LESBIAN/GAY LAW NOTES

ISSN 8755-9021 February 2000

Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013,

212-431-2156, fax 431-1804; e-mail: asleonard@aol.com or aleonard@nyls.edu

Contributing Writers: Elaine Chapnik, Esq., New York City; Ian Chesir-Teran, Esq., New York City;

Steven Kolodny, Esq., New York City; Mark Major, Esq., New Jersey; K. Jacob Ruppert, Esq.,

Queens, New York; Daniel R Schaffer, New York City; Robert Wintemute, Esq., King's College,

London, England.

Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118;

e-mail: le-gal@interport.net

(C) 2000 by the Lesbian & Gay Law Association Foundation of Greater New York.

BOY SCOUTS ON HIGH COURT AGENDA; SUPREME COURT WILL REVIEW NEW

JERSEY SUPREME COURT DECISION IN _DALE_

Placing a high profile gay rights case on its agenda for the first time since _Romer v. Evans_, the U.S.

Supreme Court announced on January 14 that it will review the federal constitutional issues decided

by the New Jersey Supreme Court in _Dale v. Boy Scouts of America_, 734 A.2d 1196, 160 N.J. 562

(Aug. 4, 1999). The case will be argued this spring and probably decided by the end of the Court's

term late in June or early in July. Lambda Legal Defense & Education Fund represents respondent

James Dale.

In this case, the state court ruled that the Boy Scouts of America had violated New Jersey's law

banning sexual orientation discrimination in places of public accommodation by expelling James Dale

from his assistant scoutmaster position after learning through a newspaper article that he was a leader

of the lesbian and gay students organization at Rutgers University. As part of its ruling, the New

Jersey court rejected the Boy Scouts' argument that they were privileged under the U.S. Constitution

to maintain a policy against letting lesbians or gay men be members or leaders in their organization.

The New Jersey court's ruling that the Scouts are a place of public accommodation and that their

policy violates the state law is, of course, immune from U.S. Supreme Court review, as the New

Jersey Supreme Court is the definitive exponent of the meaning of New Jersey state law.

Thus, the U.S. Supreme Court's consideration of this case will focus solely on the federal

constitutional privilege claimed by the Scouts. Although this claimed privilege was variously

characterized during different stages of the litigation, the New Jersey court dealt with it under the

rubrics of freedom of intimate and expressive association. The Scouts argued that as each individual

troop consists of a small number of individuals who spend time together in a relatively intimate

setting, the right of intimate association protected the organization's decision about whom to exclude

from positions of membership or leadership on the troop level. They also argued that the right of

expressive association was at stake; that as a private organization, the Scouts have a right to define

their mission and expressive purpose and to exclude from membership and leadership positions those

whose beliefs and values are inconsistent with the organization's mission.

In her opinion for the New Jersey Supreme Court, Chief Justice Deborah Poritz rejected both of these

constitutional claims. As to the intimate association claim, which is rooted in dicta from the late

Justice William Brennan's plurality opinion in _Roberts v. U.S. Jaycees_, 468 U.S. 609 (1984), Poritz

noted that the Supreme Court had rejected intimate association claims in situations involving private

clubs that had as few as 15 or 20 members, not much different from a Boy Scout troop in size, and

that the concept of intimate association really applied more properly to family units and people living

together. It seems likely that the Scouts will attempt to dispute this ruling before the U.S. Supreme

Court by emphasizing Scout activities such as camping in the wilderness during which members of

a troop may share the same tent and engage in various contact sports.

On the expressive association claim, the Scouts hung their collective hats on the Supreme Court's

unanimous ruling in _Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S.

557 (1995), in which the Court found that the state of Massachusetts had violated the right of

expressive association of a private group that runs Boston's annual St. Patrick's Day Parade by

requiring the group to let the Irish-American Gay, Lesbian & Bisexual Group of Boston participate

in the parade. Justice David Souter's opinion for the Court in _Hurley_ held that a parade is a

quintessential expressive activity, engaged in to communicate the parade organizer's message to those

who would view or hear about the parade, and that as such the organizer had a constitutional right

to determine what the message would be and to exclude groups whose participation would dilute or

contradict that message. In _Dale_, the Scouts argue that they have defined their mission and

message to embody a heterosexual norm and a view of homosexuality as immoral, and thus that they

are privileged by the right of expressive association to exclude lesbians and gay men from their

organization.

Focusing particularly on Dale as an assistant Scout master, the Scouts argued that keeping him in that

leadership position as an openly gay man would provide a role model for the boys in his troop that

is contradictory with the mission and goals of the Boy Scouts. In advancing this argument, the

Scouts pointed to the traditional Scout oath, which requires Scouts to be "morally straight" and lead

a "clean" life. In the view of the BSA, being gay is not "clean" and "morally straight."

Rejecting this argument, Chief Justice Poritz found no evidence that when these provisions of the

oath were adopted, their framers had any message about homosexuality in mind. Reviewing the trial

record, which contained all the basic documents of Scouting, Poritz found that there was nowhere

any official expression about homosexuality that would be contradicted by allowing Dale to be a

member and a leader, and that opposition to homosexuality was not part of the mission and core

values of the organization.

The New Jersey Supreme Court's decision was unanimous, unlike the Massachusetts Supreme

Judicial Court's decision in _Hurley_ that was reversed by the U.S. Supreme Court, uniting a court

whose members have been appointed by both Republican and Democratic governors. (Indeed, Chief

Justice Poritz, author of the court's opinion, was appointed by Republican Governor Christine

Whitman.) Nonetheless, predicting what the U.S. Supreme Court will do with this case is difficult.

One question not really well developed in _Hurley_ but crucial to _Dale_ is whether it is appropriate

for a court, enforcing a civil rights law against a membership organization, to contradict the

organization's own view of its mission, as that view is articulated in carrying out the challenged

policy. Of course, this very point was at issue in _Roberts v. U.S. Jaycees_, where the respondent

organization argued that maintaining an exclusively male membership was an essential part of its

identity and mission of developing the community and leadership skills of young businessmen; in that

case, the Court found that there was no particular political or social point of view embraced by the

Jaycees that would be undermined or contradicted by admitting women as member. While there are

crucial distinctions between the factual contexts of _Dale_ and _Hurley_, the core issues are similar

enough to make the unanimous _Hurley_ ruling, by a Court whose membership has not changed since

then, appear rather daunting in the _Dale_ case. Also, it is not quite so easy to dismiss the intimate

association claim, when one considers the rather closer personal association that a Boy Scout troop's

members will have than is the case in a Jaycee, Rotary or Kiwanis chapter.

Evan Wolfson, the senior staff attorney at Lambda who has represented James Dale in the litigation

and successfully argued his case in the New Jersey Supreme Court, will undoubtedly face several

hostile members of the Court in arguing this case, and has his task cut out for him. A.S.L.

LESBIAN/GAY LEGAL NEWS

Oregon Appeals Court Upholds Judicial Enforceability of Portland Civil Rights Ordinance

In a 9-1 en banc ruling, the Oregon Court of Appeals held on Jan. 26 that the city of Portland had the

legislatively authority to empower individuals suffering discrimination outlawed by municipal

ordinance to sue to vindicate their rights. _Sims & City of Portland v. Besaw's Cafe_, 2000 WL

63304. The decision overturned a ruling by the circuit court dismissing a discrimination case on the

ground that the city lacked the power to authorize a private citizen to file a suit in state court to

vindicate a right established only by municipal law.

There is an opinion for the court by Judge Armstrong which apparently represents the views of 5

members of the court, a concurring opinion by Judge Linder that reflects the views of four members,

and a dissent by Judge Edmonds.

Armstrong's opinion, which is rather broader than Linder's, observes that the Portland ordinance

covers sexual orientation, which Oregon's state civil rights law does not, and this particular

discrimination claim apparently involves sexual orientation. (None of the opinions specifically

addresses the facts of the underlying claim, the only dispute before the court being over whether the

lawsuit could even be filed.) Armstrong finds support in Oregon precedents for the proposition that

a municipality "can enlarge the common-law duties and liabilities of private parties" and, insofar as

the trial courts of general jurisdiction in Oregon are authorized by state law to entertain claims

pertaining to such rights, the city's action in authorizing private suits for the enforcement of its civil

rights ordinance is not in any way purporting to "enlarge" the "jurisdiction" of the state trial courts,

as the defendants had alleged.

The defendant was not contending that Portland lacks legislative power to enact a law banning

employment discrimination on the basis of sexual orientation. Rather, defendant argued that the

statutory authorization of a lawsuit by a private party went beyond the municipality's capacity,

apparently conceding that the city could have authorized a suit on its own behalf to enforce the

ordinance but could not empower individuals to act as virtual attorneys general for this purpose.

In the concurring opinion, Judge Linder expressed unease about the sweep of the opinion for the

court, whose broad dicta might be construed to authorize the city to legislate on a variety of subjects

that are traditionally the exclusive domain of the state legislature. Linder preferred to conduct a

narrower analysis into the authority of the city to ban various forms of discrimination by private

parties and to afford a judicial remedy for violations, and found support in Oregon cases for those

propositions.

Judge Edmonds, the dissenter, accepted the defendant's argument that the ordinance worked an

improper expansion of the state courts' jurisdiction, contending that only the state legislature or the

people speaking through constitutional action could endow the courts with broader authority to

entertain claims of rights founded solely on municipal law.

The three, lengthy opinions are focused almost entirely on questions of home rule legislative authority

in Oregon, and thus probably not of great interest to those outside the state. What is of particular

interest, however, is Judge Linder's description of the enactment of the ordinance, concluding with

the following statement: "The city's nondiscrimination provisions are far from novel, at least in their

fundamental terms. They reflect a now-familiar and commonplace policy of equal access and

nondiscrimination in areas basic to the most minimal quality of life in our communities: employment,

housing, and public accommodation. In that regard, it is not surprising that defendants do not dispute

the legitimacy of the city's regulatory goal or the city's general authority to legislate to that end. The

days of doubting that so-called `civil rights law' reflect compelling public interests are long past. Nor

is there doubt that those policies are of equal or greater concern to municipalities than they may be

to states or to the nation as a whole." A.S.L.

