LESBIAN/GAY LAW NOTES

ISSN 8755-9021 September 2000

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

Contributing Writers: Elaine Chapnik, Esq., New York City; Ian Chesir-Teran, Esq., New York City; Steven Kolodny, Esq., New York City; Mark Major, Esq., New Jersey; K. Jacob Ruppert, Esq., Queens, New York; Daniel R Schaffer, New York City; Robert Wintemute, Esq., King's College, London, England; Leo L. Wong (NYLS '00).

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

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

NINTH CIRCUIT AWARDS ASYLUM TO GAY MEXICAN; FINDS SEXUALITY IMMUTABLE

Producing an opinion that marks a historic breakthrough in U.S. asylum law as it relates to gay people, a unanimous panel of the U.S. Court of Appeals for the 9^th Circuit ruled on Aug. 24 that a gay Mexican man with a female sexual identity who was subjected to persecution in his home country should be granted asylum as a refugee in the United States. _Hernandez-Montiel v. Immigration and Naturalization Service_, 2000 WL 1199531. The opinion for the panel by Circuit Judge A. Wallace Tashima held (for the first time by a circuit court of appeals) that sexual orientation is an immutable characteristic, citing an extraordinary range of academic and theoretical writing for this proposition, and also that sexual identity is an immutable characteristic, thus supporting the conclusion that gay men with a female sexual identity constitute a "particular social group" within the meaning of asylum law.

According to Tashima's opinion, both the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) found Hernandez-Montiel to be a credible witness, and that he had been subjected to persecution in the past (including being assaulted and raped by policemen and seriously wounded by a ban of young "macho" toughs after being expelled from his home by his family) and would likely be persecuted in the future if forced to return to Mexico. However, both the IJ and the BIA concluded that he was not a member of a particular social group that was subjected to persecution as such, characterizing the group to which he belongs as "homosexual males who wish to dress as a woman," and finding that the desire to dress as a woman is not an "immutable characteristic."

The court found that the IJ and the BIA had mischaracterized Hernandez-Montiel, concluding that having a female sexual identity is an immutable characteristic and is different from a mere preference regarding how to dress. The court held that a particular social group is "one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it."

Wrote Tashima, "Sexual orientation and sexual identity are immutable; they are so fundamental to one's identity that a person should not be required to abandon them. Many social and behavioral scientists 'generally believe that sexual orientation is set in place at an early age.' The American Psychological Association has condemned as unethical the attempted 'conversion' of gays and lesbians. Further, the American Psychiatric Association and the American Psychological Association have removed 'homosexuality' from their lists of mental disorders. Sexual identity is inherent to one's very identity as a person. Sexual identity goes beyond sexual conduct and manifests itself outwardly, often through dress and appearance." (Removed from this series of sentences are intervening citations of books and articles as documentation.)

Tashima also noted that in 1990, the BIA had ruled in the _Toboso-Alfonso_ case (20 I & N Dec. 819), that "sexual orientation can be the basis for establishing a 'particular social group' for asylum purposes." The problem the BIA had in this case was that the applicant's evidence did not show that gay men in general were subjected to persecution in Mexico; his evidence focused on the experience of himself as a gay man with a female sexual identity, a subgroup of gay men, and the BIA found that subgroup to be defined by a dress preference, not by an immutable characteristic. The court disagreed with BIA, relying heavily on the expert testimony offered at the immigration hearing by San Diego State University Professor Thomas M. Davies, Jr., an acknowledged expert on Latin American history and culture. Davies vividly described the travails suffered by gay men with female sexual identities in Latin American society, and also provided detailed testimony about the distinctive sexual and social identity of this group, which the court found persuasive in reviewing the hearing record. Wrote Tashima, "Professor Davies did not testify that homosexual males are persecuted simply because they may dress as females or because they engage in homosexual acts. Rather, gay men with female sexual identities are singled out for persecution because they are perceived to assume the stereotypical 'female,' i.e., passive, role in gay relationships. Gay men with female sexual identities outwardly manifest their identities through characteristics traditionally associated with women, such as feminine dress, long hair and fingernails. Gay men with female sexual identities in Mexico are a 'small, readily identifiable group.' Their female sexual identities unite this group of gay men, and their sexual identities are so fundamental to their human identities that they should not be required to change them. We therefore conclude as a matter of law that the 'particular social group' in this case is comprised of gay men with female sexual identities in Mexico."

