The Love That Need Not
Name its Speaker

by

David M. Munsey{1}

"I've always said [homosexual] was just an adjective.  It's not a
noun, though it's always used as a noun.  Put it the other way. 
What is a heterosexual person?"  I've never met one....I'm in
favor of any form of sexual relationship that gives pleasure to
those involved.  And I have never heard a convincing argument to
the contrary."
                                          -Gore Vidal{2}

     Ethics and Individuality are two topics currently everywhere
out of fashion.  The "morality" of the self-styled Moral Majority
and its fellow travelers among the Pentecostal white trash,
various Churches of Aryan Nations, and Contractors with America
is closer to a Nietzschean lampoon of the religion of
ressentiment{3} than anything a sane person could glean from the
Gospels and the Constitution.  In academia and elsewhere there is
a self-styled Left who declares values "relative,"{4}  denounces
individuality, and praises multiculturalism, a theory that
advocates people emphasize their differences from others (racial,
religious, and ethnic) and form discrete exclusive groups where
the well being of the tribe supersedes that of the individual. 
Diversity is celebrated unless one happens to disagree, in which
case one is censored and denounced zealously.  The tolerance is
along the lines of leftists such as Stalin and Mao rather than
Locke or Jefferson.  These groups have a lot in common with the
rightwing rejectamenta they despise, indeed critic Harold Bloom
has dubbed multiculturalists "the School of Resentment."{5}  Of
course this "Left" is reacting to actual history of oppression,
as opposed to the lunacy of asserting that "reverse
discrimination" has put African Americans in a superior position
to whites, and the lunacy on stilts of denying the Holocaust
indulged in by the Right.  In the middle are the unconscious
Silent Majority of Richard E. Nixon.{6}  What does the person who
is homoerotic do if she or he wishes to live an authentic
existence as her - or himself?  The only possible relations with
the Right are violent since they are beyond the rational, ergo
beyond suasion.  The Left, as described above, is only open to
those willing to label themselves, and thereby reduce their
selves to some virtual non sequitur as "lesbian of colour."{7}
The mob is capable of being educated, but actually joining the
herd would be a renunciation of individuality.  The answer then
is to look nowhere outside for help and to be yourself.  This can
be a terrifying prospect, and few persons of any sexual
orientation or in any historical epoch take this path.  Those who
do are known as individuals.
        In this paper I shall examine the essentialism/social
constructionist debate in Gay and Lesbian Studies.  I shall begin
by surveying the current philosophical and legal literature as to
how it answers the question "What is homosexuality?" and examine
some various classification schemes proposed in attempting to
arrive at an answer.  I shall then explain what version of

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essentialism I intend to explore and why it is germane to this
topic.  A brief metaphysical analysis will yield the conclusion
that even if there are essential categories and/or essential
properties, homosexuality is not one of them because sexual
orientation exists along a spectrum as opposed to a binary
either/or, hetero/homo duality, and it is capable of changing in
the life of an individual.  Jean Paul Sartre's ethics of
authenticity are then put in the context of western thought and
explicated in some detail to provide a framework in which the
ethical and psychological implications of the debate can be
analyzed for both homoerotic individuals and society in general. 
The result will be that it is dehumanizing to allow society to
reduce a diverse group of millions of individuals to a single
stereotype, and that it is an inauthentic retreat from
responsibility and an emotionally full existence to objectify
one's self, or allow others to objectify one.  The legal and
political consequences of abandoning essentialism are shown to be
less deleterious than those who urge an essentialism/equal
protection nexus assert.  A merging of gay and lesbian political
activism with other groups in opposition to the ruling elite and
its minions on the religious right is urged to facilitate
psychological well being, and pragmatically advance the cause.
        How homosexuality is understood is important to lawyers
for two reasons, both relating to how they represent their gay
and lesbian clients. The essentialism/constructivism debate is at
the cynosure of the equal protection question, many legal
theorists argue that an essentialist outcome is necessary to gain
suspect classification which would result in strict scrutiny of
laws that classify on the basis of sexual orientation. More
generally, attorneys must deal with their gay and lesbian clients
as individuals, their view of the nature and relative importance
of a person's sexual orientation will affect their ability to
understand and serve their client.  Further, the way gays and
lesbians are portrayed in court, and in the opinions of courts
will have a potentially enormous effect not just on how the law
will view homosexuality, but on how society at large will think
about it.{8}

SURVEY OF THE LITERATURE
        The question "What is homosexuality?" has been answered
in a variety of ways by many different theories in recent gay and
lesbian studies and legal literature.  In order to understand
these answers, it is important to identify, and distinguish among
several ongoing debates, some of which overlap one another.  Two
of the more traditional debates have to do with the causes of
homosexuality, or its etiology.  The most familiar is what is
commonly called the nature/nurture debate.  This debate concerns 
the question of whether homosexuality is biologically determined
or the result of a person's rearing and early childhood
experiences.  Those who hold the former position focus on genes,
hormones, or pre-natal causes. Most of the nurture theories are
rooted in some form of psychoanalysis, although sometimes the
culture itself is implicated.  Both nature and nurture theories
assume the resolution of a logically prior debate, that of
determinism vs. choice, in favour of the former.  Determinists,
whether they adhere to nature or nurture causes, claim that a
person's sexual orientation is an immutable trait determined by

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factors beyond her or his volition, ergo beyond their moral or
legal responsibility.  The alternative is that it is a voluntary
choice, that is capable of being changed by an act of will. 
While those on either side of the nature/nurture debate have
already concluded that sexual orientation is determined, those
who claim it is a personal choice avoid the nature/nurture debate
altogether, rejecting both sides.  In many discussions, the
actual debate is between biological determinism and choice, or
psychoanalytic causes and choice, but it is important to sort out
the various claims.
     The other major debate that more directly answers the
question, "What is homosexuality?" is often referred to as
essentialism vs. social constructionism.  This is more
metaphysical than scientific.  There are many subtly different
versions of this debate (and a set of definitions for each author
on the subject), but they all centre on how homosexuality is
defined.{9}  Essentialists assert that homosexuality is a core
trait, that is an intrinsic, objective property that does not
vary across cultures or history.  Social constructionists claim
that the concept of homosexuality is culturally dependent and
cannot be understood, even does not exist, independently of
certain cultures and historical periods.{10}
     One school of thought, represented by Daniel Ortiz, claims
that the essentialism/social constructivism debate is independent
of the causal debates in the sense that either essentialism or
constructivism can be combined with any of the causal theories 
biological determinism, nurtured determinism, and voluntary
choice.{11}  He articulates six categories which he posits
represent each of the six combinations.  They are laid out in the
table below.

group     determined/choice     nature/nurture     essent/constr
_______________________________________________________________
Republican      choice             ---            constructed

Christian     determined          nurture         constructed 
children 

race          determined          nature          constructed

biological    determined          nurture          essential
eunuchs      

biological      choice              ---            essential
mother       

biological    determined           nature          essential
sex  
     According to Ortiz, a person chooses to become a Republican
or a mother,{12} and whether someone is a member of one of the
remaining categories{13} is decided for them by things beyond
their control-genes in the case of race and sex, other people in
the case of Christian children and eunuchs (he assumes no one
chooses to be castrated).  Ortiz avers that a person's biological
sex, whether she has borne a child, and biological eunuchs are
all essentialist categories, because they do not vary across
history or culture.  There have been men and women for centuries.

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While it is easy to see that the category of Republicans is tied
to a very specific time period and culture (part of the 19th and
20th Century America), and the category of Christian children,
while broader than that of Republicans, is still limited in time
and culture-dependent, the category of race is more problematic. 
Ortiz says, "While simple skin color and other physiological
features may remain stable categories across time and culture,
the roles, expectations, and meanings race typically implies are
not.  A black person enjoys a completely different social role in
early modern Africa than in contemporary American society."{14} 
To my reading, however, he misses the key distinction, in
equatorial Africa before the arrival of Europeans,{15} persons
were not "black" for any relevant social purpose, in a society
where all persons are black,  there is no difference.        
Ortiz draws the distinction between biological sex and gender,
claiming that biological sex is essential and gender is socially
constructed.  A society that makes no distinctions based upon sex
cannot be cited, a hypothetical one, however, could be
constructed.  In the future (perhaps) menstruation could be
eliminated, even now a woman need not carry her own child, but
some woman must.  This too is subject to change in the future,
but one wonders if all differences could be effaced.{16}  But if
Ortiz is correct about this, then there is both an "essential"
(biological) component to race and a socially constructed one. 
According to Ortiz, this is also true of homosexuality.  If being
"gay"{17} is defined as having same-sex desire (being
homoerotic), then it is culturally and historically independent,
or essentialist.  There is plenty of evidence of homoerotic
behaviour in other cultures and historical periods, most notably
Ancient Greece.{18}  On the other hand, if being gay means
denying the validity of traditional gender roles, or being a
member of a group on the periphery of society, then it is
culturally dependent and hence a socially constructed property. 
From this Ortiz concludes that each of these positions,
essentialist and constructivist, are merely different
descriptions of homosexuality that serve different purposes.  If
one wishes to show that homosexuality has always existed and been
accepted by many cultures, to combat current homophobic
attitudes, an essentialist description works best.  If one is
trying to mobilize a political group or create a new culture, a
social constructivist description may work better.  Ortiz takes a
pragmatic approach to the issue, stating, "There is a grand
debate only if one demands a single master description of gay
identity to serve all purposes.  But if that is the case, the
debate has meaning but no victor. Our purposes of description are
simply too various and complex for any single description to
serve."{19}  This begs the question by assuming that
essentialism, which claims that homosexuality is a single
unchanging property, is false.  Only social constructionists are
free to choose pragmatically, because they hold there is no fact
of the matter.  This option is not open to essentialists.  I
shall argue later that even if Ortiz is correct in his assumption
that essentialism is false, the ethical and psychological
implications of choosing either an essentialist description or
social constructivist description need to be factored in along
with the pragmatic political and legal ones.

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     Ortiz' categories are somewhat simplified, but they do help
sort out the various strands of debate in the literature of gay
and lesbian theory.  The philosopher Richard Mohr draws the lines
somewhat differently, identifying two kinds of social
constructionism, each with two subspecies, in his book Gay
Ideas.{20}  The first he calls antirealist social
constructionism, which he defines as the view that "no one could
be considered of some sexual orientation without taking into
account causal forces from society or culture, forces that vary
from culture to culture and within the same culture over
time."{21}  This is a theory of the causes of sexual orientation
that opposes the theory that the sole cause can be found in
nature.  It can be put rather awkwardly into Ortiz'
determined/nurture/constructionist category.  One subspecies of
this theory as identified by Mohr is labeling theory, which says
that once a person is assigned a label, others treat that person
as such, and the individual so labeled takes on the traits of the
label.  Mohr believes he refutes this theory as applied to
homosexuals because of "the closet."  Many homosexuals do not
exhibit the stereo-typical traits of homosexuals, indeed it is
often difficult to identify a gay person unless they announce it.

And since many homosexuals do not come out of the closet, they
are never labeled as gay, yet they still engage in gay behaviour,
even if it is in private.  However, while labeling theory is
inadequate to resolve the entire issue, it does demonstrate the
deleterious affect of labels and stereotypes, not merely on those
who accept them directly, but also the affect from being treated
as an object by those outsiders who accept the label's
validity.{22}  The second subspecies of antirealist social
constructionism Mohr identifies asserts that social concepts of
what homosexuality is are at least necessary (even if not
sufficient) for homosexuals to exist.  This position, associated
with Michel Foucault, is defended by the philosopher Ian Hacking
and can be summarized as the notion that for a person to be able
to perform an intentional act, he must perform that act "under a
description."{23}  Mohr explains, "If a homosexual activity is
intentional activity, so it is claimed, then the homosexual must
have a description of the homosexual in mind in order to perform
homosexual acts."{24}  Mohr's argument against this position is
that people have been performing homosexual acts long before the
word came into existence.  Even without the word 'homosexual'
people still have the concept "a person with desires for sex acts
with partners of the same biological sex."  This seems to be the
definition of homosexuality Mohr wishes to adopt to avoid the
social constructionist theories and he uses it throughout the
chapter.
     The second main type of social constructionism Mohr
identifies is what he calls antiessentialist social
constructionism.  This is a purely definitional theory that
asserts that there is no culturally neutral, objective definition
of 'homosexuality'.  It says nothing about the causes of
homosexuality, it is merely a claim about the concept-what it is
to be homosexual.  He then divides this into two subspecies.  The
first is "no content nominalism"{25} which says that the word
'homosexuality' is non denoting; it does not pick out anything in
the world because the concept is context-specific, so always

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changing.  Mohr's response to this is that if it were true, there
would be no such thing as homosexuality because the term would
have no content, thus making it impossible to discuss, define, or
study.  Since Mohr implicitly accepts the definition of
homosexuality as same-sex desire, he easily dismisses this
position.  The second subspecies of antiessentialist social
constructionism Mohr calls "fine textured nominalism."{26}  This
is the view that 'homosexuality' is so specifically defined that
it could only exist in modern culture because it is defined by
modern concepts.  He uses the example of 'hippie'.
If one tethers its definition to beat-up Volkswagens, one, by
necessity, is not going to find hippies in the Roman Empire.  But
if you define "hippie" in a culturally neutral way so that the
thesis that hippies did not exist in the past has bite, then it
is at least possible, conceivable, thinkable, that there were
hippies in the Roman Empire; and if one specifically defined
"hippie" in culturally neutral terms such that hippies are
communally living, socially detached spiritualists, then it is at
least arguable that we should consider the early Christians as
hippies.{27} As one might guess, Mohr falls back on the
definition of 'homosexual' as "the desire for sexual relations
with members of one's own biological sex," to escape this brand
of social constructionism.{28}
        Another view of the essentialist/social constructionist
debate is given by Janet Halley.{29}  Although the causal and
definitional strands of the debate may be logically independent,
they may not be politically so. Halley divides the political
debate into four positions
 * Pro-gay essentialism holds that because homosexual orientation
is fixed, immutable, and definitional, it should be protected
from discrimination.  * Pro-gay constructivism holds that all
forms of sexual orientation are mutable, either across an
individual's life, at some important moment of personal choice,
or across historical periods, and that social policy on sexual
orientation should not impede these variations.
 * Anti-gay essentialism holds that homosexual orientation is
fixed, immutable, and normatively bad or sick, either in itself
or in its manifestation, and that society should tailor
discrimination against gay men and lesbians to express normative
judgments, deter manifestations of homosexual orientation, or
cure homosexuals of their illness.  
* Anti-gay constructivism either emphasizes the mutability of
heterosexual orientation, arguing that heterosexuality must be
shored up by anti-gay discrimination, or points to the mutability
of homosexual orientation, arguing that discrimination should be
designed to convert gay men and lesbians to heterosexuality.{30}
Halley focuses on the determined/choice debate, initially
declining to enter the nature/nurture debate, and linking
determinism to essentialism and choice to social constructivism. 
By focusing on the political aspects of the debate, she
emphasizes what is often considered important in that arena-the
question of whether homosexuality can be changed. 
     Halley later fine-tunes her definitions of essentialism and
constructivism, claiming that there are really several different
versions of each theory staking out various positions between the
two extremes.  She does this in order to make the claim that the
two theories are not mutually exclusive in the forms most

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commonly advocated, and that a common ground may be found from
which gays and lesbians can launch their legal arguments. Halley
divides essentialism into two kinds-strong and weak essentialism.
Strong essentialism claims that there is a natural or biological
trait that identifies and forms the essence of a thing.  Weak
essentialism claims, more generally, that there is such an
irreducible, identifying trait, regardless of its source, without
which that which has it would cease to be that thing.{31}  Halley
adopts Carol Vance's classification of constructivism,
identifying five different types that "differ in their
willingness to imagine what was constructed."{32}  Social
meanings constructivism regards sexual object choice and its
attendant behaviour as fixed, claiming that different societies
give this behaviour different meanings.  Behavioural
constructivism regards only sexual object choice as fixed,
claiming that the behavioural patterns available for satisfying
this desire vary across cultures.  Gender-of-object-choice
constructivism holds that sexuality is pre-determined, but the
object of desire is socially determined.  Sexuality
constructivism, as advocated by David Halperin in his book One
Hundred Years of Homosexuality and Other Essays on Greek
Love,{33} claims that only the raw physical capacity for erotic
pleasure is innate, and that the organization of this physical
capacity into a concept with attendant meaning is socially
constructed.  The most extreme form of social constructivism is
advocated by the late Michel Foucault.  Halley calls it sex
constructivism and it is the claim that "the sheer recognition of
certain bodily sensations as sexual is constructed."{34}  Halley
argues that all but sex constructivism are compatible with weak
essentialism, since they all regard something as essential.  She
chooses behavioural constructivism as the "common ground" from
which pro-gay essentialists and constructivists should litigate,
devoting the remainder of her article to the reasons why.
        Yet another type of essentialism discussed in the
literature is specific to lesbians and is articulated by Patricia
Cain.{35}  Its more general version can be called gender
essentialism, which is a feminist theory that claims that there
is a universal "woman's experience" common to all women which is
independent of race, class, sexual orientation, and other aspects
of life.{36}  Ortiz identifies this as the
essentialism/antiessentialism debate, arguing that it is similar
to the constructivist debate in that it is a reaction to what is
perceived as an over generalization.{37}  Constructivists deny a
universal gay identity over time and history, but do not have to
worry about being labeled as the same as other "straight" men. 
Since historical lesbian stories are virtually nonexistent,
lesbians are not generalized over time, but they are lumped in
with other women regarding contemporary issues.  Cain argues
against gender essentialism, but endorses the more specific
lesbian essentialism-the position that there is an essential
lesbian experience common to all lesbians.  She has two reasons
for this that I shall discuss later in light of some further
understanding of essentialism and its ethical implications.
        The previous survey demonstrates the variety of
"essentialisms" discussed in the literature, and how they relate
to various versions of social constructivism to form a "grand
debate."  However, I shall argue that both sides of the debate

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are mistaken, because they each attempt to define a discrete
identifiable thing that they wish to call "homosexuality."  The
essentialists are mistaken that such an essential property
exists, and the social constructionists, albeit conceding that
any imagined trait is socially constructed, overemphasize the
trait allowing homoerotic persons to be reduced to nothing more
than "homosexuals" by their enemies, and in some cases
themselves, with catastrophic psychological and political
consequences.  In order to make these arguments more clearly, a
more precise understanding of essentialism is necessary. 
METAPHYSICS
        In this paper I am concerned with what I characterize as
metaphysical essentialism.  This is very similar to what Halley
chose to designate as "weak essentialism."  I shall now consider
this question. Although my conclusions will be anti-essentialist
regarding homosexuality, they will not follow from an ontological
or metaphysical anti-essentialist starting point.  That is to say
I shall not argue from a metaphysical stance that essentialism is
false, i.e. there are no essential properties, ergo homosexuality
is not an essential property, that would be of no interest to the
homosexual debate.  I maintain specifically that homosexuality
(and heterosexuality and every orientation in between) is not
essential to a person's core identity, in some sense it is a
social construction.
        One distinction must be made before we consider the
argument proper.  It is the distinction between species and
individual members of that species.  The former are referred to
by natural kind terms, the latter by proper names.  Proper names,
as we all know, refer to individuals and can be uses to pick out
specific, identifiable things (e.g. Bill Clinton, Reed College). 
Natural kind terms refer to classes of individuals, and can be
used to pick out discrete, identifiable classes (e.g. tiger,
human being).  A natural kind is a class to which a name refers. 
Many groups, such as southpaws or blondes are not natural kinds,
because they are not determinative in terms of an individual's
identity.  Jean Harlow not blonde is still Jean Harlow, Jean
Harlow not a human being is (literally) something else.  The
difference is best understood in terms of essential properties as
possessed by individuals.
        A "Black Letter" definition of essential property is a
property that something cannot lose without ceasing to exist.{38}

Would that I were to have a different genetic code, I would no
longer be the David Munsey who matriculated here in 1993.  My
genetic code is then an essential property of me.  On the other
hand, if Clinton had lost to Bush, he would still be Clinton, he
would just lack the property of having been elected President.
Catastrophic perhaps (to him), but to him, not someone or
something else. So Clinton's being President is just an
accidental property of him.  To consider this we must bring to
bear our intuitions on counterfactual situations or how we would
describe other possible worlds.  We can borrow a heuristic device
from the logician and philosopher Saul Kripke{39} and imagine
other possible worlds.  A possible world (for our purposes) is
the way this (the real) world might have been had some contingent
event transpired other than it did.  If there is no such possible
world, then the event was not contingent, but necessary.  We ask

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ourselves, for instance, "If Dave Frohnmayer had been elected
Governor of Oregon in 1990 in a world as close to this one as
possible, given that one change, would that object who is
Governor still be Dave Frohnmayer, i.e.  THE Dave Frohnmayer?"  I
think the answer is obviously that he would.  A less convoluted
way of looking at it is to ask whether it is possible in this
world that Frohnmayer had won the election.  Contrast that to the
question of the world where 'Dave Frohnmayer' refers to a lion in
the London Zoo.  In that world there is no counterpart to the
object that is currently (Spring, 1995) President of the
University of Oregon. Intuitively, whether Mark Hatfield is
straight or gay or in between, he is the same person who was
elected Governor, feuded with Tom McCall over Vietnam, angered
Bob Dole and others over his holdout on the balanced budget
amendment, and so on.  Even Hatfield as Pro-Choice Hawk is still
Hatfield, but if 'Mark Hatfield' referred to a square in Venice
in some other possible world it would be a different object. 
There would be no counterpart to Mark Hatfield, no Mark Hatfield
(the thing we refer to) in that world.  Keeping this background
in mind, we are now able to proceed.{40}
        Is homosexual a natural kind?  Another way of posing the
same question as we have seen is, "Is homosexuality an essential
property of any person?"{41}  Before I tackle the metaphysical
problem, I shall examine the scientific, or physical findings.
        Janet Halley critiques the three most important recent
scientific studies that purport to demonstrate a connection
between some biological trait and homosexuality.{42}  They are
Simon LeVay's study of hypothalamic structure,{43} J. Michael
Bailey and Richard C. Pillard's study of male twins and adopted
brothers,{44} and Dean H. Hamer's study of gay men's family tree
patterns.{45}  She carefully scrutinizes the selection and
categorization of the subjects and the assumptions that were used
to show that in each case the scientists have assumed rather than
demonstrated that sexuality is bipolar and essential.  She
observes that "LeVay assumes essentialism in framing the finding
upon which his conclusion is based,"{46} noting that he
classified every subject in one of two categories, homosexual or
heterosexual, putting a bisexual in the homosexual category (as
the Religious Right and other hate groups do) and those subjects
whose record did not indicate their sexual orientation in the
heterosexual category on the basis that most men are
heterosexual. Bailey and Pillard's study also has this flaw. 
Although they had better access to their subjects' sexual
orientation since their subjects were alive and could be
questioned, they still used only two categories, classifying all
self-designated bisexuals as homosexual.  Presumably for these
objective scientists, a pervert is a pervert.  Halley says,
"[T]hey have simply assumed this bipolar model of sexual
orientation."{47} Although she does not discuss the Hamer study
as extensively, Halley summarizes the evidence from the study,
concluding that it does not demand the conclusion that
homosexuality is an immutable and identifiable property.  Hamer
himself said, "[W]hat we have found is a linkage between a small
region on one chromosome and sexual orientation in men, and what
that suggests is that part of whether a person is gay or
heterosexual is influenced by the genes that they inherit. 
However we have not found the gene, which we don't think exists,

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for sexual orientation."{48}  Thus it can be seen that the
scientific evidence does not come close to proving that
homosexuality is determined, much less an essential property, and
even some of the scientists doubt that it is.{49}  As we shall
see when we arrive at the metaphysical analysis, for my purposes
it does not matter whether sexual orientation is as rigidly
determined genetically as eye colour, or complete caprice.
        Psychoanalysis does not consider homosexuality to be a
discrete property.  Lionel Blackman says, "Latent homosexual
feelings exist in all human beings.  To put it in psychoanalytic
terminology, identification with the parent of the same sex is
never absolute and so there is no such thing as complete or
absolute heterosexuality.  We all have homosexual feelings, but
they are generally denied or repressed and relegated to the
unconscious mind."{50}  That sexual orientation exists along a
spectrum, as opposed to dividing the world into two mutually
exclusive camps of homosexual and heterosexual, is obvious even
to those who reject Viennese witch doctors.{51}
        As soon as one attempts to define homosexuality and
identify homosexuals, it becomes obvious that there is no single
trait which allows one to pick them out.  In addition to the
metaphysical problem, there is an epistemological one.  Janet
Halley captures the problem nicely, stating

         None of these distinctions predetermines what the
essence of sexual orientation is.  Some people define a
"homosexual" as a person who entertains desire for erotic
contacts with a person of the same sex. Others require same-sex
fantasy, as well or instead.  Still others require actual erotic
contacts, and there is a lot of disagreement about whether it
takes one contact or many, recent contacts or any, to make a
homosexual. Finally, the problem of identity vexes any effort to
establish all important aspects of homosexual orientation as
unchanging.  If a person has a lot of same-sex contacts, desires
them and fantasizes about them, but does not imagine himself to
be gay, or a homosexual, or bisexual, is he wrong?  And public
identity has its own range of mutabilities largely regulated by
the closet and the rule that anyone not designated homosexual is
by default construed as heterosexual.{52}

The fact that one cannot even pick out a candidate definition of
'homosexuality' that captures most people's intuitions and does
not ignore the existence of bisexuals, is strong evidence that
sexual orientation is not bipolar.
        As is almost always the case with metaphysics, the
question as to whether homosexuality is or is not an essential
property must be ultimately adjudicated by individual
intuitions.{53}  That does not mean that we do not have a clear
criteria.  As stated above, an essential property is a property
that something cannot lose without ceasing to exist.  This may
seem like a very exclusive category, but this is what an
essential property is, and this is what the debate is about in
Gay & Lesbian Studies.  If homosexuality is an essential
property, it would be (literally) impossible for a person to
change it, the legal and ethical implications of this are
manifest.  As I also said earlier, a natural kind is a group of
individuals that share some essential property.  An example would

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be that all and only those objects that have the property of
possessing an atomic number of 79 are gold.  Having the atomic
number 79 is what makes gold gold, as opposed to say iron
pyrites.{54}  If something ceases to have the property of
possessing an atomic number 79, it ceases to be gold.  Possessing
an atomic number 79 is therefore an essential property of those
things that have it, and those things constitute the members of a
natural kind.
     Is homosexual a natural kind?  Is homosexuality a
distinction such that if an individual who has the attribute of
(say) being homoerotic, or engaging in acts of homosexual sex,
ceased to have that property, she or he would cease to be that
individual?  We will look at some examples of individuals who
lose essential properties (gold and a tiger) and those who lose
contingent (or accidental or non-essential) properties (hair
colour and wine preference) and see which homosexuality most
resembles.         Imagine five individual objects on 15 March
1995 a wedding band with an atomic number of 79, a pet cat that
is a Bengal Tiger, a middle aged man who is exclusively
homoerotic in mind and deed, a teenage girl with long strawberry
blonde hair, and an elderly man who prefers Chateau
Lafite-Rothschild 1970 above all other clarets.  In all cases
these individuals are commonly identified by the properties that
I have attributed to them.  The question is the nature of the
properties, i.e. are they essential or contingent?  If they are
essential it would be impossible for the individual to lose it
without ceasing to exist.  On 15 April 1995 we have five
individuals that are purported to be the same five individuals
observed a month earlier in the Ides of March.  We have a wedding
band that possesses an atomic number of 78, a pet cat that is an
African Lion, a middle-aged man who is exclusively heteroerotic
in mind and deed, a teenage girl with short raven black hair, and
an elderly man who prefers Chateau Lafite-Rothschild 1961 above
all other clarets.  Now is it possible in each case that we have
the same individual?  If it is even possible, then the property
they had a month ago but no longer possess was not an essential
property.
        The wedding band is clearly a different object, it now
consists of platinum rather than gold.  If its possessor claims
it is the same object merely transmogrified by alchemy, try
purchasing it at the current Zürich gold price.  The second
individual, the lion, is also obviously a different individual
from the tiger of a month ago.  There is no satisfactory
explanation to the contrary.  The latter two cases, however, do
lend themselves to such explanations.  The teenage girl became
ensorceled by Joan Jett and became a "Joan clone" via a haircut
and dye.  The Bordeaux connoisseur heard that John Steed of The
Avengers favoured the 1961 vintage.  There are numerous other
possible explanations for these changes, the point is that in
these cases it is not impossible that we are seeing the same
individuals because the properties that they lost were not
essential properties.
        What about the middle-aged man?  Is it possible{55} that
his sexual orientation changed in a month?  The above discussion
of spectrums and the life histories show that it is.  It is not a
contradiction to say of someone that David Bowie used to gay, but
now he is straight.  It could be true, it could not be true of

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any individual that they used to be a tiger, but now they are a
lion, or that they used to have a certain pair of biological
parents, but now they have a different pair.{56}  Homosexual is
not, therefore, a natural kind like gold or tiger, but a
contingent (if in some cases very important) property that like
hair colour and wine preference can change over time.
        Homosexuality is not an essential property because it is
neither a natural kind term nor a stable property at all, either
as a category or in the life of specific individuals.  Sex
preference is not divided between a majority of exclusively
heterosexual persons, and a minority of exclusively homosexual
persons.  In the case of individuals it is not the case that all
persons have a specific place on the spectrum where they remain
for their entire mature  life.  Sexual preference is more akin to
an appetite than a property.  Gore Vidal once confided to an
interviewer that his first sexual experience occurred when he was
eleven.  When asked if it were heterosexual or homosexual, Vidal
replied, "I was too polite to ask."{57}  In Vidal's experience
then, sexuality is natural, while society, or some self appointed
representative, must more or less arbitrarily classify various
aspects of it to suit their purposes, often nefarious.{58}  In
Ortiz's terminology sexuality is thick while the spectrum of
preferences is (perhaps, if anything) thin.  Society historically
labels others (such as southpaws) for being different.  The
difference need not be essential, only discernible.  It takes
traits that obtain along a spectrum (ambidexterity is ignored)
and lumps all deviations from the pure norm (righthandedness) as
unorthodox (lefthandedness) and evil (sinister in the case of
southpaws).  This does not make the property essential, it is
only important because the ruling class and the mob assert it to
be so, and act upon it in ways deleterious to the scapegoated
minority.  Of course heterosexuality is not the most common
practice anyway-masturbation is.{59}
     Race in the United States is an excellent illustration of
this.  As we saw earlier, race cannot be essential irrespective
of time and place. In the nineteenth century United States there
were, as today, persons of varying skin colour from black to what
we call white (or "flesh" to emphasize what is normal). 
Nonetheless there were, socially and legally, only two races, and
a barely secernable amount of African origin ("Negro blood"),
such as one thirty-second, made a person a member of the minority
race.  This was very bad even after abolition and unspeakable
before.  A person was subject to public auction.  Homosexuals are
in this unenviable position today (not subject to public auction,
but a hated and legally inferior{60} minority).  'Homosexual'
equals 'pervert' rather than 'sinister' or 'nigger', but it is
all the same thing.
        It is the sign of fanaticism that any heterodoxy is the
only heterodoxy (e.g.  believing all one's political opponents
are communists), by which I mean as in the above examples of
southpaws and Negroes, any deviation from exclusive
heterosexuality is homosexuality.  The person with eight opposite
sex lovers in a decade, and two same sex lovers is classified the
same as an exclusive homosexual, namely a pervert or a deviate. 
It is also interesting, albeit unsurprising, to note that having
made this deviation a crime, it is then (incorrectly according to
all available studies) assumed homosexuals are more likely to

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engage in other criminal deviations such as rape and child
molestation.  It is always the minority's property that is
considered essential, like a defect or a disease.  A person's
flamboyant behaviour is commonly explained by the fact he or she
is a homosexual.  Many people find this to be plausible, no one
would find the proposition that someone's flamboyant behaviour
was caused by his or her heterosexuality.  This is social
conditioning, one is as absurd and reductive as the other.{61} 
To reduce several individuals to a group with one trait makes it
far easier to persecute them.  They become less human, ergo
easier to destroy.  We have such objectifying epithets as
"Krauts," "Japs," and "Gooks" that facilitated killing our
"enemies" from recent wars as examples.  Society, in this case
the Christian Right with the acquiescence at least of the ruling
class, is on a campaign to turn persons whose sexual orientation
deviates from exclusively heterosexual{62} into objects to be
hated, discriminated against legally, and denied full human
status.  It has not been a total failure unfortunately.        
There is then a contingent and under inclusive group called
"homosexuals" in our society.  Many persons in it are homoerotic,
others may be merely cross dressers, athletic females, persons
who enjoy gay or lesbian culture, and so on.  This group has been
created by the persecutors of persons with (most of them anyway)
a sexual preference other than exclusively heterosexual.  As I
have argued there is no discrete group that is essentially
non-exclusively heterosexual.  There is no doubt that the
majority of people in the United States believe otherwise to the
detriment of a minority.  The question to which I now turn is
whether those in the oppressed group, those who are not
exclusively heterosexual, should embrace this category (with
modifications), or reject it.

ETHICS/PSYCHOLOGY
        The metaphysical issue has been settled, homosexuality is
not only not an essential property, but there is probably no
meaningful stable accidental property that embraces all those
persons who are not exclusively heterosexual.  I shall examine
the moral and psychological implications of embracing a group
identity in light of Jean-Paul Sartre's ethics of authenticity. 
Authenticity, a key ethical concept in twentieth century ethical
thinking, arose from the two major texts of existentialism,
Martin Heidegger's Being and Time{63} and Jean-Paul Sartre's
Being and Nothingness.{64}  As 'being' would indicate, these
massive tomes are primarily concerned with ontology, however, by
presenting such a complete picture of human existence, both
authors have depicted what it is to be a self and posed questions
about the integrity of the self in the world. Before I begin an
exegesis of Sartre's theory of authenticity{65} I shall present a
"Black Letter" definition of authenticity, then take a quick look
at its origins in German thought.{66}
        Authenticity is defined in The Oxford Dictionary of
Philosophy as "The condition of significant, emotionally
appropriate living. Contrasted...with inauthenticity a state in
which life, stripped of purpose and responsibility, is
depersonalized and dehumanized."{67}  For Sartre the
psychological and ethical dovetail as in Aristotle because  doing
what is good is good for you.  This is a concept not found in

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many modern philosophers' ethics influenced by Christianity,
notably Kant.
     Heidegger and Sartre both agree generally that given one is
a human being he or she has choices, ergo one must decide which
choices are best (not choosing is seen as a choice to abstain). 
Both have the same basic answer, i.e.  that those choices that
reflect an authentic understanding of being are the best choices.

For Heidegger, the central tenet of authenticity is the
acceptance, and eventually the embracing of one's own finitude. 
A person must be death aware and plan his or her life in light of
this fact.  A person must embrace her or his own death.{68}
Christianity is among the most common refuges from reality sought
by the mob.  The dread and anxiety caused by the realization of
one's temporality drives most people to just such a retreat,
however, it can be better conquered by facing up to it and
willing that it should be so.  This solution obviously echoes
Nietzsche's überman who never wishes for things to be other than
they are, "My death I praise to you, the free death, which comes
to me because I want it."{69}  The idea also appears explicitly
in Freud's 1913 essay "The Theme of the Three Caskets" where, in
a pretty much otherwise zany reading of King Lear, he states
that, "Eternal wisdom...bids [Lear]...choose death and make
friends with the necessity of dying."{70} Prima facie, Sartre is
not as straightforward on the subject of authenticity as is
Heidegger.{71}  We shall begin then by getting clear about what
Sartre means by "bad faith" before suggesting what existential
authenticity might be like.
        We must start by seeing how Sartre's ethics spring from
his theory of being for which he has three categories.  The first
is Being-for-itself (etre-pour-soi).  This is defined by Hazel
Barnes as "The nihilation of Being-in itself; consciousness
conceived as a lack of Being, a desire for Being, a relation to
Being.  By bringing Nothingness into the world the For itself can
stand out from Being and judge other beings by knowing what it is
not.  Each For-itself is the nihilation of a particular
being."{72} This is what a human being is when fully realized. 
It is a finite creature who realizes that a human being is alone,
abandoned in an absurd (devoid of objective meaning or value)
universe with no values except the ones that it forges for itself
out of experience.  For the authentic human being one is the sum
of his or her actions rather than some essential thing (see
Being-in-itself), an authentic person can never say "I was not
myself," to excuse behaviour because the self is just the total
of its past acts and nothing more.  The second category is
Being-in-itself (etre-en-soi), it is "Non-conscious Being.  It is
the Being of the phenomenon and overflows the knowledge which we
have of it.  It is a plenitude, and strictly speaking we can say
of it only that it is."{73}  This is the being of objects.  It is
inauthentic to seek refuge from the responsibility to make free
choices by turning oneself into an object, or by permitting
others to do it (which is a choice to permit in any case.)  A
Secretary of State who, in the name of duty, certifies a ballot
measure that he believes to be immoral, or a lawyer in the
attorney general's office who, in the name of statutory
obligation, litigates an issue from the side that she believes is
wrong, or a concentration camp guard who, "following orders,"

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perpetrates atrocities-all three are in flight from their freedom
(to choose otherwise) and in denial of the fact that by acting
thus they have chosen.  They seek to escape responsibility for
their actions by objectifying themselves with phrases as, "I am
an attorney for the state, this is what such people (things?)
do."  It did not wash at Nuremberg.  The third category of being
applies only to (inauthentic) human beings, it is Being for
others (etre-pour-autrui).  In this category "There arises here a
new dimension of being in which my Self exists outside as an
object for others.  The For-others involves a perpetual conflict
as each For-itself seeks to recover its own Being by directly or
indirectly making an object out of the other."{74}  This is a
common form of inauthenticity that is intuitively recognizable to
most of us.  The son who goes to law school because his parents'
want him to become a lawyer and the housewife who loses herself
in being a mother and wife and daughter-in-law to others are two
obvious examples.
        Anguish is very important as key to self-realization for
Sartre, as it is for Heidegger.  Through anguish comes "the
realization that a nothingness slips in between my Self and my
past and future so that nothing relieves me from the necessity of
continually choosing myself and nothing guarantees the validity
of the values which I choose."{75}  This latter part is all
important in that it points out the absurdity or objective
meaninglessness of all human values.  The first part, about the
necessity to continually choose, demonstrates the inauthenticity
of seeing one's self as a Being-in-itself, that is to liken one's
self to an unconscious object rather than a conscious being
capable of changing his or her behaviour, and of making choices
to change one's behaviour.  Sartre's famous gambler has such an
existential revelation in a brilliant passage when, after having
resolved to become a non-gambler, he begins to weaken in a casino
[T]he total inefficacy of the past resolution.  It is there
doubtless, but fixed, ineffectual, surpassed by the very fact
that I am conscious of it. The resolution is still me to the
extent that I realize constantly my identity with myself across
the temporal flux, but it is no longer me -- due to the fact that
it has become an object for my consciousness.  I am not subject
to it, it fails in the mission which I have given it.  The
resolution is there still, I am in the mode of not-being.  What
the gambler apprehends at this instant is...the permanent rupture
in determinism; it is nothingness which separates him from
himself....By the very fact of taking my position in existence as
consciousness of being, I make myself not to be the past of good
resolution which I am.{76}
        Although similar to Heidegger, one difference in accent
between the two, as I indicated earlier, is that Heidegger's
inauthenticity could be seen as a flight from death while
Sartre's is more a flight from freedom. Both flee to
Being-in-itself and Being-for-others, however, and both are
fleeing from reality.  Both of these can be shown in the example
of the person who practices homosexuality and a person the
practice offends.  The person who practices homosexuality
frequently has an intolerable feeling of guilt, and his whole
existence is determined in relation to this feeling.  One will
readily see that he is in bad faith.  In fact, it frequently
happens that this man, while recognizing his homosexual

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inclination, while avowing each and every particular misdeed
which he has committed, refuses with all his strength to consider
himself a 'homosexual.'  His case is always 'different,'
peculiar; there enters into it something of a game, of chance, of
bad luck....The critic asks only one thing...that the guilty one
recognize himself as guilty, that the homosexual declare
frankly...'I am a homosexual.'  We ask here who is in bad faith. 
The homosexual or the champion of sincerity?
        The homosexual recognizes his faults, but he struggles
with all his strength against the crushing view that his weakness
constitutes for him a destiny.  He has an obscure but strong
feeling that a homosexual is not a homosexual as this table is a
table or as this red-haired man is red haired.... Does he not
recognize in himself the peculiar, irreducible character of human
reality?...He would be right actually if he understood the phrase
'I am not a homosexual' in the sense of 'I am not what I am.'
That is, if he declared to himself, 'To the extent that a pattern
of conduct is defined as the conduct of a homosexual and to the 
extent that I have adopted this conduct, I am a homosexual.  But
to the extent that human reality cannot be finally defined by
patterns of conduct, I am not one.' But instead of this he slides
surreptitiously toward 'not being' in the sense of
'not-being-in-itself.'  He lays claim to 'not being a homosexual'
in the sense in which this table is not an inkwell.  He is in bad
faith.{77}
"Destiny" of course does not obtain when existence precedes
essence,{78} except in the Heideggerian sense in which it is the
destiny of a human being to die.  This would be fine with Sartre,
but any other talk of destiny vis-à-vis a human being is a flight
from Being-for-itself.  But what about the champion of sincerity,
the critic of homosexuality? The critic demands of the guilty one
that he constitute himself as a thing....Who cannot see how
offensive to the other and how reassuring for me is a statement
such as 'He's just a homosexual,' which removes a disturbing
freedom from a trait and which aims at henceforth constituting
all the acts of the Other as consequences following strictly from
his essence.  That is actually what the critic is demanding of
his victim-that he constitute himself as a thing.{79}
        This is what the Rightwing hate groups do to individuals
when reducing them to "homosexuals" or perverts, criminals,
sinners, etc.  In this society to be designated "homosexual" is
to be reduced in the majority's eyes to a thing, a set of ill
conceived stereotypes, and thus not taken as an individual. 
Persons like Billie Jean King and Martina Navratilova who were
admired as tennis players and respected as persons before they
came out found a great deal of acceptance from the average
citizen when they did reveal their homoerotic proclivities.  Had
they been introduced to the public as lesbians to begin with they
never would have been judged as individuals.  Another revealing
case along these lines is that of Christian Crusade founder Billy
James Hargis.{80}  On a somewhat grander scale, Walt Whitman is
considered the greatest poet produced by the United States,
Marcel Proust the century's most accomplished novelist, and John
Maynard Keynes the century's preeminent economist.  All of these
persons projected their personalities and achievements on society
to the point a later revelation anent their sexuality became
unimportant.{81}  The point is that individuals can be accepted

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on their own terms if they are seen as individuals, including the
fact they are homoerotic, but to be introduced as merely a
homosexual, a representative of a group with a label such as
lesbian or communist or born-again Christian, that is to be put
in a position of having to overcome a shallow stereotype.  As St.
Jerome admonishes, early impressions are hard to eradicate from
the mind.         Another classically inauthentic mode is to say
that one cannot help what one is.  This reduces the individual to
a person incapable of free choice or responsibility.  People can
tell their parents for instance that they are biologically
homosexual ergo not responsible.  This is fine to keep financial
support flowing, but not as the basis of an authentic loving
relationship.  It has two other problems, one is that a typical
response would be that one cannot choose one's sexual
orientation, but one can refrain from engaging in sin.  The other
is especially deleterious to those who are not only attempting to
deceive others, but themselves as well, namely that it virtually
concedes that homoeroticism, or at least the practice of
homosexuality is bad in some way.  This means that not only is
the person who takes refuge in this flight from freedom bad, but
it is an essential property of theirs that is bad.  This can be
psychologically devastating.
        The above paragraph considers the effects on the
individual of the biologically determined position, but what
about how the group is viewed by the rest of society.  First, of
course, the arguably irrelevant difference is raised to paramount
importance as mentioned above, but what evidence is there that
the critics would be quieted?  Everyone agrees that AIDS is not
deliberately contracted, yet many on the religious right advocate
exiling HIV-positive persons to remote islands (except those who
subscribe to the theory that it can be carried by mosquitoes,
they recommend more drastic measures).  In the near future
nothing is likely to sway the lunatic fringe, but what about the
sympathetic heterosexual?  James Bond, who enjoyed as wide a
public acceptance, indeed respect, as any cultural figure of the
early sixties subscribed to the theory that biology is sexual
destiny and reflected thus
        Bond came to the conclusion that Tilly Masterton was one
of those girls whose hormones had got mixed up.  He knew the type
well and thought they and their male counterparts were a direct
consequence of giving votes to women and 'sex equality'.  As a
result of fifty years of emancipation, feminine qualities were
dying out or being transferred to the males. Pansies of both
sexes were everywhere, not yet completely homosexual, but
confused, not knowing what they were.  The result was a herd of
unhappy sexual misfits - barren and full of frustrations, the
women wanting to dominate and the men to be nannied.  He was
sorry for them, but he had no time for them.{82}
        While I fear that 007 is not educable, his public, the
public, is, and they are the landlords and employers who
discriminate as well as the swing vote in ballot measures. 
Bond's is not the sort of response most lesbian and gay activists
are after.  Given that it is healthier to be one's self and take
responsibility for who one is, I suggest minimizing the overall
differences between persons of differing sexual orientation is
preferable to exaggerating and emphasizing them.  Homoeroticism
must be seen as no more and no less important to individuals than

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heteroeroticism, that is to say sexuality should define an
individual to the extent an individual defines her- or himself in
sexual terms.  Don Juan and Graham Greene's priest protagonist in
The Power and the Glory  can both be labeled as heterosexuals,
but it is hardly informative.  Some people live for sex{83} while
others appear to be uninterested{84} and most people are
somewhere in the middle.  It is the successful strategy of the
hate groups to emphasize sex preference allowing them to reduce
and dehumanize their victims.  I believe that showing Middle
America that people are not very different from themselves is the
best practical strategy to defuse the attack.  As William James
observed, a difference that does not make a difference is not a
difference.  It follows that a target that does not make a
difference is not a target.   This is most emphatically not to
follow Messrs. Kirk and Madsen{85} who show their sagacity
concerning human psychology with howlers like labeling Oscar
Wilde's insights "perverse"{86} and the ingredients of
"half-baked political pronunciamentos [sic]."{87} As the West's
leading literary critic never tires of pointing out, "...the
sublime Oscar Wilde was right about everything."{88}  I presume
they are contrasting Oscar's wisdom to their own, which at this
point in their text consists of listing, a la Pat Robinson, ten
categories of moral offenses committed by homosexuals less
constrained by the fetters of bourgeois morality than
themselves.{89}  This is followed by a stern admonition to clean
up their act,{90} so that they, Messrs. Kirk and Madsen, will be
better accepted by the academic community where they are
currently condemned to the outer fringes, less for their sexual
orientation than their slipshod work and lack of credentials I
would infer from their book.         Since I reject the notion
homosexuals modify their behaviour in any manner that would be
untrue to their selves, I obviously do not advocate that people
deny their sexual orientation, only that they not be goaded into
reducing their entire identity to it by a bunch of hate mongers. 
Of course the targets of an election campaign to deny homosexuals
their rights must group together as homosexuals and fight their
oppressors, solidifying their identities as (merely) homosexuals
in the minds of Middle America, who rarely sees them in any other
context.  This cannot be avoided, at least for the nonce.
        While Sartre abounds in rich illustrations of the
inauthentic and rebuffs previous philosophy as being in bad
faith, he does not have much in the way of a specific account of
the authentic and even seems to deny it is possible, both
explicitly ("Man is a useless passion") and implicitly by never
writing his promised book on ethics.  So the authentic is only
gestured at and implied in most of the work.  There is, however,
one major contribution by Sartre which can be extrapolated from
the late section "Existential Psychoanalysis."{91}  This notion
is that every human being has a true self or lifetime project of
which she or he is either aware or potentially aware through
introspection.  This theme is that which would unify one's life
into a whole but only at its completion.{92}  What then is it for
a homoerotic person, or for that matter any person, to be
existentially authentic?  One is tempted to use illustrations as
Sartre himself does so effectively.  It is clear that a list
including Percy Shelley, Barney Frank, Jerry Brown, Molly Bolt
and Sartre himself would capture our intuitions about

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authenticity while one comprised of William Wordsworth, Mark
Hatfield, Bill Clinton, Daisy Buchanan, and the Nazi collaborator
Heidegger would not.  This is inadequate however for two reasons.

Firstly, in all cases but the literary ones we lack access to
inner states, and in some cases the life is not yet complete. 
Secondly, it is much too vague.  How do we determine cases in the
gray area, or problematic ones like Hamlet, Sir John Falstaff, or
Ivan Karamazov?  It may not be possible to list the properties of
an authentic person.  Someone who is in bad faith either by
reducing themselves to an object, or allowing others to do it is
inauthentic.{93}  One thing is clear from our discussion, there
is no essential difference between homoerotic persons and others
along the spectrum, so there is no essentially different answer
as to how they should best live.
        It is clear then that the existentially authentic hero is
an individual owning up to reality and creating her or his own
values as the überman does, and not the one who has "chosen"
Kierkegaard's craven leap of faith.  Christianity, especially the
Pentecostal white trash ilk, is not only the chief haven of those
who would escape the dread of freedom and individual
responsibility, it is also, by no mere fortuity, a stronghold of
homophobia and other hateful practices.  The homoerotic or
bisexual person is in the same position as the heteroerotic, he
or she must become who he or she is.

LAW/POLITICS
        I shall now discuss more fully some of the legal
consequences of the positions I have been advocating.  The most
commonly cited legal reason for adopting an essentialist position
has to do with equal protection. Many people wish to argue that
homosexuals are a suspect class deserving of equal protection. 
This is much easier to do if homosexuals are a distinct
identifiable group, preferably marked by some immutable,
biological trait over which they have no control, or so the
argument goes.  Before I undertake an extensive critique of this
proposition, I shall briefly discuss the implications of my
theory for other gay and lesbian legal issues.
        First I shall state the implications of my theory
'Homosexual' is an adjective that describes acts or desires when
used in strict conformity to metaphysical and authentic precepts.

