LESBIAN/GAY LAW NOTES
ISSN 8755-9021 September 1998

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

Contributing Writers: Ian Chesir-Teran, Esq., New York City; Otis
R. Damslet, Esq., New York City; Steven Kolodny, Esq., New York
City; Todd V. Lamb, 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; Paul Twarog, Esq., New York City; Dirk
Williams, Esq., Boston, Massachusetts; Robert Wintemute, Esq.,
King's College, London, England; Leo Wong, New York Law School
Student.

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

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(C) 1998 by the LeGaL Foundation of the Lesbian & Gay Law
Association of Greater New York    
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SEVENTH CIRCUIT UPHOLDS CHALLENGE TO STUDENT FEE SUPPORT FOR CAMPUS
GROUPS

In a case with serious implications for the continued survival of
lesbian and gay student groups at public university campuses, the
U.S. Court of Appeals for the 7th Circuit ruled on Aug. 10 that
objecting students may not be required to pay activity fees that
will be used to fund ideologically or politically oriented
activities to which they object.  _Southworth v. Grebe_, 1998 WL
461932.  In an opinion by Circuit Judge Daniel Manion, a unanimous
three-judge panel ruled that the University of Wisconsin-Madison
must come up with a system to allow objecting students to avoid
having their fees support objectionable activities.  (Due to the
basis for the decision, it concerns only student fees at public
colleges and universities.)

The plaintiffs are five UW-Madison students who characterize
themselves as Christians and who objected on religious grounds to
their student fee money being used to support eighteen on-campus
organizations, including two gay groups, and AIDS support group,
and groups advocating for women's abortion rights and other causes
usually denominated as "left-wing."  The plaintiffs were
represented by the Alliance Defense Fund, a Christian legal
advocacy group.

At UW, about half of the student activity fee was used by the
administration to support various student-support facilities, and
the other half was allocated to a fund administered by the student
government organization, out of which money was distributed for
various student clubs and activities.  There are about 200 student
organizations on the campus, and administrators calculated that on
average the amount of activity fee money going from any particular
student to any particular club was relatively trivial, although
cumulatively the amounts distributed to some clubs were rather
large.  For example, the Wisconsin Public Interest Research Group
(WISPIRG), first on the plaintiffs' hit list, received $49,500 in
student fee money during the 1995-96 academic year, and the Campus
Women's Center, another club on the list, received $34,200.  Each
of the organizations on the list was alleged to be taking part in
political or ideological activities involving advocacy.  For
example, one of the gay groups, the Ten Percent Society, was using
its internet home page to advocate legislation authorizing same-sex
marriages.  

The plaintiffs argued that because the activity fee was imposed as
a mandatory obligation by the University, the distribution of a
portion of their fee to groups in support of political/ideological
activities to which they objected was forced speech, in violation
of their First Amendment rights.  The University argued in defense
that it had a compelling interest in supporting diversity of speech
on the campus, which would be sharply undermined abandoning the
current fee distribution system.

Judge Manion found that prior rulings concerning the political use
of mandatory union dues and bar association dues provided a
rationale for ruling in favor of the plaintiffs.  Although the
Supreme Court specifically reserved the issue whether an objecting
student had a constitutional right to complain about the use of her
fee to support activities to which she objects in _Rosenberger v.
Rector and Visitors of the University of Virginia_, 515 U.S. 819
(1995), in a concurring opinion Justice O'Connor had commented that
a student fee might be "susceptible to a Free Speech Clause
challenge" in such a case.  Perhaps more significantly, although it
reserved the question, the Court mentioned its prior decisions in
_Keller v. State Bar of California_, 496 U.S. 1 (1990), and _Abood
v. Detroit Board of Education_, 431 U.S. 209 (1977), as potentially
bearing on the question.

In _Abood_, the Court held that public employees who were required
to pay a representation fee to a union as a condition of employment
could object to the union spending any of their fees on political
activities to which they objected, where those activities were not
"germane" to the purpose of providing collective bargaining
representation to the employees on employment conditions.  In
_Keller_, the Court upheld California's requirement that all
practicing lawyers be members of the State Bar Association and pay
membership dues, but ruled that the state "may not, however, in
such manner fund activities of an ideological nature which fall
outside of those areas of activity" [i.e., activities involving in
regulating the legal profession and improving the quality of legal
services].

In this case, Manion rejected the University's contention that
because the use of student fees to fund diverse organizations
furthers the University's educational goal of having a diversity of
viewpoints expressed on campus, such expenditures would
automatically be sufficiently "germane" to meet the 1st Amendment
test laid down by the Supreme Court.  The court specifically
rejected the precedent of _Carroll v. Blinken_, 957 F.2d 991 (2nd
Cir. 1992), in which the court had rejected a 1st Amendment
challenge to the use of student activity fees in the N.Y. state
university system to fund campus chapters of the NY Public Interest
Research Group, and finding more persuasive the contrary precedents
of _Galda v. Rutgers University_, 772 F.2d 1060 (3rd Cir. 1985),
and _Smith v. Regents of the University of California_, 844 P.2d
500, cert. den., 510 U.S. 863 (1993).

Manion also found that other aspects of the 1st Amendment test had
not been met.  For example, in the union dues cases, the courts
have found that some union activities going beyond the traditional
collective bargaining function could be financed out of mandatory
fees because they involved advancing the interests of the
employees, including those who objected.  Manion found such a nexus
of interests missing here.  "In this case," he wrote, "while there
may be a common cause in education and shared governance, there is
no common cause between private organizations which engage in
political and ideological speech and the objecting students.  Thus,
we see no vital policy interest supporting compelled funding of the
private associations.  And we might even conclude that far from
serving the school's interest in education, forcing objecting
students to fund objectionable organizations undermines that
interest.  In some courses students are likely taught the values of
individualism and dissent.  Yet despite the objecting students'
dissent they must fund organizations promoting opposing views or
they don't graduate."

Finally, Manion found that the fee system failed the third prong of
the test established by the Supreme Court, that the funding
mechanism does not "significantly add to the burdening of free
speech inherent in achieving" the interests the University seeks to
achieve.  Here, Manion found, the burden on objecting students' 1st
Amendment rights "is particularly great" since the organizations
were using their student fee funding to advocate positions with
which the objecting students strongly disagreed.  While the campus
groups have 1st Amendment rights to advocate controversial
positions with which other students may strongly disagree, "the
Constitution does not mandate that citizens pay for it," Manion
asserted.  

However, the court did conclude that District Judge John Shabaz had
gone too far in the injunctive relief he awarded to the plaintiffs. 
Shabaz had ordered that the University "forthwith cease the funding
of private groups that engage in ideological or political advocacy"
and that the University set up an arbitration system under which
students could recover their fee money that had been
inappropriately used.  Because of the University's strong
educational goals, it was not appropriate to ban the University
from using student activity fees to support student organizations
that undertake political or ideological activities.  After all, the
students in those organizations were paying activity fees and had
1st Amendment free speech rights to engage in those activities. 
Only objecting students have a claim regarding "misuse" of their
fees.  The appropriate solution, according to Manion, was to order
the University to establish a system under which students could
determine in advance which organizations they did not want to
support and have their required fees reduced accordingly.  Blithely
waving aside the University's objection that it is virtually
impossible to specify in advance what proportion of the semester
activity fee might be going to organizations to which particular
students might be object, the court ordered the University to come
up with such a system, and specifically forbade the University from
establishing a refund system, under which it would be determined
after the fact whether particular objecting students were entitled
to a refund of fees because a certain percentage of their fee had
gone to student groups whose activities they found objectionable.

The court's ruling threatens to undermine the ability of some
student groups to survive on campuses, and groups concerned in
lesbian, gay, bisexual, transgender and AIDS issues may be
particularly vulnerable in a system where student may be presented
upon registration with a list of scores of groups and asked to
check off those they wish to support and those they don't.  Given
the split in circuit authority about the constitutional issues,
this case may provide the vehicle to get a Supreme Court
consideration of the issue, although the prior union and bar
association cases do not necessarily provide confidence that the
political/ideological student groups will fare any better in that
court.  

Lambda Legal Defense & Education Fund, which provided amicus
support on behalf of the campus gay student union, denounced the
court's result, asserting that it was "ironic and wrong" to upset
the existing funding mechanism "in the name of the First
Amendment." A.S.L.

LESBIAN/GAY LEGAL NEWS   

North Carolina Supreme Court Takes Custody Away From Gay Dad
 
Striking a terrible blow to the stability of children's lives, the
North Carolina Supreme Court overturned an appeals court and
reinstated a ruling that revoked a gay father's custody of his two
sons solely because the father was in a relationship with another
man. _Pulliam v. Smith_, 1998 WL 426854 (July 30).  In rendering
its decision, the court overruled a long line of cases holding that
a modification of custody must be based on a change of
circumstances which adversely affects the child. _Thomas v.
Thomas_, 259 N.C. 461, 130 S.E.2d 871 (1963).  Setting aside a long
line of decisions going back over 30 years by the state's
intermediate appellate courts, the court insisted: "This court has
never required the party moving for a modification of custody to
show that the change in circumstances has had or will have an
adverse consequence upon the child's well-being, and we decline to
do so now."

Carol J. Pulliam and Frederick J. Smith were married in 1982 and
are the natural parents of two boys.  They separated in 1990 and
obtained a divorce in California in 1991.  Pursuant to the
California divorce decree, the parties had joint custody of the
children, however, Smith had physical custody of the two boys. 
Pulliam had physical custody for two months during the summer and
for Christmas each year.  Until August 1994, the children lived
with Smith and his grandmother in North Carolina.  In February
1993, Pulliam re-married and moved to Wichita, Kansas.  In August
1994, Tim Tipton moved into Smith's home as Smith's lover and
Smith's grandmother moved out. 

The trial court made findings of fact including: that Tipton and
Smith sometimes kiss and hold hands in front of the children; that
Tipton and Smith engaged in reciprocal acts of oral sex about once
a week; that Tipton and Smith engaged in these acts of oral sex
while the children were home and in the bedroom (with door locked)
directly across the hall from the children; that Tipton and Smith
on at least one occasion had a party for other homosexuals; that
Tipton and Smith go to establishments that cater to homosexuals;
that Tipton has pictures of drag queens in his bedroom in open
view; that such pictures were no appropriate material for children;
that the children had seen Tipton and Smith in bed together; and
that the living environment will likely lead to the children
experiencing emotional difficulties.  The court made no specific
finding that the children had been adversely affected in any way by
the above facts. Based on the foregoing, the trial court modified
the custody decree awarding physical custody to Pulliam, and
restricting Smith's visitation to one month in the summer with
Tipton not present in the home.  

The intermediate court reversed the trial court, finding that the
evidence presented did not warrant a change of custody.  The
Supreme Court reversed in an opinion by Chief Justice Mitchell,
finding that the trial court's findings of fact were mostly
uncontroverted.  The court claimed that its ruling was not based on
the fact that Smith was a practicing homosexual, but rather that
its custody decision is based on the finding that Smith regularly
engaged in sexual acts with another man in the home where he
resided with the children.  (Oral sex is a crime in North Carolina,
although the court never expressly relies on this in its opinion.)

This author is having difficulty distinguishing the two.

Justice John Webb's dissent challenged the majority's decision to 
overrule a long line of cases holding that a modification of
custody must be based upon a change of circumstances which
adversely affects the children; the majority now holds that a
significant change of circumstances is sufficient to trigger
judicial reconsideration of custody, regardless whether its impact
on the children is good or bad.

Webb went on to note that there was no specific finding that
Smith's being homosexual or his relationship with Tipton had any
adverse affect on these children.  Further, Webb acknowledged that
the children appeared well-adjusted and were above-average students
in school.  Webb called for a test that would judge whether the two
children have been adversely affected by living with a practicing
homosexual, noting that the majority never made any findings
concerning how the circumstances affected the children.  

Commenting on the majority opinion, Justice Webb stated: "The
difficulty with the majority opinion for me is that it recites
actions by the defendant that the majority considers to be
distasteful, immoral, or even illegal and says that this evidence
supports findings in fact which allow a change of custody.  There
is virtually no showing that these acts by the defendant have
adversely affected the two children.  The test should be how the
action affects the children and not whether we approve of it. . .
I do not believe that we should allow a change of custody on
evidence which shows only that the defendant is a practicing
homosexual."

Justice Orr concurred with the majority, but stated that there
should be a two-tiered test to determine whether a modification of
custody is warranted.  First, whether there has been a change of
circumstances since the entry of the original custody decree. 
Second, whether the change of circumstances was substantial and had
some rational relationship to the welfare of the child.  Here, the
court found that by "becoming" homosexual, Smith created a
substantial change in circumstances and that the change affected
the children's welfare. 

Justice Orr stated that the burden of proof does not lie with
either party in determining the best interests of the child, as the
court's role in a custody matter is more inquisitorial in nature
than adversarial.

Overall, the court bent over backwards to justify a change in
custody away from a homosexual parent without showing that living
in that environment had an adverse affect on the children. 

Smith was represented by the Lambda Legal Defense and Education
Fund and North Carolina Gay and Lesbian Attorneys.  Lambda Director
Beatrice Dohrn stated: "The Court went to extraordinary lengths to
rule against this gay father.  This ruling undermines non-gay as
well as gay parents in unmarried relationships, no matter how
proven their parenting ability.  The Court has opened the door to
relitigating current custody arrangements for many families in
North Carolina."  Co-counsel Sharon Thompson of NC GALA said: "It
is a terrible misfortune to Fred, his family, and all North
carolina parents that anti-gay prejudice overruled the children's
experiences in this case."  _Todd V. Lamb_

9th Circuit Finds Trial Court Did Not Err in Allowing Evidence of
Plaintiff's Lesbianism in Harassment Case

In _Gretzinger v. University of Hawaii Professional Assembly_, 1998
WL 403357 (July 7), the U.S. Court of Appeals for the 9th Circuit
issued an unpublished decision affirming a jury verdict in favor of
a university professor accused of sexual harassment.  In
particular, the court held that the district court did not abuse
its discretion in admitting evidence regarding Gretzinger's sexual
orientation.

Michelle Gretzinger alleged that assistant professor of religion
Ramdas Lamb sexually harassed her during classroom discussions
about rape, and sexually assaulted her on numerous occasions.  The
University investigated and dismissed Gretzinger's charges.  Lamb
then filed a student conduct code complaint, but he dropped the
complaint after Gretzinger requested a public hearing.  Gretzinger
then sued Lamb, the University and the University of Hawaii
Professional Assembly for violations under Title IX, 1983, the
Equal Protection Clause of the 14th Amendment and a state law claim
for intentional infliction of emotional distress.  Lamb countersued
for defamation, false light invasion of privacy, malicious
prosecution, abuse of process, interference with business
advantage, and intentional infliction of emotional distress. 
Gretzinger settled with the University, and the district court
dismissed the claims against the Professional Assembly.  The trial
court dismissed all of Gretzinger's claims and Lamb's claims of
malicious prosecution and interference with business advantage.  Of
the remaining claims, the jury returned a verdict in favor of Lamb
on all counts.  

After finding that the district court had not abused its discretion
for admitting into evidence an alleged prior rape and an
extramarital affair by Gretzinger, the 9th Circuit panel found no
error in the district court's decision to admit evidence regarding
Gretzinger's sexual orientation.  Analyzing her claim under Federal
Rules of Civil Procedure 403 and 412, the court ruled that "while
evidence. . . of Gretzinger's lesbianism was prejudicial to
Gretzinger, it was also highly probative as to her emotional state.
. . ." in evaluating her claim of emotional distress.  In a
memorandum opinion, Circuit Judges Browning, Brunetti and Rymer
also noted that the district judge had offered caveats to the
jurors, telling them that the evidence "was not being admitted on
the issues of liability, number one, and it is also not being
admitted to prove or show any particular character trait on the
part of the plaintiff."  The panel was satisfied that the district
court had not abused its discretion, "especially in light of the
limiting instruction."  

Evaluating her other claims, the court also rejected Gretzinger's
accusation that the district court erred in dismissing her Title IX
retaliation claim.  Because Lamb dismissed his student complaint
before any action was taken, the court downplayed Gretzinger's
inconvenience by stating that "all that was required of Gretzinger
with respect to the complaint was to meet with the University Dean
of Students."  Likewise, Gretzinger was "allowed to graduate, had
a perfect grade-point average, and was accepted to several law
schools."  Any action taken by Lamb was "merely defending himself
against what he believed were false accusations," and the court
found that "Lamb was entitled to file a complaint."  Therefore,
because Gretzinger "was never disciplined in any manner," the court
dismissed her Title IX claim.

Finally, the court rejected Gretzinger's claim that the trial court
erred in rejecting her proposed jury instruction.  Since her only
remaining claim was for intentional infliction of emotional
distress, the trial court rejected her detailed instruction on the
law of sexual harassment, believing that it would merely confuse
the jury as to the elements of an emotional distress claim, and the
9th Circuit affirmed.  All other challenges were summarily
dismissed.  _Sharon McGowan_

Mass. Supreme Court Rejects Attack on Gay Psychiatrist's Testimony

The Massachusetts Supreme Judicial Court has rejected a convicted
murderer's argument that his trial was tainted because his
competency was determined, in part, by a gay psychiatrist. 
_Commonwealth v. Lo_, 1998 WL 406690 (July 22).

Wayne Lo, a student at Simon's Rock College in Great Barrington,
Massachusetts, used a high-powered rifle to shoot and kill two
people and wound four others on the college campus on Dec. 14,
1992.  His defense rested on mental incapacity, and he was
subjected to examination by a team of two psychiatrists appointed
by the state, Drs. Wesley Profit and Peter Cohen.  The doctors
submitted a report finding that Lo was not mentally ill.

Among other points raised on appeal, Lo argued that he should
receive a new trial on the ground of newly-discovered evidence: he
had learned that Dr. Profit is gay, and contends that Profit may
have been biased against him because of his anti-gay feelings, as
revealed in the psychiatric examination.  The court unanimously
rejected this contention, in an opinion by Justice Abrams.  The
trial judge, in rejecting Lo's post-hearing motion, observed that
the "new evidence" went to the issue of witness impeachment, and
that it was unlikely defense counsel would have used Profit's
sexual orientation to impeach him, inasmuch as Profit is also
African-American, and Lo had also made racist comments, but defense
counsel had not tried to use these facts to impeach Profit's
testimony.  The trial court also found that the other psychiatrist,
who is neither gay nor African-American, had concurred with and
signed the report finding that Lo did not suffer from mental
illness.  Additionally, the court noted that Profit's testimony was
not the only evidence in the record going to the issue of Lo's
competency; there was substantial independent evidence to support
the conclusion that Lo could be held criminally responsible for his
acts.  A.S.L.

8th Circuit Finds Gay Employment Discrimination Case Preempted
Under Federal Labor Relations Law

The U.S. Court of Appeals for the 8th Circuit ruled that a suit
asserting a claim of anti-gay workplace discrimination is preempted
by the labor arbitration requirement of a collective bargaining
agreement.  _Oberkramer v. IBEW-NECA Service Center, Inc._, 1998 WL
400464 (July 20).

John Oberkramer was employed by the IBEW, an international union,
as a claims processor at its service center in St. Louis.  He is
represented by Local 50 of the Service Employees International
Union.  Local 50's collective bargaining agreement with the IBEW
forbids, inter alia, discrimination on the basis of sexual
orientation.  The city of St. Louis has an ordinance forbidding
sexual orientation discrimination, but the ordinance does not
provide a private right of action.  Oberkramer claims that after
his supervisor learned that he was gay, he was subjected to
harassment, unequal working conditions, and ultimately termination
of employment.  

Oberkramer filed grievances with Local 50, which were both pending
when he filed his lawsuit in the St. Louis City Circuit Court.  The
suit alleged breach of employment contract, infliction of emotional
distress by acting in violation of the city's human rights
ordinance, and improper interference with contract.  The defendant
removed the case to federal court and moved to dismiss on grounds
of labor law preemption, arguing that Oberkramer's claims should be
dealt with through the grievance procedure.  Oberkramer argued that
his state law claims were not dependant on an interpretation of the
labor agreement, and thus should be remanded back to the state
court for determination.

