo Alto, California, are handling the case for Lambda. Along with Lambda, the Colorado Legal Initiatives Project, the ACLU, and several Colorado attorneys including former Colorado Supreme Court justice Jean Dubofsky and Boulder attorney Jeanne Winer represent the plaintiffs. Lowe v. Keisling (Oregon) NEW CASE! Lambda, along with the Oregon ACLU and the National Lawyers Guild, have filed a challenge in Oregon Circuit Court to keep yet another anti-gay initiative off the Oregon ballot. Apparently not satisfied with having filed 33 anti-gay initiatives to amend city and county charters throughout Oregon (following a loss in a statewide ballot contest in November 1992), the Oregon Citizens Alliance, an anti-gay right wing organization, has renewed its efforts to amend Oregon's constitution. Its proposed initiative -- "the Minority Status and Child Protection Act" -- would prohibit the Oregon government from recognizing domestic partnerships or teaching about lesbians and gay men and "homosexuality" in a positive manner. While the initiative's language is vague, its intent is clear -- to enshrine anti-gay sentiments in the state's constitution. Our complaint asks the court to declare the proposed initiative unconstitutional and to order the state not to certify the proposed initiative for Oregon's 1994 elections. Suzanne Goldberg is the Lambda attorney on the case. - PUBLIC ACCOMMODATIONS Ad Hoc Committee of Proud Black Lesbians and Gays (PBLG) v. Defender Charities, Inc. (Illinois) NEW CASE AND SETTLEMENT VICTORY! Lambda filed a complaint on behalf of PBLG at the Chicago Commission on Human Relations alleging discrimination on the basis of sexual orientation in the provision of public accommodations, based on Defender Charities' refusal of PBLG's application to march in the Bud Billiken parade. The Bud Billiken parade is billed as the country's largest African American parade if not the largest parade in the country. According to the Defender newspaper, the parade originated as a children's event and many performers, including Lionel Hampton and Nat "King" Cole got their start in the parade. Defender's explanation that the PBLG application was denied because of "space, time and manpower constraints" was revealed to be a sham when PBLG disclosed that a separate application they filed one month later -- identical except for the mention of lesbians and gays -- was accepted immediately. Because the PBLG application was denied a second time in mid-July, Lambda moved to expedite the proceedings and for an immediate settlement conference to resolve the matter before the August 14, 1993 parade date. In two days of mediated negotiations, Lambda's Jennifer Spruill and PBLG members convinced Defender Charities to allow PBLG into the parade under the group's banner, settling the dispute out of court. PBLG's contingent marched near the front of the parade and celebrated themes of visibility, youth education and anti-violence, consistent with its mission to promote positive images of Black lesbians and gays in the community, to increase visibility and to respect and celebrate diversity in all its forms. - RIGHT TO DEMONSTRATE Long Beach Lesbian and Gay Pride v. City of Long Beach (California) NO CHANGE/DECISION PENDING. Lambda has submitted an amicus brief in the California Court of Appeal on behalf of the organizers of lesbian and gay pride festivities in Long Beach. The City of Long Beach had required the Pride organizers to pay for insurance as well as police and clean-up fees associated with lesbian and gay pride day. There is substantial evidence that other groups have not traditionally been required to pay such costs for use of public forums, leading the group to appeal the lower court's ruling. Other groups joining the amicus brief, which was written by Rutgers University Law Professor Eric Neisser, are the Black Gay and Lesbian Leadership Forum and the National Lesbian and Gay Law Association. Western Regional Office Director J Craig Fong and Staff Attorney Amelia Craig are the Lambda attorneys on the case. - UNLAWFUL SEARCH AND SEIZURE ACT/UP-Portland v. Bagley (Oregon) APPEAL TO NINTH CIRCUIT. In this lawsuit challenging the constitutionality of a strip search, Lambda has appealed to the Ninth Circuit a federal district court ruling granting summary judgment in favor of the U.S. marshals who strip searched participants in an ACT/UP demonstration. Earlier this year, the Ninth Circuit had sent the case back to federal district court on the question of whether the marshalls were immune from being sued because they performed the searches as part of their official law enforcement duties. Lambda and our Cooperating Attorney, Tom Steenson of the Portland firm Steenson & Schumann, originally filed the lawsuit on behalf of demonstrators who were strip searched by Federal marshals after their arrest at an AIDS demonstration at the FDA building in Portland in February 1989. The demonstrators, all members of ACT/UP-Portland, were arrested after blocking the entrance to the building and were charged with a misdemeanor. Before they were released from detention, the marshals subjected all of the plaintiffs to a strip search in full view of other detainees and employees. The suit claimed violations of the plaintiffs' Fourth Amendment rights and invasion of privacy. Catherine McGrath, John Lynch and Robert G. Miller of the New York firm Brown Raysman & Millstein have joined Steenson as cooperating attorneys on the appeal. Suzanne Goldberg is Lambda's staff attorney on the case. EMPLOYMENT City and County of San Francisco, Runkle, Maehl, and Glasser v. Superior Court (California) NEW CASE! A recent California Court of Appeal case held that city ordinances which prohibit employment discrimination based upon sexual orientation are preempted, and therefore invalidated, by the state's Fair Employment and Housing Act which does not prohibit such discrimination. The City of San Francisco, along with three plaintiffs in separate cases, has sought review by the California Supreme Court in an effort to affirm the local anti- discrimination ordinances. Lambda submitted an amicus letter to the California Supreme Court encouraging it to grant review so that it can overturn the preemption ruling. Amelia Craig is Lambda's attorney on the case. Assetcare Inc. v. Superior Court, Runkle, Maehl and Glasser as Real Parties in Interest (California) NEW CASE! In the same case where the preemption of local anti- discrimination ordinances is being fought, another important issue is being litigated. The defendants have asked the California Court of Appeal to dismiss the plaintiffs' claims of employment discrimination under the state Labor Code because they argue that, before suing, the plaintiffs were required to exhaust administrative remedies through the state Labor Commissioner. The Court of Appeal has requested briefing by the plaintiffs, and Lambda has joined Bay Area Lawyers for Individual Freedom