Many persons have homoerotic desires to some extent, this does
not in the least cause them to be essentially different from
persons who do not have them.  The majority has tried to
objectify and dehumanize those whose sexual orientation differs
from theirs, this is inauthentic of them, and it is inauthentic
for those who have them to allow themselves to be reduced in this
way to escape responsibility for who they are.  The political
agenda of homosexuals and their allies (which I shall discuss in
detail below) should aim through education and political action
to reduce this so-called difference to the status now enjoyed by
left handed persons.
        Because this process would minimize difference and deny
there is even such a thing as a homosexual, the "Don't ask, don't
tell" would fail because there would be nothing to ask or tell. 
You cannot infer conduct from a status that does not obtain, and

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albeit the military will, presumably, prohibit all sexual acts
under certain conditions (e.g. in combat, in boot camp etc.) and
ignore all sex acts in other contexts, if sexual orientation is
seen as neither concrete nor important, it will not occur to
anyone to employ it as a category.  I would have been
philosophically inclined to take this route in the dissenting
opinions{94} in Able{95} and Steffan.{96}  This is a projected
result of a long campaign of education, a process of changing how
non-heterosexuals are viewed by everyone in society, it must
begin, of course, with non-heterosexuals themselves.  "The
strongest of all warriors," says Tolstoy in War and Peace, "are
these two-Time and Patience."
        Same sex marriage and adoption would also benefit if the
gender of one's partner were deemed no more important legally
than the once explosive question of skin colour is legally
germane today.  Take, for instance, the way same sex parent
adoption was facilitated in Multnomah County, Oregon. A process
of education was carried out, first with the social workers who
make the determinations, and then with certain judges.  The
education consisted in demonstrating the lack of essential
differences between persons of differing sexual orientation.
        Domestic partner benefits along with employment and
housing discrimination would also slowly fade as the emphasis on
difference ebbed out of public consciousness.  The legal
arguments would be based on the premise that the state or the
defendant cannot do this to me or us because I or we are citizens
like everyone else, rather than "we cannot help what we are so
you cannot punish us for it."  The latter leads to pity and
contempt, and as African-Americans have found out, malicious and
baneful backlash.
        The voter initiatives should be the first battleground
where total victory is achieved.  As in the abortion rights
battle, a coalition of all progressives must mobilize against the
apostles of hate and intolerance and expose them to the public
ridicule that they so richly deserve, and as in the abortion
referendums, kick their teeth in at the ballot box.  These
vicious witch hunts, ironically, provide for an opportunity to
educate Middle America, and thereby a loosening of the grip that
ignorance and fear have upon them.  When the situation is
hopeless, as in small towns in Oregon, other strategies need be
employed as the recent Oregon Appeals Court victory on
state/local federalism demonstrates.{97}
        I now arrive at the argument that asserts that an
essentialist position will lead to suspect classification for
homosexuals and therefore equal protection.  Because the Supreme
Court has shown itself to be both homophobic{98} and averse to
creating any new suspect classes, I find this claim to be
dubious.  In City of Cleburne v. Cleburne Living Center,{99} the
Court refused to create even a quasi-suspect class for the
mentally retarded.  In other cases both the aged{100} and the
poor{101} were also rebuffed.  All three of these groups would
appear to be is less disfavour with the court than homosexuals.
        Cleburne also indicates that immutability is not as
relevant to suspect classification as once was thought.  Although
mental retardation is unquestionably immutable and not the result
of a choice made by those afflicted with it, the court refused to
grant them suspect classification, stating,

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[I]t would be difficult to find a principled way to distinguish a
variety of other groups who have perhaps immutable disabilities
setting them off from others, who cannot themselves mandate the
desired legislative responses, and who can claim some degree of
prejudice from at least part of the public at large.  One need
mention in this respect only the aging, the disabled, the
mentally ill, and the infirm.  We are reluctant to set out on
that course, and we decline to do so.{102}
Legal scholars have also concluded that immutability is neither a
necessary, nor sufficient condition for obtaining equal
protection via suspect class status.  Halley, after analyzing
both the law and the ineffectiveness of immutability arguments in
recent cases, claims that "gay-rights advocates who base their
equal protection cases on the argument from immutability do so at
their option."{103}  Francisco Valdes states, "[A]dvocates for
sexual minority equality claimants should resist all efforts to
pull the case into the "choice" and "immutability" issue.  As the
law currently stands, the etiology of sexual orientation is not
dispositive, or even relevant, to the disposition of the
case."{104}         
     However, as has already been shown, immutability and the
etiology of homosexuality is a separate issue from essentialism
arguments.  Many people still wish to associate homosexuality
with a separate identity apart from conduct, chiefly to avoid the
problem created by Bowers v. Hardwick,{105} that homosexual
behaviour can be criminalized.  Francisco Valdes argues that
pro-gay litigants should use a status/conduct distinction in
sexual orientation cases.{106}  He posits that the eighth
amendment of the Constitution supports arguments based on such a
distinction.  Under the 8th Amendment as interpreted in Robinson
v. California,{107} a state cannot punish a person for their
status alone; punishment must be for acts committed, or conduct. 
In Robinson, the Court held that the defendant could not be
punished for being a drug addict, even though possession, use and
sale of drugs was illegal.  The status/conduct distinction was
upheld in Powell v. Texas, because even though in that case the
Court found that the defendant could be punished for public
drunkenness, the Court also found that public drunkenness was not
a status, but conduct, namely the act of appearing drunk in
public.{108} Unfortunately, the courts have not applied this
legal principal to sexual orientation cases, as evidenced by the
military cases such as Steffan v. Perry, in which Joseph Steffan
was forced to resign from the Naval Academy for the status of
being a homosexual in spite of the lack of evidence of homosexual
conduct.{109}  In Perry, the court inferred homosexual conduct
from his status.  Valdes himself cites two similar cases in which
a lesbian{110} and a bisexual{111} were discharged for mere
status, lamenting that "the punishment of Lesbians, Gays, and
Bisexuals on the basis of pure status or identity is undertaken
openly."{112}  Given this treatment by the courts, a
status/conduct distinction becomes much less promising as a legal
strategy.
        As a strategy to unite lesbians, gays, and bisexuals it
is dangerous and appalling.  To liken the status of homosexuality
to alcoholism and drug addiction is self-defeating.  It is to
make lesbians, gays, and bisexuals into a group of persons with a
medical disease, a battle to end that classification has already

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been won.  While much of the middle class is sympathetic to
alcoholics, they believe that they are sick and need to be cured.

This is the point of Halley's differential of "anti-gay
essentialism" from its "pro-gay" articulation.  The average
person does not want an alcoholic baby-sitter or teacher for his
or her children, nor do they want them in positions of
responsibility, afterall, they are sick.  And being sick will
conjure up to some minds the notion of cure, a most unappealing
prospect that conjures up visions of A Clockwork Orange in my
mind.  This sort of reduction is not a step to assimilation, but
a dead-end.
        Mohr, after having refuted the radical social
constructionism of Foucault, invents a more moderate one of his
own in the next chapter of his book.  He does so by defining gays
as a minority in the normative sense, namely "a group treated
unjustly because of some status that the group is socially
perceived to possess independently of the behaviour of the
group's members."{113}  He adds to this the property of being
considered and having been treated as somehow sub-human, as a
lesser moral being.  Mohr argues that gays are often considered
in this way and so have attained minority status and they should
receive the rights, benefits, and protection of this status. 
From this, Mohr concludes, "[G]ay studies, as the study of a
minority, should be viewed chiefly as a normative inquiry rather
than as either an empirical study of the world or a nonempirical
study of discourses."{114}  Although Mohr is careful to mention
that his thesis is only that "society treats gays as though they
constitute an ethnic minority,"{115} as opposed to the social
constructionist position that society constructs the category
homosexuality (he still holds onto his same-sex desire
definition), by advocating the study of gays along these lines,
he is advocating a social constructionist gay studies.  Again I
do not believe that it follows from the fact that society has
reduced a group of people to the status of an object, that they
should likewise reduce themselves.  This is not to advocate
quietism in the face of oppression as I shall explain after
considering Halley and Cain.
        As I stated earlier, Janet Halley advocates litigating
from a position that she calls behavioural constructivism because
it does not utilize the unnecessary and divisive immutability
claims and is a middle ground between essentialism and social
constructivism, that (almost) all homosexuals can embrace.  She
cites as one of its advantages that it does not misrepresent gay
men, lesbians and bisexuals who do not accept either of the more
extreme positions, so is therefore more ethical.  But as has been
shown, any position that labels people threatens individuality
and risks inauthenticity.
        Patricia Cain also cites legal/political reasons for
endorsing an essentialist position regarding lesbians, even
though she rejects this move in feminism.  She claims that the
category lesbian is too young to be destabilized, that lesbians
have had very little time to construct positive identities,{116}
that lesbians must emphasize their commonalties.  This is a
pragmatic reason, given her earlier statement, "I can see a
potential practical problem with anti-essentialism.  To put the
matter quite simply, if 'woman' is not a stable category, how is

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---------------------------------END PAGE 22---------------------------------------

it possible to build a political movement around the goal of
improving the material conditions of women's lives?"{117}  She
wishes to protect the lesbian political movement. This is not
metaphysical essentialism, but a social construction based on the
present political situation.  Her second reason for endorsing
lesbian essentialism is that there is a core lesbian experience
that creates lesbian identity and makes it an essential category.

That core experience is the emotional and erotic attraction to
another women and the recognition that this attraction has
occurred.  Virtually everyone, however, experiences a sexual
awakening, that it is so unique for lesbians (and presumably gay
men) is the contingent social conditions that make it a taboo. 
She could maintain it is essential for homosexuals, but not
heterosexuals if she claimed that the former was unnatural and
confounded the normal expectations and intuitions of all people
in all cultures, but this seems an unattractive option.
        As I said in my critique of Mohr's pragmatic case for
group identity for political purposes, I do not advocate quietism
in the face of oppression.  On the contrary I should urge that
all people who are victimized by the ruling class and religious
right fight back together, not as "gays," "blacks," "civil
libertarians," "environmentalists," "welfare recipients,"
"illegal immigrants," and "feminists," but in one united front. 
Education of the masses so that they will not fear what is
unknown and Other is necessary, so is political opposition to the
demagogues that exploit this fear of the Other.  Many persons in
one of the aforementioned groups belong to other groups on the
list as well, and all have in common a struggle against the
forces of repression.  Hitler{118} had his list which included
Jews, Jehovah's Witnesses, leftists, emigrants, homosexuals, and
gypsies.  The New Right has their enemy list.  A united
opposition{119} would have the pragmatic result of making the
resistance more effective because larger, better financed, and
less easily typed.  More middle class people will rally in the
name of tolerance and the Bill of Rights than will take a stand
for same sex marriage or abortion rights.  The single issues are
more divisive, and the opponents of all groups are often the same
people.{120}  The fight should and could be taken to the
opposition, rather than restricting itself to defensive counter
measures.  Pastors who lead abortion clinic blockades should have
their church services blockaded, the IRS should be encouraged to
target "religious" groups who meddle in politics, businesses who
contribute to hate groups, pollute the environment, or
discriminate against minorities could be boycotted by a
significant segment of the populace.  Through education,
political action, and economic pressure, the support-even
anything less than active opposition to the far right-by
businesses and the ruling class, could be made no longer viable. 
The 1992 election results have already caused a rift to develop
between eastern establishment Republicans who are interested only
in money, and the yahoos who commandeered their convention. On
the ethical and psychological side, a massive resistance would
not reduce an individual to a homosexual or an environmentalist
either in her or his own mind or the minds of others.  It is no
doubt preferable to brandish a pink triangle in solidarity and
defiance of hateful oppressors than it is to wear one in a

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---------------------------------END PAGE 23---------------------------------------

concentration camp, but a world without pink triangles is better
still.


FOOTNOTES********************************

{1}University of Oregon Law School, 19 April 1995.  I should like
to thank Professor Dom Vetri for whose seminar on Gay & Lesbian
Legal Issues this paper was prepared and my colleague and writing
partner in that seminar, Anne Fujita; both of whom provided me
with cogent criticisms and persistent calls for clarification.  I
should also like to acknowledge Professors Keith Aoki and Frank
Valdes for their assistance in placing this paper. 
{2}Views from a Window Conversations With Gore Vidal 239 (Robert
J. Stanton and Gore Vidal eds., 1980).

{3}Newt Gingrich's "politics of anger" as Time Magazine calls it
is in fact an exploitation of all that is dark and malignant in
people, most notably resentment.

{4}I shall employ the following conventions concerning quotation
marks and words double quotations as above will indicate a
technical or questionable use of a word, single quotes will
indicate that I am referring to the actual word in the quotes
rather than its referent.  'Homosexual' then would refer to the
word homosexual itself, as opposed to a person, group, or act. 
In logic this is referred to as the use/mention distinction. 
{5}Harold Bloom, The Western Canon 31 (Harcourt, Brace 1994). 
{6}The middle initial is an Archie Bunker misnomer that I
appropriated. 
{7}Such categories can couple two writers of such differing
aesthetic power as the brilliant Toni Morrison and the woefully
inadequate Alice Walker denying the individuality of both women. 
This is a problem endemic to minorities, nowhere will one find
Norman Mailer and Stephen King joined as "macho white male
novelists of violence" for instance.

{8}The equal protection question for instance, as will be shown,
by raising homosexuals to a discrete class could have a
concomitant negative affect of reducing some twenty-five million
diverse individuals to a group defined by one trait
(homoeroticism), thus reducing them to one dimensional
quasi-citizens in the eyes of many other Americans.

{9}In general most essentialists take themselves to be defining
the concept or even Idea of homosexuality, while most social
constructionist are answering the question of how a group of
speakers define a word.  Others (on both sides) lack the
sophistication to make the distinction.  I shall remain agnostic,
at least for the nonce, for the sake of exploring the arguments
critically and without an assumption that determines their
outcome.

{10}See Michel Foucault's The History of Sexuality, Vol. I, An
Introduction 42-49 (Robert Hurley trans., 1978) (1976) and David
M. Halperin, One Hundred Years of Homosexuality and Other Essays
on Greek Love 41-53 (1990). This theory is applied to gender as

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well in Judith P. Butler, Gender Trouble (1990).

{11}Daniel R. Ortiz, Creating Controversy  Essentialism and
Constructivism and the Politics of Gay Identity, 79 Va. L. Rev.
1833, 1838 (1993). 
{12}It is of course not true that one who becomes pregnant always
has consciously chosen to do so, Ortiz qualifies his category by
excluding cases of coercion, ignorance, and contraceptive
failure.  This is still an incomplete list and a sloppy category.

{13}What about Myra Breckinridge?  Biological sex is determined
at birth, psychological sex is another matter that may be more
important, a transsexual is presumably a person who found their
biological sex less essential than their psychological sex.

{14}Ortiz, supra note 11, at 1839.

{15}The history per se is not important, the point is that race
is not essential because we can imagine a society where it does
not matter, i.e. one where all persons have the same skin colour.

{16}One could try to achieve the early Africa analogy by heeding
certain radical feminists and exterminating all men, gendercide,
but males would still be aborted, so difference (by absence)
would be striking. 
{17}Ortiz uses 'gay' most of the time, I am using the genderless
'homosexual', which I take to be an adjective, but employ also as
noun for the sake of readability.  'Gay' originally meant a woman
of easy virtue in the 17th century according to Gore Vidal.  "Is
she gay?" meant is she available.  Ruthann Robson complains in
Lesbian [Out]Law (Firebrand 1992) that what she calls Queer Legal
Theory, and Mohr refers to as Gay Studies, ignores lesbians in
favour of gays (p.22), she praises Francisco Valdes as an
exception (p.26).

{18}There is plenty of evidence of bisexuality in other societies
as well, see Eva Cantarella, Bisexuality in the Ancient World
(Cormac Ó Cuilleanáin, trans. Yale 1992).

{19}Ortiz, supra note 11, at 1849.

{20}Richard D. Mohr, Gay Ideas 222 (Beacon Press 1992).

{21}Id.

{22}Names, whether they refer to individuals or groups, affect
the light in which their referents are seen.  'Gay', 'queer', and
'homosexual' may all have the same denotation for a community of
speakers, but they hardly share a connotation.  Nabokov
illustrates this point beautifully at the opening of his
masterpiece, "She was Lo, plain Lo, in the morning, standing four
feet ten in one sock.  She was Lola in slacks.  She was Dolly at
school. She was Dolores on the dotted line.  But in my arms she
was always Lolita." Vladimir Nabokov, The Annotated Lolita 9
(Alfred Appel, Jr. ed., Vintage Books 1991).  The mode of
presentation affects how what is named is perceived, by others,
and sometimes by the individual named.  This is one of the things

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at stake in the metaphysics debate.

{23}Ian Hacking, Making Up People, in Reconstructing
Individualism 222, 222-36 (Thomas C. Heller et al. eds., 1986).

{24}Mohr, supra note 20, at 228.

{25}Id. at 236.

{26}Id. at 237.

{27}Id. at 238.

{28}Id. at 240-41.

{29}Janet E. Halley, Sexual Orientation and the Politics of
Biology  A Critique of the Argument From Immutability, 46 Stan.
L. Rev. 503 (1994). 
{30}Id. at 517.

{31}Id. at 548.

{32}Carole S. Vance, Social Construction Theory  Problems in the
History of Sexuality, in Homosexuality, Which Homosexuality? 13,
21 (Dennis Altman, Carole Vance, Martha Vicinus & Jeffrey Weeks
eds., 1989).

{33}Halperin, supra note 10.

{34}Halley, supra note 29, at 559.

{35}Patricia A. Cain, Lesbian Perspective, Lesbian Experience,
and the Risk of Essentialism, 2 Va. J. Soc. Pol'y & L. 43 (1994).

{36}This theory is also criticized in Maia Ettinger, Color Me
Queer  An Aesthetic Challenge to Feminist Essentialism, 8
Berkeley Women's L. J. 106 (1993).

{37}Ortiz, supra note 11, at 1847-49.

{38}Simon Blackburn, The Oxford Dictionary of Philosophy 125
(Oxford 1994). 
{39}Saul Kripke, Naming and Necessity (Harvard, 1980).

{40}Names (proper and natural kind terms) are inextricably linked
to the objects they name in current philosophical logic.  It is
important to keep them straight.  For those inclined to a
technical explanation of Kripke's theory concerning naming and
its place in the history of ideas, here is a brief overview
Historically, Frege, Russell, and Searle thought they were giving
different theories of naming.  Frege said proper names had both a
sense (meaning) and a referent (the object named); Russell wrote
that what we call proper names are not, strictly speaking, proper
names at all, but just abbreviations for some definite
description.  In "Proper Names" Searle suggested that while no
one definite description was synonymous with a given proper name,
a cluster of them were associated with each name, and the name

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picked out the object that a weighted majority of them
designated. John R. Searle, Proper Names, 67 Mind 166 (1958).
        For Kripke these are just three heads of the same Hydra
that claim sense determines reference.  Kripke, siding with Mill,
suggests that proper names refer directly and have no connotation
whatsoever.  Kripke's first argument is just to show that names
do not work the way the descriptivists insist.  We do not start
with descriptive concepts and sort through the world until we
have the object uniquely designated.  Now in rare cases we do,
but these just serve to illustrate the oddity of the claim.  We
can say (stipulate) that the name 'Midnight Rambler' picks out
the mastermind of a deadly ambush of British troops in Northern
Ireland last month; and when that IRA soldier is identified say,
"this is the Midnight Rambler of whom we have been speaking." 
But this is not a picture of how we know who Garrett Epps is, or
how we recognize Jerry Brown, or even to whom we refer when we
use 'Karl Marx'.  These three different cases, in which we refer
by proper names--personal acquaintance, famous contemporaries and
historical figures--are all captured by Kripke's picture
A rough statement of a theory might be the following  An initial
'baptism' takes place.  Here the object may be named by
ostension, or the reference of the name may be fixed by a
description.  When the name is 'passed from link to link', the
receiver of the name must, I think, intend when he learns to use
it with the same reference as the man from who he heard it.
(Naming and Necessity, p. 96)
        The other pillar of this direct reference theory is that
names are rigid designators.  For example, 'Secretariat' names
the same object in all possible worlds (except, of course, worlds
in which there is no Secretariat since he does not necessarily
exist, as some people believe god does, if she exists at all). 
This allows Kripke to avoid a problem that confounds
descriptivist theory.  Look at the following argument (Joan Jett
was named Joan Larkin at birth on 22 September 1960, the ‡
indicates modal necessity)         (1)     ‡ (Joan Jett = Joan
Jett)
(2)     Joan Jett = Joan Larkin
        ‡ (Joan Jett = Joan Larkin)
        This is a valid inference leading to an a posteriori
necessary identity statement, a valid inference the opponents of
rigid designation sheepishly deny, while Kripke embraces it with
open arms as another piece of evidence for his theory.
        There is another consideration concerning necessity that
militates heavily in Kripke's favour.  On any of the
descriptivist accounts it will turn out that objects named have
necessary properties.  This is especially a problem for Frege and
Russell but even Searle concedes the point in "Proper Names"
Suppose we agree to drop 'Aristotle' and use, say, 'the teacher
of Alexander', then it is a necessary truth that the man referred
to is Alexander's teacher--but it is a contingent fact that
Aristotle ever went into pedagogy, though I am suggesting that it
is a necessary fact that Aristotle has the logical sum, inclusive
disjunction, of properties commonly attributed to him . . . .
        So, to claim that Aristotle was born in Athens and died a
year later would not just be false, but a contradiction.  That
can't be right unless we accept some very hard determinism, which
descriptivist theory clearly does not.  Many contemporary

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philosophers take this to have refuted Frege, others merely see
Frege as damaged.

{41}Strictly speaking, I should ask could it be an essential
property of any person, but for our purposes is it a superfluous
distinction. 
{42}Halley, supra note 29.

{43}Simon LeVay, A Difference in Hypothalamic Structure Between
Heterosexual and Homosexual Men, 253 Science 1034 (1991).

{44}J. Michael Bailey & Richard C. Pillard, A Genetic Study of
Male Sexual Orientation, 48 Archives Gen. Psychiatry 1089 (1991).

{45}Dean H. Hamer, Stella Hu, Victoria L. Magnuson, Nan Hu &
Angela M.L. Pattatucci, A Linkage Between DNA Markers on the X
Chromosome and Male Sexual Orientation, 261 Science 321 (1993).

{46}Halley, supra note 29, at 535.

{47}Id. at 539.

{48}Tim Radford, Your Mother Should Know, The Guardian, July 17,
1993, at 23 (quoting Hamer's comments broadcast on BBC radio)
(emphasis added). 
{49}For a critique of scientific procedure in general, see Paul
K. Feyerabend's Against Method (3d ed. 1993).

{50}Lionel H. Blackman, Homosexuality  A Disorder, a Disruptive
Force, or an Orientation?, 16 Trial Dip. J. 275, 278 (1993).

{51}Some believe that all bisexual persons have a preference for
one sex or the other at bottom, I need not refute this line.  My
claim is only that there is a spectrum, as to whether anyone is
situated in the precise middle, I need not worry.

{52}Halley, supra note 29, at 549-50.

{53}Metaphysics is beyond the physical, beyond what we have
epistemological access to, ergo our senses cannot determine the
answer.  Many people, especially those under the sway of
empirical science and ignorant of its actual procedures, hold
metaphysics in low esteem for this reason. 
{54}Also known as fool's gold.

{55}By which I mean merely possible, not probable or even likely.

If just one person in history actually changed their orientation
that would be enough empirical evidence.

{56}One could be mistaken as to their biological parents
identity, but if it is ever true of an individual that her or his
biological parents are A & B, then it is always true.  An
individual whose biological parents are C & D is necessarily a
different individual from one whose biological parents are A & B.

{57}Views from a Window Conversations With Gore Vidal, supra note

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2, at 23. 
{58}The same occurs in the case of race.  In the film The
President's Analyst (1967), a black patient (Godfrey Cambridge)
relates to his psychiatrist (James Coburn) how he "found out
about niggers."  On his way to a predominantly white kindergarten
class he noticed a group of white children running and screaming,
"Run, here comes the nigger!  Here comes the nigger!"  Not
wanting to be left out he began emulating them, running and
screaming, "Run, here comes the nigger!  Here comes the nigger!" 
He ran up to his older (third grade) brother yelling this, and
his brother hit him.  He then says that his brother did something
that hurt him even more, he told him what a "nigger" was.  "I was
the nigger," he said.  This shows how race is a social
construction, he did not even know that he fell into this
oppressed group until he was told.  It also shows the pain such
reductive stereotypes produce.

{59}As in self abuse, held to be a leading cause of blindness and
several heinous diseases by the religious right.

{60}See Bowers v. Hardwick, 478 U. S. 186 (1986), currently the
Law of the Land. 
{61}One thing to keep in mind throughout this paper, and I will
address it specifically later, is the open persecution of persons
perceived as different can cause the behaviour of those persons
to be affected.  No doubt Jewish persons were nervous in Nazi
Germany, this however, can hardly be evidence of an essential
predilection of Jewish persons to be nervous. Everyone likely to
be taken for being a member of any group on Hitler's hate list
was likely to be nervous.

{62}Interestingly, having more than one partner of the opposite
sex at one time, either at the same instant, or on different
nights of the week is not like homosexuality in the mores of the
mob.  A man who does so is a Lothario, a swinger, or a Don Juan,
a woman a tramp or a slut. 
{63}Martin Heidegger, Being and Time (John Macquarrie & Edward
Robinson trans., Harper & Row 1962) (1927).

{64}Jean-Paul Sartre, Being and Nothingness (Hazel E. Barnes
trans., Philosophical Library 1956) (1943).

{65}At the end of Being and Nothingness  Sartre writes of the
ethical implications of his ontology, "We shall devote to them a
future work."(628).  He did not do so, so the theory that I shall
outline below is necessarily an interpretation, but then current
theory admonishes us that this is always the case with any text. 
Two of Sartre's friends, Simone de Beauvoir, The Ethics of
Ambiguity (B. Frechtman trans., Citadel Press, 1967) and Francis
Jeanson, Sartre and the Problem of Morality (R. Stone trans.,
Indiana University Press, 1980) (1947) took up the task and their
works were later endorsed by Sartre.  In his next major work
Critique of Dialetical Reason, Vol. I (A. Sheridan-Smith trans.,
New Left Board, 1976) (1960) however, Sartre wrote that an
individual ethics is impossible in a society with such unequal
power relations and produced an heterodox Marxist critique of
Western capitalism.  The matter was further complicated by the

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 29---------------------------------------

posthumous publication of the notebooks, Notebooks for an Ethics
(D. Pellauer trans., University of Chicago Press, 1992) (1983) in
which he had begun the aforementioned promised work on the
ethical implications of his ontology that appear to be somewhat
at odds with the works his friends wrote.  I shall avoid this
morass to a great extent by extrapolating from only Being and
Nothingness.  The purpose of this paper is not to make a
scholarly interpretation of Sartre, but to critique essentialism
as applied to those who are homoerotic by themselves and their
critics. 
{66}This will be a bit obscure, because so compact, it is also
more extreme and less intuitive than Sartre, who is often read
first in courses on existentialism.  It is necessary for the
structure of the paper and for scholarly and historical reasons
to present it here and in compressed from. It will become less
unclear in light of my treatment of Sartre, and is in any case
not crucial to the central thesis of this paper.

{67}Blackburn, supra note 38, at 30.

{68}Heidegger, supra note 63, at 311.

{69}Friedrich Wilhelm Nietzsche, Thus Spoke Zarathustra in The
Portable Nietzsche 184 (Walter Kaufmann trans., Viking Press
1954). 
{70}Quoted in Bloom, supra note 5, at 386.  Sartre, for reasons
that will become clear, was a savage critic of Freud,
particularly the notion of unconscious drives.

{71}At least he does not appear to be, since when we read Sartre
in light of Heidegger, trying to impose the latter's approach on
the former, we will encounter difficulties because he addressed
the problem from a different perspective.  The main ingredients
of Heidegger-death, choice, the crowd, the distinction between
human being and the being of objects, angst and facing
reality-are all there but with differing emphasis.  Also Sartre,
who concludes "Man is a useless passion"  and promises a further
work on ethics, is very rich in illustrations of what he calls
"bad faith," but has little to say that is positive except to
hint at the need for a "radical conversion" in a footnote.

{72}Sartre, supra note 64, at 629.

{73}Id.

{74}Id.

{75}Id. at 628.

{76}Id. at 33.

{77}Id. at 63-64.

{78}This is what existentialism is in a nutshell.  For Plato and
other essentialists, essence precedes existence, that is the form
or Idea of something determines what its instantiation will be. 
For Sartre, existence precedes essence, so a person exists, then

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 30---------------------------------------

acts and his or her "essence" is merely the sum total of his or
her actions.  A person chooses to be who they are because they
are free to do so, and therefore responsible as well. 
{79}Sartre, supra note 64, at 65.

{80}Playboy Magazine 222 (March 1980).  "Popular right-wing radio
evangelist and founder of the American Christian College in
Tulsa, Oklahoma, spoke out against showing sex on TV, claimed
that the Communists had invented rock 'n' roll and sermonized
against pornography.  But in 1976, Time magazine disclosed that
he had been having sex with both male and female students from
his college.  His secret came to light when, on their wedding
night, a couple divulged to each other that they both had had
sexual relations with Hargis.  When confronted by his accusers,
the fundamentalist attributed his bisexual activities to 'genes
and chromosomes.'  Hargis continues to conduct his Christian
Crusade."  In addition to corroborating the above point and
providing wry amusement, this also serves to illustrate the
inauthenticity of flight from responsibility. 
{81}That Whitman may actually have been better characterized as
autoerotic rather than homosexual is not relevant here, the point
is that he is taken to be homosexual, but still accorded the
status of our National Poet. Proust, who was half-Jewish and
homosexual, made his narrator neither, and has been castigated by
many pro-gay critics as a result.  His switch, however, was  not
for prudential reasons, but for aesthetic ones.  He needed his
Narrator detached from the Cities of the Plain mythology.
Nonetheless, at least twenty other characters in A la recherche
du temps perdu are associated with what Proust terms sexual
inversion  Albertine, Andree, Gilberte, Charlus, Odette,
Saint-Loup, Argencourt, Nissim Bernard, Leonor Cambremer,
Chatellerault, Foix, Prince de Guermantes, Jupien, Lea,
Legrandin, Esther Levy, Morel, Theodore, Vaugoubert, and Mlle.
Vinteuil. 
{82}Ian Fleming, Goldfinger 162-63 (Signet 1960) (1959).

{83}Warren Beatty, at least in the popular imagination.

{84}Television evangelists for example, of course history has
proven that appearances can be deceiving in this area.

{85}Marshall Kirk and Hunter Madsen, After the Ball (1989). 
{86}Id. at 289.

{87}Id. at 289-290.  'Pronunciamientos' is the correct spelling. 
{88}Bloom, supra note 5, at 16.

{89}Kirk and Madsen, supra note 85, at 280-356.

{90}Id. at 356-360, including "A Self-Policing Social Code" where
the authors (unintentionally) rival Wilde.

{91}Sartre, supra note 64 at 557-575.

{92} This is important also because it implies Heidegger's thesis
that the authentic being must be a being-towards-death.  Thus,
once again the two men seem to have a shared tenet anent

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---------------------------------END PAGE 31---------------------------------------

existential authenticity when examined in such a light.

{93}The existentially authentic individual was not born that way;
ergo, had to come to be so of her or his own volition.  This is
produced by an awareness of reality, the reality of human being. 
Dread and angst build into an ontological avalanche that the
candidates for authenticity must dig their own selves out of. 
They emerge with the awareness that everything is gratuitous,
that they are their possibilities, that they have free wills and
must choose their lives and values and thus create themselves in
full realization that their own death awaits as a definite
possibility that could occur at any time.  They must not retreat
to the safety of the canaille nor attempt to objectify themselves
albeit some attempt at the latter may be virtually inevitable. 
Now that they know reality they must seek themselves through
existential analysis, that is to say determine what their
individual life project is and execute it (knowing it is absurd).

If reality is not painted in pretty pastels (and it is not) that
is no argument for seeking a mob-proven palliative such as
narcotics, religion or stultifying bourgeois heat-death.  It is
inauthentic not only to retreat from reality but to fail to
embrace it.  The existentially authentic individual must choose
that things be as they are, not only is the resoluteness to view
the world authentically necessary, but because a person has to be
what he or she is they must also choose it to be so as if a
Nietzschean eternal return obtained.  This is so because only by
choosing does one become responsible and authenticity demands
responsibility consciously taken in the face of the absurd. 
{94}But for me legal pragmatics are an overriding consideration
when people's rights are threatened.

{95}Able v. United States, 863 F.Supp. 112 (E.D.N.Y. 1994). 
{96}Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994).

{97}deParrie v. Oregon, 133 Or.App. 613 (1995).

{98}See Bowers v. Hardwick, 478 U.S. 186 (1986).

{99}City of Cleburne v. Cleburne Living Center, 473 U.S. 432
(1985). 
{100}Massachusetts Board of Retirement v. Murgia, 427 U.S. 307
(1976). 
{101}San Antonio School District v. Rodriguez, 411 U.S. 1 (1973).

{102}Cleburne, 473 U.S. at 445-46.

{103}Halley, supra note 29, at 516.

{104}Francisco Valdes, The Status/Conduct Distinction and Sexual
Orientation  Exploring a Constitutional Conundrum, 50 Nat'l Law.
Guild Practitioner 65 (1993).

{105}Bowers v. Hardwick, 478 U.S. 186 (1986).

{106}Valdes, supra note 104.


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---------------------------------END PAGE 32---------------------------------------

{107}Robinson v. California, 370 U.S. 660 (1962).

{108}Powell v. Texas, 392 U.S. 514 (1968).

{109}Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994).

{110}Pruitt v. Cheney, 943 F.2d 989 (9th Cir. 1991).

{111}Schowengerdt v. United States, 944 F.2d 483 (9th Cir. 1991).

{112}Valdes, supra note 104 at 69.

{113}Id. at 248.

{114}Id. at 252-53.

{115}Id. at 251.

{116}This is not great history, given Sappho and her followers on
Lesbos circa 600 B.C., 'young' seems to be a dubious adjective.

{117}Cain, supra note 35, at 53.

{118}I believe it is worthy of note that while everyone in our
society this side of the Church of the Aryan Nation agrees that
the policies of Hitler and Nazism are quintessential examples of
evil, the OCA and other opponents of homosexuality come close to
adopting their exact position on the issue, if not all of their
tactics.

{119}This could be seen as a larger version of Jesse Jackson's
Rainbow Coalition, better organized, better financed, larger, and
not associated with one personality no matter how well
intentioned.

{120}This is not to preclude acts of individual retaliation
against those prominent homophobic hate mongers who have
dedicated themselves to destroying the lives of their chosen
scapegoats.  Crypto-fascist political terrorism invites an in
kind response from both those pursuing personal vendettas, and
politically engaged resistance groups.
        SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE:
                         A LEGAL REFERENCE GUIDE*


CONTENTS

I.   Sexual Stereotyping 
     A.   The Use of Sexual Stereotypes
     B.   Sexual Stereotyping and Sexual Orientation 
II.  Domestic Partnership Benefits 
     A.   Legal Recognition of Domestic Partnerships 
     B.   Developments in the Law Regarding Domestic Partner
          Benefits
     C.   Creating A Domestic Partner Benefits Plan
III. Employment Discrimination Based on Sexual Orientation 
     A.   Introduction 

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---------------------------------END PAGE 33---------------------------------------

     B.   Federal Law
     C.   State, County and Municipal Laws 
     D.   Remedies Under Other Legal Theories
     E.   Public Employees:  Constitutional Standards
     F.   Public Employees:  Government Interests
IV.  Sexual Orientation Harassment 
     A.   Overview
     B.   Harassment of Men and Women is Prohibited
     C.   Same-Sex Harassment
     D.   Same-Sex Harassment: Quid Pro Quo Cases
     E.   Same-Sex Harassment: Hostile Work Environment
     F.   Same Sex Harassment: Hostility Based on Sexual
          Orientation
          Does not Create Environmental Harassment Claim 
     G.   Harassment of Both Sexes
     H.   Local Laws Prohibiting Sexual Orientation
          Harassment
V.   Domestic Partnership Benefits:  Samples Policies and
     Related Information                                         

                                
*Robert B. Mison (San Francisco), Steefel, Levitt & Weiss and
Walter Cochran-Bond (Los Angeles), Bettina B. Plevan (New York)
and Paul Salvatore (New York), Proskauer Rose Goetz & Mendelsohn.

This Outline contains updated excerpts from Avoiding and
Defending Against Claims of Gender and Sexual Orientation
Discrimination in the Workplace originally presented by
Proskauer Rose Goetz & Mendelsohn on October 6, 1993 at its
annual Law and the Workplace seminar and is reprinted here with
permission.


I.   Sexual Stereotyping

     The use of stereotypical assumptions about men and/or women
     in employment decisions is a form of gender discrimination
     prohibited by law.  Recent case law has addressed the issue
     in the context of professional organizations, frequently
     regarding promotion decisions.

     A.   The Use of Sexual Stereotypes

          1.        In 1989, the Supreme Court ruled that dis-
               crimination on the basis of sex stereotyping
               violates Title VII.  Price Waterhouse v. Hopkins,
               490 U.S. 228 (1989).  Hopkins, a senior manager at
               an accounting firm, was denied consideration for
               partnership because she was not deemed "feminine"
               enough by the partners who were evaluating her.
               The evaluation committee solicited evaluations
               from the entire partnership.  Among the subjective
               evaluations were comments describing Hopkins as
               "macho," and "overcompensating for being a woman,"
               and suggesting that she take "a course in charm
               school" and "walk more femininely, talk more
               femininely, dress more femininely, wear make-up,

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               have her hair styled and wear jewelry." Id. at
               235.  The U.S. Supreme Court held that the
               consideration of these comments in the evaluation
               process was impermissible sex discrimination:

                    An employer who objects to
                    aggressiveness in women but whose
                    positions require this trait places
                    women in an intolerable and
                    impermissible Catch 22:  out of a job if
                    they behave aggressively and out of a
                    job if they do not.  Title VII lifts
                    women out of this bind.

               Id. at 251.

               The district court on remand awarded Hopkins
               admission to partnership, backpay in the amount of

               $371,000.00 and attorney's fees.  Hopkins v. Price
               Waterhouse, 737 F. Supp. 1202 (D.D.C.), aff'd, 920
               F.2d 967 (D.C. Cir. 1990).

          1.        Ezold v. Wolf, Block, Schorr and Solis-Cohen,
               751 F. Supp. 1175 (E.D. Pa. 1990), rev'd, 983 F.2d
               509 (3d Cir. 1992):  At the District Court level,
               the court held that a law firm denied a female
               associate partnership while it granted partnership
               to a number of less qualified male associates.  In
               reaching the conclusion that the firm had discrim-
               inated, the district court considered that the
               firm had criticized the female associate for
               being:  "too involved with women's issues in the
               Firm," 751 F. Supp. at 1192; and "'very
               demanding'" and insufficiently "nonassertive and
               acquiescent to the predominantly male
               partnership." Id. at 1189.

               The Court of Appeals, however, disagreed and held
               that the District Court had erred by substituting
               its judgment for that of the firm's evaluation
               committee.  The proper analysis should not have
               been whether in the court's view the lack of legal
               analytical ability was crucial to success as a
               partner.  Rather, the court should have analyzed
               whether male associates who were granted
               partnership had been similarly criticized.

          1.        Bruno v. City of Crown Point, 950 F.2d 355
               (7th. Cir. 1991), cert. denied, 120 S. Ct. 2992
               (1992):  During a job interview for the position
               of paramedic on an ambulance, the employer asked
               the sole female applicant questions relating to
               child care, her spouse's feelings about her
               seeking the job and her spouses's job, which the
               employer did not ask male applicants.  The Court
               of Appeals stated:  "While family questions are

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               important, an interviewer should not single out
               women and focus on them as if they were the only
               sex concerned about how family responsibilities
               may affect the demands of the job." 950 F.2d at
               362.

          2.        Drinkwater v. Union Carbide Corp., 904 F.2d
               853 (3d Cir. 1990):  In attempting to establish a
               sexual harassment claim based on a hostile
               environment, a female market research employee
               alleged that her employer made impermissible
               demands upon her concerning her makeup, eyeshadow
               and clothing.  Although finding that there was
               insufficient evidence to sustain the claim, the
               Court of Appeals stated that:

                    Undue preoccupation with what female
                    employees look like is not permissible
                    under anti-discrimination laws if the
                    same kind of attention is not paid to
                    male employees.  Traditional ideas about
                    what a woman should look like are not
                    legitimate criteria for evaluating women
                    in the workplace.

               Id. at 862-63.

          1.        Vincenti v. Hilliard-Lyons, Inc., 1991 U.S.
               App. LEXIS 29376 (6th Cir. 1991):  An employer
               terminated a female trader after she became
               engaged to the son of one of its competitors
               because the employer was concerned that the female
               employee would divulge proprietary information. 
               The female employee alleged that although a number
               of male traders were married to women who worked
               at competitors none of them were terminated
               because the employer believed that women were more
               likely than men to engage in "pillow-talk."

               In upholding the decision in favor of the
               employer, the Court of Appeals acknowledged that
               existence of the stereotype, but held that the
               employee had presented no directed evidence that
               the employer had relied on the stereotype in
               reaching its decision to terminate her. See id. at
               *10.

     A.   Sexual Stereotyping and Sexual Orientation

          1.        Although sexual orientation was not an issue
               in Price Waterhouse, gay plaintiffs who can show
               similar gender stereotyping may also have a cause
               of action.  Note, Sex(ual Orientation) and Title
               VII, 91 Colum. L. Rev. 1158, 1180 (1991)
               (hereinafter Sexual Orientation)).

          2.        A few courts have rejected arguments that

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               discrimination against homosexual male employees
               because they are "effeminate" violates Title VII. 
               See, e.g., Smith v. Liberty Mutual Ins. Co., 569
               F.2d 325 (5th Cir. 1978); DeSantis v. Pacific Tel.
               & Tel. Co., 608 F.2d 327 (9th Cir. 1979).

          3.        Employers can claim in their defense that the
               employee was treated differently because of sexual
               orientation (which is currently permissible under
               Title VII) and not on the basis of gender
               stereotyping.  (But protection is available under
               some state discrimination laws.  See infra Part
               III(c)).

               a.        The Sixth Circuit rejected on two
                    grounds a Price Waterhouse claim by a
                    homosexual employee whose co-workers harassed
                    him by describing the sexual acts they
                    presumed that he performed.  Dillon v. Frank,
                    1992 U.S. App. LEXIS 766, 58 Empl. Prac. Dec.
                    (CCH)  41332 (6th Cir. 1992).

                    First, the court held that the co-workers
                    would have objected to the sex acts
                    regardless of whether a woman or man had
                    performed them, so no gender discrimination
                    was involved. 

                    Second, the court said that whereas in Price
                    Waterhouse the plaintiff was placed in a
                    "Catch-22" situation because the "male"
                    traits such as aggressiveness for which she
                    was penalized were also traits she needed to
                    be promoted, Dillon's supposed activities or
                    characteristics were irrelevant in the
                    workplace and thus did not place him in such
                    a Catch-22.  Dillon, 1992 U.S. App. LEXIS
                    766, at *28-29.

          1.        A claim of gender stereotyping may be the
               only potential claim available to gay men and
               lesbians under Title VII.  In fact, some
               commentators have suggested that gay people are
               discriminated against because they do not conform
               to an expectation of gender roles, and thus all
               discrimination on the basis of sexual orientation
               is actually impermissible gender stereotyping. 
               See, e.g., Sexual Orientation, supra, at 1183;
               Developments -- Sexual Orientation and the Law,
               102 Harv. L. Rev. 1508, 1580-1581 (1989)
               (hereinafter Sexual Orientation and the Law).

               Although this argument has not been adopted in the
               Title VII context, courts and legislatures have
               considered it in other contexts.  For example, the
               Minnesota sexual orientation anti-discrimination
               law includes in its protected class definition

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 37---------------------------------------

               anyone "having or being perceived as having a
               self-image or identity not traditionally
               associated with one's biological maleness or
               femaleness."  1993 Minn. Ch. Law 22 (1993).

     I.Domestic Partnership Benefits

     Most benefits available to the legal spouses of employees
     are not available to unmarried domestic partners of
     employees.  Unmarried workers in long-term relationships,
     both opposite-sex and same sex relationships, are
     increasingly asserting that they are not being compensated
     equally to similarly situated married co-workers.  Domestic
     partnership benefits raise many legal issues relating to
     discrimination based on marital status and sexual
     orientation, tax law treatment, and COBRA rights.

     Federal, state and local laws do not expressly require an
     employer to provide domestic partnership benefits. 
     Nevertheless, an increasing number of employers and law
     firms are offering domestic partnership benefits to their
     employees.

     Advocates of domestic partnership rights focus on two arenas
     of change:  (1) legal recognition of or registration for
     non-traditional relationships, and (2) the extension of
     employer-provided benefits to non-married domestic partners.

     Generally, a "domestic partnership" refers to "two persons
     who reside together and who rely on each other for financial
     and emotional support."  Robert L. Eblin, Domestic
     Partnership Recognition in the Workplace:  Equitable
     Employee Benefits for Gay Couples (and Others), 51 Ohio St.
     L.J. 1067, 1069 n.11 (1990).  Though often included in the
     definition, a sexual relationship is not necessarily a
     requirement of a domestic partnership.  Id.

     A.        Legal Recognition of Domestic Partnerships

          1.   State Law Provisions

               Currently, no state recognizes marriages between
               two persons of the same sex.  Attempts have been
               made to enact statewide registration of domestic
               partnership registration, but to date they have
               been unsuccessful.

               Recently, the Hawaii Supreme Court ruled that
               denying same-sex couples the right to marry may
               violate the Equal Protection Clause of Hawaii's
               Constitution.  Baehr v. Lewin, 852 P.2d 44 (Haw.
               1993).  A plurality of Hawaii's Supreme Court
               found the state's marriage statute to be a prima
               facie violation of Hawaii's equal protection
               guarantee.  Since "sex" (or gender) is a protected
               class in the Hawaii Constitution, and marriage is
               a civil right protected by Hawaii's Equal

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
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               Protection Clause, the plurality required the
               state on remand to show that its policies limiting
               marriage to opposite-sex couples serve a
               compelling state interest and are narrowly drawn
               to serve those interests without unnecessarily
               abridging constitutional rights.  The
               presumptively unconstitutional discrimination was
               viewed as being based on the plaintiffs' sex, not
               on their sexual orientation.  Although this
               opinion raises the prospect that Hawaii might
               become the first state to recognize same-sex
               marriages, the outcome is by no means certain. 
               But see, Dean v. District of Columbia, 653 A.2d
               307 (D.C. App. 1995) (D.C.'s Human Rights Act did
               not require D.C.'s marriage statute to include
               same-sex marriages).

          1.   Municipal Ordinances

               Several municipalities have passed measures
               allowing unmarried couples to register as domestic
               partners.  See, e.g., Ann Arbor, Mich., Code
                9:85 - 9:95 (1991); Atlanta, Ga., Ordinance 93-
               0-0776 (1993); Berkeley, Cal., Admin. Proc. No. 2-
               37 (1988); Ithaca, N.Y., Ordinance No. 91-5 (Jan.
               28, 1991); Madison, Wis., Code  7.1 - 7.8
               (1991); Minneapolis, Minn., Code ch. 142 (1991);
               New York City, N.Y., Executive Order No. 48; (Jan.
               7, 1993); San Francisco, Cal., Code ch. 62 (1990);
               West Hollywood, Cal., Code  4220 - 4228 (1985).

               a.        New York City, New York:  A domestic
                    partnership is defined as two people, both of
                    whom are 18 years of age or older, neither of
                    whom is married or related by blood in a
                    manner that would bar their marriage in New
                    York State, of a close and committed personal
                    relationship, who live together and have been
                    living together on a continuous basis, and
                    have executed a registration certificate as
                    domestic partners with the City Clerk.  

               b.        San Francisco, California:  Domestic
                    partners are defined as two adults who have
                    chosen to share one another's lives in an
                    intimate and committed relationship with
                    mutual caring, who live together, and have
                    agreed to be jointly responsible for basic
                    living expenses incurred during the domestic
                    partnership.  A declaration of domestic
                    partnership form must be registered with the
                    County Clerk.

               Although some municipalities provide for the
               extension of benefits (some including healthcare
               packages) to the domestic partners of municipal
               employees (see, e.g., Los Angeles, New York City,

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
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               San Francisco and Seattle), none of the
               registration ordinances require that private
               employers provide such benefits.

     A.        Developments in the Law Regarding Domestic Partner
          Benefits

          Domestic partner advocates have attempted to obtain
          benefits from public and private employers through the
          collective bargaining process, by invoking statues
          prohibiting marital status discrimination and sexual
          orientation discrimination, and/or by reliance on
          employer policies against discrimination.  Although
          employees have been unsuccessful to date, litigation
          continues, and in the future anti-discrimination laws
          might be extended by amendment or incorporation to
          cover domestic partner benefits.

          1.   Marital Status Discrimination Claims

               Gay men and lesbians have argued that the
               granting of employment benefits to only an
               employee's legally recognized spouse is
               unlawful marital status discrimination. 
               Because gay men and lesbians cannot marry, as
               no state currently recognizes same-sex
               marriages, domestic partnership advocates
               argue that treating non-married people
               differently is discrimination.

               a.        Federal Law does not prohibit marital
                    status discrimination.

                    The Equal Employment Opportunity Commission
                    ("EEOC"), however, has stated in its
                    guidelines that employer rules that forbid or
                    restrict the employment of married women
                    unlawfully discriminate against women if
                    those rules do not also apply to married men.
                    (29 C.F.R.  1604.4(a) (1992)).

               a.        State law:

                    i.   Many states include marital status dis-
                    crimination among the enumerated categories
                    upon which an employer may not discriminate. 
                    See, e.g., Alaska Stat.  18.80.220 (1986);
                    Cal. Gov't Code  12940(a) (West 1980); Conn.
                    Gen. Stat. Ann.  46a-60 (West 1986); Del.
                    Code Ann. tit. 19,  711 (1979); D.C. Code
                    Ann.  1-2512 (1987); Fla. Stat. Ann.
                     760.10(2) (West 1986); Haw. Rev. Stat.
                     378-2 (1985); Ill. Ann. Stat. ch. 68, para.
                    2-102 (Smith-Hurd 1989); Md. Ann. Code art.
                    49B,  16 (1979); Mich. Comp. Laws Ann.
                     37.2202(1) (West 1985); Minn. Stat. Ann.
                     363.03 Subdiv. 1 (West Supp. 1991); Mont.

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
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                    Code Ann.  49-2-303 (1989); Neb. Rev. Stat.
                     48-1104 (1988); N.H. Rev. Stat. Ann.  354-
                    A:  8 I-III. (1984); N.J. Stat. Ann.  10:5-
                    12 (West 1976); N.Y. Exec. Law  296 U
                    (McKinney 1982); Or. Rev. Stat  659.030
                    (1989); Wash. Rev. Code Ann.  49.60.180
                    (West 1990); Wis. Stat. Ann.  111-321-322
                    (West 1988).

                    ii.  State and local prohibitions against
                    marital status discrimination are designed
                    primarily to ensure that an individual's
                    status as a married person or as a single
                    person is not the basis for providing
                    employee benefits or making other employment
                    decisions.  To date, courts have not
                    generally held that these state and local
                    laws require employers to offer benefits to
                    unmarried partners.

          1.        A few courts have recognized that the
               granting of domestic partnership benefits to only
               the legally recognized spouses of employees
               violates local marital status and sexual
               orientation discrimination laws.

               a.        Gay Teachers Ass'n v. Board of Educ. of
                    the City of New York, N.Y.L.J., Aug. 23,
                    1991, at 21 (Moskowitz, J.):  The New York
                    Supreme Court held that the Gay Teachers
                    Association had alleged a cause of action
                    under Executive Order No. 28 which prohibits
                    discrimination based on sexual orientation
                    and under the New York Human Rights Law based
                    on marital status discrimination.  The case
                    has thus far survived a motion to dismiss and
                    is still pending.

               b.        Anglin v. Minneapolis, Minneapolis
                    Commission on Civil Rights, No. 88180-EM-12
                    (Nov. 17, 1992):  The Minneapolis Commission
                    ruled that the denial of benefits to the
                    same-sex partners of three librarians
                    violated the City's ordinance which prohibits
                    discrimination based on affectional
                    preference.  The commission also held that
                    the refusal to grant benefits to the domestic
                    partners of the librarians had a disparate
                    impact upon lesbians.  But see, Lilly v. City
                    of Minneapolis, 527 N.W.2d 107 (Minn. App.
                    1995) (city ordinance granting health
                    benefits to domestic partners of municipal
                    employees is ultra vires and without legal
                    force).

          2.        A number of courts have recently
               reinterpreted state law definitions of family,

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 41---------------------------------------

               extending to unmarried cohabitants rights that
               have historically been reserved for "traditional
               families."  Although not addressing domestic
               partnership benefits directly, a new definition of
               terms such as "family" and "spouse" may affect the
               manner in which marital status statutes are
               applied.

               a.        Braschi v. Stahl, 74 N.Y.2d 201, 543
                    N.E.2d 49, 544 N.Y.S.2d 784 (1989).  The New
                    York Court of Appeals extended the definition
                    of "family" under New York City's rent
                    control law to include same-sex couples
                    living together in a committed relationship. 
                    The court held that determining what
                    constituted a family under the statute
                    required "an objective examination of the
                    relationship of the parties . . . including
                    the exclusivity and longevity of the
                    relationship, the level of emotional and
                    financial commitment, the manner in which the
                    parties have conducted their everyday lives
                    and held themselves out to society, and the
                    reliance placed upon one another for daily
                    family services." 74 N.Y.2d at 212-13, 542
                    N.E.2d at 55, 544 N.Y.S.2d at 790.