Writing for the court, Circuit Judge Hansen found that Oberkramer's
claims did derive from the collective bargaining agreement.  The
agreement governs the terms of his employment contract, and thus
its construction is necessary to determine the contract claims. 
Because St. Louis's gay rights law does not provide a private right
of action, Hansen found that Oberkramer's discrimination claim
essentially arises out of the collective bargaining agreement's
anti-discrimination provision.  Consequently, that claim, and the
emotional distress claim arising from it, also require construction
and application of the agreement.

Consequently, under federal labor law the suit must be dismissed in
deference to the grievance arbitration process established in the
collective bargaining agreement.  A.S.L.

2nd Circuit Finds Police Chief Immune to First Amendment Charges by
Lesbian Subordinate

In a unanimous per curiam opinion, a panel of the U.S. Court of
Appeals for the 2nd Circuit found that Town of Greenburgh, N.Y.,
Police Chief John A. Kapica is immune to suit from a First
Amendment claim asserted against him by a Lori L. Gubitosi, a
lesbian who was formerly employed as a police officer in the town. 
_Gubitosi v. Kapica_, 1998 WL 500141 (Aug. 19).

According to her complaint, Gubitosi was "outed" to the public as
a lesbian due to leaks by town officials to the local press.  After
the press coverage, she feared performing strip searches on female
prisoners, anticipating that some might file civil rights charges
against her, and consequently began to refuse orders to perform
such searches.  When her refusals led to internal department
disciplinary actions, she submitted two memoranda to Chief Kapica,
objecting to various practices by her fellow officers.  Shortly
after she filed the memorandum, she was involved in a strip search
incident where she stated that she had performed such a search but
contraband was later found on one of the prisoners and a subsequent
investigation by the department suggested that she had lied about
performing the searches.  Consequently, she was discharged.  She
then filed this action, claiming that her discharge was in
retaliation for the memo she submitted, and thus a violation of her
First Amendment rights.

The district court referred the matter to a magistrate, who ruled,
inter alia, that Kapica was not entitled to qualified immunity on
the First Amendment claim.  Kapica took an interlocutory appeal,
which is the subject of this ruling by the circuit court.

The court found that, even viewing the facts most favorably to the
plaintiff, she had not provided "`affirmative evidence from which
a jury could find' that plaintiff has carried her burden of showing
that Kapica engaged in retaliation.'"  Apart from the conclusory
allegation that her discharge was in retaliation for the memo
because of the short period of time involved, the plaintiff offered
nothing to suggest that the discharge was not actually motivated by
the intervening strip search incident.  Thus, in this case the
court concluded that Kapica was immune from suit on the First
Amendment charge because the plaintiff had, in effect, failed to
allege facts that could lead a jury to conclude that retaliation
took place.  A.S.L.

Maine High Court Narrows Scope of Portland Public Accommodations
Ordinance

In _Clarke v. Olsten Certified Healthcare Corporation_, 1998 WL
404887 (July 21), the Supreme Judicial Court of Maine held that the
term "public accommodations" only refers to physical establishments
where services are rendered to the public.  Consequently, the
Portland Human Rights Act, prohibiting discrimination in places of
public accommodations on the basis of sexual orientation, did not
apply when services were rendered in a private home.

Olsten is a health care service provider offering assistance to
parents of children with special needs.  Robin Clarke engaged
Olsten to provide in-home health care for her eleven-year old son. 
Olsten assigned three different aides to Clarke's home between
August 1995 and November 1996, but failed to make a permanent
placement, attributing the failure to Clarke's sexual orientation. 
In December 1996, Olsten informed Clarke that it would not longer
provide in-home aides to care for her son.

Clarke sued Olsten for violations of the Portland Human Rights Act
(Portland, Me. Code 13.5-27(1).  The PHRA prohibits any proprietor
of a place of public accommodation from "directly or indirectly
refus[ing], withhold[ing] from or deny[ing] to any person, on
account of sexual orientation, any of the accommodations,
advantages or privileges of such place of public accommodation." 
Olsten moved to dismiss, claiming that Clarke's home, where the
services were rendered, was not a place of public accommodation. 
The trial court agreed, and dismissed Clarke's complaint; Clarke
appealed the decision.

Affirming the lower court's ruling, the Supreme Judicial Court held
that "the PHRA does not extend to all activities of a place of
public accommodation regardless of where they are performed." 
Writing for the court, Chief Judge Wathen noted that all of the
examples offered in the statute of a public accommodation "involve
places of physical location without exception."  The court rejected
Clarke's argument that "the definition of place of public
accommodation only requires that an establishment's services be
offered to the general public, not that those services actually be
offered within the physical confines of a place of public
accommodation."  If the services had been rendered in Olsten's
office, the court conceded that the PHRA would apply; as to
services rendered in a private home, on the other hand, the court
found that a "public accommodation" was not the site of the
violation, and the PHRA was irrelevant.

Purportedly "giv[ing] effect to legislative intent," the court used
the "plain meaning of the language" of the statute to preclude
services rendered in a client's home.  However, Portland Mayor
Thomas V. Kane, along with other city councilors, expressed their
disbelief at the court's ruling: "We think the decision is wrong. 
That certainly was not our intent.  If that's not clear, we're
going to make it clear."  (Portland Press Herald, July 23, 1988). 
Gary Wood, the city's attorney, announced plans to draft an
amendment to the ordinance for consideration by the City Council to
fill in this dangerous loophole to the PHRA.  _Sharon McGowan_

Florida Supreme Court Vacates Death Penalty for Murderer of Gay
Man; Orders New Sentencing Trial

In a unanimous per curiam opinion, the Florida Supreme Court has
vacated the death penalty sentence that had been imposed on Gary
Bowles for the murder of Walter Hinton.  _Bowles v. State_, 1998 WL
540006 (Aug. 27).  The court found that Duval County Circuit Court
Judge Jack M. Schemer erred in allowing several witnesses to
testify during the penalty jury trial about Bowles' hatred of gay
people and Hinton's homosexuality.

Bowles met Hinton at Jacksonville Beach in late October or early
November of 1994.  Bowles agreed to help Hinton move some personal
items from Georgia to Hinton's mobile home in Jacksonville, and
Hinton allowed Bowles to move in to his mobile home.  Police
arrested Bowles for the murder of Hinton on Nov. 22, 1994.  Bowles
confessed to the police that after an evening of drinking (during
which Hinton had gone to sleep), Bowles had "snapped" and dropped
a concrete block on Hinton's head and then strangled him.

Bowles pled guilty to premeditated first degree murder, and his
case was placed before a jury for a sentencing recommendation.  The
state's theory of the case from the outset was that Bowles, who was
very conflicted about homosexuality, had murdered Hinton because
Hinton was gay.  There was no evidence that Bowles and Hinton had
a sexual relationship.  

From the beginning of the proceeding and throughout, Bowles's
attorney objected to the state's theory and to the introduction of
various witnesses, who testified that Bowles had supported himself
for a time as a male hustler, having sex with men for pay even
though he stated that he didn't enjoy gay sex and did not consider
himself homosexual.  There was also testimony that a former
girlfriend of Bowles had become pregnant by him, but had an
abortion without his advance knowledge or agreement, and had broken
up with Bowles because of her disapproval of his ongoing sexual
activities with gay men.  Witnesses testified that Bowles had
expressed hatred of gay men, blaming them for the loss of his child
and the break-up of his relationship, and a jailhouse informant
testified that Bowles had admitted to "rolling faggots" in Daytona
Beach.  The state also presented testimony from a police officer
who had investigated a prior sexual assault charge against Bowles;
the officer testified that the victim said Bowles "was a hustler,
. . . a male prostitute."

In arguments before the trial judge over the admission of this
testimony, the state argued that it was relevant in showing the
jury Bowles's motivation, and specifically on the aggravating
factor that the murder was "cold, calculated and premeditated." 
The state's closing argument to the jury focused heavily on the
homosexuality angle, and the jury voted 10-2 to recommend the death
penalty.

The problem, according to the Supreme Court's opinion, was that the
state never provided a basis to tie all this evidence in with the
murder of Hinton.  "Although we agree that the State is to be
allowed to prove motive in this sentencing-only proceeding, we
disagree that the above-cited testimony and argument were relevant
to proving a material fact in this case because the State's
evidence failed to demonstrate a causal connection between Hinton's
alleged homosexuality, appellant's alleged `hatred of homosexuals,'
and the murder.  Rather, the cited testimony and argument based
upon this record were simply an attack on appellant's character
unconnected to this murder."  The court observed that Bowles
mentioned his hatred of homosexuals during his police
interrogation, but never "stated that this was the reason for
murdering Hinton.  Without any connection to this specific murder,
appellant's statements, by themselves, are not relevant to proving
either motive or CCP [cold, calculating premeditation] in this
case."

The court concluded that a new sentencing trial before a jury
should take place.  A.S.L.

Pennsylvania Supreme Court Holds Sex-Change Operation Need Not
Precede Legal Name Change

The Supreme Court of Pennsylvania ruled that a trial court abused
its discretion by denying a pre-operative transsexual's name change
petition absent a factual basis for doing so.  _In the Matter of
Robert Henry McIntyre_, 1998 WL 407203 (July 21).  Fifty-three year
old appellant Robert McIntyre, described in the opinion as
"struggling with personal gender identity issues since" age ten,
began dressing and holding herself out to the community as a woman,
Katherine McIntyre, in 1991.  McIntyre holds her apartment, bank
and credit accounts, and membership in local organizations as
Katherine; and is undergoing hormonal therapy and psychotherapy in
preparation for gender-reassignment surgery.

Prerequisite to gender-reassignment surgery is that candidates
undergo the "real-life test" whereby they live for a minimum of one
year in all aspects of life in the gender they are to become. 
McIntyre established at trial that she was unable to satisfy this
requirement because her employer will not recognize her as female
until it receives legal recognition of her name change.  The trial
court first blocked McIntyre's petition on the technical ground
that she failed to present testimony addressing the statutory
requirement that she be free of judgments.  McIntyre obtained
reconsideration and proved herself judgment free; at which point
the trial court (citing a 1978 precedent) held that it would not
grant legal name change until after gender-reassignment surgery on
the theory that the name change would deceive the public.  

Justice Zappala's opinion for the Supreme Court acknowledges the
trial court's discretion to deny name changes upon lawful objection
or if the petitioner seeks to defraud the public, but clarifies the
purpose of the change of name statute as preventing fraud by
petitioners attempting to avoid financial obligations.  Justice
Nigro's concurrence gives examples of non-financial fraud that the
statute seeks to prevent, which are also inapplicable to McIntyre. 
As it was undisputed that McIntyre was not seeking to evade debts
or judgments or commit fraud, the Supreme Court granted the
petition, stating "details surrounding Appellant's quest for
sex-reassignment surgery are not a matter of governmental concern." 
Pennsylvania joins New Jersey in this view, quoting a Superior
Court opinion stating "... judges should be chary about interfering
with a person's choice of a first name ... we perceive that the
judge was concerned about a male assuming a female identity in
mannerism and dress. That is an accomplished fact in this case, a
matter which is of no concern to the judiciary, and which has no
bearing upon the outcome of a simple name change application."

A footnote reveals that Justice Saylor, who did not participate in
the McIntyre decision, opined in a 1997 dissent that a transsexual
name change be granted only on completion of surgery. The 1997
decision required proof of petitioners' permanent commitment to
living as members of the desired gender before granting the change. 
_Mark Major_

Promissory Estoppel for Domestic Partners in Austin

A Texas appeals court upheld Proposition 22, which eliminated
domestic partner benefits for city employees of Austin, Texas, but
remanded on promissory estoppel grounds that may allow reliance
damages.  _Bailey v. The City of Austin_, 1998 WL 394211
(Tex.Ct.App. - Austin, July 16). 

The City of Austin extended family health benefits to its
employees' domestic partners in 1993.  A 1994 referendum restricted
family benefits to relatives by blood, adoption, conservatorship,
or heterosexual marriage.  City employees and their domestic
partners claimed (1) the proposition violated equal protection and
a Texas statute protecting contracts, and (2) because they had
relied on the promise of benefits, Austin was estopped from
canceling them.  The trial court granted Austin summary judgment on
all counts.

Writing for a unanimous appeals court, Justice Smith quickly
dispensed with the contract claim, observing that Austin's employee
manual explicitly said it was not a contract and reserved the right
to change benefit terms.  Most domestic partners being
heterosexual, Smith found no proof that Proposition 22 was intended
to discriminate against homosexuals, concluding it rationally
advanced a legitimate policy of "favoring legally cognizable family
relationships."  (Smith's otherwise highly analytical opinion did
not explain why Austin could effectively single out domestic
partners, who must register with the County Clerk, as the only
legal family relationship not extended benefits - while
simultaneously extending coverage to almost every imaginable
relative by marriage, including a spouse's grandparents.)  The
court remanded on promissory estoppel, however, which may entitle
plaintiffs to recover reliance damages.

Interestingly, Smith wrote: "While we hold the recognition of
marriage is a legitimate state interest, we do not comment on 
whether the prohibition on same-sex marriages is a fair or even a
constitutional policy."  Smith also acknowledged the restriction
placed a disparate burden on homosexuals, and rejected Austin's
argument that it could legitimately discriminate to save money:
"Equal protection demands that even limited financial resources be
rationally allocated so that individuals in like circumstances are
treated with parity."  _Otis R. Damslet_

Former Texas Legislator "Outed" in Criminal Prosecution

Former Texas state legislator Kenneth Lane Denton was "outed" as
gay in the course of a criminal prosecution against him for theft
and misapplication of fiduciary property.  In an opinion not
designated for official publication, the Texas Court of Appeals at
Austin upheld Denton's conviction and sentence for participating in
a scheme that appears to have diverted significant funds from the
organization of which he was executive director to another
organization run by his male lover.  _Denton v. State_, 1998 WL
476459 (Aug. 13).

Denton was hired to be the executive director of the Texas
Department of Public Safety Officers Association (DPSOA), a trade
organization of Texas law enforcement officers, effective July 1,
1986.  On September 1, 1988, DPSOA entered into a contract with
South Coast Associates, a public relations outfit formed by members
of the Chrestia family.  Denton was "romantically involved" with
John Chrestia.  The execution of the contract was effected by
Denton getting the president of DPSOA to sign it in a dark
restaurant as part of a pile of documents requiring signature,
without any real discussion of what it was about, and without
submitting it for board of directors approval as required by the
organization's formal policies.  Under the contract, DPSOA was
required to split new member income and other income from fund-
raising events with South Coast.  Eventually, it appears that
Denton directed substantial funds to South Coast, some of which had
nothing to do with any services performed for DPSOA by South Coast. 
The funds were sent by checks drawn on accounts Denton had opened
without proper authorization.  Ultimately, the whistle was blown on
this scheme by Mary Holt, a DPSOA administrative employee who took
her concerns to the board of directors.  

At trial, the prosecutor asked John Chrestia whether he had been
romantically involved with Denton, and Chrestia answered yes.  In
appealing his conviction, Denton asserted that this was
inadmissible character evidence and that any probative value
outweighed its prejudicial effect.  

Justice Kidd rejected Denton's argument.  Kidd found that the state
had not explored this topic for the purpose of proving that Denton
had acted in a particular way in conformance with his known
character, but rather that evidence of a personal relationship
between Denton and Chrestia was relevant in evaluating Chrestia's
possible bias as a witness.  Furthermore, Kidd noted that when Mary
Holt was testifying, Denton's attorney raised the homosexuality
issue by suggesting that Holt went to the board of directors out of
pique with Denton because she was smitten with Chrestia, and that
she had gotten the board's attention by telling them there was a
"nest of queers" in their Austin office.  Holt denied that
motivation on the stand, saying that she and Chrestia were "best
buddies," but she understood Chrestia was gay and Denton was his
lover, and she was not romantically attracted to Chrestia.

Denton was sentenced to twenty years imprisonment, but the trial
judge had suspended imposition of sentence and placed Denton on
"community supervision."  A.S.L.

N.Y. City Court Adopts Broad Reading for Prostitution Statute

N.Y. City Criminal Court Judge Michael R. Sonberg, a LeGaL member,
adopted a broad reading of the state's prostitution law while
denying motions to dismiss in _People v. Hinzmann and Thompson_,
1998 WL 481697 (Bronx County, June 30).  The female defendants were
charged with prostitution under N.Y. Penal Law sec. 230.00, after
they agreed with a male undercover police officer to "allow the
officer to touch the defendants' naked breasts and buttocks" and
"to have agreed to perform what is commonly known as `lap
dancing.'"  The defendants agreed to perform these acts for money. 
They moved to dismiss, arguing that the accusatory instrument was
facially insufficient because it did not charge them with agreeing
to engage in "sexual conduct" as required by the statute.

Judge Sonberg noted that there is no specific definition of "sexual
conduct" applicable to sec. 230.00 of the Penal Law.  However, the
N.Y. Court of Appeals has opined that in such cases it is up to the
court to "interpret and apply the statute here in a manner that
comports with its purpose."  More than twenty years ago, a trial
court had construed sec. 230.00 to apply to "sexual intercourse,
deviate sexual intercourse and masturbation," but Judge Sonberg
opined that "a more expansive interpretation" is warranted in light
of changing "cultural and sexual practices" over the past two
decades.  "Statutory construction cannot remain static while
entrepreneurial creativity brings forth heretofore unimagined
sexual `diversions,'" he commented.

Finding that the acts described in the accusatory instrument "were
suggestive of conduct done to satisfy sexual desire" and went
beyond mere nude dancing, a constitutionally protected expressive
conduct, Sonberg found that, taken together with the allegations
that the acts were to be performed for money -- "the essence of
prostitution" -- the accusatory instrument was sufficient and the
motion should be denied.  He also denied a dismissal motion brought
by another defendant, the person in possession of the premises who
had been charged with promoting prostitution.  A.S.L.

Domestic Partnership and Same-Sex Marriage Notes

The _Washington Post_ announced that it will provide health
insurance benefits for same-sex domestic partners of employees,
beginning January 1, 1999.  In an article announcing the new
benefits, published Aug. 15, the _Post_ identified other major
print media companies offering such benefits, including the New
York Times Co., Times Mirror Co., and Knight Ridder Inc.

Merrill Lynch announced that effective Jan. 1, 1999, it will
provide domestic partnership benefits for employees and amend its
non-discrimination policy to include sexual orientation.  The Aug.
26 announcement indicated that employees may elect to extend health
benefits to same or opposite-sex domestic partners or extended
family members.  Merrill Lynch is the largest brokerage firm in the
U.S.  _San Francisco Examiner_, Aug. 27.

Safeco, a large Seattle-based insurance company, announced that it
will extend spousal benefits to the same-sex partners of employees,
effective January 1, 1999.  The decision was a follow-up to
Safeco's recent merger with American States Ins. Co., which was
providing health, dental and group life coverage for same-sex
partners of employees.  The new benefits coverage will extend
nationwide.  Safeco has 12,000 employees.  _Seattle Times_, July
18.

Miami Beach, Florida, will now recognize the same or opposite-sex
domestic partners of its employees as spouses for purposes of
administering the city's sick leave, bereavement leave and annual
leave policies.  The pertinent ordinance, introduced June 17 by
Mayor Neisen Kasdin, was unanimously approved July 1 by the city
council.  It defines a domestic partner as "the dependent of an
employee in a committed relationship in which the partners consider
themselves to be a member of each other's immediate family," as
described in a news report in _Southern Voice_, July 9.

Although the Massachusetts Supreme Judicial Court appeared to give
the go-ahead to local legislation extending domestic partnership
benefits to Boston city employees, the issue has become bogged down
in a battle between Acting Governor Paul Cellucci, who wants to
restrict the benefits to same-sex partners, and Boston Mayor Thomas
M. Menino, who supports benefits for all domestic partners,
regardless of sex. Menino signed an executive order on Aug. 4,
extending the benefits, in response to the governor's announcement
that he would veto a home rule petition on the subject.  Stay tuned
for further developments.

Philadelphia's new ordinance extending domestic partnership
benefits to municipal workers has drawn the inevitable lawsuit,
this one put together by an anti-gay organization calling itself
the Urban Family Council.  The suit, filed in the Common Pleas
Court, argues that the city exceeded its legislative authority by,
in effect, redefining marriage, a status that is defined in state
law.  _Philadelphia Inquirer_, Aug. 15.