Having so concluded, the court found that the hearing record fully supported Hernandez-Montiel's contention that he is a member of this group, and that the group is targeted for severe persecution within Mexican society. "Professor Davies testified that gay men with female sexual identities are recognized in Mexico as a distinct and readily identifiable group and are persecuted for their membership in that group. He testified that the police attack and even rape men with female sexual identities." Tashima went on to discuss rape is a method of persecution, and severely criticized the BIA for its handling of this aspect of the case, finding that the BIA apparently sought to blame the victim, having stated that Hernandez-Montiel's "mistreatment arose from his conduct. . . thus the rape by the policemen, and the attack by a mob of gay bashers are not necessarily persecution. . ."

It appears that the BIA was referring to his manner of dress and presentation as provocative misconduct, but Tashima found this to be pretty outrageous, writing: "The 'you asked for it' excuse for rape is offensive to this court and has been discounted by courts and commentators alike." Tashima concluded that Hernandez-Montiel had established past persecution, thus raising a presumption that he would be persecuted in the future if returned to Mexico, and that the INS had presented no evidence to rebut this presumption. Tashima was also scornful about the BIA's characterization of Hernandez-Montiel as dressing like a "male prostitute," finding there was no record testimony on this subject at all.

Thus, the court concluded that Hernandez-Montiel is entitled to withholding of deportation and a grant of asylum status, allowing him to remain in the U.S., having concluded that the BIA's decision "is fatally flawed as a matter of law and is not supported by substantial evidence."

In a comment that was widely quoted in the general press, Tashima wrote: " This case is about sexual identity, not fashion. Geovanni is not simply a transvestite 'who dresses in clothing of the opposite sex for psychological reasons.' American Heritage Dictionary 1289 (2d Coll. Ed.) (1985). Rather, Geovanni manifests his sexual orientation by adopting gendered traits characteristically associated with women."

Judge Tashima was appointed to the 9^th Circuit by President Clinton. The other members of the panel were Melvin Brunetti, appointed by President Reagan, and District Judge William Schwarzer, sitting by designation, appointed by President Ford, so this was not some far-out, left-wing panel, but actually a cross-section of ideological representation on the circuit. (Judge Brunetti, apparently uncomfortable with some of the wide-ranging dicta in Judge Tashima's opinion, concurred in the result with a separate opinion of one paragraph's length, merely stating his agreement that Prof. Davies' evidence "supports the legal conclusion that in Mexico, gay men who have female sexual identities constitute a particular social group for asylum purposes" and that the testimony by both Hernandez-Montiel and Davies established the other elements necessary to support the asylum and withholding of deportation claims.

Hernandez-Montiel is represented pro bono by Robert S. Gerber of Sheppard, Mullin, Richter & Hampton, a San Diego law firm, with amicus assistance from Lambda Legal Defense & Education Fund, the National Center for Lesbian Rights, and the ACLU Lesbian and Gay Rights Project, as well as the International Lesbian and Gay Human Rights Commission. A.S.L.

LESBIAN/GAY LEGAL NEWS

Louisiana Supreme Court Rejects Privacy Challenge to Sodomy Law

A 5-2 of the Louisiana Supreme Court ruled July 6 that the state's law criminalizing "crime against nature" as a felony does not violate the right of privacy under the Louisiana constitution, Article I, section 5. _State of Louisiana v. Smith_, 2000 WL 1036302 . The opinion by Justice Chet Traylor, which reversed a ruling by the state's court of appeals, makes the extraordinary argument that because there was no evidence that the general public which ratified the most recent version of the Louisiana constitution in 1974 intended to repeal the state's sodomy law when they added a privacy provision, that provision cannot be used to invalidate the sodomy law. In effect, then, the court's opinion holds that new constitutional provisions, to the extent they restrict the power of the state legislature, only restrict it from passing new laws, and not from continuing old laws in effect, unless the constitutional provision was specifically adopted to invalidate the existing laws.

The case arose from the prosecution of Mitchell Smith, who was charged with rape by a woman whom he "picked up" in a bar and brought to a motel to have sex. The woman, not named in the court's opinion (which preserves the tradition of treating victims of sexual assault anonymously), testified that she passed out at the motel, but awoke to find Smith undressing her. She claimed that she cried out "rape" but was unable to move, and that Smith forced her to have vaginal and anal intercourse. Smith, on the other hand, testified that the only sexual contact he had with the victim was oral sex, which was consensual. After she became ill, Smith drove her to her home. The next day, she went to the police and swore a sexual assault charge against Smith.