                    It is possible that the court could redefine
                    "spouse" in a similar fashion and thus
                    require that domestic partners be accorded
                    the same benefits as traditional spouses.

               a.        Reep v. French, Civil No. 89-4229 (Mass.
                    Dist. Ct., Northampton Div. July 9, 1990),
                    appeal filed, No. A.C. 91-P-392 (Mass. App.
                    Ct. July 25, 1990).  The court held that a
                    woman who left a job to follow her unmarried
                    partner left for "good cause," and was
                    consequently entitled to unemployment
                    insurance benefits.

               b.        In re Michael D., SF 24774, Cal. Unempl.
                    Ins. App. Bd. (Sept. 13, 1985).  A state
                    appeals board held that a gay man who left
                    work to care for his lover who was dying of
                    AIDS had left for "good cause" and was
                    entitled to benefits.  Though the men were
                    not related by blood or marriage, they were
                    "family members" within the meaning of the
                    statute.  Similarly, unmarried partners have
                    been found to be "good faith" family members
                    for workers' compensation purposes.

               c.        But see, Ross v. Denver Department of
                    Health and Hospitals, 1994 Colo. App. LEXIS
                    97 (April 7, 1994).  A Colorado appeals court
                    denied family sick leave benefits to a

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---------------------------------END PAGE 42---------------------------------------

                    lesbian employee for the time she took off to
                    care for her domestic partner.  The statute
                    covering public employees contains an
                    exhaustive list defining who is a family
                    member for purposes of sick leave benefits,
                    including husbands and wives, but not
                    domestic partners.  Id. at *3.  The court
                    strictly adhered to the letter of the
                    statute, emphasizing that domestic partners
                    are not covered. 

          1.   Employer Policies

               Many employers have voluntarily adopted non-dis-
               crimination policies that prohibit, among other
               things, discrimination in compensation on the
               basis of sexual orientation and/or marital status.

               In those situations when employers have a such an
               internal policy, an employee may contend that the
               denial of domestic partnership benefits is a
               violation of that policy.  See, e.g., Gay Teachers
               Assoc. v. Board of Ed. of the City of New York,
               N.Y.L.J., Aug. 23, 1991, at 21 (Moskowitz, J.).

               Employees bringing such a claim would have to
               prove that: the employers' internal employment
               policies are applicable and binding, and benefits
               are a form of compensation to which the employee
               is entitled.

               a.        In Newport News Shipbuilding & Dry Dock
                    Co. v. EEOC, 462 U.S. 669, 682 (1983), the
                    Supreme Court held that health insurance and
                    other fringe benefits are "compensation,
                    terms, conditions, or privileges of
                    employment."  The Court in that case found
                    that a health plan that provided more
                    generous pregnancy benefits to female
                    employees then to wives of male employees,
                    was unlawfully discriminatory.

          1.   Collective Bargaining

               Unions have begun to pressure employers to provide
               domestic partner benefits, particularly if their
               collective bargaining agreements contain non-dis-
               crimination clauses covering marital status and
               sexual orientation.

               a.        In 1981, District 65 UAW Writers,
                    Editorial and Clerical Workers Union
                    negotiated a compromise agreement with the
                    Village Voice, under which the newspaper's
                    unofficial policy of extending benefits to
                    unmarried straight couples was extended to
                    all employees.  Martha McDonald, Domestic

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 43---------------------------------------

                    Partner Benefits Changes, Business & Health
                    11, 11-12 (Oct. 1990).

               b.        In 1986 employees of the city of Santa
                    Cruz, represented by the Service Employee
                    International Union, brought the issue of
                    domestic partner benefits to the bargaining
                    table, and negotiated it into their
                    contracts. Santa Cruz Action Network, Volume
                    IX, No. 1 (1990).

          1.   Tax Law

               Unlike health benefits provided to married
               partners, which are not taxable, health benefits
               provided to domestic partners are in most
               instances taxable to the employee.  Although the
               IRS has not issued formal guidance on this issue,
               it has issued four private letter rulings reciting
               this principle.  See Priv. Ltr. Rulings 90-34-048,
               91-11-018, 91-09-060, 92-31-062.  Because domestic
               partner benefits are taxed, qualified employees
               might be reluctant to take advantage of the
               benefits when they are available.  One city found
               that the number of domestic partners choosing
               coverage under its health care plan dropped fifty
               percent when the city began withholding taxes on
               the imputed income attributable to the benefit.

               a.        Coverage:

                    Generally, benefits available to an
                    individual in connection with someone else's
                    employment are taxable to the employee.  A
                    significant exception to this rule is health
                    care coverage for spouses or dependents. 
                    Under current tax rules, domestic partners
                    generally would not qualify for this
                    exclusion.  Consequently, the employee will
                    be taxed on the fair market value of the
                    benefit.

                    An employee with a domestic partner might
                    qualify for the exclusion if he or she can
                    demonstrate that his or her domestic partner
                    is either a common law spouse under state law
                    or a dependent for tax purposes.

               a.        Other tax issues might arise if an
                    employer provides domestic partnership
                    benefits in the following contexts: medical
                    expense reimbursements, alternative health
                    plans such as cafeteria plans or flexible
                    spending accounts and COBRA.

     A.   Creating A Domestic Partner Benefits Plan


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          Because lesbians and gay men may not marry their
          partners, some employers have concluded that it is
          unfair to deny benefits to lesbians and gay employees
          who are involved in long-term, "marriage-like"
          relationships.

          Employers considering offering domestic partner
          benefits to their employees must determine: who will be
          eligible, what benefits will be offered, and how the
          benefits will be administered.

          1.   Who will be eligible

               a.        Opposite-Sex Partners

                    Most domestic partnership benefits plans
                    offer coverage to same-sex and opposite-sex
                    partners.  See, e.g.,  Plan for Ben & Jerry's
                    Homemade Inc., Levi Strauss & Co., City of
                    San Francisco, Ziff-Davis Publishing,
                    International Data Group, and Xerox Corp..

               a.        Same-sex partners

                    Some employers such as Home Box Office,
                    Milbank, Tweed, Hadley & McCloy, Lotus
                    Development Corp., Montefiore Medical Center,
                    The Walt Disney Company and Stanford
                    University, limit their plans to same-sex
                    partners only.

                    The most common reason given for this policy
                    is that opposite-sex partners have the option
                    to marry and receive spousal benefits, while
                    lesbians and gay men do not.

                    Another reason for limiting benefits to same-
                    sex partners is cost.  For example, while
                    Stanford University's task force recommended
                    extending benefits to opposite sex couples,
                    it acknowledged that if resources allowed for
                    an extension of benefits to only one of the
                    two groups, a stronger case existed for
                    benefits for same-sex than for opposite-sex
                    couples.

                    i.        The New York State Insurance
                         Department recently concluded that
                         extension of domestic partner benefits
                         to only same-sex couples would be
                         lawful.  In a letter date June 9, 1994,
                         the Department cited as a rational basis
                         for its conclusion of the fact that
                         heterosexual partners are not prevented
                         from receiving insurance benefits
                         through the normal channels of marriage.


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                         Additionally, the Department recognized
                         the cost of extending benefits to
                         opposite sex partners.  (Letter from
                         Donna Freireich, Deputy Superintendent
                         and General Counsel, State of New York
                         Insurance Department, to Joseph Bress,
                         Director, New York State Governor's
                         Office of Employee Relations of 6/9/94,
                         at 2-3.)

                    Nonetheless, heterosexual employees who are
                    in stable and committed relationships
                    arguably should receive benefits for their
                    partners for the same reasons that lesbian
                    and gay employees do.

                    In addition, unmarried opposite-sex couples
                    in benefit plans along with same-sex couples
                    avert charges of discrimination, and often
                    make the proposal more palatable to unions,
                    fellow employees and the public.

               a.        Children of partners

                    Many employers provide the same benefits to
                    children of the domestic partners of
                    employees as to children of spouses of
                    employees.

          1.   What benefits to offer

               The most significant benefit that can be offered
               to domestic partners is health insurance. However,
               many employers also extend other, less costly
               benefits, in addition to -- or in lieu of --
               health insurance.

               a.   Health Insurance:

                    i.        Large Employers

                    Because many insurance companies will not
                    provide coverage for domestic partners, large
                    employers that are self-insured often find it
                    easier to offer domestic partner benefits
                    than do small employers relying on outside
                    insurance.

                    Nevertheless, larger employers might have
                    trouble procuring stop-loss, minimum premiums
                    or other excess coverage, or coverage through
                    HMOs.  HMOs have taken a wait-and-see
                    attitude, to see if other carriers are
                    willing to provide coverage.  Linda M.
                    Laarman, Employer Health Coverage for
                    Domestic Partners--Identifying the Issues, 18
                    Employee Relations L.J. 567, 570 (1993)

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---------------------------------END PAGE 46---------------------------------------

                    (hereinafter "Laarman").

                    i.        Small employers

                    Small employers, which are typically not
                    self-insured, might have a more difficult
                    time obtaining coverage for domestic
                    partners, especially if their carrier engages
                    in individual underwriting (assessing the
                    health of each potentially insurable
                    individual).

                    Some small employers might opt to subsidize
                    the cost of individual policies purchased by
                    domestic partners--rather than adding them to
                    the existing plan. Laarman, supra, at 570-71.

                    Buying pools might allow small employers to
                    band together to purchase insurance thereby
                    decreasing risk and reducing cost.  Moreover,
                    if "community rating" becomes mandatory,
                    insurers will not be able to raise costs
                    based on the risk associated with one
                    individual.  Laarman, supra, at 571.

                    Over time the experience of most companies
                    has been that domestic partner coverage does
                    not add significantly to the cost of
                    providing benefits.  Hence, insurers may
                    become more willing to insure domestic
                    partners.

               a.        COBRA Benefits:

                    Even though no employer is required by law to
                    extend domestic partner benefits under COBRA,
                    some employers voluntarily choose to offer
                    COBRA-like benefits.  Several entertainment
                    companies, such as MCA, Inc., Viacom, Inc.,
                    Home Box Office and Warner Bros., have
                    constructed plans that provide continuation
                    of coverage to "spousal equivalents" and
                    their dependents upon the termination or
                    death of the employee.

               a.   Death/Bereavement Leave Policies:

                    In accordance with the policy behind
                    recognizing the family like nature of non-
                    married couples, extensions of death and/or
                    bereavement leave to employees in the event
                    of the death of a domestic partner, a parent
                    or child of a domestic partner, is a fairly
                    inexpensive method of acknowledging those
                    relationships.

                    Apple Computer, Inc., for example, provides

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 47---------------------------------------

                    medical and dental benefits to same-sex
                    partners only, but grants family leave and
                    bereavement benefits for both same- and
                    opposite-sex partners.

               a.        Family and Medical Leave:

                    Although the Family & Medical Leave Act of
                    1993, does not require that employers extend
                    leave to employees to care for their
                    unmarried domestic partners, (Interim Final
                    Regulations reprinted in Daily Lab. Rpt.
                    (BNA) Special Supplement at S-37 (June 4,
                    1993)), some employers grant family leave to
                    employees to care for their domestic partners
                    as well as the children of their partners.

          1.   How to Administer the Plan

               a.        Clearly Define Who is Covered

                    For example:

                    Two adults of the same sex [or two adults who
                    are not legally married] who have chosen to
                    share their lives in an intimate and
                    committed relationship, reside together and
                    share a mutual obligation of support for
                    basic necessities of life.

               a.        Establish a Process for Verifying the
                    Relationship

                    i.   An employer may require that employees
                    provide proof that (s)he lives with and is
                    financially interdependent with the person
                    for who domestic partnership benefits are
                    being claimed.

                    ii.  An employee may be asked to sign an
                    affirmation which states that the employee
                    and the domestic partner are:

                         (1)  not related by blood to a degree of
                         closeness that would prohibit legal
                         marriage;

                         (2)  mutually responsible for costs of
                         basic living expenses;

                         (3)  both at least the age of consent in
                         the state in which they reside;

                         (4)  in a committed relationship which
                         has been in existence for at least one
                         year,


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---------------------------------END PAGE 48---------------------------------------

                         (5)  residing together and intend to do
                         so permanently; and,

                         (6)  not married to anyone else.

                    iii. Documentation and Waiting Periods:

                         (1)  Registration

                         An employer may require that an employee
                         register as domestic partners with the
                         county or city clerk if applicable.

                         (1)  Waiting Period

                         An employer may require that benefits
                         for a domestic partner do not become
                         effective for 90 days or six months
                         following the application for benefits.

                         A waiting period is a very practical,
                         easily verifiable requirement, offering
                         no difficult problems of proof or
                         administrative inconvenience to either
                         employers or insurance companies.  It is
                         one of the most effective ways to combat
                         adverse selection--an employee will
                         usually not try to obtain benefits for a
                         sick friend or relative when he or she
                         would be forced to wait a significant
                         time before receiving coverage.  Of
                         course, a waiting period also means that
                         significant health needs of a bona fide
                         partner may go unmet.

               a.   Consider Tax Consequences

                    Employers should plan to withhold the fair
                    market value of the cost of the benefit to
                    the employee and comply with the tax code as
                    outline above.  See Section II(B)(6) supra.
     
                    iv.  Employers should consider whether any
                         process they establish for verification
                         is anymore burdensome for same-sex
                         couples than for marries couples.

          1.   Other Legal Considerations:

               a.        Homosexual sodomy is still illegal in
                    half the states.  Although there is no known
                    case, theoretically an employer could be held
                    liable for "aiding and abetting" illegal
                    cohabitation.  Linda M. Laarman, Employer
                    Health Coverage for Domestic Partners--
                    Identifying the Issues, 18 Employee Relations
                    L.J. 567, 578 (1993).

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 49---------------------------------------


               b.        Coverage of domestic partners might
                    create unintended consequences for the
                    employee in states such as California, where
                    palimony is a possibility.

               c.        Employers should carefully consider
                    whether it is wise to offer domestic
                    partnership benefits to only same-sex
                    partners.  It is possible that employees with
                    opposite-sex domestic partners could maintain
                    an action for marital status or sexual
                    orientation discrimination under state and
                    local ordinances.

I.   Employment Discrimination Based on Sexual Orientation

     A.        Introduction

          Sexual orientation discrimination law is one of the
          most rapidly growing and changing areas affecting
          employers.  A national gay rights bill is currently
          pending in Congress.  On the local level, the number of
          states, counties and cities with laws prohibiting such
          discrimination has multiplied rapidly in the last
          decade.

          The effects of these laws can be significant for
          employers and employees alike.  Employees have won
          substantial awards in sexual orientation discrimination
          cases, and employers have been forced to make
          substantial changes in their recruitment, hiring,
          education, and workplace conduct and policies.

     A.   Federal Law

          No federal law prohibits discrimination on the basis of
          sexual orientation.  Every circuit that has considered
          such cases under Title VII of the Civil Rights Act of
          1964, 42 U.S.C.  2000e et seq., has held that the
          Title VII does not prohibit such discrimination.

          1.   "Sex" Does Not Include Sexual Orientation

               The Civil Rights Act of 1964 was enacted primarily
               to bar discrimination on the basis of race.  There
               is little legislative history regarding the
               prohibition on discrimination on the basis of sex.

               Holloway v. Arthur Andersen & Co., 566 F.2d 659
               (9th Cir. 1977).  In the absence of legislative
               history courts have relied on the 1972 Amendments
               to Title VII and the fact that all attempts to
               amend the Act to include sexual orientation have
               failed, concluding that the "because of...sex"
               language in the Act was intended to benefit women
               and to refer only to gender.  Id. at 662-3

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
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               (construing 42 U.S.C.  2000e-2(a)(1), (2)(19)). 
               Consequently, courts have not interpreted "sex" as
               including sexual orientation.

               a.        DeSantis v. Pacific Tel. and Tel. Co.,
                    608 F.2d 327, 329-30 (9th Cir. 1979)  ("[W]e
                    conclude that Title VII's prohibition of
                    `sex' discrimination applies only to discrim-
                    ination on the basis of gender and should not
                    be judicially extended to include sexual
                    preference such as homosexuality") (footnotes
                    omitted).

               b.        Dillon v. Frank, 1992 U.S. App. LEXIS
                    766, *11-12, 58 Empl. Prac. Dec. (CCH) 
                    41332 (6th Cir. 1992) ("The circuits are
                    unanimous in holding that Title VII does not
                    proscribe discrimination based on sexual
                    activities or orientation," because only dis-
                    crimination "based on being male or female is
                    prohibited by Title VII").

               c.        Williamson v. A.G. Edwards & Sons, Inc.,
                    876 F.2d 69, 70 (8th Cir. 1989) ("Title VII
                    does not prohibit discrimination against
                    homosexuals"), cert. denied, 493 U.S. 1089
                    (1990).

               d.        Blum v. Gulf Oil Corp., 597 F.2d 936,
                    938 (5th Cir. 1979) ("Discharge for
                    homosexuality is not prohibited by Title VII
                    or Section 1981").

               e.        Kelley v. Vaughn, 760 F. Supp. 161, 163
                    (W.D. Mo. 1991) ("However, the term 'sex' as
                    it is used in the Act refers to gender, not
                    to sexual orientation.  Because homosexuality
                    pertains to sexual preference, and not to
                    gender, 'Title VII does not prohibit discrim-
                    ination against homosexuals'") (citations
                    omitted).

          1.        Other Arguments Under Title VII Rejected By
               the Courts

               A number of plaintiffs have attempted to borrow
               reasoning and arguments that have been successful
               in discrimination suits based on sex and race and
               apply those arguments to sexual orientation dis-
               crimination.  Plaintiffs have claimed that gay men
               are more numerous than lesbians, that they are
               more likely to be discovered, and therefore, that
               discrimination on the basis of sexual orientation
               has a disparate impact on men.  Plaintiffs also
               argued that by hiring women who prefer men as
               sexual partners while discriminating against men
               who prefer men as sexual partners, employers use

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               different criteria for men and women.  At least
               one plaintiff has argued that just as discrim-
               ination against employees because of the race of
               their friends may violate Title VII's proscription
               of race discrimination (see EEOC Dec. No. 71- 1902
               (1971), 1971 EEOC LEXIS 73), discriminating
               against employees because of the gender of their
               friends constitutes impermissible sex discrim-
               ination.  These arguments have so far been
               unsuccessful.  See, e.g., DeSantis v. Pacific Tel.
               and Tel. Co., 608 F.2d 327 (9th Cir. 1979).

          1.   Gay and Lesbian Civil Rights Bills

               There are currently two bills before Congress
               proposing to extend Title VII coverage to gay men
               and lesbians.  These identical bills were
               simultaneously introduced in the Senate and the
               House of Representatives.  See S. 2238, 103rd
               Cong., 2d Sess. (1994); H.R. 4636, 103rd Cong., 2d
               Sess (1994).

               a.        The proposed Employment Non-
                    Discrimination Act of 1994 ("the ENDA") would
                    extend most of the protections of Title VII
                    to individuals on the basis of sexual
                    orientation. S. 2238 and H.R. 4636.  The ENDA
                    is modeled on Title VII with similar
                    definitions, enforcement procedures, and
                    posting requirements.  The ENDA would be
                    administered by the Equal Employment
                    Opportunity Commission.

                    The ENDA prohibits discrimination in
                    employment or employment opportunities based
                    on lesbian, gay, bisexual, or heterosexual
                    orientation, real or perceived.  

                    While the ENDA would apply to private
                    employers and state and federal employees, it
                    would not apply to the military or religious
                    organizations.

                    Unlike Title VII, there is no "disparate
                    impact" claim available to a plaintiff under
                    the ENDA.  S. 2238  5.

                    The ENDA does not apply to the provision of
                    employee benefits to an individual for the
                    benefit of his or her partner, thus
                    precluding mandatory benefits to same-sex
                    couples.

                    The ENDA prohibits employers from adopting or
                    implementing quotas on the basis of sexual
                    orientation.  S. 2238  6.


------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
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               a.        Over the past two decades gay rights
                    advocates have repeatedly attempted to amend
                    Title VII of the Civil Rights Act of 1964 to
                    cover sexual orientation.  See, e.g., H.R.
                    5452, 94th Cong., 1st Sess. (1975); H.R.
                    1454, 97th Cong., 1st Sess. (1982).  None of
                    these attempts has succeeded, but the current
                    attempts seem likely to generate more
                    attention due to large support already
                    amassed in Congress in favor of the ENDA (29
                    Senators and 108 Representatives sponsored
                    the ENDA). 

                    In October 1995, President Clinton endorsed
                    the ENDA and became the first sitting
                    president to endorse a piece of major
                    legislation to secure equal rights for gay
                    men and lesbians.  See Steven A. Holmes,
                    Clinton Backs Bill to Protect Homosexuals
                    from Job Bias, N.Y. Times, Oct. 20, 1995, at
                    A1.

     A.        State, County and Municipal Laws

          1.        State and Local Laws Prohibiting Sexual
               Orientation Discrimination

               a.        Eight states and the District of
                    Columbia currently prohibit sexual
                    orientation discrimination in private and
                    public employment:  California, Cal. Lab.
                    Code  1101, 1102, 1102.1 (West 1993);
                    Connecticut, Conn. Gen. Stat.  46a-60, 46a-
                    81a (1992); Hawaii, Haw. Rev. Stat.  378 et
                    seq. (1992); Massachusetts, Mass. Gen. L. ch.
                    151b,  3(6), 4 (1989); Minnesota, Minn.
                    Stat.  363.01; New Jersey, N.J. Rev. Stat.
                     10:5-4, 10:5-5, 10:5-12 (1992); Vermont,
                    Vt. Stat. Ann. tit. 21,  495(a) (1992);
                    Wisconsin, Wis. Stat. Ann.  111.31-.395
                    (West 1988); and District of Columbia, D.C.
                    Code Ann.  1-2501, 1-2503, 1-2512 (1981).

               b.        In at least ten other states sexual
                    orientation employment discrimination bills
                    are currently pending:  Illinois, Maine, New
                    Hampshire, New Mexico, New York, Oregon,
                    Rhode Island, Texas, Washington, and West
                    Virginia.

               c.        Additionally, eleven states prohibit
                    discrimination based on sexual orientation in
                    public employment only:  Illinois, Louisiana,
                    Maryland, Michigan, New Mexico, New York,
                    Ohio, Pennsylvania, Rhode Island, and
                    Washington.


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               d.        Over the past decade, numerous cities
                    and counties also have passed laws
                    prohibiting discrimination by private
                    employers on the basis of sexual orientation.

                    As of April 1993, there were at least 115
                    such laws including Atlanta, Ga., Ordinances
                    86-0-0190 & 86-0-0308; Boston, Mass., Code
                    Tit. 12, Ch. 40; Chicago, Ill., Mun. Code,
                    Ch. 199 et seq.; Philadelphia, Pa., Fair
                    Prac. Ordinance, Ch. 9-1100 (1982); New York
                    City, N.Y., N.Y.C. Admin. Code  8-102(20)
                    (1991); Los Angeles, Cal., Code, Ch. IV, Mun.
                    Code (1979); and San Francisco, Cal., Code,
                    Art. 33  3301 (1992).

               e.   In October 1995, the United States Supreme
                    Court heard oral arguments in Romer v. Evans.

                    At issue in Romer is a Colorado
                    constitutional provision adopted by popular
                    referendum that bars all state and local
                    government entities from providing legal
                    protection against discrimination based on
                    gay, lesbian or bisexual identity.  Similar
                    referendums have been offered in other states
                    and localities, usually under the rubric of
                    denying "special rights" to gays and
                    lesbians.  The Supreme Court's decision in
                    Romer will have an effect on several pending
                    cases and referendums.  See, e.g., Equality
                    Found. v. City of Cincinnati, 54 F.3d 261
                    (6th Cir. 1995) petition for cert. filed
                    (Aug. 10, 1995).

          1.        Coverage

               a.   In General

                    State statutes barring sexual orientation
                    discrimination in private employment
                    generally prohibit the consideration of
                    sexual orientation in any employment decision
                    including hiring, barring or discharging from
                    employment, compensation, and terms,
                    conditions, or privileges of employment. 
                    See, e.g., Conn. Gen. Stat.  46a-81c.

                    Most state statutes also prohibit employers
                    from advertising for employees on the basis
                    of sexual orientation and from asking job
                    applicants questions regarding their sexual
                    orientation.  See, e.g., N.J. Rev. Stat.
                     10:5-12.

               a.        Definitions of Protected Class


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                    Definitions of the protected class vary, but
                    they are generally broad.  Most states define
                    the prohibited discrimination as encompassing
                    both actual and perceived homosexuality.

                    Therefore, it is no defense to an allegation
                    of sexual orientation discrimination to show
                    that the plaintiff is not actually gay.  See,
                    e.g., Cal. Lab. Code  1102.1.

                    Several states explicitly include
                    heterosexuality and bisexuality in the
                    protected class, making it illegal to prefer
                    homosexuals.  See, e.g., D.C. Code  1-
                    2502(28).

                    Minnesota, for example, has expanded the
                    protected class to include anyone "having or
                    being perceived as having a self-image or
                    identity not traditionally associated with
                    one's biological maleness or femaleness." 
                    Minn. Stat.  363.01.

               a.        Religious Groups

                    Most states exempt religious groups from
                    sexual orientation employment discrimination
                    laws.  See, e.g., Wis. Stat. Ann.
                     111.337(2).  (Note that in some states the
                    exemption applies to all kinds of discrim-
                    ination, not only sexual orientation.  See,
                    e.g., Mass. Gen. L. ch. 151B,  3(6) and 4.

                    i.   Definitions

                    The standard definition includes any
                    "religious or denominational institution or
                    organization, or any organization operated
                    for charitable or educational purposes, which
                    is operated, supervised, or controlled by or
                    in connection with a religious organization."
                    Vt. Stat. Ann. tit. 21,  495(a)(7); see also
                    Haw. Rev. Stat.  378-3(5).  The groups
                    exempted vary slightly from state to state,
                    however, and the definitions tend to be vague
                    and open to interpretation.

                    i.   Effect of Exemption

                    Generally, employers meeting the criteria for
                    the religious exemption may limit employment
                    both to members of their own religion and to
                    people whose employment is in accord with the
                    tenets of the religion.  For example, the
                    Massachusetts Fair Employment Practice Act
                    allows religious employers to give preference
                    to employees of the same religion and to take

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                    employment actions "which are calculated by
                    such organization to promote the religious
                    principles for which it is established or
                    maintained."  Mass. Gen. L. ch. 151B,  1.

                    These statutes could be construed to allow
                    religious employers whose religion disallows
                    homosexuality to refuse to hire people on the
                    basis of sexual orientation.

                    i.        First Amendment Concerns

                    The First Amendment may require that
                    religious organizations be exempted from
                    sexual orientation discrimination laws even
                    where they are not specifically exempted by
                    state statute.

                    Courts analyzing such claims must first
                    assess the extent to which the law imposes a
                    burden upon the group's practice of religion
                    by determining whether the group's objection
                    to the law is truly religious, whether it is
                    central to the religion, and whether the
                    beliefs are sincere.  Shelley Wessels, The
                    Collision of Religious Exercise and
                    Governmental Nondiscrimination Policies, 41
                    Stan. L. Rev. 1201, 1204-1205 (May 1989). 
                    The court must then decide whether the
                    government's interest in antidiscrimination
                    is a compelling interest that overrides the
                    group's interest and, if so, whether the law
                    is the least restrictive means to accomplish
                    the state's interest.  Id. at 1205.

                    Since sexual orientation discrimination laws
                    are relatively new, there is little case law
                    specifically concerning the conflict between
                    the First Amendment and sexual orientation
                    discrimination laws.  In several old cases,
                    the right of a religious organization to
                    freedom of religion was found to outweigh any
                    interests of the state or of gay male and
                    lesbian plaintiffs.

                         1)   In an early case, a California
                         court found that forcing a church to
                         violate its beliefs by hiring a gay
                         organist would be a substantial burden
                         on its right to free exercise of
                         religion.  Walker v. First Orthodox
                         Presbyterian Church of San Francisco, 22
                         Fair Empl. Prac. Cas. (BNA) 762 (Cal.
                         Super. Ct. 1980).  The court held that
                         the state's interest in protecting gay
                         men and lesbians against discrimination
                         did not outweigh the church's First

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                         Amendment interest and thus the San
                         Francisco Police Code which prohibited
                         discrimination in employment on the
                         basis of sexual orientation did not
                         apply to the church.  Id.

                         2)3) Several years before Massachusetts
                         enacted its statute prohibiting discrim-
                         ination on the basis of sexual
                         orientation, a state court found that
                         the right of the Christian Science
                         Church to free exercise of religion
                         outweighed any rights that a lesbian
                         employee might have.  Madsen v. Erwin,
                         395 Mass. 715, 481 N.E.2d 1160 (1985).

                         In light of recent judicial and
                         legislative support for civil rights on
                         the basis of sexual orientation,
                         however, courts may find that the state
                         has a more compelling interest in
                         protecting the rights of gay men and
                         lesbians.  Several recent cases support
                         this prediction.

                         (1)  In 1987 the D.C. Court of Appeals
                         found that the government's compelling
                         interest in eradicating sexual
                         orientation discrimination includes "the
                         fostering of individual dignity, the
                         creation of a climate and environment in
                         which each individual can utilize his or
                         her potential to contribute to and
                         benefit from society, and equal
                         protection of the life, liberty and
                         property that the Founding Fathers
                         guaranteed to us all."  Gay Rights
                         Coalition of Georgetown Univ. Law Ctr.
                         v. Georgetown Univ., 536 A.2d 1, 37
                         (D.C. App. 1987).

                         The court noted that the D.C. Council
                         clearly regarded its interest in the
                         matter as compelling and that sexual
                         orientation has "most or all of the
                         characteristics that have persuaded the
                         Supreme Court to apply strict or
                         heightened constitutional scrutiny to
                         legislative classifications under the
                         Equal Protection Clause."  Id. at 36.

                         The court held that this compelling
                         interest outweighed any slight burden
                         Georgetown University would suffer in
                         giving a group of gay law students equal
                         access to benefits that it provided to
                         all student groups.

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                         (1)  In 1992 a federal court in New
                         Jersey weighed the interests of a group
                         of churches who claimed that New
                         Jersey's Law Against Discrimination
                         infringed on their First Amendment
                         rights against the interests of New
                         Jersey in protecting gay men and
                         lesbians from discrimination. 
                         Presbytery v. Florio, 60 Fair Empl.
                         Prac. Cas. (BNA) 805 (D.N.J.), aff'd
                         without op., 983 F.2d 1052 (3d Cir.
                         1992).

                         In denying plaintiffs preliminary
                         injunction, the court found that it
                         should be deferential "to the
                         legislature's efforts to establish the
                         public's interest in protecting persons
                         of a minority sexual orientation," and
                         it warned of the harm which might be
                         created if the state's exercise of its
                         police power was impeded.  60 Fair Empl.
                         Prac. Cas. at 808.
     
                         In recent developments in this case, the
                         District Court dismissed plaintiffs'
                         case finding it was not ripe, based on
                         the state's affidavit that it would not
                         enforce the Act against the
                         institutional plaintiffs as churches or
                         the pastor plaintiff in his capacity as
                         a clergyman.  The Third Circuit affirmed
                         the dismissal against the institutional
                         plaintiffs as not ripe, but reversed as
                         to the individual pastor since the state
                         has expressly refused to offer any
                         assurances it will not prosecute the
                         pastor if he violates the Act outside
                         his church.  Presbytery of N.J. of
                         Orthodox Church v. Florio, 40 F.3d 1454
                         (3rd Cir. 1994).

                         (1)  A California appellate court,
                         however, recently upheld a Boy Scout
                         troop's denial of a homosexual applicant
                         to become a scoutmaster based on the
                         organization's belief that homosexuality
                         is unclean and immoral.  Curran v. Mount
                         Diablo Council of the Boy Scouts, 23
                         Cal. App. 4th 1307, 29 Cal. Rptr. 2d 58
                         (1994), review granted, 1994 Cal. LEXIS
                         3108 (June 2, 1994).  The appellate
                         court reversed the trial court's
                         determination that the Boy Scouts were a
                         business organization for purposes of
                         the operative Unruh Act on civil rights.

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                         23 Cal. App. 4th at 1341-1345.  

                         The court acknowledged the
                         organization's firm stand against
                         homosexuality and recognized the
                         organization's First Amendment right to
                         associate based on that stand.  Id. at
                         1324-1329.  Forcing the Boy Scouts to
                         accept an applicant whose homosexual
                         status is openly contrary to a basic
                         tenet of the organization would violate
                         the organization's constitutional right
                         to choose the members of its
                         association.  Id. at 1326-1329.  The
                         California Supreme Court has granted
                         review of this case.


          1.        Analysis of Selected State and Local Statutes

               a.        New York

                    The New York State Human Rights Law does not
                    prohibit sexual orientation discrimination. 
                    Under 21 v. New York City, 65 N.Y.2d 344, 492
                    N.Y.S.2d 522 (1985); see also Petri v. Bank
                    of New York Inc., 153 Misc. 2d 426, 582
                    N.Y.S.2d 608, 610 (Sup. Ct. N.Y. County
                    1992).

                    However a bill prohibiting sexual orientation
                    discrimination in private employment in New
                    York is pending in the state legislature. 
                    New York Assembly Passes Sexual Orientation
                    Bill, Daily Lab. Rep. (BNA) No. 21,
                    February 3, 1993, A-20.

                    Moreover, because many cities and counties in
                    New York have such laws, approximately
                    seventy percent of New York State residents
                    live in jurisdictions where sexual
                    orientation discrimination is outlawed. 
                    Lesbian/Gay Law Notes, January 1993.

                    i.   New York City's Antidiscrimination Law

                    New York City has a sexual orientation
                    antidiscrimination law resembling many state
                    antidiscrimination laws.  N.Y. City Admin.
                    Code  8-107 (1986).  It contains an
                    exemption for religious employers and
                    employers with fewer than four employees. 
                    N.Y. City Admin. Code  8-107.12, 8-107.16
                    (Supp. 1993).  It also states that it does
                    not permit or require employers to establish
                    quotas or inquire into the sexual orientation

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                    of employees or job applicants.  N.Y. City
                    Admin. Code  8-107.16 (Supp. 1993).

                         (1)  Discrimination Based on
                              Transsexuality Prohibited

                         While New York City's antidiscrimination
                         law does not include "transsexuality" in
                         its definition of "sexual orientation," 
                         the creation of a hostile work
                         environment as a result of derogatory
                         comments relating to the fact that, as a
                         result of an operation an employee
                         changed his or her sexual status,
                         creates discrimination based on "sex" in
                         violation of N.Y. City Admin. Code  8-
                         107.  Maffei v. Kolaeton Industry, Inc.,
                         626 N.Y.S.2d 391 (1995).

               a.   California

                    Although gay men and lesbians were not
                    formally protected by legislation in
                    California, beginning in 1979 the courts held
                    that gay men and lesbians were entitled to
                    certain protection under California law.

                    i.   The first California case holding that
                    gay men and lesbians are protected from dis-
                    crimination was Gay Law Students Ass'n v.
                    Pacific Tel. & Tel. Co., 24 Cal. 3d 458, 595
                    P.2d 592, 156 Cal. Rptr. 14 (1979).  The
                    court held that Sections 1101 and 1102 of the
                    Labor Code, which bans employers from
                    controlling or limiting the political
                    activities or affiliations of their
                    employees, extended to gay men and lesbians. 
                    Cal. Lab. Code  1101, 1102.

                    The court reasoned that "the struggle of the
                    homosexual community for equal rights,
                    particularly in the field of employment, must
                    be recognized as political activity," and
                    that any policy that penalizes people who are
                    openly gay violates the Labor Code.  Gay Law
                    Students Ass'n, 24 Cal. 3d at 488, 595 P.2d
                    at 610, 156 Cal. Rptr. at 32-33.  The
                    defendants' policy of discriminating "in
                    particular against persons who identify
                    themselves as homosexual, who defend
                    homosexuality, or who are identified with
                    activist homosexual organizations," the court
                    found, was such a policy.  24 Cal. 3d at 488.

                    The California Attorney General later
                    extended this holding and found that Sections
                    1101 and 1102 of the Labor Code prohibit dis-

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                    crimination in employment against employees
                    on the basis of their sexual orientation.  69
                    Op. Att'y Gen. 80 (1986).
                    The analysis utilized in Gay Law Students
                    Ass'n has been followed in a number of cases.

                         (1)  Shell Oil Company fired Jeffrey
                         Collins after discovering a memo that he
                         had printed on a company computer pres-
                         cribing safe sex procedures for gay men
                         to follow at a private party.  Collins
                         v. Shell Oil Co., 1991 Cal. App. LEXIS
                         783, 56 Fair Empl. Prac. Cas. (BNA) 440
                         (Cal. Super. Ct., App. Dep't 1991).  The
                         court found that in the context of the
                         AIDS crisis in the San Francisco area at
                         the time Collins' memo was printed, his
                         action was a political activity
                         protected under Sections 1101 and 1102
                         of the Labor Code and, therefore, Shell
                         Oil could not dismiss him for writing
                         the memo, even if it were entitled to do
                         so under his employment contract.

                         The court awarded Collins $2,000,000 in
                         punitive damages for his intentional
                         infliction of emotional distress claim,
                         $2,523,229 in economic damages on his
                         contract causes of action, and $800,000
                         in compensatory damages under his tort
                         causes of action. 

                         (1)  In Smedley v. Capps, Staples, Ward,
                         Hastings & Dodson, 820 F. Supp. 1227
                         (N.D. Cal. 1993), the law firm of Capps,
                         Staples, Ward, Hastings and Dodson fired
                         plaintiff after she was quoted in a
                         newspaper article as saying that "being
                         out" at the office would help other
                         lesbian attorneys fight discrimination. 
                         Smedley claimed that her supervisor had
                         previously instructed her not to discuss
                         her sexual orientation at the firm's
                         social events.

                         Applying Sections 1101 and 1102 of the
                         California Labor Code, a federal
                         district judge refused to grant summary
                         judgment to the plaintiff, ruling that
                         issues of fact remained regarding the
                         defendant's policy, the reasons for its
                         termination of plaintiff, and whether
                         its actions violated the Labor Code.

                         Although not ruling definitively on the
                         issues in this case, the court
                         preliminarily explored the merits of the

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                         claims.  It stated that preventing the
                         plaintiff from discussing gay rights
                         with other employees or ordering her to
                         limit her activities in the gay
                         community outside of the office might
                         well constitute violations of Labor Code
                         Sections 1101 and 1102.  Id. at 1229-
                         1230.  The court was skeptical, however,
                         whether conversations regarding
                         lesbianism with clients at the firm's
                         social events were protected political
                         activities.

                    i.   State Legislative Developments

                    In 1992, the California legislature enacted a
                    bill prohibiting sexual orientation discrim-
                    ination in private employment.  Cal. Lab.
                    Code  1102.1 (effective Jan. 1, 1993).

                    The law exempts religious employers and
                    employers with fewer than five employees from
                    its prohibitions.  It explicitly states that
                    it does not invalidate any marital status
                    classifications that are otherwise valid,
                    does not supersede any existing rights that
                    employers have to base their decisions on
                    illegal conduct by employees, and does not
                    require or allow the use of quotas.  Id.

                    Although this law is too recent to have been
                    interpreted widely by the courts, but there
                    have already been at least five cases filed
                    under it.  See, Five Lawsuits Filed to Test
                    New California Gay Rights Law, Daily Lab.
                    Rep. (BNA) No. 4, Jan. 7, 1993, A-6:

                         (1)  William Ballou has claimed that he
                         was called "faggot bitch," instructed to
                         harass apparently gay customers, and
                         told to fire a gay employee.  He was
                         subsequently fired himself.  Ballou v.
                         Callendar, No. 710477-2 (Cal. Super.
                         Ct., filed Jan. 4, 1993).

                         (2)  Joe Magnano has claimed he was
                         fired after one manager told him to
                         leave the company because if he caught
                         AIDS, it would be very expensive for the
                         company and another manager said he
                         could not work with homosexuals. 
                         Magnano v. Brown & Haley Co., No. 948424
                         (Cal. Super. Ct., filed Jan. 4, 1993).

                    Although not binding, the California Labor
                    Commissioner has stated in a clarifying
                    letter that the law is not limited to

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                    protecting individuals who are in fact gay. 
                    It also protects those gay men and lesbians
                    who are perceived as straight and those
                    straight individuals who are perceived as
                    being gay.

                    A plaintiff must first exhaust all available
                    administrative remedies before bringing an
                    action for discrimination based on sexual
                    orientation under Lab. Code  1101, 1102 and
                    1102.1.  Liebert v. Transworld Systems, Inc.,
                    32 Cal.App.4th 1693, 1699 (1995).

                    i.   Local Legislative Developments

                    Many cities and counties in California have
                    enacted local laws prohibiting sexual
                    orientation discrimination in private
                    employment.  A state court recently found
                    that these laws are preempted by the Fair
                    Employment and Housing Act, (FEHA), Cal.
                    Gov't Code  12900 et seq., which regulates
                    discrimination in private employment. 
                    Delaney v. Superior Fast Freight, 14 Cal.
                    App. 4th 590, 18 Cal. Rptr. 2d 33 (1993).

                    Although the FEHA does not bar sexual
                    orientation discrimination, plaintiffs who
                    would previously have sought a remedy under
                    city and county laws can now turn to Section
                    1102.1 of the Labor Code.  The Delaney court
                    stressed that it was important to have a
                    uniform system of antidiscrimination law
                    throughout the state.

                    Plaintiff's attorneys have argued, however,
                    that local laws provide remedies such as
                    attorneys' fees and punitive damages not
                    available under the Labor Code and,
                    therefore, pre-emption is disadvantageous. 
                    California Gay Rights Ordinances Pre-empted
                    by State Law, Court Rules, Daily Lab. Rep.
                    (BNA) No. 61, Apr. 1, 1993, C-1.

                    i.   Privacy Cause of Action

                    Employers who ask employees questions
                    regarding sexual orientation may risk being
                    sued on the basis of the employee's for their
                    right to privacy under California law. 
                    Soroka v. Dayton Hudson Corp., 18 Cal. App.
                    4th 1200, 1 Cal. Rptr. 2d 77 (1991), review
                    granted, 4 Cal. Rptr. 2d 180 (Cal. 1992),
                    review dismissed, 24 Cal. Rptr. 2d 587 (Cal.
                    1993).  In Soroka, the plaintiffs challenged
                    the use of the Psychscreen employment
                    application test which included questions

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                    designed to reveal the applicant's sexual
                    orientation.

                    Questions included:  "I am very strongly
                    attracted by members of my own sex....I have
                    often wished I were a girl.  (Or if you are a
                    girl) I have never been sorry that I am a
                    girl....I have never indulged in any unusual
                    sex practices....I am worried about sex
                    matters."  13 Cal.App.4th at 197, 1
                    Cal.Rptr.2d at 82.

                    The employer asserted that the test measured
                    emotional fitness and that employee quality
                    improved after it began using the test.

                    The Court of Appeals held that this assertion
                    was inadequate to show either a compelling
                    interest or the necessary nexus between the
                    employee's duties and the invasion of privacy
                    and ruled that the practice of asking the
                    questions of this sort violated Labor Code
                    Sections 1101 and 1102.  Id.

                    In July 1993, the employer agreed to pay over
                    two million dollars to settle the case.

                    i.   Wrongful Discharge in Violation of
                    Public Policy

                    In addition to the protections under Lab.
                    Code  1101, 1102 and 1102.1, a California
                    court of appeals has found a non-statutory,
                    common law claim sounding in tort for a
                    violation of a fundamental public policy for
                    discrimination based on sexual orientation.
                    Liebert v. Transworld Systems, Inc., 32
                    Cal.App.4th 1693, 1703-04 (1995).

               a.        District of Columbia

                    The District of Columbia banned sexual
                    orientation discrimination in private
                    employment in 1977.  D.C. Code Ann.  1-2501
                    et seq.  The D.C. Human Rights Act is a
                    fairly standard act with the customary
                    exemption for religious employers.  (See D.C.
                    Code Ann.  1-2503(b).  There are, however,
                    several distinct features in the D.C. law.

                    i.   Outlaws Preference for Homosexuals

                    The D.C. Human Rights Act defines sexual
                    orientation as "male or female homosexuality,
                    heterosexuality and bisexuality, by
                    preference or practice."  D.C. Code Ann.  1-
                    2502(28).  Consequently, it bars both dis-

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                    crimination against and preferential
                    treatment for homosexuals.

                         (1)  In a recent case interpreting this
                         provision, a nurse at Howard University
                         Hospital claimed that she was fired
                         because she complained of a hostile work
                         environment fostered by lesbian co-
                         workers and supervisors.  Green v.
                         Howard University, No. 91-CA04194 (D.C.
                         Super. Ct. Dec. 4, 1992).  

                         While a jury accepted her contention and
                         awarded her $140,000, the Court of
                         Appeals reversed.  In Howard University
                         v. Green, 652 A.2d 41 (1994), the
                         District of Columbia Court of Appeals
                         found there was nothing in the record to
                         suggest that the University was alerted
                         that plaintiff actually complained of
                         sexual orientation discrimination.  In
                         addition, the court noted in a footnote
                         that "although heterosexuals are and
                         should be covered [by D.C.'s Human
                         Rights Act], the main purpose of the
                         sexual orientation provision was to
                         ensure that homosexuals enjoy equal
                         rights previously denied to them."  Id.
                         at 49 n. 12.

                         The jury, accepting her contention,
                         awarded her $140,000 and ordered Howard
                         University either to reinstate her or to
                         offer her an equivalent position.  Court
                         Sustains Jury Award for Alleged Lesbian
                         Conspiracy to Fire Heterosexual, 1993
                         Daily Lab. Rep. (BNA) No. 3, Jan. 6,
                         1993, A-6.  

                    i.   Prohibits Unintentional Discrimination

                    The D.C. statute provides that "[a]ny
                    practice which has the effect or consequence
                    of violating any of the provisions of this
                    chapter shall be deemed to be an unlawful
                    discriminatory practice."  D.C. Code Ann.
                     1-2532.

                    The D.C. Court of Appeals has interpreted
                    this provision as prohibiting unintentional
                    discrimination that has a disproportionate
                    impact on a protected class and cannot be
                    justified for a nondiscriminatory reason. 
                    Gay Rights Coalition of Georgetown Univ. Law 
                    Ctr. v. Georgetown Univ., 536 A.2d 1, 29
                    (D.C.App. 1987).  The statute thus
                    incorporates the disparate impact analysis

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                    established by the Supreme Court in Griggs v.
                    Duke Power Co., 401 U.S. 424 (1971).

                    i.        Transsexuality Not Protected

                    D.C.'s Human Rights Act does not prohibit
                    discrimination based on an individual's
                    status as a transsexual, because
                    "transsexuality" is not included in the Act's
                    definition of "sex."  Underwood v. Archer
                    Management Services, Inc., 857 F.Supp. 96, 98
                    (D.D.C. 1994).

               a.        Miscellaneous State Cases

                    i.  Pennsylvania

                    In an usual case in Pennsylvania, DeMuth v.
                    Miller, 652 A.2d 891 (Pa. Super. Ct. 1995),
                    an employer filed suit against a former
                    employee for violating a covenant not to
                    compete clause in the employee's contract. 
                    The covenant was triggered when the employee
                    was fired for cause: being a homosexual. 
                    There was no dispute that the employee was
                    fired because he was gay.  The superior court
                    of Pennsylvania affirmed the jury verdict in
                    favor of the employer.  The court avoided the
                    question whether it was enforcing contractual
                    "private" discrimination, by holding that the
                    money damages awarded the employer were for
                    violation of the non-compete clause, and not
                    because the defendant was gay.  The court
                    also held that the non-compete clause did not
                    violate policy because discrimination based
                    on sexual orientation is "legal" in
                    Pennsylvania.

                    Demuth raises the question whether court
                    enforcement of private contracts that
                    facially discriminate against gay men and
                    lesbians constitutes state action for
                    constitutional analysis.  See Shelly v.
                    Kraemer, 334 U.S. 1 (1948) (judicial
                    enforcement of private contracts, where such
                    enforcement furthers private discrimination,
                    constitutes state action and may result in a
                    denial of equal protection).

                    i.   Minnesota
          
                    In Hanke v. Safari Hair Adventure, 512 N.W.2d
                    614 (Minn. App. 1994), the court held that
                    harassment based on an employee's sexual
                    orientation provides an employee with good
                    cause to quit if the harassment creates an
                    offensive working environment and the

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                    employer knows or should know of the
                    harassment, but fails to take timely and
                    appropriate action.  Plaintiff, therefore,
                    was not disqualified from receiving
                    unemployment compensation benefits.

     A.   Remedies Under Other Legal Theories

          In addition to Title VII and state and local antidis-
          crimination laws, there are potential remedies
          available to gay men and lesbians dismissed by private
          employers in jurisdictions recognizing theories of
          dismissals which contravene public policy and implied
          contractual obligations.

          1.   Public Policy Violation

               Courts have found that certain dismissals are
               against public policy and thus subject employers
               to potential liability.  Sexual Orientation and
               the Law, supra, at 1577.  They are most likely to
               do so where the public policy is contained in a
               specific statute.  Id.  It is possible that courts
               too will find that dismissals of gay men and
               lesbians violate a public policy favoring privacy,
               particularly where the right to privacy is
               contained in the state constitution.  Id.

          1.   Implied Contractual Provisions

               Courts have found that nondiscrimination
               statements in employee handbooks create implied
               contractual provisions with which employers must
               comply.

               As more employers develop and disseminate nondis-
               crimination policies, this is an increasingly
               important area.  A recent study of members of the
               Society for Human Resource Management found that
               sixty-three percent of employers had policies
               regarding nondiscrimination on the basis of sexual
               orientation, half of which were written. 
               Lesbian/Gay Law Notes at 26 (April 1993).

               In one reported case involving an employee who was
               dismissed for his homosexuality, an individual
               contract claim was rejected by the Fifth Circuit
               based on Texas law.  Joachim v. AT&T Info. Sys.,
               793 F.2d 113 (5th Cir. 1986).  However, Texas law
               has subsequently changed so it is possible that
               the Fifth Circuit would decide the same claim
               differently today.  Sexual Orientation and the
               Law, supra, at 1578 n.156.

     A.   Public Employees:  Constitutional Standards

          Because their employer is the government, public

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          employees have constitutional protections unavailable
          to private employees, including the rights to due
          process and equal protection under the Fifth and
          Fourteenth Amendments and the right to freedom of
          expression under the First Amendment.  These
          protections may be overcome, however, by other
          governmental interests.

          1.   Due Process

               a.   Procedural Due Process

                    When government employees have a property
                    interest in their jobs or when the dismissal
                    violates a protected liberty interest,
                    government employees cannot be dismissed from
                    their jobs without due process.  Perry v.
                    Sindermann, 408 U.S. 593, 599 (1972); see
                    also Sexual Orientation and the Law, supra,
                    at 1574.

                    i.   Property Interest

                    A property interest exists when "rules and
                    understandings [officially] promulgated and
                    fostered [might create a] legitimate claim of
                    entitlement to continued employment."  Perry
                    v. Sindermann, 408 U.S. at 602.  In jobs
                    where government regulations state that
                    homosexuality is a ground for dismissal, gay
                    male or lesbian employees are often unable to
                    show an expectation of continued employment,
                    and thus a property interest.  See, e.g.,
                    Beller v. Middendorf, 632 F.2d 788, 805 (9th
                    Cir. 1980) (citing Berg v. Claytor, 436
                    F. Supp. 76, 81 (D.D.C. 1977), vacated, 591
                    F.2d 849 (D.C. Cir. 1978)) ("Plaintiff has
                    admitted to having performed homosexual acts
                    while in the Service.  Having admitted there
                    was cause for dismissal, plaintiff's
                    expectation of continued employment has been
                    extinguished.  Thus he had no property
                    interest...."), cert. denied, 454 U.S. 855
                    (1981); Rich v. Secretary of the Army, 735
                    F.2d 1220, 1226 (10th Cir. 1984); Doe v.
                    Gates, 981 F.2d 1316, 1320 (D.C. Cir. 1993).