An Alaska referendum question intended to change the state
constitution to ban same-sex marriages is under fire in the courts. 
The Alaska Civil Liberties Union filed suit July 30, alleging that
the referendum is an improper mechanism to amend the state
constitution, because it directly contradicts the constitution's
equal protection provision.  _Fischer v. Ulmer_, filed in Anchorage
Superior Court, has been assigned to Judge Sen Tan.  The litigants
in the pending same-sex marriage case had previously filed a
challenge to the referendum on July 17, joined as co-plaintiffs by
a Baptist minister and his wife.  _Anchorage Daily News_, July 18,
July 31.

The Madison, Wisconsin, School District extended health benefits to
domestic partners of District employees effective June 1, but a
group of Madison residents has filed a lawsuit in state court
challenging the authority of the school district to take this
action.  One of the plaintiffs told the _Milwaukee Journal-
Sentinel_, July 11, "We just thought it would be damaging to the
traditional family structure."

The debate over same-sex marriage has contributed to some
consternation in religious quarters, as major denominations assert
their positions.  The United Methodist Church's highest court ruled
on Aug. 11 that ministers who conduct same-sex commitment
ceremonies are violating the church's law and may be subject to
discipline.  The previous week, an international conference of
Anglican and related denominations meeting in England passed a
resolution declaring homosexual activity to be "incompatible with
Scripture" and condemning ordination of gay people as priests.  The
voting was reportedly dominated by non-Western branches of the
church, and a large group of church leaders from the Episcopal
Church of the U.S. circulated a resolution countering the thrust of
the international vote.

Legislation Notes

For once, the gay side had a decisive win on a House of
Representatives vote on August 5.  Some conservative Republicans
furious at President Clinton's executive order banning sexual
orientation discrimination in the Executive Branch of the federal
government proposed an amendment to an appropriations bill that
would have denied any funding to enforce the executive order.  The
amendment was defeated by a vote of 252 to 176, with moderate and
even some conservative Republicans crossing party lines to vote
against it.  This was by contrast to an amendment passed by the
House 214-212 late in July to prevent San Francisco from using any
federal housing money to enforce its ordinance that requires city
contractors to provide domestic partnership benefits to their
employees, and another to shift $21 million in the housing bill
from assistance to persons with AIDS to assisting military
veterans.  Lobbyists were hopeful that these two amendments can be
removed during the House-Senate conference committee proceedings on
the housing appropriations bill.  More likely to lead to further
contention are two other House amendments, added to the District of
Columbia Appropriations Bill, one of which would ban joint
adoptions of children by gay couples (227-192), and the other of
which would prohibit the District from funding needle-exchange
programs as an HIV prevention measure (250-169).  Due to these and
other provisions, President Clinton has threatened to veto the
bill. 

The San Francisco Board of Supervisors does not take Congressional
criticism lying down.  In the face of the 214-212 vote by the House
of Representatives to bar San Francisco from spending any federal
housing money to enforce the local ordinance requiring that city
contractors provide domestic partnership benefits to their
employees, the Supervisors unanimously passed a new ordinance on
Aug. 10, requiring all businesses in the city to offer domestic
partners the same customer discounts that are provided for married
couples.  Mayor Willie Brown indicated he would sign the measure. 
_Los Angeles Times_, Aug. 11.  A.S.L.

Lesbian/Gay Litigation Notes

On Aug. 28, New York County Supreme Court Justice Stephen G. Crane
rebuffed the Giuliani Administration's first attempt to close a
gay-oriented adult business under the new adult zoning law passed
by the New York City Council.  According to press reports about
Crane's decision, which was issued too late for analysis in this
issue of _Law Notes_, Crane determined that three establishments,
including "Les Hommes" bookstore on Manhattan's Upper West Side,
had sufficiently altered their operations so that they would no
longer be "adult businesses" within the meaning of the zoning
ordinance, and thus not subject to its geographical exclusionary
terms.  Crane reportedly ruled that under the ordinance the only
considerations in deciding whether a business devoted a
"substantial portion" of its stock and floor space to adult
entertainment should be the actual stock and floor space
allocation, thus rejecting an administration argument that
proportion of revenue (not mentioned in the ordinance) should also
be considered.  A full analysis of the opinion will appear in the
October issue of _Law Notes_.

The Kansas Supreme Court has refused to hear an appeal in _City of
Topeka v. Movsovitz_, No. 77,372 (Kans. Ct. App., April 24, 1998),
a case challenging the constitutionality of a solicitation
ordinance in Topeka, Kansas, and the Kansas state sodomy law.  The
full text of the Court of Appeals' unpublished decision can be
found at the following website:
http://members.aol.com/kswebsite/appeals.html.

The California Supreme Court has unanimously ruled that
discrimination claims under the state's Fair Employment and Housing
Act may not be asserted against supervisory employees as individual
defendants, but only against the employer entity.  _Reno v. Baird_,
76 Cal.Rptr.2d 499, 957 P.2d 1333 (July 16, 1998).

The Massachusetts Supreme Judicial Court has further clarified some
issues concerning enforcement of the state's law requiring
registration and community notification concerning convicted sex
offenders.  _Doe v. Sex Offender Registry Board_, 1998 WL 416596
(July 24).  In a prior ruling, _Doe v. Attorney General_, 686
N.E.2d 1007 (1997), the court held that individual offenders were
entitled to a hearing on what level they should be classified for
purposes of the various registration and notice provisions.  In
this ruling, the court held that the due process hearing should
take place before the Sex Offender Registry Board, with the
possibility of appeal to the Superior Court.  Further, the court
ruled that the appropriateness of each offender's risk
classification "must be proved by a preponderance of the evidence,
and that the board must make specific, written, detailed, and
individualized findings to support the appropriateness of each
offender's risk classification."  The Board has the burden of proof
as to level of risk.

In an unpublished disposition, the U.S. Court of Appeals for the
4th Circuit has revived a retaliation claim as part of a same-sex
harassment lawsuit under Title VII of the Civil Rights Act.  _Scott
v. Norfolk Southern Corp._, 1998 WL 387192 (June 24).  The District
Court in Norfolk, Virginia, had dismissed the retaliation claim
based on 4th Circuit precedent requiring any same-sex harassment
claimant to allege that the harassers were gay or bisexual.  In
_Oncale v. Sundowner Offshore_, 118 S.Ct. 998 (1998), the Supreme
Court rejected such a requirement, so the 4th Circuit has vacated
the district court's dismissal order and remanded that part of the
case for trial.

The U.S. Court of Appeals for the 9th Circuit decided in an opinion
released on Aug. 24 that the District Court for the Southern
District of California had properly denied a writ of habeas corpus
sought by Robert W. Nydegger, convicted in 1991 of first degree
murder.  _Nydegger v. Prunty_, 1998 WL 540005 (unpublished
disposition).  Among other points, Nydegger had argued that the
fairness of his trial was compromised by the introduction of
evidence that he had engaged in homosexual encounters following the
victim's death.  The court of appeals stated its agreement with the
district court that this evidence was "permissible to rebut
Nydegger's claim that he did not commit the killing as he was in a
disassociative state due to the victim's alleged suicide."  The
short 9th Circuit memorandum does not otherwise recite the facts of
the underlying case.  

In an unofficially reported opinion announced July 9, the U.S.
District Court for the Northern District of California denied a
writ of habeas corpus sought by John Thomas Drayden challenging his
first degree murder and second degree burglary convictions stemming
from the death of Jerry Quinton on Dec. 29, 1989.  _Drayden v.
White_, 1998 WL 398157.  Drayden challenged the sufficiency of the
evidence, as well as raising various other challenges.  Quinton's
body was found in his San Francisco apartment with a telephone
answering machine cord wrapped tightly around his neck.  A
fingerprint left on a waterbottle in the back of Quinton's car,
which was found abandoned, led police to Drayden, who was in a
hospital in Hawaii recovering from a suicide attempt.  Drayden's
story at trial was that he murdered Quinton in a fit of rage
fending off an aggressive sexual attack, having met Quinton on the
street and been lured into Quinton's apartment on the pretense of
letting Drayden use the telephone.  The prosecution presented
eyewitness testimony that Drayden had met Quinton in a bar, the two
men engaged in conversation, and Drayden followed Quinton out of
the bar.  A friend of Quinton testified that Quinton was a mild-
mannered man who would not aggressively or physically pursue
somebody sexually if they rebuffed a verbal advance.  Drayden was
younger, stronger, and larger than Quinton.  District Judge Illston
found no basis to believe that the evidence was insufficient to
support the jury verdict, or that the state trial judge had
misinstructed the jury as to relevant legal issues.

A gay man from Fontana, California, won a $909,783 verdict in a
discrimination claim against Mag Instrument, Inc., an Ontario-based
flashlight manufacturer, on Aug. 12.  Jorge Rosas, who worked as a
shipping clerk for the defendant from March 1990 until his
discharge in November 1994, sued for wrongful discharge, emotional
distress, lost wages and medical expenses, alleging that he was the
target of a homophobic campaign of hateful remarks and notes,
physical attacks and death threats, and that his supervisor either
endorsed or ignored the harassment.  The case was tried to a jury
in Riverside County Superior Court.  Rosas had sought $2 million in
damages. The jury awarded less than half that amount, and
determined that it would not be necessary to have a further trial
on the issue of punitive damages.  _Press-Enterprise_, Riverside,
California, Aug. 13.

A group of disgruntled residents in Nebo School District in Utah
have filed a lawsuit against the state education department,
claiming that it should be seeking the discharge of a lesbian high
school teacher who is living with a same-sex partner.  The
plaintiffs allege in their July 23 state court complaint that the
teacher is violating the state's sodomy law and well as teacher
certification requirements of good moral character, and that the
education department and other state agencies are acting illegally
by failing to suspend her certification and require the school
district to discharge her.  The teacher, Wendy Weaver, is plaintiff
in another suit charges unconstitutional discrimination against her
by the school district.  _Washington Blade_, Aug. 14.

Activists in Tennessee lauded a decision by the Wilson County
General Sessions Court to award Pat Finn, a lesbian mother, sole
custody of her nine-year-old daughter.  Tennessee courts have not
been notably supportive of the parenting rights of openly gay
people.  Finn's ex-husband, Patrick Sullivan, announced he would
appeal the ruling.  _Commercial Appeal_, Memphis, July 28;
_Tennessean_, July 27. * * * The _Richmond Times-Dispatch_ reported
July 21 that Henrico County, Virginia, Domestic Relations Judge
Sharon Breedon Will has granted custody of her two young children
to a divorced woman who is now living in a lesbian relationship. 
(Another judge of the same court denied custody to Sharon Bottoms,
partly because she was living in a lesbian relationship, five years
ago.)  The case is under seal to protect the identities of the
parties.  A hearing had been held on July 8 after negotiations over
custody broke down between the parents.  The ruling was made public
by the mother's Virginia Civil Liberties Union attorney on the day
after the father's right to appeal the ruling had expired.

Ruling July 27 on a discrimination claim in _Weber v. Community
Teamwork, Inc._, Middlesex (Massachusetts) Superior Court Judge
Sandra Hamlin held that the defendant, an anti-poverty agency,
violated the sexual orientation provisions of the Massachusetts Law
Against Discrimination by firing Patricia Weber, a lesbian.  The
defendant claimed Weber was discharged for "inability to do her
job," but Hamlin found that "Weber's past work history while at CTI
reveals only a dedicated, bright and hardworking employee. . . 
Nothing whatsoever in the evidence supports defendants' contention
that Weber's inability to perform led to her termination."  Indeed,
Hamlin found Weber was better qualified than the recently-appointed
executive director of the agency who fired her.  Hamlin awarded
Weber $906,000 in damages and fees.  _Boston Herald_, July 28.

U.S. District Judge Duval granted summary judgment on timeliness
grounds to the defendants in the defamation case of _Martens v.
North_, 1998 WL 378137 (E.D.La. July 6).  Mark North is the author
of _Act of Treason_, a conspiracy theory book about the Kennedy
presidential assassination that was published by defendants Carroll
& Graff Publishers in 1991.  The plaintiff, Lloyd Martens, was
mentioned three times in the book, in which he is portrayed as a
co-conspirator in the assassination, a Mafia `go-between,' and a
homosexual.  Martens filed a diversity action on September 24,
1997, claiming defamation, invasion of privacy, unfair trade
practices, and interference with contractual relations.  Louisiana
provides one year to file a tort action from the time a plaintiff
knows or should reasonably know he has a claim.  Martens claimed he
did not become aware of the book until 1996, less than a year
before he filed suit.  The court found that other states within the
5th Circuit did not allow an "suspension of prescription" in mass
media tort cases, and decided that Louisiana (in which there was
apparently no direct precedent) would follow along the same lines. 


The Louisiana Court of Appeal, 3rd Circuit, found that a trial
court had committed a harmless error when it admitted contested
certain evidence in which murder defendant Ronald Reeves had stated
he killed Arnold Davis in self-defense because Davis made unwelcome
sexual advances to him.  _State v. Reeves_, 1998 WL 442981 (Aug.
5).

Elton M. Jackson, suspected of killing a dozen men, most of whom
were gay, was convicted Aug. 21 of murdering Andrew D. Smith in
1996.  The prosecutor claimed that Jackson had sex with Smith, then
strangled him and dumped his nude body on a dirt road in rural
Virginia.  The jury recommended a sentence of life imprisonment. 
Although Jackson was charged only in the Smith murder, the FBI
considers him a suspect in eleven other deaths in the Hampton Roads
region since 1987.  _Associated Press_, Aug. 21.  

Barry E. Amos and Andrew J. O'Brien, a gay couple who were denied
a family discount rate for use of the West Hartford, Connecticut,
town pool, filed a complaint on July 27 with the State Commission
of Human Rights and Opportunities, charging unlawful discrimination
on account of sexual orientation.  Last month, the Town Council
rejected a request by another gay couple, Michael P. Antisdale and
Mark R. Melanson, to adjust the pool fees.  _New York Times_, Aug.
13.

Matt Rosenberg, a gay man living with AIDS, has sued a McDonald's
Restaurant in Palmdale, California, claiming that his civil rights
were violated and he was caused emotional distress when a waitress
in the restaurant allegedly discriminated against him based on his
sexual orientation.  Rosenberg, who filed suite in Los Angeles
Superior Court in August, says that the waitress refused to take
his order, and verbally attacked him after he responded
affirmatively to her question, "Are you gay?"  Rosenberg claims
that after he asked to speak to the restaurant manager, the
waitress began screaming at him.  A spokesperson for McDonald's
claims that they investigated his charges and found them to be
baseless.  _Los Angeles Times_, Aug. 27.  A.S.L.

New York Appellate Division Allows Non-Biological Parent to Assert
Equitable Estoppel in Custody Dispute

A New York appellate court has used the doctrine of "equitable
estoppel" to allow a stepfather to seek child visitation.  The N.Y.
Appellate Division, 2nd Dept., distinguished _Allison D. v.
Virginia M._, 77 N.Y.2d 651 (1991), in which the N.Y. Court of
Appeals held that a lesbian co-parent was a "legal stranger" who
had no standing to seek visitation with the child whose birth she
planned with her partner and who she had participated in raising as
a parent prior to the party's break-up.  

In _Maybe H. v. Joseph H._, NYLJ, 8/20/98 (App.Div., 2nd Dept.,
Aug. 17), Maybe was pregnant by another man when she married
Joseph.  For seven years, Joseph was Kelly's de facto father, even
though all adult parties knew he was not the biological father and
he did not legally adopt Kelly.  In divorce proceedings, both
parents sought custody of Kelly and her half-brother.  Maybe
claimed that Joseph could not assert a custody claim for Kelly, as
to whom he is a "legal stranger," and the trial court agreed with
her, citing _Allison D._ and other cases involving heterosexual
unmarried couples.  But Justice Daniel Joy wrote for a unanimous
panel of the Appellate Division that Joseph may invoke equitable
estoppel to assert a custody claim as a parent.

Quoting from a law review article, Joy asserted that the doctrine
of equitable estoppel was "merely brushed upon by the gay
cohabitant" in _Allison D._ and, more significantly, that in the
intervening years the Court of Appeals has placed "a greater
emphasis on the best interests of the child as the determinative or
prevailing concern" in custody cases.  (This writer's recollection
of _Allison D._ is that although the Court of Appeals' terse per
curiam opinion merely mentions the estoppel claim without expressly
analyzing it, the claim was one of the central theories argued by
Allison D.'s counsel, Paula Ettelbrick, who was then legal director
of Lambda Legal Defense Fund, in her brief and appearance before
the court.)  It will be interesting to see whether this case goes
to the Court of Appeals, and whether it may presage a retreat from
that court's categorical rejection of non-statutory custody claims
by third parties who are not legally related to a child.  (For an
extended discussion of this issue supporting the result in _Allison
D._ by a gay legal scholar, see the new article by Professor John
DeWitt Gregory listed below in _Publications Noted_.)  A.S.L.

The Old Game Goes On

Fred King, Jr., was convicted of indecent exposure in Dallas County
Criminal Court (Texas), for unzipping and pulling out in front of
an undercover police officer in a public park.  He appealed his
sentence, arguing that the evidence was "legally insufficient to
show that he was reckless with respect to whether the officer would
be offended and alarmed by his conduct" as required by the statute. 
He lost.  _King v. State_, 1998 WL 474070 (Tex.Ct.App., Dallas,
July 29)(not officially published).

The Dallas police were investigating complaints about "open
displays of homosexual activity" in the park.  An undercover police
officer met King in the park and engaged him in conversation.  In
response to King's questions, the officer lied about his status and
said he had never been in the park before.  King gestured the
officer to follow him onto a trail into the park where it was
densely wooded.  Then King "took his penis out of his pants and
began to masturbate in front of the officer."  The officer arrested
King.

Writing for the court, Judge Morris noted that the officer
testified at trial "that he was offended and alarmed by appellant's
actions," and that it was King's idea to move deeper into the
woods.  Also, the officer testified that he did not ask King to
expose himself, and that King never asked for his consent or
whether the officer would be offended.  "A rational trier of fact
could have found from this evidence that the officer was offended
by appellant's conduct and alarmed that appellant had exposed
himself and began to masturbate in a public place."  Thus, King's
sole point of error was overruled and the conviction affirmed. 
(Those tough undercover cops are easily alarmed, no?)  A.S.L.

N.C. Appeals Court Lets Opposite-Sex Co-Parent Seek Custody

The North Carolina Court of Appeals has ruled in _Ellison v.
Ramos_, 1998 WL 436057 (Aug. 4), that a former domestic partner of
a natural parent may have standing to seek custody of the natural
parent's child under certain circumstances.  

In this case, Yvonne Ellison had provided parenting to the daughter
of Luis Ramos, before and after they lived together.  However, some
time after their break-up, Ramos took the child back to Puerto Rico
to live with his parents.  The child is diabetic.  Ellison sought
custody, alleging, among other things, that she was the only mother
the child had ever known, that she had been the primary caregiver
for a substantial period of time, that the child had expressed the
wish to live with her and not with the grandparents, and that the
grandparents were not capable of administering the medication the
child needed due to her diabetic condition.  

The trial court threw out the case, finding that Ellison was a
legal "stranger" to the child who lacked standing to seek custody,
and that Ramos enjoyed the constitutionally-mandated presumption
that a natural parent is entitled to custody of his or her child as
against a third party.

Writing for the appeals court, Judge Wynn found that the North
Carolina statute expressly allows "any parent, relative, or other
person. . . claiming the right to custody of a minor child" to
institute a custody action.  Court decisions have narrowly
restricted the circumstances in which a legal stranger may qualify
as an "other person" entitled to seek custody under this statute,
but Wynn found that on these facts Ellison would qualify, as "a
relationship in the nature of a parent and child relationship, even
in the absence of a biological relationship, will suffice to
support a finding of standing."  As to the presumption problem,
Wynn found that under Carolina precedents the natural parent
presumption may be rebutted where that parent "has taken actions
`inconsistent with the constitutionally protected status of a
natural parent,'" in which case custody should be determined using
the traditional "best interest of the child" standard that is
normally applied in custody contests between natural parents.  In
this case, Wynn found that Ramos had acted inconsistently with the
protected status, by leaving the child with Ellison for extended
periods of time, even when he and Ellison were not living together,
and by placing the child in the care of his parents when he took
her away from Ellison.  Consequently, Ellison is entitled to a
hearing to determine whether it would be in the child's best
interest to live with her.