Smith waived his right to a jury trial. The trial judge found him to be a more credible witness than the alleged victim, and decided that the only sex that occurred was consensual. Nonetheless, consensual oral sex between adults in private in Louisiana is a felony, so the trial judge sentenced Smith to three years in prison, then suspended the sentence and imposed two years of probation. Smith appealed to the Louisiana 4^th Circuit appeals court, which reversed his conviction, finding that the Louisiana constitution's express protection of an individual right of privacy made it improper to apply the state's sodomy law to non-commercial sexual conduct between consenting adults in private.

Justice Traylor provided a detailed history of the criminalization of sodomy in Louisiana, dating back to 1805, when the territory was purchased by the U.S. from France, to show that such a crime was very well-established when the present constitutional privacy provision was enacted in 1974. "A constitutional right to privacy obviously cannot include the right to engage in private acts which were condemned as criminal, either by statute or case law interpretation thereof, at the very time the Louisiana Constitution was ratified," wrote Traylor. "No reasonable Louisiana citizen would consider that the result of voting to ratify a general constitutional guarantee of 'liberty' or 'privacy' would be to divest that citizen's elected legislators of the right to continue the specific statutory proscription against sodomy or any other criminal act. To the contrary, any reasonable citizen would believe that he or she thereby was retaining the liberty to make such determinations through elected legislators. There is no evidence that the people adopting the Louisiana Constitution at referendum intended to create a constitutional right to engage in oral or anal sex."

Driving his point home ad infinitum, Traylor asserted that "any claim that private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable," citing _Bowers v. Hardwick_, 478 U.S. 186 (1986), which rejected a federal privacy challenge to Georgia's sodomy law. Traylor also contended that if particular conduct was truly consensual, it would be "impractical to enforce the statute against the participants," since they would have both participated in illegal acts and "there would be no victim to file charges and institute a prosecution." Thus, he implicitly cast doubt on the veracity of the trial judge, who found the conduct in the case to be consensual.

Traylor's contention relies upon a thoroughly discredited method of constitutional interpretation. Under this approach, the U.S. Supreme Court's seminal decision in _Brown v. Board of Education_ (1954), which declared racial segregation in schools unconstitutional under the Equal Protection Clause, would be invalid because the same federal legislators who framed and recommended the Fourteenth Amendment to the states also maintained a segregated public school system in the District of Columbia, and thus could not be said to have intended to outlaw segregation when they guaranteed equal protection to all residents. Traylor's theory is, of course, popular with constitutional law "originalists" who are severely critical of the reasoning in _Brown_.

Seeking to find some additional philosophical grounding for the court's opinion, Traylor stated that "commission of what the legislature determines as an immoral act, even if consensual and private, is an injury against society itself." Then, after quoting from the _Hardwick_ decision Justice Byron White's witticism that the courts "will be very busy indeed [if] essentially moral choices [by legislators] are to be invalidated under the Due Process Clause," Traylor made a separation of powers argument, in effect holding that if members of the public want to get rid of the Louisiana sodomy law, they will have to go the legislature to get it repealed, because it is not proper for courts to invalidate popularly enacted criminal statutes.

Two members of the court dissented. Justice Harry Lemmon and Chief Justice Pascal Calogero, Jr., each contended that the sodomy law violates the state constitution's privacy provision.

Justice Lemmon wrote, "Whether or not one agrees with the moral or religious views of heterosexual oral sex held by the legislators who voted to enact Section 89A is irrelevant to the constitutional analysis. The critical issue is whether those legislators can constitutionally impose those views on a citizen whose non-public conduct, in his own home with a person capable of consenting and without force, coercion or intimidation, does not involve use of contraband and does not cause injury to any other person or to the community. In other words, can the Legislature interfere with an individual's right to be left alone in the security of his or her home, as long as the person is not interfering with the rights of other individuals or of the public in general?"

Lemmon concluded that the "only apparent purpose of the prohibition is to dictate the type of sex that is acceptable to legislators. . . this purpose does not justify an intrusion . . . into the constitutionally guaranteed security of one's home."

Chief Justice Calogero, after observing that Louisiana had specifically adopted a broader right of privacy in its constitution than the federal right involved in _Hardwick_, asserted "that the sweeping nature of the statute, in its prohibition of consensual, private, non-commercial acts of sexual intimacy, invades that area of protected privacy guaranteed by Article I, Section 5 of our state constitution. . . On the record before this Court, the State has advanced no argument, other than citing _Bowers v. Hardwick_, which spoke only of rights vis a vis the federal constitution, and presented no evidence tending to demonstrate that there is a compelling state interest involved, or that [the statute] is a narrowly tailored legislative solution to a legitimate state problem. I am of the opinion that the government has no legitimate interest or compelling reasons for regulating, through criminal statutes, adult, private, non-commercial, consensual acts of sexual intimacy."