                    When a governmental employer cannot establish
                    a clear policy against employing homosexuals,
                    however, plaintiffs who can point to evidence
                    creating an expectation of continued
                    employment may prevail.  For example, a gay
                    mailroom employee of the FBI was able to show
                    that he had a reasonable expectation of
                    continuing his employment as long as his work
                    remained satisfactory.  Ashton v. Civiletti,
                    613 F.2d 923, 928 (D.C. Cir. 1979).

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                    i.   Liberty Interest

                    A liberty interest is implicated if a
                    dismissal seriously damages an individual's
                    standing or associations in his/her community
                    or impose a stigma that would foreclose
                    his/her ability to take advantage of other
                    employment opportunities.  

                    The issue arises in cases where gay men and
                    lesbians are "outed" by their former
                    employers or where they are fired on the
                    basis of their sexual orientation in such a
                    way that they are unattractive to future
                    employers.  See, e.g., Beller, 632 F.2d at
                    806 (plaintiffs discharged from the Army on
                    account of their sexual orientation asserted
                    that they received the stigma of "unfitness"
                    for retention, and that permanent Navy files
                    contained the reason for their discharge);
                    Rich, 735 F.2d at 1226 (plaintiff who was
                    honorably discharged from the Army on the
                    basis of his sexual orientation and
                    fraudulent entry, claimed that the Army's
                    dissemination of information precluded him
                    from obtaining unemployment benefits and
                    civilian employment).

                    Courts have rejected plaintiffs' assertions
                    that their liberty interests have been
                    violated in the course of dismissals for
                    homosexuality on several grounds.  First,
                    they have rejected the contention that the
                    government actually made the employee's
                    sexual orientation public, finding that the
                    plaintiffs admitted their homosexuality
                    themselves or consented to the employer's
                    release of the information.  Beller, 632 F.2d
                    at 807 (stressing that plaintiffs admitted to
                    performing homosexual acts); Rich, 735 F.2d
                    at 1227 (emphasizing that plaintiff
                    publicized his sexual orientation and
                    consented to the Army's release of
                    information); Childers v. Dallas Police
                    Dep't, 513 F. Supp. 134, 145 (N.D. Tex. 1981)
                    (any harm that plaintiff suffered came from
                    his own admission of his sexual orientation).

                    Secondly, when plaintiffs are discharged
                    honorably or the reasons for the discharge
                    were kept secret, courts conclude that the
                    plaintiffs were not actually damaged.  Rich,
                    735 F.2d at 1226, n.5 (liberty interest not
                    violated by an honorable discharge from the
                    Army); Beller, 632 F.2d at 806-07 (liberty
                    interest not violated where reasons for

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                    honorable discharge were not indicated on
                    papers likely to be examined by future
                    employers).

               a.   Substantive Due Process

                    i.  Arbitrary and Capricious

                    Some courts have ruled that employees may not
                    be dismissed from public employment on the
                    grounds of homosexuality where there is no
                    "nexus" between homosexuality and suitability
                    for employment.  See, e.g., Norton v. Macy,
                    417 F.2d 1161, 1164 (D.C. Cir. 1969);
                    benShalom v. Secretary of Army, 489 F. Supp.
                    964, 976-77 (E.D. Wis. 1980).  Such
                    dismissals, the courts find, are arbitrary
                    and capricious and thus violate substantive
                    due process.

                    i.  Privacy

                    Plaintiffs have also invoked the protections
                    of substantive due process by charging that
                    the homosexual conduct prohibited by military
                    or other government regulations is protected
                    as an aspect of the fundamental right of
                    privacy.  See, e.g., Beller, 632 F.2d at 807.

                    Courts have often rejected these arguments,
                    concluding that even if homosexual conduct is
                    protected, important governmental interests
                    outweigh the protections.  See also Beller,
                    632 F.2d at 811 (citing government interests
                    in protecting culture of the military,
                    maintaining discipline, protecting integrity
                    of the recruiting process, ensuring the
                    acceptance of military personnel by people in
                    other countries); Childers, 513 F. Supp. at
                    142 (stressing police department's interest
                    in maintaining discipline and protecting the
                    integrity of the police department).

                    In 1986 the Supreme Court ruled that
                    homosexual sexual activity is not protected
                    under the fundamental right of privacy. 
                    Bowers v. Hardwick, 478 U.S. 186 (1986). 
                    Relying on this decision, a number of courts
                    have rejected substantive due process
                    challenges to dismissals on the basis of
                    sexual orientation on the grounds that there
                    simply is no protection for homosexual sexual
                    activity.  See, e.g., Woodward v. United
                    States, 871 F.2d 1068, 1074-75 (Fed. Cir.
                    1989), cert. denied, 494 U.S. 1003 (1990);
                    Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir.
                    1989), cert. denied, 494 U.S. 1004 (1990).

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          1.   Equal Protection

               a.   Suspect Class

                    The issue whether gay men and lesbians are a
                    protected class has divided the judiciary. 
                    Although a number of lower courts have ruled
                    that gay men and lesbians are protected and
                    that discrimination against them must be
                    subjected to heightened scrutiny, most of
                    these rulings have been overturned on appeal.

                    See, e.g., Ben-Shalom v. Marsh, 703 F. Supp.
                    1372, (E.D. Wis. 1989), rev'd, 881 F.2d 454,
                    463 (7th Cir. 1989); High-Tech Gays v.
                    Defense Indus. Sec. Clearance Office, 668
                    F. Supp. 1361 (N.D. Cal. 1987), rev'd in
                    part, vacated in part, 895 F.2d 563, 571 (9th
                    Cir. 1990); Jantz v. Muci, 759 F. Supp. 1543,
                    1551 (D. Kan. 1991), rev'd and remanded on
                    other grounds, 976 F.2d 623  (10th Cir.
                    1992); Watkins v. U.S. Army, 847 F.2d 1329,
                    1352-53 (9th Cir. 1988), aff'd on other
                    grounds, 875 F.2d 699, 705 (9th Cir. 1989)
                    (en banc).  No Circuit Court of Appeals has
                    ruled that gay men and lesbians are entitled
                    to heightened equal protection scrutiny.

                    As in the substantive due process area, many
                    courts read Bowers as precluding the
                    possibility that gay men and lesbians are
                    entitled to heightened scrutiny under equal
                    protection analysis.  See, e.g., Woodward v.
                    U.S., 871 F.2d at 1068, 1075-76 (Fed. Cir.
                    1989); Padula v. Webster, 822 F.2d 97, 102-03
                    (D.C. Cir. 1987).

               a.   Rational Basis Review

                    Even if sexual orientation discrimination is
                    not subject to heightened scrutiny, courts
                    must still apply the rational basis standard
                    in reviewing the government's action.  Swift
                    v. United States, 649 F. Supp. 596, 602
                    (D.D.C. 1986) ("the government may not dis-
                    criminate against homosexuals for the sake of
                    discrimination, or for no reason at all"). 
                    Many courts have allowed discrimination by
                    the military, by agencies granting security
                    clearances, and by public schools to survive
                    rational basis review because they believe
                    the government has special interests.  

                    Several courts have recently applied "active
                    rational relationship scrutiny" to sexual
                    orientation discrimination, forcing the

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                    government, especially the military, to show
                    a rational relationship between the discrim-
                    ination and the government's interest,
                    instead of merely assuming its existence. 
                    See, e.g., Pruitt v. Cheney, 963 F.2d 1160,
                    1165-1166 (9th Cir. 1991), cert. denied, 113
                    S. Ct. 655 (1992); High Tech Gays v. Defense
                    Indus. Sec. Clearance Office, 895 F.2d 563,
                    575 (9th Cir. 1990); Dubbs v. CIA, 769
                    F. Supp. 1113 (N.D. Cal. 1990); Buttino v.
                    FBI, 1992 U.S. Dist. LEXIS 4659 (N.D. Cal.
                    1992).  

                    Applying this standard of review, one
                    district court has invalidated sexual
                    orientation discrimination by the military
                    under rational basis scrutiny.  Cammermeyer
                    v. Aspin, 1994 U.S. Dist. LEXIS 7289, *47-*48
                    (W.D. Wash. June 1, 1994) ("[t]he Government,
                    for its part, has failed to offer any
                    evidence showing that its justifications are
                    based on anything but prejudice.").  The
                    Ninth Circuit allowed an Army Reserve
                    officer's challenge to sexual orientation
                    discrimination to survive a defense motion
                    for summary judgment.  Pruitt, supra (denying
                    summary judgment to defendant Secretary of
                    Defense on the grounds that he must establish
                    that his policy of discrimination on the
                    basis of sexual orientation has a rational
                    basis).

          1.   First Amendment Right to Freedom of Speech

               Dismissals of gay and lesbian employees often stem
               from statements that the employees have made.  If
               such statements touch on a matter of "public
               concern," it will be protected speech for which
               employees cannot be dismissed.  Pickering v. Board
               of Educ., 391 U.S. 563, 568 (1968).  If the speech
               does touch on public concerns, the courts must
               balance the employee's interest in free speech
               against the state's interest in regulating its
               employees.  Id.  The issue arises often with
               military employees and public school teachers.

               Courts have generally ruled that where employees
               merely stated that they are homosexual, they are
               making an admission of personal, not public,
               interest, and their speech is not protected.  See,
               e.g., Johnson v. Orr, 617 F. Supp. 170, 175 (E.D.
               Cal. 1985) (calling plaintiff's First Amendment
               claim specious because her assertion of her
               homosexuality was a mere statement of fact), aff'd
               without op., 787 F.2d 597 (9th Cir. 1986); Pruitt
               v. Cheney, 963 F.2d 1160, 1164 (9th Cir. 1991)
               (plaintiff was dismissed not for the content of

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               her newspaper statement that she was gay but
               rather for being a lesbian); Rowland v. Mad River
               Local Sch. Dist., 730 F.2d 444, 449 (6th Cir.
               1984)(plaintiff's statements regarding her sexual
               preference were not protected speech, however,
               because she was speaking only in her own
               interest), cert. denied, 470 U.S. 100 (1985). 
               Justice Brennan criticized this approach,
               concluding that a debate is raging regarding the
               rights of gay men and lesbians and that once a
               person asserts his or her homosexuality he or she
               is "necessarily and ineluctably involved...in that
               debate" and his or her statements are thus a
               matter of public concern.  Rowland v. Mad River
               Local Sch. Dist., 470 U.S. 1009, 1012 (1986)
               (Brennan, J. dissenting).

               When employees advocate gay rights instead of
               asserting their sexual orientation, their speech
               is generally protected.  Examples include:

               a.        A state statute prohibiting teachers
                    from "advocating, soliciting, imposing,
                    encouraging or promoting public or private
                    homosexual activities" was found
                    constitutionally overbroad and violative of
                    the First Amendment.  National Gay Task Force
                    v. Board of Educ., 729 F.2d 1270, 1272 (10th
                    Cir. 1984), aff'd, 470 U.S. 903 (1985).

               b.        A university lecturer's statements
                    regarding homosexuality that were publicized
                    in a series of newspaper articles, was
                    protected speech.  Aumiller v. University of
                    Del., 434 F. Supp. 1273, 1302 (D. Del. 1977).

               c.        An assistant county treasurer was fired
                    after he sought to leave work to address the
                    local Commissioners Court regarding
                    homosexuality.  The court found that his
                    desire to speak constituted protected
                    activity.  Van Ooteghem v. Gray, 654 F.2d 304
                    (5th Cir. 1981), cert. denied, 455 U.S. 909
                    (1982).

               Some courts, however, have viewed activism in
               pursuit of gay rights not as protected speech
               under the First Amendment but as conduct which
               government employers are free to prohibit if it
               reflects badly on them.  McConnell v. Anderson,
               451 F.2d 193, 196 (8th Cir. 1971), cert. denied,
               405 U.S. 1046 (1972).

     A.   Public Employees:  Government Interests

          1.   Teachers


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               In the realm of public schools, the government
               asserts a wide range of interests to overcome
               rational basis review and teachers' free speech
               protections.  Some courts have held that when
               schools employ openly gay men and lesbians, they
               are tacitly forced to approve of their behavior. 
               McConnell v. Anderson, 451 F.2d 193, 196 (8th Cir.
               1971), cert. denied, 405 U.S. 1046 (1972).  Courts
               have held that the school's interests in avoiding
               such tacit approval overcomes plaintiff's First
               Amendment rights.  Id. at 196.  Other courts have
               ruled that teachers have an obligation to go out
               of their way to hide their private lives and that
               openly gay men and women violate this obligation. 
               Acanfora v. Board of Educ. of Montgomery County,
               359 F. Supp. 843 (D. Md. 1973), aff'd on other
               grounds, 491 F.2d 498 (4th Cir. 1974).

               Some courts uphold dismissals under school
               immorality provisions.  Gaylord v. Tacoma Sch.
               Dist., 88 Wash. 2d 286, 559 P.2d 1340, cert.
               denied, 434 U.S. 879 (1977) (en banc) (holding
               homosexuality immoral despite repeal of sodomy
               statute).  The difficulty of defining morality
               makes this approach particularly troublesome.  For
               example, the Oregon Supreme Court twice remanded a
               case to an administrative court with instructions
               on how to interpret "immorality."  Ross v.
               Springfield Sch. Dist., 294 Or. 357, 657 P.2d 188
               (1982); Ross v. Springfield Sch. Dist., 300 Or.
               507, 716 P.2d 724, 728 (1986).

               Some courts have rejected the classification of
               immorality as broad and vague and have instead
               looked at "fitness to teach."  Board of Educ. of
               Long Beach v. Jack M., 19 Cal. 3d 691, 696, 566
               P.2d 602, 604, 139 Cal. Rptr. 700, 702 (1977). 
               These courts adopt for state employment the due
               process rational relationship test that the D.C.
               Circuit developed for federal civil service
               employment.  Norton v. Macy, 417 F.2d 1161, 1164
               (D.C. Cir. 1969).  Under this standard the
               California court prevented the dismissal of a gay
               male teacher who participated in public, criminal
               homosexual behavior when the school was unable to
               show that he was unfit to teach.  Id.; see also
               Morrison v. State Bd. of Educ., 1 Cal. 3d 214, 461
               P.2d 375, 82 Cal. Rptr. 175 (1969) (disallowing
               dismissal of gay male teacher who participated in
               nonpublic homosexual behavior).

          1.   The Military and Local Police Departments

               Many courts have found that discrimination by the
               military survives rational basis review because of
               the special needs of the military.  See, e.g.,
               Dronenburg v. Zech, 741 F.2d 1388, 1398 (D.C. Cir.

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               1984); Woodward v. U.S., 871 F.2d 1068, 1077 (Fed.
               Cir. 1989).  Enumerated needs include maintaining
               discipline, order, morale, and trust among service
               members, aiding in recruiting and retention of
               personnel, shoring up the rank and command system,
               and preventing security breaches.  Dronenburg, 741
               F.2d at 1398.

               Many of the arguments supporting government
               interests that have been used for the military
               have also been used by local police departments. 
               See, e.g., Childers v. Dallas Police Dept., 513
               F. Supp. 134 (N.D. Tex. 1981).  Recently, however,
               several police departments have settled cases
               brought under local laws.

               a.        In February 1993 three police officers
                    who charged that they had been forced to
                    leave the Los Angeles Police Department
                    because of harassment by other officers
                    settled their case for $700,000.  Bettina
                    Boxall, L.A. Settles Officers' Suit, L.A.
                    Times, February 11, 1993, at A1.  As part of
                    the settlement the defendants agreed to
                    engage in active recruitment of gay officers,
                    to eliminate recruitment questions that would
                    reveal sexual orientation, to prohibit
                    harassment of gay and lesbian officers, to
                    train officers in how to deal with the gay
                    and lesbian community and gay and lesbian co-
                    workers, and to screen out homophobic job
                    applicants.  Id.

               b.        In late 1992 the San Diego County
                    Sheriff's Department settled a lawsuit
                    brought by a lesbian employee.  As part of
                    the settlement the department agreed to ban
                    sexual orientation discrimination and to
                    conduct sensitivity training.  Lesbian/Gay
                    Law Notes, January 1993.

          1.   Security Clearance

               The CIA and the FBI contend that they have
               important interests in denying security clearances
               to gay men and lesbians who, they assert, are
               especially susceptible to blackmail.  For example,
               in 1990 the Department of Defense convinced the
               Ninth Circuit that homosexuals are vulnerable
               because they are targeted for blackmail by the
               KGB.  High Tech Gays v. United States, 895 F.2d
               563, 575-77 (9th Cir. 1990).  Courts have even
               held that it is constitutional to deny security
               clearances to openly gay men and women because
               they are subject to blackmail to protect their
               partners.  Padula v. Webster, 822 F.2d 97, 104
               (D.C. Cir. 1987).  Recently, however, a district

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               judge questioned the continuing validity of such
               discrimination "in light of the post-High Tech
               Gays demise of the Soviet Union and the uncertain
               future, if any, of the Soviet Secret Police." 
               Buttino v. F.B.I., 1992 U.S. Dist. LEXIS 4659, at
               *25 (N.D. Cal. 1992).


I.   Sexual Orientation Harassment

     A.   Overview

          Conditioning job benefits or continued employment on
          the granting of sexual favors is discrimination on the
          basis of sex and is prohibited by Title VII.  An
          employee will be able to sustain a claim for quid pro
          quo harassment if the employee suffers a tangible job
          detriment as a result of refusing to submit to the
          sexual demands of a supervisor.  See Koster v. Chase
          Manhattan Bank, 687 F. Supp. 848, 861 (S.D.N.Y. 1988).

          Hostile environment harassment, however, does not
          require a showing of tangible job detriment.  Instead,
          an employee who claims a hostile work environment may
          demonstrate that requests for unwelcome sexual favors,
          and/or other unwelcome verbal or physical conduct of a
          sexual nature was sufficiently severe and pervasive
          that it interfered with the employee's ability to fully
          perform his or her job.  Meritor Sav. Bank, FSB v.
          Vinson, 477 U.S. 57 (1986); Kotcher v. Rosa & Sullivan
          Appliance Ctr., Inc., 957 F.2d 59, 63 (2d Cir. 1992).

     A.   Harassment of Men and
          Women is Prohibited

          The quid pro quo sexual harassment analysis has been
          applied primarily to women who are harassed by male
          supervisors.  A number of courts, however, have held
          that a male employee also has a cause of action if he
          is harassed by a female supervisor.  Showalter v.
          Allison Reed Group, Inc., 767 F. Supp. 1205 (D.R.I.
          1991), aff'd on other grounds, 984 F.2d 4 (1st Cir.
          1993); Parrish v. Washington Nat'l Ins. Co., 1990 U.S.
          Dist. LEXIS 13934 (N.D. Ill. 1990); E.E.O.C. Compliance
          Manual  615.2(b)(1) ("A man as well as a woman may be
          the victim of sexual harassment, and a woman as well as
          a man may be the harasser.").  Because the purpose of
          Title VII is to prohibit gender based discrimination,
          both men and women are considered a "protected class"
          under Title VII.

          At least one court has found that it is not a defense
          to sexual harassment between members of the opposite
          sex that the harasser is homosexual. See, e.g.,
          Alphonse v. Omni Hotels Management Corp., 634 So.2d 836
          (La. App. 1994).


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     A.   Same-Sex Harassment

          Recently, the Equal Employment Opportunity Commission
          ("E.E.O.C.") and Federal courts have begun to recognize
          that employees who are harassed by supervisors and co-
          workers of the same sex are also protected by Title
          VII.  If the harassment by a same-sex supervisor is
          based on treatment due to the employee's gender, the
          courts have held that that is discrimination based on
          sex.  If, however,  the harassment is due to the
          individual employee's actual or perceived sexual
          orientation, that harassment is not considered
          actionable under Title VII.

          The E.E.O.C., while recognizing that sexual harassment
          can occur between individuals of the same sex,
          distinguishes between harassment based on gender and
          harassment based on sexual orientation:

               The victim does not have to be of the
               opposite sex from the harasser.  Since sexual
               harassment is a form of sex discrimination,
               the crucial inquiry is whether the harasser
               treats a member or members of one sex
               differently from members of the other sex. 
               The victim and the harasser may be of the
               same sex where, for instance, the sexual
               harassment is based on the victims's sex (not
               on the victim's sexual preference) and the
               harasser does not treat employees of the
               opposite sex the same way.

          EEOC Comp. Man. (BNA)  615.2(b)(3) (June 1987)
          (emphasis in original).

     A.   Same-Sex Harassment:
          Quid Pro Quo Cases

          If a gay or lesbian supervisor demands sexual favors
          from an employee of the same sex, the courts more
          likely than not will extend Title VII protection to the
          individual.  If, for example, a male supervisor
          demanded sexual favors from a male employee, the
          employee would have a claim under Title VII.  In that
          situation, the employee would have been "selected" or
          singled out for special treatment, because he was male.

          Therefore, he would have been discriminated against
          because of his gender.  A number of federal courts have
          held that same-sex quid pro quo harassment is
          proscribed by Title VII.

          1.        Joyner v. AAA Cooper Transp., 597 F. Supp.
               537 (M.D. Ala. 1983), aff'd, 749 F.2d 732 (11th
               Cir. 1984):  A male employee alleged that a male
               manager made a sexual advance toward him, rejected
               the advance and reported the incident.  The

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               employee alleged that due to his rejection of the
               manager's advance he was denied recall rights
               following a lay-off.  The court held that same-sex
               harassment violates Title VII and the employee had
               established that he was subjected to quid pro quo
               harassment due to his sex.

          2.        Wright v. Methodist Youth Servs., 511
               F. Supp. 307 (N.D. Ill. 1981):  A male employee of
               a social services organization alleged that he was
               terminated after he refused the advances made by
               his male supervisor.  The court held that the
               employee had stated a claim under Title VII
               because the supervisor made a demand upon a male
               employee which would not have been made on a
               female employee.  The harassment, therefore, was
               gender based.

          3.        See also Barbour v. Department of Social
               Servs., 198 Mich. App. 183, 497 N.W.2d 216 (1993)
               (finding that a male employee who had alleged that
               his male supervisor had made advances towards him
               had stated a claim for sexual harassment under
               Michigan State discrimination law).

          4.        See also Parrish v. Washington Nat'l Ins.
               Co., 1990 U.S. Dist. LEXIS 13934 (N.D. Ill. 1990)
               ("If a plaintiff complains of unwelcome homosexual
               advances, the offending conduct is based on the
               employer's sexual preference and necessarily
               involved the plaintiff's gender, for an employee
               of the non-preferred gender would not inspire the
               same treatment.  Thus unwelcome homosexual
               advances, like unwelcome heterosexual advances,
               are actionable under Title VII.").

          5.        Prescott v. Independent Life and Acc. Ins.
               Co., 878 F.Supp. 1545, 1550-51 (M.D. Ala. 1995): 
               Congress chose to use the unmodified word "sex"
               when referring to the prohibited discrimination in
               Title VII.  Had Congress intended to prevent only
               heterosexual sexual harassment, it could have used
               the term "member of the opposite sex" in Title
               VII.  The gender of the person who requests sexual
               favors from a subordinate employee, therefore, is
               irrelevant under Title VII.

          6.        Boyd v. Vonnahmen, 1995 U.S. Dist. LEXIS 7542
               (S.D. Ill. March 29, 1995) (declining to "read
               Title VII as applicable only to heterosexual
               sexual harassment" in a quid pro quo case).

     A.   Same-Sex Harassment:
          Hostile Work Environment

          While Federal courts remain unified in rejecting claims
          of harassment based on sexual orientation, there is an

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          emerging split among Federal courts whether to
          recognize same-sex harassment.

          1.        Courts Holding Same-Sex Harassment Not
               Actionable

               a.        Hopkins v. Baltimore Gas & Elec. Co.,
                    871 F.Supp. 822 (D.Md. 1994): Allegations by
                    a male employee that his male supervisor
                    sexually harassed him over a period of seven
                    years by creating a hostile work environment
                    were rejected by a federal district court in
                    Maryland. The court held that Title VII does
                    not protect the victim of sexual harassment
                    by a supervisor or co-worker of the same
                    gender. The fundamental concept of Title VII,
                    the court opined, is to make certain that
                    persons of one gender are not treated as
                    being inferior to persons of the other
                    gender.  The male supervisor, therefore,
                    could not have treated the male employee as
                    inferior because of his gender, since they
                    are both men.

               b.        Garcia v. Elf Atochem North America, 28
                    F.3d 446 (5th Cir. 1994):  "Harassment by a
                    male supervisor against a male subordinate
                    does not state a claim under Title VII even
                    though the harassment has sexual overtones. 
                    Title VII addresses gender discrimination." 
                    See also, Oncale v. Sundowner Offshore
                    Services, Inc., 1995 U.S. Dist. LEXIS 4119
                    (E.D. La. March 24, 1995); Myers v. City of
                    El Paso, 874 F.Supp. 1546 (W.D. Tex. 1995).

               c.        Benekritis v. Johnson, 882 F.Supp. 521
                    (D.S.C. 1995) (same-sex harassment "is not a
                    viable claim under Title VII").

               d.        Goluszek v. Smith, 697 F.Supp. 1452
                    (N.D. Ill. 1988):  Sexual harassment against
                    male in male-dominated environment not
                    actionable under Title VII because action
                    would be inconsistent with Title VII's goal
                    of remedying discrimination and correcting
                    imbalance of power.

               e.        NOTE: Even in courts that have found
                    same-sex harassment claims outside of the
                    scope of Title VII, a plaintiff may still
                    have a claim for retaliatory discharge.  This
                    conclusion draws support from the statutory
                    mandate 42 U.S.C.  2000e-3(a), which extends
                    a retaliatory discharge claim to anyone
                    participating in proceedings under Title VII
                    -- even if the court later concludes that the
                    plaintiff's claim is not cognizable as a

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
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                    matter of law.  See, e.g., Benekritis v.
                    Johnson, 882 F.Supp. 521 (D.S.C. 1995);
                    Hopkins v. Baltimore Gas & Elec. Co., 871
                    F.Supp. 822 (D.Md. 1994).

          2.        Courts Holding Same-Sex Harassment Actionable

               a.        Nogueras v. University of Puerto Rico,
                    1995 U.S. Dist. LEXIS 8958 (D. P.R. June 13,
                    1995):  Allegations by a female employee that
                    her female supervisor and a female consultant
                    sexually harassed he by touching her, making
                    sexually-charged remarks, inviting plaintiff
                    to engage in sexual activity and other
                    similar incidents.  Court rejected defendants
                    argument that Title VII does not same-sex
                    harassment.  "It is clear . . . from the
                    plain language of Title VII, that same-sex
                    harassment is an unlawful employment
                    practice. . . . Defendants' gender is
                    irrelevant."

               b.        EEOC v. Walden Book Co, 885 F.Supp. 1100
                    (M.D. Tenn. 1995):  Same-sex sexual
                    harassment is actionable under Title VII
                    because it would be "untenable to allow
                    reverse discrimination cases but not same-sex
                    sexual harassment cases to proceed under
                    Title VII." "Sexual harassment of a
                    subordinate by a homosexual supervisor of the
                    same sex is an adverse employment action that
                    the subordinate would not have faced but for
                    his or her sex."

               c.        Lamar v. NYNEX Service Co., 1995 WL
                    421726 (July 11, 1995 S.D.N.Y.):  Analyzing
                    merits of same-sex hostile work environment
                    case under the assumption that such conduct
                    would be actionable under Title VII if
                    "sufficiently sever or pervasive to alter the
                    conditions of [the victim's] employment."

               d.        Pritchett v. Sizeler Real Estate
                    Management Co., 1995 U.S. Dist. LEXIS 5565
                    (E.D. La. April 25, 1995): Notwithstanding
                    the Fifth Circuit's dicta in Garcia, the
                    District Court held that "[t]o deny a claim
                    of same gender sexual harassment allows a
                    homosexual supervisor to sexually harass his
                    or her subordinates either on a quid pro quo
                    basis or by creating a hostile work
                    environment, when a heterosexual supervisor
                    may be sued under Title VII for similar
                    conduct."

               e.        McCoy v. Johnson Controls World
                    Services, 878 F.Supp. 229 (S.D. Ga. 1995)

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 80---------------------------------------

                    (harassment that would not have occurred but
                    for the victimized employee's sex was
                    harassment "based upon sex" regardless of the
                    harasser's gender).

     A.        Same Sex Harassment:
          Hostility Based on Sexual Orientation
          Does not Create Environmental Harassment Claim

          The creation of an environment that is hostile to gay
          or lesbian employees, i.e., harassment that affects an
          employee because the employee is a gay man or lesbian,
          is not considered gender-based discrimination under
          Title VII and is not prohibited.

          1.        Dillon v. Frank, 1992 U.S. App. LEXIS 766, at
               *2-3, 58 Empl. Prac. Dec. (CCH)  41332 (6th Cir.
               1992):  A male postal worker filed a Title VII
               claim based on sex, alleging that he was verbally
               and physically harassed by co-workers due to the
               co-workers' belief that he was gay.  The
               harassment which persisted over a period of three
               years consisted of verbal comments directed toward
               the employee such as "fag," "Dillon sucks dicks,"
               "Dillon gives head" and escalated to a physical
               assault on the employee.  Although finding that
               the harassment was "sexual" in nature, the Sixth
               Circuit held that harassment based on the sexual
               orientation or perceived sexual orientation of an
               employee is not actionable under Title VII.  The
               court noted, however, that if the employee could
               show that he had been treated differently than a
               lesbian employee, he might have an actionable
               claim as he would then be singled out for unique
               treatment not because he was gay but because he
               was a gay man.  1992 U.S. App. LEXIS 766, at *27
               n.5

          2.        Carreno v. IBEW, Local No. 226, 54 Fair Empl.
               Prac. Cas. (BNA) 81 (D.C. Kan. 1990):  A male
               employee divorced his wife and began living with
               another man.  As a result, his co-workers and
               supervisors verbally and physically harassed the
               employee over the course of a year.  The employee
               eventually refused to report to work and alleged
               that he had been constructively discharged as a
               result of the harassment.  The Kansas District
               Court held that the employee had not established a
               prima facie case under either Title VII or state
               discrimination laws as the discrimination
               complained of was based on the employee's sexual
               orientation rather than on his gender.

          3.        Similarly, in Barbour v. Department of Social
               Servs., 198 Mich. App. 183, 497 N.W.2d 216 (1993),
               the Michigan Court of Appeals held that under
               Michigan state law, an employee who was harassed

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               by co-workers who believed that a male employee
               was gay failed to state a claim for sex based dis-
               crimination.

          4.        In Fox v. Sierra Development Co., 876 F.Supp.
               1169 (D. Nev. 1995), heterosexual male employees
               alleged hostile work environment saturated with
               homosexual references.  Court held they did not
               allege any discriminatory hostility and thus
               failed to state a cause of action under Title VII.

               The alleged hostility was not against men or
               masculinity and was not hostile on the basis of
               sex or gender but only hostile to a person's
               notions of sexuality and its proper role or place.

               This is not actionable under Title VII. 

          5.        Vandeventer v. Wabash Nat'l Corp., 867
               F.Supp. 790 (N.D. Ind. 1994):  Harassment by males
               against male homosexual not actionable under Title
               VII because Title VII aimed at gender-biased
               atmosphere and no evidence that male harassed
               because he was male.

     A.        Harassment of Both Sexes

          A few courts have considered the question of whether a
          supervisor who harasses members of both genders equally
          violates Title VII.

          1.        Barnes v. Costle, 561 F.2d 983, 990 (D.C.
               Cir. 1977):  In considering an allegation of
               sexual harassment of a female employee by her male
               supervisor, the court stated that if a gay
               supervisor of either gender had harassed an
               employee of either gender, the employee would
               receive Title VII protection.  In either case, the
               court reasoned, the employee would have been
               treated differently because of his/her gender. 
               The court added that "[i]n the case of a bisexual
               superior, the insistence upon sexual favors would
               not constitute gender discrimination because it
               would apply to male and female employees alike." 
               Id. at 990 n.55.

          2.        Chiapuzio v. BLT Operating Corp., 62 Fair
               Empl. Prac. Cas. (BNA) 707 (D.C. Wyo. 1993):  In
               denying a motion for summary judgment the court
               described a supervisor who harassed both male and
               female as an "'equal opportunity' harasser whose
               remarks were gender-driven."  Id. at 710.  The
               court distinguished between same-sex and bi-sexual
               harassment in that the supervisor was not
               suggesting that he wanted to perform sexual acts
               with the male employees, but rather his harassment
               took the form of impugning the male employees'

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               sexual prowess.

          3.        But see, Ryczek v. Guest Services, Inc., 877
               F.Supp. 754 (D.D.C. 1995): Criticizing Barnes in
               dicta.  The court recognized the anomaly of the
               "particularly unspeakable cad" who would escape
               Title VII liability simply because he or she
               harasses both men and women.  Court also
               questioned the "troubling possibility" of having
               the litigants "debate and juries determine the
               sexual orientation of Title VII defendants.

     A.   Local Laws Prohibiting Sexual
          Orientation Harassment

          Currently, eight states and many cities have municipal
          ordinances explicitly proscribing discrimination based
          on sexual orientation.  In those jurisdictions,
          employees may have a cause of action for hostile
          environment sexual harassment based on sexual
          orientation.

          1.        In Mogilefsky v. Superior Court, 20 Cal. App.
               4th 1409 (1993), the male plaintiff alleged that
               his male employer sexually harassed him by
               repeatedly inviting him to his hotel room, making
               sexually explicit comments after watching
               pornographic films with him, and referring to
               plaintiff in a profane and degrading way.  Id. at
               1412.  The court held that a cause of action can
               be stated for same-sex harassment, whether based
               on quid-pro-quo or hostile environment theories. 
               Id. at 1418.

          2.        The Supreme Court, New York County noted, in
               the context of a hostile environment sexual
               harassment suit, that because discrimination by
               New York City agencies or representatives against
               gay men and lesbians is explicitly prohibited by
               New York Executive Order No. 4 (1978), "anti-gay
               or homophobic remarks or actions . . . may also
               constitute prohibited discrimination."  Rudow v.
               New York City Comm'n on Human Rights, 123 Misc. 2d
               709, 474 N.Y.S.2d 1005, 1014 n.11 (Sup. Ct. N.Y.
               County 1984), aff'd, 109 A.D. 2d 1111, 487
               N.Y.S.2d 453 (1st Dep't 1985).

          3.        In Fry's Food Stores of AZ, Inc., 99 Lab.
               Arb. Rep. (BNA) 1161 (1992), the arbitrator upheld
               the company's discharge of an employee who
               verbally harassed a gay co-worker.  The arbitrator
               reasoned that because Tucson, Arizona had an
               ordinance prohibiting discrimination on "sexual or
               affectional preference," the company was justified
               in its severe punishment of the employee.

          4.        A recent opinion letter from the California

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 83---------------------------------------

               Labor Commission indicates that it interprets the
               California state statute prohibiting employment
               discrimination on the basis of sexual orientation
               (Cal. Lab. Code  1102.1) to prohibit hostile
               environment harassment based on an employee's
               sexual orientation.  (Op. Let. dated March 8,
               1993).

          5.        In Matthews v. Superior Court, 34 Cal.App.4th
               598, 603 (1995), the court held that a
               heterosexual employee could state a claim for
               hostile work environment created by homosexual
               supervisors based on California's Fair Employment
               and Housing Act.   Citing Mogilefsky, the court
               held that sexual harassment by a member of the
               same sex constitutes gender harassment under the
               FEHA.

1995 Steefel, Levitt & Weiss and Proskauer Rose Goetz &
Mendelsohn

                         Proceedings of the panel on


                     GENDER, SEXUAL ORIENTATION & HIV


                  at the 1995 Women in the Law Conference


                           Monterey, California


                                May 5, 1995




Introduction by Francisco Valdes:

     Welcome to the program on Gender, Sexual Orientation & HIV
of the 1995 Conference on Women in the Law, which is organzed
every year by the State Bar of California Women in the Law
Committee.  This particular program is sponsored by the State Bar
of California Committee on Sexual Orientation Discrimination
(CSOD), which the State Bar Board of Governors commissioned in
1993 to study and address sexual orientation legal issues.  As
the title of our program indicates, the focus today is on how HIV
affects the social and legal interests of women, both due to and
regardless of sexual orientation.

     Since 1981, when the pandemic dawned, public attention and
policy has focused primarily on gay male populations, and this
primacy continues today on the whole.  Yet the most recent data
tells us that women and children--and especially those of color--
tend to be acutely and increasingly at risk.  To consider how
current social realities and legal rules and policies regarding

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HIV may be better understood and aligned, we have with us today
four panelists to offer a rich variety of perspectives on this
subject.  After their presentations, we'll have a question-and-
answer discussion period.

     We'll begin with Rhonda Hase, a legal worker who has lived
with HIV for several years now.  She opens our program with a
concrete view of the way(s) in which HIV affects the social and
professional lives of women.  Next will be Gina Facen, a case
worker at the Lyon-Martin Women's Health Services in San
Francisco, to provide a perspective on the subject that is
essential to bridging the gap between theory and practice. 
Eileen Hanson, the policy director at the San Francisco AIDS
Referral Legal Panel, then will focus on current developments and
issues in the law, policy, and politics and woman-to-woman HIV
transmission.  Finally, Linda Allen, who has practiced in the
area for years and formerly was the legal director at the AIDS
Foundation of San Diego, will close the program with a
practitioner's view of these issues. 



Presentation by Rhonda Hase:

     As Frank told you, my name is Rhonda and I am a HIV
positive.  I have been HIV positive for a little over twelve
years now.  I have known I've been HIV positive since June 1st of
1990, so I have known for almost five years.  

     It's been a real interesting road ever since I found out. 
When I first found out I working in a law office in Hayward, and
it was a very small law office, very family oriented, and a lot
of the women there that I was working with, the support staff,
etc., one woman was had just had a baby and most of the women
there had children.  So my issues about disclosure were staring
at me in the face because I didn't want these women to be afraid
of me.  Yet, I didn't know a lot about this disease, as I had
just found out myself.  So I talked with my office manager, and
basically we (the office staff and I) had a conference in our
conference room, and I told everybody there that I was positive. 
And I was very happily surprised with the result.  Everybody was
very..., were very good and very supportive.  Everybody asked
questions, had a lot of questions for me and I was able to answer
a lot of them and I was able to get a lot of information for
everyone.  Basically our office policy regarding people with HIV
kind of formed as we went along, on a day-by-day basis.  

     The treatment for me, I was lucky, I had been working there
already for about four years, and so I knew everybody and we were
all pretty much a big family within the firm.  So it was very
open, I wasn't afraid to tell them.  Unfortunately, because of
the recession, I was laid off from that law firm and had to look
for a job elsewhere. 

     The next law firm that I went to wasn't, it was more like...
very much factory kind of work and I chose not to tell people
there and it didn't present a problem because my health has been

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pretty good so I haven't had a lot of medical issues, I go to the
doctor about every three or four months for regular checkups and
blood tests and that kind of stuff.  I have to see my eye doctor
about twice a year because there is a higher risk for glaucoma
and different kinds of issues for women as far as Hiv and Aids. 
I see a gynecologist three times a year because women are more
prone to yeast infections, cancer of cervix, that kind of
gynecological problems.  So I have to go to a doctor a few more
times a year than most people do, which is kind of a pain, but
other than that I'm basically pretty healthy, knock on wood.

     I chose to leave that firm because their type of work, it
was just, I am a paralegal and I wanted to do paralegal work.  I
didn't really want to do word processing.  So I looked around and
found a very wonderful firm that I am at now and my boss is here
with me.  

     I worked there for oh, I guess it was about a year and a
half before I finally disclosed to my boss that I was Hiv+, and
the reason I did that was mainly because I started having a lot
of doctors' appointments during the month of December.  What had
happened was I went in for my regular check-up and my t-cell
count was down to 120.  Which, the t-cells they use, your T4
cells, they use as an indicator on when they want to start you on
preventive medications such as AZT, DDI, DDC, and other
medications to prevent pneumonias and other infections.  

     Most normal people, or I guess people who aren't infected
with the virus have anywhere from 800 to 1200 t-cells.  So 120 is
pretty low and they wanted to start me on septra as a preventive
against PCP pneumonia, and I started taking the septra, and about
a week later I developed hives all over.  So I was allergic to
the septra, so I had to go back to the doctor, and then she gave
me another medication called dapsung, which if you are allergic
to septra, they go to this medication.  Well, in about a week or
so later, I had hives again.  So I had to go back to the doctor
again.  It was pretty apparent at the time that I needed to tell
my employer something.  And a lot of times, people in my
position, and I know a lot of women who do this, just tell their
employer that they have cancer because that's a more acceptable
illness than Hiv.  I didn't think I would have...I never thought
that I'd have a problem telling my boss that I was Hiv+ from a
personal aspect because I never thought that they would have
problems with it or anything.  The problems come in when I go to
work at a place, I want people to take me based on my
capabilities.  I don't want people to worry about, well, is she
going to get sick later, that kind of stuff.  I want them to know
that I can do the job and that if I'm not able to do the job,
then I wouldn't be here.  That was a lot of the reason for me not
disclosing fairly early.  

     So then when I did disclose, it was sort of a big relief,
actually, because it was okay now I've got this out in the open,
and basically now our office policy is day by day.  The only
thing that we did have that is probably a little bit different,
but everybody probably should have, is in our earthquake kit we
have gloves, the regular surgical gloves, so that in case

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 86---------------------------------------

something should happen to where people might have to treat me
for any kind of medical emergency where I am bleeding, that they
aren't exposed to my blood.  That's basically the only addition,
universal precaution, that we have really taken.  I let my
employer know that I have a doctor's appointment for this or
that, and I try to schedule them either early in the morning or
late in the afternoon kind of thing, so I don't miss too much
work.  I am not at that point yet here I have to miss a lot of
work because I haven't been sick or anything.  I get tired, and
that kind of shows every so often.  I get probably a little bit
more tired than usual, which is kind of hard to explain.  Because
when you say tired, you just think, oh yeah, well everybody gets
tired.  But it's hard to explain.

     I used to take AZT and I had taken AZT for about a year and
half until I became sick from the medication.  I would go to bed
at six o'clock at night and wake up about six or six-thirty in
the morning to go to work and feel like I hadn't gotten any rest
at all.  I would have to call in sick to work because I couldn't
make it because I was just too tired.  I had to stop taking AZT. 
After I stopped, I regained alot of my strength and bounced back
a little bit.  My t-cells were able to go up and everything. 

     Now, with my t-cells being so low, since I am allergic to
septra and dapsung, I am going to have to start taking or doing
another type of treatment - aresaol pentamimine - once a month. 
Hopefully I won't be allergic to that, as well.  

     Basically life for me, in general is good.  I go on, I work,
I have a 14-month-old daughter.  My husband and I are doing quite
well, I mean I still have the average, run-of-the-mill stuff
everybody else does.  For me, I don't dwell a lot on this.  I do
a lot of volunteer work surrounding Hiv and Aids, but that's more
for me, to help me cope and also to take away the stigma of this
disease for women, for everybody with this, because it is not
just a gay white man's disease.  It affects and infects anybody. 
It's an equal opportunity disease.  One of the fastest growing
groups that is contracting the Hiv virus is women, especially
women of color.  Another big growing group are teens, kids can
get this also.  So it's very important to me to speak out to
groups like this and other groups.  I do a lot of speaking to
high schools, to junior highs, church groups, etc.  I have spoken
to several doctors' and nurses' groups because I want everybody
to know that while yes, I am Hiv+, but I don't let this disease
rule everything in my life, it's my thing to deal with.  For me,
everyone has got something to deal with and this one thing is
just mine.  

     I want everybody to know that it's very important that
people are educated about this, that they do learn about it, and
that they need to learn about it.  Thank you.



Presentation by Gina Facen:

Hi, I'm Gina Facen and I'm here representing Lyon-Martin Women's 

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Health Services in San Francisco.  Lyon-Martin is a great place
for women.  We see lesbian, bi-sexual and transgendered women as
well as giving special outreach to older women, low income women,
and women of color.  Because we actually give services to all
these women I have had the experience of working with a largely
diverse group of HIV+ women.  Let  me give you a few facts.  Aids
is the fourth leading cause of death for U.S. Women.  It's the 
first leading cause of death for black and hispanic women.  These
are women between the ages of 13 and 44 this includes a large
number of teenage girls and young women of childbearing age. 
It's important to remember when newspapers and media reports a
decline in HIV infection  amongst  certain groups of people they
are not being clear that these groups do not include women.  Our
numbers are growing at an obscene rate.  I realize that this not
easy for some of us to hear but it's this same kind of denial
that keeps women  from getting the information that's  available
and could save their lives.  We won't see a decline in the
numbers of women with HIV  until we are willing to talk about sex
and what that means, and drug use and what that means, and
educate our daughters, and our lovers and our sisters.


As a case manager at Lyon-Martin I assist HIV positive women in
continuing to live with HIV.  A lot of these women were infected
through sexual contact  and drug use.  I assist them  with
everyday worries  such as food, shelter, and clothing first.  And
of course there is  a need for education in regards to  medical
care, safe sex practices, or  help with substance abuse issues
and/or mental health issues.  These women are sometimes homeless
or borderline homeless.  They all need a lot of love and
understanding.  The majority of these women do have a need for
legal services and it's  usually upon intake that I refer them to
the A.L.R.P. in San Francisco.

The A.L.R.P. has been one of the agencies that has made my job
easier.  Arrangements for legal services have included, wills,
power of attorneys, divorce, entitlement cases for SSI, housing
issues.  The services  given by volunteers is wonderful.  Lawyers
have been willing to come to client to get there need met and
this is important for some who feel intimidated by fancy office
buildings and executive atmospheres.  The manner in which they
have dealt with clients has been warm and attentive.  On behalf
of the  clients Lyon-Martin has referred to A.L.R.P.  Thank you.
The issue of power of attorney is a difficult one to deal with,
clients are reluctant to initiate this kind of thing because of
the emotional stress of living with a fatal disease is once again
reaffirmed, it is also how some have chosen to disclose to family
members, which is  very difficult.  Lyon-Martin has worked with 
an  outreach worker, Marina s., At ALRP who comes to our clinic
once a month so it is very convenient for clients to access the
services at a familiar place.

My knowledge of law is very limited and the need for legal
services  for HIV  positive women is much needed.  Clients have
asked that present a few suggestions as to  what they would like
in addition to the already available services.  The first would
be a broadening on legal services to include criminal law.  There

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---------------------------------END PAGE 88---------------------------------------

is a need here as much of the women I see who have this kind of
legal need if they disclose to  court appointed lawyers they have
been ignored, shunned and shown indifference  in regards to
health considerations.  So services are also needed in this area.


They've asked also for panels to consider  a corporation of some
sort to include assisting HIV positive women with preparing for
court dates and jail releases.  I don't know what that would look
like, but this is what they asked I relay.  Something else that
would be helpful in reaching women  so that they could access
services more easily could possibly be client orientations and
inservices given at the agencies that women frequent for other
services.  This would give clients a chance to ask questions
directly to a lawyer, or assistant so that they get answers and
are in a familiar environment and a place they can feel safe to
ask these questions.  I thought this was an excellent idea and
would also give service providers a chance to get more
information also.  The last was to donate any amount of time to
HIV positive women's organizations so the continuing education of
women would go on.          

Thanks to those of you who donate time, money and understanding,
and, thank you to "women in law" for inviting me to participate
in your conference.



Presentation by Eileen Hanson:

     Thank you to the State Bar Committee on Women in the Law and
to the State Bar Committee on Sexual Orientation Discrimination
for allowing and sponsoring this program, and thanks to all of
you for being here today.

     I am always appreciative when people make HIV issues for
women a priority within discussions related to health.  As women,
we don't do that often enough and that is a serious problem given
that AIDS is the fourth leading cause of death for U.S. women
aged 25 - 44 and is growing at an alarming rate in women.  The
rate of AIDS in women increased by 9.1% between 1991 and 1992,
compared to a 3.4% increase overall, and continues to increase at
a higher rate for women than men.  In 1992, it became the second
highest cause of death for African American women between the
ages of 25 and 44.  It is the primary cause of death of women in
this age group in nine cities.  Over 50,000 women have been
diagnosed with AIDS in the United States and over 100,000 are
estimated to be HIV-infected.  The 14,081 women reported with
AIDS in the U.S. just in 1994 represented nearly one-fourth (24
percent) of the total number of AIDS cases ever reported among
women.  I am also appreciative with regard to the decision that
HIV was considered an important enough issue for us to talk about
in the context of the intersection between sexual orientation,
gender and HIV.  I believe that you can't talk about HIV Ä that
we shouldn't talk about HIV Ä without talking about the
intersection not only of sexual orientation and gender, but also
of race and class.  In particular, when talking about women these

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issues become ever more important as we look at the growing
numbers, and as we look at the women who are most affected by
HIV.  Yes, it can be any of us but it is women who are of color,
who are using drugs, who are on the street, who are poor, who are
homeless, who are incarcerated, who are those most affected by
and infected with HIV.
     What does that say to us about the resources that we can
count on to take care of women in the future?  In the beginning
of the epidemic, when the epidemic was supposedly affecting
mostly gay white men, and we were dealing with tremendous issues
of homophobia, it was tremendously difficult to access the
resources Ä both financial and voluntary resources.  If we
thought it was difficult to find those resources, what is it
going to be like to try to find the resources to take care of
women, of poor people, of people of color, of people using drugs,
of people who are incarcerated, of people who are homeless?  

     I'll tell you Ä we're trying to access those resources and
we're not succeeding.  We are fourteen years into this epidemic,
and people are saying, "I'm tired.  I can't give more time.  I
can't give more money.  And those populations being hardest
hit...well, I don't really know how to help them."  Granting
sources are interested in funding other projects and individuals
are interested in seeing their dollars go somewhere else after
all these years.  It's an understandable reaction.  However, when
have women's issues or issues related to homelessness or drug use
ever been heard and understood and taken seriously, let alone
been popular to fund?  So it's critically important for us to
commit to continuing the fight against AIDS as we see resources
dry up.  We must find new resources to supplement what we can
hang on to and to supplant what we are losing.

     I came to AIDS work about nine years ago specifically
because of the intersection of race and class and sexual
orientation and gender.  I know that many lesbians came to AIDS
work in the beginning of the epidemic for that same reason.  We
have continued to be in the fight against the pandemic
specifically because of that intersection.  Lesbians brought to
the fight our history of political activism, our organizing
skills and our ability to understand the different ways different
communities are affected by HIV, based on their relationship to
the discrimination of race, class, sexual orientation and gender.

Often what that means for women is that HIV is just one more
problem on the list of many women face in today's society.  And,
in fact, it's not even the top problem on the list.  But it is
one more thing to grapple with in addition to facing racism or
homelessness or poverty or lack of access to healthcare in
general, or the struggles inherent in raising kids, or whatever
else it might be.  

     It's important to bring those issues to bear when we analyze
the effect of HIV on women who have sex with women.  However, one
of the things that gets left out when we talk about the
intersection of all these issues for women is the issue of sex. 
You would think that we couldn't talk about HIV without talking
about sex, but somehow we manage to do it over and over again. 

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And when it comes to women who are with women, we really can't
deal with talking about sex.  

     For starters, woman-to-woman HIV transmission is a great
expanse of silence.  Women are absolutely frightened to talk
about it and men are generally unable to take it seriously.  We
do not talk about it.  That is the truth of where we are in 1995
Ä fourteen years into the epidemic.  Just now we are beginning to
see a crack in that silence.  But that crack can't be broadened
to split open the subject until we talk about sex Ä the sex that
women have with women.  But that's extremely difficult because we
all know that lesbians don't have sex.  First of all, women don't
have sex.  Women are only sexualized when they're in relationship
to men and often, then, it's in the context of the virgin mother/
whore analogy.  Other than that, women aren't sexual, so women
who are with women are certainly not being sexual.  

     In addition, lesbians certainly don't sleep with men;
certainly don't shoot up; certainly don't exchange drugs for sex;
certainly are not homeless; certainly are not of color.  So,
therefore, why would we talk about lesbians in the context of
HIV?  Society doesn't really acknowledge that we exist except in
the context of Newsweek's coming out for us in 1990 and then
again in 1995.  (And who we are, in all our diversity, was of
course mirrored on the cover of Newsweek.)   Other than that kind
of singular approach to lesbianism Ä as a phenomenon, albeit a
media mainstreamed one Ä we aren't acknowledged as individuals
and communities to be taken seriously.  

