The bill amends the state's existing human rights laws to add "sexual orientation" to the list of prohibited grounds of discrimination. "Sexual orientation" is defined as "the identification of an individual as to male or female homosexuality, heterosexuality, or bisexuality."

The bill extends immunity under the human rights law or common law to employers who take "reasonable acts to verify the sexual orientation of any employee or applicant . . . in response to a charged filed against the employer on the basis of sexual orientation." The bill exempts religious corporations, associations, educational institutions or societies from compliance with the employment provisions. The bill also expressly states that it "may not be construed to authorize or validate a marriage between two individuals of the same sex, may not be construed to require or prohibit an employer to offer health insurance benefits to unmarried domestic partners, does not mandate any public or private educational institution to promote any form of sexuality or sexual orientation or to include such matters in its curriculum; and is intended to ensure specific defined rights and not to endorse or confer legislative approval of any form of sexual behavior." Finally, the bill provides that it "does not apply to the Boy Scouts of America or the Girl Scouts of America with respect to the employment of individuals of a particular sexual orientation to perform work connected with the activities of those organizations." These provisions open an interesting window into the minds of the wavering legislators who had to be reassured on their particular concerns in order to get their votes on the bill. (It would make an interesting study to look at these "reservation" and "exemption" provisions in gay rights legislation across time, as they illustrate the hot issues at particular times in particular places.)

As originally filed, the bill would have also banned discrimination on the basis of gender identity. Having decided that this was one of the reasons why the bill failed to be enacted in the last session, the governor determined to eliminate the gender identity protection from the most recent version of the bill. The measure takes effect on October 1, 2001, and will make Maryland twelfth on the list of states banning sexual orientation discrimination, unless pending bills in other states become effective earlier!

Meanwhile, a similar proposal in neighboring Delaware was advancing, as the House voted on March 27 to approve a bill, House Bill 9, that systematically amends the Delaware code to add "sexual orientation" to every existing list of prohibited bases for discrimination. The types of discrimination covered under the bill include housing, employment, public works contracting, public accommodations, and insurance. The bill contains a substantial exemption from its employment provision for "religious corporations, associations or societies supported, in whole or in part, by government appropriations, except where the duties of the employment or employment opportunity pertain solely to activities of the organization that generate unrelated business income subject to taxation under Section 511(a) of the Internal Revenue Code of 1986." The bill also provides that it may not be construed to require extension of benefits to domestic partners, and defines "sexual orientation<170" as meaning "heterosexual, bisexual, or homosexual orientation, whether real or perceived."

The bill advanced in the wake of two pro-gay executive orders from Delaware governors. On December 14, outgoing Governor Thomas R. Carper signed an executive order forbidding state agencies from discriminating on the basis of race, color, religious creed, ancestry, union membership, age, gender, marital status, sexual orientation, national origin, handicap or disability, and ordering the state's personnel office to promulgate guidelines prohibiting such discrimination. Not to be outdone, incoming Governor Ruth Ann Minner issued a new executive order on January 30, 2001, No. 10 of her administration, reaffirming the prior order and adding Vietnam Era veteran status to the list of categories of prohibited discrimination. Minner's order goes far beyond Carper's in a detailed mandate for the Governor's Equal Employment Opportunity Council, and deals extensively with state affirmative action issues. A.S.L.

LESBIAN/GAY LEGAL NEWS

Nebraska Supreme Court Finds Sheriff's Actions "Outrageous" in Brandon Teena Case

The Nebraska Supreme Court unanimously ruled April 20 that former Richardson County Sheriff Charles B. Laux had acted outrageously in his dealings with Brandon Teena, sufficient to ground a claim for intentional infliction of emotional distress brought by Brandon's mother on behalf of the estate. _Brandon v. County of Richardson_, 261 Neb. 636. In an opinion by Chief Justice Hendry, the court sustained the trial court's ruling that the County was negligent in its dealings with Brandon by failing to provide protection after Brandon reported being beaten and raped by the two men who eventually killed him, but found that the trial court had improperly reduced the negligence damage award by allocating 85% of the blame for Brandon's murder on her murderers. The court reversed the trial court's finding that Brandon was contributorily negligent for his death, as well as the trial court's ruling that Laux's conduct was not sufficiently outrageous for the emotional distress claim. The court also reversed the trial court's award of nominal damages to Brandon's mother, the plaintiff, finding that the trial court erred in its failure to attribute any monetary value to JoAnn Brandon's loss of her daughter.

Born Teena Brandon, during adolescence Brandon experienced a "sexual identity crisis" (to quote Brandon's own description from the tape of his interview with Laux following the rapes) that led Brandon to reverse his names and assume a male identity and demeanor. Brandon's story is depicted with chilling realism in the feature film "Boys Don't Cry," in which Hilary Swank portrayed Brandon in a performance that won the best actress Academy Award in March 2000.

Brandon left Lincoln County in December 1993 to live in Richardson County as a man and began dating Lana Tisdel, who lived in Falls City. Brandon also became acquainted with John Lotter and Thomas Nissen. All of these new acquaintances apparently believed Brandon to be male, but when Lotter and Nissen began to suspect the truth, they started harassing Brandon, including an episode after a Christmas Party in which they pulled down Brandon's pants to check for genitalia. Discovering that Brandon was anatomically female, Lotter and Nissen drove Brandon to a remote location and beat and raped him, threatening to kill him if he told anybody about what they had done.

Brandon escaped and showed up at a friend's house, where an ambulance was called, and he was taken to the hospital, where the rape was confirmed and reported. Brandon reported the matter to the Falls City Police Department, and later that day Sheriff Laux and another officer conducted a lengthy interrogation of Brandon, which was captured on audio tape. As described in the court's opinion, it appears that Laux was profane and abusive in questioning Brandon, expressing great skepticism about Brandon's story and asking many irrelevant questions about Brandon's sexuality. Although Brandon had informed the police department about the threat to his life, the department did nothing to protect him, even though Brandon had identified his assailants who were still at large. Brandon then attempted to hide out at another friend's house, but Lotter and Nissen, discovering they were under investigation by the police, tracked Brandon down and murdered him and two friends who were with him on December 31. Lotter and Nissen were subsequently convicted of the murders.

JoAnn Brandon filed suit, represented by Lambda Legal Defense & Education Fund, alleging that the Police Department was negligent in its handling of the case, and that Laux was guilty of intentional infliction of emotional distress on Brandon. In addition to these claims asserted on behalf of Brandon's estate, JoAnn Brandon sued personally for the wrongful death of her daughter.

Trial Judge Orville L. Coady initially sought to get rid of the negligence case by ruling that the police had no duty to protect Brandon, but the Nebraska Supreme Court held that a negligence claim could be brought, finding that once Brandon had reported the crime and the threat on his life, the police department was in a special relationship with him that generated a duty of care for his safety. See _Brandon v. County of Richardson_, 566 N.W.2d 776 (Neb. 1997). On remand, the trial court found that the county was negligent, and that the injury to Brandon was worth about $80,000, but that this should be reduced by 85% due to the fault of the murderers and one percent due to contributory negligence by Brandon. After hearing testimony and reviewing the audio tape of the interrogation, the trial court decided that bad as Laux's conduct was, it was insufficiently outrageous to merit a claim of intentional infliction of emotional distress, and further that the evidence didn't show that Brandon had suffered severe emotional distress from Laux's mistreatment. Finally, the court awarded nominal damages to JoAnn Brandon, finding that she and Brandon had been "estranged" and Brandon was not providing any particular financial support to her, thus she had not sustained any real compensable injury by his loss.

Just about the only part of the trial court's opinion of which Chief Justice Hendry approved was the determination that the police department was negligent and that the sum of $80,000 as measure of damages for negligence was sustainable based on the trial record. Hendry was otherwise intensely critical of the trial court's reasoning, finding, for example, that Nebraska law consistently refuses to reduce negligence damage awards based on the intentional acts of other wrongdoers. Furthermore, Hendry found no support in the record for the trial court's conclusion that Brandon bore some responsibility for his own murder due to lack of cooperation with the police. Hendry's review of the tape shows that Brandon was fully cooperative, answered even the most outrageous questions, and had acted appropriately in the circumstances.

Perhaps most significantly, however, Hendry found on behalf of the unanimous court that the gross incivility, vulgarity and skepticism with which Sheriff Laux treated Brandon while interrogating him shortly after he had been raped was so outrageous that it clearly supported the necessary finding to ground a tort claim of intentional infliction of emotional distress. Furthermore, since the trial court had missed the boat on this aspect of the claim, its conclusion on the other key aspect of the claim, that the conduct had not caused severe emotional distress, was also tainted. Hendry emphasized that the very outrageousness of the conduct would most probably give rise to a conclusion that Brandon suffered emotional distress as a result, especially given the context of the questioning and Brandon's fear for his life at that time. However, a finding of severe emotional distress requires a factual determination, so the matter had to be sent back to the trial court for further findings. (Hendry's opinion sends a pretty strong message, however, that if the trial court determines that the emotional distress was insufficiently severe to merit compensation, it will likely be reversed again.)

Finally, turning to JoAnn Brandon's claim, the court was clearly offended by the trial court's award of only nominal damages (essentially nothing) from the mother's loss of her child. That a child is an adult who has left home does not vitiate a parent's claim for damages for the wrongful death of her child, so long as they have a real parent-child relationship. The evidence showed that Brandon and his mother had a loving relationship, even though JoAnn did not understand Brandon's sexual identity situation. There was evidence that they had remained in touch with each other, that Brandon had telephoned his mother frequently while living in Richardson County, and was planning to return to his mother's house in Lincoln County at the time of the murder. Under these circumstances, the court determined that the failure to award substantial damages to JoAnn was "shocking to the conscience" of the court.