Man Loses Same-Sex Sexual Harassment Appeal in 8th Circuit

The U.S .Court of Appeals for the 8th Circuit affirmed a Minnesota District Court's granting of

summary judgment against a male plaintiff who failed to establish a prima facie case of same-sex

sexual harassment, constructive discharge and intentional infliction of emotional distress against his

county law enforcement former employer. _Klein v. McGowan_, 1999 WL 1211830 (Dec. 20). In

an academic decision, the court emphasized the crucial factors of timing, the severity and

pervasiveness of the harassment and the causal nexus between the harassment and the victim's

protected group status.

Reynold Klein worked as a communications aide in the Hennepin County Sheriff's Office from 1980

to 1996. More than ten months after his resignation, Klein filed a charge with the EEOC claiming

his resignation was a constructive discharge because of a hostile work environment. After receiving

a right to sue letter, he filed an action against Hennepin County, its Sheriff, its former Sheriff, former

Captain Donald Vodegel and Klein's supervisor Charles Venske for sexual harassment and

constructive discharge under Title VII, U.S.C. _1983, and the Minnesota Human Rights Act, and for

intentional infliction of emotional distress. Klein stated in his brief that he was harassed because he

was perceived as gay and that he "would not have been treated the same way if he had been a

woman." Klein eventually dropped the charges against the two sheriffs.

Klein alleges that his supervisor, Charles Venske, told him, "[I]f I ever find out that you're a queer,

I'll fire you," that he was denied business cards when given to all other office employees, was formally

disciplined for "flush[ing] a toilet with his foot," and was threatened with discipline for calling in sick

55 minutes before his shift. He also claimed that Venske spoke of Klein's perceived sexual orientation

with others in the office and filed unjustifiably low performance ratings and assigned to him menial

tasks. Days before he resigned, Klein found Venske and six co-workers standing behind his desk in

a semi-circle "as a symbol of their solidarity among themselves and against [him]." Klein alleged that

Venske failed to respond adequately to the incidents of harassment against him and he was allegedly

told by Venske that he was "...nothing but a fucking homo." When Klein reported these incidents

including those created by Venske to Venske's supervisor, Donald Vodegel, Vodegel allegedly told

Klein that "[the harassers] are grown men. No, you can't change them." Klein also listed other

incidents that occurred sometime over the past 16 years.

Damaging Klein's case were several factors that eventually led to a summary judgment against him.

There was no evidence Klein ever filed a formal complaint against the defendants with the county

human resources department and many of his allegations were unsupported by dates but did span his

16 years with the office. The district court dismissed all claims, ruling that the Title VII claims were

not timely and that Klein had not made out a prima facie case that the violations alleged were severe

or pervasive or based on sex, and that his _1983 claim failed due to lack of a prima facie case for

constructive discharge.

On appeal, Klein argued that there are material issues of fact related to his claims and to whether a

hostile work environment caused him to be constructively discharged. The appellees argued the

points made by the trial court judge as well as claims of qualified immunity for supervisor Venske and

former captain Vodegel.

Writing for the 8th Circuit panel, Circuit Judge Murphy reviewed the summary judgment de novo and

ruled that "mere allegations which are not supported with specific facts are not enough to withstand

[the motion]." Because Klein filed his Title VII charge with the EEOC on 1/21/97, he had to have

demonstrated that conduct after 3/28/1996 (300 days prior) constituted sexual harassment. The four

incidents that he alleged that did fall within these 300 days (the filing of the disciplinary slip, the

threatened filing of a disciplinary slip, Venske's refusal of business cards and his observation of the

"solidarity" stance), in the totality of the circumstances, did not amount to severe or pervasive

harassment nor were they tied to Klein's sex. The undated incidents were not considered, since there

was no showing that they occurred during the 300 day limit or that they were part of a continuing

violation, thereby making the claim untimely.

Ruling on Klein's _1983 substantive due process claim, the court ruled that no prima facie case was

made because Klein took no formal redress of his grievance (or that a such a complaint would be

fruitless), took no steps short of resignation that a reasonable person would take to make his working

conditions more tolerable, and that the government action did not rise to a level of something "truly

irrational" and more than something arbitrary, capricious or violation of state law. _K. Jacob

Ruppert_

9th Circuit Affirms Same-Sex Harassment Verdict for Park Ranger

The U.S. Court of Appeals for the 9th Circuit has affirmed a judgment in excess of $400,000 against

the City of Oakland and one of its senior park rangers for same-sex quid pro quo harassment

employment discrimination. _Kelly v. City of Oakland_, 2000 W.L. 16552 (Jan. 12). According to

the unanimous appellate panel, a heterosexual park ranger's civil rights were violated when he was

subjected to four years of chronic sexual harassment by his male supervisor. Liability was premised

on 42 U.S.C. sections 1983 and 1985, Title VII, and the California Fair Employment and Housing

Act.

Plaintiff Stephen Kelly was hired as a municipal park ranger in 1985, and became a member of the

city's police department in that capacity. He alleged that his supervisor, Kent McNab, began to

harass him sexually after Kelly separated from his wife in 1989. According to the evidence presented

at trial, McNab watched Kelly change clothes in the locker room almost every working day; he

insisted that Kelly take meal breaks with him; he would call Kelly at home for reasons unrelated to

work; he changed Kelly's work schedule so that the two would have to work together; he arrived

uninvited at Kelly's parents' and girlfriend's house when Kelly was there; McNab's evaluations of

Kelly's work performance were lower than previous evaluations conducted by other supervisors.

Kelly complained to his immediate supervisors about McNab's conduct, as did other two other

rangers and the departmental secretary. The chief park ranger's work diary contained four references

to the complaints he had received, yet no effective action was taken to correct the situation. In

August of 1993, Kelly resigned his position, and filed charges under federal and state civil rights and

anti-discrimination laws against McNab, his supervisors, and the city of Oakland. (Kelly's causes of

action for intentional infliction of emotional distress and invasion of privacy were dismissed during

the pre-trial phases of the case.)

After a ten day trial, the jury rendered a verdict in Kelly's favor against the city, McNab and the chief

park ranger. The jury awarded Kelly $380,000 in compensatory damages and assessed $35,000 in

punitive damages against McNab. The district court also awarded Kelly $564,060 in attorney's fees.

On appeal, the Ninth Circuit ruled that Kelly was not entitled to judgment against the individual

named defendants for employment discrimination based on "hostile work environment;" since it was

not clearly established during the relevant time period that hostile environment same-sex harassment

was actionable under federal law, these defendants enjoyed qualified immunity from suit. The court

therefore reversed the jury's verdict against the city's senior park ranger. However, the court

affirmed the jury's verdict against McNab for "quid pro quo" harassment, a cause of action that has

been well established since the 1980s, relying on the evidence in the record that he had offered Kelly

better work evaluations in exchange for sexual favors.

Writing on behalf of the three-judge appellate panel, Circuit Judge Noonan explained that "the federal

right to be free from such demeaning demands was clear without need for a specific holding by a

court that such conduct violated an employee's civil rights." Noonan was implicitly referring to the

U.S. Supreme Court's 1998 ruling in _Oncale v. Sundowner Servs., Inc._, 523 U.S. 75 (1998), in

which the high court ruled that same-sex hostile environment harassment is actionable under federal

anti-discrimination law.

The plaintiff was represented by Norman I. Lustig. _Ian Chesir-Teran_

Iowa Appeals Court Refuses to Shift Custody From Mother on "Morality" Grounds

In _Shea v. Shea_, 2000 WL 62941 (Jan. 26), the Iowa Court of Appeals refused to overturn a

custody determination in a case where the father alleged that the mother was morally unfit due to her

activities as a stripper and her "interest in a lesbian relationship." Woodbury County District Judge

Phillip S. Dandos had awarded joint legal custody to the divorcing parents, but awarded physical care

of the children to Rhonda, the wife, rather than Timon, the husband.

Evidence presented to the trial court included claims that Timon was physically abusive to Rhonda

in the presence of the children, and also had a drug dependency problem. On the plus side, Timon

could provide "family values and a nice family home" (not further discussed or specified). Rhonda

apparently had past alcohol difficulties which she had overcome, and was living in a crowded home

with her mother where the two children (girls) sometimes slept in the same bed with her. Judge

Dandos had decided it was in the best interest of the girls to live with Rhonda, evidently placing great

weight on Timon's past misconduct and discounting the morality allegations against Rhonda.

In reviewing the case de novo, wrote Judge Miller for the court, "we should elevate no one negative

behavior to the point where it becomes the sole dispositive factor or it cleanses the other spouse of

prior sins. Making a custody assessment demands judges look at both the affirmative and negative

attributes of each parent and their plans for future care of the children." Finding that Judge Dandos

had done exactly that, the court of appeals found that his decision merited deference, as it was

supported by the facts in the trial record. A.S.L.

Federal Court Refuses to Dismiss Claim of Hostile Work Environment Created by Co-Workers'

Homophobic Slurs

U.S. District Court Judge Elfvin ruled on Nov. 24, 1999, that a plaintiff's claim of a hostile work

environment created by anti-lesbian verbal harassment was actionable under Title VII of the Civil

Rights Act of 1964. _Samborski v. West Valley Nuclear Services Co., Inc._, 1999 WL 1293351

(W.D.N.Y.) (slip opinion).

Dawn Samborski was employed at West Valley Nuclear Services, Co., Inc. She alleged that she

encountered verbal harassment of an anti-lesbian nature from her male co-workers, who subjected

her to constant ridicule because she did not meet her male co-workers' expectations of what a woman

should look like. Her fellow employees regularly made offensive statements to her, such as saying she

had a nice penis, or that "even lesbians smoke cigars" upon giving her a cigar. She further alleged that

her employer knew of this behavior and took no steps to stop it. She claimed that she was

discriminated against on the basis of sex under Title VII and the NY State Human Rights Law (Exec.

Law Secs. 290-301).