and the National Center for Lesbian Rights in an amicus letter encouraging the court to reject the appeal and to permit the plaintiffs to pursue their cause of action under California's Labor Code. Amelia Craig is the Lambda attorney on the case. Brienza v. United Press International (District of Columbia) DISCOVERY CONTINUES. Discovery is proceeding in this $12 million lawsuit filed by Julie Brienza, a former Supreme Court reporter for United Press International, against UPI and Milwaukee-based religious broadcaster Vic Eliason, for unlawful job termination based on her sexual orientation. Discovery has revealed that after Eliason, a right-wing homophobe, learned that Brienza is a lesbian who was writing a freelance article for The Washington Blade, the local lesbian and gay newspaper, he contacted other anti-gay notables and enlisted their help and that of his radio listeners in organizing a campaign to have Brienza terminated. UPI fired Brienza, supposedly for minor professional infractions. Lynne Bernabei and Debra Katz, partners in the D.C. law firm Bernabei & Katz, are the lead counsel on the case, with assistance from Lambda's Suzanne Goldberg. FAMILY RELATIONSHIPS - CO-PARENTS' RIGHTS Georgia Prescott v. Kerry Blume (California) NEW CASE! This is a co-parent contract case in which a biological mother seeks to prevent her former partner from visiting their child. The California trial judge refused to enforce a written parenting contract between the two lesbian mothers in which they agreed before their daughter was born to share custody in the event they ever separated. The judge refused even to order visitation by the non-biological mother. The non-biological mother has appealed the trial court's ruling. Cooperating Attorney (and a former Lambda intern) Leigh Kirmsse of Heller, Ehrman, White & McAuliffe, with assistance from Lambda Staff Attorney Amelia Craig, wrote an amicus brief on behalf of Lambda and the National Center for Lesbian Rights supporting the non-biological mother's position and arguing that parenting contracts between lesbian couples should be enforced. In the Interest of Angel Lace M. (Wisconsin) NO CHANGE. In this second-parent adoption case, the Wisconsin Supreme Court will decide whether the state's adoption statute will allow the lesbian co-parent to adopt Angel, a child previously adopted by the lesbian's partner and her partner's former husband. Angel's adoptive father consented to a termination of his parental rights and the trial court found that the adoption by the lesbian co-parent would be in Angel's best interests. However, the same court denied the adoption. It reasoned that the Wisconsin statute which allowed for step-parent adoptions did not allow the court to grant adoptions by lesbian or gay couples who could not legally marry. On appeal, the prospective adoptive mother argued that the chief interest of the adoption code is to ensure the child's best interests and that the current statute violates her constitutional due process and equal protection rights. Rather than decide the issue, the Court of Appeals certified the question to the state Supreme Court. Lambda joined the National Center for Lesbian Rights and Gay and Lesbian Advocates and Defenders on an amicus brief. Suzanne Goldberg is Lambda's attorney on the case. In re: Adoption of K.M. (Massachusetts) DECISION STILL PENDING. This is a second-parent adoption case in which a Massachusetts trial judge granted the adoption of a three-year old girl by her non-biological mother. However, before allowing the adoption to be finalized, the judge, in a surprising move, asked the Massachusetts Appeals Court whether state law allows such adoptions. Lambda, along with the National Center for Lesbian Rights, has joined the amicus brief written by Mary Bonauto of Gay and Lesbian Defenders in Boston. The Supreme Judicial Court, Massachusetts's highest court, took the case from the Appeals Court and heard oral arguments on May 4th. A decision is still pending. Codrington and Floyd v. DeFelice (New York) NO CHANGE. In a complicated and hotly contested guardianship and custody dispute, Lambda filed an amicus brief in Brooklyn family court on behalf of the non-biological mother of an infant whose partner, the child's biological mother, died shortly after childbirth. Apparently in an effort to claim the potential proceeds of a medical malpractice lawsuit related to the death, several parties filed for custody of the child including the biological mother's husband who was long separated from the decedent, the decedent's mother, and the biological father. All these parties appeared in court seeking guardianship and custody of the child who has resided with his non-biological mother since leaving the hospital after his birth. A final ruling by the trial court is pending. Suzanne Goldberg and former Legal Director Paula Ettelbrick wrote the brief for Lambda. - CUSTODY/VISITATION Johnson v. Schlotman (North Dakota) PARTIAL LOSS. The North Dakota Supreme Court upheld a trial court decision denying a change in custody to Dianne Schlotman from her former husband Jon Johnson. After the couple divorced in 1986, Johnson began to interfere with Schlotman's visitation when she came out as a lesbian. Ms. Schlotman then filed a motion to seek custody of and/or visitation with her two children. The lower court not only denied custody but also temporarily suspended Schlotman's visitation rights, citing the children's mental state and problems the children allegedly experienced because their mother is a lesbian. However, before the Supreme Court issued its ruling, the trial court modified its original order suspending Schlotman's visitation with her children and instructed all of the adults involved, including the two biological parents and each of their partners, from interfering with the children's continued counseling. While the Court's decision recognized harm-to-the-child as the proper standard for evaluating custody conflicts, it failed to overturn its 1981 ruling in Jacobson v. Jacobson which considered a parent's homosexuality as an automatically negative factor in making a custody determination. With Lambda's assistance, Ms. Schlotman's attorney William Kirschner appealed the case to the North Dakota Supreme Court. Cooperating Attorney Erica Ryland of Weil, Gotshal & Manges wrote the amicus brief for Lambda with assistance from Lambda's former Legal Director Paula Ettelbrick. - DOMESTIC PARTNERSHIP BENEFITS Bagley v. California Federal Bank (California) NEW CASE! California Federal Bank provides discount home loans to its employees who purchase homes jointly with immediate family members. However, the Bank has indicated that it may refuse to provide this discount to Bank Vice President Jeff Bagley and his partner Peter Lavin. Lambda considers the Bank's refusal to be discrimination on the basis of marital status as well as on the basis of sexual orientation and is representing Bagley