In remanding the matter, the Supreme Court instructed that the trial court may not reduce the $80,000 in damages for negligence, is to determine whether Brandon suffered emotional distress at Laux's hands and fix appropriate compensation for that, and is to determination an appropriate damage award on JoAnn Brandon's wrongful death claim.

David Buckel, Lambda staff attorney, is lead counsel in the case, assisted by Lambda staff attorney Marvin Peguese, former Lambda staff attorney Doni Gewirtzman, and local counsel Michael J. Hansen, Herbert J. Friedman, and John Stevens Berry. The case attracted amicus briefs on behalf of the Harry Benjamin International Gender Dysphoria Association, the Nebraska Association of Trial Attorneys, the American Civil Liberties Union of Nebraska and the ACLU Lesbian and Gay Rights Project, Parents of Murdered Children, Inc., the National Center for Victims of Crime, the Nebraska Domestic Violence Sexual Assault Coalition, and Gender Public Advocacy Coalition. A.S.L.

Alaska Supreme Court Evades Lawsuit Challenging Anti-Gay Statute

By a 4-1 vote, the Alaska Supreme Court cited a lack of ripeness as grounds for rejecting a challenge by Jay Brause and Gene Dugan to an Alaska statute that forbids the state government from extending spousal benefit rights to same-sex couples. _Brause v. State of Alaska_, 2001 WL 379261.

Brause and Dugan filed suit in the Superior Court in Anchorage seeking the right to marry. They earned a positive initial decision by Superior Court Judge Peter A. Michalski, _Brause v. Bureau of Vital Statistics_, 1998 WL 88743 (Alaska Super. Feb. 27, 1998) (not reported in P.2d.), but their case was rendered moot when the legislature placed a constitutional amendment on the ballot, which added Art. I, Sec. 25 to the state constitution, limiting marriage to same-sex couples. Switching to Plan B, Brause and Dugan renewed their cause before Judge Michalski, arguing that the state's failure to make the same benefits available to same-sex couples as are afforded married couples violates the state constitution, and specifically taking aim at Alaska Stat. 25.05.013(b), which provides, "A same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage."

Judge Michalski dismissed this claim "without prejudice to subsequent filings. . . where a particular right is at issue and being challenged -- or a particular benefit." Michalski determined that because Brause and Dugan were not claiming that they had personally been denied any particular right (other than the right to marry), they did not have standing to seek a general declaration that the statute was unconstitutional.

In an opinion by Justice Matthews, the Supreme Court agreed with Judge Michalski's conclusion, holding that a determination in the abstract that sec. 25.05.013(b) is unconstitutional would be merely an advisory opinion. Interestingly, the state's attorneys argued in opposition to the appeal that the statutory provision was merely symbolic and had not practical effect, as the state was not providing any benefits to same-sex partners at the present time.

Wrote Matthews, "The ripeness doctrine requires a plaintiff to claim that either a legal injury has been suffered or that one will be suffered in the future." After summarizing various sources on the federal ripeness doctrine (which the dissent points out is irrelevant, because Alaska courts have long held that the state has its own version of ripeness doctrine that is more expansive than the federal version), Matthews wrote: "In the present case Brause and Dugan claim on appeal that AS 25.05.013(b) denies them at least 115 separate rights which are afforded to people who are able to marry. These include, Brause and Dugan argue, 'the denial of health coverage, forms of insurance, equal participation in pension and retirement plans, as well as testamentary and property rights.' There is no doubt that at least in some circumstances married partners have rights that are denied unmarried domestic partners, and the subjects specifically identified by Brause and Dugan may be areas where inequality exists. But lacking in Brause and Dugan's brief is any assertion that they have been or in their current circumstances that they will be denied rights that area available to married partners."

Matthews seized upon the state's characterization of the statute as "purely symbolic," lacking "independent legal significance." The state argued that the plaintiffs should have to individually challenge each of the state policies that they claim violate their rights, rather than mount a frontal attack on the broad disqualifying provision of 25.05.013(b). The state cited as the proper way to proceed a recent case filed in Anchorage by a group of same-sex couples specifically seeking entitlement to health and pension benefits. The court agreed.

But Justice Bryner dissented strongly and at considerable length, arguing that the court's old decision in _Burgess Construction Co. v. Lindley_, 504 P.2d 1023 (Alaska 1972), interpreting the Workers Compensation Statute to require the payment of death benefits to a surviving opposite-sex domestic partner, showed that the statute in issue could be subject to a facial challenge by a same-sex couple, as to whom the statute would, on its face and totally predictably, discriminate as between unmarried opposite-sex couples and unmarried same-sex couples.

Actually, the court's decision is strange in a different sense. Since Judge Michalski gave the plaintiffs leave to amend to add some substantive information relative to the standing issue, it is hard to understand the court's position, since presumably the plaintiffs can come right back and file a new equality claim before Michalski. Not only does Justice Bryner fully show that the state is now following an inequitable path, but these determined plaintiffs are unlikely to be deterred by the need to come up with more specific allegations. They need only file some applications for joint benefits to obtain the necessary evidence.

The plaintiffs are represented by attorney Robert H. Wagstaff of Anchorage. A.S.L.

Mississippi Supreme Court Rejects Lesbian Custody Appeal

In a unanimous decision released on April 12, the Mississippi Supreme Court rejected an appeal by Sharon Morris of the DeSoto County Chancery Court's decision awarding custody of her three children to Joey Morris, her ex-husband, refusing to allow her to visit with her children unless either Joey or an agreed third party is present, and granting Joey's divorce petition on grounds of habitual cruel and inhuman treatment. The custody decision was premised, at least in part, on her sexual orientation and cohabitation with another woman. _Morris v. Morris_, 2001 WL 361766.

Joey and Sharon married in 1981 in Tennessee and lived together until the end of 1998, at which time they were living in Southaven, Mississippi. They had three children, two girls and a boy, who were all pre-teens at the time of the breakup of the marriage. Sharon, a registered nurse, was the primary care giver for the children throughout the marriage. She is employed at a part-time job. Joey is employed full-time. By the court's account, the marriage was stormy, with each spouse having assaulted the other upon occasion. Sharon claimed that Joey forced himself on her sexually, and it appears from the court's version of the facts that she was not particularly sexually interested in him.

The court's opinion, by Justice Smith, also details Sharon's history of mental instability, although the court never surfaces the possibility that some of what it is reporting may have been related to Sharon's uneasiness in a heterosexual relationship. It appears that she occasionally physically abused herself, including scarring, and had been suicidal at times. She has been hospitalized at times for psychological problems, and takes medication for depression and anxiety. There is no indication that she has ever harmed her children, however.

Sharon became involved in a relationship with Ms. Brandy Schroyer, which became sexual sometime before her separation from Joey. Sharon told Joey about the relationship before she moved out of the house, and at the time of trial Sharon lived with Brandy and Brandy's two sons. She testified that she intended to remain in this relationship indefinitely, according to the court.

The chancery court determined that it was in the best interest of the children to be in Joey's custody, and granted him a divorce on grounds of habitual cruel and inhuman treatment. Writing for the Supreme Court, Justice Smith found that this finding was not erroneous in light of the trial record.

On appeal, Sharon had argued that the trial court erred in premising a finding of cruel and inhuman treatment on her relationship with Brandy, but the Supreme Court found that Mississippi precedents supported such a finding on these facts. Citing to Robison v. Robison, 722 So. 2d 601 (Miss. 1998), in which the court supported such a finding where a husband had engaged in a heterosexual extra-marital affair, Smith wrote: "As in the case before the Court at present, the chancellor in Robison declined to decide the case on grounds of adultery, and instead, used the extra-marital relationship to support the habitual cruel and inhuman treatment charge. In both Robison and in the present case, the parties were involved in open relationships with at least one third party. Both cases further incorporate other evidence, in addition to extra-marital affairs, to support the charge of habitual cruel and inhuman treatment. The husband in Robison neglected his family to the point that they could not afford groceries, and the wife's co-workers had to hold a food drive for her. As a result of her husband's neglect, criticism, and affairs, the wife in Robison was treated for depression and anxiety. The Court found that the husband's neglect, combined with his verbal and emotional abuse toward his wife which resulted in her needing treatment for depression, was sufficient to support a finding of habitual cruel and inhuman treatment. Similarly, in the case at bar, Joey testified that his wife's behavior and actions have caused him to seek counseling. Additionally, as a result of having to pay his wife's bills for her stays at various hospitals for her psychological problems, Joey was forced to file bankruptcy. Additionally, Joey has had problems collecting child support from Sharon." The court also noted one very old precedent, _Crutcher v. Crutcher_, 38 So. 337 (Miss. 1905), in which the court held that a homosexual affair by a spouse would qualify as cruel and inhuman treatment, but did not appear to place any particular weight on the old case.

In terms of the custody ruling, Sharon protested the court's resolution of the factor of parental morality against her on account of her relationship with Brandy. The chancellor had relied on _Weigand v. Houghton_, 730 So.2d 581 (Miss. 1999), for the proposition that "by engaging in a homosexual relationship with this Court finds to be violative of Mississippi statutes, and continuing in that relationship at this time, the Court finds that the element of moral fitness must be resolved against the natural mother." Wrote Smith, "This Court has clearly held that the chancellor can consider a homosexual lifestyle as a factor relevant in the custody determination of the child, as long as it is not the sole factor. Sharon's extra-marital affair with Brandy was not the only factor considered by the chancellor in making his determination that the best interest of the children was for them to be in the custody of the father." If one assumes that the court's opinion accurately depicts the parties and the nature of their relationship, this statement appears correct, inasmuch as Sharon presented a picture of a deeply troubled person who had engaged in self-destructive conduct. On the other hand, the supreme court upheld the chancellor's refusal to hear expert testimony from Sharon's therapist on her current mental condition, purportedly on the ground that the therapist was a social worker rather than a psychologist and thus was not qualified as an expert witness on her mental condition.