     One of the real dangers of that approach is that our
relationship to HIV hasn't been taken seriously, in part because
we're not real people.  While it is accurate to say that
discussions related to the risk of HIV for lesbians occurred from
the beginning of the epidemic, it is also necessary to
acknowledge another reaction to the issue.  While lesbians argued
with lesbians over woman-to-woman transmission and were
simultaneously accused by gay men of attempting to divert the
"real" epidemic to a "peripheral and wholly potential" problem,
the right-wing had its own unique approach to HIV.  When the
right wing was saying  (as they sometimes still continue to say)
that AIDS is visited upon gay men because of their "promiscuity"
and their "outrageous sexual practices" and that they therefore
"deserve" AIDS, some lesbians and some gay men were able to say,
"well, gee, lesbians don't seem to be getting HIV, so we must be
God's chosen people, right?"  

     We were able to take that hit, that terribly painful,
horrible attack on gay men and turn it around in defense of the
combined gay/lesbian community and say, this is obviously
disgustingly ignorant, ridiculous, mean-spirited propaganda that
can be refuted.  And the right had no response.  

     Unfortunately, that approach has come back to haunt us. 
Society apparently believed that we weren't at risk for HIV and
some of us started to believe that as well.  So now what we are
trying to do is undo some of the mess that was created out of
that thinking and correct some of the things that we've come to

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believe in our own communities.  

     As lesbians in this culture we suffer, of course, from the
same lack of power and resources that all women do, but we also
have to grapple with how to navigate our health and our social
and sexual experience in an environment that is ferociously
heterosexual and heterosexist.  Therefore, because we have no
voice and no visible presence, we have no power, really.  And no
cover of Newsweek gives us that power.  Because we don't have
that voice and that access to power and visibility, our issues
and our relationship to HIV have been submerged.  That is a very
serious situation because it's kept all of us ignorant.  It's
kept us uninformed and thus, we have not been able to do the
educational work in our communities that we desperately need to
do to keep the numbers of women who partner with women low.  

     Now, at least, there is beginning to be more general
acknowledgement that the behavior of women who identify as
lesbians is an issue to at least be seriously explored by those
who are concerned about the steady onslaught of HIV.  One of the
indications of that acknowledgement is the recently convened
meeting by the Centers for Disease Control and Prevention (CDC)
on woman-to-woman transmission.  It took many years of tremendous
efforts on the part of activists to get to the point of this
meeting Ä the world's first discussion at a policy-making level -
some fourteen years into the epidemic.  

     As exciting as it was that this meeting was called, it was
also exciting for a second reason, which is that the meeting was
not held in the context of "let's talk about whether there is an
issue of transmission between women," but rather, "let's talk
about what to do about the issue of women-to-women transmission."

So, there was acknowledgement going into the meeting that we have
a problem and collectively, we need to figure out what to do
about it.  Women who brought a community-based perspective joined
together with the CDC perspective and, with respect for one
another's expertise, created what became a powerful meeting.  

     The people in the April 1995 meeting were CDC staffmembers
who are researchers, who track numbers and do surveillance, who
are policy planners and are people who know HIV issues in
general.  They were not people who necessarily related to woman-
to-woman transmission, but people who have worked on HIV issues
historically and currently.  They were very open to hearing from
experienced women who know woman-to-woman transmission issues
through our own personal lives, with our friends, lovers and
clients, and within our jobs dealing with women who identify or
behave as lesbian or bisexual.  Eighteen women Ä many of us
community-based Ä were invited to attend, based on our expertise
regarding the issue.  As President of the Women's AIDS Network in
San Francisco, I facilitated the meeting.  Unfortunately, women
living with HIV were sorely underrepresented, with only one self-
identified lesbian with HIV included, despite efforts of
activists to include their perspective Ä only the most important,
in my mind.    


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     A crucial part of the meeting was that Dr. James Curran,
Associate Director of HIV/AIDS for the CDC (the highest position
within the CDC with regard to HIV), met for two hours with us to
review the agenda that we had developed to present to the CDC. 
He made a number of public commitments as to what the CDC is
willing to do regarding woman-to-woman transmission.  The fact
that Dr. Curran spent two very public hours on this topic
certainly suggested that the CDC was willing to begin taking the
issue of woman-to-woman HIV transmission seriously.  In addition,
following the meeting, I received a call from the White House
Director of AIDS Policy who was following up on the meeting and
wanted to know what their office could do because they were
interested in the issue and wanted to help.  So I think we're now
in a place where at least the dialogue has started.  We still
have a long way to go, but at least it has begun.

     There was general acknowledgement at the meeting in Atlanta
that this work cannot be accomplished without framing the issue
within the context of an analysis that includes class, race and
economics and without addressing the complexity of the lives of
women who partner with women.  The different ways we partner and
the diversity of our risk must be recognized, as must the fact
that lesbians exist within Ä and identify with Ä many different
communities.  Thus, prevention efforts must be specifically
targeted.   Addressing woman-to-woman transmission will take
creative energy that brings together the best of our scientific
efforts, our research skills, the approach of community-based
organizations and our grassroots experience.

     With regard to women who partner with women, we have, in
some cases, not very good data and in most cases, very little
data.  So it's very easy for people to say woman-to-woman
transmission doesn't exist.  Since we base funding on numbers of
those infected and thus potentially infected, a community must
produce numbers in order to receive funding from government or
private sources.  Of course, lesbians are constantly in the
position of saying that while we don't have the proof of numbers
to show that HIV is a problem in our communities, the fact is
that it's because no one's taken woman-to-woman transmission
seriously enough to track the numbers.  

     I believe that the numbers of women who had no other risk
factors for HIV transmission than being with another woman are
low.  However, I also believe that the numbers of women who
partner with women and have, or have had, other risk factors, are
much higher.  So, while we have a great deal of very frightening
anecdotal research with regard to lesbians infected with HIV, up
to this point, we've been quite unsuccessful in getting dollars
into the lesbian and bisexual communities to keep the numbers
from going up.  And if we're talking about preventing HIV in
lesbians, we need the dollars to reach both women who are
potentially infected and women who are potentially at risk.  The
education must be provided to keep the numbers down.

     We must also explore how it is that we partner with women
and the diversity of risks that we engage in.  That really means
that we have to look at behavior, in addition to identity.  So we

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need to look as much at what women are calling themselves Ä maybe
more so Ä as what behaviors they are engaging in.  There are
women today who still say "I'm a lesbian.  So I sleep with men,
so I do drugs, I'm still a lesbian.  Therefore, I can't get HIV,
right?"  We need to strip away what people call themselves and
say, if you sleep with men, if you're using drugs, if you're
engaging in particular kinds of sex with women, there is a
potential for risk.  Let's talk about behaviors and let's do
research on behavior so that we can understand what kinds of
risks we're engaging in, what kinds of sex we're having.  

     And, we need to always keep the complexity of our lives in
focus.  We need to look in particular at the communities of
lesbians and bisexual women who are most marginalized, women in
prison, women in recovery, women on the street, women who are
young, women who are transgendered, women who are the working
poor.

     Specifically, Dr. Curran agreed to take our agenda to CDC
staff and assign items as appropriate.  He also agreed to consult
with other agencies, in particular the National Institutes of
Health (NIH) on the research requests.  In addition, he agreed to
the following: 1) that a report on the meeting would be
published; 2) that guidelines should be developed for healthcare
providers on how to conduct sexual histories and how to fill out
surveillance forms so that lesbians are counted (because
generally women don't get asked if they partner with women or if
they have ever had sex with women); 3) that CDC guidelines should
be reviewed for heterosexist bias; 4) that a presentation would
be made to the CDC's HIV Prevention Advisory Committee and that
they should take up the issue of woman-to-woman HIV transmission;
5) that a woman-to-woman HIV transmission resource packet would
be developed; 6) that future meetings with more community
involvement (in particular, that of HIV-positive women) would
occur; and, perhaps most importantly, 7) that more research on
woman-to-woman transmission was needed. 

     Because there is such a lack of data and research and such a
lack of surveillance related to women who partner with women, we
spent a great deal of time on these two issues and I want to
expand on them here:

     With regard to research, we talked specifically about
behavioral research and assessing the risk factors that women
engage in.  We also noted that we need to look at the
intersection between HIV and STDs, sexually transmitted diseases,
along with developing a discordant couple study Ä in order to
educate couples where one partner is HIV-negative and one partner
is HIV-positive.  Women who are in those situations don't have a
clue about what kind of sex to engage in since that kind of
information has not been provided to them so they can feel
comfortable being sexual in their relationships.  Further, there
must be case studies of woman-to-woman HIV transmission.

     With regard to surveillance, we need to both increase our
surveillance and understand how to do better surveillance of
women who partner with women.  We need to get at all the

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anecdotal evidence that we have from working with women that has
not been formalized and documented.  

     The CDC employs what they call a risk hierarchy, and there
is a great need to revise the risk hierarchy.  What that means is
that when a woman is tested and is asked a battery of questions
about her behavior, if she says that she has had sex even once
with a man since 1977, even if all her other sexual encounters
have been with women, if she slept once with a man since 1977,
she will be categorized as heterosexual.  

     So what happens then is that we have no way of tracking how
many women who identify as lesbians because they are lost in that
kind of a hierarchy.  We also have no way of tracking the
behaviors of those women who are then slotted into those various
categories.  So of the women who are in the heterosexual
categories, or in the injecting drug using category, we don't
know how many may or may not identify as lesbians but spend most
of their time with women, including most of their sexual time,
and most of their time in lesbian communities.  If we had those
numbers Ä which we could get, in part, by revising the risk
hierarchy Ä we could target the critical preventive education
appropriately.  Prevention education needs to be specifically
targeted with regard to behavior, it needs to be culturally
sensitive, and it needs to go to communities where women who
partner with women spend their time Ä to lesbian and bisexual
communities.  

     Minutes of the meeting have not yet been distributed and
thus, we do not have confirmation that the CDC is moving forward
on this agenda.  But you can be sure that those of us in
attendance will actively follow up with the CDC. 

     The final word I would leave with those of you who work
within the legal system is this:

     There are many ways that you can support the work I've just
described because the issue is still so closeted.  Educating
yourselves on the issue of woman-to-woman transmission; educating
others; working with community-based organizations that do HIV
work that is specifically focused on women; making your
community-based HIV organizations accountable when they say they
provide service and education to women (make sure their efforts
really are appropriately tailored toward women and make sure
they're not leaving out outreach to the lesbian and bisexual
women's communities).

     Additionally, working with women's health organizations and
making sure they don't drop out HIV issues in their work with
women, including a focus on woman-to-woman transmission; and
critically important, using your expertise and whatever access to
channels of power that you have to move this issue onto the front
burner.  Another very valuable way that you can use your
analytical and research skills is to become involved in
legislative efforts and work in the public policy arena.

     As an example of the importance of public policy work, there

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---------------------------------END PAGE 95---------------------------------------

is a strong move in this country Ä at both the federal level and
with various states Ä to target childbearing women for mandatory
HIV testing.  While this issue is not germane to the information
I've provided to you here regarding woman-to-woman HIV
transmision, it is another issue where the intersection of gender
and race and class is paramount.  We're talking mostly about
women who are HIV-positive and who are poor and of color who will
be the focus of any attempt at mandatory HIV testing.  Such an
effort must be vigorously fought.  And those who must take the
lead are the women, as unfortunately, far too many Ä even within
the HIV communities Ä see this as a women's issue and are not
taking it on as "their" issue or as an issue that could
ultimately become their issue.  Again, we know the power Ä or
lack thereof Ä of an issue that mostly affects women and women
who are disenfranchised because of race and class and HIV status.

We'll need all the support you can muster to win this one.

     I thank you again for your commitment to women, to fighting
HIV, to keeping conscious about the intersection of sexual
orientation, gender, race and class Ä as that critical
intersection relates to the healthcare and very survival not only
of individuals in this country, but to the health and well-being
of our society.



Presentation by Linda Allen:

     What we have heard already is really a strong statement
about HIV in women and what the barriers and issues are.  What
I'd like to talk a little bit about - following up on Gina and
Rhonda and Eileen are some of the legal issues that come up in
the context of running a legal clinic for people with HIV and
AIDS.  And I want to challenge you: if you're not already
involved this is a wonderful, wonderful way to do some true
lawyering, some counseling and advocacy for people who really,
really need it.

     As you've heard from our other speakers, there are certainly
a number of issues surrounding HIV that point up the neglect and
almost avoidance of women's issues; I want to just run through
some of the most critical legal areas for women with HIV, and
then talk a little bit about one particular model of delivery of
legal services.  Several legal issues are of special concern to
HIV-positive women.

     One of those areas is one that's important, I think, for
everyone; and certainly for anyone with HIV, especially women,
and that is doing advance planning.  Just as Gina was referring
to, when she related that in her initial conversations with
clients she mentions advance directives, durable power for health
care, and so forth; then in later conversations, she ll talk
about these issues a little more seriously.  In the AIDS legal
clinic setting where 25 to 30 HIV-positive people are seen in one
evening for legal services, all provided by volunteer attorneys,
probably 80% the clients need and receive basic planning

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documents.  We want be sure that they have a Will in place, to be
sure that they understood about advance directives, and to
prepare those documents, and talk about them with our clients. 
As difficult as that is, we found almost without exception that
when clients came back to sign their documents, they would
comment,  Well, you know, I really put this off or I really was
put off when you brought it up, but I feel good that I got this
taken care of.   So we found that for many of our clients it was
 empowering  to take care of this piece of business that can be
quite simply done but that brings up a lot of issues.  Certainly,
anyone can purchase an adequate printed form document, so it's
not necessarily a magical thing that requires an attorney's
expertise by any means.  However, some of the counseling that an
attorney can do around these documents (particularly if you have
an interest in helping people with social issues), counseling is
often done in the clinic setting.  You may find as a lawyer who
interviewing a client, that you are first person, or one of the
first people outside that person's partner or family, who learns
of your client s HIV status.  We find ourselves as lawyers not
only hearing about someone's legal issue but about their lives
and about the most intimate aspects of their lives; we have the
ability to both take that information and to be able to give
something back in terms of,  Well, you know I can't solve all of
this for you and I won't pretend to think that I can, but here's
a piece of business that we can take care of for you and you'll
act on it and it's something you can do and some things I can do
and it's done and taken care of.   Pretty satisfying work to do
that, and to feel that there are practical things that are
helpful for clients.  From the perspective of many of our
volunteer lawyers, they would comment that their Monday night at
the clinic was the most rewarding part of the week.  And we do a
lot of things in our practice that are frustrating and hard and
sometimes challenging and sometimes not, but not always
personally satisfying.  So it's an opportunity for that kind of
satisfaction as well.

     To get back to which legal issues are of particular concern:
First, preparing a Will for women, and especially for many of
them, establishing a guardianship; we've been talking about
guardianships for a woman with children, you know how to do that.

We might want to talk a bit about pending legislation, regarding
joint guardianship that's particularly important in California;
secondly, preparing a durable power for health care, explaining
what it means and why it's important; third, talking about a
declaration to physicians.  All are fairly simple, standard
documents that we consider as basic needs for all of our clients
and something that can be pretty readily done.

     Another legal area of concern for people with HIV is
confidentiality: confidentiality in medical records,
confidentiality in the employment setting, (and certainly Rhonda
had a couple of what I would call  success stories  in the
employment context).  As we all know, there's some pretty awful
stories out there, too, about people who have either voluntarily
disclosed their HIV status or for whom it's been involuntarily
disclosed, who have lost their jobs, who have been shunned at

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their jobs, who have had really unfortunate situations, and I've
heard other good stories like Rhonda's.  I have one of my own
favorites about a young man who was a paralegal in a fairly good-
sized firm in San Diego who didn't share his status for a while
and when he did, much to his surprise, had a great deal of
support in the firm and continued to work for quite some time. 
When he became too ill to go into the office and stay, he was set
up with a computer at home, the ability to work at home on the
days he needed to, or to come in later if he needed to.  And in
his final months it was his employee-colleagues who formed a
support circle of friends who came and brought him food and spent
time with him in those last several weeks.  And I've always liked
that story - but it shouldn't be the exception.  That's what we
would all hope to have, but unfortunately I think it still is
exceptional.  So if one is HIV-positive, issues surrounding
confidentiality and what can be disclosed and when to disclose it
are very real and important for all of our clients; it s critical
to be able to talk with our clients about what the California law
is on HIV antibody test-confidentiality.

     The general rule is that you can't disclose HIV antibody
test results without written authorization.  There are a
multitude of exceptions to that, and many different
interpretations about how narrowly that could be construed.  Does
the prohibition apply only to test results on a piece of paper,
or does it mean if I tell you that I'm HIV-positive you can't
share it with the person at the other end of the table.  There
are a lot of issues around that.  A lot of difficult stories
still about what happens to people because of the stigma still
attached to HIV.  So we want our clients to be educated about how
to make that decision, when is it appropriate to disclose, when
it might not be, in what context do you want to disclose, what
kinds of things do you want to be careful about, not only in the
employment setting.  In the health care setting, we want our
clients to ask their physicians  how do you keep your charting ;
 where are you going to keep my test results ;  who has access to
my medical records?    Is everybody throughout the office
including the front receptionist going to know my history?  
 Will the receptionist say something when I'm called in to the
doctor s office?    Oh, well, you know, he's got AIDs, don't get
too close to him  and there are still these kinds of things
happening.

     We want our clients to be more educated about what the legal
issues are, what their protections are, and where and when to be
careful so that they can make the appropriate decisions depending
on their personal situation.  Certainly as I have alluded to
there's a lot of discrimination still.  I think it's improving. 
I think the more people listen and talk and share information
about HIV (and I think all of us here this morning talk about it
openly) the more people understand and really know that it's  not
them , it's us, and we need to talk about it and we need to know
that and to share that information.  Those of us who work or have
worked in the HIV setting find that when we re away from that
setting, we may still be surprised.  When we are talking with a
colleague or a friend and making some assumptions that the public
knows a lot about HIV or talk about it and then we hear people

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say,  Well, isn't that really awful work, or aren't you worried
doing that kind of work, or gee, I don't know anyone who has
HIV.   I'm still shocked by that but it happens.  I'm sure it
happens to others besides me.

     Again, it's the education that s critical. I think you have
a special opportunity to do that sort of education.  As lawyers
we have special training that helps us understand what the policy
issues are, understand about writing legislation and being really
strong advocates of good legislation.  We feel strongly about it
and believe in advising people about their rights and helping
them protect those rights.  In terms of access to legal services,
there are a number of ways in which lawyers can help people with
HIV.

     When we talk about helping women with HIV, as Gina pointed
out, many women who are HIV-positive are facing so many issues in
their lives, gender issues, race issues, class issues.  So the
idea of seeing or needing a lawyer for something that's going in
their lives is a pretty boring one or even if it's there, it's
pretty far down the list.  And often people think of lawyers only
in the context of litigation, so if I don't have a lawsuit, I
haven't been in an accident, I don't have a criminal matter, what
do I need a lawyer for?  One of the things that we as volunteer
lawyers in the clinic would often talk about when we go out to
speak to groups whether community based organization or health
department or a school or whatever it might be, is to help people
understand that there are things that lawyers can help with that
don't all take place in the courtroom.  And that gets back to
that idea of counseling and advocacy and educating people about
their rights.

     The model that we use in doing so, a really successful one,
is the clinic.  A very small handful of lawyers now, 8 1/2 years
ago I guess, came together and decided that they wanted, as
volunteers, to provide legal services to people with AIDS.  And
they talked to the people running the local AIDS project, and
began one night a week, to see a few clients on a walk-in basis
in a small room.  It started with two or three or four clients. 
Some weeks there wouldn't be a client.  It's grown to the point
where there are 25 or 30 or more once a week who show up, no
appointments, no eligibility requirements in terms of financial
eligibility or immigration status or anything else, simply that
the person be HIV-positive and no requirement that you bring your
test results or a doctor's letter or anything else.  You come in
if you are HIV-positive and we ask  what are your issues?   It
has grown since then, the panel of volunteer lawyers now includes
over 200.  Some of those lawyers are a small group who come every
week and have come every week for years.  Others say I can't come
to your clinic Monday night but I'll take family law cases and
I'll do whatever number of them I can depending on my practice
and my time constraints.  Others say I'll do home and hospital
visits.  I don't want to come to the clinic Monday night but call
me when someone needs to have a Will done in the hospital or a
Health Care Durable Power or someone needs a hospital visit and
I'll do that.


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     We were able to form a group of lawyers and a clinic which
for a long time, for many years, operated without any paid staff
at all.  It was just four years ago that we had the first paid
legal services coordinator and then only half-time, paid for 18
hours a week to run the Monday night clinic, to take cases, to
keep the volunteer staff organized.  Now we have a full-time
legal services coordinator, a paid paralegal, and provide
services to a lot of people, about 1300 each year, covering a
wide range of cases.  We don't do a lot of litigation, there
isn't really the money to do it, nor the need.  We ve found that
litigation for most of our clients is not the most helpful or
productive sort of result to legal problems, particularly for
someone who is facing a disabling, life-threatening illness.  We
handled not only the basic estate planning, some family law
issues, guardianships of course, landlord - tenant issues (which
come up a lot), public benefits, SSDI/SSI or MediCal benefits for
our clients; housing discrimination, a pretty broad range of
issues, also including insurance issues.  Our procedure is to
connect client with an attorney who specializes in that
particular area.  We used a simple intake form which directed the
client to  check off  boxes in terms of  what kinds of issues
would you like to talk to a lawyer about tonight?   And a client
would come in and perhaps check off a number of issues.  They
probably wouldn't all get resolved that night but they might see
more than one attorney that evening, at least briefly to do an
initial interview or be asked to come back next week so you can
talk to someone about some of these other issues.

     From the perspective of the attorney, it's a wonderful
training ground.  For new lawyers it s a way to get some
interviewing experience which you don't always get, certainly not
in a large law firm.  You may be in a back room still doing a lot
of research or working on one big case or sitting in on an
interview that the senior partner or a junior partner is doing. 
So we had a wonderful training ground for young lawyers, and law
students as well, who would get the opportunity to do the
interviewing, to really assess the issues and to do that work. 
In the context of dealing with a client who is facing numerous
social issues as well as their illness, to try to draw out of
that what the legal issues are and which are the ones that we can
actually handle and do something about.  That s a challenge to
any of us and certainly a challenge for a young lawyer.  So I
think that our students and young lawyers really appreciated that
opportunity.

     We also, as volunteer lawyers, spend a lot of time talking
together.  We talk after clinics,  now I saw someone with this
situation.   There's a lot of that sort of networking that some
of us had the opportunity to do in our practices and others don't
get enough of that opportunity and really enjoy that, just
talking about our cases, what do you think about this, who should
we call about this, what's the best way to handle this without a
number of problems, and we really should share our expertise in
that way.  For many of the lawyers it was an opportunity to see
some of the problems that people face that they didn't see in
their practices.  Certainly if you have a business practice or
work for a corporation, you don't see a lot of those real

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individual personal issues.  I like that opportunity to see that
and to deal with those problems.

     The model in San Diego is to have a weekly clinic where
clients can walk in.  We never needed to advertise it.  It was
definitely a word-of-mouth advertising.  It's pretty well known
now the everyone who comes in that particular night will be seen
no matter how long it takes.  We could draw in enough volunteer
staff, not only lawyers, but also paralegals, law students, a
notary public, who think  I can do something to help.    I'll sit
at the front table and go see the in-take applications and assign
client to lawyer.    I'll be sure that there are enough chairs in
the room.   As you can imagine, there is plenty of work to be
done.

     We had a few areas in which we really didn't advise clients,
we didn't take on personal injury lawsuits, we didn't take on
issues where there are plenty of lawyers available on a
contingency basis, we didn't try to get into those.  It was more
a matter of handling practical issues in a practical and usually
pretty effective way.  It certainly is a real opportunity for
lawyers to do satisfying work and also to share ourselves with
our community in a larger way.  It also gives lawyers an
opportunity to do community advocacy and education.  Once you
start doing some of this work, you'll find that there are
numerous places in your community where you are needed and asked
to come in because you've become very quickly the expert on HIV. 
This role helps us connect with the rest of the community with
people who are teachers, social workers,  psychologists,
counselors, or case workers/ case managers .

     In my view the case managers are the people who really are
the main assistants and helpers to our clients.  They are the
people on the front lines who listen to the stories, who say,
okay, for your housing problem we'll call here, and this is the
person who can help, and this is what they can do, etc.  What we
can do is help someone to sort out this terrible laundry list of
problems and deal with it and get some very practical effective
results.  

     I know that Eileen wants to talk a little about a
legislative update so I'd like her to have time to do that and
time for questions and I think we are beginning to run over.  I
want to just mention a couple of references.  One is that there
is a Women and HIV Conference in San Diego in the fall.  This is
a conference that is especially for HIV-positive women, although
there are other people who make up the audience.  It is the third
time the conference has been done.  There are four tracks over
three days - September 22-24.  The tracks are (1) direct
services, (2) prevention, (3) life management, and (4)
biomedical.  If you have an interest in having a brochure sent to
you, or you have clients who might like to know about it, and we
do try to help HIV-positive women be able to attend, please sign
up and I'll see that you get a brochure.  

     Finally, if you are interested in doing some AIDS legal work
there are a couple of legal treatises and manuals that are

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---------------------------------END PAGE 101---------------------------------------

particularly helpful.  One is the National Lawyers Guild AIDS
manual, it's a binder that's fabulous.  I ve relied on it for
years; it's practical, it gives you an overview of areas that you
might not have practiced in and highlights what the issues are,
what the statutes are, where you need to go, how you can help
your client.  Another book that I found particularly interesting
is Women, AIDS and Activism, by the Act Up New York Women and
AIDS Book Group.  Thank you.
SUPREME COURT OF FLORIDA

IN RE: ADVISORY OPINION TO THE ATTORNEY GENERAL--RESTRICTS LAWS
RELATED TO DISCRIMINATION

NO. 82,674


                      STATEMENT OF THE CASE AND FACTS

(a)   Introduction

     The initiative proposed by the American Family Political
Committee of Florida (hereinafter AFPC), the component of the
American Family Association which is coordinating the petition
drive, seeks to amend the Florida Constitution by striking laws
protecting lesbians and gay men against discrimination.  The
proposal's title and summary do not indicate this purpose;
rather,
those sections, as well as the initiative itself, would prohibit
any level of Florida's government from protecting a variety of 
classes of citizens from discrimination, even where the need for
such protections is well-documented and agreed to by members of
government.  The respondents argue that this initiative must be
struck from the ballot because 1) its title and summary are
inaccurate; 2) it addresses multiple subject matters; and 3) it
violates the fundamental constitutional rights of Florida's
citizens.
(b) Procedural Background
     This matter is before the Court pursuant to a request from
the
Attorney General for an advisory opinion concerning the validity
of
an initiative petition to amend the Florida Constitution in
accordance with article IV, 10 of the Florida Constitution and
16.061(1), Florida Statutes (1991). The full title and text of
the
proposed amendment submitted by the AFPC of Florida is as
follows:


     "Laws Related to Discrimination are Restricted to Certain
     Classifications"

     FULL TEXT OF PROPOSED AMENDMENT:  BE IT ENACTED BY THE
     PEOPLE OF FLORIDA THAT:

     Therefore, to the extent permitted by the Constitution of
     the United States, the people of Florida, exercising

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     their reserved powers, hereby declare that:
     
     1)   Article I, Section 10 of the Constitution of the  
     State of Florida is hereby amended by:

          a)   inserting "(a)" before the first word thereof and,
          b)   adding a new sub-section "(b)" at the end thereof
to
     read:
               "(b)" The state, political subdivisions of the
               state, municipalities or any other governmental
               entity shall not enact or adopt any law regarding
               discrimination against persons which creates,
               establishes, or recognizes any right, privilege or
               protection for any person based upon any
               characteristic, trait, status or condition other
               than race, color, religion, sex, national origin,
               age, handicap, ethnic background, marital status  
               or familial status.  As used herein the term "sex"
               shall mean the biological state of being either a
               male person or a female person; "marital status"
               shall mean the state of being lawfully married to
a
               person of the opposite sex, separated, divorced,
               widowed or single; and "familial status" shall    
               mean the state of being a person domiciled with a
               minor, as defined by law, who is the parent or
               person with legal custody of such minor or who    
               is a person with written permission from such 
parent or person with legal custody of such minor."
     2)   All laws previously enacted which are inconsistent with
     this provision are hereby repealed to the extent of such
     inconsistency.
     3)   This amendment shall take effect on the date it is 
     approved by the electorate.

     On November 4, 1993, the Attorney General for the State of
Florida submitted a letter to the Court requesting an advisory
opinion concerning the proposed amendment.  On November 16, 1993,
this Court issued an Interlocutory Order authorizing interested
parties to file briefs on or before December 6, 1993, and setting
oral argument for January 7, 1994.  Pursuant to that order this
brief is submitted on behalf of the interested parties described
below in opposition to the proposed initiative.
(c)  Facts
     (1)  The AFPC Petition Drive
     Because this is an original proceeding without a trial
record,
the respondents have attached an appendix with relevant materials
to assist the Court in understanding the factual scenario in
which
this petition arises.  On March 15, 1993, AFPC president David
Caton unveiled the AFPC's petition drive to amend Florida's
Constitution with the statement, "Homosexuality is not a civil
right."  "Group Measures to Block Rights for Gays,"  The
Gainesville Sun, Mar. 16, 1993, at 6B.  (App., Ex. G).
     By calling the American Family Political Committee of

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---------------------------------END PAGE 103---------------------------------------

Florida
at 1-800-GAY-LAWS, interested people may request a copy of the
AFPC
petition accompanied by a cover letter and a brochure entitled
"Are
Homosexual Rights Traditional Civil Rights?"  See Cover Letter
and
Brochure (App., Exs. B & C).  Describing the petition's purpose,
the letter says:  "This petition is designed to stop homosexual
activists and other special interest groups from improper
inclusion
in discrimination laws." Id.  The letter, which is signed by Mr.
Caton, also explains that the amendment "would prevent
homosexuality and other lifestyles from gaining special
protection
from inclusion in discrimination laws."  Id. 
     The accompanying brochure, which includes a section entitled
"Let's Stop the Homosexual Agenda Now,"  asks readers to support
the petition drive by circulating and signing the petition and
contributing funds to the petition drive.  See "Are Homosexual
Rights Traditional Civil Rights?" (App., Ex. C).  Like Mr.
Caton's
letter, the brochure explains that the amendment "would repeal
existing homosexual rights laws and prevent the adoption of
future
homosexual rights laws" as well as "prevent other special
interest
groups from misusing discrimination laws." Id.
     (2)  The Targeted Class:  Lesbians and Gay Men in Florida
     As the AFPC's promotional literature makes clear, the
amendment's primary goal is to cut back the civil rights
protections available to lesbians and gay men in Florida. 
Currently, ordinances prohibiting sexual orientation
discrimination, which protect heterosexuals as well as lesbians,
gay men, and bisexual persons from arbitrary discrimination based
upon their sexual orientation, are in place in the following
cities
and counties in Florida:  Key West, Miami Beach, Tampa, West Palm
Beach, Alachua County, Hillsborough County, and Palm Beach
County. 
     In addition, the violence perpetrated against lesbians and
gay
men has led legislators to include sexual orientation as a
protected classification in bias crime laws.  A study by the
National Institute of Justice indicates that gay men and lesbians
are probably victimized more than any other minority groups and
another has found that one in five gay men and almost one in ten
lesbians report that they have been physically assaulted because
of
sexual orientation.  Note, Sexual Orientation and the Law, 102
Harv.L.Rev. 1508, 1541 (1989).  See also Herek, Myths About
Sexual
Orientation:  A Lawyer's Guide to Social Science Research, 1 Law
&
Sexuality 133, 167 (1991) (A copy of the latter article is
attached
in the Appendix as Exhibit H)

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(d)  Interests of the Respondents
     Florida AIDS Legal Defense and Education Fund (FALDEF) is a
not-for-profit corporation formed to provide legal services and
community education to persons with HIV infection.  It has joined
this challenge to protect the individuals, including gay men,
whom
it assists who will be impacted by this initiative.
     The Florida Public Interest Lawyer Section (PILS) is a
section
of the Florida Bar which advocates for the legal needs of people
who are generally disenfranchised, underrepresented, or lack
meaningful access to traditional public forums.  The Section
joins
this challenge to assert the interests of lesbians, gay men,
bisexuals, and others who will be denied protection from
discrimination as a result of this measure.
     The Florida Association of Women Lawyers (FAWL) is a large
voluntary statewide association of attorneys of both genders
whose
purposes include improvement of the administration of justice and
the promotion of women's legal rights and the integrity of the
individual and the family.  It has joined this challenge to
promote
equality and protection for individuals and families in Florida.
     Florida Legal Services, Inc., is the state organization
formed
to provide support and assistance to the legal aid and legal
services organizations throughout Florida, which provide
representation to indigent Floridians.   Its interest in this
action is to protect indigent Floridians whose programs and legal
rights are threatened by the AFPC initiative.
     Floridians Respect Everyone's Equality (FREE) is an
organization formed under section 501(c)(4) of the Internal
Revenue
Code to educate the public concerning the consequences of ballot
initiatives which seek to restrict the civil rights of
Floridians,
including gay men and lesbians.  Its interest in this challenge
is
to protect Florida citizens from the restrictions upon civil
rights
caused by the AFPC initiative.
     Floridians United Against Discrimination (FUAD) is an
organization formed under section 501(c)(4) of the Internal
Revenue
Code dedicated to fighting discrimination in Florida.   Its
interest in this legal action is to fight the discrimination
which
is encouraged by this initiative against Florida residents.
     The Miami Area Legal Services Union (MALSU), an affiliate of
the National Organization of Legal Services Workers, Local 2320
of
the United Automobile Workers (UAW), AFL-CIO, represents the
attorneys and support staff of Legal Services of Greater Miami. 
Its purposes include attempting to obtain civil rights
protections
for many groups, including some of those targeted by the AFPC

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initiative, and it is for that reason that the Union joins this
legal action.
     The National Lesbian and Gay Lawyers Association (NLGLA) is
a
national bar association formed to provide support and advocacy
on
behalf of lesbian and gay attorneys.  It joins this action
because
of its interest in promoting the civil rights of gay men,
lesbians,
and bisexuals who are targeted by the AFPC initiative.
     The National Organization of Women, Florida Chapter, is a
national organization formed to seek equal rights for women in
our
society.  Its interest in this challenge is to protect the equal
rights of all of the Florida citizens threatened by this
initiative.
     People for the American Way is a 300,000-member national
organization formed to protect constitutional liberties.  Its
interest in this action is to protect the constitutional
liberties
of its Florida members.
     The Southern Poverty Law Center is a non-profit organization
dedicated to protecting victims of injustice.  Its Legal Division
represents victims of intolerance in state and federal courts. 
Its
interest in this action is to assist all of the victims of
intolerance targeted by this initiative.
     The United Teachers of Dade's Gay and Lesbian Caucus, an
officially recognized caucus of United Teachers of Dade, is a
non-
profit organization formed in order to educate, elucidate, and
organize around those issues of concern to the Gay and Lesbian
community. It participates in this response because of its deep
belief that this proposed amendment challenges its members' civil
rights, inherent human dignity, and very livelihood.
                          SUMMARY OF THE ARGUMENT
     The initiative submitted by the AFPC proposes to amend the
Florida Constitution without explaining the proposal's central
purpose as described in the organization's literature promoting
the
amendment (supra, p. 2):  to repeal existing city and county
civil
rights laws which prohibit sexual orientation discrimination and
to
prevent future passage of such laws at any level of Florida
government.  The amendment's vague language puts at risk numerous
Florida statutory and constitutional provisions that protect a
wide
range of citizens in addition to the targeted class of lesbians
and
gay men.  Apparently the result of a dangerous attempt to mislead
the public, the title, summary and measure itself fail to explain
the amendment's pernicious effect upon a variety of unrelated
laws
as well as its violation of Floridians' fundamental
constitutional

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rights.
     This Court should strike the AFPC's proposed initiative from
the ballot because: (1) it violates Florida statutory
requirements
that its language be clear and unambiguous; (2) it violates the
Florida Constitution by encompassing more than a single subject;
and (3) its title violates Florida statutory requirements
requiring
clarity.  Further, because the proposed initiative palpably
violates the fundamental constitutional rights of identifiable
classes of Florida citizens, this Court should strike the measure
now before the citizens of Florida are subjected to a long,
divisive, and most significantly, harmful election campaign on a
constitutionally infirm measure.
     The proposed initiative would disable all levels of
government
from passing civil rights legislation to protect persons outside
of
the measure's narrow set of classifications.  As a result, it
would
preclude those citizens from participating meaningfully in the
political process on an equal footing with those of their fellow
citizens who are included in the initiative's special categories.

By creating separate classes of citizens--some with more access
to
government, others with less-- the measure violates the
fundamental
constitutional right of identifiable classes of Floridians to
equal
participation in the political process.  
     Moreover, cutting off the right of selected citizens to seek
legislation with its resulting termination of the right to
petition
the government seriously impedes freedom of expression, including
the freedom to engage in political speech.  The AFPC's initiative
raises the risk of speaking out against the proposed measure
already faced by those who support civil rights protections for
lesbians and gay men.  Because it would legally immunize many
forms
of discrimination from government action, the measure greatly
increases the danger that those who oppose it--especially if they
support lesbian and gay civil rights--will face discrimination
and
yet be unable to obtain protection from government.  Even
recognizing this Court's reluctance to consider pre-election
constitutional arguments, this measure presents one of those rare
instances when such examination is necessary to protect citizens
from irreparable harm.





                                 ARGUMENT
I.  THE AFPC'S PROPOSED INITIATIVE LIMITING ANTI-DISCRIMINATION
LAWS IS DEFECTIVE BECAUSE IT VIOLATES FLORIDA STATUTORY AND

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CONSTITUTIONAL REQUIREMENTS.

     A.  The Ballot Summary Violates the Requirements of Florida 
     Statutes, 101.161 Because It Fails to Provide Voters
     Fair Notice of the Proposed Amendment's Chief Purpose.
     The ballot summary for this initiative fails to clearly
inform
voters of its intent and effect.  When a constitutional amendment
"[i]s submitted to the vote of the people, the substance of such
amendment or other public measure shall be printed in clear and
unambiguous language on the ballot."  101.161, Fla. Stat. (1991)

The ballot summary requirement was "designed to assure that the
elector have fair notice of the proposed amendment's chief
purpose." (citations omitted).  Advisory Opinion to the Attorney
General-Limited Marine Net Fishing, 620 So.2d 997, 999 (Fla.
1993);
In re Advisory Opinion to the Attorney General-Homestead
Valuation
Limitation, 581 So.2d 586, 588 (Fla. 1991).  In providing clear
and
unambiguous notice, this Court stated in Grose v. Firestone, 422
So.2d 303 (Fla. 1982), that the summary must contain:
     no hidden meanings and no deceptive phrases.  The summary
     says just what the amendment purports to do.  It gives
     the public fair notice of the meaning and effect of the
     proposed amendment.

     In addition to ensuring that the language presented is
understandable, courts will review the summary to see if it omits
material facts, Florida League of Cities v. Smith, 607 So.2d 397,
399 (Fla. 1992); Advisory Opinion to the Attorney General: 
Limited
Political Terms in Certain Elective Offices, 592 So.2d 225, 228
(Fla. 1991), or is misleading, Limited Political Terms, 592 So.2d
at 228; Evans v. Firestone, 457 So.2d 1351, 1354-55 (Fla. 1984). 
In Smith v. American Airlines, 606 So. 2d 618 (Fla. 1992), the
Florida Supreme Court found the summary addressing taxation of
leaseholds of government-owned property to be defective because
the
summary failed to explain that the new taxation rate would be
based
on the real property method and the rate could be increased
fifteen
times.
     The AFPC initiative's summary falls far short of meeting the
standard set by this Court.  In its entirety, the summary reads:
     Restricts laws related to discrimination to
     classifications based upon race, color, religion, sex,
     national origin, age, handicap, ethnic background,
     marital status, or familial status.  Repeals all laws
     inconsistent with this amendment.

This summary fails to comply with any of the factors required by
this Court in determining if fair notice is given.  It is
unclear,
ambiguous, and misleading because it does not reveal to the

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electorate the main purpose of the initiative--to deny gay men
and
lesbians the right to seek, and state and local governments the
right to pass and maintain, anti-discrimination legislation.  The
main targets of the initiative are mentioned nowhere in the
summary
nor in the amendment itself.  This type of deception is common
amongst the proponents of these "anti-gay" amendments as has been
noted by one legal commentator:  "These groups frequently distort
the true nature of their organizations, rely upon discredited
experts and facts, and conceal from voters the true purpose of
their legislation." (citations omitted) Note, Constitutional
Limits
on Anti-Gay Rights Initiatives, 106 Harv.L.Rev. 1905, 1907
(1993). 
This type of subterfuge is precisely the evil against which this
Court has consistently guarded.  
     The fact that gay men and lesbians are the primary, and thus
far, the only publicly-named targets of the AFPC is abundantly
clear from their printed materials.  As noted in the Facts
Section
of this brief (supra, p. 2) the AFPC literature criticizes gay
men
and lesbians and makes clear that the initiative's purpose is to
stop sexual orientation civil rights legislation.  Not only is
the
toll free number for the petition drive 1-800-Gay-Laws, but also
the second paragraph of the cover letter, which accompanies the
petitions sent to callers, states, "This petition is designed to
stop homosexual activists and other special interest groups from
improper inclusion in discrimination laws."  (App. Ex.).  Nowhere
does the AFPC define the "other special interest groups."
     If the summary stated this purpose, there might be an
argument
that this summary was not misleading, but that is not the case: 
the only place where it is not made abundantly clear that this
initiative is about the rights of lesbians and gay men is in the
amendment itself and its ballot title and summary.  This sort of
disguised purpose--where the campaign materials state an intent
different from the initiative language itself--has been rejected
by
this Court:
     [t]he availability of public information about a proposed
     amendment cannot be a substitute for an accurate and
     informative ballot summary.  As this Court stated in
     Askew, 'the burden of informing the public should not
     fall only on the press and opponents of the measure--the
     ballot title and summary must do this.' (citation
     omitted).

Smith v. American Airlines 606 So.2d at 621.

     In addition to requiring that the amendment state its
primary
purpose, the Court must look to see if the measure would have
additional hidden effects.  The initiative, in the portion
pertinent to this discussion, states that the state and its

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political subdivisions: 
     [s]hall not enact or adopt any law regarding
     discrimination against persons which creates,
     establishes, or recognizes any right, privilege, or
     protection for any person based upon any characteristic,
     trait, status, or condition . . . .

However, the measure fails to define its central terms--
discrimination, right, privilege, protection, characteristic,
trait, status, or condition--thus making the scope of this
extremely broad proposal unclear.  The ambiguity is particularly
pernicious because the initiative's language voids any law which
provides a "right, privilege, or protection" for any
characteristic, trait, status, or condition not included among
its
list of special classes.  Neither the amendment nor its summary
reveal the laws which would be repealed.  
     A startling array of laws may fall prey to this amendment. 
No
Florida case has provided a specific definition for the term
"discrimination," but a number of cases discuss discrimination in
a wide variety of contexts.  When a statute provides no
definition
of a term, the courts will look to the term's plain and ordinary
meaning.  Doe v. Thompson, 620 So.2d 1004, 1005 (Fla. 1993)
(using
dictionary meaning of "personally"); Florida League of Cities,
607
So.2d at 399; Smith v. American Airlines, 606 So.2d at 620; In re
Advisory Opinion to the Attorney General:  English--The Official
Language, 520 So.2d 11, 13 (Fla. 1988).  Dictionary definitions
of
the term "discrimination" equate it with any difference in
treatment.  Roget's College Thesaurus 138 (rev. ed. 1978);
American
Heritage Dictionary of the English Language 376 (New College ed.
1976) ("to make a clear distinction; distinguish; differentiate;
to
act on the basis of prejudice").  
     This definition of "discriminate" and the restrictions on
laws
providing benefits thus place a broad variety of statutes in
jeopardy, a result to which the amendment fails to alert or warn
voters.  A lengthy list of statutes which "discriminate" (i.e.,
make distinctions) and provide "rights, privileges, or
protections"
to persons based upon characteristics, traits, statuses, or
conditions not mentioned in the amendment is included in the
appendix to this brief. (App., Ex. D)  Some of the statutes which
are endangered include those providing benefits based upon the
status of being a veteran (Fl. Stat. 11.2135 (1) (1991),
exempting
disabled veterans from entrance exams and specific hiring
procedures for state employment; Fl. Stat. 295.07(1) (1991),
hiring and retention preferences for disabled veterans and their
spouses), or a state resident (Fl. Stat. 196.031 (1991),
homestead

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
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property tax exemptions for residents; Fl. Stat. 240.1201
(1991), 
tuition preferences for state residents attending state
universities and colleges).  Further, the initiative would limit
the powers of local governments, thus amending the Municipal Home
Rule Powers Act, Fla. Stat., 166.021 (1991).  By its own terms,
this measure might be the basis for striking all of the
protections
and rights extended to corporations, their shareholders,
directors,
and officers, all of which are rights, privileges, or protections
extended because of the legal status of these persons.  This
amendment could void all consumer protection statutes which
provide
protections based upon a person's status or condition of being a
consumer.  It may impact the broad number of statutes which
prohibit "discrimination" in the determination of rates or
provision of insurance protection outside of those conditions
listed in the amendment.  It may also affect all of the statutes
which provide blanket prohibitions against discrimination in
setting rates or providing other protections as applied to
persons
not in the initiative's enumerated groups.  In addition, this
Court's recent anti-discrimination rule for attorneys as it
covers
economic status, sexual orientation, and physical characteristic
also could be endangered. The Florida Bar Re:  Amendments to
Rules
Regulating the Florida Bar, 18 FLW S393 (June 23, 1993).  The
statutes which provide benefits to indigent persons
(Medicaid-Fla.
Stat., 409.211; Optional State Supplementation Benefits-Fla.
Stat., 409.212; Aid to Families with Dependent Children--Fla.
Stat., 409.235) could be repealed because they provide
privileges
based upon economic status.  The initiative gives no guidance on
how these provisions will be affected.
     The initiative may also amend the Florida Constitution as
well
as Florida statutes.  Three separate Florida Circuit Courts have
ruled that the Florida Constitutional Privacy Amendment, Art. I,
23, provides protection to gay men and lesbians from
governmental
interference.  Seebol v. Farie, 16 FLW C52 (Fla. 16th Cir. Ct.
1991); Woodard v. Gallagher, 1 FLW Supp 17 (Fla. 9th Cir. Ct.
1992); Cox v. Dry, 1 FLW Supp. 352 (Fla. 12th Cir. Ct. 1993). 
This
initiative may remove such protection.
     Furthermore, the initiative could affect the Florida Equal
Protection Clause, Art. I, 2. In addition, it will impact
sections
concerning home rule powers, Art. VIII, and the homestead
provisions, Art. VII, 6.  Section II. B. of this brief (infra,
p.
24) describes how this provision violates the Equal Protection
Clause of the United States Constitution.  For the same reasons,
this initiative would also amend the Florida Equal Protection

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Clause.  In fact, it would seem that this initiative more
accurately amends that clause, as opposed to the Bill of
Attainder
Section to which it is attached.  Further, this initiative limits
the powers of local governments.  Article VIII, 1, which sets
out
the Home Rule Powers of the counties and municipalities, removes
the power of counties and municipalities to protect their
citizens
against unfair discrimination.  The amount of power to be
delegated
to local governments is a complex area which has been developed
over time in Florida and should not be upset because of a poorly
drafted initiative which does not consider the importance of this
balance of power.  See generally, Vaubel, Toward Principles of
State Restraint Upon the Exercise of Municipal Power in Home
Rule,
23 Stetson L. Rev. 643 (1993), Broward County v. City of Fort
Lauderdale, 480 So.2d 631, 634 (Fla. 1985) (discussing history of
the changes to the Florida Constitution concerning the powers of
counties and municipalities).  The Constitution's provision for
homestead exemptions confers a privilege based upon residency
status and could thus be altered by this initiative.
     The initiative's summary clearly falls short of statutory
requirements.  It misleads the public and omits critical
information, thereby completely failing to inform voters of its
primary purpose.  The measure is also ambiguous and unclear; it
fails to define key terms and explain the breadth of its impact. 
The voters are entitled, pursuant to Fla. Stat., 101.161, to an
explanation of what they are asked to approve.  This initiative
summary fails to meet this statutory requirement.  In an apparent
effort to mislead voters, the proponents of the amendment reveal
neither the initiative's true intent, nor its actual effect.  The
Court must not allow the initiative's placement upon the ballot
because it is impossible for a reasonable voter to ascertain the
amendment's chief purpose or ultimate impact from reading the
ballot summary. 

 Article XI, 3 of the Florida Constitution Because it Embraces
More Than One Subject.

     Article XI, 3, Florida Constitution, requires that a
proposal
to amend the Constitution "shall embrace but one subject and
matter
directly connected therewith."  In its most recent advisory
opinion, this Court stated that in determining if an initiative
embraces more than one subject, the Court must consider if the
various segments of the amendment have a "natural relation and
connection as component parts or aspects of a single dominant
plan
or scheme." (citations omitted). Limited Marine Net Fishing, 620
So.2d at 999. This Court has viewed the standard as necessary "to
prevent the proposal of an amendment which contains two unrelated
provisions, one which electors might wish to support and one
which
they might disfavor." Id. at 999 (citing Limited Political Terms

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in
Certain Elective Offices, 592 So.2d at 225).  This problem,
referred to as "logrolling," caused the Court to strike proposed
measures in both Evans v. Firestone, 457 So.2d at 1354, and Fine
v.
Firestone, 448 So.2d 984, 995-96 (Fla. 1984)(Ehrlich, J.,
concurring).  The Constitutional single-subject requirement is
meant to "protect against multiple precipitous changes in our
state
constitution." (citations omitted) Limited Political Terms, 592
So.2d at 227, and to promote clarity.  Addressing clarity,
Justice
Shaw stated that the single-subject requirement helped ensure
"that
the initiatives are sufficiently clear so that the reader,
whether
layman or judge, can understand what it purports to do and
perceive
its limits." Fine, 448 So.2d at 998 (Shaw, J., concurring). 