and Lavin, assisted by Cooperating Attorney Rick Perry of Folger & Levin. Amelia Craig is the Lambda attorney on the case. Lesbian and Gay Teachers Association v. New York City Board of Education (New York) NO CHANGE. We are still in full discovery following the Appellate Division's (First Department) unanimous affirmance of the right of the teachers to go forward with their claims that the denial of benefits to domestic partners discriminates against them on the basis of sexual orientation and marital status. The City is contesting our request to depose top policy-makers, notably Mayor David Dinkins and City Human Rights Commissioner Dennis deLeon. Cooperating Attorneys David Braff, Jim Hough, Toby Butterfield, and Mitchell Stein are handling the case along with Lambda Staff Attorney Evan Wolfson. - DONOR FERTILIZATION In re: "Jane Doe" (North Carolina) TRIAL HELD. A trial was held in July in this case involving a dispute between a lesbian mother and the sperm donor who is seeking custody and visitation with the child. The sperm donor was denied custody and allowed extremely limited visitation. A final judgment, though, has yet to be entered on the record. A temporary settlement had allowed the donor to have limited visitation for a three month period and allows the non-biological mother the right to intervene as a party in the case should it proceed further. Lambda is co-counsel in representing the mother in her initial effort to terminate the legal parental rights of the man who was the sperm donor for her now two-year old child. Ms. Doe and the donor entered a written agreement by which he consented to donate sperm for Ms. Doe to become pregnant. He also agreed to waive all parental rights and she agreed not to seek child support. Moreover, they agreed that he could visit the child, which he did on a handful of occasions in the first year of the child's life. After the donor's mother became insistent upon having a role in the child's life and after the donor began to refer to himself as the father, Ms. Doe sought unsuccessfully to terminate his parental rights in accord with their agreement. The parties then mediated their dispute, though the mediator refused to allow the non-biological mother to participate in the process because she is not a party to the case. Ingrid Friesen is Lambda's North Carolina Cooperating Attorney on the case along with Lambda's Board Co-chair Harry Harkins. - HOUSING Henry Phipps Plaza West v. Gomez (New York) NO CHANGE. Lambda is pursuing settlement possibilities in this case where we represent Alma Gomez, the surviving lesbian partner of Maria Rosas, in defense against a landlord's attempt to begin eviction proceedings. Ms. Rosas was the named tenant of record on the apartment that the couple shared as their primary residence for seven years. The landlord argues that because Ms. Gomez is not a "family" member, she was not entitled to remain in the apartment after Maria's death two years ago. A hearing was held at the Department of Housing and Community Renewal in November 1991, and we are awaiting a decision. Cooperating Attorney Mark Scherzer is working with Lambda on the case. Rent Stabilization Association v. Higgins (New York) DEVELOPMENTS. In this procedurally-tangled case, plaintiffs have appealed to New York's highest court. The Court of Appeals will address the question of whether it is an unconstitutional taking of property to require landlords to recognize gay and lesbian life partners, among others, as family members entitled to remain in their rent-stabilized or rent-controlled apartments when their partner or family member dies or leaves the apartment. We remain optimistic that our victory in this case will be upheld at the highest level. Our initial involvement came when Lambda intervened in a lawsuit brought by landlords attempting to stop the new emergency regulations governing rent-controlled and rent-stabilized apartments in a way protective of family diversity, including lesbian and gay family members. The proposed code was itself the product of lengthy negotiations with the DHCR in which Lambda played a key role along with the ACLU, GMHC, the Legal Aid Society, and tenants' rights groups. In this case, Lambda's Legal Director Beatrice Dohrn (and previously Evan Wolfson) and Ruth Harlow of the ACLU represent GMHC and two gay men facing eviction from their apartments. We intervened to persuade New York State Supreme Court Judge Irma Vidal Santaella not to issue a preliminary injunction against the proposed emergency code. Sullivan v. 529 1st Street Housing Corporation, et al. (New York) NO CHANGE. In an effort to expand on recent rulings of the New York City Human Rights Commission, Lambda filed a domestic partner discrimination complaint with the Commission against the Board of Directors of a cooperative apartment building which refused to permit a lesbian to transfer ownership shares to her former domestic partner. An investigator from the New York City Human Rights Commission is now investigating the case. In the complaint, Lambda alleges that the Co-op Board's refusal to allow the share transfer, when such transfers may take place freely between married couples, constitutes sexual orientation and marital status discrimination, which is prohibited by New York City law. The claim seeks to strengthen the Commission's recent ruling in Velazquez v. Salinas Realty Corp., which was the first of its kind nationally, that treating domestic partnerships differently than spouses constitutes marital status and sexual orientation discrimination. Lambda's Suzanne Goldberg and Cooperating Attorney Morton Newburgh of Siverstein Langer Lipner and Newburgh represent Sullivan. 60 Sutton Corp. v. New York City Human Rights Commission (New York) MOVED TO APPELLATE DIVISION. The New York Supreme Court judge assigned to this domestic partner discrimination suit refrained from issuing a ruling and instead transferred the case to the Appellate Division. Lambda will file another amicus brief addressing issues of marital status and sexual orientation discrimination on behalf of the New York City Human Rights Commission, whose ability to apply New York City's anti- discrimination law has been challenged by a cooperative board found guilty of discrimination. Last December, the Commission found that the Co-op Board violated city law by rejecting a gay man's application for transfer of ownership of an apartment when the lease requires automatic approval for transfer to a surviving spouse. The applicant, Harry Kirkpatrick, was bequeathed ownership of the apartment by his longtime domestic partner. Lambda's brief to the New York Supreme Court argued that the Commission correctly ruled that by barring the transfer, the Co-op Board discriminated unlawfully based on marital status and sexual orientation. Suzanne Goldberg argued the case before that court for Lambda. She and Cooperating Attorney Julie Goldscheid of Sonnenschein Nath & Rosenthal's New York office wrote Lambda's brief. - MARRIAGE Baehr v. Lewin (Hawaii) TRIAL PREPARATION. We are getting ready to go back before the lower court to follow up on the landmark ruling of the Hawaii Supreme Court, which may open the door to same-sex marriage. In May, the Court held that denying marriage licenses to same-sex couples appears to violate the state constitutional guarantee of equal protection on the basis of sex. The case is the first same-sex marriage case to reach a state supreme court in twenty years, and the first such victory. The Court overturned the unfavorable decision of the lower court, and sent the issue back for a trial at which the State must show "compelling" interests for its discriminatory policy, subject to "strict scrutiny," the highest standard of judicial review. A two-justice plurality decision rejected the right-to-privacy claim, and also held that sexual orientation was irrelevant to its determination. This decision now appears to command the votes of at least three justices (out of five), a very favorable sign. The plaintiffs, two lesbian couples and one gay male couple, are represented by Honolulu attorney Dan Foley and Lambda's Evan Wolfson. In the earlier stages of the case, Evan wrote Lambda's amicus brief, submitted testimony to the legislature, and worked closely with the plaintiffs, their attorney, and local activists. In the meantime before the case goes to trial, Cooperating Attorneys Kirk Wallace, Randy Mastro, Robin Baker, and Leslie Moore, intern Tom Keane, and former Lambda intern Lawson Sullivan, all of Gibson, Dunn & Crutcher, have been working on back-up research on the Hawaii case and potential Lambda marriage challenges in Alaska and New Jersey. On the assumption that the marriage challenge will eventually be successful in Hawaii, we are also looking ahead to the litigation that may arise once lesbians and gay men seek recognition of their marriages from other states or the federal government for marriages registered in Hawaii. In re: Estate of Cooper (New York) PERMISSION SOUGHT TO APPEAL. The Appellate Division (Second Department) affirmed a Surrogate's decision that a gay man was not entitled to spousal election against the estate of his deceased life partner. In so doing, the court wrote an opinion dismissing his claims that constitutional issues were raised by refusing to permit lesbians and gay men to marry, and then not permitting us equal standing in inheritance claims because we are not married. The court also rejected heightened scrutiny for anti-gay discrimination. Whatever the outcome on the facts of the case, the court's hostile ruling is a stark contrast to the approach taken by the Hawaii Supreme Court (see above). The petitioner was represent by Bradley Davis, who has sought leave to appeal to the Court of Appeals, New York's highest court. Lambda filed an amicus brief, written by Board member Judith Schaeffer and Lambda's Evan Wolfson. In it, we did not take a position on the facts of the case or on the policy validity of spousal election, but instead urged the court to apply the appropriate protective standard for gay people, and, only if necessary, resolve the marital issues. Dean v. District of Columbia (District of Columbia) NO CHANGE. Lambda filed an amicus brief in this appellate challenge to the "opposite-sex requirement" imposed on those seeking to marry in the District of Columbia. The lawsuit by two men seeking to marry is now before the D.C. Court of Appeals, following lower court opinions riddled with references to the Bible. We are awaiting the appellate court's scheduling of oral argument, which could take quite a while. Lambda's Evan Wolfson and Cooperating Attorney Chris Wieber wrote Lambda's brief and assisted in strategy on the case. - IMMIGRATION Gressin v. Slattery (New York) APPEAL DECISION PENDING. The New York District Office of the Immigration and Naturalization Service (INS) rejected Lambda's motion for reconsideration of an INS decision denying Lambda's client, Bruce Gressin, permission to bring a Russian orphan into the United States as his adoptive child. In its rulings, the INS argued that a statute which allows unmarried U.S. citizens to adopt orphans from abroad does not authorize visas for applicants who intend to co-parent the child with their gay or lesbian domestic partner. Lambda has again briefed this case to the INS Commissioner for final review, arguing that not only does Mr. Gressin fulfill all legal requirements to receive the visa, but also that the INS has no basis in law or social policy to deny a visa simply because a child would have more than one functional parent. Lambda's Suzanne Goldberg represents Mr. Gressin, with assistance from Board member and Cooperating Attorney Noemi Masliah. HOUSING Donahue v. Fair Employment and Housing Commission (California) NO CHANGE. Lambda filed an amicus brief in this appeal pending before the California Supreme Court. The lower court upheld the right of a Catholic landlord to refuse to rent to an unmarried couple, because their presumed sexual activities would offend the landlord's religious beliefs. Cooperating Attorney John Beattie authored the brief with assistance from former Staff Attorney Mary Newcombe. MILITARY Doe, Roe, et. al. v. Aspin (District of Columbia) NEW CASE! On July 19, 1993 there was an announcement of a so- called "new" military policy crafted to appease the Joint Chiefs and members of Congress. On July 27, 1993 Lambda, joined by the ACLU, filed suit in federal district court in Washington, D.C. on behalf of seven lesbian and gay service members -- two anonymous -- challenging the infringement on their constitutional free speech, free association, equal protection, and due process rights. Of course, these seven plaintiffs stand for tens of thousands of lesbian and gay military personnel against whom the policy continues to discriminate. As was previously true, willingness to lie about who we are remains an express requirement of their military service. This new challenge aims to point out to the court the unconstitutionality of the policy and the hypocrisy of a government which admits that we are suited to serve (and continue to do so with distinction), but at the same time subjects lesbians and gay men to different standards of speech, conduct, and status. The government has admitted that any restrictions it imposes on military members must be enforced in an even handed manner, and yet it has put forward a policy which on its face suggests vastly different treatment. This new suit should present an even stronger challenge, now that the government has admitted, in essence, that it is only the homophobia of others that is an obstacle to our military service. The case has been assigned to Judge Thomas Penfield Jackson. Lambda's Beatrice Dohrn and Evan Wolfson are handling the case, along with Cooperating Attorneys David Braff, Michael Lacovara, and Eulalia Mack. Bill