The opinion continues the Mississippi Supreme Court's course of hostility to lesbian or gay parents, although in light of the factual findings in this case, it would be difficult to fault the overall determination that the children's best interest was probably served by a custody award to their father. However, the court's refusal to allow testimony by the therapist, which appeared to contribute greatly to the chancellor's determination to restrict visitation by requiring it to take place either in Joey's presence or in the presence of an agreed-upon third party, is unfortunate in the circumstances. While Justice Smith opines that allowing the therapist's testimony would not have changed the outcome of the case, one suspects that had Sharon been able to present the testimony of a properly qualified expert on her current mental condition and ability to deal with the children without endangering them, a different outcome on the visitation question might have been achieved.

Sharon's case may also have been affected by difficulty with counsel. The court's recitation of the procedural history shows that her original counsel withdrew during the proceedings, and there was a period of several months in 1999 when she was unrepresented until securing the counsel of John V. Hunter, IV. The opinion lacks the usual recitation by the court of testimony by experts about the impact (or lack of same) of parental homosexuality on child development, so one suspects this is one of those unfortunate cases where unfamiliarity with these issues by counsel and lack of resources may have contributed to the outcome. A.S.L.

The New Hampshire Supreme Court reversed and remanded the trial court's conviction of a woman found guilty of nine counts of felonious sexual assault against a minor girl, on the ground that the prosecutor prejudicially introduced evidence of the defendant's lesbian relationship
with the victim's mother. _State of New Hampshire v. Woodard_, 2001 WL 321993 (April 4).

In 1982, defendant Woodard was the victim's sixth grade teacher. Over the next two years, Woodard bestowed special favors upon her, spent much time with her, both in and out of school and became progressively more affectionate with her. Then, Woodard and her husband moved next door to the victim's home. After Woodard and her husband divorced, Woodard moved in with the victim and her divorced mother. While living there, Woodard sexually assaulted the victim a number of times. The mother became suspicious after reading love notes from Woodard to the child, and eventually, she told others of the suspicion. The child, after entering eight grade, told Woodard to stop the assaults and began telling others, including her parents. No one told the police. Only a few years later, after the arrest of another teacher for an unrelated sexual assault, the
child began sending Internet messages about the attacks, which eventually came to the attention of the police and Woodard was arrested.

At the trial, the State introduced evidence of a sexual relationship between the victim's mother and the defendant. Woodard objected on the basis of relevance. The State argued that it was relevant because it explained why the victim's mother did not force Woodard to move out, and why she didn't call the police when she suspected a sexual relationship between Woodard and her daughter. The State argued that the testimony was offered for that reason, and not to show homosexual propensity. In response, the defendant argued that the mother testified that the reason
she did not inform the police was not because she was lovers with Woodard. Rather, it was because she was afraid that Woodard would leave and take her daughter with her. For that reason, Woodard argued, the evidence was either irrelevant or more prejudicial than probative. She
moved for a mistrial, which was denied by the trial court.

Writing for the Supreme Court, Chief Justice Brock found that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Since the relationship between the defendant and the victim's mother began almost two years after the last assault on the child, and even longer after discovery of the love notes, the probative value of the evidence was reduced. In addition, there were other explanations that the jury could have considered for why the mother did not inform the police. Other evidence showed the existence of emotional and financial ties between the two women. For example, the fact that the defendant provided financial assistance to a financially struggling woman, helped out with child care, and sometimes shared a bedroom with the mother (perhaps not by choice; the home had limited space). He stated that "the potential for the jury to be unfairly influenced by whatever bias they might have concerning homosexual conduct created the danger of prejudice," citing _United States v. Gillespie_, 852 F.2d 475 (9th Cir., 1988). The court held that disclosure to the jury that the defendant was a lesbian could have caused them to conclude that she was more likely to have committed the assaults.

Justice Brock disagreed with the State's contention that the evidence was merely cumulative and its admission harmless, finding that the mother's testimony regarding their lesbian relationship was the only direct evidence presented of Woodard's engaging in a consensual gay relationship. The court considered other arguments of Woodard's relating to improper admission of testimony of prior assaults and denial of a bill of particulars, both of which were not relevant to her sexual orientation.
Although the court disagreed with her as to those issues, Woodard's conviction was reversed for the reasons described above and the case was remanded to the trial court. _Elaine Chapnik_

Georgia Appeals Court Considers First Test of Extra-Territorial Effect for Vermont Civil Unions

It is unlikely that anybody would have predicted that the first judicial test of the effect of a Vermont Civil Union in another state would involve a child visitation dispute in Georgia, but that is the context for a case recently accepted for review by the Georgia Court of Appeals in _Burns v. Freer_. Depending how the court rules, the case might also become a vehicle for a judicial appraisal of the constitutionality of the federal Defense of Marriage Act's "full faith and credit" provision, and its Georgia analogue.

Darian and Susan Burns were divorced in December 1995 after seven years of marriage, during which they had three sons. Susan met Debra Jean Freer through friends, moved to Atlanta, and last July observed a civil union ceremony with Debra in Vermont. Susan also legally changed her last name to Freer. When Darian, who had been granted custody of their three sons in 1998, learned about this, he cut off Susan's visitation rights, referring to a provision of the 1998 custody agreement that prohibited visitation and residence "by the children with either party during any time where such party cohabits with or has overnight stays with any adult to whom party is not married or to whom party is not related." In addition to preventing the children from visiting with Susan and Debra, Burns filed an action in Floyd County Superior Court, claiming she had violated the agreement and seeking a contempt ruling against her.

On January 30, Floyd County Superior Court Judge Larry Salmon, relying both on the federal Defense of Marriage Act and Georgia public policy as expressed in a state law banning recognition of same-sex marriages, held that an out-of-state civil union could not be deemed the equivalent of a marriage and ruled against Debra, although it did not hold her in contempt. Late in April, the Georgia Court of Appeals accepted review of the case, which will be argued soon.

Susan is represented by Adrian Lanser of Cartersville, Georgia. The Southern Regional Office of Lambda Legal Defense Fund in Atlanta expects to participate in some capacity in the appeal. _Atlanta Constitution_, April 26; _Conservative News Service_, April 25. A.S.L.

Massachusetts Federal Court Allows Discrimination Claim to Proceed

U.S. District Judge Tauro (D. Mass.) ruled Feb. 20 in _Ianetta v. Putnam Investments, Inc._, 2001 WL 263248, that a gay man alleging discrimination on the basis of sex premised on failure to conform to gender stereotypes may proceed in his Title VII claim. Rejecting the employer's argument that this was a garden-variety non-actionable sexual orientation claim improperly asserted under Title VII, Judge Tauro held that Lawrence Ianetta sufficiently alleged sex discrimination to withstand a motion to dismiss.

Ianetta began working for Putnam in 1996, and was reassigned to the trade control department in April 1998, where he came under the supervision of Gary Sullivan. Ianetta alleges that between December 1998 and February 1999, Sullivan twice called him a "faggot" and singled him out for adverse treatment based on Ianetta's failure to conform to gender stereotype. After Ianetta asked the company's human resources department for the company's policy concerning sexual orientation discrimination, he was given a "final warning" threatening termination for poor performance. After he filed a discrimination charge with the Mass. Commission Against Discrimination, alleging both sex and sexual orientation discrimination, he was terminated. After receiving a right-to-sue letter from MCAD, he filed his Title VII case, appending a state law charge as well.

Tauro rejected Putnam's argument that this sexual harassment claim must be dismissed, finding that although prior authority made clear that sexual orientation discrimination is not actionable under Title VII, there was support, at least in dicta, for the proposition that discrimination based on gender non-conformity could support a sex discrimination claim under Title VII. Tauro rejected Putnam's argument that Ianetta failed to exhaust administrative remedies, noting that he had included a sex discrimination allegation in his proceeding before MCAD. Tauro also rejected Putnam's argument that the retaliation claim was invalid. Putnam argued that a valid retaliation claim requires that somebody have been engaging in statutorily protected activity; in this case, Putnam was threatened with discharge after inquiring about the sexual orientation discrimination policy and after filing his charge with MCAD. Tauro found that since the charge before MCAD involved sex discrimination as well as sexual orientation discrimination, its filing was a protected activity under Title VII.

Matthew Cobb of Boston represents Ianetta. A.S.L.

Finding that a gay-basher's life sentence was constitutionally infirm, the Illinois Appellate Court for the Fifth District reduced Richard Nitz's term of imprisonment to 5 years. See People v. Nitz, 2001 WL 337197 (March 28). Although the Court affirmed a number of the trial judge's rulings, the court of appeals found that the sentence had to be reduced pursuant to the Supreme Court's recent pronouncement in _Apprendi v. New Jersey_, 530 U.S. 466 (2000), because the judge, and not the jury had found the defendant's behavior "exceptionally brutal and heinous."

Richard Nitz was convicted and sentenced to death for the murder of Michael Miley, a gay man whom Nitz had beaten with a baseball bat until barely conscious, placed in the trunk of his car, shot in the head and then ultimately decapitated so as to dispose of the body more easily. In 1996, the Illinois Supreme Court overturned Nitz's conviction because the trial court had failed to conduct a fitness hearing for Nitz so as to determine the effect of Tranxene, which he had taken during the trial to quell anxiety, on his competency. On remand, the State prosecuted Nitz again for three counts of first degree murder, but this time did not seek the death penalty. The jury convicted Nitz on one of the three counts, finding that Nitz was aware of the fact that shooting Miley created a strong probability of death or great bodily harm. When determining Nitz's sentence, the trial judge found that this particular first-degree murder was accompanied by brutal and heinous behavior indicative of wanton cruelty, and sentenced Nitz to life imprisonment.

Nitz appealed his conviction on numerous grounds. First, he insisted that the trial judge effectively denied Nitz the opportunity to testify by permitting the state to use his testimony from the first trial to impeach him. Justice Kuehn, writing for the court, rejected the defendant's argument, finding that he was not deprived of the right to testify, but rather he was "simply not afforded the luxury of doing so without challenge from earlier sworn testimony that might have proven to be inconsistent."