The employer filed a motion to dismiss, arguing that all of the hostile behaviors and slurs that

Samborski alleged were homophobic rather than sexist, demonstrating discrimination on the basis of

sexual orientation, which is not actionable under Title VII or Exec. Law secs. 290-301. The

defendant did not attempt to show that Samborski failed to allege sufficiently egregious facts to

constitute a "hostile working environment" under Title VII. The only question before the court was

whether the plaintiff's basis for her claim stemmed from treatment she allegedly received because she

was a lesbian or because of her sex. (At no point in the opinion is it made clear whether or not the

plaintiff is a lesbian.)

Judge Elfvin cited _Oncale v. Sundowner Offshore Services, Inc._, 523 U.S. 75 (1998), for the

proposition that an "inference of discrimination" based on sex may be found even where workplace

harassment was not "motivated by sexual desire." In _Oncale_, the U.S. Supreme Court found that

a Title VII violation existed in a situation where a male employee suffered from a hostile working

environment created by his male co-workers, who mistakenly believed he was gay. Elfvin further

quoted _Oncale_ to the effect that "the inquiry demanded is 'careful consideration of the social

context in which particular behavior occurs and is experienced by its target,' and a determination

whether discrimination occurred because of sex."

Samborski's position was that she was exposed to working conditions to which her fellow male

employees were not. She argued that these conditions exemplified hostility directed towards women,

indicating disparate treatment based on sex. Judge Elfvin agreed with her position, citing cases such

as _Oncale_ ("the critical issue is whether members of one sex are exposed to disadvantageous

terms or conditions of employment to which members of the other sex are not exposed"), _Price

Waterhouse v. Hopkins_, 490 U.S. 228 (1989) (holding that a person who suffered adverse working

conditions because he or she did not fit a social stereotype is entitled to relief under Title VII), and

_Galdieri-Ambrosini V. Nat. Realty & Development_, 136 F. 3d 276 (2nd Cir. 1998) (holding that

"evidence of sexual stereotyping may provide proof that an employment decision or an abusive

environment was based on gender").

Because the plaintiff presented a plausible legal theory and alleged sufficient evidence of the existence

of a hostile working environment based on sex to state a claim under Title VII and the NY State

Human Rights Law, the court refused to grant the defendant's motion to dismiss.

_Elaine Chapnik_

Same-Sex Harassment Plaintiff Encouraged to Identify Attackers as Homosexual

In a Title VII harassment case brought by a gay-appearing heterosexual man, U.S. District Chief

Judge Bartlett (W.D. Mo.) denied summary judgement, preserving the plaintiff's chance to present

a jury with "credible evidence that the harasser is homosexual." _Fry v. Holmes Freight Lines, Inc._,

72 F.Supp.2d 1074 (Nov. 15, 1999).

During his employment at Holmes Freight Lines, four male dockworker/drivers regularly subjected

Michael Fry to verbal abuse of the type inflicted by heterosexual men on gay or "effeminate" men,

including such statements as: "Do you want to suck my dick?" or "take it in the butt?," "Whose dick

have you been sucking?," telling others "This is Sally. He's everybody's bitch" and would "suck

your dick<!70>; and physical abuse including: sticking a wet finger in Fry's ear, kissing or touching

the back of his neck, throwing him to the ground and attempting to grab his genitals, grabbing Fry's

waist and simulating sexual intercourse, placing a lighter flame under Fry's pants, taking Fry's lunch

but returning it minutes later, and placing a lighter to Fry's newspaper while he was reading it. Fry

was the only employee subjected to this conduct, and his complaints to management brought no

result. Judge Bartlett's opinion straightforwardly states: "Fry believes his co-workers may have

treated him this way because they thought he was a homosexual. In fact, Fry is not a homosexual,"

and cites a doctor's report stating that Fry "was devastated at being taunted as a homosexual, and

was physically intimidated by his co-workers," resulting in various maladies.

Holmes moved for summary dismissal of Fry's hostile work environment action on the ground that

Fry cannot demonstrate he was harassed because of his sex, characterizing its employees' conduct

as "schoolyard taunts" and "juvenile provocation." Judge Bartlett denied the motion, citing the

_Oncale_ rule that same-sex harassment is actionable under Title VII where the plaintiff was

discriminated against because of his sex, and reasoned, "The persistent sexual propositions, epithets,

and offensive touchings engaged in by Fry's co-workers suggest that one or all of them may be

oriented toward members of the same sex." (Is the implicit assumption that homophobic actions

result from the perpetrators' internal conflicts with their own homosexual impulses? Or that this is

the way gay men make passes?) It is unclear if the Judge intended the statement "A same-sex plaintiff

can establish that the defendant's conduct was based on sex through 'credible evidence that the

harasser is homosexual'" to be the complete list of means to establish that the defendant's conduct

was based on sex, omitting thereby possible sex-plus or stereotyping theories (See "First Circuit

Rejects Sexual Harassment Claim by Gay Man,", _Law Notes_, November 1999).

One hopes that same-sex harassment Title VII plaintiffs will not in every case be compelled to try to

identify their attackers as gay or bisexual to prevail. Foreshadowing the issue for a jury trial are

Judge Bartlett's observation that "If the conduct directed at Fry allows the inference that Fry was

harassed because he is a man, then those acts constitute 'credible evidence that the harasser is

homosexual,'" versus Holmes' argument that Fry's "failure to inquire into the sexual history of his

co- workers is fatal to his claim." _Mark Major_

11th Circuit Panel Upholds Broward County Zoning and Licensing Rules for Adult Businesses

A unanimous 3-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled Jan. 18 that a

licensing and zoning ordinance for <69>adult"businesses adopted in Broward County, Florida, is

neither facially unconstitutional nor unconstitutional as applied. _David Vincent, Inc. v. Broward

County, Florida_, 2000 WL 33163. In her opinion for the court, Senior Circuit Judge Kravitch found

that the district court had correctly applied an earlier decision of the 11th Circuit, ruling on the

constitutionality of an earlier version of the ordinance, to rebuff the facial challenge, and the the

court's findings on the as-applied challenge did not show clear error. The district court had

concluded that there were seven to nine sites available in the unincorporated areas of Broward

County where adult businesses might theoretically locate, and found that this was sufficient to ensure

adequate freedom of expression in the county.

The facial challenge focused on ways in which the newer ordinance narrowed availability of adult

inventory in Broward by potentially reducing the number of adult businesses. The two differences

were that the newer ordinance eliminated a waiver provision under which an adult business could

remain in an otherwise unauthorized location if the particular community approved the use, and the

new ordinance, unlike its predecessor, requires existing adult businesses to relocate to appropriately

zoned spots within five years of its enactment. (The old ordinance had grandfather ed existing adult

businesses and allowed them to remain in situ.) The court found that these differences were not

sufficient to change the constitutionality of the ordinance, which was previously upheld in

_International Eateries of America v. Broward County_, 941 F.2d 1157 (11th Cir. 1991).

In the as-applied challenge, the plaintiff organization of adult businesses contended that the new

zoning rules failed the 1st Amendment freedom of expression test by so limiting the availability of

appropriate sites as to deprive local residents of access to adult publications. In particular, the

plaintiffs argued that various sites found to be available by the district court were not available, as a

practical matter. For example, one site counted by the district court would have to be assembled by

a business by obtaining rights to several sites and combining them; another was possibly contaminated

from a car repair facility, and many of the sites lacked sidewalks and appropriate lighting. The court

dismissed these complaints, pointing out that the constitutional requirement is only that sufficient sites

are theoretically available, not that they could be easily obtained or developed for the purpose.

Furthermore, the court rejected the plaintiffs's argument that seven to nine sites was not a sufficient

number for unincorporated areas of Broward County. Judge Kravitch noted that as more

incorporated municipalities gobbled up unincorporated county land, the amount of space and

population to be served by adult businesses subject to the ordinance was decreasing, and so the

number of such businesses that could be supported outside the municipalities was shrinking as well.

Under the circumstances, the court found that the spaces theoretically available were adequate to

preserve the free speech rights at issue. A.S.L.

Albany County (NY) Family Court Leaves Lesbian Co-Parent Out in the Cold

In _Matter of William G. TT v. Siobhan_, NYLJ, 1/12/2000 (Albany Co., Family Court), Judge

Gerard Maney determined that a lesbian co-parent who is the former partner of a biological mother

embroiled in a custody suit with her children's biological father, has no standing to intervene in the

matter.

Petitioner William is the biological father of Liam and Faolain, young children who have been living

in the custody of their mother. William seeks joint custody, and also protests that his visitation rights

have been violated. On Nov. 16, 1999, Anita BB, the mother's "former partner" who evidently still

lives with the mother and the children, filed a motion seeking to intervene in the custody proceeding.

She alleged that she has "shared all custodial and parental duties" with the mother, and seeks to

intervene to preserve the current custody arrangement so she can continue her relationship with the

children.

Judge Maney found that under the N.Y. Domestic Relations Law biological parents have a superior

claim to custody over all non-related persons, in the absence of extraordinary circumstances, and

implicitly finds that such circumstances do not exist in the case of an "unrelated" same-sex co-parent.

Since neither of the biological parents had surrendered custody or been deemed unfit by the court,

Anita would lack standing to seek custody or visitation and thus would not have a "real and

substantial interest" in the outcome of the custody dispute between the biological parents. Thus,

intervention could not be granted.

This case could be Exhibit A for the proposition that existing family law structures in New York are

inadequate to deal fairly with the family arrangements of lesbians and gay men. How could a woman

who has participated as a de facto parent of two young children have no real or substantial interest

in whether their custody remains with her former partner, who evidently has allowed her to continue

her parental role, or is given over to the father, who may well seek to interfere with that relationship?

A.S.L.

Miscellaneous Litigation Notes

It sounds good, but should we believe it? In _Mihut v. Mihut_, 1999 WL 1336082 (Tenn. Ct. App.,

Dec. 28), the court affirmed a custody grant to the father in a disputed case, where, among other

things, the father alleged that the mother was unfit for custody because of her possible involvement

in a lesbian affair and her exposure of the children to homoerotic literature alleged to be present in

her car. The mother denied these allegations. The trial court awarded custody to the father,

purporting to base it on a long litany of the mother's failings (which sound pretty convincing as

recited in Judge Highers' opinion for the court of appeals) and the father's merits. In discussing the

trial court's decision, Highers states, "The court specifically disregarded the allegations of Mrs.