Rubenstein, Ruth Harlow, and Mark Elovitz are the ACLU attorneys on the case. Steffan v. Aspin (District of Columbia) ORAL ARGUMENT SET. After losing in the U.S. District Court, we filed our notice of appeal with the D.C. Circuit Court. The case had been put on hold pending the government's request to have the Supreme Court review the Pruitt decision. (See below.) When the Supreme Court denied review of Pruitt, the D.C. Circuit set the case down for oral argument on September 13, 1993, before Judges Mikva, Wald, and Edwards. As with all of Lambda's military cases, we believe that the new "Don't Ask, Don't Tell" directive crafted by Secretary of Defense Les Aspin and the Joint Chiefs of Staff only strengthens our cases, as it exposes the fact that it is homophobia that is at the core of our military exclusion, rather than the claimed "unsuitability" of lesbians and gay men to serve. This case is being handled by Lambda's Cooperating Attorneys at Wachtell, Lipton, Rosen & Katz, led by partner Marc Wolinsky. Former Lambda Staff Attorney Sandy Lowe and Cooperating Attorney Calvin Steinmetz of Washington have assisted Wachtell Lipton on the case. Amicus briefs have been filed by AmFAR and the ACLU, the American Jewish Committee, the American Jewish Congress, the Asian American Legal Defense Fund and the Puerto Rican Legal Defense Fund, NOW Legal Defense and Education Fund, and the American Association of University Professors, among others. Executive Director Kevin Cathcart is the Lambda attorney on the case. Pruitt v. Secretary of Defense (California) DISCOVERY. Last August, the United States Court of Appeals for the Ninth Circuit ruled that the Army must provide a rational basis for its discriminatory policy. This was the first time a federal Court of Appeals had so ruled, placing the burden on the Department of Defense and the Army to prove that the policy of exclusion is based on legitimate evidence, and is not founded upon prejudicial stereotypes. In prior proceedings, the Supreme Court denied a petition to review the ruling, thus allowing the case to return to the trial court. Former Lambda Staff Attorney Mary Newcombe attempted to move forward with Rev. Pruitt's case at the district court level, however all proceedings were stayed pending the outcome of President Clinton's decision regarding the ban on gays and lesbians in the military. The stay was lifted on July 15th, after the new policy was announced, and the case is proceeding with discovery. Rev. Dusty Pruitt, who is pastor of the Metropolitan Community Church of Long Beach, CA, served 15 years in the Army and Army Reserves before she was formally discharged in 1986 following an interview published in the Los Angeles Times that revealed her sexual orientation. In addition to a declaration that the military's policy is unconstitutional, Rev. Pruitt is seeking reinstatement in the Army Reserves and a chance to complete the 20 years of service that will entitle her to pension benefits. Former Staff Attorney Mary Newcombe is now handling the case as a Cooperating Attorney for Lambda. Lambda is litigating the case as co-counsel with the ACLU Foundation of Southern California. Cammermeyer v. U.S. Army (Washington) DISCOVERY. Lambda attempted to move forward with Colonel Margarethe Cammermeyer's challenge to the military policy banning openly lesbian and gay service members at the trial court level. However, as in Pruitt, the proceedings were stayed pending the new military policy announcement. Like Pruitt, the case is now proceeding with discovery. Colonel Cammermeyer, a 27-year veteran of the Army and National Guard, and Chief Nurse of the Washington State National Guard, was discharged from the military on June 11, 1992 because she is a lesbian. Among many other honors, she has received a Bronze Star for her service in Vietnam and was selected as the Veterans Administration Nurse of the Year in 1985. Former Lambda Staff Attorney Mary Newcombe continues to represent Colonel Cammermeyer for Lambda, together with co- counsel Jeffrey Tilden and Michael Himes of the Seattle law firm Perkins Coie who are representing the Northwest Women's Law Center, and the National Lawyers Guild's Military Law Task Force. Doe v. SUNY/Buffalo School of Law (New York) DECISION STILL PENDING. Lambda represents Jane Doe, who filed a grievance with the Governor's Office for Lesbian and Gay Concerns to protest SUNY/Buffalo's violation of the Executive Order prohibiting discrimination based on sexual orientation in the provision of state services. The violation stems from the school's permitting the military, with its anti-gay ban, to use the placement offices and other school services and facilities. Lambda won the initial round, but lost on appeal to the State Commissioner for Human Rights. In August 1992, we filed a mandamus action to force the Commissioner to apply the Governor's Executive Order banning discrimination based on sexual orientation. A hearing was held in January 1993, and we are still awaiting the judge's decision. Lambda's Evan Wolfson represents the complainant, together with Cooperating Attorneys Timothy Reinig and Carey Wagner of Robinson, Silverman, Pearce, Aronsohn & Berman. Lloyd v. Grella (New York) NO CHANGE/POSSIBLE APPEAL. In this appeal of a mandamus action, Lambda filed an amicus brief in the Appellate Division in support of the Rochester Board of Education's enforcement of a non- discrimination provision against the military. The lower court found that a state law requiring that the military be given access to recruitment "on the same basis" as other employers prohibits banning the military from campus; we, on the other hand, argue, as we have in the SUNY/Buffalo case (above), that "same" means "no more or less" access, that is, access subject to the same prohibition on discrimination. The Appellate Court affirmed the lower court's decision without opinion. Rochester city attorneys are considering whether to seek leave to appeal. Evan Wolfson was the Lambda attorney on the brief, submitted together with the Bar Association for Human Rights of Western New York. POLITICAL ASYLUM Lambda has brought three cases for persons seeking asylum in the United States, two on the basis of sexual orientation and one on the basis of HIV status. The cases seek to establish that gay men, lesbians, and people with HIV constitute identifiable social groups which are subjected to persecution and which should qualify for asylum. In Re Pitcherskaia (California) NO CHANGE. Lambda has filed documents to challenge the Immigration and Naturalization Service's initial denial of political asylum to Alla Pitcherskaia, a Russian lesbian now living in San Francisco who suffered repeated arrests, imprisonment, and physical violence in her home country because of her sexual orientation. In June 1992, Pitcherskaia applied for asylum in the U.S. based on her fear of continued persecution should she return home to Russia. Her application