Second, Nitz questioned the propriety of the jury deliberations by submitting an affidavit from a juror which suggested that the jury had held the defendant's refusal to testify against him, was negatively influenced by his prior (overturned) conviction, and that one particular juror had changed her vote from acquittal to conviction due to peer pressure from the other jurors. The court dismissed this challenge, and instead "adhere[d] to the longstanding rule of law that the testimony of jurors will not be received to establish their own mistake or misconduct, to prove that of their fellows while in the jury room, or to otherwise impeach their own verdict."

The court then rejected Nitz's third assignment of error, which had claimed that he should have been entitled to demonstrate that others in the area where the crime occurred harbored the same hatred for homosexuals that he did. The court found that, in the absence of evidence from which one might reasonably infer that a specific individual might have committed the crime, defendant's arguments were irrelevant: "Unfortunately, there is a wealth of bigotry and hatred in this world. Proof of other homophobia lacks relevancy, for it does not tend to prove that someone else rather than Nitz committed the crime." Nitz's argument that he was entitled to an instruction on second degree murder was also struck down by the court. The trial judge properly found that the defendant had not been seriously provoked, according to the appellate court, which based its affirmance ruling, in part, on the overwhelming violence exerted by the defendant upon the victim, which further demonstrated that the incident was not the result of "mutual quarrel or combat." The trial judge also did not abuse his discretion when he discounted defendant's evidence in mitigation, including his mental limitations and history of prior abuse, and ruled that the defendant should be sentenced to life imprisonment because he lacked sufficient rehabilitative potential. The appellate court also affirmed other evidentiary rulings contested by the defendant regarding the impeachment of witnesses offered by the state.

Finally, the court tackled the question of whether the court acted beyond its constitutional authority when it sentenced the defendant to a term of life. The statute under which Nitz was convicted provided for a maximum sentence of sixty months, but if the "murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty," then "the court may sentence the defendant to a term of natural life imprisonment." Relying on _Apprendi v. New Jersey_, the court found that this finding of "brutal and heinous behavior" had the effect of increasing the sentence beyond the statutory maximum of sixty months, and therefore was an element of the offensive that had to be tried to and found by the jury. Because the jury had not returned a verdict regarding this specific element, but rather the judge had made the determination as a factual finding during sentencing, the court found that Nitz's sentence of life imprisonment was unconstitutional. Therefore, his sentence was reduced to sixty months, or five years incarceration. _Sharon McGowan_

The U.S. Court of Appeals for the 1^st Circuit has affirmed an award of over $160,000 in legal fees to four attorneys who successfully represented the Gay Officers Action League (GOAL) and several individual plaintiffs in their suit against the Commonwealth of Puerto Rico to strike down as unconstitutional a police department regulation (Regulation 29) that subjected officers who associated with homosexuals to official discipline. _Gay Officers Action League v. Commonwealth of Puerto Rico_, 2001 WL 391772 (April 23).

In 1995, the plaintiffs sued the Commonwealth for damages and equitable relief under 42 U.S.C. section 1983 for allegedly violating their constitutional rights by forbidding them from participating in an impromptu rally, subjecting them to excessive force, conducting an unlawful search of a gay bar and illegally videotaping a gay pride parade. A year later, GOAL amended its complaint to allege that Regulation 29 violated the plaintiffs' First Amendment rights. Although District Court Judge Hector Laffitte granted the Commonwealth's summary judgment motion concerning the claims related to the rally, the use of excessive force, the search and the videotaping, he entered a judgment declaring Regulation 29 unconstitutional and permanently enjoining the Commonwealth from punishing any police officer for associating with homosexuals.

The Commonwealth tried various ways to side step the district court's decision --- including motions to alter the judgment and vacate the injunction, and even attempts to rewrite Regulation 29 to call for disciplinary action against officers who "relate to or associate with persons of dubious reputation" (a group defined to include "anyone who engages in conduct that departs from the community's moral standards") -- all of which were rejected by the district court. When the Commonwealth elected not to appeal the district court's final judgment, Judge Laffitte ruled that the plaintiffs were prevailing parties under federal fee-shifting statutes (42 U.S.C. sec. 1988) and were entitled to $202,000 in attorneys fees and $13,787 in legal expenses. The award was based on evidence submitted by plaintiffs' counsel, which included time and expense records relating only to work performed on that portion of the lawsuit dealing with Regulation 29.

On appeal, the Commonwealth argued first and foremost that the plaintiffs were not "prevailing parties" under federal law because they only obtained equitable relief against the Commonwealth, and because Regulation 29 "was an anachronism" that the Puerto Rico Police Department never enforced and actually intended "to scrap" long before the plaintiffs filed their lawsuit. Calling the Commonwealth's argument "self-serving" and noting that "actions speak louder than words," the First Circuit, in an opinion by Chief Judge Selya, unanimously rejected the Commonwealth's position. Selya explained that although an award of equitable relief does not automatically confer prevailing party status on a plaintiff for purposes of fee-shifting under federal law, here "the court's declaration that Regulation 29 was unconstitutional clearly benefitted both the plaintiffs and the public as a whole. Writing off the plaintiffs' victory as de minimus would ignore that reality...A fee award therefore was due."

The Commonwealth also challenged the amount of the award, arguing among other things that the plaintiffs overstaffed the litigation. According to the Commonwealth, the constitutionality of Regulation 29 was "simple and straightforward" and one lawyer for the plaintiffs would have sufficed. The court of appeals concluded that the district court was in the best position to weigh the plaintiffs' staffing needs, and had not abused its discretion in ruling that it was reasonable for the plaintiffs to staff four attorneys to litigate the constitutionality of Regulation 29. This is particularly so, Judge Seyla noted, in light of the Commonwealth's tactics in litigating the issue before the district court. "[The Commonwealth] mounted a Stalingrad defense of Regulation 29, battling from rock to rock and tree to tree. After setting such a militant tone and forcing the plaintiffs to respond in kind, it seems disingenuous for the Commonwealth to castigate the plaintiffs for putting too many troops into the field," the court noted.

The 1^st Circuit concluded that the district court's ruling concerning the award of legal fees and expenses was for the most part "unimpungible," but nonetheless contained a miscalculation of approximately $40,000. Rather than remanding the case for further proceedings, and risking the possibility of generating additional litigation, the appellate court sua sponte modified the award to $163,100.86 and otherwise affirmed the district court's decision.

The four attorneys who represented the prevailing plaintiffs in the underlying lawsuit were Judith Berkan, Colleen Meenan and Lambda Legal Defense attorneys Suzanne Goldberg and Ruth Harlow. The decision is a reminder to plaintiff civil rights counsel to maintain meticulous time records, and a lesson to defendants not to presume that equitable relief does not come at a high financial cost. _Ian Chesir-Teran_

In the latest battle over whether Title VII, the federal gender discrimination statute, covers harassment based on sexual orientation, the U.S. Court of Appeals for the 9^th Circuit ruled on March 29 that a man who was physically and emotionally abused by homophobic coworkers has no recourse under that law. Ironically, the defendant was out of luck because he worked in an all male environment and therefore couldn't show -- by pointing to women who had not been harassed -- that gender was the motivating factor. _Rene v. MGM Grand Hotel_, 2001 WL 300595.

Medina Rene, an openly gay man, was employed by the MGM Grand Hotel in Las Vegas. His assignment: to act as a butler to high-profile guests on the hotel's 29th floor. All of the employees in that exclusive domain were male. Rene provided extensive evidence that for two years his supervisor, Tang Lam, and several of his co-workers engaged in actions that created a hostile work environment. Those actions included grabbing his crotch, poking his anus, forcing him to look at pictures of men having sex, whistling at him and blowing him kisses, and calling him "sweetheart" and "muneca" (Spanish for "doll"). He complained to superiors but received no help. In 1997, he filed a complaint in federal district court, alleging sexual harassment in violation of Title VII. MGM moved for summary judgment on the ground that any harassment Rene experienced was not due to his sex but his sexual orientation. The district court judge, Philip M. Pro, agreed with MGM. Rene appealed.

The Ninth Circuit, in an opinion by Judge Procter Hug (joined by Judge M. Margaret McKeown) affirmed. It based its decision largely on its reading of _Oncale v. Sundowner Offshore Servs., Inc._, 523 U.S. 75 (1988), in which the Supreme Court rejected the view, previously espoused by some federal courts, that Title VII only applied to mixed-gender harassment cases. Discrimination (including workplace harassment) violates Title VII, according to the _Oncale_ court, as long as it occurs "because of sex" -- regardless of the genders of those involved. In the male-male context, the methods of establishing such discrimination, according to the Court, include: 1) proof that the harasser was motivated by sexual desire; 2) proof that ". . . the harasser [was] motivated by general hostility to the presence of [men] in the workplace," or 3) "direct comparative evidence about how the allege harasser treated members of both sexes in a mixed-sex workplace."

Judge Hug, treating the Supreme Court's examples as a complete list, disposed of the three possibilities in turn. First, Rene cannot prove that his harassers were motivated by sexual desire, since, the court observed, they were evidencing distaste for homosexuality. (Judge Hug has, apparently, never read Freud.) Second, Rene cannot prove general hostility to men in the workplace, since many of the men on the floor were not harassed. Third -- and this is the catch 29 -- Rene can't show that he was treated differently from women on the 29th floor, because there were no women on the 29th floor.

The court then went on to quote Rene's repeated statements to investigators that he was harassed because he's gay; to Judge Hug, those statements prove that the harassment wasn't gender-based.