Mihut's drug and alcohol abuse and alleged lesbian relationship in making the custody determination.

The court based its determination on the close relationship between Mr. Mihut and the children and

the fact that he had devoted more time and effort to their upbringing." If this is all accurate, it sounds

great. But should we believe it?

New Jersey Superior Court Judge George L. Seltzer rejected the state's motion to dismiss the case

of _Scott v. New Jersey Air National Guard_, in which Robert Scott, an avowed heterosexual,

claimed he was subjected to harassment by fellow Guard members who thought he was gay because

he is unmarried, shares an apartment with some male flight attendants, and has no girlfriend and then

was punished for complaining about the harassment. Seltzer rejected the state's argument that this

was an internal military matter that should not be handled in the courts, according to a Jan. 8

_Associated Press_ report; Seltzer still has to decide whether Scott was on a "federal" or a "state"

mission at the time of the alleged harassment and retaliation; if the former, the state court would be

without jurisdiction. A New Jersey statute bans discrimination on the basis of sexual orientation, but

would have no effect on federal actions.

Justin Fischer, a participant in the brutal murder of Pfc. Barry Winchell, pled guilty to two counts of

obstructing justice and three counts of lying to investigators, and was sentenced to 12.5 years in

prison. Fischer goaded Calvin Glover into committing the murder, and supplied Glover with the

murder weapon, a baseball bat. Winchell's mother expressed dismay at this turn of events and vowed

to bring a wrongful death suit against Fischer and Glover. Glover, convicted at a court martial, was

sentenced to life in prison with possibility of parole.

The Triangle Foundation, a gay rights group in Detroit, issued a press release Jan. 25 denouncing the

jury verdict finding Justin Wallace, an accused murderer, to be guilty only of manslaughter in a case

where a "gay panic" defense was introduced. According to the Triangle release, no evidence was

introduced that the victim, Alexander Charles, was gay, or that he made any sexual advances toward

Wallace, but nonetheless trial judge George Crockett, III, Wayne County Circuit Court, allowed the

defense to argue to the jury that Wallace was fending off a sexual advance when he shot Alexander,

age 16, to death.

The Irish Lesbian & Gay Organization, once again waging its annual battle for a permit to hold a St.

Patrick's Day march on New York City's 5th Avenue on the same date as the gay-exclusionary march

run by the Ancient Order of Hibernians, has won a chance at a jury trial. According to a Jan. 26

report in the _New York Post_ that did not identify the judge, a federal jury will hear ILGO's first

amendment claim against the City of New York and Mayor Rudolph Giuliani (who may well be the

world's least successful 1st Amendment defendant). A.S.L.

Public School Developments

The _Boston Globe_ (Jan. 25) reported that the Boston public schools have launched a program

aimed at supporting gay, lesbian, bisexual and transgender students in the school system, called The

Safe Schools Project. The Massachusetts Education Department provided a $40,000 grant to help

hire staff and beginning training programs to assist students in forming and running gay/straight

alliances to help promote acceptance of such students in their schools.

Would that all school administrations were thus enlightened. In California, U.S. District Judge David

O. Carter announced he would rule Feb. 4 on a request for a preliminary injunction in a pending

lawsuit by students seeking to form a gay/straight alliance at El Modena High School. The school

board voted to forbid the group from meeting in the school, stating that they found the club's name

offensive and feared that "inappropriate subjects" might be discussed by the students during their

meetings, such as human sexuality and reproduction subjects as to which, according to this school

board, students must remain ignorant for as long as possible in furtherance of their education. (We

know, it sounds strange, but in the U.S. we confide public school policy to person who are elected

without regard to their intelligence, knowledge, or suitability to make such policy.) Three days of

hearings were held on the petition for preliminary relief, during which students and teachers testified

as to the need for a gay/straight alliance at the school. Judge Carter stated that no matter how he

rules, he hopes the case will be appealed so that a more authoritative ruling can be had on the issue.

_Los Angeles Times_, Jan. 27.

The California State Labor Commission has ruled that the Hemet, California, school district

unlawfully discriminated against a gay teacher when it removed a girl from his class at her parents'

request, and ordered the district to post notices at schools and headquarters saying that it had violated

a state law prohibiting sexual orientation discrimination in employment. The ruling came on a

complaint filed by Alta Kavanaugh, and was supported by the Hemet Teachers Association. The

district announced that it would file an appeal with the Department of Industrial Relations. _Riverside

Press-Enterprise_, Jan. 19.

Lambda Legal Defense Fund announced plans to file suit against school officials in Washoe County,

Nevada, for failure to stop harassment of a gay student who was forced to withdraw from high school

without graduating. The complaint in _Henkle v. Gregory_ was to be filed in U.S. District Court in

Reno, Nevada, on Jan. 28. The suit charges a violation of Derek Henkle's right to equal protection

of the laws, contends that school officials violated Henkle's first amendment rights by trying to force

him to hide his sexual orientation, and also raises state tort claims of negligence and infliction of

emotional distress. In an earlier case decided on equal protection grounds, _Nabozny v. Podlesny_,

Lambda won nearly $1 million in damages for a high school student who had to leave school due to

harassment that school officials refused to confront. A.S.L.

Legislative & Administrative Notes

Ohio's Republican Governor, Robert Taft, caused consternation among lesbian and gay political

leaders in that state by issuing a new executive order on discrimination by state government that did

not include a specific ban on sexual orientation discrimination. Prior governors George Voinovich

and Richard Celeste had specifically included sexual orientation in their anti-bias executive orders.

The executive order, issued over the summer, specifically mentions "race, color, religion, sex, national

origin, handicap, age or ancestry," bases for discrimination that are covered by Ohio statutes, which

do not cover sexual orientation. A spokesperson for the governor stated, "We're against

discrimination against anybody for any reason, and that includes sexual orientation," and claimed that

there is a clause in the order that adopts a general non-discrimination principle that could be applied

to all groups not covered by federal or state law. But gay leaders were not mollified; Brian Shinn,

president of Stonewall Democrats of Central Ohio, characterized this as a major setback for gay

rights in the state. _Columbus Dispatch_, Jan. 13.

As the Vermont legislature gets down to work responding to the decision in _Baker v. State of

Vermont_, 1999 WL 1211709 (Dec. 20) that the legislature must accord to same-sex couples the

sames rights that opposite-sex couples get from marriage, the _Boston Globe_ reported that the

governor's office had been flooded with phone calls, faxes, and e-mails, many from out-of-state,

urging action in one direction or another. The flood began when a conservative, anti-gay radio

personality urged her listeners to let the leaders of Vermont know that they were strongly opposed

to same-sex marriage or domestic partnership. The first wave of such communications set off panic

among some gay groups, which then encouraged their members to communicate their support for

same-sex marriage to the governor. The pro-marriage wave eventually outnumbered the anti-

marriage wave, leading some to caution that Vermonters are resentful from outsiders telling them

what to do. _Boston Globe_, Jan. 14.

On Jan. 26, the California State Assembly voted 41-23 in favor of S.B. 118, a measure originally

introduced in the passed by the state senate by Sen. Tom Hayden, which expands the definition of

those eligible for unpaid work leave under the state's Family Rights Act to include grandparents,

siblings, adult children, domestic partners and roommates. Some changes made in the Assembly

require the bill to go back to the Senate for further consideration. Hayden's stated rationale for the

bill was that it would give job protection to the growing number of unmarried partners, siblings and

others who are primary caregivers for sick friends or relatives. BNA _Daily Labor Report_, Jan. 28.

The city council in Boulder, Colorado, is considering an amendments to its Human Rights Ordinance,

which already prohibits sexual orientation discrimination, to add discrimination based on gender

identity, which would provide protection to all "gender variants," described as people who have a

"persistent sense that one's gender identity is incongruent with one's biological sex." This would

clearly extend protection to both pre- and post-operative transsexuals. However, the provision would

only apply to people age 21 or older, based on city officials' perception that youths might not have

a persistent sense of gender yet. They clearly need a briefing from transgendered youth! The City

Attorney estimates that about 400 residents of the city are in need of this type of protection. One

wonders how he gathered his data. _Denver Post_, Jan. 28.

The Colorado Senate Judiciary Committee voted 4-4 on a proposed hate crimes law. The failure to

achieve majority support was widely attributed to the inclusion of sexual orientation coverage in the

bill. _Denver Post_, Jan. 27.

For several years, Virginia House of Delegates member Karen Darner has been seeking to repeal the

Commonwealth's sodomy law as applied to consenting adults, without success. Now she is pursuing

a new strategy, having introduced a bill that would reduce the penalty for oral sex from a $2500 fine

to a $250 fine, bringing it in the misdemeanor range. Darner argues that treating consensual oral sex

as a felony is totally disproportionate, as it means the loss of voting rights as well as the imposition

of criminal penalties. H.B. 718 would make such offenses a Class 4 misdemeanor, generally

dispensing with jail time altogether. The Virginia appellate courts are now considering constitutional

challenges to the sodomy law arising from the convictions of men arrested in a vice squad sweep of

a city park in Roanoke. _Roanoke Times & World News_, Jan. 26. A.S.L.

Britain Formally Lifts Armed Forces Ban

On January 12, the United Kingdom government formally lifted the ban on lesbian, gay and bisexual

members of the armed forces, in compliance with the judgments of the European Court of Human

Rights in _Lustig-Prean & Beckett_ and _Smith & Grady_ (see [1999] LGLN 149).

The text of Defence Secretary Geoffrey Hoon's statement to the House of Commons can be found

in a press release at http://www.mod.uk/news/prs/002_00.htm. He began by noting that the new

policy "reflected the Court's conclusion that legally we are obliged to adopt an approach which

regards sexual orientation as essentially a private matter for the individual." The policy involves "a

code of conduct to govern the attitude and approach to the personal relationships of those serving

in the Armed Forces" which "will apply across the Forces, regardless of Service, rank, gender or

sexual orientation." "As all personal behaviour will be regulated by the Code of Conduct with the

object of maintaining the operational effectiveness of the three Services, there is no longer a reason

to deny homosexuals the opportunity of a career in the Armed Forces. ... As no primary or secondary

legislation is required, with effect from today, homosexuality will no longer be a bar to service in

Britain's Armed Forces." (Unlike in the U.S., the U.K. ban was an administrative policy that had

never formally been codified in a statute or regulations. And since 1994, no special criminal laws

have applied to sexual activity involving members of the armed forces.)