was denied and she now is proceeding to challenge the denial. Pitcherskaia is being represented by Lambda's Western Office Director J Craig Fong and Staff Attorney Suzanne Goldberg, with the help of Cooperating Attorney Ignatius Bau, a Staff Attorney of the Lawyers Committee for Civil Rights in San Francisco. In Re A.T. (New York) DEVELOPMENTS. Lambda filed an application for political asylum for an Iranian gay man who fears that if he returns to his home country, he will be persecuted or put to death. In Iran, being gay and engaging in gay sexual activity are criminal offenses which are actively prosecuted. For a first "offense," A.T. could be subject to 100 lashes, and future "offenses" are punishable by execution. Recently, we submitted a copy of A.T.'s asylum application to the United Nation's High Commissioner for Refugees. After a careful evaluation, a written decision was issued, "...in light of the above analysis, and assuming the truthfulness of your client's allegation [i.e., that he is gay], A.T. has met the definition of refugee found in the convention and protocol." The convention and protocol referred to are the 1951 Convention and 1967 Protocol Relating to the Status of Refugees -- both of which the United States is a member, and which bolsters our application. Lambda Board member Noemi Masliah is the Cooperating Attorney representing A.T. She is being assisted in the case by Lambda's J Craig Fong and Suzanne Goldberg. In Re Rivas (California) DEVELOPMENTS. In this case, Lambda is representing Jacobo Rivas, a gay Nicaraguan national with AIDS. Rivas is currently under an order of deportation and is seeking to quash the order so that he can reopen his case and argue that deportation to Nicaragua will subject him to persecution. Rivas fears double persecution in his home country, based both on being gay and on having AIDS, a stigmatizing disease. In Nicaragua, gay and lesbian sexual activity is criminalized, and Rivas fears that he will be deprived of medical care because of his HIV status. Lambda and our Cooperating Attorney -- David Illions, a Los Angeles immigration specialist -- have contacted the INS to clarify the procedural posture of the case. The case has been handled in immigration courts in both Texas and Florida. As soon as both files are located, motions will be made to move the case to California. Illions is representing Rivas with assistance from Lambda's J Craig Fong and Suzanne Goldberg. PUBLIC SERVICES & ACCOMMODATIONS Dale v. Boy Scouts of America (New Jersey) TRIAL APPROACHES. In the first case filed under the new state- wide New Jersey gay and lesbian civil rights law, Lambda represents James Dale, a 21-year-old year Eagle Scout, who earned thirty merit badges, and was invited to become an Assistant Scoutmaster before his twelve-year involvement with the Scouts came to an abrupt end. When a local newspaper ran an article picturing Dale at a seminar on the psychological and health needs of lesbian and gay teenagers, he received a letter from the Boy Scouts revoking his membership simply because he is gay. The complaint charges the Boy Scouts with illegal discrimination as a public accommodation, as an employer, and as an organization conducting business. Other legal claims challenge the Boy Scout's unfair practices in denying Dale a right to be heard as required by Scout rules, and in misrepresenting itself as a non-discriminatory group open to "all boys." Currently, discovery is underway; we are preparing summary judgment papers and expect to go to trial in October. Dale is represented by Lambda together with co-counsel from the New York law firm of Cleary, Gottlieb, Steen & Hamilton, and the New Jersey firm of Evans, Osborne & Kreizman. Evan Wolfson is the Lambda attorney on the case. Lambda Amateur Radio Club v. American Radio Relay League (Connecticut) NO CHANGE. One meeting has taken place between an investigator from the Connecticut Commission on Human Rights and Opportunities (CCHRO) and Lambda's client and Cooperating Attorneys in one of the first cases to test the reach of Connecticut's state-wide gay rights law, which took effect in October 1991. Lambda filed a complaint in the CCHRO against the American Radio Relay League for rejecting an advertisement submitted by the Lambda Amateur Radio Club (LARC), an organization for lesbian and gay ham radio operators and supporters. For more than six years, the editors of QST, a monthly magazine devoted to ham radio issues, have rejected LARC's submission of a simple advertisement for the magazine's classified ad section. The League maintains that it rejected the ad for representing a "special interest group," although QST continues to publish the ad of ham radio operator clubs with memberships ranging from Jehovah's Witnesses to followers of Ayn Rand. Lambda's Suzanne Goldberg represents LARC, along with Cooperating Attorneys Robert G. Miller, Catherine McGrath, Gail Bernhaut, and John Lynch all of the New York law firm Brown Raysman & Millstein. VIOLENCE Vermont v. LaDue (Vermont) VICTORY! At the end of June, the Vermont Supreme Court issued a ruling upholding the state hate crimes penalty enhancement statute in this constitutional challenge by a man convicted of gay-bashing. The court followed the recent ruling of the U.S. Supreme Court that Wisconsin's similar hate crimes penalty enhancement statute did not violate a defendant's first amendment rights. Lambda's amicus brief to the Vermont Supreme Court provided documentation of the pervasive violence against lesbians and gay men and argued that the statute is constitutional, notwithstanding the United States Supreme Court's invalidation of the much broader statute in St. Paul, Minnesota. Cooperating Attorney Ted Bohn and Lambda's Suzanne Goldberg wrote the amicus brief which was joined by the Vermont Coalition of Lesbians and Gay Men. AIDS-RELATED DISCRIMINATION EMPLOYMENT Dorsey v. U.S. Department of Labor (District of Columbia) APPEAL PENDING. Lambda awaits word from the Court of Appeals of the District of Columbia regarding a briefing schedule for its appeal of the district court's February ruling dismissing the lawsuit of plaintiff James Dorsey. After ruling in August 1992 that Dorsey could pursue his HIV discrimination claim against the U.S. Job Corps under Section 504 of the Rehabilitation Act, the court reversed course in February and abruptly dismissed the lawsuit on grounds that sovereign immunity bars Dorsey's claim for monetary relief. Dorsey is a twenty-two year old gay man from Detroit who was discharged from the Job Corps after testing HIV-positive. While Dorsey's lawsuit has prompted the Job Corps to cease terminating new members solely because they test HIV-positive, the program continues to insist on its right to test all incoming Job Corps participants for HIV antibodies. Dorsey is represented by Cooperating Attorneys Ross Lipman and Theodore Mayer of Hughes Hubbard & Reed, along with Chris