Although the case concerns heterosexuals, its potential relevance
for same-sex co-parent custody disputes is obvious.  At the very
least, an argument might be made in a same-sex co-parent dispute in
North Carolina that a co-parent has standing to contest custody,
even though the natural parent presumption might prove
insurmountable on the merits in many such cases.  A.S.L.

Legislative Notes

After the county legislature in Onondaga County, New York, narrowly
approved a local law to ban sexual orientation discrimination,
there was much local speculation that County Executive Nicholas
Pirro would veto the measure.  At a public hearing, however, there
was an outpouring of testimonial support for the gay rights law,
and Pirro announced Aug. 21 that he would sign it, saying: "The
underlying concept of this local law is to protect our citizens
from discrimination, and thus, is a good one.  As we prepare
ourselves and our community for the challenges of the new
millennium, ensuring the rights of our citizens to fully
participate in community life is an appropriate action of
government."  The city of Syracuse, in Onondaga County, has had a
local law banning sexual orientation discrimination for many years. 
The new county law affects those living outside the city limits. 
_Post-Standard_, Syracuse, N.Y., Aug. 22.  

The Arkansas Child Welfare Agency Review Board voted July 28 to
revise licensing standards for private foster care agencies in the
state to prohibit unmarried persons from serving as foster parents,
whether homosexual or heterosexual, according to the _Arkansas
Democrat-Gazette_, July 29.

In a 3-2 vote on Aug. 25, the Kennebunk, Maine, Board of Selectmen
defeated a proposal to place a proposed gay-rights ordinance on the
ballot in November.  Although 63% of Kennebunk voters had voted
against a state-wide ballot measure that repealed Maine's gay
rights law last February, one of the selectman who voted no stated
that he supported a ban on sexual orientation discrimination but
preferred to see it dealt with on the state level.  _Associated
Press_, Aug. 27. * * * * On July 20, the town councilors in
Brunswick, Maine, voted unanimously to prohibit the consideration
of sexual orientation in hiring town personnel, by amending the
town's personnel policy to state: "The town of Brunswick is to
provide equal opportunity to all employees and applicants without
regard to religion, age, sex, race, color, ancestry, national
origin, physical or mental disability, or sexual orientation." 
Councilors stated that their vote was intended to affirm local
voters' support for the state's gay rights law in last February's
referendum.  _Bangor Daily News_, July 22. 

The San Diego, California, City Council voted 8-1 on July 20 to
repeal an ordinance that makes it a crime to cross-dress in public. 
The 1966 ordinance had been passed to target men who dressed as
women for purposes of prostitution.  A city councilmember commented
that other ordinances on the books could be used to deal with
prostitutes.  _San Diego Union-Tribune_, July 22.  A.S.L.

Law & Society Notes

Karen Franklin, a post-doctoral fellow in forensic psychology at
the University of Washington, reported at the American
Psychological Association's annual meeting in San Francisco in
August about a study she had performed of anti-gay attitudes and
hate crimes among adolescents.  She surveyed 500 community college
students in 30 classrooms in the five-county area around San
Francisco, and discovered that a high percentage of her respondents
had engaged in explicit anti-gay behavior, ranging from violent
attacks to verbal abuse.  About 10% of the respondents admitted to
having perpetrated physical attacks, or threatened to do so, toward
people they perceived to be gay.  When verbal abuse was added, the
proportion of respondents who admitted to anti-gay behavior jumped
to almost half of those surveyed.  _Seattle Post-Intelligencer_,
Aug. 20. 

The Internal Revenue Service's director of the Exempt Organizations
Division, Marcus Owens, has informed Lambda Legal Defense &
Education Fund that he and other Division executives will be going
out to the field offices to discuss "professionalism, fairness and
impartiality" in dealing with taxpayers, and will "illustrate those
concepts with examples that specifically address the issue of bias
against groups that are supportive of gay men and lesbians." 
Owens' statement came in a July 23 letter to Lambda staff attorney
David Buckel, responding to correspondence from Buckel pointing out
that Lambda had represented two different organizations over the
past few years that had initially been denied exempt status based
on field officers' inappropriate attempts to place restrictions on
the operations of gay organizations.  _Lambda Press Release_, July
31.

A Minnesota school district facing a suit by the local ACLU chapter
has agreed to extend a sort of quasi-official status to a Gay
Straight Alliance at Orono High School.  In order to avoid
providing formal recognition, the school will reclassify all
student organizations as either curricular, having full recognition
and status, and non-curricular, having certain on-campus privileges
but not others.  The Alliance will be able to post notices about
its events on unofficial bulletin boards, and to meet at the
school, but will not be allowed to have announcements made on the
public address system, to be listed in the yearbook, or to have its
notices officially posted.  In response to the new system, the
plans for the lawsuit were abandoned.  _Star Tribune_, Aug. 14.

Maryland Circuit Court Judge Larnzell Martin Jr. was apprehended by
undercover police during an Ann Arundel County police sting
operation in a public restroom in a department store, and was
suspended from the bench while criminal charges are pending. 
Martin told the Commission on Judicial Disabilities that the man he
approached had been staring at him and made comments that Martin
interpreted as "an implied invitation for a consensual sexual
encounter."  After Martin acknowledged and apologized for his
conduct, the state's Commission decided to publicly reprimand him,
but not to remove him from the bench, however he will remain
suspended until criminal charges are resolved.  Martin has been a
circuit court judge since 1990, and was described by the
_Washington Post_ as "widely respected."  According to the chief
judge in Prince George's County, where Martin normally presides, he
is "a gentleman, someone you like. . . He has been sorely missed
because he works so hard.  He never complains about judicial
assignments. . . His record has been spotless."  Ironically, a
challenge to the constitutionality of Maryland's sodomy law is
pending in the courts.  _Washington Post_, Aug. 20.

Men arrested for soliciting female prostitutes to engage in oral
sex as part of a police crackdown in Charlottesville, Virginia, are
being charged with soliciting sodomy, a felony, rather than the
misdemeanor charge that routinely applies to soliciting sexual
intercourse, according to the _Alexandria Journal_, July 20. 
Virginia's felony sodomy law, which applies to all oral or anal
sex, had rarely been invoked against heterosexuals prior to the
current crackdown.  A.S.L.

Professional Notes

The National Lesbian and Gay Law Association's Lavender Law
Conference, to be held October 15-17 at the Park Plaza Hotel in
Boston, will include more than 50 panels, two substantive plenary
sessions, and an opening keynote address by U.S. Rep. Barney Frank. 
For the latest program and conference information, check the NLGLA
website (www.nlgla.org) or e-mail at LAVLAW98@aol.com.

Seattle attorney Lindsay Thompson has been elected the first openly
gay member of the Board of Governors of the Washington State Bar
Association.  Thompson won almost 57% of the vote in a contested
election to represent the 6900 lawyers living in the state's 7th
Congressional District, which covers most of the city of Seattle,
for a term beginning September 1998.

The New Jersey Task Force on Gay and Lesbian Issues, appointed by
Supreme Court Chief Justice Deborah Poritz in 1997, has sent a
questionnaire to more than 8,000 judges, attorneys, litigants,
criminal defendants and courthouse workers, seeking information
about anti-gay bias in the court system, according to an Associated
Press bulletin filed Aug. 5.  The Task Force hopes to submit a
report to the chief justice by the end of the year.  The Task Force
is chaired by Superior Court Judge G. Thomas Bowen of Salem County. 
LeGaL member Ted Bohn, who is also president of the New Jersey
Lesbian and Gay Law Association, is a member of the Task Force.


We note the death of Tom Steel from AIDS on July 18.  Steel was a
founding member of Bay Area Lawyers for Individual Freedom (BALIF)
and a leading civil rights attorney in Northern California.  He
will also be remembered by long-time _Law Notes_ readers as the
plaintiff in _Thomas S. v. Robin Y._, 618 N.Y.S.2d 356 (N.Y.A.D. 1
Dept. 1994), a case that occasioned publication of numerous letters
to the editor that have been frequently cited by law review writers
on the subject of claims by sperm donors to parental rights.

The ACLU Lesbian and Gay/HIV Rights Projects are accepting
applications for a staff attorney position in the N.Y. office. 
Familiarity with constitutional, civil rights, lesbian/gay and HIV
issues preferred; commitment essential.  Litigation experience,
excellent analytic skills, and ability to write and speak clearly
are required.  Salary based on years out of law school, with
excellent benefits.  Send resume and writing sample to: Matt Coles,
Director, ACLU Lesbian/Gay/HIV Rights Projects, 125 Broad Street,
18th Floor, New York, NY 10004.

The Colorado Legal Initiatives Project (CLIP) has hired Suzanne
Banning, a Minnesota native, to be its executive director.  CLIP is
continuing to accept applications for a staff attorney position. 
For information about this opening, contact CLIP at 303-830-2100.

The Lesbian & Gay Rights Immigration Task Force in New York is
seeking a full-time volunteer coordinator.  One need not be an
attorney to apply for the position, which requires computer
literacy, good verbal and writing skills, and a strong interest in
lesbian, gay and HIV-related immigration issues.  Salary in low
$20Ks, depending on experience, plus health benefits.  Cover
letters, resumes and writing samples should be sent to: Volunteer
Coordinator Search, LGIRTF, P.O. Box 7741, New York NY 10116-7741. 
Immigrants, people of color and women are especially encouraged to
apply.

Developments in European and U.K. Law 

_Age of Consent._  On June 22, the House of Commons of the United
Kingdom Parliament voted 336-129 to equalize the age of consent for
sexual activity at 16 (17 in Northern Ireland), whether it be
male-male, male-female or female-female. The male-male age had been
set at 21 in 1967 and lowered to 18 in 1994. The vote in favour of
the amendment to the Crime and Disorder Bill had been expected as
a result of the large Labour majority in the May 1997 election.
(For full text of the debate, see
www.parliament.the-stationery-office.co.uk/pa/cm/cmhn0698.htm,
Columns 754-811.)  At this point, it seemed that the 30-year-old
struggle to equalize the age of consent had finally succeeded.

However, on July 22, the House of Lords (the unelected upper house
of the UK Parliament) voted 290-122 to reject the House of Commons'
amendment.  The majority of the Lords are hereditary peers and 26
are bishops of the (official, state, Protestant) Church of England
(the Episcopalian Church in the U.S.).   Baroness Young opened the
debate (see
www.parliament.the-stationery-office.co.uk/pa/ld/ldhansrd.htm,
Columns 936-976):  "I have received [a letter] ... from a father
whose young son went off to America, contracted AIDS and died in
unpleasant circumstances, including going blind.  I believe that
this is the thin end of the wedge. ... It will lead to a demand for
[an age of consent of 14,] gay and lesbian marriages and for the
right of such couples to adopt children."  For Lord Quirk, the
issue was "whether, for young boys and young girls alike, we should
legitimise anal intercourse."  The Archbishop of Canterbury (head
of the Church of England) could not attend but made his opposition
clear in an article in _The Times_.  The Lord Bishop of Winchester
spoke for the House of Bishops of the Church of England: 
"Parliament should be very wary indeed about deserting the wisdom
in these matters not only of the Christian faith but of the other
major faiths too ... we should not take a step which ... will have
the effect of further undermining the position of marriage in our
society."  Lord Jakobovits, the former Chief Rabbi of England,
argued that "a tiny dissident minority of under 5 per cent ...
cannot demand that the other 95 per cent ... must accept and treat
as equal violations of the moral code which ... has distinguished
civilised life for millennia."  Making clear his preference for a
ban on male-male sexual activity at any age, he added that "such
violations of the laws of God and nature cannot endure in the long
run."  The Earl of Longford said:  "I have no prejudice against
homosexuals except ... that I am profoundly grateful that none of
my [47 descendants] has shown homosexual tendencies ... I regard
homosexuality ... as a sickness ... [Homosexuals are] unfortunate
people ... [F]rom a Christian point of view, homosexual practice is
sinful. ... [I]f some ... schoolmaster seduced one of my sons and
taught him to be a homosexual, he would ruin him for life. ... A
girl is not ruined for life by being seduced.  A young fellow is." 
Baroness Trumpington also mentioned single-sex boarding schools. 
(Many Lords and Ladies attended them and fear the legalisation of
sexual activity between a male teacher and 16 and 17-year-old male
students, even though sexual activity between 16 and 17-year-old
female students and male or female teachers is currently legal.)

On 28 July, the amendment returned to the House of Commons. Mr.
Jack Straw, the Home Secretary (cabinet minister in charge of
criminal law matters), wanting to see his Crime and Disorder Bill
passed before the summer recess, moved that the House of Commons
not insist on its amendment.  After a debate (see
www.parliament.the-stationery-office.co.uk/pa/cm/cmhn0798.htm,
Columns 175-211) in which Mr. Straw promised to introduce a
separate Government bill on the age of consent in November, the
amendment was dropped.  The separate bill will be introduced in the
House of Commons, permitting the Government to invoke the
Parliament Acts 1911 and 1949, under which the bill may become law
without the consent of the Lords if they refuse to pass it in the
1998-99 and 1999-2000 sessions.  The Commons must pass the bill
twice and there must be a gap of one year between second reading
the first time and third reading the second time.  This means that
Baroness Young has succeeded in delaying equalisation by up to two
years.

What effect will this have on _Sutherland v. U.K._, the case at the
European Court of Human Rights in which the European Commission of
Human Rights has already found that an unequal age of consent
violates Articles 8 and 14 of the European Convention (see 1997
LGLN 166)?  _Sutherland_ is on hold, pursuant to an October 1997
agreement between the Government and Stonewall, the lesbian and gay
lobbying and litigation group supporting the case.  Under the
agreement, the Government has until the end of the 1998-99 session
(October 1999) to equalise the age of consent.  If the Lords
prevent this (the agreement did not contemplate this possibility),
_Sutherland_ could presumably be reactivated.  A Court judgment in
favour of Euan Sutherland would also affect unequal ages of consent
in Albania, Austria, Bulgaria, Croatia, Estonia, Hungary, Ireland,
Liechtenstein, Lithuania, Macedonia and Moldova.

_Bias Crimes._  Sections 28 to 33 of Great Britain's Crime and
Disorder Act 1998 (www.hmso.gov.uk/acts.htm) create new offences of
racially-aggravated assault, criminal damage, harassment, etc. 
Proposals that these offences be extended to crimes motivated by
hostility based on the victim's actual or presumed religion or
sexual orientation were rejected by the Government. 

_U.K. Armed Forces Ban._  On July 13, Lightman J. withdrew his
reference ([1997] IRLR 297) to the European Court of Justice (ECJ)
in _R. v. Secretary of State for Defence, ex parte Perkins_ (High
Court, Queen's Bench Division, Crown Office List, CO-279-96).  The
ECJ's Administrator had written to ask whether he wished to do so,
in light of the ECJ's judgment in _Grant v. South-West Trains Ltd._
(1998 LGLN 38).  He did so reluctantly, concluding that _Grant_ was
dispositive and that he could see "no realistic prospect of any
change of mind on the part of the ECJ."  But he noted that the
future of the armed forces ban "must in any event be uncertain. 
The Council [of Ministers of the European Union] acting under ...
[the new Article 13 of the EC Treaty, 1998 LGLN 38, 1997 LGLN 104,
148] and the European Court of Human Rights ... [in cases]
currently before the Commission (but stayed pending the
determination of these proceedings) may bring it to an end, and a
challenge may be possible ... once the Human Rights Bill
[incorporating the European Convention into UK law] becomes law
...."  The stayed European Commission of Human Rights cases which
will now be reactivated are _Smith, Lustig-Prean, Grady & Beckett
v. UK_ (Application Nos. 31417/96, 32377/96, 33985/96, 33986/96,
not yet declared admissible, see 1995 LGLN 162, 1996 LGLN 83).

_Employment Discrimination._  On 5 June, Baroness Turner of Camden
attempted for the third time to introduce into the U.K. House of
Lords her private member's Sexual Orientation Discrimination Bill,
which would amend the Sex Discrimination Act 1975 by expressly
extending it to cases of sexual orientation discrimination (see
www.parliament.the-stationery-office.co.uk/pa/ld/ldhansrd.htm,
Columns 639-660).  Baroness Blackstone, Minister of State,
Department for Education and Employment, announced the Government's
opposition to the Bill.  Although the Government "deplore[s]
unjustified discrimination of all kinds," it must oppose the Bill
because (i) "[i]t invites us to treat same sex couples as the
equivalent of a family unit, which leads logically to treating all
mixed-sex unmarried couples as the equivalent of a family unit. ...
we must ... ensur[e] that we do not undermine the family;" (ii)
preferring married couples could be held to be direct or indirect
sexual orientation discrimination under the Bill; and (iii) "the
Bill would have far-reaching implications for occupational pensions
which paid survivors'  benefits ... In the Civil Service alone ...
this would cost some 20 million pounds a year."  The Government's
reservations "are about scope and timing, not about the good
intentions of the Bill."  It is reasonable to await the final views
of the Equal Opportunities Commission, which has proposed similar
legislation.  The Bill was given a second reading, but the
Government's opposition means that it has no chance of becoming
law.

On 14 July, the Court of Appeal (of England and Wales) held in
_Smith v. Gardner Merchant Ltd._, [1998] 3 All E.R. 852, that the
unamended Sex Discrimination Act 1975 can apply to the dismissal of
a gay or lesbian employee.  However, it did so on the narrow (and
uncontroversial) ground that the gay applicant alleged that he had
been treated more harshly than a lesbian employee would have been. 
If his co-worker B.T., who allegedly had harassed him (e.g., by
saying that he "probably had all sorts of diseases and that gay
people who spread AIDS should be put on an island") and falsely
accused him of threatening and aggressive behavior, had been
equally hostile to gay and lesbian employees, his claim would have
failed.  Ward L.J. cited this correspondent's broader argument (60
Modern Law Review 347-348) that virtually all cases of sexual
orientation discrimination are also cases of direct sex
discrimination, even if gay and lesbian employees are treated
equally badly.  He said:  "I see the force of the argument but I
reject it."  The case was remitted to the Industrial Tribunal,
which will determine "whether similar abuse would have been made to
and/or of a lesbian."

_Same-Sex Partners of European Community Staff._  The defeats in
_Grant_ and _Perkins_ have not spelled the end of litigation under
European Community law.  In _D. v. Council_, Case T-264/97 (EC
Court of First Instance, Luxembourg), a male Swedish employee of
the Council (of Ministers) of the European Union is challenging the
Council's refusal to pay him a household allowance (an income
supplement payable where the income of the employee's spouse is
below a certain level).  He argues that EC institutions must
recognise the Swedish registered partnership that exists between
him and his male partner as equivalent to a marriage contract.  The
Swedish Government is intervening on his side.  On April 7, Council
Regulation No. 781/98 amended the Staff Regulations of the EC by
inserting a new Article 1a(1):  "Officials shall be entitled to
equal treatment under these Staff Regulations without reference,
direct or indirect, to race, political, philosophical or religious
beliefs, sex or sexual orientation, without prejudice to the
relevant provisions requiring a specific marital status."  See
_Official Journal of the European Communities_, L 113/4 (April 15,
1998).  
_Robert Wintemute, School of Law, King's College, London_

Other International Notes

The European Court of Human Rights in Strasbourg ruled July 30
against the claims of Kristina Sheffield and Rachel Horsham,
British transsexuals who were denied changed birth certificates and
marriage licenses.  The Court voted 11-9 that refusal of the
changed birth certificates did not violate the European Charter's
protection for respect for private and family life, and voted 18-2
that the right to marry is not breached by failure to let a
postoperative transsexual marry as a member of his/her new sex. 
_The Guardian_, July 31.

The decision by the city of Florence, Italy, to open its common law
marriage registry to same-sex couples drew condemnation from
Cardinal Silvano Piovanelli, archbishop of Florence, in the Vatican
newspaper on July 31.  In addition to Florence, the cities of Pisa
and Voghera have opened their registries.  Two women in Pisa were
the first same-sex couple in Italy to register their relationship,
on July 9.  _Ft. Worth Star-Telegram_, Aug. 2.