The third member of the panel, Judge Dorothy Nelson, dissented. Accusing the court of "gloss[ing] over" the similarities between _Rene_ and _Oncale_, she recounted the facts of the Supreme Court case, in which "an offshore oil platform [worker] was forcibly subjected to sex-related, humiliating actions against him" by male co-workers, "physically assaulted in a sexual manner," and threatened with rape. According to Judge Nelson, "The major difference between [the two cases] is that, unlike Oncale, Rene is openly gay . . . ." Although, she conceded, "gay-baiting insults and teasing are not actionable under Title VII, . . . a line is crossed when the abuse is physical and sexual." Here, according to Judge Nelson, the attack was motivated by defendants' feelings about Rene "as a man." Unlike the majority, Judge Nelson displayed an appreciation of the vast range of possible human interactions: "Rene's attackers may have targeted him for sexual pleasure, as an outlet for rage, as a means of affirming their own heterosexuality, or any combination of a myriad of factors, the determination of which falls far beyond the competence of any court. Enforcing Title VII in the mixed-gender context does not involve determining which pleasure center in the attackers' brains was stimulated by the attacks, nor should it in this case."

As for Rene's statement that he was abused because of his sexual orientation, Judge Nelson saw no reason to let that control the court's decision: "The subjective belief of the victim of sexual harassment that there is a non-sex-related reason for the harassment is immaterial."

At least one judge on the Ninth Circuit Court of Appeals has asked that the case be reheard en banc (which requires the votes of a majority of the court's active judges). _Fred A. Bernstein_

[Editor's Note: On April 23, the U.S. Supreme Court denied certiorari in _Spearman v. Ford Motor Co._, 231 F.3d 1080 (7^th Cir. 2000), a similar ruling by the U.S. Court of Appeals for the 7^th Circuit. The 7^th Circuit held that a man who suffered harassment because he was perceived by other employees as being gay was not protected by Title VII's ban on harassment because of sex. A.S.L.]

In _Paquet v. Pace_, 2001 WL 321078 (N.D.Ill., Mar. 30, 2001), U.S. District Judge Gottschall, granting the Defendant Transit Authority's Motion for Summary Judgment, allowed Plaintiff John Paquet to amend his complaint to include a potential claim of disparate treatment under 42 U.S.C. Sec. 1983 because of a denial of his application for a promotion. Paquet, a self-identified gay man, sued his employer, the Suburban Bus Division of the Regional Transportation Authority, and Joseph DiJohn, the former Executive Director and highest ranking employee of Pace, in his official capacity.

Paquet's complaint made two separate claims under section 1983: that defendants retaliated against him in violation of the First Amendment when he engaged in certain speech concerning homosexuality and homosexual rights, and that the defendants violated the Equal Protection Clause of the 14^th Amendment by intentionally discriminating against him based on his status as a homosexual.

Paquet had worked at Pace since 1985. From 1994 to mid-1997, he was the Section Manager of the New Technology Section, which focused on the development and implementation of the Transit Vehicle Management System (TVMS). After the TVMS project was canceled, Paquet's position was almost eliminated, but he was transferred instead to another department, Operations Planning. Subsequent to this move and to determining that Paquet's managerial position could not be maintained, Pace reduced Paquet's grade level from 9 to 8 because he was no longer supervising employees. At about the same time, Pace discovered suspicious e-mail messages sent only to a few Pace employees, including Paquet and his immediate superior, William Reynolds, that advocated directing disruptive behavior at Pace and its high-level employees. An investigation ensued and Paquet was instructed to meet with Pace's Director of Human Resources, Margaret Fugiel. This meeting was heated and Paquet received a written reprimand as a result.

Paquet believed that his homosexuality played a part in his demotion, the investigation of the e-mails, and his subsequent reprimand. In reference to his claim that he was subject to a hostile work environment, Paquet sent a memo requesting that Pace adopt a policy of providing insurance benefits to same-sex domestic partners in March 1997. However, there were at least some Pace employees who knew of his homosexuality even before this memo was sent. Moreover, during his tenure at Pace, Paquet testified that he heard derogatory jokes regarding homosexuals or the use of derogatory terms describing homosexuals about 6 or 12 times, but none were directed at Paquet.

Later, during a training session on sexual harassment, Paquet insisted that the instructor acknowledge that a local ordinance prohibited Pace from discriminating on the basis of sexual orientation. The instructor, unfamiliar with the ordinance, conferred with Pace's general counsel who told him not to discuss the issue because Paquet was, at that time, involved in litigation with Pace over the ordinance. The last factor that Paquet alleged contributed to a hostile work environment was that he was subjected to a monthly newsletter which carried a regular column by a doctor who was the head of an organization that actively advocates that homosexuals suffer from mental illness which could be cured as well as other equally offensive positions, but the newsletter never addressed any homosexual issues.

Regarding his 1^st Amendment claim, Paquet alleged that Pace retaliated against him for advocating extending benefits to homosexual domestic partners, for objecting to Pace's inclusion of a cap on benefits for AIDS-related illnesses, for advocating equal protection for homosexuals as a class of persons, and for objecting to the newsletter which contained an article written by a doctor with contrary views on homosexuality.

Judge Gottschall determined that section 1983 prohibits state actors from depriving persons of any rights, privileges, or immunities secure by the Constitution, including the First and Fourteenth Amendments, but that Title VII does not protect against discrimination "based solely upon a person's sexual preference or orientation," and that such a classification was subject only to a rational basis review under _Romer v. Evans_, 517 U.S. 620 (1996). The court held that even if it gave Paquet the benefit of the Title VII procedural framework used for cases where the plaintiff does not present direct evidence of discriminatory intent, he could not avoid summary judgment.

The court reasoned that Paquet complained of only a single adverse employment action, his demotion, which in and of itself was not enough to counterbalance Pace's explanation that it had transferred him instead of firing him outright when his department was eliminated. Paquet argued that there was another person at Pace who did not supervise other employees who was not demoted when Paquet was transferred. However, the court found that this was insufficient evidence to prove that Pace's reasons for the transfer and demotion were pretextual.

Next, in a prima facie case of hostile work environment discrimination, a plaintiff must show that: 1) she was subjected to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; 2) the harassment was based on sex; 3) the sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance in creating an intimidating, hostile or offensive working environment that affected seriously the psychological well-being of the plaintiff; and 4) there is a basis for employer liability. Moreover, the Seventh Circuit held that the court must consider all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with an employee's work performance.

Because Paquet only offered 6 or 12 incidents of derogatory comments and jokes which were not directed at him, his demotion and the fact that a contributor to Pace's monthly newsletter held beliefs that homosexuals were mentally ill, the court held that Paquet had proffered evidence so insufficient that no reasonable jury could find that Paquet was subject to a hostile work environment because of his sexual orientation.

As to a 1^st Amendment claim, the court found that a plaintiff must demonstrate that the speech touches upon matters of public concern and that the speech was a substantial or motivating factor in the defendant's actions. With regard to the second prong, a plaintiff cannot prevail unless he establishes that the defendant would not have taken the challenged action but for the constitutionally protected conduct. If a plaintiff meets the burden of establishing these two requirements, then the defendant may demonstrate, by a preponderance of the evidence, that it would have made the same decisions even if the plaintiff had not engaged in the protected speech.

Here, Paquet only alleged one action that gave the court pause in ruling against him, his removal from the training session. However, in light of Paquet's deposition in which he admitted that he not only wanted the instructor to discuss sexual orientation issues, but wanted him to admit that sexual orientation was a protected class under the local ordinance, and that the ordinance protected Pace employees, the court found that Paquet had insisted on disrupting the class in order to have the Pace instructor make admissions in Paquet's favor.

The Court further determined that under the balancing test propounded by the Supreme Court in _Pickering v. Board of Education_, 391 U.S. 563 (1968), a public employer does not violate an employee's 1^st Amendment rights by subjecting the employee to an adverse action if the speech inflicts an injury on the government's efficiency interests that outweighs the employee's interest in the speech. Looking at the significance of Paquet's disruption of the training session to further his own litigious ends, the court held that no reasonable juror could possibly have concluded that Paquet's interest in that manner of speech outweighed Pace's interest in continuing the training session in an orderly manner. _Leo Wong_

By comparison, a very cursory WWW search yields the 1997 court-martial of an Army Captain who was cleared of rape, indecent assault, and obstruction of justice charges but plead guilty to engaging in heterosexual consensual sodomy and adultery with a 20 year old trainee just three weeks after receiving training on avoiding sexual contact with subordinates. The Captain also plead to two counts of conduct unbecoming an officer and failing to obey a lawful general order, and was sentenced to dismissal, four months imprisonment, and two months probation. (AP) _Mark Major_

Connecticut's sex offender registration law (also known as the state's version of Megan's Law) violates due process because it fails to distinguish between non-dangerous and dangerous sex offenders and affords registrants no opportunity to be heard prior to inclusion in the database. _Doe v. Lee_, 132 F.Supp.2d 57 (U.S.Dist.Ct., D. Conn., March 31, 2001). Doe, a purportedly non-dangerous sex offender, brought due process and _ex post facto_ challenges to the statute.

Connecticut's sex offender registration law requires all persons convicted of sex offences to register with a Statewide database, available on the internet. The database lists all convicted sex offenders without reference to whether the individual is dangerous. In addition, the Connecticut legislature failed to include a mechanism in the law for non-dangerous sex offenders to challenge their inclusion in the database.

The plaintiff, Doe, claimed that the law violated his due process rights, because the implication of being registered in the database, which does not differentiate between dangerous and non-dangerous sex offenders, is that Doe is dangerous. Essentially, Doe claims that because of the undifferentiated nature of the database, non-dangerous sex offenders are stigmatized by their inclusion with dangerous sex offenders. Doe claimed that as a result, his legal status as a non-dangerous sex offender has been altered. Doe further claims that the registration database violates due process because the State provided no procedure to determine whether Doe is currently dangerous prior to including him in the database.

Doe further challenged the law, as applied to him, on ex post facto grounds, because the registration requirement was imposed after Doe committed his crime. Doe claimed that inclusion in the database was an additional punishment not available at the time of his original conviction.