The new "Armed Forces Code of Social Conduct" (see URL above) is incredibly vague. "Examples

of behaviour which can undermine ... trust and cohesion, and therefore damage the morale or

discipline of a unit (and hence its operational effectiveness) include: unwelcome sexual attention in

the form of physical or verbal conduct; over-familiarity with the spouses or partners of other Service

personnel;_ displays of affection which might cause offence to others_; behaviour which damages or

hazards the marriage or personal relationships of Service personnel or civilian colleagues within the

wider defence community; and taking sexual advantage of subordinates. It is important to

acknowledge in the tightly knit military community a need for mutual respect and a requirement to

_avoid conduct which offends others_." (Emphasis added.) An overall "Service Test" will be

applied: "Have the actions or behaviour of an individual adversely impacted or are they likely to

impact on the efficiency or operational effectiveness of the Service? In assessing whether to take

action, Commanding Officers will consider a series of key criteria [not listed in the Code]."

According to Geoffrey Hoon's statement, "commanders will have to apply this Service Test through

the exercise of their good judgement, discretion and common sense." It remains to be seen whether

lesbian, gay and bisexual members of the armed forces will be treated equally under this highly

discretionary code, in particular with regard to the criterion of the offensiveness of conduct.

However, the Code is a major improvement on the former blanket ban.

The Code says nothing about the position of openly lesbian, gay or bisexual members of the armed

forces, as opposed to those who are closeted but exposed by third parties, as in _Lustig-Prean &

Beckett_ and _Smith & Grady_. However, the press release's Notes for Editors state that "[t]he

Armed Forces will no longer require people to disclose their sexual orientation either at the

recruitment stage, or during their service in the Forces. If people declare themselves to be

homosexuals, then that is a matter for them. No special arrangements will be made for anyone who

has made such a declaration. ... Knowledge of an individual's sexual orientation is not a basis for

discrimination." The Notes also indicate that "[t]hose who have in the past been discharged for being

homosexual, may rejoin the Forces as long as they continue to meet the usual entry requirements for

personnel seeking reinstatement and have the up-to-date skills we need."

In the debate following Geoffrey Hoon's statement, one Conservative M.P. asked: "Will gay partners

be allowed to share married quarters?" Hoon replied: "I make it clear that homosexual couples will

not have rights or access to service quarters because they will not be married and will not therefore

be treated any differently from other unmarried couples." Another Conservative M.P. expressed his

displeasure at the Strasbourg Court's judgments. "Does [Hoon] not understand the resentment that

is felt by some of us in this country that the power to decide the composition of Her Majesty's armed

forces has been usurped by a bunch of foreign judges in some continental city, when it should be

decided by the people of this country and by this Parliament? Does he realise that he has created an

enormous minefield in which housing will be only one factor?"

Other issues will certainly arise, such as survivor's pensions for same-sex partners of military

personnel. (See, e.g., the Public Sector Pension Investment Board Act, Statutes of Canada 1999,

chapter 34 (Bill C-78), s. 136, http://www.parl.gc.ca/36/1/pb-e.htm, amending the Canadian Forces

Superannuation Act by defining "survivor" as "a person ... cohabiting in a relationship of a conjugal

nature with the contributor for at least one year immediately before the death of the contributor.")

Compared with the "don't ask, don't tell" policy in the U.S., the new U.K. policy could perhaps be

crudely summarized as "you can tell, but don't kiss"! _Robert Wintemute_

* * * * _The Express_ reported Jan. 28 on the first British military member to voluntarily "come out"

after the policy was lifted. A sailor on a Royal Navy destroyer "came out" to his mess-mates the

evening of the announcement that the ban was lifted. Following his statement, the ship's commander,

Simon Ancona, issued a severe warning to the crew that anyone caught bullying the sailor would face

disciplinary action. The sailor, who did not want his name to be published, said: "I was just fed up

lying to people, especially when I went home at the weekends. People have asked where I have been

and I had to make up somewhere because I had been to a gay club. I had my Navy life and I had my

life at home. Coming out in the Navy has been a big weight off my shoulders. It has been like

coming out for a second time." The newspaper reported that the sailor did not appear to have any

problems after coming out, and was generally well-liked on the ship. In another story, the newspaper

reported that so far only one officer has resigned in protest against the policy change. Brigadier Pat

Lawless, saying he was "very sad to leave" after 24 years in the service, said he could not "reconcile

my strongly-held moral and military convictions as a soldier and a citizen with the Government

decision." But the Army's Personnel Director, Andrew Ritchie, told the press that in general Service

reaction to the policy change had been "muted and pragmatic." A.S.L.

Other International Notes

British Home Secretary Jack Straw has decided to let the twins born in the U.S. through a surrogacy

arrangement with sperm donated by a couple of British gay men to stay in the U.K., although he will

not authorize the grant of British citizenship to them. According to Straw, under British law, which

does not recognize these surrogacy arrangements, the twins' legal parents are the surrogate mother,

Rosalind Bellamy, and her husband, even though he is not biologically related to them and consented

to his wife's being inseminated with donor sperm for this purpose. _The Express_, Jan. 26.

The British media and political circles are convulsed with debate over the infamous Section 28 of the

Local Government Act. Passed during the Thatcher Administration, Section 28 forbids publicly-

funded local councils from providing funds for discussions of homosexuality in anything other than

a negative light, and forbids teaching that gay relationships are an acceptable form of family life.

Although Section 28 does not work directly on the curriculum of public schools, it is claimed that it

has had a chilling effect on any instruction about homosexuality. P.M. Tony Blair campaigned for

office on a pledge to repeal Section 28, and the vote, both in the English Parliament and in the new

Scottish Parliament, will be coming up soon. Public debate on the measure is intense. Blair has

vacillated over whether to give Labour members a free vote, or whether to impose party discipline

on the question. When he floated a free vote trial balloon late in January, intense pressure from back-

benchers and openly gay party members quickly drove him in the other direction, and Education

Secretary David Blunkett was sent out to assure the public that the schools will continue to teach that

heterosexual marriage is the best foundation for family life. Only one Labour MP has actually come

out against repeal, and the greatest danger to repeal is seen in the House of Lords, even with the

reform under which most hereditary Lords were deprived of their seats. _The Express_, Jan. 28; _The

Guardian_, Jan. 27.

Somewhat contradictory reports came out of South Africa over the final content of a new law

banning discrimination that is supposed to be enacted shortly to meet a deadline set by the

Constitution. The South African Constitution forbids the government from discriminating on a long

list of enumerated grounds, including sexual orientation. The legislation will extend that policy into

the private commercial sphere. While the inclusion of sexual orientation is not controversial, there

has been argument over the inclusion of HIV status as a distinct category; it was included in the

original bill, but now seems to have been relegated to a secondary list of categories that will not be

included in the bill but are mandated for further study. However, at least one press report suggests

that the law will be used to address the issue of HIV-related discrimination by insurance companies.

At deadline, the law had passed one house of the parliament but still awaited consideration in the

other house. _The Daily Telegraph_, Jan. 27; _The Guardian_, Jan. 26; _Agence France Presse_, Jan.

26.

Following on France's enactment of the Civil Solidarity Pact legislation establishing formal

recognition of domestic partnerships last year, Air France has announced an extension of its

subsidized fares for employees' spouses to same-sex couples who are registered under the new law.

A company spokesperson said, "Our aim is to treat our staff and our clients who have legally

registered their partnerships the same as married couples." _Wockner International News_, Dec. 27.

Beginning Jan. 1, unmarried couples in Belgium have been able to form cohabitation contracts under

a law adopted on Nov. 23, 1999, and to obtain official recognition of their relationships. However,

there are doubts about the extent to which this recognition will lead to concrete benefits, which are

apparently not spelled out in the law.

A lesbian couple has petitioned the Supreme Court of Israel to override a decision of the Great

Rabbinical Court concerning whether their children can meet with each other. (In Israel, family law

matters are dealt with in the first instance in religious courts.) One of the women has custody of her

three daughters; the other has two sons who do not live with her. All of the children study in the

same school, yet the former husband of the first woman disapproves of her life style and sought an

injunction forbidding her children from meeting the other woman's children, which was granted by

the district rabbinical court. The court opined that her relationship is "immoral" and would damage

her children's education, and issued an opinion that her children may not be exposed to the other

woman or her children. The Great Rabbinical Court rejected her appeal, saying that the lower court's

decision was "understandable to any intelligent person." The petition to the High Court of Justice (as

the Supreme Court is known) claims that the Rabbinical Court overstepped its authority in issuing

the order. _Ha'aretz_, Jan. 12. A.S.L.

AIDS & RELATED LEGAL NOTES

Supreme Court Refuses to Review Terrible 11th Circuit Opinion on Prisoners With HIV

The Supreme Court announced Jan. 18 that it had denied a petition for certiorari in _Davis v.

Hopper_, No. 98-9663, 2000 WL 29361, thus leaving in place the 11th Circuit's April 7, 1999,

decision in _Onishea v. Hopper_, 171 F.3d 1289 (1999). In _Onishea_, the circuit court upheld the

Alabama prison system's policy of segregating HIV+ inmates and restricting them from participating

in any activities with uninfected inmates, including religious services, use of library facilities,

recreational programs, and all other contacts. The circuit court's rationale was that it should defer

to prison authorities' judgment about their ability to control prisoners and prevent them from

spreading HIV within the prison system. In so doing, the circuit court adopted a risk analysis that

held, in effect, that because the consequences of HIV transmission are severe due to the lack of a cure

for AIDS, any risk at all that transmission might occur should be considered a significant risk, and

thus under federal disability law the prison system would have a defense to any discrimination claim

brought on behalf of the HIV+ inmates.

Responding to the Supreme Court's request for its views on the then-pending petition for certiorari,

the Clinton Administration filed a brief with the Court early in January urging it not to hear the case.