     In addition to examining a provision's facial validity, this
Court has consistently applied a functional analysis to
initiatives.  Even after abandoning its earlier "locational" test
which voided initiatives because they impacted different statutes
or portions of the Constitution, this Court has continued to
consider it significant when an initiative would affect different
sections of the Constitution: "how an initiative proposal affects
other articles or sections of the constitution is an appropriate
factor to be considered in determining whether there is more than
one subject included in an initiative proposal."  Fine, 448 So.2d
at 990.  Thus, the Court has rejected proposals which change
multiple statutes.  In Fine, the Court disapproved an initiative
which addressed the generation and expenditure of revenues. 
because it affected the government's ability to tax, government
user-fee operations, and funding of capital improvements through
revenue bonds.  Fine 448 So.2d at 990.  The Court rejected the
proponents' attempts to characterize the provisions as simply
affecting the single subject of revenues.
     The Court has also disapproved expansive provisions covering
different subjects encompassed within a "cloak of broad
generality."  In Evans, the Court voided a provision which
attempted to modify the concept of joint and several liability,
to
limit certain types of damages, and to make the summary judgment
rule a part of the Florida Constitution.  Rejecting the attempt
to
characterize the proposal as simply an effort to bring about tort
reform, the Court found the breadth of coverage "so broad as to
fail to delineate the subject or subjects of this amendment in
any
meaningful way." Id. at 1353-54.  Applying the functional
limitation test, the Court disapproved of the amendment's multi-
faceted effect on legislative and judicial functions.  Justice
McDonald also addressed the cloak of generality principle in
Fine. 
Finding that the subject of "revenues" actually encompassed a
multitude of subjects, Justice McDonald criticized the proponents

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who revealed "only the tip of the iceberg . . . .  The very
broadness of the proposal makes it impossible to state who it
will
affect."  Fine, 448 So.2d at 995 (McDonald, J., concurring).
     The AFPC initiative violates all of the single-subject
requirement standards.  The initiative would affect a number of
governmental functions and has an impact upon a broad number of
subjects.  First, the initiative limits the ability of the state
legislature to pass legislation.  Second, it limits the ability
of
city and county governments to pass legislation.  Third, it
limits
the executive branch's ability to make policies which may fall
within the initiative's broad coverage of "laws."  Therefore, the
amendment affects different levels and branches of government.
     Further, the initiative addresses multiple subjects in that
it
prohibits government protections for many diverse groups and
would
strike laws passed to effectuate a variety of policies.  As
discussed in the ballot summary section of this brief,  this
provision would place numerous statutes in jeopardy of repeal. 
(supra, pp. 11-12).  The groups affected and the policies
underlying the laws are diverse.  The general reference to  "laws
covering discrimination" cannot be used to cloak the multitude of
subjects encompassed by this broad proposal.  
     The initiative also engages in precisely the sort of
"logrolling" that this Court and Florida's Constitution rejects. 
Although aimed at lesbians and gay men, it would also affect all
other persons who are currently protected by anti-discrimination
legislation or might ever seek such protection based upon a
characteristic not enumerated in the initiative.  Because of the
diversity of the groups excluded by this initiative, many voters
might approve of limiting protection to some of the groups,
notwithstanding the constitutional defects of such a position,
but
groups whom they favored would also be "logrolled" into this
proposal.
     In summary, the initiative fails to contain a single
dominant
plan or scheme.  It combines numerous unrelated groups and
classes
of persons.  It brings multiple precipitous changes to the
Florida
Constitution as well as limiting the powers of all branches of
state government and all levels of local governments.  Moreover,
as
outlined in the ballot summary analysis above, there are severe
problems in clarifying the amendment's ultimate impact; thus, the
clarity purpose of the single subject requirement is violated as
well.  The initiative, therefore, fails to meet the single
subject
requirement because it repeals statutes which have no natural
mutual relationship; it cuts too broad a swath to satisfy the
Florida Constitution, affecting persons and subjects far beyond
its
stated scope.

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     C.  The Initiative Limiting Anti-Discrimination Laws
Violates
     Florida Statute, 101.161 Because It Has a Defective Ballot
     Title

     The language of a ballot title must be "clear and
unambiguous",  Limited Political Terms, 592 So.2d at 228, so that
it can fairly "advise the voter sufficiently to enable him to
intelligently to cast his ballot." (citations omitted) Homestead
Valuation Limitation, 581 So.2d at 588.  The AFPC ballot title of
the proposed initiative, "Laws Related to Discrimination are
Restricted to Certain Classifications" fails dismally to meet
this
test.  Although all of the possible ramifications of an
initiative
need not appear in the ballot title, the title must at least
convey
an initiative's central purpose.  
     This initiative's central purpose is to restrict the rights
of
gay men and lesbians.  Its title, "Laws Related to Discrimination
are Restricted to Certain Classifications", fails even to hint at
this purpose.  Voters should not have to glean the purported
purpose of amendments to the Florida Constitution from campaign
advertisements or brochures.  See Smith v. American Airlines, 606
So.2d at 621.  Further, the title fails to warn voters of the
impact upon existing laws benefiting other groups which would be
repealed because of the ill-defined wording of the initiative. 
This title is misleading and defective on its face.

II.  THE COURT SHOULD HOLD THE INITIATIVE INVALID ON THE GROUND
THAT IT IS PALPABLY UNCONSTITUTIONAL.
     While this Court has wisely expressed reluctance to address
Constitutional violations in pre-election ballot initiative
challenges, the AFPC initiative presents the extreme case of
palpable and patent unconstitutionality which merits review. 
Every
single court that has considered proposals similar to the AFPC
initiative, including courts in California, Oregon, Colorado, and
Ohio, has found that the proposals violated constitutional
rights. 
This Court should join those in the other states who have
rejected
these measures.
     A.  The Court Should Consider the Constitutional Invalidity
of
     the Initiative Prior to Its Placement on the Ballot.

          1.  The Court Has Stated That It Would Consider
          "Palpable" Constitutional Violations in Conducting Pre-
          Election Reviews.
     This Court has held that where a proposed initiative is
sufficiently and "palpably" unconstitutional, it will consider
such
constitutional infirmities and invalidate the measure at the pre-
election stage.  Such measures may be struck  "'when the
amendment,

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if adopted, would palpably violate the paramount law and would
inevitably be futile and nugatory and incapable of being made
operative under any conditions or circumstances,'" Limited
Political Terms, 592 So.2d at 229 (Overton, J., concurring in
part
and dissenting in part, quoting Gray v. Winthrop, 115 Fla. 721,
726-27, 156 So. 270, 272 (1934)).  See also  Dulaney v. City of
Miami Beach, 96 So.2d 550, 551 (Fla. 3rd DCA 1957)("An election
should not be held if the ordinance proposed was clearly invalid
on
its face.").
     Courts in other states similarly recognize that pre-election
review of constitutional violations is appropriate in "the truly
extreme case."  Hessey v. Burden, 615 A.2d 562, (D.C. App. 1992).

Circumstances of patent unconstitutionality often trigger review
"on the ground that the electorate has no right to enact an
unconstitutional law."  Id.  See, e.g., Whitson v. Anchorage, 608
P.2d 759, 762 (Alaska 1980)(initiative right, while closely
guarded, does not extend to legislation which violates United
States or Alaska Constitution).  The AFPC initiative presents
this
extreme case.
     Considerations of efficiency and fiscal responsibility may
also mandate pre-election review.  Justice Overton, concurring in
part and dissenting in part from this Court's recent review of
the
proposed term limitations initiative, identified the value of
pre-
election review of constitutional challenges:
     A review at this time, should this legal issue be
     resolved adverse to the proponents of the amendment,
     would save both proponents and opponents of the amendment
     considerable expense and the considerable expense to the
     state of a futile election.  To allow the people to vote
     and then, if adopted, hold the provision unconstitutional
     on its face perpetuates a fraud on the voting public.
Limited Political Terms, 592 So.2d at 229-30 (Overton, J.,
concurring in part and dissenting in part).  See also Hessey, 615
A.2d at 573; State ex rel. Voss v. Davis, 418 S.W.2d 163, 168 n.4
(Mo. 1967)("Usually courts will not inquire into the validity of
an
act of legislation until it has become fait accompli, but here we
will rule on the constitutional question because, if
unconstitutional, we should not put Kansas City to the burden and
expense of submitting the amendments to a vote.")(citations
omitted); Utz v. City of Newport, 252 S.W.2d 434, 437 (Ky. 1952).

     2.  The Proposed Initiative Requires Pre-Election
     Constitutional Review Because It Is Patently
Unconstitutional.
     Because the AFPC's proposed initiative "crosses the
threshold
of patent unconstitutionality,"  Hessey, 615 A.2d at 573, it
presents this Court with such an extreme case that merits
immediate
constitutional review. This measure is extreme because it

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restructures the entire political process, and in doing so,
creates
a new two-tiered citizenship status under which some citizens
have
meaningful access to government and others do not.  This
initiative
is not simply a legislative referendum on whether the State of
Florida should pass sexual orientation anti-discrimination
legislation as the AFPC literature suggests; rather, it is an
amendment to the Florida Constitution limiting elected officials'
ability to pass civil rights legislation and prohibiting groups
of
Florida citizens from obtaining such legislation.  It would
repeal
or amend the ordinances prohibiting sexual orientation
discrimination passed by the duly elected officials of the cities
of Key West, Tampa, West Palm Beach, and Miami Beach as well as
the
Counties of Alachua, Hillsborough, and Palm Beach.  Thus, elected
officials are prohibited from providing protection to their
constituents even if unfair discrimination is occurring in their
communities.  In addition, other citizens of Florida would be
prevented from seeking civil rights legislation from their duly
elected officials except for those individuals who need
protection
against discrimination based upon the statuses approved by the
AFPC.
     By submitting fundamental equal protection and first
amendment
rights to popular vote, the proposed measure diminishes the
ability
of the targeted citizens to exercise their fundamental
constitutional rights.  West Virginia State Bd. of Education v.
Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed.2d
1628,
1638 (1943).  In Gordon v. Lance, 403 U.S. 1, 6, 91 S.Ct. 1889,
29
L.Ed.2d 273, 276-77 (1971), the United States Supreme Court
reiterated that "the Bill of Rights removes entire areas of
legislation from the concept of majoritarian supremacy."  See
also
Hall v. St. Helena Parish School Bd., 197 F. Supp. 649, 659 (E.D.
La. 1961),("No plebescite can legalize an unjust
discrimination."),
aff'd, 368 U.S. 515 (1962); City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 448, 105 S.Ct. 3249, 3259, 87 L.Ed.2d 313,
326 (1985)("[i]t is plain that the electorate as a whole, whether
by referendum or otherwise, could not order city action violative
of the Equal Protection Clause").  The rights of groups seeking
protection from discrimination, who are not enumerated in the
proposed measure, cannot depend upon the groups' ability to mount
a political campaign to fend off misleading proposals such as the
one offered by the AFPC.
     The AFPC initiative's discriminatory restriction on
political
participation and virtual authorization of a selected set of
bases

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for discrimination certainly lies among the few subjects which
are
fundamentally inappropriate subjects for the initiative process. 
As former Oregon Supreme Court Justice Hans Linde explains, "[a]
statewide initiative may be a legitimate process for enacting a
gross receipts tax and not for raising social barriers between
groups of citizens."  Linde, When Initiative Lawmaking Is Not
"Republican Government":  The Campaign Against Homosexuality, 72
Or. L. Rev. 19, 32 (1993).  
     The Court should not wait to void an invalid initiative
until
an acrimonious, divisive campaign has shattered the political
equipoise of Florida.  To quote a California Court which struck a
proposed initiative seeking to limit the rights of lesbians and
gay
men: "If an ordinance proposed by initiative is invalid, routine
deference to the process will often require the charade of a
pointless election."  Citizens for Resp. Behavior v. Super.
Court,
1 Cal.App.4th 1013, 2 Cal.Rptr.2d 648 (Cal.App. 4 Dist. 1991). 
The
Florida electorate should not be subjected to a campaign for a
pointless election;  this Court should take the present
opportunity
to declare the initiative unconstitutional.
     B.  The Initiative is Palpably Unconstitutional Because It
     Infringes the Fundamental Right of Lesbians, Gay Men, and
     Other Minority Group Members to Participate Equally in the
     Political Process
          1.  The Right to Participate Equally in the
          Political Process Is a Fundamental Constitutional
          Right Which Is Subject to Strict Scrutiny    
     The Equal Protection Clause of the United States
Constitution,
Amendment XIV, U.S. Const., applies to all citizens, not just
members of suspect classes, and forms the basic foundation of our
nation's democracy.  Whether or not citizens are classified in
ways
traditionally considered suspect by the United States Supreme
Court, see, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 369; 6 S.Ct.
1064, 1070; 30 L.Ed. 220, 226 (1886), they may rely on this
guarantee which embodies the Framers' intent "not only to guard
the
society against the oppression of its rulers, but to guard one
part
of the society against the injustice of the other part." 
Madison,
Federalist No. 51 (Mentor ed. 1961) at 323.  The fundamental
rights
endangered by the AFPC's proposal are core to our nation's
democratic process as well as to the integrity of every
Floridian:
     One's right to life, liberty, and property, to free
     speech, a free press, freedom of worship and assembly,
     and other fundamental rights . . . depend on the outcome
     of no elections.


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West Virginia State Bd. of Education v. Barnette, 319 U.S. 624,
638
(1943).  This Court must not tolerate such dangerous misuse of
the
initiative process. 
     The levels of judicial scrutiny utilized in equal protection
analysis--strict, intermediate, and minimal-- are well
established. 
See City of Cleburne v. Cleburne Living Center, 473 U.S. at
440-41. 
Generally, states have wide latitude to legislate and their
actions
are presumed to be constitutional so long as the statutory or
constitutional classification rationally relates to a legitimate
state interest.  Id.  However, laws or constitutional amendments
that discriminate on the basis of a "suspect" classification,
see,
e.g., Graham v. Richardson, 403 U.S. 365, 372; 91 S.Ct. 1848,
1852;
29 L.Ed.2d 534, 541-42 (1971) (alienage); Loving v. Virginia, 388
U.S. 1, 11; 87 S.Ct. 1817, 1823; 18 L.Ed.2d 1010, 1017 (1967)
(race); Korematsu v. United States, 323 U.S. 214; 65 S.Ct. 193,
89
L.Ed. 194, reh'g denied, 324 U.S. 885, 65 S.Ct. 674, 89 L.Ed.
1435
(1944) (national ancestry and ethnic origin), or that infringe on
fundamental constitutional rights, Cleburne 473 U.S. at 440,
Graham
v. Richardson, 403 U.S. at 365, face the most exacting standard
of
review -- strict scrutiny.  To justify such a measure, the state
must demonstrate that it seeks to achieve a compelling interest,
that its proposed action is necessary to achieve its goals, and
that it has no less intrusive alternatives that it can undertake.

Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886,
23
L.Ed.2d 583 (1969); Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382,
72
L.Ed.2d 786, reh'g denied 458 U.S. 1131 (1982).
     Because the proposed Initiative would restructure Florida's
political process and cut off the political participation of 
various classes of citizens, it merits the strictest standard of
review.  This Court should prevent this attempt by one segment of
society to vote away the fundamental rights of others, a
proposition which would turn the Constitution's promise of equal
protection on its head.
     The right of citizens to participate in the political
process
has been celebrated as a core democratic value from the inception
of the United States as a democratic republic to the present day.

See Evans v. Romer, 854 P.2d 1270, 1276 (citing John Hart Ely,
Democracy and Distrust 87 (1980)), cert. denied, 114 S.Ct. 419
(1993).  The right to vote, the right to representation in a
republican form of government, and the right to petition the
government for redress of grievances all form part of this

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fundamental constitutional guarantee.  See, e.g., Reynolds v.
Sims,
377 U.S. 533,  84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), reh'g
denied,
379 U.S. 870. (one person, one vote); Dunn v. Blumstein, 405 U.S.
330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) ("In decision after
decision, this Court has made clear that a citizen has a
constitutionally protected right to participate in elections on
an
equal basis with other citizens in the jurisdiction.");  Milton
v.
Smathers, 389 So.2d 978, 982 (Fla. 1980).  
     Indeed, equal participation in the process of government
lies
at the heart of the United States Supreme Court's political
participation jurisprudence of the last three decades.  In
contexts
ranging from reapportionment, see, e.g., Reynolds v. Sims,
Wesberry
v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964);
Lucas
v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12
L.Ed.2d 632 (1964), to minority party rights, see, e.g., Williams
v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 72 (1968) to
wealth
or property restrictions, see, e.g., Harper v. Virginia State Bd.
of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966);
Kramer v. Union Free School Dist., 395 U.S. 621 (1969) and other
similar roadblocks to effective political participation, see,
e.g.,
Dunn v. Blumstein, 405 U.S 330, 92 S.Ct. 995, 31 L.Ed.2d 22
(1972);
Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675
(1965), the Court has underscored the importance of participation
in the political process to our constitutional democracy. 
Without
fail, it has emphasized that the right of meaningful political
participation is the fountainhead of all other rights and, as
such,
merits the strongest possible constitutional protection. 
Reynolds
v. Sims, 377 U.S. at 562; Wesberry v. Sanders, 376 U.S. 1, 17
(30). 
The Court, therefore, has subjected laws infringing this
fundamental right to its strict scrutiny review.  Kadrmas v.
Dickinson Public Schools, 487 U.S. 450, 108 S.Ct. 2481, 101
L.Ed.2d
399 (1988).  The Court locates its rationale at the heart of the
Constitution:  "The concept of 'we the people' under the
Constitution visualizes no preferred class of voters but equality
among those who meet the basic qualifications."  Gray v. Sanders,
372 U.S. 368, 379-80, 83 S.Ct. 801, 808, 9 L.Ed. 821 (1963).
     Participation in the political process is critical to our
constitutional democracy; thus, state-imposed burdens on the
participation of identifiable groups must satisfy the highest
scrutiny.  See Evans v. Romer, 854 P.2d at 1279,  ("The common
thread [among these cases] is the principle that laws may not

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create unequal burdens on identifiable groups with respect to the
right to participate in the political process absent a compelling
state interest").  See also Equality Foundation of Greater
Cincinnati v. Cincinnati,    F.Supp.    (So.D.Ct. Ohio, Nov. 19,
1993) (Slip Opinion, App., Ex. H).
     2.  The Initiative Would Restructure Florida's Government
     According to Non-neutral Principles Previously Struck by the
     United States Supreme Court
     Measures such as the proposed initiative, intended to cut
back
the civil rights of an identifiable minority group and stem the
normal functioning of the democratic process, are not new in
American history.  Indeed, shortly after the African-American
civil
rights movement won some legislative victories in the form of
anti-
discrimination laws, a counter-movement arose to overturn those
laws and prevent future passage of similar measures.  See, e.g.,
Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830
(1967)(invalidating initiated constitutional amendment aimed to
overturn California laws prohibiting race discrimination in
housing
and prevent future passage of such laws); Hunter v. Erickson, 393
U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969)(invalidating
initiated charter amendment intended to overturn Akron's anti-
discrimination ordinance and prevent future passage of similar
ordinances).  In striking down these initiated amendments, the
United States Supreme Court evaluated the facially neutral
language
of the measures in their contemporary context to understand their
true intent and effect, and it affirmed that such measures
infringe
and endanger the fundamental right of equal participation in the
political process.
     In Hunter v. Erikson, an Akron charter amendment passed by
voters required that anti-discrimination measures related to
race,
religion, or ancestry receive majority voter approval prior to
enactment, while other ordinances remained subject to the
original
rule which required only City Council approval.  Although the
classification involved in Hunter was based upon race, the Court
invalidated the amendment not simply because of its racial
classification, but rather because it interfered with the right
of
persons to participate on an equal footing in the political
process.  Hunter, 393 U.S. at 391.  While Akron could decide to
require all of its municipal legislation to be approved by
plebiscite, the Court held that it could not selectively burden
legislation that might benefit a particular group. 
     [T]he State may no more disadvantage any particular group
     by making it more difficult to enact legislation in its
     behalf than it may dilute any person's vote or give any
     group a smaller representation than another of comparable
     size.
Id. at 393 (citations omitted).  To support its conclusion, the
Court relied on two voting rights cases.  Id. (citing Reynolds v.

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Sims, 377 U.S. 533 (1964) (unconstitutional apportionment
favoring
rural counties) and Avery v. Midland County, 390 U.S. 474
(1968)(unconstitutional apportionment among single-member
districts
of substantially equal populations violated right to vote).
     Thirteen years later, in Washington v. Seattle School
District
No. 1, 458 U.S. 457, 102 S.Ct. 318, 73 L.Ed.2d 896 (1982), the
Court invalidated an initiative adopted by Washington voters
which
denied local school districts the right to use mandatory busing
to
achieve racial integration.  The measure at issue barred minority
groups from seeking favorable remedial programs from district
school boards which otherwise continued to administer virtually
all
aspects of the school system.  Relying on Hunter, the Court held
that the voters had interfered impermissibly with the political
process by burdening minority groups efforts' to secure
beneficial
programs.  See id. at 467-70. The Washington Court adopted
Justice
Harlan's view articulated in Hunter that the restructuring of
government processes may take place only according to "neutral
principles."  Id. at 469.  Thus, the Court concluded that the
imposition of uniform requirements on the political process is
not
unconstitutional  "[b]ecause such laws make it more difficult for
every group in the community to enact comparable laws.'" Id. at
470
(quoting Hunter v. Erickson, 393 U.S. at 393 (emphasis in
original).  
     The Hunter and Washington initiatives did "not attemp[t] to
allocate governmental power on the basis of any general
principle,"
but rather used "the racial nature of an issue to define the
governmental decisionmaking structure, and thus impose
substantial
and unique burdens on racial minorities."  Id.  However, while
both
cases involve racial classifications, the Court's analysis
centers
on the burden on "any particular group," Hunter, 393 U.S. at 392.

After extensively analyzing these two cases, the Colorado Supreme
Court concluded, "it would be erroneous to conclude that the
'neutral principle' precept is applicable only in the context of
race discrimination."  Evans v. Romer, 854 P.2d at 1281. See also
Equality Foundation of Greater Cincinnati v. Cincinnati,    
F.Supp.    , slip op. at 14-15.
     Similarly, in Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29
L.Ed.2d 273 (1971), the United States Supreme Court again applied
the Hunter analysis to the issue of political participation.  In
resolving the challenge to a statutory-required supermajority
requirement for increasing West Virginia's bond indebtedness or
state tax rates, the Court asked whether "any sector of the

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population may be said to be 'fenced out' from the franchise
because of the way they will vote."  Id. at 5.  In contrast to
Hunter, the Gordon court could "discern no independently
identifiable group or category that favors bonded indebtedness
over
other forms of financing."  Id.  The Court then restated the
governing constitutional standard:  "[S]o long as such provisions
do not discriminate against or authorize discrimination against
any
identifiable class, they do not violate the Equal Protection
Clause."  Id. at 7.
     In sum, therefore, the right of citizens to participate on
equal footing in the political process is a fundamental
constitutional right.  Any measures which impede exercise of that
right by an identifiable class are subject to strict judicial
scrutiny.  Because participation is an independently protectible
constitutional value, courts must be suspicious of any effort to
burden that value by singling out and interfering with meaningful
political participation by identifiable groups.  Whether the
proposed inhibition relates to wealth, military service, property
ownership, tax status, sexual orientation, or, as here, all of
the
above, the constitutional right to political participation must
prevail.    
     3.  The Initiative's Facially Neutral Language Cannot
Overcome
     Its Violation of Equal Protection Guarantees.
     The Court must review the AFPC initiative in the context of
Florida's state and local civil rights laws to ascertain its
immediate objective, ultimate effect, historical context and the
conditions existing prior to its enactment. Reitman, 387 U.S. at
373.  As discussed above, despite its purported objective, the
proposed initiative would repeal not only laws which prohibit
sexual orientation discrimination but also those which prohibit
discrimination or provide rights, benefits, or privileges to
numerous other groups.  Further, it would prohibit the state,
municipalities and any other government entities from adopting
any
law based upon classifications which may currently or in the
future
form the basis for discriminatory treatment.
     Rather than remove all anti-discrimination laws from state
and
local control, the proposed initiative isolates certain
classifications which it deems worthy of protection, repeals all
other existing protective laws, and revises the political process
so that people seeking protection based on other non-enumerated
classifications must overcome enormous and possibly
insurmountable
political hurdles.  In its effect, therefore, the initiative is
similar to Colorado's Amendment 2, which prohibited all state
governmental entities from recognizing claims of discrimination
against lesbians, gay men and bisexuals.  See Evans v. Romer, 854
P.2d 1270, (Col. 1993).  Upholding a preliminary injunction
against
Amendment Two's enforcement, the Colorado Supreme Court clearly
identified the measure's constitutional flaw: 

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     In short, gay men, lesbians, and bisexuals are left out
     of the political process through the denial of having an
     "effective voice in the governmental affairs which
     substantially affect their lives."  Kramer, 395 U.S. at
     627.  Strict scrutiny is thus required because the normal
     political processes no longer operate to protect these
     persons.  Rather, they, and they alone, must amend the
     state constitution in order to seek legislation which is
     beneficial to them.  ...Amendment 2 singles out and
     prohibits this class of persons from seeking governmental
     action favorable to it and thus, from participating
     equally in the political process.
Evans v. Romer, 854 P.2d at 1285.
     The Evans court explained that prior to Amendment 2's
passage,
lesbian, gay and bisexual Colorado citizens could avail
themselves
of the political process on the same basis as all other citizens
seeking legislation beneficial to them.  If the amendment had
taken
effect, however, "the sole political avenue by which this class
could seek such protection would be through the constitutional
amendment process."  Id. at 37.  
     The Idaho Attorney General, pursuant to a
statutorily-required
review process, has also found that a proposed initiative which
sought to restrict the rights of lesbians and gay men would
violate
equal protection guarantees for reasons similar to those given by
the Colorado Supreme Court.  Like the AFPC initiative, the Idaho
provision attempts to prevent gay men and lesbians from obtaining
anti-discrimination protections; it differs from the AFPC
initiative mainly in that it does not hide its antipathy toward
the
targeted class as does the Florida provision.  (A copy of the
Idaho Attorney General opinion is attached in the Appendix). 
     Because it would remove all anti-discrimination laws from
state and local control by isolating certain classifications for
protection, repealing all other existing protective laws, and
placing virtually insurmountable political hurdles in front of
all
others seeking protection, the AFPC's initiative goes even
further
than the initiatives in Colorado and Idaho.  It is, of course,
impossible to predict what characteristics will require
protective
legislation in the future.  Indeed, legislation against race and
gender discrimination was not adopted until many years after the
phenomenon of such discrimination was widely-acknowledged. 
Similarly, fifteen years ago, there was no need for HIV/AIDS
discrimination legislation because the disease had not yet been
identified in this country.  Although people with HIV faced
discrimination as soon as the disease became known, the courts
did
not recognize until much later that this was discrimination on
the
basis of a disability.  The AFPC's proposal's wide reach will

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---------------------------------END PAGE 124---------------------------------------

only
increase the harm Floridians will suffer.
     Courts have consistently inquired beyond the facial meaning
of
statutes to discover invalidating purposes.  This was true in
both
Reitman and Hunter where the initiatives' facially neutral
language
did not rectify their constitutional flaws.  In Reitman, for
example, the proposed constitutional amendment did not
specifically
name the groups which were being targeted.  Rather, the
initiative
barred the State and any of its agencies or subdivisions from
interfering with "the right of any person ... to decline to sell,
lease or rent ... [his] property to such person or persons as he,
in his absolute discretion, chooses."  387 U.S. at 371.  Despite
this facially neutral language, the United States Supreme Court
held that the initiative violated equal protection guarantees by
affirmatively authorizing and encouraging racial discrimination
in
the housing market and by establishing the right to discriminate
as
"one of the basic policies of the State."  Id. at 381.  The
United
States Supreme Court specifically noted that the California
Supreme
Court "quite properly undertook to examine the constitutionality
of
[the amendment] in terms of its 'immediate objective,' its
'ultimate effect' and its 'historical context and the conditions
existing prior to its enactment.'"  Id. at 373.
     In Hunter as well, the Supreme Court recognized that the
Akron
charter amendment, which appeared to be neutral on its face, was
a
subterfuge for an attempt to condone discrimination.  Id. at 390.

While acknowledging "the section draws no distinctions among
racial
and religious groups," and that "Negroes and whites, Jews and
Catholics are all subject to the same requirements if there is
housing discrimination against them which they wish to end," id.
at
390, the Court nonetheless found it had a discriminatory impact. 

     [A]lthough the law on its face treats Negro and white,
     Jew and gentile in an identical manner, the reality is
     that the law's impact falls on the minority.  The
     majority needs no protection against discrimination and
     if it did, a referendum might be bothersome but no more
     than that.
Id. at 391.
     4.  The Initiative Does Not Survive Minimal, Much Less
Strict,
     Scrutiny;  the State Has No Legitimate Interest in
Permitting

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     or Promoting Discrimination or Cutting Any Group of Citizens
     out of the Political Process.

     As recognized by the Colorado and California state courts
and
the Federal District Court in Ohio, the right to equal
opportunity
to participate in the political process is a fundamental
constitutional right.  See Evans v. Romer, Citizens for
Responsible
Behavior, Equality Foundation v. Cincinnati.  Because the
initiative infringes upon that right by attempting to tie the
hands
of Florida's government even when circumstances clearly warrant
government action, the sole remaining issue is whether the
initiative can survive strict scrutiny.  It cannot.  A law which
infringes the fundamental right to participate in the political
process withstands strict scrutiny only if it is narrowly
tailored
to achieve a compelling state interest. Evans, Plyler v. Doe, 457
at 216.  The AFPC's initiative does not satisfy either prong of
this test.
     Several local governments in Florida plainly believe that
circumstances warranted passage of anti-discrimination
legislation
to protect against sexual orientation discrimination, yet this
legislation would be nullified by the AFPC's proposed measure. 
Likewise, protective legislation and programs for other
classifications of citizens might also be invalidated or changed
because of this measure. (See Appendix, Ex. D). Government has no
compelling interest in depriving anyone of the ability to obtain
protection against discrimination.  Put another way, there is no
legitimate state interest in preventing elected officials from
responding to the legitimate concerns of an identifiable group of
citizens.  Nor, in particular, is there a compelling interest in
preventing lesbians and gay men from being protected by anti-
discrimination laws. Lesbians and gay men have long been targets
of
unfair discrimination, bigotry, and violence.  Supra, Note,
Constitutional Limits on Anti-Gay Rights Initiatives, 106
Harv.L.Rev. at 1906 n. 12. Cf. Citizens for Responsible Behavior
(no rational basis for government to burden passage of laws
prohibiting sexual orientation or HIV-related discrimination).
     Moreover, the AFPC's promotional materials do not articulate
a legitimate, let alone a compelling, state interest.  A review
of
its literature demonstrates that the American Family Association
seeks to pass the proposed initiative for an illegitimate
purpose. 
The equal protection clause does not permit states to treat
groups
differently solely for the sake of different treatment.  Further,
the mere "desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest."  United States
Department of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct.
2821, 2826, 37 L.Ed.2d 782 (1973)(emphasis in original).  This
Court cannot permit prejudice and fear to justify discrimination.

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See Cleburne, 473 U.S. at 447 ("mere negative attitudes ... are
not
permissible bases" for discriminating against the mentally
retarded.)  Moreover, discrimination motivated by antipathy does
not become legitimate simply because religious beliefs form the
basis for the social disapproval.
     Like the thinly veiled objective of the city ordinance
invalidated in Citizens for Responsible Behavior, the hostile and
discriminatory purpose of the proposed initiative leaps from the
face of its proponents' campaign literature.  See supra, Facts
Section (a).  By presenting an amendment that fails to mention
homosexuality, the AFPC cannot overcome the measure's
discriminatory purpose and effect or otherwise mask its campaign
of
hostility and prejudice.
     C.  The Initiative is Palpably Unconstitutional Because It
     Violates the First Amendment to the United States
     Constitution.

          1. The Initiative Violates The First Amendment's
          Protection of Expressive Conduct.
     The AFPC initiative violates the First Amendment to the
United
States Constitution because it substantially increases the risk
of
engaging in expressive conduct and inhibits the core political
speech of lesbians, gay men and others in classifications not
deemed eligible for anti-discrimination protection.  Because it
would disable every branch of state and local government from
providing any protection from discrimination to such individuals,
the proposed initiative would increase the risk of retaliation in
employment, housing and public accommodations for lesbians, gay
men
and others in non-enumerated groups who engage in expressive
activity.  The state may not so amplify the perils of engaging in
protected expression without compelling justification.
     Ordinarily, the First Amendment does not require that the
government protect individuals from retaliation by private
persons
because of expressive conduct.  But see Edwards v. South
Carolina,
372 U.S. 229, 236-37, 83 S.Ct. 680, 684, 9 L.Ed.2d 697
(1963)(state
must act to protect demonstrators threatened with violence by
those
who abhor their views).  Any individual who advocates social
changes runs the risk that before the change occurs, he or she
will
suffer retaliation.  See, e.g., Dorr v. First Kentucky National
Corp., 796 F.2d 179 (6th Cir. 1986)(bank employee fired for being
president of gay Christian organization); McConnell v. Anderson,
451 F.2d 193 (8th Cir. 1971) cert. denied, 405 U.S. 1046 (1972)
(gay man not hired as librarian because of his activities in
support of lesbian and gay civil rights).  
     However, if the government substantially increases an
individual's risk of private retaliation for protected

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---------------------------------END PAGE 127---------------------------------------

expression,
the First Amendment requires the government to demonstrate a
compelling justification for exposing those who engage in
expressive conduct to increased risk.  N.A.A.C.P. v. Alabama ex
rel
Patterson, 357 U.S. 449, 458-464; 78 S.Ct. 1163, 1169-75; 2
L.Ed.2d
1488, 1497-1501 (1958).  In N.A.A.C.P., the state of Alabama
sought
to discover the N.A.A.C.P. Alabama branch's membership list in an
action brought against the N.A.A.C.P. for failure to register as
a
foreign corporation doing business in the state.  Refusing to
produce the lists, the N.A.A.C.P. claimed that its members would
be
exposed to "economic reprisal, loss of employment, threat of
physical coercion and other manifestations of public hostility"
and
that such exposure was bound to discourage people from joining
and
participating in its activities.  357 U.S. at 452-54, 462-63.
     Similarly, in Bates v. Little Rock, 361 U.S. 516, 80 S.Ct.
412, 4 L.Ed. 480 (1960), the N.A.A.C.P. refused to turn over
membership lists to two Arkansas cities who required the lists as
part of the cities' business tax.  Again, the N.A.A.C.P. argued
that providing the lists would subject its members to harassment,
threats of bodily harm and economic reprisals, offering proof
that
public identification of members had previously led to harassment
and threats.
     In both cases, the United States Supreme Court rejected the
states' arguments that any repressive effect resulting from
exposure of the lists had no First Amendment significance because
the retaliation and threats would result from private, not
governmental, action.  N.A.A.C.P., 357 U.S. at 463; Bates, 361
U.S.
at 524.  Although it was true that the state was not itself
discouraging N.A.A.C.P. membership in either case, it was the
state
which would make new retaliation and threats possible by
demanding
the lists. 
     Likewise, under the proposed initiative, the government
would
substantially increase the risk of retaliation against those in
non-enumerated classes who engage in expressive conduct. 
Currently, lesbians, gay men and others who work for protection
against discrimination balance for themselves the risk of
retaliation with the potential that government might provide
protection or redress. The need for protection has been
recognized
by the 139 jurisdictions in this country which include sexual
orientation in their anti-discrimination laws.  Note,
Constitutional Limits on Anti-Gay Rights Initiatives.  By
sweeping
aside every potential means of redress for private retaliation --
making government protection from discrimination a virtual

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impossibility -- the initiative would increase dramatically the
risk of expression.  The First Amendment demands a compelling
justification for this endangering of protected speech -- which
neither the State nor the initiative's proponents can provide.  
     Furthermore, the proposed initiative will taint the
political
process now, prior to the election.  Because it would bar
government from protecting non-enumerated classes against
discrimination, lesbians, gay men and others who enter the public

debate against the initiative may expose themselves to
retaliation
 election, dismiss the possibility.  There can be no question
that
many will refrain from engaging in political speech against the
initiative out of fear of the consequences of its passage.  
     Prior to an election, this Court can and should address this
initiative's taint on the political process by its present,
chilling effect on the protected expression of lesbians, gay men
and others.  The equitable powers of this Court compel it to act
before individuals have suffered harm from their fear of
retaliation caused by an unconstitutional measure -- for an
alleged
constitutional infringement alone will often constitute
irreparable
injury.  Goldie's Bookstore v. Superior Court of the State of
California, 739 F.2d 466, 472 (9th Cir. 1984) (citing Wright &
Miller, 11 Federal Practice and Procedure, sec. 2948 at 440
(1973)).  The loss of First Amendment freedoms, even for minimal
periods of time, constitutes irreparable injury.  Elrod v. Burns,
427 U.S. 347, 373;  (1976).  See also Dombrowski v. Pfister, 380
U.S. 479, 486-87; 85 S.Ct. 1116, 1121-22; 14 L.Ed.2d 22
(1965)("Because of the sensitive nature of constitutionally
protected expression, we have not required that all of those
subject to overbroad regulations risk prosecution to test their
rights....The chilling effect upon the exercise of First
Amendment
rights may derive from the fact of the prosecution, unaffected by
the prospects of its success or failure.")  This Court should not
permit such an injurious campaign to take place where its
ultimate
result will be an invalid Constitutional amendment.
          2.  The Initiative Violates the Right of Citizens to
          Petition Their Government for a Redress of Grievances
     The proposed constitutional amendment should not appear on
the
ballot for the additional reason that on its face it violates the
Petition Clause of the First Amendment to the United States
Constitution.  The Petition Clause provides the following: 
          Congress shall make no law . . . abridging . .
          . the right of the people . . . to petition
          the Government for a redress of grievances.

Amend. 1, U.S. Const. 
     This Court has noted that the right to petition is a core
constitutional right which originated in English law. Cate v.
Oldham, 450 So. 2d 224, 25-26 (Fla. 1984). It stemmed from the

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
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right to petition local assemblies in colonial America, a right
that required governmental hearing and response.  Higginson, A
Short History of the Right to Petition Government for the Redress
of Grievances,  96 Yale L.J. 142 (1986).  The United States
Supreme
Court has stated the function of the right to petition: "In a
representative democracy such as this, these branches of
government
act on behalf of the people and to a very large extent, the whole
concept of representation depends upon the ability of the people
to
make their wishes known to their representatives."  Eastern
Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S.
127, 137; 81 S.Ct. 523, 5 L.Ed.2d 464, reh'g denied, 365 U.S. 875
(1961). Persons may not be deprived "of their right to petition
in
the very instances in which that right may be of the most
importance to them."  Id. at 472.  The government does not
guarantee success to any group seeking legislation, but it must
guarantee access to those bodies which might enact protective
legislation.  The Supreme Court has also stated that, "[I]t is
obviously peculiar in a democracy, and  perhaps in derogation of
the constitutional right 'to petition the Government for a
redress
of grievances' to establish a category of lawful state action
that
citizens are not permitted to urge." City of Columbia v. Omni
Outdoor Advertising, 499 U.S. 365 (1991) (citation omitted)
(holding that antitrust laws may not be extended to inhibit right
to petition).  The opinion by the Idaho attorney general attached
in the Appendix found a proposed provision would violate the
Petition Clause because it restricted the ability of lesbians and
gay men to petition state and local governments for protective
and
corrective legislation. (App., Ex. E).
     Florida courts have also recognized that the right to
effectively petition for redress of grievances  on which other
cherished rights ultimately depend.  Cross Key Waterways v.
Askew,
351 So. 2d 1062, 1065 (Fla. 1st DCA 1977), aff'd, 372 So.2d 913
(1978). It is  a form of democratic expression at its purest. 
Krivanek v. Take Back Tampa Political Committee, 603 So. 2d 528,
531 (Fla. 2d DCA 1992).
     Similarly, the United States Supreme Court has zealously
guarded the right to petition and participate in the political
process.  The initiative in this case raises impermissible
barriers to any persons seeking legislative protection from their
governments.  Such restrictions may be justified only for the
most
compelling of reasons.  There are no compelling state interests
which would justify the implementation of this Initiative.

III.  Conclusion
     The AFPC proposal plainly violates the First and Fourteenth
Amendments to the United States Constitution.  Now is the proper
time for this Court to address these palpable violations.  In any
event, the measure's violations of Florida's ballot title, ballot

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---------------------------------END PAGE 130---------------------------------------

summary, and single subject requirements mandate the striking of
the measure.
     
                    Respectfully submitted,                      


     
Attorneys for Respondents


                      
William E. Adams, Jr.              Chesterfield H. Smith
Fla. Bar No. 304093                Holland and Knight
Cooperating Attorney for Lambda    701 Brickell Ave., 30th Fl.
Legal Defense and Education Fund   P.O. Box 15441
3305 College Avenue                Miami, Fl 33101-5441
Fort Lauderdale, FL 33314
(305) 452-6133
                         
Suzanne Goldberg
Lambda Legal Defense and
Education Fund                
666 Broadway
New York, NY  10012-2317
(212) 995-8585

Rosemary Wilder
Gay and Lesbian Lawyers
Association of Florida
(305) 940-7557

Barbara J. Cox
Professor of Law
California Western School of Law

In re H.S.H-K, 193 Wis. 2d 649, 533 N.W.2d 419 (1995)

     The brief which follows this introduction was submitted to
the Wisconsin Supreme Court on behalf of the National Center for
Lesbian Rights.  They asked me to draft it for them, which I did.

I cannot take much credit for the initial section of the brief;
this is "boiler-plate" language which NCLR includes in many of
their family law briefs, in an attempt to educate judges about
the existence of and issues facing lesbian and gay families.

     The facts of the case are indicated in the brief.  This is a
custody and visitation claim filed by Sandra Lynne Holtzman, the
non-biological parent of H.S.H-K, the child she had with Elsbeth
Knott, the child's biological parent.  The Wisconsin Supreme
Court issued its decision on June 13, 1995 and, in doing so,
became the first state supreme court to recognize the visitation
rights of a non-biological lesbian parent.

     The court essentially, although not expressly, reversed its
earlier decision in In re Interest of Z.J.H., 162 Wis. 2d 1002,
471 N.W.2d 202 (1991) where it denied custody and visitation to

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 131---------------------------------------

the non-adoptive lesbian mother.  Two similar cases, where
visitation was also denied, include In the Matter of Alison D. v.
Virginia M, 77 N.Y.2d 651, 572 N.E.2d 27, 569 N.Y.S.2d 586 (1991)
and Nancy S. v. Michelle G., 228 Cal. App. 3d 831, 279 Cal. Rptr.
212 (1st Dist. 1991).  For a discussion of those cases and the
legal theories used in them, see Barbara J. Cox, Love Makes a
Family--Nothing More, Nothing Less:  How the Judicial System Has
Refused to Protect Nonlegal Parents in Alternative Families, VIII
J. L. & Pol. 5 (1991).

     In this case, the Wisconsin Supreme Court rejected
Holtzman's request for custody of her son.  The court held that
Holtzman had not "raised a triable issue regarding Knott's
fitness or ability to parent her child and has not shown
compelling circumstances requiring a change of custody."  Thus,
it affirmed the trial court's dismissal of the custody action.

     It also concluded, perhaps to avoid overruling Z.J.H., that
the visitation statute, sec. 767.245, Stats. 1991-1992, does not
apply to "Holtzman's petition for visitation rights to Knott's
biological child."  However, the court determined that the
legislature did not intend that the statute be the exclusive
method for obtaining visitation.  Refusing to read the statute as
supplanting or preempting "the courts' long recognized equitable
power to protect the best interest of a child by ordering
visitation under circumstances not included in the statute," the
court concluded that a trial court may determine whether
visitation is in the best interest of the child "if the
petitioner first proves that he or she has a parent-like
relationship with the child and that a significant triggering
event justifies state intervention in the child's relationship
with a biological or adoptive parent."

     The court explained that in order to demonstrate a parent-
like relationship between the non-biological or non-adoptive
parent and the child, the petitioner must prove four elements:

     "(1)  that the biological or adoptive parent consented
     to, and fostered, the petitioner's formation and
     establishment of a parent-like relationship with the
     child;

     (2)  that the petitioner and the child lived together
     in the same household;

     (3)  that the petitioner assumed obligations of
     parenthood by taking significant responsibility for the
     child's case, education and development, including
     contributing towards the child support, without
     expectation of financial compensation; and

     (4)  that the petitioner has been in a parental role
     for a length of time sufficient to have established
     with the child a bonded, dependent relationship
     parental in nature." (footnotes omitted)



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If the trial court determines that these four factors are
established, it must then find that a "significant triggering
event" justifies state intervention.  In order to do this, "the
petitioner must prove that this parent has interfered
substantially with the petitioner's parent-like relationship with
the child, and the petitioner sought court ordered visitation
within a reasonable time after the parent's interference.  

     Once the trial court finds both the existence of a parent-
child relationship between the petitioner and the child and a
significant triggering event justifying state intervention, then
the trial court must determine whether court-ordered visitation
is in the best interest of the child.  For these findings, the
Wisconsin court remanded to the trial court.  Knott's appeal to
the United States Supreme Court was denied.  

     The court's test resembles the theories set forth in two
excellent articles:  Nancy D. Polikoff's This Child Does Have Two
Mothers:  Redefining Parenthood to Meet the Needs of Children in
Lesbian-Mother and Other Nontraditional Families, 78 Geo. L.J.
459 (1990), as well as Kathleen Bartlett's, Rethinking Parenthood
as an Exclusive Status:  The Need for Legal Alternatives When the
Premise of the Nuclear Family Has Failed, 70 Va. L. Rev. 879
(1984).  Unfortunately, the Wisconsin Supreme Court refused to go
as far as either commentator in refusing to recognizing that this
parent-child relationship rises to a level to support granting
custody to the non-legal parent.  While this case can be heralded
as a significant contribution toward recognizing non-legal
parents, until those parents are able to establish standing in
custody suits, the courts will continue to show their
misunderstanding of the parental bond between these parents and
their children.





                     STATE OF WISCONSIN
                      COURT OF APPEALS
                         DISTRICT IV
                                                                 

                          
       
       In Re the Custody of:
       HARRISON SAMUEL HOLTZMAN KNOTT
       
       SANDRA LYNNE HOLTZMAN,
               
                    Petitioner-Appellant,
       
               v.                       Case No. 93-2911
       
       ELSBETH KNOTT,
       
                    Respondent.
                                                                 

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 133---------------------------------------


                          
       
           ON APPEAL FROM ORDER OF CIRCUIT COURT 
                       FOR DANE COUNTY
          THE HONORABLE GEORGE NORTHRUP, PRESIDING
                                                                 

                          
       
                   AMICUS CURIAE BRIEF OF 
             NATIONAL CENTER FOR LESBIAN RIGHTS
                                                                 

                          
         
                              HUME LAW OFFICES
                              Kathleen E. Hume
                              Wisconsin State Bar # 01014488
                              5665 S. 108th Street
                              Hales Corners, WI  53130
                              (414) 529-4149
       
                              Abby Abinanti, Legal Director
                              Barbara J. Cox
                              National Center for Lesbian Rights
                              1663 Mission Street, Suite 550
                              San Francisco, CA  94103
                              (415) 621-0674
       
                              Attorneys for Amicus Curiae
                                     National Center for Lesbian
Rights
                      TABLE OF CONTENTS
       
       ARGUMENT
       
          I.  THIS CASE WILL IMPACT THE LIVES OF
       THOUSANDS OF CHILDREN WHO LIVE IN FAMILIES
       HEADED BY LESBIAN OR GAY PARENTS. . . . . . . . . . .8
       
       
          II.  UNLIKE Z.J.H., IN THIS CASE AN INTACT
       FAMILY UNIT DOES NOT EXIST AND AN UNDERLYING
       ACTION AFFECTING THE FAMILY HAS BEEN FILED,
       THEREFORE, SANDRA HOLTZMAN IS ENTITLED TO
       SEEK VISITATION OF HER SON. . . . . . . . . . . . . 12
       
       
          III.  APPLYING SEC. 767.245(1), STATS., TO
       VISITATION CASES ONLY WHEN UNDERLYING
       ACTIONS AFFECTING THE FAMILY UNIT (LIMITED TO
       CUSTODY, DIVORCE, OR CHIPS CASES) HAVE ALREADY
       BEEN FILED PREVENTS MOST LESBIANS FROM
       OBTAINING JUDICIAL ASSISTANCE IN RESOLVING
       DISPUTES CONCERNING CHILDREN BORN INTO THEIR
       PLANNED FAMILIES, CONTRARY TO PUBLIC POLICY

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 134---------------------------------------

       AND STATUTORY MANDATE . . . . . . . . . . . . . . . 15
       
       
               A.  The Rule Delineated in Z.J.H. Unnecessarily
       Treats Lesbians Worse Than Heterosexuals Without Promoting
       The Policy Of Mitigating Trauma From Dissolving Family
       Relationships . . . . . . . . . . . . . . . . . . . 16
       
       
               B.  Allowing Co-Parents In Dissolving Lesbian
       Families To Obtain Visitation Is Consistent With The Clear
       Expression Of  Legislative Policy To Prevent
Discrimination
       Due To Sexual Orientation . . . . . . . . . . . . . 19
       
       
       
       
       
       
       
       
                    TABLE OF AUTHORITIES
       
       
       In re Interest of Angel Lace M.,
          Case Nos. 92-1369 and 92-1370. . . . . . . . . . 18
       
       In re Interest of Z.J.H.,
          162 Wis.2d 1002, 471 N.W.2d 202 
          (1991) . . . . . . . . . . . . . 12, 13, 14, 17, 18
       
       
       
                     WISCONSIN STATUTES
       
       944.17, stats. . . . . . . . . . . . . . . . . . . 20
       
       944.15, stats. . . . . . . . . . . . . . . . . . . 20
       
       944.01, stats. . . . . . . . . . . . . . . . . . . 20
       
       943.012, stats . . . . . . . . . . . . . . . . . . 20
       
       939.645(1)(b), stats . . . . . . . . . . . . . . . 20
       
       767.245(1), stats. . . . . . . . . . . . . . . 12, 15
       
       767.24(3), stats . . . . . . . . . . . . . . . . . 18
       
       234.29, stats  . . . . . . . . . . . . . . . . . . 20
       
       230.18, stats. . . . . . . . . . . . . . . . . . . 20
       
       230.01(2), stats . . . . . . . . . . . . . . . . . 20
       
       227.110(3)(a), stats . . . . . . . . . . . . . . . 21

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 135---------------------------------------

       
       146.025(7)(c)1, stats. . . . . . . . . . . . . . . 21
       Wisconsin Statutes Continued
       
       111.85(2)(b), stats. . . . . . . . . . . . . . . . 21
       
       111.81(12)(b), stats . . . . . . . . . . . . . . . 21
       
       111.70(2), stats . . . . . . . . . . . . . . . . . 21
       
       111.321, stats . . . . . . . . . . . . . . . . . . 21
       
       111.32(13)(m), stats . . . . . . . . . . . . . . . 21
       
       111.31(1), stats . . . . . . . . . . . . . . . . . 21
       
       101.22(1), stats . . . . . . . . . . . . . . . . . 21
       
       66.433(3), stats . . . . . . . . . . . . . . . . . 21
       
       66.432(1), stats . . . . . . . . . . . . . . . . . 21
       
       66.431(3)(e)2, stats . . . . . . . . . . . . . . . 21
       
       66.43(2m), stats . . . . . . . . . . . . . . . . . 21
       
       66.405(2m), stats. . . . . . . . . . . . . . . . . 21
       
       66.40(2m), stats . . . . . . . . . . . . . . . . . 21
       
       66.395(2m), stats. . . . . . . . . . . . . . . . . 22
       
       66.39(13), stats . . . . . . . . . . . . . . . . . 22
       
       38.23(1), stats. . . . . . . . . . . . . . . . . . 22
       
       36.12(1), stats. . . . . . . . . . . . . . . . . . 22
       
       21.35, stats . . . . . . . . . . . . . . . . . . . 22
       
       16.765(1), stats . . . . . . . . . . . . . . . . . 22
       
       15.04(1)(g), stats . . . . . . . . . . . . . . . . 22
       
       
       
                     OTHER PUBLICATIONS
       
     Agenda, Business News Bulletin of GLPCI, Sept. 1993 . 10
       
       Chira, Susan, Gay and Lesbian Parents Grow More Visible,
The
       New     York Times, Sept. 30, 1993, p. 1. . . . . . 10
       
     Griffin, Jean Latz, The Gay Baby Boom:  Homosexual
                 Couples Challenge Traditions as They Create New
                 Families, Chicago Tribune, Sept. 3, 1992, at C1,

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 136---------------------------------------

col. 18
       
     Griffin, Jean Latz, Law Begins to Address Rise in Gay
                 Families, Chicago Tribune, Sept. 4, 1992, at C1,
col. 411
       
     Harris, Scott, For This Family Call It Mothers' Day, Los
                 Angeles Times, May 9, 1993, at B1 . . . . 11
       
     Nan Hunter & Nancy Polikoff, Custody Rights of Lesbian
                 Mothers:  Legal Theory and Litigation Strategy,
25
                 Buff. L. Rev. 691 (1976). . . . . . . . . .8
       
     Kinsey, Pomeroy, Martin, & Gebhard, Sexual Behavior in the
                 Human Family (W.B. Saunders Co. 1953) . . .8
       
     Kolata, Gina, Lesbian Partners Find the Means to Become
                 Parents, N.Y. Times, Jan. 30, 1989, at A13, col.
111
       
     Lan, Angela, Lesbian Couples Opt for Babies, San Diego
                 Union Tribune, 3 Nov. 18, 1993, at H3 . . 11
       
     Lewin, Ellen, Lesbian Mothers (1993). . . . . . . . . .9
       
     Mandell, Jonathan, The Lesbian Baby Boom, Newsday, July
                 13, 1989, at 8, col. 1. . . . . . . . . . 11
       
       Martin, April, The Lesbian and Gay Parenting Handbook, 
                 (1993) . . . . . . . . . . . . . . . . . . . . .
10Other Publications Continued
       
     Martin, April, The Planned Lesbian and Gay Family: 
                 Parenthood and Children,  (Paper delivered to
the
                 1989 Annual Meeting of the American
Psychological
                 Association, New Orleans) . . . . . . . . .9
       
     Minkowitz, Donna, No Book Can Change a Child's
                 Sexuality, News Day, Nov. 30, 1992, at 55 .9
       
     Newman, Leslie, Heather Has Two Mommies (1989). . . . .9
       
       Note, Same-Sex Marriage, X N.Y.L.S. J. Hum. Rts. 555 
          (1993) . . . . . . . . . . . . . . . . . . . . . 17
       
     O'Connor, Lesbian Urges Therapists to Find New Voices, 
          Washington Blade, August 19, 1988, at 9, col. 2. 10
       
     Perez, Julia, To Beverly, in Harriet Alpert, ed., We Are
                 Everywhere (1987) . . . . . . . . . . . . .9
       
     Pies, Cheri, Considering Parenthood (1985). . . . . . .9
       
       Rubenstein, William, ed., Lesbians, Gay Men and the Law, 

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 137---------------------------------------

          (1993) . . . . . . . . . . . . . . . . . . . . . 19
       
       Tuller, David, Gays and Lesbians Try Co-Parenting, San
Francisco    
       Chronicle, Sept. 4, 1993, at A1 . . . . . . . . . . 11
       
     Tuller, David, Gay Co-Parenting Challenges Law on U.S.
                 Family, The (New Orleans) Times-Picayne, Feb.
10,
                 1993, at F10. . . . . . . . . . . . . . . 11
       
     Two Moms, San Francisco Examiner, June 12, 1989, at A1811
       
     Seligman, Variations on a Theme, Newsweek, Special
                 Section at 39, Winter/Spring 1990 . . . . .8
       
     Shapiro, E. Donald & Schultz, Lisa, Single Sex Families: 
                 The Impact of Birth Innovations Upon Traditional
                        Notions, 24 J. Fam. L. 271 (1985-86). . .
10Other Publications Continued
       
     Sherman, All In A Day's Work, Gay Community News, Feb.
                 14-20, 1988, at 7, col. 1 . . . . . . . . 10
       
     Sullivan, Joseph, Court Backs Lesbian's Right to Adopt
                 Partner's Child, New York Times, Aug. 11, 1993,
at
                 B5. . . . . . . . . . . . . . . . . . . . 11
       
     Weston, Kath, Families We Choose:  Lesbians, Gays, and
                 Kinship, (1991) . . . . . . . . . . . . . 10
       
       
       
       
       
                        OTHER SOURCES
       
     Oprah Winfrey Show, "Gay and Lesbian Adoption," ABC
                 Television Broadcast, Sept. 19, 1989. . . 11
       
     Phil Donohue Show, CBS Television Broadcast, Sept. 19,
                 1989. . . . . . . . . . . . . . . . . . . 11
       
     20/20, "I Have Two Moms," ABC Television Broadcast, May
                 6, 1989 . . . . . . . . . . . . . . . . . 11
       
     20/20, "Women Who Love Women," ABC Television
                 Broadcast, Oct. 23, 1992. . . . . . . . . 10
       
       
              
          I.  THIS CASE WILL IMPACT THE LIVES OF
       THOUSANDS OF CHILDREN WHO LIVE IN FAMILIES
       HEADED BY LESBIAN OR GAY PARENTS.
       