The Austrian Parliament rejected a proposal to lower the age of
consent for homosexual acts from 18 to 14 in order to equalize it
with the age for heterosexual acts.  However, as part of a criminal
law reform, the Parliament agreed to include same-sex domestic
partners as "next of kin" for purposes of the right to refuse to
testify against next of kin.  _NewsPlanet_, July 20.

Canadian newspapers reported Aug. 18 that Justice Andrew MacKay of
a Canadian federal court in Ottawa had ruled that the government
must change its definition of spouse to include same-sex couples in
all benefits that now accrue to opposite-sex couples in order to
comply with the equal treatment requirements of the nation's
Charter of Rights.  The government had attempted to apply with
earlier court rulings by creating a special category of "same sex-
partner relationship," requiring a special public declaration, a
requirement not imposed on opposite-sex common law relationships
that are entitled to many government benefits in Canada.  Wrote
MacKay, "It is no more appropriate for the employer in this case to
have established a separate definition for persons in same-sex
relationships than it would have been for the employer to create
separate definitions for relationships of persons based on their
race, colour or ethnicity."  MacKay was ruling on a claim brought
by foreign service officer Stanley Moore, who was denied moving and
housing benefits for his same-sex partner in 1991.  MacKay upheld
the authority of the Human Rights Tribunal to order the government
to prepare an inventory of all federal laws, regulations and
directives that discriminate against same-sex couples and to
propose appropriate revisions.  _Ottawa Citizen_, Aug. 18.

Our recent report on Dutch developments concerning same-sex
marriage were incomplete.  Under existing law, Dutch registered
partnership does not require that one or both members of the couple
are Dutch citizens.  Rather, the requirement is that either both
partners are in possession of a valid residence entitlement (a
tourist visa does not count for this), or if only one partner is a
Dutch citizen, that the other partner have such an entitlement.  By
contrast, existing Dutch marriage law allows marriages where at
least one of the partners is either a Dutch national or a lawful
resident.  Since the proposal embodied in the platform of the newly
inaugurated government calls for a bill to make "open civil
marriage" available to persons of the same sex, one presumes that
upon enactment this will be available on the same terms as existing
Dutch marriage law; i.e., at least one member of the couple must be
a Dutch national or lawful resident.  Our thanks to Kees Waaldijk
for this additional information.  

A Hamilton, New Zealand, District Court Judge has ruled that a
lesbian co-parent must pay child support to her former partner. 
The women were in a 14-year relationship, during which they jointly
decided to have children, and one of the women gave birth to three
children conceived through donor insemination.  After their break-
up, the birth mother sought continued financial assistance from her
former partner to help with the raising of the children.  Judge
Brown found that the women had considered themselves to be married,
having adopted a common surname.  Brown said that decisions made
within their "marriage" were "uncompromising acceptance of fiscal
and other responsibilities for the children" which could not be
"vacated" because of "later regret."  Brown upheld the birth
mother's application to designate her former partner as a legal
step-parent and thus eligible to be ordered to pay child
maintenance.  _Waikato Times_, Aug. 6.

New Zealand's Law Commission has called on the nation's Parliament
to treat gay and lesbian couples the same as unmarried heterosexual
couples under pending bills governing "De Facto Relationships" and
marital property.  The Commission called on the government to
rewrite the bills to treat same-sex couples equally to unmarried
heterosexual couples, who are to be extended a variety of rights
under the legislation.  _Waikato Times_, Aug. 7 (based on reports
supplied by the New Zealand Press Assoc'n).

The Queensland, Australia, Court of Appeal rejected a
discrimination claim against a sperm clinic by a lesbian.  The
clinic refused the lesbian's request for insemination services. 
The court found that the woman was not refused services based on
her sexual orientation, but rather because she was not infertile,
and the clinic makes its services available only to couples with
fertility problems.  _Orlando Sentinel_, Aug. 19.

AIDS & RELATED LEGAL NOTES

11th Circuit Adopts Objective Test on Whether ADA Plaintiff
Suffered Adverse Consequences

Ruling on an issue of apparent first impression under the Americans
With Disabilities Act, a panel of the U.S. Court of Appeals for the
11th Circuit ruled July 17 that an ADA plaintiff must show that he
has suffered objectively adverse consequences due to his disability
in order to allege employment discrimination under the law.  _Doe
v. DeKalb County School District_, 145 F.3d 1441.  In an opinion by
Circuit Judge Birch, the court vacated an injunction that had been
issued by U.S. District Judge Richard C. Freeman (N.D.Ga.) in favor
of a John Doe special education teacher infected with HIV, holding
that the trial judge had neither clearly applied an objective test
to determine whether Doe's involuntary transfer was "adverse" nor
made sufficiently detailed findings on whether Doe was "qualified"
to continue teaching students with severe behavioral disorders in
light of the risks posed by his HIV status.

The DeKalb school district divides special education students with
behavioral disorders into three groups.  The first group,
consisting of students with mild disorders, is "mainstreamed" for
most of each school day into regular classes, and spends the
remainder of the day in what are called "interrelated" classes. 
The second group, with students who are too "disordered" to
participate in the interrelated program, is assigned to self-
contained classes of special education students.  The third group,
with severe problems, is assigned to "psychoeducation" classrooms.
The students in this group are prone to violence, and the
instructor must physically restrain students from time to time. 
There have been incidents of biting and bleeding in the
psychoeducation classrooms.

John Doe was a psychoeducation teacher, who told his building
principal in February 1995 that he had tested HIV+.  He was
transferred involuntarily to an interrelated classroom at a
different school in April 1995, despite his expressed preference
for remaining in a psychoeducation setting (or at least in a self-
contained special ed setting) for which he felt qualified by
experience, training, and professional licensure.  Doe's employment
rank, compensation and benefits were not affected by the transfer. 
However, in order to obtain certification for interrelated
classroom teaching, Doe will need to take ten credit hours of
additional coursework, and the school district was willing to give
him three years to attain this goal while continuing to employ him
in the interrelated classroom.  The district was also willing to
let Doe credit this coursework toward the continuing education
total that he would have had to achieve to retain his existing
certification.  

When the District's personnel director notified Doe on August 1,
1995, that he would not be allowed to return to a psychoeducation
setting, he filed a discrimination charge under the ADA.  After a
four-day hearing, District Judge Freeman issued a terse order and
injunction, finding that any risk Doe would transmit HIV to
students in the psychoeducation setting was "remote and
theoretical" and that the transfer to an interrelated classroom was
an "adverse" consequence, and thus discriminatory.

In vacating the injunction, the circuit court found first that
Freeman's order did not contain express findings on the four
factors specified by the Supreme Court in _School Board of Nassau
County, Florida v. Arline_, 480 U.S. 273 (1987), for determining
whether a plaintiff with a contagious condition presents a
significant risk to the health or safety of others.  The _Arline_
standard was expressly adopted by Congress when it passed the ADA,
and Judge Birch opined that the court of appeals could not
adequately address the school district's argument that the district
court erred in its conclusion without having something less
conclusory on the record than Freeman's terse finding.  Therefore,
the case had to be remanded for a more detailed set of findings.

The school district also contended that Doe had not been adversely
affected, arguing that the transfer was "lateral," involved no
change in rank or compensation, and that the requirement that Doe
obtain a new certification involving ten credit hours of coursework
did not present an undue hardship to him.  The district court had
apparently relied on the transfer being involuntary and on Doe's
stated preference for working in the psychoeducation setting as
important factors in its determination that Doe had suffered
adverse consequences.  

The court of appeals found that the district court did not
adequately articulate a standard for determining whether a
particular employment action was adverse and thus subject to
challenge under the ADA.  After an extensive review of prior
decisions under a wide range of employment laws in various federal
circuits, the court concluded that an objective standard should be
used: whether a reasonable person in the position of the plaintiff
would have considered the action to be adverse.  In this regard,
that Doe subjectively preferred to teach in the psychoeducation
classroom setting should not be deemed relevant.  After all, Birch
wrote, using a subjective standard would render the inquiry as to
whether an employment action was adverse essentially meaningless. 
"In order for an honest plaintiff to go to the trouble of suing his
employer, he must be unhappy with some action that his employer has
taken.  Given this basic fact, a subjective standard would mean
that no court would ever seriously consider the adverse employment
action prong of a prima facie ADA case -- we could just assume this
element to be satisfied in every case. . . [A] plaintiff could
always prove this part of his case by testifying that he was
unhappy with whatever employment action had brought him into court;
an employer could rarely rebut its employee's statement of his own
subjective feelings."  In effect, the court decided that only
tangible adverse factors should justify government intervention in
employment decisions.

As to the specifics of the case, Doe's preference for teaching in
a particular setting was not relevant, in the court's view.  The
issue is whether a reasonable person in Doe's position would
consider the requirement to obtain a new certification as adverse,
and the court pointed to other cases where courts have held that
the requirement to undergo training or obtain new knowledge is not
generally considered to be adverse, especially where it will open
up a wider range of job opportunities for the individual.  Although
Doe's transfer might be considered by him to be a personal setback,
the issue is objective adversity: "Any adversity must be material,"
wrote Birch; "it is not enough that a transfer imposes some de
minimis inconvenience or alternation of responsibilities."  Because
the district court had made no specific findings but had merely
conclusorily stated that the transfer was adverse, the case also
had to be remanded for more detailed findings on this issue.

Doe is represented by Chip Rowan of Atlanta, a prominent member of
the lesbian/gay legal community especially noted for his AIDS legal
advocacy work.  A.S.L.

Michigan Supreme Court Cuts Back Protection for Food Service
Workers With AIDS

In a stunningly wrongheaded decision, the Michigan Supreme Court
held on July 31 that a restaurant owner can suspend a waitress who
is rumored to have AIDS until the waitress provides medical
certification that she does not suffer from any communicable
conditions that might endanger customers.  _Sanchez v. Lagoudakis_,
581 N.W.2d 257.  Reversing a lengthy decision by the state's court
of appeals in an opinion by Justice Boyle, the court immediately
contradicted itself, at least in part, by upholding an award of
several hundred dollars in lost wages to the plaintiff waitress "as
a matter of equity," but quashed the award of more than $32,000 in
attorneys fees.

Dorene Sanchez, waitressing in 1987 at Paradise Family Restaurant
in Coldwater, Michigan, made the mistake of telling a friend that
she thought she might have "been with" someone who "possibly had
AIDS."  The friend spread the word, which soon distorted into
rumors swirling through Coldwater that Sanchez had AIDS and led to
people refusing to be served by her at the restaurant.  Restaurant
owner Kostas Lagoudakis was terrified.  (He testified in deposition
that he was "terrified" of AIDS, fearful for himself and his
customers.  "If somebody come close to me and I know he has AIDS,
I'm going to run away...," he said.)  Lagoudakis told Sanchez to go
home and not return to work unless she brought proof that she was
"healthy from AIDS."

Sanchez, who is HIV-negative and was not suffering from any health
problems at the time, decided not to return to the restaurant under
the circumstances, but sued Lagoudakis under the Michigan Civil
Rights Law, which forbids handicap discrimination, claiming she
suffered discrimination due to a perceived handicap.  The trial
court threw out her case, ruling that because she was not HIV+, she
did not have a handicap, and the court of appeals affirmed.  The
supreme court then reversed and remanded, holding that a person
perceived as having AIDS could be covered by the law.  On remand,
the trial court granted summary judgment to Sanchez, with a small
award for lost wages and costs and a large award, over $30,000, in
attorneys fees.  The court of appeals affirmed, 522 N.W.2d 472
(Mich.App. 1996).

Reversing the court of appeals, the supreme court insisted that
Lagoudakis had acted reasonably under the circumstances by
suspending Sanchez until she could present proof that she did not
present a health risk to restaurant customers.  The court's
reasoning shows a peculiar ignorance about the risks posed by AIDS,
as well as a peculiar pandering to the fears of an ignorant
restaurant owner and customers.  

According to Justice Boyle, a person with a suppressed immune
system is vulnerable to a variety of opportunistic infections, some
of which may themselves by spread by food handling or mere
proximity to the infected person.  (In a footnote, the court gives
tuberculosis and encephalitis as examples.)  Consequently, a person
with AIDS may present a significant risk to restaurant customers if
the PWA has such a communicable condition, and the only way the
restaurant owner can know for sure that the PWA does not have such
a condition is to require a medical certification.  

This might be a logical chain of reasoning for 1983, but not for
1998.  If restaurant workers with AIDS presented any sort of
significant risk of transmitting dangerous infections in the
workplace, one would think that in the intervening 15 years there
would have been numerous outbreaks of opportunistic infections
among restaurant patrons, traceable to being served by waiters with
AIDS.  But it hasn't happened.  The Public Health Service, which
was mandated by Congress as part of the Americans With Disabilities
Act to compile a list of infectious conditions that would
disqualify somebody from being a food service worker, specifically
determined to omit HIV infection and AIDS from the list precisely
because there was no evidence of any health risk to restaurant
customers.

Furthermore, Lagoudakis took action without even knowing whether
Sanchez had AIDS, based merely on a rumor that ultimately proved to
be inaccurate.  Acting based on ignorance and rumor has never
before been considered a valid defense to a charge of unlawful
discrimination.  Why should it be any different with AIDS?

One member of the court, Justice Marilyn J. Kelly, refused to go
along with the majority's nonsense.  In a biting dissent, Kelly
observed that "the opinion permits discrimination . . . by allowing
an employer to oblige an employee to be tested when the employee
evidences no illness or infection."  Noting that public health
authorities had not moved to bar people with AIDS from working in
restaurants, Kelly accused the court of making "a medical decision
that this Court is unqualified to make on the basis of the record
before us."  Kelly asserted that the public health authorities
"have spoken with one voice.  They advise that no medically sound
basis exists to test an employee with AIDS, unless there is
evidence the employee has a food-borne illness.  If the employee is
sneezing or coughing or shows another sign of illness, the employer
should excuse the person from work and may order testing before
return."

Kelly was particularly scornful about excusing Lagoudakis's ill-
informed actions based on rumors.  "Discrimination based on
hysteria is, in part, what the HCRA [state civil rights law] is
intended to eliminate," she observed.  Kelly argued that deciding
whether Lagoudakis acted reasonably presented "a classic jury
question" that should not have been resolved either way based on a
summary judgment, but if it were to be resolved as a matter of law,
she would have resolved it against Lagoudakis.  "Defendant's focus
was not that plaintiff might have an opportunistic infection that
lacked symptoms.  The record shows that he was afraid, among other
things, that he, his family, and his customers would get AIDS. 
However. . . the information available in 1987 firmly establishes
that food was not a vector for the transmission of AIDS."  In other
words, the court made up a seemingly-sophisticated rationale for
Lagoudakis's actions that had never occurred to Lagoudakis at the
time.

Furthermore, Kelly found that there was no "reasonable suspicion"
that Sanchez even had AIDS.  Lagoudakis's "request was based on
rumor and innuendo, Sanchez' expressed concern because of contact
with another who might have AIDS, and his own fears.  This is not
sufficient to justify the type of discriminatory behavior that
defendant perpetrated here."

Kelly's strong dissent put the court on the defensive, resulting in
some very defensively worded disclaimers in the text and footnotes
of Boyle's opinion for the court.  Boyle insisted that the decision
was consistent with _Bragdon v. Abbott"'s approach to risk
analysis, and that the court had carefully limited its decision to
the narrow question of how a restaurant owner could deal with an
employee with AIDS.  But the court's whole analytical apparatus in
this case is so skewed with misunderstanding of the risks
associated with HIV and apparent distortions of the factual record
(judging by selected quotes from the record in the dissenting
opinion) that it is hard to credit the good faith of the majority,
even though Kelly diplomatically does so in her own disclaimer
footnote.

The court ruled despite receiving amicus briefs in support of
Sanchez from the Attorney General's office on behalf of the
Department of Civil Rights and from a coalition of AIDS service and
advocacy groups in Michigan.  AIDS education for the Michigan
Supreme Court is urgently recommended!  A.S.L.

Oregon Supreme Court Rejects Constructive Discharge Claim by HIV+
Employee

The Supreme Court of Oregon upheld a ruling against an HIV+ woman
in an employment discrimination case in _Jane Doe v. Denny's Inc._,
1998 WL 422313 (July 24).  In an opinion by Justice Michael W.
Gillette, the court determined that an employer did not violate a
statute that prohibits discrimination based on disability by
discussing negative customer perceptions of an employee's
disability with the employee. 

Sometime during her training at Denny's, Jane Doe informed her
supervisor, Robert Hibbard, that she was HIV+.  Afterward, he
became less friendly and more aloof and called her in to his office
the next day because a customer had complained about her HIV status
and intended to make the news public.  The customer also wanted to
boycott the restaurant as long as Doe was employed there.  Hibbard
told Doe that he could not fire her or lay her off because of her
HIV status, but that her continued employment would harm or destroy
the restaurant's business.  After consulting with her caseworker,
Doe found that she would lose certain government benefits if she
resigned.  Doe told Hibbard about this, and both agreed that Doe
would resign and that Hibbard would treat the separation as a
layoff so that she could receive government benefits. 
Additionally, Hibbard gave her a favorable letter of reference. 

In her complaint, Doe asserted that the defendant's conduct
amounted to a wrongful discharge and that it was unlawful
discrimination with respect to one or more "terms, conditions or
privileges of employment."  Doe also charged that she had been
constructively discharged -- that Hibbard told her about public
perception of the business to make her feel "unwanted" and that his
conduct was motivated by the hope that she would resign. 

The court observed that Doe had resigned and that there were no
changes in the working conditions after she gave notice to the
defendant of her HIV status.  On the constructive discharge issue,
the court reiterated its ruling on the requisites of a constructive
discharge case from _McGanty v. Staudenraus_, 901 P.2d 841 (1995),
and asserted that Doe had not fulfilled any of the court's
criteria.  The criteria were "1) the employer intentionally created
or intentionally maintained specified working condition(s); 2)
those working conditions were so intolerable that a reasonable
person in the employee's position would have resigned because of
them; 3) the employer desired to cause the employee to leave
employment as a result of those working conditions or knew that the
employee was certain, or substantially certain, to leave employment
as a result of those working conditions; and 4) the employee did
leave the employment as a result of those working conditions."  The
facts of the case show that Doe had left her job before Hibbard
could impose any such conditions and that Hibbard might have
actually been trying to help her as much as he could in light of
the situation.

By requiring that the employee show some tangible loss of a job
benefit in order to prove discriminatory treatment, this "narrow
reading" of the statute effectively shifts the issue from the
employer's conduct to the nature of the harm suffered by the
employee.  The court's ruling is extremely formalistic in its
reading of the Oregon statute. However, given the circumstances,
the court had little room to maneuver since Doe's term of
employment was short, she had resigned, and she had merely felt
"unwanted" without any other tangible evidence of adverse
treatment. The Oregon Supreme Court clarifies the _McGanty_ ruling
by holding that an employee's feelings are not enough to constitute
unreasonable working conditions.  Rather, the conditions under
which the employee is working must be determinably hostile in order
to support a claim of constructive discharge.  _Leo Wong_

9th Circuit Rejects Challenge by PWA to Cancellation of Group
Insurance Policy

In an Aug. 11 ruling, the U.S. Court of Appeals for the 9th Circuit
affirmed the district court's decision in _Solomon v. North
American Life & Casualty Insurance Co._, 1998 WL 465221, rejecting
a PWA's challenge to the cancellation of a group life insurance
program in which he was a participant.

In 1988, Vincent Solomon became a participant in a Professional and
Executive Trust that had previously been formed in order to
purchase group term life insurance on behalf of its participants. 
Solomon then received a $100,000 face value life insurance policy. 
Under the terms of the trust's contract with the insurance company,
the policy could be terminated on its anniversary date, provided
the insurer gave the trust 60 days notice.  The insurance company
decided to terminate the policy late in 1991, and sent a letter to
the trustee in plenty of time to meet the anniversary cut-off in
June 1992.  The trustee then notified all the participants. 
Solomon testified that when he received the letter, he "felt used,
misled... [and] felt there was a breach of -- there was something
wrong here, something seriously wrong here."  Solomon did receive
a timely application form to convert his policy to individual
coverage, but never submitted it, because the form asked whether
the applicant had HIV or AIDS, and as of that time Solomon would
have had to check off "yes" in that box.