In its response to the Court, the Clinton Administration actually suggested that the circuit court's

handling of the case "may well be overbroad" and that perhaps it should have separately evaluated

every activity from which HIV+ inmates are excluded and concluded that they should be allowed to

participate in some of them, but ultimately argued that due to "the violence that is an inescapable part

of prison life," the circuit court's conclusion was not so far out of line to justify the Supreme Court

in taking the case. Advocates for people with HIV, who filed several amicus briefs with the Court

urging it to take and reverse the case, argue that the rationale used by the 11th Circuit could

significantly undermine the protection for HIV+ people under sec. 504 of the Rehabilitation Act and

the Americans With Disabilities Act, through its anachronistic risk analysis (which doesn't take

account of current treatment data, being based on a trial record that predates current treatments) and

its discordance with the purpose of the statutes. _New York Times_, Jan. 3. A.S.L.

Supreme Court Refuses to Review HIV Benefits Case

On Jan. 10, the Supreme Court announced its decision to deny certiorari in _Doe v. Mutual of

Omaha_, 2000 WL 12573, denying certiorari in _Doe v. Mutual of Omaha_, 179 F.3d 557 (7th Cir.

1999), in which the 7th Circuit rejected a claim that HIV-caps in a health insurance policy violated the

ADA's ban on disability discrimination by places of public accommodations. The Circuit Court did

find that an insurance company is a place of public accommodations under the ADA, but concluded

that the statutory ban applied only to the following situations: where a person with a disability would

be prevented from obtaining physical access to the company's offices, or where the company would

refuse to sell an insurance policy to a person with a disability. However, the court held that the

contents of such policies would only be implicated if the insurer treated people with disabilities

differently from people without disabilities. In the pending case, where the insurer placed a low life-

time cap on HIV-related claims and not on other claims, the court found that the cap was there for

all policy purchasers, regardless of their disabilities, and thus did not reflect inequitable treatment.

The same rationale was recently followed by the 9th Circuit in _Weyer v. 20th Century Fox Film

Corp._, 2000 WL 1643 (9th Cir., Jan. 3), which cited _Doe v. Mutual_ as authority. These opinions

do not deal directly with the question whether an employer-provided health plan can impose HIV-

caps, which arises under the employment title of the ADA rather than the public accommodations

title. As to that issue, the courts are divided and the Equal Employment Opportunity Commission,

which has enforcement authority for the employment title, has opined that caps are unlawful.

However, the rationale of the 7th Circuit (and some other courts) can't be helpful to those pursuing

HIV caps claims under the employment title. A.S.L.

District Court Says Rehabilitation Act Protects Inexperienced Physician Who Transferred HIV

Patient

The U.S. District Court for the District of Massachusetts ruled Jan. 7 that an

obstetrician-gynecologist, Dr. Hee Man Chie, did not discriminate against Vickie Lesley, an HIV+

expectant mother, by transferring her care to another provider upon learning of her seropositive

status. _Lesley v. Chie_, 2000 W.L. 19251. The court reasoned that Section 504 of the

Rehabilitation Act of 1973 protects a healthcare provider's bona fide medical treatment decision to

transfer a patient's care when the disability creates complications which the doctor lacks the

experience or knowledge to address.

The case arose in December of 1994 when Lesley began prenatal care with her longtime physician,

Dr. Chie, an obstetrician/gynecologist in Leominster, Mass., with a practice that accepted Medicaid

funding. Dr. Chie became aware of many complicating factors that made Lesley's pregnancy

high-risk: her severe manic depression, her treatment thereof with psychotropics associated with birth

defects, a history of diabetes and a late term abortion earlier that year. He planned to consult with

other doctors about these complications when necessary. In March 1995, Chie learned of Lesley's

seropositive status after routine prenatal blood work. Clinical trials conducted in 1994 by the

Massachusetts Department of Public Health (DPH Advisory) revealed that mother-fetus HIV

transmission was significantly reduced when the mother takes AZT orally during pregnancy,

intravenously during labor and delivery, and the infant is given AZT upon birth. Dr. Chie had never

before prescribed AZT to any patient or monitored a patient receiving AZT. Dr. Chie informed

Lesley that although he had treated HIV+ genealogical patients, he had never before provided

prenatal or obstetrical care to an HIV+ woman.

Dr. Chie immediately called Leominster Hospital pharmacy to inquire whether it had AZT in its

formulary to be given intravenously during labor. The pharmacy informed him that the drug was

unavailable and that he would have to contact a hospital committee for acquisition approval. Dr. Chie

did so, but from March 20 to 30, 1994, the committee had not ruled on the request. Since Lesley was

beginning her 14th month on March 30th, the time when oral AZT treatment should begin, Dr. Chie

inquired at Worcester Memorial Hospital, one of the hospitals which participated in the clinical trials

upon which the DPH Advisory was based, and discovered it had a program that gave AZT

management treatment to pregnant mothers and infants. Dr. Chie informed Worcester Hospital that

if he could not secure a doctor to serve as a consultant for the AZT therapy, he would transfer Lesley

to Worcester Hospital to begin the oral AZT phase of the AZT therapy. Lesley's primary care

physician and psychiatrist concurred with the plan to transfer.

On March 30, 1995, Dr. Chie again told Lesley of his inexperience with AZT and pregnancy, that he

could not secure consulting physicians with the necessary experience and knowledge thereof, that

time was running out for her to begin AZT therapy and that she should consider treatment by the

Worcester Hospital. Dr. Chie transferred Lesley's care to Worcester Hospital that afternoon.

Lesley later sued Dr. Chie, alleging violation of her civil rights under the ADA, the Rehabilitation Act

of 1973, and the Massachusetts Public Accommodation Law. She alleged that Dr. Chie transferred

her care to Worcester Hospital because she was HIV+. The hospital was later dropped from the suit

and the ADA claim was settled via stipulation. Parties cross-moved for summary judgment on the

remaining two counts under the ADA and the state anti-discrimination law.

Judge Gorton granted summary judgment to Dr. Chie, finding that he did not discriminate against

Lesley solely because of her disability (HIV). Gorton found that Lesley satisfied two of the four

criteria for a prima facie case under Section 504: that Lesley was statutorily disabled, and that Chie's

practice is a "program or activity" that receives federal financial assistance. The court did not find

it necessary to rule on whether Lesley was "otherwise qualified" for the program, because of

Gorton's conclusion that she had failed to establish discriminatory treatment by the doctor.

Relying primarily on the legislative history of the Rehabilitation Act, the court found that transferring

Lesley's care to a facility better able to treat her and her unborn child would not constitute

discrimination _solely_ on the basis of her HIV+ status. The judge reasoned that although a physician

must make reasonable accommodations for persons with disabilities, the Act does not compel

physicians receiving federal funds to treat an individual who requires care beyond the physician's

ability or expertise. The Act protects a provider who makes a referral, provided that the referral was

part of a bona fide medical treatment decision and that a similar referral would be made if the person

was not disabled. "Where treatment by a specialized facility is available as an alternative to treatment

by a doctor who has no experience treating a life-threatening illness, the doctor cannot be expected

to ignore what he believes to be the best interests of his patient and her fetus and treat the patient

himself," Gorton concluded.

The court further stated that even if Dr. Chie was able to treat the non-HIV related complications,

the addition of yet another complication which he was unqualified to treat was reason enough to

transfer Lesley's care to Worcester. The only defense would have been if the transfer was medically

inappropriate, a defense as to which no evidence was given or likely to have existed, in light of the

overwhelming expert testimony supporting Dr. Chie's decision and the contradictory testimony by

Lesley's lone expert claiming that no specialized knowledge is necessary to administer AZT (despite

the DPH Advisory stating otherwise). Further damaging Lesley's case was evidence that Dr. Chie

had long treated HIV+ women in his practice and had continued to treat Lesley for some time after

his discovery of her HIV+ status.

Based upon this reasoning, the court found that Lesley likewise failed to establish a prima facie case

under Massachusetts' similar anti-discrimination statute. _K. Jacob Ruppert_

Virginia Supreme Court Refuses to Dismiss Emotional Distress Claim Against Mental Health Facility

for Sexual Assault by HIV+ Inmate Against Another Inmate

Largely reversing a ruling by the circuit court that had sustained demurrers to all the plaintiff's claim,

the Virginia Supreme Court found in _Delk v. Columbia/HCA Health Care Corp._, 2000 WL 26988

(Jan. 14) that a woman confined in a mental institution could maintain an action for the institution's

negligent failure to protect her from an assault by another inmate who was HIV+, and could maintain

an action for intentional infliction of emotional distress. However, the court sustained dismissal of

a claim for negligent infliction of emotional distress, given the lack of a substantial physical injury

suffered by the plaintiff.

Plaintiff Lillian Parker Delk was confined in the defendant's institution, known as the Columbia

Peninsula Center for Behavioral Health, for treatment of her severe bipolar condition. She claims

special vulnerability due to the emotional aftereffects of childhood sexual assaults, and asserts that

this special vulnerability was known to the Center staff. According to her complaint, "on or about

February 26 or February 27, 1997, a male who is believed to have been a patient at the Defendant's

psychiatric facility at the time of the sexual assault, and who was also believed to be HIV positive,

entered [Delk's] room on the acute care unit of [the Center] and sexually assaulted her. Although

members of the nursing staff observed and documented the presence of this unauthorized adult male

in [Delk's] room, no further actions occurred from the staff or management... No notation was made

in [Delk's] medical records regarding the sexual assault." Delk argued that the Center had a duty to

protect her in these circumstances, and that the known propensities of her alleged assailant would

support a finding that the Center breached that duty by not restraining him and protecting her. The

Center persuaded the lower court that on these facts it had no duty and the claims should be

dismissed.

In an opinion for the court, Justice Leroy R. Hassell, Sr., found that with one exception the plaintiff's

legal theories were sufficient to withstand the motion based on the pleadings. Hassell found that

Delk's complaint contained sufficient allegations "which, if proven, would establish the existence of

a special relationship between her and Columbia Peninsula Center... and, thus, would give rise to a

duty on the part of the defendants to protect her from third persons." The normal rule is that a person

has no duty to protect another from the actions of a third. The court also rejected the argument that

as this assault was not foreseeable, the Center could not be held negligent for failing to prevent it.