Judge Chatigny, on cross-motions for summary judgment, agreed with Doe that Connecticut's Megan's Law violated his due process rights. The court found that by including Doe in a database with dangerous sex offenders, Doe's legal status was altered and therefore he satisfied the stigma-plus test necessary to establish a protected liberty interest under the Due Process Clause. In addition, the court found that the State failed to include a mechanism for non-dangerous sex offenders to be excluded from the database. Based on this, the court granted summary judgment to Doe on his Due Process claims.

However, the court granted summary judgment to the State on Doe's _ex post facto_ claims, finding that the law was not punitive in fact, and thus did not retroactively impose an additional punishment on Doe. _Todd V. Lamb_

Federal Appeals Court Finds Privacy Protection for Transsexual Prisoner

Civil Litigation Notes

prohibition law of many countries. The judgment can be accessed at http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2001/245.html . _David Buchanan_, Sydney, Australia.

AIDS Criminal Litigation Notes

On April 2, Hennepin County, Minnesota, District Judge Gary Larson imposed a 30-year prison sentence on Gabriel L. Pugsley, age 22, an HIV+ man who pled guilty to first-degree criminal sexual conduct and other charges. Last September, Pugsley abducted and raped a 4-year-old boy in Minneapolis. The boy has not tested positive for HIV but has been taking prophylactic medication and will continue to do so until the anniversary of the rape. His mother testified that the boy suffered from nightmares and has had difficulty adjusting to the heavy medication regime. _Star-Tribune_, April 3.

The Washington Court of Appeals ruled in _State of Washington v. Miller_, 2001 WL 333818 (April 6) (unpublished opinion) that a trial court had properly ordered that a man convicted of violating the controlled substances act by selling heroin must submit to HIV testing as part of his sentence. The man claimed on appeal that because he had not been convicted of using heroin, merely of selling it, there was no basis for ordering HIV testing. In an opinion by Justice Houghton, the court noted that the relevant statute, RCW 70.24.340, "authorizes a court to order an HIV test if it determines that the offender's crime was drug related and 'one associated with the use of hypodermic needles.' The statute does not require findings or even a determination on the record. . . It is evident that the delivery of heroin is a crime 'associated with the use of hypodermic needles.' In fact, Miller in his direct testimony, admitted using hypodermic needles and providing them for use in the consumption of heroin." Thus, even though he wasn't tried for using heroin, the trial court did not err in ordering the testing.

In a brief unpublished opinion, the Texas Court of Criminal Appeals in Houston rejected a claim by a defendant who pleaded no contest to several serious felony charges that "due to his physical condition and medical treatment, he was unable to comprehend the consequences of his plea." _Butler v. State of Texas_, 2001 WL 395376 (April 19). Mr. Butler was charged with aggravated sexual assault, aggravated robbery, and aggravated assault. His no contest plea earned him a combined sentence of 22 years in prison. In challenging his plea, he claimed that as a result of injuries from two auto accidents and his HIV+ status, he was taking 16 different medications at the time of his plea, and that the combined effects of all these medications had rendered him incapable of understanding the consequences of the plea. The court of appeals found that the trial court had complied with all procedural requirements for such matters, including getting both the defendant and his attorney to sign the written admonishments indicating their understanding of the plea. Under these circumstances, the court held, in the absence of any further evidence (none of which was submitted by the appellant), there was no basis to set aside the plea.

The U.S. Attorney's Office in New York City has charged Ives Health, an Oklahoma-based firm, with making false claims about a "breakthrough" AIDS medication and defrauding the Food and Drug Administration, in violation of federal conspiracy and wire fraud laws. The charges arose from Ives offering its new medication, called T-Factor, on a website beginning in February. The drug has never been approved by the FDA. _Journal Record_, April 11.

In an unpublished opinion, the Texas 14^th District Court of Appeals affirmed a life sentence for Paul Edward Broussard, who was convicted of sexually assaulting a young male relative for a period of 3 years with the victim testing HIV positive. Broussard had refused to submit to an HIV test. _Broussard v. State of Texas_, 2001 WL 422059 (April 26, 2001). On appeal, Broussard objected to one of the trial court's voir dire rulings, and alleged ineffective assistance of counsel, but the court's per curiam affirmance disposes of each of his objections by rejecting their factual bases.

Paul Leslie Hollingsworth accepted a plea bargain on charges of knowingly transmitting HIV by having unprotected sex with five different women. Hollingsworth pled to charges of aggravated assault with a deadly weapon. This was believed to be the first such case brought in Texas. Due to the advanced stage of Hollingsworth's own case of AIDS, he was given nine months' deferred adjudication, a form of probation. Prosecutors believe he wouldn't live long enough to face a jury, and so were willing to make the plea agreement. _Houston Chronicle_, April 15.

On March 27, the U.S. District Court for the Southern District of Alabama granted summary judgment to the defendants in _Bowens v. City of Atmore_, 2001 WL 395170, an action in which the survivors of Marilyn Bowens, an HIV+ substance abuser, sued prisoner authorities for wrongful death in connection with Bowens' jailhouse suicide. The opinion by Chief Judge Butler contains an extensive statement of facts about Bowens' history, as well as a detailed account of the last day of her life, during which she was in the early stages of serving a 120 day prison sentence. Butler found that qualified immunity protected the defendants, because although Bowen had a history of making suicidal statements when she was "coming down" from a cocaine high, the jailer had no way of knowing that she had ingested cocaine prior to her trial. She appeared quite normal up until shortly before she committed suicide, laughing and joking with jailers and her visitors, so the court found no basis for imputing liability to the jail officials.

An HIV+ man sentenced to 18 years in prison after pleading guilty to burglary of a residence lost his appeal of the sentence in _Mack v. State of Mississippi_, 2001 WL 410805 (Miss. Ct. App., April 24, 2001). The court found that Mack had not raised the issue of his HIV status before the trial court, and could not raise it for the first time on appeal. There is no extended discussion or analysis of this issue in the court's opinion.

The U.S. Court of Appeals for the 2^nd Circuit has affirmed a determination by District Judge Naomi Reice Buchwald that as of 1997 the right of privacy of a federal prisoner to preserve the confidentiality of his HIV status had not been sufficiently well-recognized to overcome a qualified immunity defense. _Gill v. DeFrank_, 2001 WL 388057 (April 16). Gill sued medical personnel and correctional officers at Woodbourne Correctional Facility, asserting among other claims a right of privacy action concerning unauthorized disclosure of his HIV-status to non-medical personnel. Without opining about whether such a ruling would apply to an incident occurring now, the court stated merely that it agreed with Judge Buchwald that the state was entitled to judgment as a matter of law. A.S.L.

AIDS Civil Litigation Notes

A panel of the U.S. Court of Appeals for the 2^nd Circuit decided that the City of New York's appeal of a decision holding that the Division of AIDS Services had failed in its legal duty to provide housing to homeless people living with AIDS was premature. _Henrietta D. v. Giuliani_, 2001 WL 343941 (April 9). District Judge Sterling Johnson issued his decision on September 18, 2000, finding that the Division had violated Title II of the Americans With Disabilities Act and Section 504 of the Rehabilitation Act. At the conclusion of his opinion, Judge Johnson appointed a U.S. magistrate to hold hearings to determine whether the City of New York was continuing to violate the pertinent statutes after the effective date of his order. The City promptly appealed, but the 2^nd Circuit panel noted that the City was still in the process of negotiating with the plaintiffs about how it would comply with the decision; such agreement was to be incorporated in an order to be signed by the Magistrate. Since none of that has been concluded yet, the court raised _sua sponte_ the issue of its own jurisdiction in the case and decided that the district court's decision is not yet "final" and thus not appealable. The decision below is reported at 119 F. Supp. 2d 181, 71 Soc. Sec. Rep. Serv. 458, 19 NDLR p. 86 (E.D.N.Y., Sept. 18, 2000).

The _National Law Journal_ (April 19) reported on the grant of summary judgment to the Red Cross in an unusual AIDS phobia case. Bernice Mantooth was notified that she had received a blood transfusion from a donor whose blood was mistakenly used; the donor should have been rejected because the donor had served in the Peace Corps in a country where the high prevalence of HIV resulted in all persons who lived in that country being placed on a deferral list. There is no evidence that the donor or Ms. Mantooth are HIV+. However, the strain of HIV circulating in that country is not detectable using screening tests in use in the U.S., so neither Ms. Mantooth nor the donor can be sure that they are not infected. Nonetheless, the Fulton Co., Georgia, Superior Court, applying state precedents, granted summary judgment in _Mantooth v. American National Red Cross_, No. 1999-CV-13088, finding that an AIDS phobia plaintiff must present evidence of actual exposure to HIV in order to survive summary judgment. The attorney for the Red Cross, Scott Hilsen, told the _National Law Journal_ that the plaintiff had made a $1 million settlement demand prior to the court's ruling on the motion.

Marsh's Sun Fresh grocery store in Westport, Missouri, settled an HIV discrimination suit by a former deli worker by offering $80,000 in back pay and damages, according to an April 11 announcement by the Equal Employment Opportunity Commission, which had filed suit on behalf of Timothy Ray Williams. The settlement was reached through mediation, and the defendant never admitted violating the ADA. As part of the settlement, the store will train managers and supervisors about applicable ADA requirements, and also agreed to train workers about which diseases can and cannot be spread through food handling. _Kansas City Star_, April 12. A.S.L.