Wieber, Amy Rubin, and Robert Edwards, and by Lambda Staff Attorneys Mike Isbell and Evan Wolfson. EMPLOYMENT/TESTING HEALTH CARE WORKERS Doe v. Westchester County Medical Center (New York) NO CHANGE. Facing the loss of its Federal funding and continued state court litigation, Westchester County Medical Center agreed in January to reinstate an HIV-positive pharmacist to unrestricted duties, theoretically putting an end to what was the first Federal HIV-related civil rights enforcement action and six years of litigation. Our post-victory negotiations have continued ever since, as resolution remains elusive. In settling the Federal and state law suits against it, the Medical Center agreed to adopt a written policy of non- discrimination, provide training to employees, rehire the pharmacist without restrictions and with as much as $150,000 in back pay and benefits, and also pay $30,000 plus interest in emotional damages. In addition, the Medical Center is to pay Lambda attorneys fees. The case first arose in 1986 when our client, pharmacist John Doe, was hired by the Medical Center and underwent a routine pre-employment physical. In an admitted violation of state confidentiality rules, a nurse from another section of the hospital informed the hiring physician that Mr. Doe had tested HIV-positive as a patient at the hospital more than a year before. The Medical Center then refused to give Mr. Doe his job, which he had been scheduled to begin on December 15, 1986. Lambda filed state and Federal challenges shortly afterwards, and has been litigating successfully ever since. Evan Wolfson and Cooperating Attorney/Legal Advisory Committee Co-Chair Steven Rosen are the Lambda lawyers for the pharmacist, with Cooperating Attorney Mark Barnes having played a pivotal role in early stages of the case. In re: Hershey Medical Center (Pennsylvania) DECISION PENDING. Oral argument took place in April in this appeal challenging the hospital's disclosure to hundreds of patients that the plaintiff, a health care worker, was infected with HIV. Lambda and the ACLU filed an amicus brief in the case, stressing the public health consensus in opposition to routine disclosure of a worker's HIV infection, as well as the absence of evidence that the worker had exposed any of his patients to the virus. Amici included numerous public health, medical, and AIDS advocacy organizations. Lambda's Mike Isbell authored the brief, with assistance from the ACLU's Scott Burris. Doe v. Mercy Catholic Medical Center (Pennsylvania) DISCOVERY PROCEEDINGS FOLLOWING FAVORABLE ADMINISTRATIVE ACTION. Discovery is proceeding in this federal challenge to a Philadelphia hospital's decision to terminate the admitting privileges of an HIV-infected orthopedic surgeon. Earlier this year, the Equal Employment Opportunity Commission formally declared that there was probable cause to believe that the hospital's actions violated the employment provisions of the Americans With Disabilities Act. The plaintiff, the first HIV- infected health care worker to sue under the ADA, has also filed a claim under the Rehabilitation Act, asking the U.S. Department of Health and Human Services to terminate the hospital's federal funding. Mike Isbell and Evan Wolfson represent the surgeon, along with John DePietro of Philadelphia, Scott Burris of the ACLU, and Lambda cooperating attorneys Rob Saunders and Edwin McAmis. INSURANCE - CLAIM CAPS Westhoven v. Lincoln Food Service Products (Indiana) LOSS. Our battle to save our precedent-setting victory in the Indiana Civil Rights Commission barring AIDS caps came to an end when an appellate court upheld a trial court ruling that ERISA preempts state civil rights laws. The decision followed several other adverse rulings in other cases on this issue. The Commission had upheld a hearing officer's determination that a company whose self-insured employee benefits plan imposes a severe cap and differential reimbursement scheme on AIDS coverage violates state civil rights law, which prohibits discrimination based on handicap. The appellate ruling, which we will not appeal, means that the best remedy against this discrimination is with the Americans with Disabilities Act, which did not exist at the time we began this fight. Lambda's Evan Wolfson and Cooperating Attorney Richard Swanson of the Indianapolis law firm of Segal & Macy were the attorneys for Ken Westhoven's estate. NEEDLE EXCHANGE Commonwealth v. Leno & Ingalls (Massachusetts) LOSS. Ignoring the willingness of numerous state courts to dismiss criminal prosecutions against needle exchange activists, the Supreme Judicial Court (Massachusetts' highest court) upheld the criminal convictions of two Massachusetts men who opened a needle exchange project in a north Boston suburb. The appellants, who had been convicted of violating the Commonwealth's law prohibiting sale, possession, or distribution of needles or syringes without a prescription, had argued that it was improper for the trial court to have refused to instruct the jury regarding the "necessity" defense, which holds that the law may disregard a technical criminal violation if the harm sought to be addressed by a defendant's action outweighs the harm sought to be avoided by the criminal statute. Lambda filed an amicus brief on behalf of public health experts in the appeal. Lambda's brief, which was written by Mike Isbell, recounted the overwhelming data documenting the efficacy of needle exchange in reducing needle sharing and in lowering HIV infection rates. Citing the public health consensus in favor of needle exchange programs, the brief also described numerous studies that have failed to find any evidence suggesting that needle exchange results in an increase in drug use. Signatories to Lambda's brief included Harvard Professor Larry Gostin, a leading expert on AIDS-related public health policy, and Dr. Jonathan Mann, former director of the AIDS program of the World Health Organization. PUBLIC ACCOMMODATIONS - DENTISTS AIDS Project Los Angeles, et al. v. Western Dental Services (California) VICTORY! Lambda was co-counsel in this action brought in Los Angeles County Superior Court against Western Dental Services on behalf of AIDS Project Los Angeles, The Los Angeles Gay and Lesbian Community Services Center, and four individual plaintiffs who were refused treatment based on their HIV status. Recently, attorneys for the parties arrived at a settlement. In addition to Lambda's former Staff Attorney Mary Newcombe, the plaintiffs were represented by Katie Wohn of the law firm Tuttle and Taylor, the ACLU Foundation of Southern California, and the Western Center on Law and the Handicapped. Campanella v. Hurwitz (New York) VICTORY! The New York City Commission on Human Rights finally issued its decision in this AIDS discrimination claim against a dentist who refused to treat a gay man with HIV. The Commission adopted the Administrative Law Judge's "recommended decision," which we won