Hassell found that Delk's allegations sufficiently raised the possibility that this assault was

foreseeable, by asserting her special vulnerability, known to the defendants, and alleging that the

Center was also aware of the alleged assailant's "troubled history, predisposition, disturbing

interaction with other patients, and medical condition." The court also found relevant to the

negligence cause of action the allegation that the Center's staff knew of the incident but took no

action.

Hassell also found that the trial court erred in dismissing Delk's claim that the Center breached a duty

to control the assailant, finding that as the assailant was also an inmate of the institution, the Center

had "taken charge" of him and thus would have a duty to prevent him from causing harm.

The court also reversed the circuit court's dismissal of the intentional infliction of emotional distress

claim. Here, Hassell found, Delk's factual allegations could, if proved, lead to the conclusion that

the Center acted recklessly if it knew Delk was exposed to HIV as a result of this assault and failed

to inform her "so that she could have taken preventive measures to avoid transmission of the

potentially fatal disease to her husband." Although apparently Delk was not infected in the incident,

the court found that her allegations about past and continuing costs of medical care in consequence

of her exposure to HIV were sufficient to meet the requirement of an actual injury. However, in its

lone point of agreement with the circuit court, the court concluded that the negligent infliction of

emotional distress claim was properly dismissed. In Virginia, an actual physical injury is necessary

to ground such a claim, and none was shown here. "Delk failed to plead with specificity that she

incurred a physical injury which was the natural result of fright or shock proximately caused by the

defendant's alleged negligence," wrote Hassell. A.S.L.

No Tort Claim Allowed on False HIV+ Diagnosis

In _Doe v. Philadelphia Community Health Alternatives AIDS Task Force_, 2000 PA Super 6, 2000

WL 14486 (Jan. 11), a three-judge panel of the Superior Court of Pennsylvania affirmed a summary

judgment against a plaintiff who sued a testing agency for negligent infliction of emotional distress

resulting from a "false positive" test for HIV.

"John Doe" had come to the defendant, known as PCHA, for HIV testing in January 1993, shortly

after having an "unsafe sexual experience." PCHA tested him three times. The first two tests were

indeterminate, but after the third test, which PCHA advised "would take into consideration that

Appellant was from Africa," Doe was

advised that he had tested positive for HIV. Doe was referred to a treating physician who apparently

never retested him during a course of treatment which lasted over a year. Doe was referred to a

clinical study during the Spring of 1994. It was during screening for this clinical study that Doe was

found not to have any type of HIV or AIDS.

Doe sued PCHA, the treating physician, the laboratories which performed the tests, and the

Pennsylvania Department of Health. The private labs were dropped as parties and Doe reached

settlements with the other parties before PCHA's motion for summary judgment was granted.

The appellate court affirmed, reasoning that Pennsylvania does not recognize a cause of action for

"fear of AIDS," and Doe's claim did not set forth a facts sufficient to support a claim for negligent

infliction of emotional distress. In order to prevail on the negligence count, Doe would have to show

that PCHA had a contractual or fiduciary relationship with him, that he had suffered a physical

impact, that he was in a "zone of danger" and at risk of immediate physical injury or that he had a

contemporaneous perception of a tortious injury to a close relative. Doe never alleged a contractual

or fiduciary relationship with PCHA (for reasons unstated in this opinion and which elude this writer),

nor did "zone of impact" or "contemporaneous perception" apply to this case.

Doe argued that he did suffer a physical impact as a result of PCHA's negligence in that he had two

flu shots which he would not have had but for the false positive test. The court rejected this

argument, finding that the shots themselves did not constitute a sufficient impact

to sustain a claim for negligent infliction of emotional distress, as a matter of law; many healthy

people take such shots each year, and any physical side effects were minor. _Steven Kolodny_

AIDS Litigation Notes

The U.S. Supreme Court announced Jan. 21 that it will review a decision by the 11th Circuit in

_Florida Dept of Corrections v. Dickson_, No. 98-829, on whether Congress exceeded its

constitutional authority by making the Americans With Disabilities Act (ADA) applicable to state

employees. The 11th Circuit held that the ADA was enacted pursuant to Congress's power to enforce

the 14th Amendment Equal Protection Clause, and contains a clear statement of abrogation of 11th

Amendment immunity, see 139 F.3d 1426 (1998). On Jan. 25, the Court announced it had granted

certiorari in _Alsbrook v. Maumelle_, No. 99-423, in which the 8th Circuit rendered a decision

contrary to the 11th Circuit ruling, finding an 11th Amendment bar to an ADA suit. (According to a

news report in the BNA _Daily Labor Report_ on Jan. 26, the 4th, 5th, 7th, 9th and 11th Circuits have

now held that ADA's application to state employees is constitutional; the 8th Circuit's en banc ruling

in _Alsbrook_ creates the circuit split. The Supreme Court recently held that state employees may

not sue for enforcement of the Age Discrimination in Employment Act, in _Kimel v. Florida Board

of Regents_, 2000 WL 14165 (Jan. 11), due to the concept of state sovereign immunity that a bare

majority of the Supreme Court has been developing (over vigorous dissents) during the past two

terms as a limitation of Congressional power, and relying on past holdings that age is not a suspect

classification under the federal Equal Protection Clause. In its fact-findings embodied in the

disabilities statute, Congress found that people with disabilities constitute "a discrete and insular

minority who have been faced with restrictions and limitation, subjected to a history of purposeful

unequal treatment," thus using the "buzz words" of suspect classification. Of course, the Court might

disagree with Congress about whether people with disabilities fit that category, especially in light of

its prior holdings against strict scrutiny in cases brought on behalf of people with mental disabilities.

*** If the Court decides that Congress lacked authority to authorize ADA suits against the states,

people with HIV/AIDS who are state employees will have lost a valuable weapon in the fight against

discrimination in employment, housing and public accommodations and services.

In a brief unpublished opinion in _State v. Horton_, 1999 WL 1220546 (Dec. 20), the Washington

State Court of Appeals, Div. 1, reiterated to a superior court judge who evidently didn't "get it" that

automatically demanding HIV testing of somebody upon conviction of a crime is contrary to state

law. In this case, David Horton was convicted of delivering rock cocaine, and King County Superior

Court Judge Richard Ishikawa ordered HIV testing as a condition of his sentence. Wrote the court,

per curiam, "The State concedes the court did not have authority to impose HIV testing because

RCW 70.24.340 limits the imposition of HIV testing as a condition of sentence for a drug offense

"associated with the use of hypodermic needles." The State acknowledges rock cocaine is seldom

used by means of a hypodermic needle, and Horton did not possess any such needles or related

paraphernalia when he was arrested." The court remanded for sentencing consistent with its opinion.

In a brief opinion adopting a magistrate's report, U.S. District Judge Buchwald agreed that a man

convicted under the federal terrorism law was not entitled to a petition of habeas corpus based on the

argument that he had AIDS, where he was not in a severely debilitated state. See _Rhodes v.

Senkowski_, 2000 WL 60885 (S.D.N.Y., Jan. 21).

Ronald McDonald (we kid you not, that's the name), an HIV+ man, was sentenced to two years in

prison by U.S. District Judge Frank Bullock, Jr., for lying to insurance companies about his health

in order to obtain life insurance policies that he then viaticated. McDonald was indicted by federal

authorities investigating a pattern of abuse involving many people, and then pled guilty for the short

sentence while promising to assist federal authorities in the continuing investigation. According to

a report in the _Greensboro (N.C.) News & Record_ (Jan. 25), McDonald's attorney maintained that

his client didn't know he was doing anything wrong, but was merely a "pawn" who was "conned"

into participating in the fraud. According to allegations of federal investigators, McDonald obtained

policies with a face value of $155,00 based on his fraudulent applications, and then sold them to a

viatical company for $18,600. As part of the plea bargain, he pled guilty to one count of mail fraud

and all other charges were dropped. The insurance agent who helped him with the scheme was also

indicted, and his case is pending.

Larry D. Lowe, 44, accused of exposing a 13 year old boy to HIV by fondling him and performing

oral sex on him, was convicted in Clay County, Missouri, Circuit Court and sentenced by Judge Larry

Harman to six consecutive 7-year prison terms and a fine of $5,000. Lowe continued to maintain his

innocence, asserting that he had not had sex with anyone since contracting HIV from drug use and

being diagnosed in 1994. _Kansas City Star_, Jan. 27.

Ryan C. Weaver, 23, was sentenced to almost 5 years in prison in the Chelan County (Wash.)

Superior Court after pleading to a second-degree assault charge that he had exposed a sexual partner

to HIV. The sexual partner, a woman, approached police after learning that Weaver was HIV+. She

was not infected. _Seattle Post-Intelligencer_, Jan. 21.

In _Butera v. District of Columbia_, 1999 WL 1297442 (D.D.C., Dec. 22, 1999), U.S. District Judge

Green held that it was appropriate to admit expert testimony that a young HIV+ man faced a probably

lifespan of 60 more years. Taking note of the availability of treatments that now effectively suppress

the operation of HIV, Judge Green found that a doctor who was an expert on AIDS treatment could

so testify in a personal injury case where the expected lifespan of the deceased was relevant to the

issue of damages. Conceding that nobody knows how long protease inhibitors might work, the court

found that an expert in infectious diseases could nonetheless provide such testimony based upon her

knowledge of HIV progression in healthy people, and that it was up to the jury to decide what weight

to give the testimony. A.S.L.

S.F. Supervisor Calls for Change in Blood Policy

San Francisco City Supervisor Mark Leno has asked the U.S. Food and Drug Administration to

reconsider its current policy under which sexually-active gay men are disqualified as drug donors.

Indeed, under the policy, even sexually-inactive gay men are disqualified, if they have had sex at any

time since 1977. Characterizing the policy as "ridiculous," Leno told the _San Francisco Chronicle_:

"The guidelines should ask about sexual behavior, not sexual orientation... We have to increase the

city's blood supply, and there is an able and willing source of blood. This is a blood shortage caused

and exacerbated by federal regulations." In a follow-up interview, Dr. Eric Goosby, director of HIV-

AIDS policy for the U.S. Department of Health and Human Services, told the _Chronicle_ that he

doubted the FDA would ever totally eliminate restrictions on donation by gay men, but there was

discussion about significantly cutting down the period of past sexual activity that would be considered

significant, possibly to as little as 12 months, in light of the current accuracy of HIV screening tests.