AIDS Law & Society Notes

Whither the White House Office of National AIDS Policy? Although the Bush Administration promptly denied press reports that the Office had been disbanded, the _Washington Post_ reported late in March that there was nobody on the White House staff with responsibility for this Office, which consists of a website that directs callers to a telephone extension that nobody answers. Furthermore, the 35-member Presidential Advisory Council on HIV/AIDS, appointed by President Clinton, appeared to be in limbo as well. Chair Ron Dellums, a former Democratic Congressman, wrote to President Bush and Health and Human Services Secretary Tommy Thompson seeking clarification of the Council's status, but as of the end of March had received no reply. _Los Angeles Times_, March 31. Then the Bush Administration startled conservatives and the media by announcing the appointment of an openly-gay Republican from Wisconsin, Scott H. Evertz, to head the office. The appointment appeared to vindicate Bush's statement that he would appoint people who shared his positions on the issues, regardless of sexual orientation, as the appointee was reportedly a politically conservative Republican, whose only departures from the party's current orthodoxy are his support for the principals of non-discrimination on the basis of sexual orientation, sexually-explicit AIDS education, and needle exchange programs. Evertz has been a leader among the Log Cabin Republicans, a gay political club. He was part of a group of gay Republicans who met with Bush during the Presidential campaign. _New York Times_, April 9.

The US Department of Labor announced in the Federal Register on April 18 that it will make available $8.5 million in grants to non-profit organizations to develop global workplace education programs to combat the spread of HIV. 2001 Daily Labor Report No. 75 (April 18).

_American Political Network_ reported on-line on April 6 that the U.S. Centers for Disease Control and prevention is considering "loosening" guidelines covering "invasive procedures" that should not be performed by HIV+ health care workers. So far, the only incidents of transmission that have been at least partially verified all stem from one HIV+ dentist in Florida, prior to the issuance of current guidelines. There is, of course, controversy about allowing HIV+ health care workers to perform a wider range of patient-contact functions, some arguing that the lack of reported cases may be due to compliance with the guidelines! The proposed guidelines would shift the focus of attention away from categorical exclusions and toward promotion of universal precautions.

According to news reports, Massachusetts has become the first state to offer full health insurance to indigent persons with HIV infection in order to provide prophylactic treatment in hopes of avoiding progression to full-blown AIDS. In other states, insurance assistance programs requiring a disability determination don't kick in prior to an individual's development of AIDS symptoms. Massachusetts is betting that the new program, while initially more costly, will in the end prove both humane and efficient by forestalling the much greater costs of treating AIDS complications. _Worcester Telegram & Gazette_, _Providence Journal_, April 5. A.S.L.

AIDS International Notes

Late in April, U.N. Secretary General Kofi Annan announced that the world organization would launch a major effort to enlist the wealthier nations in supporting a major effort to fight the spread of HIV in the Third World. Annan proposed the establishment of a centralized fund that would unite disease-prevention efforts and aid in the dissemination of life-extending drugs, taking up the pharmaceutical companies on their new offers of cut-rate medications for poor countries. _Wall Street Journal_, April 25.

Predictably, South African President Thabo Mbeki's special panel of international scientists convened to determine whether HIV causes AIDS was unable to reach agreement after a year of deliberations. This is predictable because Mbeki appointed to the panel Peter Duesberg and David Rasnick, two of the leading dissidents from the consensus that otherwise prevails among most AIDS researchers. The only point upon which the panel reached agreement was on the need for further research an discussion. _The Guardian_, April 5. The lawsuit brought by a group of major international drug companies contesting any move by South Africa to circumvent patents on AIDS medications has been withdrawn, with the industry conceding the South African government's right to deal with the AIDS emergency in that nation by importing generic drugs from India or other places. The problem, however, was that even at the prices being charged for generics, there was doubt whether the government had the will or the resources to pay for the necessary drugs to make a dent in the overwhelming situation there. * * * Unable to leave well enough alone, however, President Mbeki then stated during a television broadcast that unlike various other South African officials he would not submit to an HIV test because it would send a message that he supports a particular scientific viewpoint concerning HIV and AIDS. _Los Angeles Times_, April 25.

AIDS activists in Hong Kong expressed concern about a new blood donor form being used by the Red Cross, that would require male blood donors to identify themselves as having engaged in homosexual activity. A spokesperson for a gay group argued that the form should ask whether people are having sex without condoms, not whether they are having gay sex. A spokesperson for the Red Cross defended the form by reference to what is being done in other countries, including the U.S., where sexually active gay men are excluded from being blood donors. _South China Morning Post_, April 20. A.S.L.

PUBLICATIONS NOTED & ANNOUNCEMENTS

MOVEMENT JOB ANNOUNCEMENTS

MANAGING ATTORNEY FOR PUBLIC EDUCATION: Lambda Legal Defense seeks creative, motivated attorney to fill a new position that will shape Lambda's civil rights messages and guide the education and outreach components of its program. This non-litigating attorney will work closely with the litigating lawyers and with the Communications Department, and will supervise Lambda's Outreach Associates. Responsibilities include crafting the message/educational "track" that accompanies Lambda cases, writing and ghostwriting educational pieces of all varieties, devising organizing tools, and conducting trainings. Applicants need excellent writing and speaking abilities, good judgment and creative ideas about how to advance change outside the courtroom, and excellent skills in working with others. Law degree necessary, but no particular legal experience or career path required. People of color and people with disabilities are especially encouraged to apply. Letter, resume, and writing sample to: Ruth Harlow, Lambda Legal Defense and Education Fund, 120 Wall Street, Suite 1500, ANY, ANY 10005. Check www.lambdalegal.org for details. * * * * STAFF ATTORNEY/WESTERN REGIONAL OFFICE: Lambda Legal Defense seeks an attorney in Los Angeles for groundbreaking HIV/gay rights work in its 10-state Western Region. Three or more years litigation experience; excellent writing/speaking skills required. Salary depending on experience; full benefits. People of color and people with disabilities are especially encouraged to apply. Letter, resume, and writing sample to: Ruth Harlow, Lambda Legal Defense and Education Fund,

120 Wall Street, Suite 1500, ANY, ANY 10005. * * * We are informed that Lambda is still accepting applications for staff attorney positions in other offices. Check www.lambdalegal.org for details.

EVENTS

The Lesbian and Gay Law Association Foundation of Greater New York and the Committee on Lesbians and Gays in the Law of the New York County Lawyers' Association ("NYCLA") cordially invite all LeGaL members and their guests to join the Lesbian, Gay, Bisexual and Transgender community at a Reception Honoring the Openly Lesbian and Gay Members of the New York Judiciary and Introducing the 2001 Hank Henry Judicial Intern. The reception will be held on Tuesday, June 5, 2001, from 5:30 p.m. to 7:30 p.m. at the New York County Lawyers' Association, located at 14 Vesey Street (between Broadway and Church Street) in Manhattan. This reception marks the first time that these courageous jurists will be honored as a group for their accomplishments in the legal profession and their ability to transcend barriers posed by sexual orientation bias. The celebration will also serve to introduce the recipient of the 2001 Hank Henry Judicial Internship. This internship, sponsored by the LeGaL Foundation, provides law students with the opportunity to work during the summer alongside openly lesbian and gay judges. If you would like to attend the reception, please RSVP to Thomas F. Hickey, Chair of NYCLA's Committee on Lesbians and Gays in the Law, at 212-217-2871 by May 29.

LESBIAN & GAY & RELATED LEGAL ISSUES:

Abramson, Leslie W., _Appearance of Impropriety: Deciding When a Judge's Impartiality "Might Reasonably be Questioned"_, 14 Georgetown J. Leg. Ethics 55 (Fall 2000).

Adler, Amy, _The Perverse Law of Child Pornography_, 101 Colum. L. Rev. 209 (March 2001).

Bell, Bernard W., _Filth, Filtering, and the First Amendment: Ruminations on Public Libraries' Use of Internet Filtering Software_, 53 Fed. Comm. L. J. 191 (March 2001).

Chasen, Jerry Simon, and Elizabeth F. Schwartz, _Estate and Gift Tax Planning for Nontraditional Families_, 15-FEB Prob. & Prop. 6 (Jan/Feb 2001).

Currah, Paisley & Shannon Minter, _Unprincipled Exclusions: The Struggle to Achieve Judicial and Legislative Equality for Transgender People_, 7 Wm. & Mary J. Women & L. 37 (Fall 2000).

Dent, George W., Jr., _The Defense of Traditional Marriage_, 15 J. of L. & Politics 581 (Fall 1999).

Ertman, Martha M., _Marriage as a Trade: Bridging the Private/Private Distinction_, 36 Harv. Civ. Rts.--Civ. Lib. L. Rev. 79 (Winter 2001).

Flynn, Taylor, _Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality_, 101 Colum. L. Rev. 392 (March 2001).

Frye, Phyllis Randolph, _The International Bill of Gender Rights vs. The Cider House rules: Transgenders Struggle with the Courts Over What Clothing They are Allowed to Wear on the Job, Which Restroom They Are Allowed to Use on the Job, Their Right to Marry, and the Very Definition of Their Sex_, 7 Wm. & Mary J. Women & L. 133 (Fall 2000).

Glennon, Lisa, Fitzpatrick v. Sterling Housing Association, Ltd._-- An Endorsement of the Functional Family?_, 14 Int'l J. L. Policy & Fam. 226 (Dec. 2000).

Harms, Brian C., _Redefining "Moral Turpitude": A Proposal to Congress_, 15 Georgetown Immigration L.J. 259 (Winter 2001).

Harvey, Colin, and Stephen Livingstone, _Protecting the Marginalized: The Role of the European Convention on Human Rights_, 51 N. Ireland Leg. Q. 445 (Autumn 2000).

Hassel, Diana, _The Use of Criminal Sodomy Laws in Civil Litigation_, 79 Tex. L. Rev. 813 (March 2001).

Ivezaj, George, _Child Pornography on the Internet: An Examination of the International Communities Proposed Solutions for a Global Problem_, 8 Mich. St. U. - DCL J. Int'l L. 819 (Fall 1999).

Jahnke, Kari, _Protecting Employees from Employees: Applying Title VII's Anti-Retaliation Provision to Coworker Harassment_, 19 L. & Inequality 101 (Winter 2001).