two years ago following a lengthy evidentiary hearing. The decision reaffirms the human rights law's protection against HIV discrimination in medical and dental offices, agreeing with Lambda that: (1) dental offices are "places of public accommodation" subject to the law and are not "distinctly private"; (2) the refusal to treat a PWA was medically unjustified and legally intolerable; and (3) infection control and universal precautions, not discrimination, are the best means of assuring a safe and lawful dental practice. This is the first such affirmative precedent in New York State. Because of an adverse decision in another case arguably binding on the Commission, there was a two-year delay during which the Commission wrestled with the issue; the latest ruling came once we and Commission attorneys persuaded the attorney that the other case need not prevent its going forward and promulgating a decision protecting non-discriminatory access to medical and dental services. We are awaiting the dentist's decision on whether to appeal the judgment and the $7,500 damages he has been ordered to pay to our client's estate. Lambda's Evan Wolfson represents the estate of the complainant. The Commission's attorneys are Mitchell Karp and Scott Caplan-Cotenoff, who conducted the hearing together with Evan. Elstein v. N.Y.S. Division of Human Rights (New York) NO CHANGE. This case before the State Division of Human Rights also involves the refusal of an orthopedist to continue treating a patient once he learned that the patient had AIDS. Lambda prepared two amicus briefs in the case, arguing that medical and dental offices are places of public accommodation and, therefore, are subject to the state (and, where applicable, city) civil rights laws. Cooperating Attorneys Bob Petrucci and Ellen Gesmer of Gulielmetti & Gesmer wrote an amicus brief for a broad coalition of civil rights groups, with the assistance of Lambda's Evan Wolfson. In addition, Lambda submitted an amicus brief on behalf of several distinguished medical professionals and public health experts, arguing that permitting discrimination by health care facilities would be a major impediment to individual and public health. Evan Wolfson wrote the medical professionals' brief, and helped coordinate amicus strategy. STANDARDS OF CARE - CDC AIDS DEFINITION S.P., et al. v. Sullivan (New York) POSITIVE CHANGES/SETTLEMENT NEGOTIATIONS BEGUN. The Centers for Disease Control (CDC) announced new regulations in early July governing disability benefits for people with HIV infection which address virtually all of the concerns raised by our lawsuit challenging the Social Security Administration's (SSA) reliance on a grossly inadequate definition of AIDS from the CDC for awarding Social Security benefits. The new regulations add the predominant manifestations of HIV in women, drug users and low income people as criteria by which HIV-infected individuals can qualify for disability benefits. Previously, the SSA regulations required people suffering from aggressive and recurrent infections such as pneumonia, sepsis, endocarditis and meningitis to meet extremely stringent functional tests while persons suffering from diseases contained in the CDC's definition of AIDS could qualify on the basis of medical evidence alone. Additionally, the regulations list disabling conditions common in women such as pelvic inflammatory disease which did not appear at all in the earlier standards. Because the new regulations so closely satisfy the demands made in our original complaint, our litigation team has entered into settlement negotiations with the Department of Health and Human Services. The Lambda attorney is Suzanne Goldberg who is working with lead counsel and Liberty Award recipient Terry McGovern of the ASC HIV Law Project, as well as MFY Legal Services, Brooklyn Legal Services, Cardozo Law School's Bet Tzedek Legal Services, and the Center for Constitutional Rights. - HEALTH CARE FACILITIES Porter v. Axelrod (New York) NO CHANGE. Discovery is still proceeding in this lawsuit, which challenges New York State's standards of care for residential health care facilities for persons with AIDS/HIV. Because the State greatly weakened its guidelines at the behest of the Roman Catholic Archdiocese of New York, which obtained state approval to operate two such HIV residential facilities, the standards eventually adopted do not provide adequate assurance of good HIV and gynecological services, nor a pledge of non-discrimination. Lambda is co-counsel with Winthrop, Stimson, Putnam & Roberts and the Coalition for the Homeless. Evan Wolfson and Mike Isbell are handling the case for Lambda. - UNIVERSAL PRECAUTIONS/PATIENT DISCLOSURE Boulais v. Lustig (California) PARTIAL VICTORY. The trial court granted in part our motion to set aside the jury's unprecedented verdict against our client, a person with AIDS sued by her health care worker. Agreeing with us that "there is no duty of a patient to be truthful concerning his/her medical condition," the court threw out one of the two counts, "negligent infliction of emotional distress." Unfortunately, this important policy victory was left incomplete by the judge's unexplained failure to dismiss the seemingly parallel "fraud" claim. We have filed a notice of appeal. Following a five-week trial, a Los Angeles jury awarded damages against Jan Lustig, a PWA sued by a surgical assistant, Diane Boulais, after Lustig underwent breast surgery at the Breast Center without disclosing her sero-positive status. During a suture removal at a follow-up visit, Boulais cut herself on a scalpel held improperly by the surgeon. Despite the health care providers' failure to follow the government and professional standards that would have prevented the injury, and even though she was not infected, Boulais sued alleging causes of action for fraud, intentional infliction of emotional distress, and negligent infliction of emotional distress. The jury threw out the intentional claim, but found liability for fraud and negligence, awarding $102,500 in total damages (apportioning 60% to the patient, 26% to the Breast Center, 13% to the surgeon, and 1% to the plaintiff). Another part of the case occurred when, upon filing suit, Boulais and her attorneys, the Los Angeles firm Mitchell, Silberberg & Knupp, issued a press release which identified Lustig by name, and disclosed her HIV status as well as her hometown and other personal information. We filed a cross- complaint against Boulais' employer for this breach of confidentiality, successfully settling the claim on the eve of trial with a payment from the Breast Center of $35,000 to our client. The case against Boulais continues in the appellate court. The case is being handled by Cooperating Attorneys Rich DeNatale, Dan Slaughter, Tim Cahn, Shawn Parrish, and Sandy Feinland of the San Francisco/Los Angeles firm of Heller, Ehrman, White & McAuliffe, together with Lambda's Evan Wolfson.