          Sandra Lynne Holtzman and Elsbeth Knott represent two

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 138---------------------------------------

of
       the estimated twenty-five million lesbians and gay men who
live in
       the United States.  They are also among the one to five
million
       lesbians in this country who are mothers.  While lesbian 
       invisibility in our society makes it nearly impossible to
provide an
       accurate figure, it is estimated that more than ten
thousand lesbians
       have conceived via donor insemination and have given birth
to
       children within the context of a lesbian family
relationship.  Many
       more have adopted children.  
       
          This case concerns the future of H.H.K., a child born
into the
       Holtzman-Knott "planned lesbian family."  A planned
lesbian family
       is one in which a lesbian deliberately chooses to raise a
child
       without being married or heterosexually involved.  Planned
lesbian
       families are a relatively recent phenomenon.  
          [T]he 1980's have witnessed the emergence of an
entirely new
                 family structure, unparalleled in human history.

For the first
                 time ever in any society we know about, gay
people in large
                 numbers are setting out consciously,
deliberately, proudly,
                 openly, to bear and adopt children.
       
       The existence of planned lesbian and gay families has been
amply
       documented recently.  In 1989, the first children's book
whose
       central character is a child born of donor insemination to
a lesbian
       couple sold out of its initial printing of 4000 copies
before
       publication.  The first book designed exclusively to
assist lesbians
       in deciding whether and how to become parents is now in
its fourth
       printing.  A study of nearly 2000 lesbians reported that
       approximately one-third wanted to "become mothers either
through
       adoption or artificial insemination."
       
          The planned lesbian or gay family does not have one
fixed
       structure, and may be formed in many ways, including
adoption,

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 139---------------------------------------

       birth to a lesbian through insemination, or birth to a
surrogate who
       relinquishes the child to the gay biological father.  This
case
       concerns the most common planned lesbian family -- a
couple in a
       long-term committed relationship, choosing to co-parent a
child
       born as a result of insemination. The day-to-day lives of
lesbian
       families and the difficulties presented when the child's
relationship
       with one of the two parents is not legally recognized has
been
       addressed in numerous public conferences, support groups,
       publications, and by the national and local print and
television
       media.
       
          Amicus urges this court to protect the integrity of
planned
       lesbian families and the best interests of children within
such
       families.  To do this, the court must consider the context
within
       which the particular family was created and understand
what the
       family looks like from the inside, including specifically
the child's
       perspective.  Several overriding principles should be
applied in
       cases involving planned lesbian families.  Three of the
relevant
       principles amicus advocates are:  1) a biological
connection is not
       necessary for establishing parenthood; 2) agreements,
particularly
       when coupled with an ongoing course of conduct, establish
the
       intent of a biological parent to share parenting with
another person
       and should be upheld; and 3) a child's experience of his
or her
       family is critical to any analysis.  Given the prevalence
of planned
       lesbian families, the courts can expect legal questions to
recur as
       these families form, grow, and sometimes dissolve.  This
court
       cannot turn from this problem, hoping that it is rare,
hoping it will
       disappear.  Lesbians will seek judicial assistance in
resolving
       visitation disputes, just as heterosexual couples (married
or not)
       seek assistance.  Two such cases reaching the Wisconsin
appellate

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 140---------------------------------------

       courts since 1990 establishes this truth.  This court
should not turn
       a blind eye to this problem.
       
          II.  UNLIKE Z.J.H., IN THIS CASE AN INTACT
       FAMILY UNIT DOES NOT EXIST AND AN UNDERLYING
       ACTION AFFECTING THE FAMILY HAS BEEN FILED,
       THEREFORE, SANDRA HOLTZMAN IS ENTITLED TO
       SEEK VISITATION OF HER SON. 
       
          The Wisconsin Supreme Court, in In re Interest of
Z.J.H.,
       162 Wis. 2d. 1002, 1020, 471 N.W.2d 202, 209 (1991),
reached the
       "inescapable conclusion that there must be an underlying
action
       affecting the family unit, before the provisions of sec.
767.245(1)
       are implicated."  The public policy underlying that
decision was to
       "protect the children's best interests by ordering
visitation with
       appropriate adults to mitigate the trauma and impact of a
dissolving
       family relationship."  Z.J.H., at 1022, 471 N.W.2d at 210.

But, "the
       legislature did not intend that the state intervene in the
parents'
       decision regarding their children's best interests when
the family
       unit is intact."  Id.  Here, the family unit has dissolved
and an
       underlying action affecting the family has been filed.
       
          Sandra Holtzman and Elsbeth Knott shared "a close,
       committed relationship" for over 10 years.  (Trial court
decision
       [dec] at 1)  "Given the societal and legal standards to
which they
       are subject, the couple did everything they could to
create and
       formalize a normal family relationship."  (Dec. 1)  From
the
       beginning, they discussed adding a child to their family. 
(Dec. 2) 
       They decided that Elsbeth would be inseminated and she
became
       pregnant in March 1988.  (Dec. 2)  Sandra joined Elsbeth
for
       obstetrical visits, and they attended childbirth classes,
prepared the
       baby's room, decided on a name, and participated in
decisions
       regarding their child jointly.  (Dec. 2)  H.H.K. was born
on
       December 15, 1988 and they lived with him as a family,

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 141---------------------------------------

sharing all
       parental responsibilities, until May 26, 1993 when Elsbeth
took
       H.H.K. from their family home because the adults had
become
       estranged.  (Dec. 2).  
       
          This planned lesbian family is vastly different from
the one
       in Z.J.H.  There, the adults had a long-term relationship
and decided
       to adopt a child together, but the adoptive relationship
was not
       legally established until after the adults' relationship
had ended. 
       Z.J.H. at 1007, 471 N.W.2d at 204.  The child was placed
in their
       home in March 1988, the parties separated in October 1988,
and the
       child was adopted in November 1988.  Id.  In contrast, the
       Holtzman-Knott family lived together with their child for
over four
       years.  
       
          While the Z.J.H. court could determine that the
adoptive
       mother and child were an intact family, without the
co-parent, such
       a determination here is impossible.  Elsbeth did not
create a family
       unit with H.H.K. separate from Sandra.  When the family
       relationship began to dissolve in January 1993, it was the
       relationship between all three members of the family that
dissolved,
       not simply the relationship between the adult partners. 
That family
       unit included Sandra, Elsbeth, and H.H.K. and it has
dissolved.
       
          Furthermore, an underlying action affecting the family
unit
       was filed before Sandra's petitions for custody and
visitation. 
       Elsbeth began that action on August 26, 1993, when she
petitioned
       the court for an injunction claiming that Sandra had
threatened and
       intimidated her and asking that she be restrained from
having any
       contact with Elsbeth or H.H.K.  (Dec. at 4).  At the
hearing, Elsbeth
       agreed to dismiss her petition, Sandra agreed not to
contact Elsbeth,
       and they agreed jointly to refer the visitation issue to
family court. 
       (Dec. at 4).  
       

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 142---------------------------------------

          Elsbeth's petition for an injunction was an underlying
action
       affecting the family unit.  She sought judicial assistance
in
       restraining Sandra from continuing her relationship with
H.H.K.,
       one that Sandra had maintained despite ending her
relationship with
       Elsbeth.  Clearly, that petition would have significantly
affected the
       family unit.  
       
          III.  APPLYING SEC. 767.245(1), STATS., TO
       VISITATION CASES ONLY WHEN UNDERLYING
       ACTIONS AFFECTING THE FAMILY UNIT (LIMITED TO
       CUSTODY, DIVORCE, OR CHIPS CASES) HAVE ALREADY
       BEEN FILED WOULD PREVENT MOST LESBIANS FROM
       OBTAINING JUDICIAL ASSISTANCE IN RESOLVING
       DISPUTES CONCERNING CHILDREN BORN INTO THEIR
       PLANNED FAMILIES, CONTRARY TO PUBLIC POLICY
       AND STATUTORY MANDATE.
       
          Visitation actions under sec. 767.245(1), Stats., are
permitted
       for any "person who has maintained a relationship similar
to a
       parent-child relationship with the child."  The statutory
language
       concentrates on the relationship between the third party
and the
       child and focuses on promoting the best interest of the
child.  
       Visitation is contingent on the relationship between the
biological
       parent and the third party only to the extent that the
parent has
       allowed or created a parent-child relationship between the
third
       party and the child.  
          The language of the statute coupled with Wisconsin's
       leadership in preventing discrimination against lesbians
and gay
       men signifies legislative support for modifying the
expression of the
       Z.J.H. rule, though not the underlying policy, to avoid
treating
       lesbians differently than heterosexual couples needing to
resolve
       visitation disputes.
       
               A.  The Rule Delineated in Z.J.H. Unnecessarily
       Treats Lesbians Worse Than Heterosexuals Without Promoting
       The Policy Of Mitigating Trauma From Dissolving Family
       Relationships.
       
          In Z.J.H., the Supreme Court indicated that underlying
       actions affecting the family, which it seemed to define as

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 143---------------------------------------

divorce,
       custody, or CHIPS actions, must be filed before 
visitation actions
       are appropriate.  Z.J.H. at 1020, 471 N.W.2d at 209. 
There, the
       court concluded that the lesbian co-parent's visitation
petition should
       not be allowed because either (a) the adoptive mother and
child
       were an "intact family unit," or (b) no underlying action
affecting
       the family unit had been previously filed.  Z.J.H. at
1022, 471
       N.W.2d at 211.
       
          Unfortunately, the Supreme Court did not recognize that
its
       rule, as delineated, could preclude lesbian couples from
access to
       the courts when visitation disputes arise.  While
protecting most
       heterosexual couples, none of the options listed readily
permit
       access to the courts for lesbians in dissolving families. 

       
          First, lesbians cannot marry in any state.  Therefore,
they
       cannot use an underlying divorce action to seek visitation
because
       they are not permitted to create a marriage, an obvious
prerequisite. 
       They also cannot file "other actions affecting the
marriage."
       
          Second, lesbian co-parents cannot bring custody actions
as
       natural or adoptive parents.  Lesbians are unable to bear
a child
       genetically-related to both parents.  Thus, lesbians are
unlike
       unmarried heterosexual couples who have children
genetically
       related to both parents, and who therefore, although
precluded from
       using a divorce action, can pursue a custody option to
resolve
       visitation disputes.  The Supreme Court is considering
whether a
       same-sex co-parent can adopt the biological or adoptive
child of her
       partner.  (In the Interest of Angel Lace M., Case Nos.
92-1369 and
       92-1370).  Because it is unclear whether adoption is a
viable
       alternative for lesbian co-parents, Sandra could not have
adopted

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 144---------------------------------------

       H.H.K., thereby allowing her to seek visitation through an
       underlying custody action as an adoptive parent.
       
          Third, requiring lesbians to pursue a CHIPS action
under sec.
       767.24(3), Stats., or otherwise allege unfitness as their
only means
       to obtain custody is inappropriate public policy.  Unlike
married or
       unmarried heterosexual couples, lesbians must attack the
fitness of
       their ex-partners, and their children's other parent, as
the singular
       basis for obtaining custody or visitation of their
children.  While
       these allegations exist in this case (see, Pet.'s brief at
6-7), they will
       not exist in most cases.  See, Z.J.H., at 1010, 471 N.W.2d
at 205. 
       Additionally, these allegations increase the "trauma" for
all
       members of the dissolving family and cannot promote the
children's
       best interests.  
       
          It is inconceivable that the Z.J.H. court intended to
preclude
       lesbians from attaining visitation, absent allegations of
unfitness. 
       Such a decision squarely contradicts the Wisconsin
legislature's
       leadership in protecting gay men and lesbians from
pernicious
       discrimination.
       
       
          B.  Allowing Co-Parents In Dissolving Lesbian Families
       To Obtain Visitation Is Consistent With The Clear
Expression
       Of  Legislative Policy To Prevent Discrimination Due To
Sexual
       Orientation.
       
          Wisconsin has a proud heritage of leading this nation
by
       prohibiting discrimination based on sexual orientation. 
Long before
       other states recognized its crippling impact, Wisconsin
statutorily
       prohibited that discrimination.  It would be inconsistent
with this
       legislative mandate to limit lesbians so much more
drastically than
       heterosexual couples when seeking visitation.
       
          The legislature, by ending its regulation of private
sexual

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 145---------------------------------------

       activity between consenting adults, indicated an
acceptance of
       relationships outside the marital relationship.  Sec.
944.01, Stats. 
       By revising secs. 944.15 and 944.17, the legislature
indicated a
       willingness to allow individuals to choose the intimate
relationships
       that best express their personalities, desires, and
beliefs.
       
          The legislature, however, has not simply evinced a
passive
       attitude toward sexual minorities living in Wisconsin.  As
the
       following comprehensive statement shows, it took
significant steps
       to prevent harmful differences in treatment.  Each statute
prohibits
       some form of differential treatment due to sexual
orientation.
       
          Sec. 943.012:  Felony to damage community property
based
       on sexual orientation.
       
          Sec. 939.645(1)(b):  Increased penalties for crimes
against
       victims based on sexual orientation.
       
          Sec. 440.77(1)(o):  Prohibits discrimination in loan
practices.
       
          Sec. 234.29:  Prohibits discrimination in housing
projects.
       
          Sec. 230.18:  Prohibits discrimination in civil
service. 
       
          Sec. 230.01(2):  Prohibits discrimination in State
              employment.     Sec. 227.10(3)(a):  Prohibits discrimination in State
       administrative rules.
       
          Sec. 146.025(7)(c)(1):  HIV test results may not
indicate
       sexual orientation.
       
          Sec. 111.85(2)(b):  Prohibits discrimination in fair
share
       agreements.
       
          Sec. 111.81(12)(b):  Prohibits discrimination in State
       employee labor organizations.
       
          Sec. 111.70(2):  Prohibits discrimination in municipal
fair
       share agreements. 

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 146---------------------------------------

       
          Sec. 111.321:  Prohibits employment discrimination.
       
          Sec. 111.32(13)(m):  "Sexual orientation" defined as
having,
       having a history of, or being identified with, a
preference for
       heterosexuality, homosexuality, or bisexuality.
       
          Sec. 111.31(1):  Employment discrimination
substantially and
       adversely affects state's general welfare.
       
          Sec. 101.22(1):  Prohibits housing discrimination.
       
          Sec. 66.433(3):  Community commissions recommend
       solutions to sexual orientation discrimination in housing,
       employment, and public accommodations and facilities.
       
          Sec. 66.432(1):  Equal opportunity in housing is local
       concern.
       
          Sec. 66.431(3)(e)2 and 66.43(2m):  Entitlement to slum
       clearance benefits without regard to sexual orientation.
       
          Sec. 66.405(2m):  Equal opportunity in urban
redevelopment
       projects.    
       
          Sec. 66.40(2m):  Prohibits discrimination by housing
       authorities.
       
          Sec. 66.395(2m):  Prohibits discrimination in elderly
housing.
       
          Sec. 66.39(13):  Prohibits discrimination in veterans
housing.
       
          Sec. 38.23(1):  Prohibits discrimination against
vocational,
       technical, and adult education students.
       
          Sec. 36.12(1):  Prohibits discrimination against
Wisconsin
       System students.
       
          Sec. 21.35:  Prohibits discrimination in National guard
       admission.
       
          Sec. 16.765(1):  Prohibits discrimination by State
contractors.
       
          Sec. 15.04(1)(g):  State agency heads must take
remedial
       action to end discrimination.
       
       These statutes clearly indicate that sexual minorities may

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 147---------------------------------------

not be
       treated differently due to their sexual orientation.  
       
          To prohibit differential treatment in visitation, the
legislature
       permitted individuals with a "parent-child relationship"
to petition
       the court for visitation.  This statute applies to members
of
       dissolving lesbian families.  Therefore, this court should
       acknowledge this legislative intent, while following the
policies
       underlying Supreme Court precedent, and permit Sandra
Holtzman
       to request visitation with her son. 
          
                         CONCLUSION
       
          Restricting lesbians in dissolving families to pursuing
a
       divorce, custody or CHIPS action as the only methods for
seeking
       visitation precludes most lesbians from court assistance
in resolving
       visitation disputes.  Additionally, recognizing other
actions as
       fulfilling the policies behind the Z.J.H. rule protects
intact family
       units and is consistent with expressed legislative
policies to prevent
       differences in treatment by the state due to sexual
orientation.  This
       court should allow Sandra Holtzman to seek visitation with
her son.
       
          Dated this ___ day of March, 1994.
       
                              Hume Law Offices
                              Kathleen E. Hume
                                   
                              National Center for Lesbian Rights
                              Abby Abinanti
                              Barbara J. Cox
       
       
       
                              By________________________
                                  Kathleen E. Hume
                                  State Bar Number 01014488
                                  Attorneys for Amicus Curiae
              _______________________________________________

                          NEW YORK SUPREME COURT
                  APPELLATE DIVISION -- FIRST DEPARTMENT

              ______________________________________________


------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 148---------------------------------------

                     In the Matter of a Proceeding for
                     Paternity Under Article 5 of the
                  Family Court Act and for Visitation of

                            RY R.-Y., a minor,

                     Thomas S., Petitioner-Appellant,

                                  against

                      Robin Y., Respondent-Appellee.

               _____________________________________________

              BRIEF AMICUS CURIAE OF THE NATIONAL CENTER FOR
            LESBIAN RIGHTS; LAMBDA LEGAL DEFENSE AND EDUCATION
              FUND; GAY AND LESBIAN ADVOCATES AND DEFENDERS;
                 CENTER KIDS; AND GAY AND LESBIAN PARENTS
                          COALITION INTERNATIONAL
                     IN SUPPORT OF RESPONDENT-APPELLEE

               _____________________________________________



     Bobbi C. Sternheim            Nancy D. Polikoff
     Local Counsel for Amici       Professor of Law
     Rochman, Platzer, Fallick,    American University Law School
     Rosmarin & Sternheim          4400 Massachusetts Ave. N.W.
     666 Third Avenue              Washington, D.C. 20016
     New York, NY 10017            202-885-1510
     212-697-4090
                                   Abby Abinanti
                                   Legal Director
                                   National Center for Lesbian
Rights
                                   1663 Mission St. Suite 550
                                   San Francisco, CA 94114
                                   415-621-0674


             New York County Family Court Docket No. P3884/91
                  This brief reproduced on recycled paper
                                   CASES

A.C. v. C.D., No. 89191039/CE99949 (Circuit Ct. for Baltimore
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Anton W. v. Nadine V., 597 N.Y.S.2d 865, 868 (Fam. Court, Bronx
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Barbara A.M. v. Gerard J.M., 178 A.D.2d 412, 577 N.Y.S.2d 110
(2nd Dept. 1991)

Biserka B. v. Zdenko R., 133 A.D.2d 728, 520 N.Y.S.2d 17 (2nd
Dept. 1987)


------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 149---------------------------------------

Board v. Plank, 150 Misc. 2d 743, 570 N.Y.S.2d 270 (Fam. Ct., New
York Cty. 1991)

Boyles v. Boyles, 95 A.D.2d 95, 466 N.Y.S.2d 762 (3rd Dept. 1983)

C.M. v. C.C., 152 N.J. Super. 160, 377 A.2d 821 (1977)

Crane v. Battle, 62 Misc. 2d 137, 407 N.Y.S.2d 355 (Fam. Ct., New
York Cty. 1970)

Ettore I. v. Angela D., 127 A.D.2d 6, 513 N.Y.S.2d 733 (2nd Dept.
1987)

Jhordan C. v. Mary K., 179 Cal. App. 3d 386, 224 Cal. Rptr. 530
(1986)

June B. v. Edward L., 69 A.D.2d 612, 419 N.Y.S.2d 514 (1st Dept
1979)

Karen T. v. Michael T., 127 Misc. 2d 14, 484 N.Y.S.2d 780 (Fam.
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Leckie v. Voorhies, Case no. 60-92-06326 (Cir. Ct., Lane Ct, Or.
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Loftin v. Flournoy, No. 569,630-7 (Cal. Sup. Ct., Alameda Cty,
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In the Matter of the Adoption of Evan, 153 Misc. 2d 844, 583
N.Y.S.2d 997 (Sur. 1992)

McIntyre v. Crouch, 98 Or. App. 462, 780 P.2d 239 (1989), rev.
den'd, 308 Or. 593, 784 P.2d 1100, cert. den'd., 495 U.S. 905
(1990)

Michel DeL v. Martha P., 173 A.D.2d, 570 N.Y.S.2d 279 (1st Dept.
1991)

In re Pearlman, No. 87-24,926 DA (Fla. Cir. Ct., Broward Cty.
Mar. 31, 1989, reprinted in part, 15 Fam. L. Rep. (BNA) 1355 (May
30, 1989)

Purificati v. Paricos, 154 A.D.2d 360, 545 N.Y.S. 2d 837 (2nd
Dept. 1989)

In re R.C., 775 P.2d 27 (Colo. 1989)

Sandy M. v. Timothy J., 138 Misc. 2d 338, 524 N.Y.S.2d 639 (Fam.
Ct., Broome Cty. 1988)

Sharon GG v. Duane HH, 95 App. Div 2d, 467 N.Y.S.2d 941 (3rd
Dept. 1983), aff'd mem., 63 N.Y.2de 859, 482 N.Y.S.2d 270, 472
N.E.2d 46 (1984)

Steven W. v. Martha Andra N., 3 Civ CO12456 (Cal. Ct. App., 3rd
Dist. May 6, 1993)


------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 150---------------------------------------

Swann v. Schoenfeld, 163 A.D.2d 850, 559 N.Y.S.2d 408 (4th Dept
1990)

Terrence M. v. Gale C., 193 A.D.2d 437, 597 N.Y.S. 2d 333 (1st
Dept. 1993), motion for leave to appeal den'd., 1993 LEXIS 4313
(Nov. 22, 1993)

Vilma J. v. William L., 151 A.D.2d 758, 542 N.Y.S.2d 783 (2nd
Dept. 1989)

Vito L. v. Filomena L., 172 A.D.2d 648, 568 N.Y.S.2d 449 (2nd
Dept. 1991)

Willy G. v. Debra B., 181 A.D.2d 858, 582 N.Y.S.2d 204 (2nd Dept.
1992)

                            BOOKS AND ARTICLES

ABC television broadcast, I Have Two Moms, May 6, 1989; Women Who
Love Women, Oct. 23, 1992.

ABC television broadcast, Gay and Lesbian Adoption, Aug. 9, 1990.

Adams, Gay Couples Begin a Baby Boom, BOSTON GLOBE, Feb. 6, 1989,
at 2.

Rhonda Anderson, Pregnancy Without Partner: Donor Insemination is
the Way Some Single Women are Having Children, NEWSDAY, Aug. 10,
1991 at 2.

Annette Baran and Reuben Pannor, LETHAL SECRETS (1989).

Elizabeth Bartholet, FAMILY BONDS: ADOPTION AND THE POLITICS OF
PARENTING (1993).

Books Open Doors For Gay Parents, ATLANTA CONSTITUTION, Jan. 14,
1991 at C1.
 
Frank Buni, Gay Couples Plant Family Trees, THE ARIZONA REPUBLIC,
May 9, 1993, at H3.

Phyllis Burke, FAMILY VALUES: TWO MOMS AND THEIR SON (1993).

Vincent Canby, Two Documentaries, "Children" and "Silence", NEW
YORK TIMES, Nov. 13, 1985, at C20.

Susan Chira, Gay and Lesbian Parents Grow More Visible, THE NEW
YORK TIMES, September 30, 1993, at 1.

Clinic for Gay/Lesbian Families Opens at UCSF, San Francisco Bay
Times, March 25, 1993, at 1.

Elizabeth Coady, Two Same-Sex Parents Say Gender Doesn't Matter,
ATLANTA CONSTITUTION, Aug. 19, 1992, at B1.

Diane Cole, The Forms Families Take, CHICAGO TRIBUNE, Aug. 8,
1993 at C4.

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 151---------------------------------------


Committee on Sex and Law, Second-Parent Adoption in New York
State: Furthering the Best Interests of our Children, 47 RECORD
BAR ASSOC. N.Y. 983 (1992).

Cox, Love Makes a Family -- Nothing More, Nothing Less: How the
Judicial System Has Refused to Protect Nonlegal Parents in
Alternative Families, 8 J.L. & POL. 5 (1991).

Creating New Families, SAN FRANCISCO EXAMINER, June 12, 1989, at
A17.

Cullum, Co-Parent Adoptions: Lesbian and Gay Parenting, TRIAL 28
(June 1993).

Suzane Curley, Mothers Courage, NEWSDAY, June 27, 1993 at 39.

William Davis, Books for Kids of Gay Couples, BOSTON GLOBE, Nov.
17, 1990, at (Living Section) 12.

Georgia Dullea, Gay Couple's Wish to Adopt Grows, Along With
Increasing Resistance, NEW YORK TIMES, Feb. 7, 1988, Sect. 1, at
26.

R. A. Dyer, Out of Love and Luck, HOUSTON CHRONICLE, May 31,
1992, at C1.

Editor's Note, NEW YORK TIMES, Feb. 3, 1989 at A3.

Ettlebrick, Who is a Parent? The Need to Develop a Lesbian
Conscious Family Law, 10 N.Y.L.S.J. HUM. RTS. 513 (1993)

Lillian Faderman, Two Moms are Better than One, LOS ANGELES TIMES
BOOK REVIEW, May 9, 1993 at 2.

Anne Taylor Fleming, New Frontiers in Conception, NEW YORK TIMES
MAG., July 20, 1980 at 14.

Forum: Gays as Parents, (NEW-ORLEANS) TIMES-PICAYUNE, July 14,
1993 at B4.

Patrice Gaines-Carter, How Am I Going to Deal With Father's Day,
WASHINGTON POST, Dec. 21, 1990, at C1.

Gay Parents: Living in Fear, NEW YORK TIMES, Oct. 4, 1993 at A16.

Maria Gil de Lamadrid, ed., LESBIANS CHOOSING MOTHERHOOD:  LEGAL
IMPLICATIONS OF DONOR INSEMINATION AND CO-PARENTING (1991).

Renee Graham, A Lesbian Parent's Political Awakening, BOSTON
GLOBE, June 4, 1993 at 51.

Jean Latz Griffin, The Gay Baby Boom:  Homosexual Couples
Challenge Traditions as They Create New Families, CHICAGO
TRIBUNE, Sept. 3. 1992, at C1.

Jean Latz Griffin, Law Begins to Address Rise in Gay Families,

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 152---------------------------------------

CHICAGO TRIBUNE, Sept. 4, 1992, at C1.

Jane Gross, New Challenge of Youth:  Growing Up in Gay Home, THE
NEW YORK TIMES, Feb. 11, 1991 at A1.

Hagedorn & Marcus, Case in California Could Expand Legal
Definition of Parenthood, WALL STREET JOURNAL, Sept. 8, 1989 at
B10.

Scott Harris, For This Family Call It Mothers' Day, LOS ANGELES
TIMES, May 9, 1993 at B1. 

Scott Harris, Two Moms or Dads -- and a Baby, LOS ANGELES TIMES,
Oct. 20, 1991, at A21.

Heather's Two Moms, Three Censors, ATLANTA CONSTITUTION, June 27,
1993 at H4.

William Henry, Gay Parents:  Under Fire and on the Rise, TIME,
Sept. 20, 1993, at 66.

Patricia Holt, A Lesbian Parent's Legal Odyssey, SAN FRANCISCO
CHRONICLE (Sunday Review), May 9, 1993 at 1.

Hunter, Lesbian Parents Prove To Be in No Way Inferior, (Letter
to the Editor), NEW YORK TIMES, Feb. 13, 1989, at A20.

Barbara Kantrowitz, The Ages of Innocence, NEWSWEEK, Dec. 28,
1992, at 64.

Barbara Kantrowitz and Danzy Senna, A Town Like No Other,
NEWSWEEK, June 21, 1993, at 56.

Gina Kolata, Lesbian Partners Find the Means to be Parents, NEW
YORK TIMES, Jan. 30, 1989 at A13;

Angela Lau, Lesbian Couples Opt for Babies, SAN DIEGO UNION-
TRIBUNE, Nov. 18, 1993 at B1.

Lesbian's Custody Fight on Coast Raises Novel Issues in Family
Law, NEW YORK TIMES, Sept. 9, 1984 at 44.

Ellen Lewin, LESBIAN MOTHERS (1993).

Mandell, The Lesbian Baby Boom, NEWSDAY, July 13, 1989, at 8.

David Margolick, Lesbian Child-Custody Cases Test Frontiers of
Family Law, NEW YORK TIMES, July 4, 1990, at A1.

April Martin, THE LESBIAN AND GAY PARENTING HANDBOOK (1993).

April Martin, Lesbian Parenting: A Personal Odyssey, in GENDER IN
TRANSITION 249 (J. Offerman-Zuckerberg, ed. 1989).

April Martin, The Planned Lesbian and Gay Family:  Parenthood and
Children (1989).


------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 153---------------------------------------

B. McCandlish, Against All Odds: Lesbian Mother Family Dynamics,
in GAY AND LESBIAN PARENTS 23 (Frederick Bozett, ed. (1987).

Donna Minkowitz, No Book Can Change a Child's Sexuality(Interview
with author Leslea Newman), NEWSDAY, Nov. 30, 1992 at 55.

Leslie Newman, HEATHER HAS TWO MOMMIES (1989).

Elizabeth Noble, HAVING YOUR CHILD THROUGH DONOR INSEMINATION
(1987).

Obituary of Mary-Helen Mautner, WASHINGTON POST, Aug. 26, 1989,
at B4.

O'Connor, Lesbian Urges Therapists to Find `New Voices',
WASHINGTON BLADE, Aug. 19, 1988, at 9.

Oprah Winfrey Show (ABC Television Broadcast, Aug. 9, 1990).

Charlotte Patterson, Children of the Lesbian Baby Boom: 
Behavioral Adjustment, Self-Concepts, and Sex-Role Identity, in
CONTEMPORARY PERSPECTIVES ON GAY AND LESBIAN PSYCHOLOGY:  THEORY,
RESEARCH AND APPLICATION, (Beverly Greene and Gregory Herek,
eds., forthcoming 1994).

Charlotte Patterson, Children of Lesbian and Gay Parents, 63
CHILD DEV. 1025 (1992).

Julia Perez, To Beverly, in WE ARE EVERYWHERE 13 (Harriet Alpert
ed. 1987).

PHIL DONAHUE SHOW (CBS Television Broadcast, Sept. 19, 1989)

Cheri Pies, CONSIDERING PARENTHOOD:  A WORKBOOK FOR LESBIANS
(1985).

Polikoff, This Child Does Have Two Mothers: Redefining Parenthood
to Meet the Needs of Children in Lesbian-Mother and Other
Nontraditional Families, 78 GEO. L.J. 459 (1990).

POLITICS OF THE HEART (Sandra Pollack and Jean Vaughn, eds. 1987)

The Power and the Pride, NEWSWEEK, June 21, 1993 at 54.

Sue Anne Pressley and Nancy Andrews, For Gay Couples, the Nursery
Becomes the New Frontier, WASHINGTON POST, Dec. 20, 1992, at A1.

Deb Price, Girl Would Be Orphan If They'd Lost the Battle,
(MINNEAPOLIS) STAR TRIBUNE, Jan. 5, 1994 at 4E.

Anna Quindlen, Evan's Two Moms, NEW YORK TIMES, Feb. 5, 1992, at
A23.

Wendell Ricketts, LESBIANS AND GAY MEN AS FOSTER PARENTS (1992).

Cindy Rizzo, A Family Life Just like Yours, NEW YORK TIMES, Aug.
26, 1992 at A21. 

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 154---------------------------------------


Richard Roth, Gay Have New Opportunites to Have Children, CABLE
NEWS NETWORK NEWS, June 5, 1992, Transcript #44-1.

Kevin Sack, Lesbian Loses a Ruling on Parent's Rights, NEW YORK
TIMES, May 3, 1991 at B1.

Same Sex Couples Taking Big Step, USA TODAY, Nov. 10, 1993, at
12A.

Joy Schulenberg, GAY PARENTING:  A COMPLETE GUIDE FOR GAY MEN AND
LESBIANS WITH CHILDREN (1985).

Seligman, Variations on a Theme, NEWSWEEK, Special Ed.,
Winter/Spring 1990, at 39.

Alisa Steckel, Psychosocial Development of Children of Lesbian
Mothers in GAY AND LESBIAN PARENTS 75 (Frederick Bozett, ed.
1987).

Sherry Stripling, Lesbian Mother's Book Seeks Acceptance For Gay
Families, SEATTLE TIMES, June 2, 1993 at E2.

Joseph Sullivan, Court Backs Lesbian's Right to Adopt Partner's
Child, NEW YORK TIMES, Aug. 11, 1993 at B5.
 
Sutton, The Lesbian Family: Rights in Conflict Under the
California Uniform Parentage Act, 10 GOLDEN GATE L. REV. 1007
(1980).

David Tuller, Gays and Lesbians Try Co-Parenting, SAN FRANCISCO
CHRONICLE, Sept. 4, 1993, at A1.

David Tuller, Gay Co-Parenting Challenges Law on U.S. Family, THE
(NEW-ORLEANS) TIMES-PICAYUNE, Feb.10, 1993 at F10.

20/20: I Have Two Moms (ABC Television Broadcast, May 6, 1989)

20/20: Women Who Love Women (ABC Television Broadcast, Oct. 22,
1992).

Two Adoption Cases Go To Appeals Courts, NEW YORK TIMES, April
18, 1993, at 25.

Two Moms, SAN FRANCISCO EXAMINER, June 12, 1989 at A18.

Abigail Van Buren, Lesbian Moms Leave Co-Worker in a Tizzy,
CHICAGO TRIBUNE, May 26, 1992, AT C9.

Johnny Valentine, THE DUKE WHO OUTLAWED JELLY BEANS (1991).

Johnny Valentine, THE DAY THEY PUT A TAX ON RAINBOWS (1992)

Kath Weston, FAMILIES WE CHOOSE: LESBIANS, GAYS, KINSHIP (1991).

Liz Willen, Gays, Too, Value Family, NEWSDAY, Sept. 9, 1992, at
23.

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 155---------------------------------------


Liz Willen, Motherhood Sans Dad, NEWSDAY, Aug. 5, 1993 at 15.

Michael Willhoite, DADDY'S ROOMMATE (1990).

Woman Wins Rights to Visits to Child of Lesbian Ex-Lover, NEW
YORK TIMES, Nov. 23, 1984, at A27.

Nancy Zook and Rachel Hallenback, Lesbian Coparenting:  Creating
Connections 89 in POLITICS OF THE HEART: A LESBIAN PARENTING
ANTHOLOGY (Sandra Pollack and Jean Vaughn, eds. 1987)Interest of
Amici Curiae
     The National Center for Lesbian Rights (NCLR), formerly the
Lesbian Rights Project, is a non-profit public interest law firm
founded in 1977 and devoted to the legal concerns of women who
encounter discrimination on the basis of their sexual
orientation.  NCLR is particularly well-suited to offer amicus
assistance to this court, as NCLR attorneys frequently litigate
in the area of family law as it applied to lesbians. Most
recently, NCLR has participated as an amicus curiae in In re
Angel Lace M., arguing in favor of lesbian second-parent
adoption, before the Wisconsin Supreme Court; Prescott v. Blume,
arguing in favor of upholding a contract between a biological and
a non-biological mother, before the California Court of Appeal;
and Leckie v. Voorhies, arguing to uphold a trial court's denial
of paternity to a semen donor, before the Oregon Court of Appeal.

     NCLR attorneys have also written numerous publications on
the rights of lesbians to preserve and protect the integrity of
their chosen families free from unwarranted intrusions based on
bias and stereotypes.  These publications include: Lesbian and
Gay Parents: A Legal and Psychological Perspective (1989);
Lesbian Mother Litigation Manual (2nd ed. 1990); Lesbians
Choosing Motherhood: Legal Implications of Donor Insemination and
Co-Parenting (1991); Preserving and Protecting the Families of
Lesbians and Gay Men (1986); Recognizing Lesbian and Gay
Families: Strategies for Extending Employment Benefit Coverage
(2nd ed. 1992); and Sexual Orientation and the Law (Clark
Boardman, 1985, 1987, 1989).

     The Lambda Legal Defense and Education Fund, Inc. (Lambda)
is a not-for-profit corporation based in New York which engages
in impact litigation in all substantive areas affecting the
rights of lesbians and gay men.  Founded in 1973, Lambda is the
oldest and largest national legal organization devoted to these
concerns and has appeared as counsel or amicus curiae in hundreds
of cases in state and federal courts on behalf of lesbians and
gay men who have suffered discrimination because of their sexual
orientation.  Through its litigation and community education in
many states, Lambda has challenged limitations to the concept of
"family" which work to exclude or fail to protect the families of
lesbians and gay men.  Lambda is committed to gaining legal
recognition for lesbian and gay couples and families, and
eradicating the injustices that result from the lack of such
recognition.

     Gay and Lesbian Advocates and Defenders (GLAD), a

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 156---------------------------------------

Massachusetts non-profit, public interest law firm founded in
1978, represents gay men and lesbians, and persons with HIV
infection in impact litigation throughout New England.  This case
raises issues of historic and present interest to GLAD: the
rights of both parents and children in fundamental relationships.

GLAD is well suited to assist this court by virtue of its
participation as counsel or amicus curiae in similar cases
involving adoption: Adoption of Tammy, 416 Mass. 205 (1993);
unmarried couples: Reep v. Department of Employment and Training,
412 Mass. 845 (1992); foster care: Babets v. Secretary, Suffolk
County Superior Court, 1986; and child custody Bezio v.
Patenaude, 381 Mass. 563 (1983).

     Center Kids, founded in 1988, is the Family Project of the
Lesbian and Gay Community Services Center of New York City, a
non-profit, tax-exempt organization.  With more than 1,400 member
families in the New York metropolitan area, Center Kids is the
largest regional lesbian and gay parenting organization in the
United States.  Approximately 80 percent of the adult members of
Center Kids are lesbians and 20 percent are gay men.  The
majority of families headed by lesbians have either conceived
children through alternative insemination or are in the process
of attempting to conceive children through that method.  The
adult male members include men who have become parents through
adoption or foster care placements, as well as men who have been
insemination donors.  Although there are a significant number of
single parents in Center Kids, most families are headed by
lesbian or gay life partners who are jointly parenting children. 
Center Kids sponsors ongoing support groups, monthly discussion
groups, and two or three all-day workshops a year on topics that
include donor insemination.

     Center Kids is frequently consulted by New York City and New
York State government officials on numerous family issues,
including adoption, foster care, education, and domestic
partnership registration.  Center Kids has also participated as
amicus curiae in court cases involving the rights of lesbian and
gay parents and their children, including Alison D. v. Virginia
M. in the Appellate Division, Second Department and the New York
Court of Appeals.

     The Gay and Lesbian Parents Coalition International (GLPCI),
formerly the Gay Fathers Coalition, was founded in 1979 and is a
non-profit tax-exempt advocacy and support group for gay father
and lesbian mothers, their partners and children, and prospective
parents.  GLPCI has over 60 dues-paying member chapters in the
United States, Canada, England and Norway, and 2400 individual
members, the vast majority of whom live in the United States. 
GLPCI communicates with more than 235 other lesbian and gay
parenting organizations around the world.  The membership of
GLPCI is equally divided between men and women.  Singly and as
couples, GLPCI members have become parents through donor
insemination, adoption, surrogacy, foster parenting, and through
prior heterosexual relationships.  GLPCI distributes its
newsletter to over 8,000 individuals and organizations, provides
a speakers service, helps form local support groups, and holds as

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 157---------------------------------------

annual conference on gay and lesbian parenting.

     GLPCI is committed to insuring that lesbian and gay parents
and their children are fully protected under the law.  GLPCI has
participated as amicus curiae in court cases, including In re
Adoption of Charles B, concerning gay adoption, in the Ohio
Supreme Court; and Alison D. v. Virginia M., in New York, and
Nancy S. v. Michele G., in California, concerning rights of non-
biological mothers.

                            Statement of Facts
     This brief relies upon the findings of fact contained in the
trial court's Decision and Order, dated April 13, 1993.  An
edited version is reported at 599 N.Y.S.2d 377 (Fam. Ct. 1993).

                            Summary of Argument
     For more than a decade, lesbians and gay men have been
raising children without first bearing those children within the
context of a heterosexual relationship.  This case concerns the
future of Ry R.-Y., a child born into one of the earliest such
planned families.  Given the recent prevalence of such families,
courts will be increasingly called upon to apply common law
doctrine to this new family form.  Amici urge that, in applying
the relevant common law principles to Ry's family, this court
understand and respect both the context within which her family
was created and the family's specific structure.

     Amici have consistently advocated that courts should apply
certain overriding principles to cases involving planned lesbian
and gay families.  Three such principles are: 1) a biological
connection is neither a necessary nor a sufficient basis for
establishing parenthood; 2) agreements, particularly when coupled
with an ongoing course of conduct, establishing the intent of a
biological parent either to share parenting with another person
or to relinquish parental rights should be upheld; and 3) a
child's experience of his or her family, which may include two,
less than two, or more than two parents, is critical to any legal
analysis.  As discussed below, estoppel doctrine allows this case
to be decided in a manner consistent with the above principles.

     Robin Y. and Sandra R. constructed a planned family with two
children, Ry and Cade, born two years apart following
insemination with the semen of two different known donors, each
of whom agreed that he would not have the rights and
responsibilities of parenthood.  In the R.-Y. family, as in most
planned lesbian and gay families, biology alone does not
determine the family relationships.  As the trial court found, Ry
has two mothers and a sister, even as she knows that neither
Sandra R. nor Cade is biologically related to her.

     It is common in planned lesbian families for a child to know
the biological facts of her origin without ascribing parental
status to the semen donor.  Especially in the context of an
agreement that the donor will be known to the child but will not
have the rights and responsibilities of parenthood, and an
ensuing course of conduct consistent with that agreement, a child
need not consider her biological father a parent.  Indeed, after

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ 
---------------------------------END PAGE 158---------------------------------------

evaluating Thomas S.'s contacts with Ry, her sister, and her
mothers within the context of Ry's specific family structure, the
court below found that Ry did not ever view Thomas S. as a
parent, that "in [Ry's] family, there has been no father." 
Appellant's brief is fatally flawed because it denies that a
child can make such a distinction. 

     Estoppel doctrine is designed to protect a child from the
"lasting trauma" of an order of paternity which would destroy her
image of her family. The trial court correctly applied the
doctrine when it found that Thomas S. agreed to forego parental
rights and engaged in a course of conduct consistent with that
agreement, and that Ry thereby developed her identity as a member
of a family with two mothers and a sister.  Under those
circumstances, estoppel appropriately prevents Thomas S. from
obtaining an order of paternity that would be contrary to Ry's
best interests.

     Appellant's brief acknowledges that estoppel is available to
defeat a biological father's paternity claim.  It attempts to
avoid defeat of Thomas S.'s claim, however, by arguing that
estoppel could be properly applied only if Ry were the
"legitimate" child of her mother and another father.  Such a
cramped reading of the case law should be rejected, as it would
deny all children born into lesbian families, who can never be
"legitimate" in the traditional sense of that word, the
protection and stability that the estoppel doctrine affords
children in heterosexual families.  

     The presence of "another father" is not a prerequisite for
application of estoppel doctrine because estoppel allows a court
to preserve a child's experience of her family, and that
experience need not include a male parent.  The argument that a
child must have a father, and that if she does not, no matter
what relationships exist, no matter what the child's identity, or
the course of conduct of the parties, or the harm to the child,
estoppel cannot protect a child from an order of paternity, would
render the lives of children intentionally raised outside the
two-parent heterosexual model unworthy of legal protection.  

     The court below found that "a declaration of paternity would
be a statement that [Ry's] family is other than what she knows it
to be and needs it to be."  Although estoppel has not previously
been applied when the "family that [the child] knows it to be" is
a lesbian family, amici urge this court to uphold the trial
court's application of the doctrine to protect children in
planned lesbian and gay families.

                                 ARGUMENT
I. THE FAMILY CREATED BY SANDRA R. AND ROBIN Y. IS ONE OF AN
INCREASING NUMBER OF PLANNED GAY AND LESBIAN FAMILIES, AND THIS
CASE MUST BE DECIDED WITHIN THE CONTEXT OF THIS PARTICULAR FAMILY
STRUCTURE.
     This case concerns the future of a child born into a
"planned lesbian family."  A planned lesbian family is one in
which a lesbian deliberately chooses to raise a child without
being married or heterosexually involved. While lesbians and gay

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men have always raised children born when they were married or in
heterosexual relationships, planned lesbian and gay families are
a relatively recent, but well-documented, phenomenon.  As one
psychologist has written:
     [T]he 1980's have witnessed the emergence of an
     entirely new family structure, unparalleled in human
     history.  For the first time ever in any society we
     know about, gay people in large numbers are setting out
     consciously, deliberately, proudly, openly, to bear and
     adopt children.

     The planned lesbian or gay family does not have one fixed
structure.  A lesbian or a gay man may be a single parent; a
lesbian or gay couple may decide to raise a child jointly; or a
single lesbian or gay man may choose to co-parent with one or
more people. A planned lesbian or gay family may be formed in a
number of ways, including public, private, or international
adoption; birth to a lesbian following donor insemination from a
sperm bank, an unknown sperm donor, or a known sperm donor; or
birth to a surrogate mother who relinquishes the child to the gay
biological father.  Lesbians and gay men also serve as foster
parents.

     This case concerns one common type of planned lesbian family
--a lesbian couple in a long-term committed relationship, who
choose to be equal parents to children born as a result of
insemination with semen from known donors.  Contrary to the
assertion contained in the brief amicus curiae filed by two San
Francisco area gay parenting groups, choosing a known donor must
not be equated with choosing an additional parent or a "legal
non-custodial father" for the child.  An anthropological study
of lesbian and gay families in the San Francisco area found that
"...a donor's continued involvement in a child's future was never
assumed.  Whether an individual donor would identify as a parent
or participate in childrearing had to be determined on a case-by-
case basis." The anthropologist found that 
     most [lesbians and gay men] did not consider a sperm
     donor to be intrinsically a parent, much less a
     partner, in relationship to a child conceived through
     alternative insemination; unless the donor shared
     parenting responsibilities, his semen tended to be
     spoken of simply as a catalyst that facilitates
     conception.

     As amici document below, section I B, infra, many lesbians
create families in which a child knows the semen donor who is her
genetic father but does not consider that donor to be a parent. 
This distinction is possible specifically because children in
lesbian families are often raised to consider biology neither a
necessary nor a sufficient determinant of family relationships. 
Certainly that was true in this family.  Ry has two mothers and a
sister, even though she knows that neither Sandra R. nor Cade is
biologically related to her.

      The fatal flaw in appellant's brief is its failure to
acknowledge that a family, including the children, can make such
a distinction.  Appellant repeatedly characterizes his

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relationship with Ry as that of a "non-custodial parent" without
placing his contacts with Ry and Cade and their mothers in the
context within which Ry experienced them.  Amici urge this court,
in deciding this case, to understand Ry's family and to recognize
that a known donor is not always a child's parent.

A.  The prevalence of planned lesbian and gay families has been
extensively documented, and courts must adapt existing legal
principles to serve the best interests of children in such
families.
     To adapt existing legal principles to serve the best
interests of children in planned lesbian and gay families, this
court, and all courts, must understand the extent and nature of
such families.  Although few such families existed when Robin Y.
and Sandra R. bore their children, the increasing prevalence such
families has been amply documented in recent years.  

     In 1990, the director of the National Center for Lesbian
Rights estimated that five to ten thousand lesbians had borne
children into lesbian families.  In 1989, the first children's
book whose central character is a child born of donor
insemination to a lesbian couple sold out of its initial
printing of 4000 copies before it was even published. The first
book designed exclusively to assist lesbians in making the
decision whether and how to become parents, published in 1985, is
now in its fourth printing.  A 1985 study of nearly 2000
lesbians reported that approximately one-third wanted to "become
mothers either through adoption or artificial insemination." 
Pacific Reproductive Services, a San Francisco sperm bank,
reported last year that more than 100 lesbians use their services
each month.  And on March 1, 1993, a pediatric clinic
specializing in serving children of lesbian and gay parents
opened at the University of California at San Francisco.  