Juliano, Ann, and Stewart J. Schwab, _The Sweep of Sexual Harassment Cases_, 86 Cornell L. Rev. 548 (March 2001).

Keywood, Kirsty, _More than a Woman? Embodiment and Sexual Difference in Medical Law_, 8 Feminist Legal Studies 319 (2000).

Laabs, Audra Elizabeth, _Lesbian ART_, 19 L. & Inequality 65 (Winter 2001).

Lehman, Brian, _Why Title VII Should Prohibit All Workplace Sexual Harassment_, 12 Yale J. L. & Feminism 225 (2000).

Levi, Jennifer, _Paving the Road: A Charles Hamilton Houston Approach to Securing Trans Rights_, 7 Wm. & Mary J. Women & L. 5 (Fall 2000).

Liddy, Jane, _Article 8: The Pace of Change_, 51 N. Ireland Leg. Q. 397 (Autumn 2000) (special issue about Human Rights Law in Europe).

Munst, Agnes Senganata, _Lesbians' Contribution to the Autonomous Women's Movement in (West-) Germany, Exemplified by a State Capital City_, 23 Women's Studies Int'l Forum 601 (Sept/Oct 2000).

Pieterse, Marius, In loco parentis_: Third Party Parenting Rights in South Africa_, 2000 Stellenbosch L. Rev. 324.

Strasser, Mark, _Equal Protection at the Crossroads: On _Baker_, Common Benefits, and Facial Neutrality_, 42 Ariz. L. Rev. 935 (Winter 2000).

Varona, Anthony E., and Jeffrey Monks, _En/Gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation_, 7 Wm. & Mary J. Women & L. 67 (Fall 2000).

Wright, R. George, _Traces of Violence: Gadamer, Habermas, and the Hate Speech Problem_, 76 Chi-Kent L. Rev. 991 (2000) (part of Symposium on Philosophical Hermeneutics and Critical Legal Theory).

_Student Notes and Comments:_

Adjin-Tettey, Elizabeth, Baker v. Canada (Minister of Citizenship and Immigration), 12 Canadian J. of Women & L. 454 (2000).

Anderson, Thomas G., _Comment on the Report of the British Columbia Law Institute on Recognition of Spousal and Family Status_, 12 Canadian J. Women & L. 439 (2000).

Bell, Alessia, _Public and Private Child:_ Troxel v. Granville_ and the Constitutional Rights of Family Members_, 36 Harv. Civ. Rts.-Civ. Lib. L. Rev. 225 (Winter 2001).

Bell, Jodi L., _Prohibiting Adoption by Same-Sex Couples: Is It in the "Best Interest of the Child?" 49 Drake L. Rev. 345 (2001).

Coon, Laura L., _Employment Discrimination by Religious Institutions: Limiting the Sanctuary of the Constitutional Ministerial Exception to Religion-Based Employment Decisions_, 54 Vanderbilt L. Rev. 481 (March 2001).

Griffin, Emily V., _"Relations Stop Nowhere": ERISA Preemption of San Francisco's Domestic Partner Ordinance_, 89 Cal. L. Rev. 459 (March 2001).

Howell, Alison E., _Loki Surfs for Porn: An Analysis of the Discord the Internet May Cause in Obscenity Law_, 22 Comm/Ent 509 (Spring/Summer 2000).

Levinson, Jeffrey, _Don't Let Sleeping Lawyers Lie: Raising the Standard for Effective Assistance of Counsel_, 38 Am. Crim. L. Rev. 147 (Winter 2001).

Lin, Alvin C., _Sexual Orientation Antidiscrimination Laws and the Religious Liberty Protection Act: The Pitfalls of the Compelling State Interest Inquiry_, 89 Georgetown L. J. 719 (March 2001).

McCoy, Scott D., _The Homosexual-Advance Defense and Hate Crimes Statutes: Their Interaction and Conflict_, 22 Cardozo L. Rev. 629 (Jan. 2001).

Pena, Melissa J., _The Role of Appellate Courts in Domestic Violence Cases and the Prospect of a New Partner Abuse Cause of Action_, 20 Rev. of Litigation 503 (Spring 2001).

Thorp, Rondi, City of Erie v. Pap's A.M._: The First Amendment: Wounded in the War for Freedom of Expression_, 36 Gonzaga L. Rev. 183 (2000/2001).

Vogel, Jill S., _Between a (Schoolhouse) Rock and a Hard Place: Title IX Peer Harassment Liability After_ Davis v. Monroe County Board of Education, 37 Houston L. Rev. 1525 (Winter 2000).

Wethington, Jennifer L., _Constitutional Law -- Commerce Clause -- Violence Against Women Act's Civil Rights Remedy Exceeds Congress's Powers to Regulate Interstate Commerce._ United States v. Morrison, 120 S. Ct. 1740 (2000), 23 U. Ark. Little Rock L. Rev. 485 (Winter 2001).

Yamagami, Donald S., _Prosecuting Cyber-Pedophiles: How Can Intent Be Shown in a Virtual World in Light of the Fantasy Defense?_, 41 Santa Clara L. Rev. 547 (2001).

_Specially Noted:_

Volume 7, No. 1 of the William & Mary Journal of Women and the Law features a symposium titled "(De)Constructing Sex: Transgenderism, Intersexuality, Gender Identity and the Law." Individual articles are noted above.

The _New York Times Sunday Magazine_ of April 1 devoted a substantial article by Eyal Press to the case of _Pedreira v. Kentucky Baptist Home_, in which the ACLU is representing a lesbian social work who was discharged when her employer, most of whose income is derived from state funds, discovered that she was a lesbian. The employer claims a right to impose a religious test for employment, while the plaintiff argues that because the employer's revenue is derived overwhelmingly from the government, it is precluded from posing such a test. The article discusses the case from the perspective of issues raised by the Bush Administration's proposal to facilitate an increase of federal funding for "faith-based" social service agencies, the author questioning whether these federal funds will be allowed to be used in discriminatory ways by such organizations.

Vol. 9, No. 1 of the American University Journal of Gender, Social Policy & the Law includes the First Annual Peter Cicchino Awards for Outstanding Advocacy in the Public Interest Panel Discussion. Mr. Cicchino, an openly-gay professor at American University, participated in this panel discussion shortly before his death.

Gay attorney Michael Nava of San Francisco has published the last of his series of mystery novels focusing on openly-gay attorney Henry Rios. Titled _Rag and Bone_, the book has been favorably reviewed in several major newspapers, including the _New York Times_ Sunday Book Review. In an afterward to the novel, Nava reports that this will be his last mystery novel. One hopes that he will continue to write in a non-mystery vein.

AIDS & RELATED LEGAL ISSUES:

Bodensteiner, Ivan E., and Rosalie B. Levinson, _Litigating Age and Disability Claims Against State and Local Government Employers in the New "Federalism" Era_, 22 Berkeley J. of Emp. & Lab. L. 99 (2001).

Burris, Scott (ed.), _Deregulation of Hypodermic Needles and Syringes as a Public Health Measure: A Report on Emerging Policy and Law in the United States (American Bar Association AIDS Coordinating Committee, 2001).

Fernandez, M. Isabel et al., for the Prenatal Guidelines Evaluation Project, _Acceptance of HIV Testing During Prenatal Care_, 115 Public Health Reports No. 5, 448 (Sept/Oct 2000).

Gic, Judith Ann, and Robert E. McKnight, _HIV and AIDS_, 47 Med. Trial Tech. Q. 247 (2001).

Marcus, Allan M., _Interpreting Employee Benefits: The ADA and Insurance After a Decade of Litigation_, 43 For the Defense No. 2, 25 (Feb. 2001).

Mayss, Abla, _Drug-Testing on Seropositive Pregnant Women in the Developing World: Moral and Legal Implications_, 4 Med. L. Int'l 183 (2000).

Ravitch, Frank S., and Marsha B. Freeman, _The Americans With "Certain" Disabilities Act: Title I of the ADA and the Supreme Court's Result Oriented Jurisprudence_, 77 Denver U. L. Rev. 119 (1999).

Wojcik, Mark E., _Discrimination After Death_, 53 Okla. L. Rev. 389 (Fall 2000) (discriminatory practices of funeral homes with respect to services for people who died from AIDS).

Wong, Edward, _Migration and Health: Asian-Americans and AIDS_, 29 Migrationworld No. 1-2, 25 (2001).

_Student Notes & Comments:_

Bisordi, John, _"I Can't Work. Just Kidding, I Can.": The Effects That Applying for Disability Benefits Have on an ADA Claim_, 45 Villanova L. Rev. 627 (2000).

Heuvel, Douglas C., _Employment Discrimination - Americans With Disabilities Act - Ninth Circuit Holds That the Direct Threat Defense is Not Available When an Employee Poses a Threat to His Own Health or Safety - _Echazabal v. Chevron USA, Inc._, 226 F. 3d 1063 (9^th Cir. 2000)_, 54 SMU L. Rev. 447 (Winter 2001).

Tarwater, Jeremy R., _The Tuberculosis & HIV Debate in Immigration Law: Critical Flaws in United States Academic Anti-Exclusion Arguments_, 15 Georgetown Immigration L. J. 357 (Winter 2001).

Testerman, Andrew C., Sutton v. United Air Lines, Inc._: The Supreme Court Applies "Corrective" and "Mitigating" Common Sense to the ADA_, 77 Denver U. L. Rev. 165 (1999).

_Specially Noted:_

The Social Security Administration, in collaboration with the Department of Justice and the Equal Employment Opportunity Commission, has published _A Guide for People with Disabilities Seeking Employment_. This publication explains the legal rights under the Americans With Disabilities Act of people who are receiving Social Security disability benefits but seek to participate in the workplace. Copies can be obtained from the websites of all three agencies. The EEOC's website address is www.eeoc.gov.

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.

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