Upon becoming gravely ill early in 1995, Solomon sold his other
insurance policies to viatical settlement companies, but could not
sell this policy, which had terminated.  On December 5, 1995, he
brought suit under California law against the insurance company,
claiming breach of contract, breach of implied covenant of good
faith and fair dealing, breach of fiduciary duties, and fraud. 
Solomon's theory of the case was that the insurer only sold the
group policy to the trust to make money from the premiums,
intending to terminate the policy before anyone in the trust could
assert any claims under it, and that the policy was strategically
terminated early in 1992 with that goal in mind.  The insurer
removed to federal court, and moved to dismiss the case on various
grounds, including statute of limitations.  Solomon died while the
case was pending, and his mother (his executrix) was substituted as
plaintiff.

In upholding the district court's dismissal of the case, Circuit
Judge Silverman found that the termination of the policy was
entirely consistent with the contract's termination provisions, and
brushed aside a technical problem that the insurer had misnamed the
trust in its letter to the trustee, since the letter identified the
policy by number and nobody was confused at that time about which
policy was being canceled.  The court also found no merit to the
bad faith claim, finding that Solomon had made no factual
allegations to back up his claim that the insurer never intended to
pay out to any beneficiary.  The court also rejected Solomon's
novel theory that his claim did not accrue until he needed the
policy and it wasn't available to be viaticated; under California's
3-year statute of limitations for such actions, the court found
that Solomon's time to sue ran out in the spring of 1995, three
years after the policy was terminated.  A.S.L.

Third Circuit Upholds Condom Distribution Program in Philadelphia
Public Schools 

In the Nov. 1997 issue of _Lesbian/Gay Law Notes_, this writer
reported that Pennsylvania District Court Judge Gawthrop granted
summary judgment to the Philadelphia Board of Education, thereby
allowing the continuation of a public high school condom
distribution program.  The U.S. Court of Appeals for the 3rd
Circuit has now affirmed Judge Gawthrop's ruling, permitting
students at nine Philadelphia public high schools to receive
condoms and safer-sex counseling from social workers at school. 
_Parents United for Better Schools, Inc. v. School District of
Philadelphia Board of Education_, 1998 WL 378753 (July 9).  In a
decision penned by Circuit Judge Scirica, the 3rd Circuit panel
concluded unanimously that the Philadelphia School District Board
of Education did not exceed its authority under Philadelphia's Home
Rule Charter when it enacted Policy 123 on "Adolescent Sexuality"
in 1991.  

Policy 123 ---which is funded by private and non-school district
sources, including the Philadelphia Department of Health and
various federal grants--- was enacted to address the problems of
pregnancy and sexually transmitted diseases among high school
students.  Parents have the authority to unilaterally deny their
children access to the pilot program by completing an "opt out"
form and returning it to the school.

The court of appeals agreed with the district court's analysis and
conclusion that condom distribution to students was included in the
broad statutory authority granted to school boards to implement
health and hygiene services and education.  The panel also
concluded that the opt out letters provided parents with sufficient
notice of the program. According to the court, since the program
did not coerce students or parents to participate in the program,
it did not violate the liberty interest of parents to consent or
refuse consent to medical treatment on behalf of their minor
children.  (The district court had held that coercion aside,
parents did not have a liberty interest in consenting to their
minor children's use of condoms because condoms constitute
preventative treatment and not medical treatment.  The court of
appeals did not address this intriguing issue in its opinion.) 

The 3rd Circuit's opinion conforms with the 6th Circuit's 1980
decision upholding a similar condom distribution program in
Michigan, and a 1995 Massachusetts decision approving a condom
distribution program which lacked the parental "opt out" component
contained in Policy 123.  In 1993, a New York court struck down a
condom distribution program in New York City because it lacked an
"opt out" provision for parents.  _Ian Chesir-Teran_

Mississippi Supreme Court Upholds Lengthy Prison Term for PWA

A lengthy prison term is not rendered illegal solely because the
trial judge was not informed that the defendant was HIV+, the
Mississippi Supreme Court ruled Aug. 13 in rejecting a pro se
appeal by Theodus Lindsay of his 15 year sentence for armed
robbery.  _Lindsay v. State_, 1998 WL 470059.

Lindsay was indicted in 1993 on charges of armed robbery for
stealing a wallet at gunpoint.  His appointed defense counsel
advised him to plead guilty, informing him that he would be
sentenced to 15 years and would have to serve at least ten before
he could be paroled.  Lindsay claims that his attorney knew that he
was HIV+, but never tried to use this information to get a shorter
sentence.  On Oct. 28, 1996, Lindsay filed a pro se motion,
claiming ineffective assistance of counsel and that his sentence
was illegal because it amounted to a "life sentence" in violation
of the robbery statute, which authorizes the court to impose a
sentence of "not less than three years" for his offense.

In an opinion by Presiding Justice Sullivan, the court rejected
both of Lindsay's grounds for relief.  As to the ineffective
assistance claim, Sullivan found that under Mississippi law, an
assertion of ineffective assistance unsupported by sworn factual
allegations from somebody other than the defendant was
automatically deficient.  On the illegal sentence claim, Sullivan
found that Lindsay had merely supplied conclusory statements that
he had been sentenced to serve longer than his life expectancy. 
While it is true that the court had in previous cases set aside
sentences that were for terms substantially longer than the
actuarial life expectancy of the defendant, in those cases the
court had found that the sentences were also disproportionate to
the seriousness of the offense.  In this case, Sullivan found that
the sentence was within the range allowed by the statute and was
proportionate to the seriousness of the offense.  More importantly,
Sullivan found that Lindsay provided no evidence to the court as to
the life expectancy of an HIV+ person, merely asserting that it was
ten years.  _Lindsay cannot argue his sentence is in effect a life
sentence when he offers only opinion as to what that life
expectancy will be," wrote Sullivan, who also noted that Lindsay
had also been convicted of (and was serving concurrent sentences
involving) other subsequent crimes, "indicating appellant's
criminal tendencies have not been diminished."  A.S.L.

Louisiana Appeal Court Rejects Challenge to "Sloppy" AIDS Statute

The Louisiana Court of Appeal refused to overturn a conviction
under a state statute criminalizing knowing transmission of the
"AIDS virus,<179> finding the statute not unconstitutionally vague.
_State v. Serrano_, 1998 WL 352798 (La. App. Jun. 17).  

Onofre Serrano was charged under the Louisiana statute which
criminalizes the act of exposing another to the "acquired
immunodeficiency syndrome (AIDS) virus. . . ." He argued on appeal
that the statute was unconstitutionally vague because there is no
such thing as an AIDS virus, and alternatively, that there was no
evidence to support the charge because the exposure of another to
the "AIDS virus" was impossible.  

Noting that the statute's use of the phrase "AIDS virus" was
sloppy, Chief Judge Schott found that lay people commonly
understand the phrase to refer to HIV, which causes the
constellation of conditions by which AIDS is clinically described. 
Schott also rejected Serrano's second argument, that the evidence
was insufficient to charge him with violating the law because an
AIDS virus does not exist, because Serrano had signed an
acknowledgment that he had HIV, and thus based on the common
knowledge that HIV is the virus which causes AIDS, the record was
sufficient for conviction.  _Dirk Williams_

Florida Appeals Court Affirms Denial of Life Insurance Proceeds to
Brother of PWA

The 1st District Court of Appeal of Florida ruled that Old Line
Life Insurance Co. was entitled to refuse payment on a policy on
the life of Frank Kieser, who died of AIDS in 1990, due to
misrepresentations and omissions on the application form.  _Kieser
v. Old Line Life Insurance Co. of America_, 1998 WL 399633 (July
20).

Frank applied for life insurance in 1988, with the proceeds to be
payable to his brother Jack.  At the time, Frank apparently knew he
was HIV+, and he wanted to secure total life insurance coverage in
the amount of $500,000.  His agent recommended applying to several
different insurance companies, a process known as bundling, so that
no one application would be for an amount large enough to trigger
a requirement for a blood test.  On his application, Frank answered
"no" to the question whether he had made application for insurance
to any other company, and did not reveal his HIV status or a
variety of other medical problems for which he had received
treatment during times deemed relevant under the policy. 
Unfortunately for his brother Jack, the named beneficiary, Frank
died less than two years after the policy was issued, so no
incontestability clause applies.

Upholding a circuit court decision in favor of the insurer, the
court of appeal, in an opinion by Judge Webster, found that the
misrepresentation or omissions were material to the insurer's
underwriting decision.  A.S.L.

California Appeal Court Rejects Disability Insurance Claim by PWA

The California Court of Appeal, 2nd District, ruled Aug. 17 that a
man who knew he was HIV+ when he applied for a disability insurance
policy (and did not disclose this on his application) could not
collect disability benefits under the policy when he subsequently
developed AIDS.  _Galanty v. Paul Revere Life Insurance Co._, 1998
WL 477382 (Aug. 17).

Mark Galanty learned that he was HIV+ in June 1987, and shortly
thereafter consulted an AIDS/HIV specialist to determine whether
symptoms he was suffering were merely flu or a manifestation of
HIV-related illness.  Two years later, Galanty applied to Paul
Revere for a disability insurance policy.  The application asked
about medical treatments during the previous five years; Galanty
indicated he had a benign cyst removed in 1985 or 1986, and
consulted the doctor in July 1987 and February 1988 for "flu."  He
did not indicate he was HIV+, and did not identify his doctor as an
AIDS/HIV specialist.  The insurer obtained Galanty's file from the
doctor, but the file made no mention of HIV or AIDS.  

The policy was issued March 17, 1989, and contained an
incontestability clause, providing that the insurer could not
revoke coverage based on statements or omissions in the application
beginning two years after the policy's issuance, and that coverage
for a particular illness or condition would not be denied because
the illness or condition "had existed before the Date of Issue." 
As to coverage, the policy excluded coverage for pre-existing
conditions, defined as conditions for which "symptoms existed that
would cause an ordinarily prudent person to seek diagnosis, care,
or treatment; or... medical advice or treatment was recommended by
or received from a physician."

Galanty subsequently filed a claim for AIDS-related disability
benefits in 1994, at which time he claimed he first saw his doctor
for this condition in July 1994 and became unable to work in August
of that year.  The insurer began paying benefits, but launched an
investigation and ultimately learned that Galanty had testified
HIV+ in 1987.  On that basis, it ceased paying benefits and Galanty
sued.

Galanty argued that due to the incontestability clause, the insurer
was required to pay benefits, noting particularly the part of that
clause stating that coverage would not be denied because of a
condition that "had existed before the Date of Issue."  The insurer
responded that Galanty's HIV infection was a pre-existing condition
which Galanty had not disclosed on his application, and thus was
not within the risks it had agreed to insure against.  The trial
court agreed with the insurer, and so did the court of appeal, in
a decision by Justice Masterson.

The problem here, according to Masterson, was to reconcile the
coverage clause and the incontestability clause in a way that would
make sense consistent with the contract language.  Ultimately, the
court's opinion boils down to the proposition that the insurer is
selling coverage for risks that were either disclosed to it in the
application or were not known by the insured at the time of the
application.  Clearly, the insurer could not refuse to pay AIDS-
related disability benefits to a person who did not know he was
HIV+ at the time he applied for the policy, merely because he was
in fact HIV+ at that time; according to the court, the definition
of excludable pre-existing conditions extends only to such
conditions that have manifested themselves sufficiently to alert an
ordinarily prudent person to seek medical care.  

Masterson rejected the further argument that a fact issue remained
as to whether HIV+ status, without more, constitutes a pre-existing
medical condition.  Here a recent AIDS-rights victory came back to
haunt Galanty, as the court relied on the Supreme Court's recent
opinion in _Bragdon v. Abbott_, 118 S.C. 2196 (1998), in which
Justice Kennedy wrote that HIV constitutes a physical impairment
from the moment of infection, due to the virus's immediate attack
upon the immune system.  Since the Supreme Court has found the
"asymptomatic HIV infection" to be a misnomer, it seems now to be
transformed into a medical condition that has manifested itself
once the individual knows his or her HIV+ status, for purposes of
construing insurance contracts (at least in California).

The court's construction of the incontestability clause is contrary
to several decisions in other jurisdictions, including a recent
ruling by the Hawaii Supreme Court.  If it is followed by other
courts, it will severely undercut the protection that insurance
commissioners intended by requiring the inclusion in
incontestability provisions of the requirement that pre-existing
conditions be covered if the claims are asserted more than two
years after the anniversary of sale of the policy, regardless of
misrepresentations or omissions on the application.

Galanty is represented by Lambda Legal Defense Fund Managing
Attorney John Davidson and cooperating attorney Mary Newcombe of
Hedges & Caldwell, Leslie, Newcombe & Pettit.  A.S.L.

Liability Insurer Off the Hook in Ohio AIDS Discrimination Case

The 10th District Ohio Appeals Court upheld summary judgement
granted to State Automobile Mutual Insurance Company where a law
partnership sued on its liability policy, claiming that the insurer
improperly refused to pay for their defense when a former employee
alleged discrimination based on her being HIV+. _Mains at al v.
State Automobile Ins. Co._, 1997 WL 358841 (June 24).  

D. L. Mains, Jr., and Ted R. Howard sued the insurance company
after it refused to pay for their defense under a general business
liability policy when Dawn Springer sued alleging wrongful
termination based on her being HIV+.  She worked for Mains and
Howard for six months between 1992 and 1993.  Mains and Howard
prevailed at a jury trial.  They then sued the insurance company,
which had refused to cover their defense costs.  The court upheld
the summary judgement by the Franklin County Court of Common Pleas,
finding that Springer's suit did not fall within the "bodily
injury," "property damage" or "personal injury" clauses of the
policy.   

Writing for the court, Judge Deshler said that if Springer had sued
based on her dismissal being publicized by Mains and Howard there
may have been a "duty to defend" by the insurance company.  The
court also rejected the argument that the insurance company did an
inadequate investigation before deciding not to defend Mains and
Howard.  _Daniel R Schaffer_

Convictions Confirmed For Two New Jersey Needle Exchange Workers

Two needle exchange advocates failed to overturn their convictions
for operating a university-affiliated, law-enforcement-advised
needle exchange program in New Jersey after two years of operation. 
_New Jersey v. McCague_, 1998 WL 426752 (July 23).  Ironically,
this program was handsomely funded by the US Conference of Mayors.

Defendants Diana McCague and Thomas Scozzare were arrested by
undercover narcotics agents for disorderly conduct for knowingly
furnishing hypodermic needles.  They did so as a part of the Chai
Project, a nonprofit corporation organized to promote community
health by preventing the spread of AIDS/HIV and transmission among
intravenous drug users through counseling and a needle exchange
program.  The program began operating in New Brunswick in January
1994 and is affiliated with Rutgers University.  The project has
been funded by private donations and small foundation grants and
has received an $80,000 grant from the US Conference of Mayors.  At
all times relevant to this case, there is a New Jersey law making
possession or distribution of a hypodermic syringe or needle
without a prescription a "disorderly person" offense.  The local
police knew of the project and were even conferenced-in on the
program's logistical planning done by McCague.  

After 2 years of operation, Chai members became aware of heightened
scrutiny by local law enforcement.  As a result, McCague prepared
a letter that was given out to each participant in the program
informing them of the illegal nature of the needle exchange, the
need for volunteers to keep a lookout for police and "[to] treat
contact with us as though you are copping a bag."

On April 18, 1996, an undercover officer walked up and asked for a
"kit."  McCague and Scozzare gave him one and were promptly
arrested.  McCague and Scozzare moved for a dismissal of the
disorderly conduct charge on de minimis infractions as well as
constitutional grounds.  The motion was denied and proceeded to
trial.  No leave to appeal was given.

At trial, McCague testified that she knew she was breaking the law
when she gave the undercover officer the items.  She added that a
few weeks after her arrest she resumed needle exchange and
continued doing so up to the time of trial.  A host of laureate
expert witnesses testified for the defendants, all stating the
benefit of needle exchange programs.  The municipal court judge
found both guilty and imposed minimal fines.  In a de novo appeal,
the Law Division judge affirmed the convictions and penalties.

On appeal before the Appellate Division of New Jersey, the
defendants claimed (1) medical necessity, (2) operation of the
needle exchange program is conduct without fault or criminal
purpose, (3) violation of a participant's right to life under state
and federal constitutions, and (4) various due process violations. 
Writing for the court, Judge Collester attacked each argument
methodically, beginning with the defense that the defendants acted
with a lawful and laudable purpose of seeking to save lives by
halting the spread of AIDS.  Collester observed that there is no
statutory requirement of an evil purpose in the applied criminal
statute and that this lack of a defined culpability in a criminal
statute "is not a prerequisite to its enforcement and assertions of
good motive or humanitarian concern . . . do not vitiate a state
specifying actions constituting criminal conduct."  Therefore the
convictions were legally proper and factually sufficient beyond
reasonable doubt.

Turning to the medical necessity defense, Collester found it
inapplicable to the facts of this case.  The doctrine requires that
the "law defining the offense provide[] [no] exceptions or defenses
dealing with the specific situation involved and a legislative
purpose to exclude the justification claim does not otherwise
appear."  Here, the defendants' conduct is expressly defined as
criminal under the law and was enacted as part of a clear and
comprehensive legislative attack on the distribution, possession
and use of controlled dangerous substances and associated
paraphernalia.  Furthermore, exceptions exist for certain medical
professions.  The judge further distinguished the case by reminding
defendants that there was no clear and imminent danger to
themselves or others under the medical necessity doctrine, since
this case involved no needle exchange but a distribution of
"works," consisting of needles, rubber bands, "cookers" and bottles
of bleach and water and an instruction sheet.  The undercover
officer did not present dirty needles or claim that he was an
addict or in need of the equipment offered.  

Defendants' constitutional arguments were summarily dismissed as
meritless.  Subtly hinting that the defendants may lack standing
for the claim, Collester held that there is no fundamental right to
obtain a disinfected needle to inject heroin or any other
prohibited substance and that a constitutionally protected "right
to life" does not encompass the use of prohibited substances as a
reduced health risk.

Lastly, the court rejected the defendants' claim that the rule of
lenity requires reversal of their convictions.  This, as well as
their claims of due process, laches, and denial of their pretrial
motion to dismiss, were denied all with the reasoning that the
defendants' were at all times aware that their conduct was illegal
and of the likelihood of arrest.  _K. Jacob Ruppert_

Pro Se PWA Wins Reversal of Social Security Disability Denial

U.S. District Judge Edward Korman (E.D.N.Y.) reversed the Social
Security Administration's denial of disability benefits to Justin
Murray, a PWA client of Gay Men's Health Crisis (GMHC) who found
himself unrepresented at a scheduled hearing and proceeded pro se
to present his case to the court.  _Murray v. Apfel_, 1998 WL
412639 (May 26).

Murray convinced Judge Korman that an unduly formalistic
Administrative Law Judge had wrongfully classified him as able to
hold down a full-time job.  After reviewing Murray's medical
records, obtained after the hearing date, and comparing them to his
testimony, Korman found that the ALJ had erroneously concluded that
Murray's weight loss was not significant enough to qualify as "HIV
infection with HIV wasting syndrome," which is supposed to qualify
somebody for disability benefits automatically under the SSD
regulations.  Furthermore, Korman found that the ALJ had
erroneously failed to take account of Murray's recurring, serious
problems with diarrhea, which effectively disabled him from going
to work on five day schedule, even though the rate of occurrence
Murray described did not precisely conform to the Social Security
Administration's written guidelines for disability determination. 


Korman remanded the matter for "the calculation and award of
benefits, and for the determination of an onset date of disability
which shall be no later than March 8, 1995."  Unfortunately, the
opinion has not been selected for publication in Federal
Supplement, but its availability in computer databases should be
useful for those contesting disability determinations based on
unrealistically literalistic applications of the regulatory
guidelines in HIV-related cases.  A.S.L.

Constitutional Claims Against Cook County Officials on Jail
Policies May Proceed

Denying a motion to dismiss various constitutional claims asserted
against Cook County Sheriff Michael Sheahan and members of his
staff, U.S. District Judge Marovich (N.D.Ill.) found that Carmen
Rivera, executrix for Alicia Rivera, had asserted valid 14th
Amendment due process and 8th Amendment denial of medical treatment
claims relating to Alicia's confinement in the Sheriff's custody. 
_Rivera v. Sheahan_, 1998 WL 531875 (Aug. 14).