A.S.L.

PUBLICATIONS NOTED & ANNOUNCEMENTS

ANNOUNCEMENTS

The deadline is Feb. 15 for applications for the summer judicial internship sponsored by the Dr. M.

L. "Hank" Henry Fund for Judicial Internships, administered by the Lesbian & Gay Law Foundation

of Greater New York. The internship is intended for law students with a demonstrated interest in,

and commitment to, lesbian and gay rights. The intern will be exposed to a variety of courts in the

federal and state system, working with both openly lesbian and gay a non-gay judges. Applicants can

obtain details of the information required in the application from the LeGal Foundation: 212-353-

9118; le-gal@interport.net. Applications should be sent to the Foundation at: 799 Broadway, Suite

340, New York NY 10003. The selection committee will make its determination and notify the

recipient by March 15. The internship pays a stipend of $3,000 for a 10-week program organized by

the LeGaL Foundation.

Roger Leishman, the director of the ACLU of Illinois's Lesbian & Gay Rights Project/AIDS & Civil

Liberties Project has announced his retirement, and the ACLU of Illinois is now accepting

applications for this Chicago-based position. The Director is responsible for administration, litigation,

public speaking, legislative work and supervision of volunteer cooperating attorneys. Applicants

should have at least 5 years of practice experience, including litigation experience, excellent

communication, interpersonal and organizational skills, and of course a strong commitment to civil

liberties, including lesbian, gay, bi, transgendered and HIV+ rights. Salary commensurate with

experience; full benefits (including domestic partner coverage). Application deadline is March 1,

2000. Send resume and writing sample to: Harvey Grossman, Legal Director, ACLU of Illinois, 180

N. Michigan Ave., Suite 2300, Chicago IL 60601. The ACLU is an equal opportunity/affirmative

action employer.

The Georgetown Journal of Gender & the Law is soliciting articles for its Summer 2000 issue. Any

articles falling within the broad parameters of the title of the journal would be welcome. Submissions

can be directed to the Editor of the journal at Georgetown University Law Center, 600 New Jersey

Avenue, N.W., Washington, D.C. 20001. The Journal issued its first number, devoted to a

symposium on anti-gay peer harassment in schools, in December 1999 (articles listed below), and its

second number will be derived from the proceedings of a symposium held at the Law Center on

February 4, titled "Beyond Biology: Adoption, Reproductive Technology, and Intentional Families,"

which will explore the role of social change and technological advances as the driving forces behind,

and the mirrors of, evolving family norms, focusing particularly on lesbian and gay families. A.S.L.

LESBIAN & GAY & RELATED LEGAL ISSUES:

Arriola, Elvia Rosales, _Wildly Different: Anti-Gay Peer Harassment in Public Schools_, 1

Georgetown J. Gender & L. 5 (Fall 1999).

Brake, Deborah, _The Cruelest of the Gender Police: Student-to-Student Sexual Harassment and

Anti-Gay Peer Harassment Under Title IX_, 1 Georgetown J. Gender & L. 37 (Fall 1999).

Carey, Rea, and Suman Chakraborty, _Class President or `Just Another Suicide Statistic': The Effects

of Homophobic Harassment on Youth_, 1 Georgetown J. Gender & L. 125 (Fall 1999).

Chmielewski, Cynthia M., _The Role of Employees in Stopping Anti-Gay Peer Harassment in the

Public Schools_, 1 Georgetown J. Gender & L. 141 (Fall 1999).

Coleman, Arthur L., _When Hallways Become Hostile Environments: Understanding the Federal Law

That Prohibits Sexual Harassment of Students by Students_, 1 Georgetown J. Gender & L. 109 (Fall

1999).

DelPo, Marianne C., _The Thin Line Between Love and Hate: Same-Sex Hostile-Environment Sexual

Harassment_, 40 Santa Clara L. Rev. 1 (1999).

Facchini, Mark, and Peter A. Grossman, _Metaphor and Metonymy: An Analysis of_ R.A.V. v. City

of St. Paul, Minnesota, 12 Int'l J. for the Semiotics of L. 215 (1999).

Feldman, David, _Human Dignity as a Legal Value - Part I_, Public L., Winter 1999, 682.

Frankfurt, Kate, _An Advocate's Perspective on Schools' Responses to Anti-Gay Harassment_, 1

Georgetown J. Gender & L. 153 (Fall 1999).

Hudson, Steven J., _Internet Sex and the Public's Health_, 46 Med-Tr Tech Q 313 (1999).

Jolly-Ryan, Jennifer, _Stengthening Hate Crime Laws in Kentucky_, 88 Ken. L. J. 63 (1999-2000).

Lessig, Lawrence, and Paul Resnick, _Zoning Speech on the Internet: A Legal and Technical Model_,

98 Mich. L. Rev. 395 (Nov. 1999).

Lyles, Allison, _Gender Assignment in the Case of Ambiguous Genitalia_, 46 Med-Tr. Tech. Q. 303

(1999).

Matsuda, Mari J., _Forward: Homophobia as Terrorism_, 1 Georgetown J. Gender & L. 1 (Fall

1999).

Mowbray, Alastair, _The Role of the European Court of Human Rights in the Promotion of

Democracy_, Public L., Winter 1999, 703.

Sachs, Justice Albie (essay), _Equality Jurisprudence: The Origin of Doctrine in the South African

Constitutional Court_, 5 Rev. of Const. Studies 76 (1999).

Spitko, E. Gary, _The Expressive Function of Succession Law and the Merits of Non-Marital

Inclusion_, 41 Ariz. L. Rev. 1063 (Winter 1999).

Strasser, Mark, _From Colorado to Alaska by Way of Cincinnati: On_ Romer, Equality Foundation_,

and the Constitutionality of Referenda_, 36 Houston L. Rev. 1193 (Winter 1999).

_Student Notes & Comments:_

Comment, _Michigan's Doctrine of Equitable Parenthood: A Doctrine Best Forgotten_, 45 Wayne

L. Rev. 1529 (Fall 1999).

Developments in Policy Article, _Rape and Sexual Misconduct in the Prison System: Analyzing

America's Most "Open" Secret_, 18 Yale L. & Pol. Rev. 195 (1999).

Doerhoff, Heidi C., _Assessing the Best Interests of the Child: Missouri Declares That a Homosexual

Parent is Not Ipso Facto Unfit for Custody_, 64 Mo. L. Rev. 949 (Fall 1999).

Grady, William F., _The Boy Scouts of America as a "Place of Public Accommodation":

Developments in State Law_, 83 Marquette L. Rev. 517 (Winter 1999).

Guenther, John, Oncale_ Goes to School: Male-Male Harassment and Gender-Policing_, 1

Georgetown J. Gender & L. 159 (Fall 1999).

Jacobson, Jill, _The Child Online Protection Act: Congress's Latest Attempt to Regulate Speech on

the Internet_, 40 Santa Clara L. Rev. 221 (1999).

Lewis, Phillip E., _A Brief Comment on the Application of the "Contemporary Community Standard"

to the Internet_, 22 Campbell L. Rev. 143 (Fall 1999).

Note, _The Child Online Protection Act: Can the COPA Cope With Constitutional Scrutiny in Light

of Reno v. ACLU?_, 45 Wayne L. Rev. 1665 (Fall 1999).

Potter, Lillian Howard, _"Man-Woman": Anti-Gay Peer Harassment of Straight High School

Students_, 1 Georgetown J. Gender & L. 173 (Fall 1999).

Uhrich, Craig L., _Hate Crime Legislation: A Policy Analysis_, 36 Houston L. Rev. 1467 (Winter

1999).

Witte, Gretchen, _Internet Indecency and Impressionable Minds_, 44 Villanova L. Rev. 745 (1999).

_Specially Noted:_

Symposium, _Hostile Hallways: Anti-Gay Peer Harassment in Schools_, 1 Georgetown J. Gender

& L. No. 1 (Fall 1999) (articles listed separately above; the symposium issue also reprints several

speeches given at the conference not listed above). * * * Harper Collins has published _As Nature

Made Him: The Boy Who Was Raised as a Girl_, by John Collins, the account of a male baby whose

penis was altered to a vagina after a circumcision accident destroyed the penis, who was then raised

as a girl but who later rejected this identity and reclaimed his masculine role.

AIDS & RELATED LEGAL ISSUES:

Berg, Paula E., _Ill/Legal: Interrogating the Meaning and Function of the Category of Disability in

Antidiscrimination Law_, 18 Yale L. & Pol. Rev. 1 (1999).

Bland, Timothy S., and Thomas J. Walsh, Jr., _U.S. Supreme Court Resolves Mitigating Measures

Issue Under the ADA_, 30 U. Memphis L. Rev. 1 (Fall 1999).

_Student Notes & Comments:_

Azinger, Natalie R., _Too Healthy to Sue Under the ADA? The Controversy Over Pre-Offer Medical

Inquiries and Tests_, 25 J. Corp. L. 193 (Fall 1999).

Burke, Christopher J., _Winning the Battle, Losing the War?: Judicial Scrutiny of Prisoners'

Statutory Claims Under the Americans With Disabilities Act_, 98 Mich. L. Rev. 482 (Nov. 1999).

Simmons, Pamela J., _Does the End Justify the Means? The Fourth Circuit's New Case-by-Case

Analysis of an HIV-Infected Plaintiff's ADA Claim After_ Bragdon v. Abbott, 34 Wake Forest L.

Rev. 1251 (1999).

EDITOR'S NOTE:

All points of view expressed in _Lesbian/Gay Law Notes_ are those of identified writers, and are not

official positions of the Lesbian & Gay Law Association of Greater New York or the LeGaL

Foundation, Inc. All comments in _Publications Noted_ are attributable to the Editor.

Correspondence pertinent to issues covered in _Lesbian/Gay Law Notes_ is welcome and will be

published subject to editing. Please address correspondence to the Editor or send via e-mail.