     Although few resources existed for lesbians wanting to raise
children at the time that Sandra R. and Robin Y. conceived Cade
and Ry, many resources now advise lesbians in similar situations.
Two videos were produced in the mid 1980's.  A number of books
have been written since 1985, including those addressing the
decisions that lesbian parents and prospective parents face and
those containing personal narratives by lesbians who have chosen
to be parents.  Amicus National Center for Lesbian Rights has
written a manual of legal information, which it distributes.  

     Conferences and other programs, either sponsored by ad hoc
groups or by ongoing projects of lesbian and gay health
centers, have been and regularly continue to be held in many
cities.  Amicus Center Kids, a project of the New York Lesbian
and Gay Community Services Center, has 1400 member families,
making it the largest regional gay and lesbian parenting
organization in the country.  Center Kids holds conferences,
workshops, and support groups, and provides information and
advocacy for and on behalf of lesbian and gay parents and their
children.

     In recent years, support groups for lesbian and gay families
have developed all over the country, even in isolated areas. 

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Amicus Gay and Lesbian Parents Coalition International (GLPCI)
has over 60 member chapters and 2400 individual members, and it
corresponds with 235 other groups of lesbian and gay parents and
their children.  GLPCI's annual convention features a children's
conference, for children 6 to 12 years old, and a teen conference
hosted by Children of Lesbians and Gays Everywhere (COLAGE), a
group of teenagers and adults raised by lesbian or gay parents.

     The New York Times first mentioned donor insemination of
lesbians in 1980. In 1984, it covered one of the first lawsuits
ever to raise a question about the parental status of two
lesbians raising a child together. In 1988, it addressed
adoption by lesbians and gay men. Its first detailed
description of planned lesbian families in which children were
born through donor insemination appeared in 1989. The next year
a front page article detailed the issues that arise when the
adults in such a family separate, and the first such case in
New York was reported by the Times in 1991. In 1992, the
opinions page of
The New York Times twice brought two mother lesbian families to
the attention of its readers, and in 1993 it featured an
editorial condemning the use of a parent's sexual orientation as
a factor justifying denial of custody.  Also in 1993, the Times
reported on cases raising novel questions of law in planned
lesbian families, and reviewed, in a front page story, the
increased visibility of gay and lesbian parents.

     Within the last five years, both television and other
mainstream print media have documented life in planned lesbian
families.  One extensive article included a reference to the R.-
Y. family.  The reporter wrote that
     In the New York City neighborhood of Greenwich village,
     Sandra Russo and Robin Young are rearing Cade, 13, and
     Ry, 11, their respective biological daughters via
     artificial insemination.  The children's nurturing home
     life and studied imperviousness to teasing have turned
     around their peers.  Says Ry: "After a while they get
     it.  Some kids are a little slow."

In addition to lengthy coverage in Time, supra, Newsweek, and
The New York Times, supra, articles on planned lesbian and gay
families have appeared in USA Today, The Boston Globe, The San
Francisco Examiner, The San Francisco Chronicle, The Los
Angeles Times, The Atlanta Constitution, The Washington Post,
Newsday,
The Chicago Tribune, The Arizona Republic, The San Diego
Union-Tribune, The (New Orleans) Times-Picayune, The Houston
Chronicle and The Wall Street Journal.  Television programs
featuring planned lesbian and gay families have included 20/20,
Phil Donahue Show, Oprah Winfrey Show, and Cable News Network
News. And in a "Dear Abby"
column in 1992, Abigail Van Buren expressed to a skeptical letter
writer her unqualified support for two-mother lesbian families.

     In 1993, Random House published Family Values: Two Moms and
Their Son, the first full-length book issued by a major
publishing company detailing life in a family with two lesbian

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---------------------------------END PAGE 162---------------------------------------

mothers and a child born as a result of donor insemination. 
Reviews of the book were carried in several major newspapers.

     In recent years, a body of children's literature has
featured children with lesbian and gay parents.  Two such
books, Heather Has Two Mommies and Daddy's
Roommate were recommended to teachers in the proposed Children
of the Rainbow curriculum for the New York City Public Schools.
Heather Has Two Mommies was also the subject of contention in
some libraries around the country. Children with two mothers or
two fathers are prominently featured in two collections of fairy
tales, The Duke Who Outlawed Jelly Beans and The Day They Put a
Tax on Rainbows, and the imprint Alyson Wonderland plans to
introduce "board books" for toddler-age children with lesbian or
gay parents during 1994.

     Scholarly literature in both law and mental health
demonstrates substantial interest in the novel questions raised
by the proliferation of planned lesbian and gay families.  Dozens
of articles have appeared in law journals since 1980 examining
such legal issues as access to unknown donor insemination, rights
of known donors and nonbiological mothers, availability of joint
or second-parent adoptions, and the status of a legally
unrecognized parent upon the death of the biological mother.  A
few studies of the psychological development of children born
into planned lesbian families have been published, and a large
longitudinal study of such families began in the mid-1980's.

     Sandra R. and Robin Y. began their family before much
written or documentary material was available to lesbians and gay
men about planning families.  Indeed, they were among the first
wave of women deliberately conceiving children through donor
insemination to raise together as equal parents.  As the
considerable media interest in the last five years substantiates,
this family form is increasing, and proper application of common
law principles requires that courts understand such families
without reference to the assumption that every child has one
mother and one father.

B. The family structure resulting when semen donors are known to
children but do not function as parents is common among planned
lesbian families.
     Robin Y. and Sandra R. chose to construct a planned family
with two children born following insemination with the semen of
two different donors.  Those donors agreed that they would not
have parental rights and responsibilities towards the children,
although they would be known to them.  The burgeoning literature
and press treatment illustrate that planned lesbian and gay
families are frequently structured in such a fashion, with a
known donor who is not one of the child's parents.  

     Dr. April Martin's comprehensive treatment of gay and
lesbian parenting demonstrates that lesbians commonly choose
known donors without expecting those men to thereby become
parents to their children.  She distinguishes between "donor"
and "father." The term "donor" encompasses a man who is known as
the biological father but does not participate in raising the

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child. By contrast, the term "father" refers to a true parent --
someone involved in the child's care and in decision making. 
As she describes, a lesbian couple may want the donor to be known
to the child but still not want him to have "a parental
involvement.  That is, they intend that he will never be in a
position to make decisions for their child, to contribute money
to the child's upbringing, or to actually do the work of care-
giving."

     Dr. Martin further addresses the concerns of men who may be
interested in being known donors.  She asks such men to consider
in advance whether they will be able to follow through on their
intentions to be known to the child without having control over
the child's life.  For those who feel uncomfortable with having
no decision making authority over the child, she suggests that
they choose to be fathers, not donors, and that they make a
coparenting arrangement which would provide a full share in the
child's upbringing.

     A lesbian couple planning a family often balances their
belief that knowledge of and some contact with the donor is in
the best interests of their child against the fear that a known
donor might try to gain parental rights in court.  Thus, the
literature describes the careful search that lesbians undertake,
as did Robin Y. and Sandra R., for men with common values whom
they can trust.

     The relationships between children and known donors, as
described in personal narratives and newspaper accounts, make
clear that the distinction between biological fatherhood and
parenthood is common.  One man spends every Friday afternoon with
his child.  "He describes himself as a father, but not a
parent."  Another plays a "godfather or uncle type of role"
towards the child. An Oakland, California mother of a nine-
year-old describes a situation similar to the present case; she
did not want the donor to be a parent to the child but she did
want to preserve the possibility of future contact.  Her child
occasionally spends time with the biological father.  A Chicago
Tribune article describes two families with known donors who do
not function as parents.  In one, the child knows that the man is
her biological father, that "he helped make her," and although he
visits her he is not involved in raising her. In the other, the
donor agreed that he would have no parenting rights or
responsibilities, but would have contact with the child.  In a
family in which a gay male couple is raising two children born
following insemination of two different biological mothers with
the semen of one of the men, the biological mothers exchange
cards and pictures with the family and visit once a year.  In a
San Diego-area family, the donor agreed to waive his legal
rights, but will be, along with other men, a male role model for
the child.  In an Oregon family, a semen donor waived his
parental rights but had limited visits of short duration
throughout the five-year-old child's life.  His subsequent
petition for paternity and court-ordered visitation was denied by
a court.

     When there are two children in a family, the use of two

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different sperm donors, as was chosen by Robin Y. and Sandra R.,
supports the family model that differentiates biology and
parenthood.  One lesbian mother describes the dynamics as
follows:
     Susan and I felt strongly that we did not want our two
     children to have the same donor.  We were concerned
     that if our children have the same sperm donor, he
     might become a great deal more psychologically
     important in our lives than we intended.  The children
     would be biologically related to each other through the
     sperm donor, deriving from the donor a link that we
     could never give them.  It felt more comfortable, then,
     to have different donors, and let our children's
     primary ties to each other be based on our love for
     them and their love for each other.

C. This court should apply existing legal principles within the
context of this specific planned lesbian family; to do otherwise
would invalidate this family and destabilize the lives of
children in all similar families.
     Amici urge this court to interpret legal principles to
protect both the integrity of planned lesbian and gay families
and the best interests of children within such families.  To do
this, the court must appreciate the context within which the
particular family was created and must understand what the family
looks like from the inside, including specifically from the
perspective of the children.  In this case, as demonstrated in
Section III, infra, established legal doctrine supports amici's
position.

     Several overriding principles should be applied in cases
involving planned lesbian and gay families.  Three of the
relevant principles amici advocate are: 1) a biological
connection is neither a necessary nor a sufficient basis for
establishing parenthood; 2) agreements, particularly when coupled
with an ongoing course of conduct, establishing the intent of a
biological parent either to share parenting with another person
or to relinquish parental rights should be upheld; and 3) a
child's experience of his or her family, which may include two,
less than two, or more than two parents, is critical to any legal
analysis.  Amici and numerous groups of lesbian and gay parents
have consistently argued that biology alone does not determine
parenthood and that parenting agreements made in the context of
planned lesbian and gay families should be encouraged.

     Appellant's brief takes a different approach.  It asserts
that the trial court was "distracted" by the intent of the
parties at the time of the insemination and by the non-
traditional family structure involved in this case.  Brief of
Petitioner-Appellant at 28.  Amici believe, to the contrary, that
it was proper for the court to credit the parties' intent at the
time of insemination, in addition to their subsequent, consistent
course of conduct, and then to apply the governing legal
principles, namely estoppel doctrine, in the context of Ry's
specific, non-traditional, family structure.  In arguing that
these two critical facts -- the intent of the parties and the
nature of a planned lesbian family -- are mere "distractions,"

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appellant violates Ry's reality and risks obliterating the
reality of the thousands of children being raised in planned
lesbian families.

     In attempting to persuade this court that Thomas S.'s
relationship with Ry was parental in nature, Appellant's brief
recites his various contacts with her.  It fails, however, to
place those contacts in the context of Ry's family structure. 
This has the effect of aggrandizing Appellant's relationship with
Ry and concomitantly obscuring the planned family structure into
which Ry, with Thomas S.'s full consent and agreement, was born.

     For the first three years of Ry's life, when she was
developing her identity as a member of a family with two mothers
and a sister, she did not know that Thomas S. existed. In
examining the development of Ry's family, those three years
cannot be ignored.  When Ry and Cade then met Thomas S., a
relationship developed among Thomas S., Sandra R., Robin Y., and
the girls, together.  Sandra R., Robin Y., and the girls,
together, also developed a relationship, with Jack Kolb, Cade's
biological father.  Sandra R. and Robin Y. reiterated to Thomas
S. the importance of him treating both girls equally, and he
agreed to do so.  Thomas S. never had an independent relationship
with Ry, yet that is what he seeks in this litigation.

     The fact that this litigation is about Ry alone, not Ry and
Cade together, does violence to the family structure that Robin
Y. and Sandra R. created and that Thomas S. agreed to honor.  In
this family, Ry and Cade are sisters.  They have two parents who
are both mothers.  They have extended family on both sides who
treat them as sisters.  They do not consider themselves step-
sisters or half-sisters, with certain relatives who are part of
the family of one but not the other; they consider themselves
full sisters. Thomas S. had a relationship with Ry and Cade
together, as sisters, as did all people who came in contact with
this family, including Jack Kolb.

     Ry was raised from birth in a planned family, a family in
which relationships were not determined by biology.  As amici
have demonstrated, this type of family, in which a semen donor is
identified as the child's biological father but never considered
a parent, is common.  It is within the context of this type of
family, and specifically the two-mother, two-child family in
which Ry has lived for her entire life, that amici urge this
court to decide this case.

II. NO SEMEN DONOR WHO AGREED TO FOREGO THE RIGHTS AND
RESPONSIBILITIES OF PARENTHOOD AND WHOSE COURSE OF CONDUCT WAS
CONSISTENT WITH THAT AGREEMENT HAS EVER BEEN GRANTED AN ORDER OF
PATERNITY.
     While no New York case has considered the rights of known
semen donors in contested paternity actions, the cases that have
been decided in other jurisdictions support the decision of the
trial court below.  Those cases stand for the principle that a
known semen donor is entitled to a hearing to determine the
intent of the parties at the time of the insemination and the
course of conduct of the parties after conception.  Thomas S.

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received such a hearing.  Given the factual findings of the trial
court, Thomas S. would not have been entitled to an order of
paternity under any of the existing cases.

     In the cases in which the donor was successful in obtaining
parental rights, two factors were significant.  First, the donor
asserted parental rights when the child was an infant. It is
conceded that did not occur in the instant case. Second, the
donor alleged an agreement with the mother to function as a
father to the child and/or a course of conduct consistent with
such agreement; the mother in each of the cases disputed the
existence of such an agreement and disputed the course of
conduct.  The donor prevailed only when, after a hearing, his
version of the facts was accepted. 
A. A semen donor who is known to the child can be denied an order
of paternity.
     In an Oregon case with factual similarity to the case at
bar, the donor was denied a paternity order.  Leckie v. Voorhies,
Case No. 60-92-06326 (Cir. Ct., Lane Cty. 1993).  The court
applied legal doctrine consisting of a statute stating that semen
donors have no parental rights and an earlier appellate
decision holding that such a statute would be unconstitutional if
it barred parental rights in a donor who had an agreement with
the recipient to assume the rights and responsibilities of
parenthood.  

     Mr. Leckie had agreed to relinquish all parental rights. 
The agreement afforded him limited visitation with the child born
of the insemination, at the convenience of the mother and her
partner, and he agreed to an equal amount of visitation with Ms.
Voorhies's four-year-old child who was not biologically related
to him.  The mother and her partner stated in the agreement that
they were happy to have the donor in their lives "not as a
father, but as a good male role model for both their children." 
When the child was three years old, the donor reconfirmed his
intentions by signing an amended agreement which again stated
that he was relinquishing all parental rights, but which
clarified six hours a month of visitation.  As a result of the
donor's behavior during a visit in March, 1992, the mother
discontinued his visitation, and the donor filed a paternity
action.

     The mother filed a motion for summary judgment based upon
the Oregon statute and McIntyre, alleging that the donor was
absolutely barred by statute and that such bar was constitutional
unless the donor could establish that he and the mother agreed
that he would have the rights and responsibilities of parenthood.

The court granted the motion.  

     The donor was subsequently denied visitation under a
separate Oregon statute because he failed to show that court-
ordered visitation would be in the best interests of the child. 
The donor alleged, among other things, that the child knew he was
her father, that he had spent much time with both children, that
both children called him "dad," that both children thought of his
mother as their grandmother, and that he had made substantial

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financial contributions to the children.  The court, after
finding the mother to be an extremely credible witness, found
that 
     [the donor's] relationship with the children was
     similar to those the children had with several adults. 
     There was no substantial difference in how the children
     related to [the donor], as opposed to other adults
     familiar to the children, except that they had known
     him longer and so perhaps were slightly more familiar.
     Decision at 3-4.
The court further found that
     [The donor's] status in these children's lives, taken
     in best light, raises him only to the level of a
     secondary attachment.  His own description of his
     relationship does not rise beyond that of a child care
     provider, even an excellent child care provider.  It is
     not essential for the best interests of children to
     maintain contact with his or her biological parent.
     Decision at 4.

     Leckie is instructive in the case at bar because the semen
donor was known to the four-year-old child and had had some
contact with her.  The fact that the donor was known to the
child, and that she knew him to be her biological father, was not
sufficient to confer upon him the rights and responsibilities of
parenthood, in the absence of an agreement that the semen donor
would retain parental rights and responsibilities, and in the
absence of a relationship which was parental in nature between
the donor and the child. 

B. Thomas S. received a hearing to determine the intent and
subsequent course of conduct of the parties; nothing more is
required under the law of any jurisdiction.
     All of the cases that have disposed of paternity actions
brought by known semen donors, in various jurisdictions and under
a variety of statutory and common law schemes, are consistent
with two of the principles enunciated by amici, specifically that
biology is not a sufficient basis for establishing parenthood and
that agreements to forego parental rights should be upheld. See
p. 28, supra.  Under the case law, a semen donor's biological
connection entitles him to a hearing to determine the intent of
the parties and, where relevant, the course of conduct.  No court
has based a finding of paternity on biological connection
alone.  Each court has considered the intent of the parties. 
Where there has been a course of conduct, it, too, has been
considered.  Thomas S. received a hearing at which both intent
and course of conduct were considered.  Having found that Thomas
S. agreed to forego the rights and responsibilities of parenthood
and engaged in a ten-year course of conduct consistent with that
agreement, the trial court's denial of his paternity petition is
consistent with existing case law.

     The first case that addressed the parental rights of a known
semen donor is also the least pertinent, as it did not involve
the deliberate creation of an alternative family structure. C.M.
v. C.C., 152 N.J. Super. 160, 377 A.2d 821 (1977).  The parties
were in a "dating" relationship and were contemplating marriage

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at the time of the insemination, and the court relied in part on
this in reaching its decision. The mother testified that she
intended the sperm donor to be only a visitor in her home, while
the sperm donor testified that he assumed he would act as a
father.  The court found that the sperm donor fully intended to
assume the responsibilities of parenthood and that the evidence
did not support the mother's contention that the sperm donor had
waived his parental rights.  

     In the case at bar, the court found that Thomas S. was a
semen donor who agreed to forego both the rights and the
responsibilities of parenthood and that he acted consistently
with that agreement over a ten year period.  C.M. v. C.C. does
not stand for the proposition that under such circumstances a
donor must be awarded an order of paternity.

     In Jhordan C. v. Mary K., a semen donor successfully sued
for paternity of a child who was nine months old when the action
was commenced. 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 (1986). 
The statute extinguishing parental rights when a semen donation
occurs through a licensed physician was not applicable because
the parties had conducted the insemination without a doctor.  The
court then examined the intent and conduct of the parties.  

     In Jhordan C., the court found "no clear understanding" that
the donor would have no parental relationship with the child. 
Id. at 536. Indeed, the court found that "the parties' conduct
indicates otherwise." Id.  That conduct consisted of the social
relationship that developed between the mother and the donor; the
mother's failure to object to the donor's collection of baby
equipment or to his creation of a trust fund for the child; and
the monthly visits the mother permitted between the donor and the
child. Id. The semen donor alleged that the mother agreed he
would care for the child as often as two or three times a week,
although the mother denied such an agreement.  224 Cal. Rptr. at
532.

     The court in Jhordan C. further dismissed the argument that
a paternity order would infringe upon the family autonomy of the
mother, her co-parent and the child by finding that the donor
"was not excluded as a member of [the child's] family, either by
anonymity, by agreement, or by the parties' conduct." Id. 
Affirmance of the trial court's ruling that the donor was the
child's legal father was based upon both statutory interpretation
and the factual finding that "the parties by all other conduct
preserved [the donor's] status as a member of [the child's]
family." Id. at 537-8.

     In a subsequent California case, Steven W. v. Martha Andra
N., 3 Civ CO12456 (Cal. Ct. App., 3rd Dist., May 6, 1993), a
semen donor filed for paternity of an infant child, and the
court, as in Jhordan C., ruled that the failure to use a licensed
physician rendered the statute inapplicable.  The court then
addressed the other arguments made by the mother and her life
partner.

     The women specifically argued that the donor should be

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estopped from asserting paternity.  They maintained that they had
selected him as a donor because he respected their relationship;
that they informed him he would have no financial or emotional
responsibilities for the child; that he never stated that he
wanted involvement or visitation rights with the child; and that
they would not have selected him as a donor if they had known he
wanted parental rights. The donor testified to a radically
different set of facts, indicating his consistent expression of
interest in being involved as the child's father.  The court
found that the mother had not met her burden of proving estoppel,
that the women did not clearly communicate that the donor would
be relinquishing all parental rights, and that the women had
failed to ascertain what the donor meant when he informed them
that he wished to be involved in the child's life. 

     Taken together, these two cases support the proposition
that, in the absence of a controlling statute, both estoppel and
preservation of family autonomy are arguments that may defeat a
semen donor's paternity application in California.  Under Jhordan
C., in determining who constitutes a child's family, a known
semen donor may, by agreement or conduct, be excluded.  The
arguments opposing a paternity determination failed in the above
cases because they were not supported by the facts as found by
the trial courts.  In the instant case, however, the trial court
found both that the elements of estoppel had been proven and that
Ry's family consisted of her two mothers, Robin Y. and Sandra R.,
and her sister, Cade.  Given these factual findings, denial of
Thomas S.'s petition for an order of paternity is consistent with
the two California cases.

     In In re R.C., the Colorado Supreme Court ruled that a
statute extinguishing the parental rights of semen donors was not
applicable to known donors and recipients who agreed that the
donor would retain parental rights.  775 P.2d 27 (Colo. 1989). 
As a result of the court's interpretation of the statute, the
case was remanded for a hearing on the intent of the parties at
the time of the insemination.  In that case the semen donor filed
a paternity action when the child was 10 months old, alleging
both an agreement that he would function as a father to the child
and a course of conduct consistent with that agreement.  The
mother disputed all of the allegations.  Here, Thomas S. received
a hearing and the court found both that he agreed at the time of
the insemination not to assert parental rights and that the
course of conduct for the ensuing decade was consistent with that
agreement.

     Similarly, under Oregon law, a semen donor is not precluded
by statute from asserting parental rights if he and the recipient
agree that he will be a parent. McIntyre v. Crouch, supra, note
83.  Thus, the intent of the parties governs. The McIntyre action
was filed when the child was two months old, and the impact of
the appellate decision was to require a hearing on the disputed
facts concerning the parties' intent.  As previously discussed,
see section IIA, supra, in a subsequent Oregon case applying both
the statute and the principles established in McIntyre, a semen
donor was denied an order of paternity to a four-year-old child. 
Leckie v. Voorhies, supra.  In the instant case, Thomas S.

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received a full hearing, and the court found that he did not
intend by his semen donation to have the rights and
responsibilities of parenthood.

III.  EQUITABLE ESTOPPEL IS AN APPROPRIATE DEFENSE TO THOMAS S.'S
PATERNITY ACTION. 
     The biological father of a child born to a woman who is not
his wife is not automatically entitled to an order of paternity. 
"Case law recognizes that the results of blood tests can be
rendered irrelevant by the defense of equitable estoppel."
Terrence M. v. Gale C., 193 A.D.2d 437, 597 N.Y.S. 2d 333 (1st
Dept. 1993), motion for leave to appeal den'd, 1993 N.Y. LEXIS
4313 (Nov. 22, 1993). Courts have liberally applied estoppel
doctrine to preserve the child's experience of his or her
family, even when that experience is inconsistent with biology. 
As one court applying estoppel to defeat the claim of a
biological father stated, "we would be remiss if we failed to
note that the inevitable effect of destroying the child's image
of her family would be catastrophic and fraught with lasting
trauma."  Ettore I. v. Angela D., 127 A.D.2d 6, 513 N.Y.S.2d 733,
739 (2nd Dept. 1987). 

     In other words, in New York, biology is not destiny.  For no
one is this a more salient principle that for the growing number
of lesbian and gay families, for whom "family planning"
necessarily signifies creation of a family by plan and agreement
rather than via biology alone.

       The case law does not support appellant's interpretation
that application of the estoppel doctrine is limited to cases in
which a finding of paternity would brand a child "illegitimate." 
Such a cramped reading of the case law would preclude many
children from benefitting from the security the estoppel doctrine
affords, and would preclude all lesbian mothers from invoking
estoppel to protect the integrity of their families.  A child
born into a lesbian family, whether consisting of a single
lesbian mother or two lesbian mothers, can never be "legitimate"
in the traditional sense of that word.  If appellant's argument
were to prevail, every lesbian mother who conceived through use
of semen from a known donor would be vulnerable to a paternity
challenge.  This would be true regardless of the agreement and
course of conduct of the parties or the emotional impact on the
child of eradicating her sense of security in her family.
     
     Appellant's brief contains the assertion that the trial
court's denial of his paternity petition amounts to a "lesbian
exception" to domestic relations law. Brief of Petitioner-
Appellant at 70.  It is appellant, however, who seeks to create a
"lesbian exception."  Appellant's brief acknowledges, as it must,
that estoppel is available to defeat a paternity claim made by a
biological father. By arguing that this doctrine should only be
used when a child's "legitimacy" is at stake, appellant would
make estoppel unavailable to children raised in lesbian families.

Amici believe that legal doctrine designed to protect the
stability of children in conventionally structured families must
be made available to protect the stability of children in lesbian

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families, and that no "lesbian exception" to the applicability of
estoppel doctrine should be created by this court.

A. Estoppel is properly applied to preserve a child's experience
of her family and is not limited to situations in which a child's
"legitimacy" is at stake.
     Contrary to the interpretation contained in appellant's
brief, in the many cases in this state concerning paternity, it
is the child's family experience, not the child's "legitimacy,"
that the courts have sought to protect when applying the estoppel
doctrine.  When those two factors converge, some opinions have
addressed both, but no case supports the proposition that
preserving a child's "legitimacy" is an element of equitable
estoppel.

     Indeed, in the most recent Appellate Division opinion
estopping an alleged biological father from asserting paternity,
which came from this Department, the court affirmed a trial court
decision that explicitly rejected the argument that estoppel can
be used only to preserve a child's "legitimacy."  Terrence M. v.
Gale C., supra, aff'g Board v. Plank, 150 Misc. 2d 743, 570
N.Y.S.2d 270 (Fam. Ct., New York Cty. 1991). The court applied
the doctrine to defeat the paternity claim concerning a 17 year
old, born out of wedlock, who had known another man (since
deceased) as her father. In affirming, the appellate court noted
the adverse emotional impact that a paternity determination would
have upon the child, and found that the trial court  "properly
invoked the doctrine of equitable estoppel to preserve existing
ties in the face of an outsider's threatened intrusion." 597
N.Y.S.2d at 334.

     In cases in which a child's "legitimacy" has been preserved
by application of estoppel, the fact of preserving the child's
"legitimacy" has not been necessary to the result.  When
biological fathers have been estopped from obtaining paternity
orders for children born to married women, estoppel has turned
upon the course of conduct of the parties, especially the man
seeking the paternity order, and the resulting relationships
established with the child.  Specifically, when a man who has
reason to know that he is the biological father of a child
permits a child to develop family relationships which would be
disrupted by an order of paternity, then he can be estopped from
obtaining such an order.  

     Thus, in Purificati v. Paricos, 154 A.D.2d 360, 545 N.Y.S.2d
837 (2nd Dept. 1989), the biological father of a three year old
was living at the time of the action with the child's mother. He
was equitably estopped from claiming paternity because he had
waited more than three years before filing a paternity action. 
During that time, the child developed a parent-child relationship
with the mother's husband, and, even after the mother and her
husband divorced, the former husband had regular visitation with
the child and paid child support.  The child considered the
former husband's mother to be his grandmother and had a sibling
relationship with a child who was indisputably the child of his
mother and her former husband.  Although the court made reference
to the concept of "branding the child illegitimate," this was

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neither an element of estoppel nor necessary to the court's
result.  Rather, the estoppel was based upon the biological
father's "lengthy acquiescence" in the development of a parent-
child relationship between the child and the mother's husband.
545 N.Y.S.2d at 839.

     While Ettore I. v. Angela D., 127 App. Div. 6, 513 N.Y.S.2d
733 (2nd Dept. 1987) also referenced the notion of
"illegitimacy," the critical facts in that case were the lapse of
time before the petitioner filed a paternity action and the
existing parent-child relationship between the child and her
mother's former husband.  From the child's birth, the biological
father had wanted to be acknowledged as the child's father, but
he had been denied visitation by the mother.  He filed a
paternity action only when the child was almost three years old,
and after the mother and her husband had separated.  He was
estopped because he did not promptly pursue his legal rights and
therefore the child's "image of her family" would be destroyed by
a paternity order, an occurrence the court found would be
"catastrophic and fraught with lasting trauma." 513 N.Y.S.2d at
739.

     In other cases in which a child's "legitimacy" has been
preserved by application of estoppel, it has been the conduct of
the parties and the existing parent-child relationships, not the
status of "legitimacy," that have been determinative.  In Boyles
v. Boyles, 95 A.D.2d 95, 466 N.Y.S.2d 762 (3rd Dept. 1983), a
mother was estopped from denying her former husband's paternity.
The couple had lived together, as parents of the child, until the
child was two-and-a-half-years old.  The child had the husband's
last name and the husband was listed as father on the child's
birth certificate. The husband's parents were called the child's
"Grandma" and "Grandpa."  466 N.Y.S.2d at 765. The court further
found that the husband justifiably relied on the mother's conduct
as a basis for believing that she would not enforce any superior
right to custody of the child by asserting that he was not the
child's father.  Id.  Only after finding estoppel based on the
factual circumstances did the court mention that, "moreover," the
mother should be precluded from "bastardizing" the child.  Id.

     In Sharon GG v. Duane HH, 95 App. Div 2d, 467 N.Y.S.2d 941
(3rd Dept. 1983), aff'd mem., 63 N.Y.2d 859, 482 N.Y.S.2d 270,
472 N.E.2d 46 (1984),the mother had also expressed no doubt about
her husband's paternity for two and a half years after the
child's birth.  Throughout that period she held the child out as
her husband's son, put his name on the birth and baptismal
certificates, accepted support while living together and apart,
and permitted a strong parent-child bond to be formed between the
husband and child.  "These facts are sufficient, under the case
law, to establish prima facie a defense for the husband on the
basis of equitable estoppel." 467 N.Y.S.2d at 943.  Subsequent to
establishing the prima facie case for estoppel, the court
discussed the benefits of preserving the child's legitimacy, but
that factor was not an element of the estoppel itself.

     In Michel DeL. v. Martha P., 173 A.D.2d, 570 N.Y.S.2d 279
(1st Dept. 1991), the mother and her current husband, who claimed

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to be the child's biological father, were estopped from
challenging the paternity of the mother's former husband, when
the child was conceived during the mother's first marriage.  The
decision makes no reference to, and therefore does not rely upon,
preserving the child's "legitimacy."  Rather, it relies upon the
fact that, for more than two years, the mother and the alleged
biological father had encouraged a "paternal, emotional and
financial" relationship between the child and the former husband,
who had had summer and holiday visitation with the child and paid
large amounts of child support.  The court found that the
traditional elements of estoppel had been proven.  Accord,
Biserka B. v. Zdenko R., 133 A.D.2d 728, 520 N.Y.S.2d 17 (2nd
Dept. 1987) ("[Mother] created an opportunity for the development
of a father-son relationship between the respondent and the
child. Having concealed for eight years the purported `true'
paternity of the child, the appellant is now estopped from
contesting the husband's paternity."  520 N.Y.S.2d at 18.); Vito
L. v. Filomena L., 172 A.D.2d 648, 568 N.Y.S.2d 449 (2nd Dept.
1991) (Although the court noted that no purpose would be served
by "branding the child illegitimate," estoppel of husband was
based upon "having accepted his status as the father of the child
without objection for nearly eight years.")

     When the ability to preserve a child's "legitimacy" and the
ability to preserve a child's experience of her family diverge,
the courts use estoppel to preserve the child's family
experience, not the child's "legitimacy."  Thus, in Vilma J. v.
William L., 151 A.D.2d 758, 542 N.Y.S.2d 783 (2nd Dept. 1989),
the court applied estoppel to preserve a 12-year-old child's
understanding that a man who was not her mother's husband was her
father, even though this rendered her "illegitimate." In Willy G.
v. Debra B., 181 A.D.2d 858, 582 N.Y.S.2d 204 (2nd Dept. 1992), a
paternity petition was granted where the child considered the
petitioner to be her father and considered her mother's former
husband to be her "stepfather."  The court did not mention the
fact that granting the petition rendered the child
"illegitimate." 

     When children are born out of wedlock, their "legitimacy"
cannot be at issue, yet in numerous cases courts have applied
estoppel doctrine to preserve a child's real family.  Anton W. v.
Nadine V., 597 N.Y.S.2d 865, 868 (Fam. Ct., Bronx Cty.
1993)(mother equitably estopped from denying the paternity of a
man who was not the out-of-wedlock child's biological father,
because "preserving the child's legitimacy [is not] essential to
the application of the doctrine of equitable estoppel");  June B.
v. Edward L., 69 A.D.2d 612, 419 N.Y.S.2d 514 (1st Dept.
1979)(mother estopped from denying the paternity of her out-of-
wedlock child after she had obtained a consent order of paternity
against a man who had readily accepted the responsibilities of
parenthood); Barbara A.M. v. Gerard J.M., 178 A.D.2d 412, 577
N.Y.S.2d 110 (2nd Dept. 1991) ("father" estopped from contesting
his paternity, after he had consented to a paternity order and
developed a father-son relationship with the child for almost 10
years).

     That the question of a child's "legitimacy" is separate from

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the question of whether the elements of estoppel have been met is
supported by the fact that a man claiming paternity of a child
born to a married woman will be successful if he asserts his
status immediately, even though a finding of paternity will
render the child "illegitimate." Swann v. Schoenfeld, 163 A.D.2d
850, 559 N.Y.S.2d 408, 410 (4th Dept. 1990) (equitable estoppel
wrongly applied by trial court where, among other things, the
petitioning father made "timely attempts to establish
paternity.")  See also Crane v. Battle, 62 Misc. 2d 137, 407
N.Y.S.2d 355 (Fam. Ct., New York Cty. 1970) (petitioner entitled
to order of paternity of a one-and-a-half-year-old child, where
mother had not been living with her husband, the presumption of
legitimacy having been overcome.)

     All of the above cases demonstrate that preserving a child's
"legitimacy" is not an element of estoppel in the context of an
action concerning a child's paternity.  Thomas S.'s attempt to
limit the application of estoppel doctrine in such a fashion
should be rejected by this court.

B. Estoppel is properly applied when the trial court finds that a
child does not consider a semen donor to be a parental figure
even though she knows the biological facts of her origin.
     The arguments that appellant cannot be estopped from
asserting paternity because Ry had no other father and because Ry
knew he was her "father" eviscerate the reality of children's
lives in lesbian families and should be rejected by this court. 
A healthy family does not require parents of a particular gender,
nor does the absence of another male parent insulate a biological
father from estoppel principles.

     The first argument, that having "another father" is a
prerequisite to the application of estoppel is similar to the
assertion that estoppel can only be applied to prevent a child
from becoming "illegitimate."  It suggests that a child must have
a father, and that if she does not, no matter what relationships
exist, no matter what the child's identity as a member of a
family, or the course of conduct of the parties, or the harm to
the child, estoppel cannot be applied to protect a child from an
order of paternity.  This argument ignores not only Ry's actual
life experience but the life experience of all children born into
families consciously and intentionally created outside the two-
parent heterosexual model.  Equitable estoppel has been applied
consistently to make determinations that preserve a child's
experience of his or her family.  The presence of "another
father" is not a prerequisite for application of estoppel
doctrine because a child's experience of his or her family need
not include a male parent. 

     The second argument, that estoppel is inapplicable because
Ry knew Thomas S. to be her biological father, is similarly
flawed.  It ignores the context of Ry's life and the lives of
children in thousands of lesbian and gay families.  Perhaps the
principal characteristic of such families is that neither biology
nor legal sanction determine the authenticity of the
relationships created nor the child's understanding of those
relationships. The issue here, therefore, is not what Ry knew of

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the biological facts, but how Ry experienced her family and what
social and emotional meaning she attached to the biological
facts.  Especially in the context of an agreement that the semen
donor will be known to the child but will not have the rights and
responsibilities of parenthood, and an ensuing course of conduct
consistent with that agreement, a child can know the biological
facts of her origin without considering her biological father a
parent.

     As amici have demonstrated, section I B, supra, it is a
common practice for lesbians to use known semen donors, and to
permit some contact between the child and the semen donor. 
Because of the deliberate construction of family relationships
within lesbian families, a child can be raised to know that a man
is her biological father without considering him her parent. 
Whether the child views the semen donor as a parent is a factual
determination.  Appellant's reasoning that a man who is
identified as a child's biological father could never be estopped
from asserting paternity would deny children in lesbian families
the protection that the estoppel doctrine affords children in
heterosexual families -- the ability to estop the claim of a
biological father when to issue a paternity order would destroy
the child's image of her family.  The fact that the child knows
the semen donor as her biological father should not preclude
application of the estoppel doctrine to defeat a paternity claim
that would amount to a "rocking of [the child's] cosmos."

     Appellant's argument further implies that a child raised in
a home with two mothers cannot consider herself firmly
established as the daughter of those two parents.  It suggests
without foundation that the power of biology is so strong that,
even if the daily care and decision making involved in parenting
is performed by two mothers, a child will still consider her
known semen donor to be her parent, unless she knows another man
as her father.  Appellant's argument denies that children of
lesbians and gay men can truly learn to define their family
relationships on the basis of their experience rather than on the
basis of the conventional, heterosexual norm.

     The resolution of this case must not turn on whether Ry knew
that Thomas S. contributed the semen that resulted in her
conception or on whether she had a warm relationship with him
before he commenced this action.  It must turn on how she
experienced her family even with full knowledge of the biological
reality.  

1. Given the factual findings of the trial court, estoppel was
appropriately applied.
     Three New York Appellate Division cases have estopped a
petitioning biological father from obtaining a paternity order.
Terrence, supra; Purificati, supra; Ettore, supra.  Ettore set
forth generally applicable estoppel principles.
     The doctrine of equitable estoppel may successfully be
     invoked, in the interest of fairness, to prevent the
     enforcement of rights which would ultimately work fraud
     or injustice upon the person against whom enforcement
     is sought. (citations omitted).  An estoppel defense

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     may also be invoked where the failure to promptly
     assert a right has given rise to circumstances
     rendering it inequitable to permit the exercise of the
     right after a lapse of time. 513 N.Y.S.2d at 737-738.
In a paternity proceeding, the foregoing of the rights and
responsibilities of parenthood is the first criterion.  The
second criterion, reliance, is established when the child
develops family relationships as a consequence of the biological
father's actions or inactions.  The third criterion, detriment,
is established when the child would be traumatized, see, Ettore,
supra; Purificati, supra; or otherwise adversely emotionally
affected, see, Terrence M., supra, by the requested paternity
determination.

     The facts as found by the trial court support its
determination that the elements of estoppel are present in this
case.
 
a. The trial court found that Thomas S. agreed to and did forego
asserting parental rights.
     In this case, the court found the first criterion to be
established by the agreement Thomas S. made with the two women,
coupled with an ensuing, consistent course of conduct.  Thomas
S. agreed prior to Robin Y.'s insemination with his semen that "a
child born of the insemination would be raised by [Sandra R.] and
[Robin Y.] as co-parents and as Cade's sister; that [he] would
have no parental rights or obligations; and that he would make
himself known to the child if the child asked about her
biological origins." Thomas S., supra, 599 N.Y.S.2d at 378.  He
would not have been chosen as a sperm donor if he had not said
that he had no interest in exercising parental rights.  Id. at
382. 

     The parties' behavior reaffirmed the family they intended to
create by their agreement.  The court found that Thomas S. knew
about Ry's birth but had virtually no contact with Ry or her
family until February, 1985, when Ry was three years old.  Id. at
379.  When Robin Y. and Sandra R. initiated contact between their
family and Thomas S. in 1985, he expressly agreed to honor his
agreement to treat the women as co-mothers to both children and
to treat Cade as Ry's sister.  Id.  There were several visits
between Thomas S. and Sandra R., Robin Y., and the girls between
1985 and 1991; these were "at the complete discretion of [Robin
Y.] and [Sandra R.]."  Id. Thomas S.'s conduct for the decade
after the insemination "confirmed his earliest representations."
Id. at 382. 

     In each of the reported cases, the court examined the reason
for the period between the child's conception or birth and the
commencement of the paternity action.  In Terrence, the
biological father offered no reason.  In Purificati, the court
found that the reason was the biological father's (and the
mother's) desire for the financial benefit provided by the wealth
of the mother's former husband.  In Ettore, the court found
"patently insufficient" the proffered reason that the biological
father did not want to disturb existing relationships while the
mother was living with her husband.  Here the court found that

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Thomas S. "attempt[ed] to change the ground rules" of Ry's life
when she was almost ten years old, because of changes in his own
life.  599 N.Y.S.2d at 382.

     As the court did here, courts must examine the development
of the child's family relationships during the elapsed time. 
Those relationships develop as a result of the biological
father's actions or inactions which can include, as in this case,
an agreement to forego parental rights and a course of conduct
consistent with that agreement.

b. The element of reliance is established by the court's finding
that Thomas S. chose to forego parental rights to Ry, which
allowed her to develop her identity as a child in a family with
two mothers and a sister.
     The court below examined the family relationships that Ry
developed as a consequence of living in her planned lesbian
family structure.  The court found that Ry's family definitions
had resulted in reliance upon the concept of family to which the
parties had initially agreed and which Thomas S. had reaffirmed
in words and by his conduct.  The court properly credited the
deep significance of the "functional family relationships" which
had developed between Ry and Sandra R., as a second mother, and
between Ry and Cade as full siblings. Id. at 382.

     The court found that "Ry, like Cade, was given the last
names of R. and Y. to indicate that R. and Y. considered her the
equal daughter of each of them.  R. and Y. paid all the expenses
of Ry's birth, and have jointly supported her all of her life." 
Id. at 378.  Further, the court found that "Ry and Cade regard
each other as sisters, and have a very close, warm relationship. 
Both girls call Robin Y. and Sandra R., "Mommy." Id. at 379. 
Both girls regard Sandra R.'s mother as their grandmother, and
she pays for private school tuition for both of them.  Id.  The
school treats both women as co-mothers of each child.  Id.  Prior
to this litigation, the mothers had believed that Thomas S.
"could be trusted not to question their legal status." Id.

     The findings of the psychiatrist, Dr. Myles Schneider, who
evaluated all the parties and other relevant people, support the
court's conclusion that this family had formed its bonds without
regard to biology.  Dr. Schneider testified that
     Ry...considers Sandra R. and Robin Y. to be her parents
     and Cade to be her full sister.  She understands the
     underlying biological relationships, but they are not
     the reality of her life.  The reality of her life is
     having two mothers, Robin Y. and Sandra R., working
     together to raise her and her sister.  Ry does not now
     and has never viewed Thomas S. as a functional third
     parent....

     [Ry] knows that she, Cade and her mothers comprise an
     unusual and unconventional family.  She knows that some
     outside her family have often shown intolerance and
     insensitivity toward her family.  Notwithstanding this
     intolerance, Ry's own view of her family is that of a
     warm, loving, supportive environment. Id. at 380.

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     After detailing the psychiatrist's findings, the court
concluded that "Ry has been brought up to view Robin Y. and
Sandra R. as equal mothers raising two children and to view
Thomas S. as an important man in her family's life.  In her
family, there has been no father." Id.

     Appellant's argument that the reliance element has not been
established ignores these critical findings made by the trial
court.  Rather, his argument hinges once again on the proposition
that estoppel cannot be applied unless a child considers another
man to be her father.  Specifically, appellant's brief attempts
to cut short the inquiry into the family relationships Ry
developed during the first nine and a half years of her life by
asserting simply that "nothing that Mr. Steel was alleged to have
done (or failed to do) could have suggested to Ry that someone
else was her father." Brief of Petitioner-Appellant at 45n.32. 
Appellant would thereby have this court avoid examination of Ry's
experience of her family, even though that experience was shaped
in part by appellant's agreement and conduct for ten years,
simply because Ry "has always known that Ms. Russo is not her
father." Brief of Petitioner-Appellant at 50.

     This analysis renders invisible or unworthy of legal
protection the lives of children intentionally raised in families
without fathers.  Lesbians and some single heterosexual women
often deliberately raise children in such families.  These
families are complete, legitimate, and well-functioning.  The
children in such families can be as healthy and well-adjusted as
children in heterosexual families, and, in this case, the trial
court specifically found that both Ry and Cade were well-adjusted
children.  599 N.Y.S.2d at 379.
 
     The families that lesbians and gay men form have validity
and integrity.  Children can and do reliably identify their
parents and siblings in such families without reference to a
traditional heterosexual model.  Lesbians who are successful in
creating loving and healthy families and in raising well-adjusted
children who do not view their biological fathers as non-
custodial parents are entitled to the protection that estoppel
doctrine affords.  Under the reliance element of this doctrine, a
court must evaluate a child's parental and sibling
relationships, based upon the child's experience, without any
preconception of what a family must look like.  Amici urge this
court to reject appellant's cramped reading of the inquiry
required under existing case law; the extent of the trial court's
inquiry was appropriate.

c. Ry would suffer detriment if a paternity order were issued.

     The final element of estoppel is detriment. See Terrence,
supra; Purificati, supra; Ettore, supra.  Appellant's brief
asserts yet again that a paternity determination would cause Ry
no harm because "she never believed herself to be the
`legitimate' child of Sandra Russo." Brief of Petitioner-
Appellant at 48.  Amici urge this court to reject this limited
view of when an order of paternity will be harmful to a child.
The trial judge's opinion demonstrates respect for and

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appreciation of the experience of a child raised for her entire
life in a lesbian family consisting of two mothers and a sister.

     The trial court found that Ry would be harmed by an order of
paternity.  He credited the psychiatrist's testimony that
     Ry...views this court proceeding as an attack on and
     threat to her positive image of herself and her family. 
     Her sense of family security is threatened.  She has
     expressed fear of ongoing court involvement and worries
     about a confusing and threatening period in her
     family's life....

     Even the prospect of a visit with [Thomas S.] causes Ry
     much anxiety...Any forced visitation would cause her
     increased anxiety, and would also do nothing to repair
     her relationship with Thomas S.  599 N.Y.S.2d at 380.
The trial judge found that
     This attempt [to change the ground rules of Ry's life]
     has already caused Ry anxiety, nightmares, and
     psychological harm.  Ry views this proceeding as a
     threat to her sense of family security.  For her, a
     declaration of paternity would be a statement that her
     family is other than what she knows it to be and needs
     it to be.

     To Ry, Thomas S. is an outsider attacking her family,
     refusing to give it respect, and seeking to force her
     to spend time with him and his biological relatives,
     who are all complete strangers to her, for his own
     selfish reasons.

     A declaration of paternity naming Thomas S. as Ry's
     father, under these circumstances, at this late time in
     her life, would not be in her best interests. Id. at
     382.

     Appellant's argument that a paternity order cannot be
detrimental when there is no other father because it will only
add to, rather than take away from, the child's life is
misguided.  When a child has never viewed her biological father
as a parental figure, as the trial court found in this case, his
"addition" as a parent is an intrusion into and a destabilization
of the child's family.  For example, appellant's assertion that
an order of paternity will not undermine the existing family
relationships is inaccurate.  An order of paternity would accord
him full parental rights, including custodial rights to Ry
superior to those of Sandra R.  Court-ordered visitation, and
the potential for endless relitigation of the terms of
visitation, would undermine the authority that has always been
Robin Y. and Sandra R.'s alone -- the authority that all parents
have to make the decisions affecting the lives of their children.

Further, in the event that Robin Y. and Sandra R. petition the
court to become the legally recognized parents of both
children, Thomas S. could have the power to block such adoption
with respect to Ry, thereby preventing her from obtaining full
legal acknowledgment of her relationship with Sandra R. and

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Cade.

2. The trial court's consideration of Ry's best interests was
proper, as was the court's evaluation of Ry's best interests in
the context of her specific family structure.
     After reviewing the case law applying estoppel in paternity
proceedings, the Ettore I. court concluded that "as a practical
matter, if there is anything that the body of law does suggest it
is that the paramount concern in this type of case should be the
best interests of the child."  513 N.Y.S.2d at 739.  The child's
best interests were explicitly deemed an appropriate
consideration in Purificati v. Paricos, supra; Barbara A.M. v.
Gerard J.M., supra; Michel DeL. v. Martha P., supra; Anton W. v.
Nadine V., supra; Sandy M. v. Timothy J., 138 Misc. 2d 338, 524
N.Y.S.2d 639 (Fam. Ct., Broome Cty. 1988). Accord, Willy G. v.
Debra B., supra (The law guardian asserted that the best
interests of the child were immaterial in the paternity
proceeding. The court stated that "there is no support for this
position." 582 N.Y.S.2d at 205).

a. It is not always in a child's best interests to have a known
semen donor declared a father.
     In arguing that denial of his paternity petition cannot be
in Ry's best interests because it "sever[s] her relationship with
the only father she has ever known," appellant raises the specter
of harm to Ry based upon theories and research concerning
children of divorce, children in foster care, and children who
have been adopted into a new family. Brief of Petitioner-
Appellant at 59. Ry fits none of these categories.  She is a
child who, from birth, has lived with the same two parents, one
her biological mother and the other her nonbiological mother, and
with her sister.  She lives with the parents who have always
wanted her and have always raised her.  

     The trial court found that, in spite of Ry's knowledge of
her biological connection to Thomas S., she never considered him
a non-custodial parent.  Thus, appellant's analogy to the
multiple parental relationships a child may have in a step-family
situation is misplaced, as is the specter he raises that denial
of his paternity petition threatens the rights normally accorded
to non-custodial parents.

     If appellant's argument is accepted, every court would be
compelled to find that it is always in the best interests of a
child to grant an order of paternity to a known semen donor. 
Amici urge this court to reject such reasoning.  If, within a
given family, a child knows the man who is her biological father
but does not consider that man a parent, a court must be able to
find that it is not in the particular child's best interests to
grant an order of paternity.

b. A semen donor's financial assets should not compel a finding
that a paternity determination is in the child's best interests.
     Appellant also argues that an order of paternity is
necessary to Ry's best interests because of the substantial
financial resources he could provide her.  In making this
argument, he relies significantly on the possibility that Sandra

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R. could walk away from Robin Y. and Ry and leave Ry without
adequate support.  

     This argument should also be rejected.  There is nothing in
the record to suggest either that Sandra R. will not remain a
member of this family or that she would ever stop supporting Ry.
Furthermore, she could be compelled to provide financial support
for Ry.  See Karen T. v. Michael T., 127 Misc. 2d 14, 484
N.Y.S.2d 780 (Fam. Ct., Monroe Cty. 1985).  Almost any semen
donor can claim that a child's best interests would be served by
access to his assets.  If the court were to accept this
reasoning, it would severely undermine the ability of lesbians to
deliberately form families without fathers.

                                Conclusion
     A biological father is not automatically entitled to an
order of paternity.  In this case, concerning the future of a
child born following donor insemination into a planned lesbian
family, the court below properly credited the parties' intent at
the time of insemination that Thomas S. would not have the rights
and responsibilities of parenthood, as well as their subsequent,
consistent course of conduct.  The court evaluated the contacts
that Thomas S. had with Ry and Cade and their mothers, Robin Y.
and Sandra R., within the context of the specific family
structure within which Ry has lived for her entire life.  The
court found that "in [Ry's] family, there has been no father" and
that Ry knew the biological facts of her origin but never
considered Thomas S. a parent.  The court further found that "a
declaration of paternity would be a statement that [Ry's] family
is other than what she knows it to be and needs it to be."

     Estoppel doctrine is designed to protect a child from the
"lasting trauma" of an order of paternity which would destroy her
image of her family.  As the court below noted, this doctrine
"has been utilized by the courts to decide paternity proceedings
for families whose reality is more complex than a one mother, one
father biological model." 599 N.Y.S.2d at 382.  This doctrine is
properly available to protect a child's experience in a planned
lesbian or gay family.  Given the findings of the court below, 
Thomas S. was properly estopped from obtaining an order of
paternity, and amici respectfully requests that the order
dismissing the proceeding be affirmed.















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