Rivera was arrested on June 26, 1996, for reasons not related in
the opinion.  The mother of three children, Rivera, 33, had been
diagnosed with AIDS.  She died from AIDS on July 14, 1997.  While
in the custody of the Sheriff's office, she appeared in Cook County
Circuit Court on January 6, 1997, at which time the judge issued an
order authorizing her release on bond, and setting a January 21
hearing date, having found probable cause in her case.  When
members of her family tried to post bond the next day, the
Sheriff's office refused to allow her to be released, and persisted
in this refusal until February 11.  In the meantime, Rivera began
to manifest severe AIDS-related symptoms and repeatedly asked for
medical assistance, but the defendants allegedly failed to refer
her to a physician and ignored her requests until she was found
comatose in her cell in mid-January and taken to Cook County
Hospital, where she was shackled to a bed and held until the
Sheriff's office finally accepted her family's attempt to post the
bond on February 11.

In the lawsuit, Carmen Rivera claimed that Alicia was unlawfully
detained, that defendants exhibited reckless indifference to her
medical condition by unconstitutionally denying her care, and that
Alicia was denied equal protection by being denied access to the
courts during the time she was shackled to her bed in the hospital.

Characterizing Rivera's suit papers as "a mess," and criticizing
the defendants' for their disorganized presentation of their motion
to dismiss, Judge Marovich then concluded that Rivera had stated
cognizable claims against the Sheriff for failing to adequately
train his staff to process the release bonds properly, and for
failing to provide adequate medical care.  

To state a 42 U.S.C. sec. 1983 due process claim, Rivera had to
adequately allege a policy or practice on the part of the Sheriff. 
She alleged that there had been numerous instances where the office
had failed properly to process release bonds, resulting in
unnecessary detention of arrestees.  The defendants responded that
her case "is an isolated occurrence of an alleged wrongful
detainment."  Said Marovich: "This representation by Defendants is
demonstrably false and Defendants know it."  Thus, the court
concluded that Rivera could proceed against Sheriff Sheahan in his
official capacity for failure to train his staff to process the
release bonds properly.

As to the medical claim, the defendants argued that they were
immune from suit under the 8th Amendment for mere negligence in
providing medical care to an inmate.  But Rivera was not alleging
negligence, she was alleging reckless indifference.  "Far from
`barely rising to the level of negligence,' this Court finds the
allegations in Rivera's Complaint -- if true -- to be almost
criminal."  Consequently, the motion to dismiss this claim was
rejected.

However, Marovich concluded that Rivera had failed to state equal
protection and Americans With Disabilities Act claims, since she
could not allege that arrestees with AIDS were being treated
differently from arrestees with other serious diseases requiring
hospitalization.  A.S.L.

Pro Se PWA Prisoner Survives Motion to Dismiss Privacy Claims

A state prisoner living with AIDS has survived a motion to dismiss
his pro se claims of violation of the right of privacy and AIDS-
related discrimination against certain officials of the prison. 
_Bennett v. Maier_, 1998 WL 386129 (E.D.Pa., July 7).  
Keith M. Bennett, incarcerated at SCI Cresson in Pennsylvania,
alleged that a prison psychologist had improperly revealed
Bennett's medical condition to a staff counselor, and that the
counselor had then improperly disclosed this information to
Bennett's cellmate.  Bennett also alleged that the counselor had
discriminated against him because of his medical condition by
failing to find a job placement for him or to allow him to
participate in various support groups for prisoners with drug and
alcohol problems.

District Judge Kelly struggled with the crudely drafted pro se
complaint, but ultimately determined that Bennett had stated a
claim for violation of his right of privacy under 42 U.S.C. sec.
1983, and might be able to amend the complaint to state a claim
under the Americans With Disabilities Act as well.  The defendants
were arguing that "a prisoner's medical condition must be disclosed
to promote the care, custody and control of the inmate, especially
when an inmate is diagnosed with a contagious disease," but Kelly
observed that they had provided no authority for this proposition,
so that dismissal of the claim at this stage of the proceeding
would be improper.  On the discrimination claim, Kelly conceded
that Bennett had not mentioned the ADA in his complaint, having
apparently only thought of the ADA when he had to respond to the
motion to dismiss, but since the factual allegations could support
an ADA claim, Kelly decided it would be appropriate to allow
Bennett to amend his complaint and then give the defendants an
opportunity to respond.

Kelly dismissed the claims against some of the defendants because
Bennett did not allege facts showing that they were personally
involved in either of the legal claims that survived the motion,
but the claims against the psychologist and the counselor survived
the motion.  A.S.L.

ERISA Preemption Mandates Dismissal of Benefits Claim

Otto A. Parra, a participant in a group medical insurance plan
sponsored by his employer, claimed that his coverage was wrongfully
terminated six months after he began collecting benefits for
treatment for AIDS.  Parra filed suit in Florida state court
against the insurer, asserting a violation of Fla. Stat. Ann. sec.
627.6646, which prohibits insurers from cancelling health insurance
coverage because of diagnosis or treatment of HIV/AIDS.  The
insurer removed the action to federal court under ERISA, claiming
that Parra's claim was preempted by the exclusive federal
regulation of employee benefit plans, and moved to have the case
dismissed.  Parra moved to remand to state court, arguing that he
had not brought a federal case and his state law claim was not
preempted.  _Parra v. John Alden Life Ins. Co._, 1998 WL 484387
(U.S.Dist.Ct., S.D.Fla., July 1).

Reluctantly agreeing with the defendant's preemption argument,
District Judge King denied Parra's motion to remand and granted the
defendant's motion to dismiss, but without prejudice, and providing
Parra an opportunity to amend his complaint to add a claim under
ERISA.  Parra had argued that applying ERISA preemption to his case
would in effect render the state law null and void.  King responded
that this was evidently Congress's intent in ERISA: to override and
displace all state or local laws regulating employee benefit plans. 
However, ERISA itself may contain provisions that could be helpful
to Parra's case, as may the Americans with Disabilities Act; thus,
the court's permission to file an amended complaint.

"The court shares the frustration that other courts have
experienced when faced with such outcomes," wrote King, quoting at
length from an opinion in _Suggs v. Pan American Life Ins. Co._,
847 F.Supp. 1324 (S.D.Miss. 1994).  A.S.L.

HIV-Infected Plaintiff Loses Suit Against Liability Insurer in
Texas Suit

In _C.M.S. v. State Farm Lloyds_, 1998 WL 386160 (N.D. Texas, July
7), the federal trial court ruled that an insurance company would
not be held liable to a third party on a personal liability policy
for transmission of HIV, and granted summary judgment.

Plaintiff C.M.S. filed a personal injury action in Texas state
court against the liability insurance policy holder, Mastandrea, in
April 1996.  He alleged that the two had had an intimate
relationship involving repeated acts of "unprotected sexual
relations" during which Mastandrea had repeatedly assured C.M.S.
that he did not have  HIV or any other sexually transmitted
disease. C.M.S. alleged that he learned that he had HIV in 1994,
and that Mastandrea was the only person he could have gotten it
from.

C.M.S. and Mastandrea entered into mediation and settled the case
in December 1996.  Mastandrea agreed to pay $65,000, convey a
condominium in Dallas, give C.M.S. a piano, and assign any cause of
action against any insurance company to C.M.S., including any
potential rights against State Farm Lloyds.

Mastandrea did not inform State Farm Lloyds of the suit until after
settlement papers were signed.  C.M.S. then filed a declaratory
judgment action under the policy against State Farm Lloyds in state
court for failure to defend the action, and added counts for actual
damages for pain and suffering resulting from how they handled the
suit. The matter was removed to federal court, where State Farm
Lloyds filed this motion for summary judgment.

The court granted summary judgment on a number of grounds.  First,
there was a specific exemption in the policy for bodily injury
relating to transmission of illness thorough sexual relations.
Taking C.M.S.'s allegations as true (as it had to), the court ruled
that under the terms of the policy, this claim was excluded.

The court also found that no third party claim against the
insurance company survived the settlement, as any claim against
State Farm Lloyds was contractual.  The settlement of claim and
release of liability prevented the releasing party from suing the
tortfeasor's insurance company. 

Finally, to sue under Mastandrea's policy, C.M.S. would have to
show that Mastandrea complied with all conditions precedent to
suit.  This would include timely notification to the insurance
company of its obligation to defend.  Clearly, this was not done,
as State Farm Lloyds was not advised of the suit until after it had
been settled.  _Steve Kolodny_

PWA Put Off Airplane Due to Odor May Sue Under Air Carrier Access
Act

District Judge Sessions (U.S.Dist.Ct., Vt., May 8, 1998) denied a
motion to dismiss a discrimination claim on behalf of a person with
AIDS under the Air Carrier Access Act of 1986, 49 U.S.C. sec.
41705.  _Price v. Delta Airlines_, 5 F.Supp.2d 226. Although
Sessions did dismiss some of the ancillary claims, the court found
that Constance Price, mother of the late Gregory Price, is entitled
to a trial of various claims stemming from an airline's decision to
put Gregory off a plane.

Gregory Price and his mother booked passage on Delta Airlines for
a flight to Florida on July 26, 1995.  At the time, Gregory had
end-stage AIDS and was suffering from severe leg lesions due to
Kaposi's sarcoma.  Due to the seepage from the lesions, Gregory
kept his legs wrapped in highly absorbent dressings, which he would
change when they became saturated with the discharge from the
lesions.  Gregory was flying to Florida to keep a doctor's
appointment, with his mother assisting because walking was
difficult for him.  The plane they boarded in Burlington, Vermont,
was actually operated by Comair, Inc., under contract with Delta as
a "connecting airline."  There was a stopover in Manchester, New
Hampshire, during which Gregory stayed on the plane.  

During the stopover, the flight attendant told the pilots that a
foul odor emanating from a passenger was so bad that it was making
her and some of the passengers nauseous.  The pilots walked through
the cabin, and agreed with the flight attendant.  The gate agent
also walked through the plane a concurred.  The captain decided
that Gregory should be removed from the plane, and that he would
not attempt to fly with Gregory on board.  The flight crew
contacted the customer service agent in the airport, who received
instructions from Comair, provided the captain gave written
documentation of the problem.  Then the service agent went on the
public address system in the plane, asking that everybody leave the
plane so that the crew could take care of a problem on board.  

A ground crew member assisted Gregory and his mother in deplaning,
then took them to a service area where they were told that Gregory
had been removed from the plane due to the odor he was creating. 
Gregory explained the situation with his legs.  The service rep
told them that Greg could not continue on this flight, and that
they would be put up in a hotel near the airport and could take a
flight the next morning, so Greg would have a chance to clean up
his legs and change the dressings.  The Prices acquiesced in this,
stayed in the local Super 8 motel, and took the next plane in the
morning.  They continued their trip to Florida without incident. 
Gregory died several months later, in Florida.

Constance Price filed suit against Delta and Comair as executrix of
Gregory's estate in January 1997, alleging a violation of the Air
Carrier Access Act, which bars disability discrimination by
airlines, as well as state claims of breach of contract and
negligent and intentional infliction of emotional distress.  The
airlines moved to dismiss the contract claim as untimely, noting
that their tickets contained a requirement of notice of any claim
to the airline within 21 days, and a one-year time limit for filing
suit.  The airline moved to dismiss the tort claims, arguing
preemption under the Airline Deregulation Act (ADA), which divests
the states of jurisdiction to regulate airline operations.  The
airlines also sought summary judgment on the discrimination claim,
asserting that Comair had a non-discriminatory justification for
putting Gregory off the plane, based on safety concerns.

Judge Sessions granted the dismissal motion as to the tort claims,
finding that although they were not preempted by the ADA, the facts
as alleged would not as a matter of law be sufficient to support
the emotional distress claims.  On the contract claim, Sessions
found that there was a factual issue as to whether the 21 day
notice requirement was adequately communicated to the Prices when
they bought their tickets, so this claim should not be dismissed.

Most significant, however, is Sessions' decision on the ACA claim. 
Sessions found that AIDS is a disability under the ACA, and noted
that the ACA does allow an airline to refuse service to somebody
for reasons of safety.  But there remains a factual issue as to
exactly why Price was put off the plane.  The plaintiffs asserted
that Price was put off not for safety reasons, but out of concern
for the comfort and convenience of other passengers, and
discrimination on that account is not justified under the statute. 
The defendants asserted that the safety concern was valid, because
the flight crew members found the odor so revolting that it was
making people (including the flight attendant) physically ill.  

Concluded Sessions: "It is clear from the foregoing that the reason
for denying Gregory Price continued transportation on the Comair
flight is material to this action and is disputed.  Moreover,
whether Gregory Price's disabling condition included an odor which
he could not always keep under control, or whether the odor was the
result of insufficient attention to his wounds is likewise material
and disputed."  Consequently, Sessions denied summary judgment on
the discrimination claim.

R. Jeffrey Behm of Burlington, Vt., represents the plaintiff estate
of Gregory Price.  A.S.L.

N.Y. District Court Orders Trial on AIDS-Discrimination Claims 

A person with AIDS who claims he was discriminated against by
McGraw-Hill Publishing Co., his former employer, may proceed with
his claims under the Americans With Disabilities Act (ADA) and the
New York Human Rights Law, according to an August 11 decision
issued by U.S. District Judge John G. Koeltl.  _DiSanto v. McGraw-
Hill, Inc./Platt's Division_, 1998 WL 474136 (S.D.N.Y., Aug. 11).

Robert J. DiSanto was employed since 1987 as a salesman in the
Platt's Division of McGraw Hill, which sells technical and
statistical information and services to the oil and metals
industries.  He was diagnosed HIV+ in 1988, but did not encounter
any difficulties at McGraw-Hill until 1994, when he told his
supervisor about his HIV status.  DiSanto claims that after this
disclosure, he was subjected to adverse treatment, negative
reassignments, lack of the ordinary staff backup for his work, and
was forced out on unnecessary disability leave.  When he received
a warning that he would be subject to disability termination, he
tried to resume working, but claims that he was subjected to such
adverse conditions that he took a second disability leave and was
ultimately terminated.  He subsequently applied for, and received,
federal disability insurance benefits. DiSanto sued McGraw-Hill
under both the federal and N.Y. disability discrimination laws,
claiming that he was subjected to hostile environment harassment
and discriminated against because of two disabilities: his HIV
disease and depression.

McGraw-Hill moved to dismiss, using a Catch-22 theory that
employers have increasingly been advancing in AIDS cases.  Under
the ADA, a plaintiff must show that he suffers from a substantial
physical or mental impairment, but is qualified to work, either
with or without reasonable accommodations by his employer. 
McGraw-Hill argued that because DiSanto obtained federal disability
benefits, for which he had to state in an application that he was
unable to work, he should be estopped from arguing that he is
"qualified" to work under the ADA.  McGraw-Hill also argued,
alternatively and inconsistently, that DiSanto did not suffer from
a substantial impairment, and thus should not be considered a
person with a disability under the ADA. 

Judge Koeltl pointed out that the very contradictions in
McGraw-Hill's arguments showed that it would be inappropriate to
toss out this lawsuit without having some kind of trial.  
Significantly, Koeltl rejected the Catch-22 argument, siding with
those other federal courts that have refused to bar federal
disability insurance recipients from bringing lawsuits under the
ADA, now a majority view (although initially a minority view as a
result of a leading 3rd Circuit opinion that was denied review by
the Supreme Court).  Koeltl pointed out that the social security
disability law and the ADA have different definitions of
disability, the former not being concerned with whether an
individual with a disability might be able to work if given
reasonable accommodations, but the later turning heavily on the
accommodation issue.  Koeltl also pointedly noted that the Supreme
Court's _Bragdon_ decision cuts against McGraw-Hill's argument that
DiSanto doesn't have a disability, and that several other courts
have found that depression is a mental impairment under the ADA.

Koeltl rejected McGraw-Hill's argument that the ADA does not apply
to hostile environment claims, which are nowhere mentioned in the
statute.  Hostile environment isn't specifically mentioned in any
federal discrimination statute, but the U.S. Supreme Court has
found such claims to be implied in Title VII, and Koeltl found no
reason why they shouldn't also be implied in the ADA.  This is a
relatively new issue under the ADA, but Koeltl was able to point to
a handful of recent decisions by other federal trial courts
upholding hostile environment claims.

This ruling is important because many AIDS discrimination claims
are based on facts that resemble the hostile environment claims
that have been brought in the past by people of color and women. 

DiSanto is represented by New York attorney Lee Nuwesra. A.S.L.

Conviction of HIV+ Service Member for Assault Upheld

The U.S. Army Court of Criminal Appeals has affirmed the conviction
of Kevin L. Barrows for violation of a safe-sex order and engaging
in unprotected intercourse with several women while under the
order.  _U.S. v. Barrows_, 1998 WL 405963 (July 21).

Barrows was diagnosed HIV+ as part of routine military screening in
July 1993, at which time an Army nurse provided safe-sex
counseling.  After the test was confirmed, the nurse met with
Barrows and his company commander and explained the military policy
on service by persons with HIV.  The commander then executed the
policy by providing further counseling and giving Barrows the
prescribed written order, which requires that he inform all sex
partners about his HIV status, use condoms when engaging in
intercourse, refrain from blood and tissue donations, and notify
all health care workers from whom he seeks treatment about his HIV
status.  Although neither this commander nor his subsequent
commanders reiterated or reminded Barrows about the order, he
received check-ups every six months at Walter Reed Medical Center,
at which time the Army nurse confirmed his HIV-status.

Over the course of the next several years, Barrows allegedly had
sexual intercourse with several women in the military, without
informing them of his status and only inconsistently using condoms. 
It appears from the record that Barrows came to believe that he
might not really be HIV+ because he was totally asymptomatic and
felt healthy.  Even after a new HIV test was confirmed positive in
1995, Barrows continued to believe that he was not infected.  In
the three-year period after he received the initial safe-sex order
from his commander, Barrows changed commanding officers several
times, and none of the subsequent commanders ever specifically
reinforced or reissued the order.

Appealing his conviction of disobeying a lawful order and
aggravated assault, Barrows argued that he had believed the order
was no longer in effect when his commanding officer changed, and
that he reasonably believed he was not HIV+ and so did not need to
comply with the terms of the order.

The appeals court rejected both arguments decisively.  Although at
a date subsequent to Barrows' initial counseling session the Army
had adopted new regulations requiring new commanders to review
safe-sex orders and reissue them to HIV+ personnel under their
command, the court found no reasonable basis for Barrows' belief
that the safe-sex order died whenever he changed commanders. 
Further, the court found Barrows' belief that he was not HIV+ to be
unreasonable, in light of the testing and repeated counseling he
received at Walter Reed.  

The punishment, affirmed by the court, is bad-conduct discharge,
confinement for two years, forfeiture of pay and allowances, and
reduction in rank to Private E1.  A.S.L.

Virginia Appeals Court Reverses Rape Conviction; Finds Error in
Denial of Rebuttal on HIV Testimony

In _Abunaaj v. Commonwealth_, 1998 WL 405913 (July 21), the
Virginia Court of Appeals at Alexandria ruled that the Arlington
County Circuit Court erred in denying a rape defendant an
opportunity to rebut testimony that he was HIV+, and in admitting
in evidence on the prosecution's rebuttal a recording of a
telephone conversation between the defendant and the victim from
the day after the alleged rape, where the recording had not been
disclosed to the defendant prior to his testimony.

The defendant, Yazid Abunaaj, was accused of raping D.T., a married
woman, after taking her to his house under the pretense that they
were only making a brief stop for him to pick up something before
proceeding to eat lunch at a restaurant.  At trial, Abunaaj
testified in his own defense, contending that the sex was
consensual, and he was questioned about a telephone conversation he
had with the victim the day after they had sex.  During its
rebuttal case, the prosecution was allowed over the defendant's
protest to play a tape of that conversation, in which defendant was
heard to apologize to the victim for forcing her to have sex.  The
victim had actually placed that call to the defendant from the
police station, with police officers listening in and recording it. 
Although a consent order prior to trial obligated the prosecution
to provide all statements that defendant had made to the police,
this recording was not provided to the defendant, the state
contending that the statement was made to the victim, not the
police.

In addition, the state presented the testimony of a prison cellmate
of the defendant, who testified that the defendant had confessed to
him.  When the cellmate was questioned about the motivation for his
coming forward, he testified that defendant had told him that
defendant was HIV+, and the cellmate said, "I felt like I just
couldn't live with myself if that was true and he was going and
having sex with people and he did, in fact, have the virus."  The
court cautioned the jury that this evidence should be considered
only as bearing on the witness's motive for testifying, and not
taken for the truth of the assertion about the defendant's HIV
status.

In an opinion attributed to Senior Judge Duff and Chief Judge
Fitzpatrick, the appeals court reversed the conviction and remanded
the case for a new trial.  The court found that due process had not
been afforded the defendant when the prosecution failed to provide
the tape under the consent order and then ambushed the defendant
with the tape at trial.  According to the court, since the police
had listened in to the call, it constituted a statement to the
police under the consent order.  

As to the HIV point, the court agreed with the defendant that
information about a rape defendant's HIV-status is so prejudicial
that the circuit court clearly erred in refusing to allow the
defendant to deny the truth of the assertion as a witness under
oath.  Finding that the prejudicial effect of the statement
outweighed its probative value in providing a motive for the
cellmate's testimony, the court commented that "the cautionary
instruction left the jury free to believe appellant had AIDS, and
the trial court's subsequent denial of appellant's request to put
on surrebuttal evidence that he was not HIV-positive compounded the
error."  A.S.L.

AIDS Litigation Notes

Trial is set for Nov. 20 in Los Angeles Superior Court in _Doe v.
Keenan_, No. BC 186209 (Calif. Superior Ct.), in which a young man
with AIDS claims that his doctor inappropriately disclosed details
of his medical condition to the doctor's family, leading to further
disclosures and injury to the plaintiff, including depression,
isolation, lack of trust, anxiety and other emotional distress. 
According to the complaint filed on behalf of the plaintiff by
Santa Monica attorney Robert F. Cohen, Dr. Charles Keenan's son,
Joey, a "friend" of the plaintiff, told people that plaintiff had
AIDS and would be dead in four months.  The complaint charges Dr.
Keenan with invasion of privacy and negligence, and young Joey and
unnamed others with intentional and negligence infliction of
emotional distress.  The complaint also asserts that the
plaintiff's emotional distress has led him to seek psychological
help.  

Maine District Judge James MacMichael refused an attempt by the
state's Department of Human Services to gain temporary custody of
4-year-old Nikolas Emerson in an ongoing battle with Nikolas's
mother, Valerie Emerson, over her refusal to let him be treated
with the "triple cocktail" of protease inhibitors and other AIDS
drugs.  Valerie Emerson, 26, is HIV+.  Of her four children, two
were born with HIV infection and two were born uninfected.  Her
daughter, Tia, died in December 1996 from pneumocystis pneumonia,
after having reportedly suffered greatly during the course of
triple cocktail treatment, and Valerie has vowed that Nikolas will
not be subjected to the same treatment.  The Department filed suit
in state court, seeking to compel treatment, and a court hearing
was scheduled for September 10.  Reportedly reacting to a report
that Valerie's lawyer was seeking to have the hearing postponed to
a later date, the Department went to court late on Aug. 24, hoping
to remove Nikolas from Valerie's home and place him with a relative
who would allow the treatment to begin.  _Bangor Daily News_, Aug.
26.  

The ACLU AIDS & Civil Liberties Project has filed a federal suit
alleging that Outreach Community Ministries discriminated on the
basis of race when it pressured an African-American woman to have
her son tested for HIV after he shared a snorkel with a Caucasian
boy while participating in the defendant's day school program at a
public swimming pool in Wheaton, Illinois.  The suit also charges
the defendants, who include the clinic and technician who performed
the HIV test, violated state law by releasing the test results to
the mother of the white boy.  ACLU staff attorney Roger Leishman
represents the plaintiff, who is named "Mary Doe" in the complaint
to preserve confidentiality.  _Washington Post_, Aug. 1.

Employers lost summary judgment motions in two pending AIDS-
discrimination cases in New York.  In _Gilbert v. Related Mgt. Co.,
L.P._, N.Y. County Supreme Ct., No. 117107/95, Justice Edward H.
Lehner denied summary judgment on May 22 in a case under the New
York Human Rights Law, finding in a short unpublished opinion that
there was a genuine factual dispute over the employer's state of
knowledge about the plaintiff's health at the time of his
termination.  However, Lehner did find that plaintiff failed to
state a sex discrimination claim or a tort claim, thus limiting the
case to disability discrimination.  In _Ferguson v. McCann
Erickson_, 97 Civ. 3064, U.S. Dist. Ct., Southern Dist. N.Y., Judge
Kimba Wood also found disputed issues of material fact precluding
summary judgment in a case under the ADA, the Family & Medical
Leave Act, and state and local laws (including the N.Y. City
ordinance forbidding sexual orientation discrimination.  Craig
Ferguson claims he was dismissed because he was an openly gay
employee who was believed by others to have AIDS.  In both pending
cases, the plaintiffs are represented by LeGaL member Gregory
Antollino, whom we thank for bringing these unpublished rulings to
our attention.

The Equal Employment Opportunity Commission announced a settlement
in _EEOC v. Nippon Express USA_, an AIDS-discrimination case
pending in the U.S. District Court for the Northern District of
Illinois.  Richard McCullough, a Chicago resident with AIDS who was
employed by Nippon Express at an office near O'Hare Airport for six
years, claimed that once the employer learned he had AIDS, he was
assigned meaningless work, had his telephone removed, and was
subjected to official isolation from his co-workers.  He also said
that co-workers belittled him and made cruel comments about his
condition and lifestyle, according to a _Chicago Tribune_ article
published July 30.  Under the settlement, McCullough will receive
$160,000 in damages, Nippon Express will donate an additional
$25,000 to AIDS research, and Nippon Express will provide
management employees in its Chicago and Indianapolis offices with
training on dealing with people with AIDS and compliance with the
ADA.  The EEOC described this case as one of the first it had filed
in federal court on an AIDS employment discrimination claim.

In _Mercer v. Commissioner of Correction_, 1998 WL 484678 (Conn.
App., Aug. 18), the Appellate Court of Connecticut, ruling on
remand from the state supreme court, affirmed the judgment of a
habeas court that Eugene Mercer's trial for the murder of a woman
shot in a parking lot in Stamford, Connecticut, had not been
constitutionally defective due to various way's in which the
defendant's HIV+ status were handled during the trial process. 
Most particularly, the appellate court endorsed the habeas court's
finding that the discussion by some of the juror's of the
defendant's medical condition did not lead to any inference that
the jurors were biased in their determination of guilt, especially
where the evidence against the defendant was overwhelming.  A.S.L.

AIDS Law & Society Notes

A judge who suggested researching whether he could include in his
sentence for an HIV-positive rapist an order that the prison not
provide any AIDS-related treatments to the defendant was censured
by the California Supreme Court.  In a unanimous decision issued
Aug. 10 in _Broadman v. Commission on Judicial Performance_, 1998
WL 460162, the court found that Tulare County Superior Court Judge
Howard Broadman had engaged in willful misconduct by tricking
defense counsel to agree to a delay in sentencing in order that the
judge would have time to request counsel for both sides to research
the issue of withholding treatment.  Several other instances of
alleged misconduct were also considered by the court in upholding
the Judicial Performance Commission's decision to censure Judge
Broadman.  The judge is famous for his "innovative" sentences,
which included ordering an abusive mother to be fitted with a
Norplant birth control device as a condition of probation.

Bronx County (N.Y.) District Attorney Robert Johnson has secured
the grand jury indictment of Nushawn Williams for Reckless
Endangerment, Attempted Assault, Sexual Misconduct and Endangering
the Welfare of a Child, based on evidence that Mr. Williams had
unprotected sex with a minor in the Bronx in May 1997, eight months
after he was told he was HIV+ positive and counselled about safe
sex.  Johnson did not announce whether the victim was infected by
Johnson.  Williams earned international notoriety when it was
revealed that he had infected more than a dozen women in Chautauqua
County, and he is currently under indictment for statutory rape in
that jurisdiction.  Williams is currently serving a prison sentence
on drug charges.  _New York Times_, _New York Law Journal_, Aug.
20.  

The _New York Times_ reported Aug. 28 that Keith Carson, an AIDS
educator in New Jersey, has been indicted by a grand jury for
distributing obscene material to minors.  Carson, who works for the
South Jersey AIDS Alliance, showed a 25-minute safer sex video
produced by Gay Men's Health Crisis to seven teenagers at a youth
shelter.  The video, intended to promote condom use by gay men,
shows anal and oral sex using condoms.  The Alliance, which had not
approved the video for use with young people, has reportedly
disciplined Carson for his action.  

Massachusetts Attorney General Scott Harshbarger has reacted
quickly to the Supreme Court's decision in _Bragdon v. Abbott_,
issuing a letter to all dentists and dental hygienists in the state
to communicate that discrimination against dental patients with
AIDS violates both the ADA and the Massachusetts Law Against
Discrimination.  The Aug. 12, 1998, letter was signed by Assistant
Attorney General Stanley J. Eichner, Director of the Attorney
General's Disability Rights Project, who authored the letter
together with Assistant A.G. Richard I. Gordon and Special
Assistant A.G. Jennifer Lawrence.  A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Betlach, Bradley J., _The Unconstitutionality of the Minnesota
Defense of Marriage Act: Ignoring Judgments, Restricting Travel and
Purposeful Discrimination_, 24 Wm. Mitchell L. Rev. 407 (1998).

Brookins, Robert, _A Rose by Any Other Name. . . The Gender Basis
of Same-Sex Sexual Harassment_, 46 Drake L. Rev. 441 (1998).

Christensen, Craig W., _If Not Marriage? On Securing Gay and
Lesbian Family Values by a "Simulacrum of Marriage"_, 66 Fordham L.
Rev. 1699 (April 1998).

Connolly, Catherine, _The Description of Gay and Lesbian Families
in Second-Parent Adoption Cases_, 16 Behavioral Sciences & the L.
225 (Spring 1998).

Craig, J. Robert, Reno v. ACLU_: The First Amendment, Electronic
Media, and the Internet Indecency Issue_, 20 Communications & L.
No. 2, 1 (June 1998).

Dreger, Alice Domurat, _"Ambiguous Sex" -- or Ambivalent Medicine?:
Ethical Issues in the Treatment of Intersexuality_, 28 Hastings
Ctr. Rpt. No. 3, 24 (May-June 1998).

Eichner, Maxine, _Square Peg in a Round Hole: Parenting Policies
and Liberal Theory_, 59 Ohio St. L. J. 133 (1998).

Flaherty, Hon. John P., and Maureen E. Lally-Green, _Fundamental
Rights in the European Union_, 36 Duquesne L. Rev. 249 (Winter
1998).

Gregory, John DeWitt, _Blood Ties: A Rationale for Child Visitation
by Legal Strangers_, 55 Wash. & Lee L. Rev. 351 (Spring 1998)
(argues that fit natural parents should have the right to veto
visitation requests by third party "legal strangers," including
gay/lesbian co-parents, stepparents, grandparents).

Hartson, John, _The Golden Rules of Coparenting_, 21 Family
Advocate No. 1, 46 (1998).

Houlgate, Laurence D., _Must the Personal be Political? Family Law
and the Concept of Family_, 12 Int'l J. L., Policy & the Family 107
(1998).

Koppelman, Andrew, _Dumb and DOMA: Why the Defense of Marriage Act
Is Unconstitutional_, 83 Iowa L. Rev. 1 (Oct. 1997).

Kuykendall, Mae, _Johnny Mack Brown_, 7 Tex. J. Women & L. 123
(Fall 1997) (on social construction of gender).

Levesque, Roger J.R., _Educating American Youth: Lessons from
Children's Human Rights Law_, 27 J. L. & Educ. 173 (April 1998).

Magenau, Jeff, _Setting Rules in Cyberspace: Congress's Lost
Opportunities to Avoid the Vagueness and Overbreadth of the
Communications Decency Act_, 34 San Diego L. Rev. 1111 (Aug-Sep
1997).

McClain, Linda C., _Toleration, Autonomy, and Governmental
Promotion of Good Lives: Beyond "Empty" Toleration to Toleration as
Respect_, 59 Ohio St. L. J. 19 (1998).

Rosendall, Rick, _Federal Intrusions and the Gay Community_, 55
Guild Practitioner No. 1, 21 (Winter 1998).

Saxer, Shelley Ross, _Zoning Away First Amendment Rights_, 53 Wash.
U. J. Urban & Contemp. L. (Winter 1998).

Storrow, Richard F., _Same-Sex Sexual Harassment Claims After_
Oncale_: Defining the Boundaries of Actionable Conduct_, 47 Am. U.
L. Rev. 677 (Feb. 1998).

West, Robin, Essay, _Universalism, Liberal Theory, and the Problem
of Gay Marriage_, 25 Fla. St. U. L. Rev. 705 (Summer 1998).

Wolff, Tobias B., _Compelled Affirmations, Free Speech, and the
U.S. Military's Don't Ask, Don't Tell Policy_, 63 Brooklyn L. Rev.
1141 (1997).

Young, Alison Harvison, _New Reproductive Technologies in Canada
and the United States: Same Problems, Different Discourses_, 12
Temple Int'l & Comp. L. J. 43 (Spring 1998).

_Student Notes & Comments:_

Brewer, Shannon, _Constitutional Law: Ending the Expansion of the
Florida Privacy Amendment (_Krischer v. McIver_, 697 So.2d 97 (Fla.
1997))_, 49 Fla. L. Rev. 821 (Dec. 1997).

Collins, Kathy Lee, _Student-to-Student Sexual Harassment Under
Title IX: The Legal and Practical Issues_, 46 Drake L. Rev. 789
(1998).

Collins, Sam R., _ADULTS ONLY! Can We Zone Away the Evils of Adult
Businesses?_, 13 J. Nat'l Resources & Env. L. 177 (1997-98).

Flores, Craig J., _Indecent Exposure: An Analysis of the NEA's
"Decency and Respect" Provision_, 5 UCLA Ent. L. Rev. 251 (Spring
1998).

Giordanella, Heather C., _Status of Sec. 2423(b): Prosecuting
United States Nationals for Sexually Exploiting Children in Foreign
Countries_, 12 Temple Int'l & Comp. L. J. 133 (Spring 1998).

Hale, J.V., Recent Developments, _Reno v. American Civil Liberties
Union: Supreme Court Strikes Down Portions of the Communications
Decency Act of 1996 as Facially Overbroad in Violation of the First
Amendment_, 24 J. Contemp. L. 111 (1998).

Hamilton, Heather, _The Defense of Marriage Act: A Critical
Analysis of Its Constitutionality Under the Full Faith and Credit
Clause_, 47 DePaul L. Rev. 943 (Summer 1998).

Jefferson, Theresa Raffaele, _Toward a Black Lesbian
Jurisprudence_, 18 Boston Coll. 3rd World L. J. 263 (Spring 1998).

Keene, Bryan, _Chemical Castration: An Analysis of Florida's New
"Cutting Edge" Policy Towards Sex Criminals_, 49 Fla. L. Rev. 803
(Dec. 1997).

Mahaffey, Clay, _Torts/Sexual Harassment -- Extreme and Outrageous
Conduct: Wyoming Recognizes Workplace Sexual Misconduct as the
Basis for an Intentional Infliction of Emotional Distress Claim_,
33 Land & Water L. Rev. 731 (1998).

Markey, Karen, _An Overview of the Legal Challenges Faced by Gay
and Lesbian Parents: How Courts Treat the Growing Number of Gay
Families_, 14 N.Y.L.S. J. Hum. Rts. 721 (Spring 1998).

McGowan, Sharon, _The Fate of ENDA in the Wake of Maine: A Wake-Up
Call to Moderate Republicans_, 35 Harv. J. Legis. 623 (1998).

Smith, Elizabeth Nau, _Children's Exposure to Indecent Material on
Cable:_ Denver Area Educational Telecommunications Consortium, Inc.
v. F.C.C._, An Interpretation of the Cable Television Consumer
Protection and Competition Act of 1992_, 47 DePaul L. Rev. 1041
(Summer 1998).

Winner, James M., _Beds With Sheets But No Covers: The Right to
Privacy and the Military's Regulation of Adultery_, 31 Loyola L.A.
L. Rev. 1073 (April 1998).

Wood, Katie, _Holding School Systems Liable for Peer Sexual
Harassment_, 14 Ga. St. U. L. Rev. 695 (May 1998).

_Specially Noted:_

Symposium, _Sexual and Reproductive Rights in International Law_,
67 Nordic J. Int'l L. No. 1 (1998).

AIDS & RELATED LEGAL ISSUES:

Acton, James B., _The FCC and AIDS Education: Helping Broadcasters
Serve the Public Interest_, 50 Fed. Com. L. J. 659 (May 1998).

Bagasao, Teresita Marie P., _Moving Forward Through Community
Response: Lessons Learned from HIV Prevention in Asia and the
Pacific_, 3 Health & Hum. Rts. 8 (1998).

Beloqui, Jorge, Vichai Chokevivat and Chris Collins, _HIV Vaccine
Research and Human Rights: Examples from Three Countries Planning
Efficacy Trials_, 3 Health & Hum. Rts. 38 (1998).

Callan, Eileen, and James Walsh, _Should Public Health Records of
Illegal Immigrants with Communicable Diseases Be Protected by
Confidentiality?_, 26 Migration World No. 3, 28 (1998).

Gruskin, Sofia, _The Highest Priority: Making Use of UN Conference
Documents to Remind Governments of Their Commitments to HIV/AIDS_,
3 Health & Hum. Rts. 107 (1998).

Mann, Jonathan, _AIDS and Human Rights: Where Do We Go From Here?_,
3 Health & Hum. Rts. 143 (1998).

Mansfield, Nancy R., Elizabeth T. Baer, and Leonard J. Hope,
_Insurance Caps on AIDS-Related Healthcare Costs: Will the ADA Fill
the Gap Created by ERISA?_, 14 Ga. St. U. L. Rev. 601 (May 1998).

Martin, Chrys A., and Linda Bolduan, _Impact of the ADA on Life,
Health, and Disability Insurance_, 27 The Brief No. 4, 14 (Summer
1998).

McKenna, Ian B., _Legal Rights for Persons With Disabilities in
Canada: Can the Impasse Be Resolved?_, 29 Ottawa L. Rev. 153 (1997-
98).

Mitten, Matthew J., _Enhanced Risk of Harm to One's Self as a
Justification for Exclusion from Athletics_, 8 Marquette Sports L.
J. 189 (Spring 1998).

Panossian, Andre A., Vahe Panossian and Nancy P. Doumanian,
_Criminalization of Perinatal HIV Transmission_, 19 J. Legal Med.
223 (June 1998).

Piot, Peter and Susan Timberlake, _HIV/AIDS and Human Rights:
Continued Commitment in the Second Decade_, 3 Health & Hum. Rts. 1
(1998).

Tarantola, Daniel, and Sofia Gruskin, _Children Confronting
HIV/AIDS: Charting the Confluence of Rights and Health_, 3 Health
& Hum. Rts. 60 (1998).

Timberlake, Susan, _UNAIDS: Human Rights, Ethics, and Law_, 3
Health & Hum. Rts. 87 (1998).

Whelan, Daniel, _Human Rights Approaches to an Expanded Response to
Address Women's Vulnerability to HIV/AIDS_, 3 Health & Hum. Rts. 20
(1998).

_Student Notes & Comments:_

Lann, Jennifer A., _Viatical Settlements: An Explanation of the
Process, an Analysis of State Regulations, and an Examination of
Viatical Settlements as Securities_, 46 Drake L. Rev. 923 (1998).

Todd, Kimberly J., Snyder v. American Association of Blood Banks_:
Expansion of Trade Association Liability -- Does It Reach Medical
Societies?_, 29 U. Toledo L. Rev. 149 (Fall 1997).

_Symposia:_

HIV/AIDS and Human Rights: Part II: Uprooting Vulnerability, 3
Health & Hum. Rts. No. 1 (1998).

EDITOR'S NOTE:

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