Calogero rejected Traylor's assertion that the privacy clause in the state constitution could not be used to invalidate a pre-existing criminal statute, arguing that "it is of no moment that there was no express mention, at the constitutional debates, of a guarantee to engage in certain sexual acts."

The court had consolidated this case for argument with three other cases in which prostitutes were challenging their sentences for engaging in oral sex with their customers. Under Louisiana law, the crime of prostitution involving vaginal intercourse is a misdemeanor, with a relatively short prison sentence and/or a light fine, but if oral sex is involved, the prostitutes can be charged with sodomy, a serious felony. They claimed that this was discriminatory, and Chief Justice Calogero agreed, but the rest of the court did not, voting 6-1 to uphold the differential penalties.

Technically, the struggle to get the courts to strike down the Louisiana sodomy law is not over, however. _State v. Smith_ was one of two cases attacking the statute from slightly different angles. The other, _Louisiana Electorate of Gays and Lesbians, Inc. v. State of Louisiana_, is a test case brought by a Louisiana gay rights organization, which raises equality arguments as well as privacy arguments. A New Orleans trial judge has already declared the sodomy law unconstitutional in _Louisiana Electorate_, but its appeal was held pending the state supreme court's disposition of Smith's case. Now the second case can go forward. But this 5-2 vote does not bode well for a successful result, especially as the trial judge's decision was rendered in light of the 4^th Circuit state court of appeals' decision invalidating the sodomy law in _Smith_. Of course, if the plaintiffs in _Louisiana Electorate_ can make a credible equal protection argument based on a constitutional provision that predates the modern version of the Louisiana sodomy law, they might escape the perverse constitutional logic of Justice Traylor's opinion in _Smith_. A.S.L.

2^nd Circuit Rejects Anti-Gay Harassment Case Under Title VII

Dwayne Simonton, a former postal worker who was subjected to such severe anti-gay harassment on the job that he suffered a heart attack and had to quit, won the sympathy but not the legal assistance of the U.S. Court of Appeals for the 2^nd Circuit, which ruled on Aug. 22 that anti-gay harassment, as such, does not violate Title VII's ban on sex discrimination in the workplace, thus affirming dismissal of the complaint by the district court. _Simonton v. Runyon_, 2000 WL 1190195. Unfortunately, it appears from the court's opinion that Simonton's counsel did not plead an alternative constitutional count, an approach that has proved successful in other cases in the same judicial district. The court's ruling belatedly places the 2^nd Circuit in accord with the conclusions of federal appeals courts in many other circuits, dating back to the 1970's, that Title VII's ban on sex discrimination cannot be stretched by interpretation to include discrimination on the basis of sexual orientation. However, Judge John M. Walker, Jr.'s opinion for the court does suggest ways in which lesbian or gay employees subjected to harassment might be covered under Title VII.

Simonton worked for the Postal Service for about 12 years, receiving satisfactory to excellent evaluations from his superiors, but his co-workers, having discovered his sexual orientation, basically drove him from the workplace. "For the sake of decency and judicial propriety, we hesitate before reciting in detail the incidents of Simonton's abuse," wrote Walker. "Nonetheless, we think it is important both to acknowledge the appalling persecution Simonton allegedly endured and to identify the precise nature of the abuse so as to distinguish this case from future cases as they arise. We therefore relate some, but not all, of the alleged harassment that forms the basis for this suit."

"Simonton's sexual orientation was known to his co-workers who repeatedly assaulted him with such comments as 'go fuck yourself, fag,' 'suck my dick,' and 'so you like it up the ass?' Notes were placed on the wall in the employees' bathroom with Simonton's name and the name of celebrities who had died of AIDS. Pornographic photographs were taped to his work area, male dolls were placed in his vehicle, and copies of Playgirl magazine were sent to his home. Pictures of an erect penis were posted in his work place, as were posters stating that Simonton suffered from mental illness as a result of 'bung hole disorder.' There were repeated statements that Simonton was a 'fucking faggot.'"

After describing this conduct as "morally reprehensible whenever and in whatever context it occurs, particularly in the modern workplace," Walker concluded, in line with the recent decision by the First Circuit in _Higgins v. New Balance Athletic Shoe, Inc._, 194 F.3d 252 (1999), that harassment on account of sexual orientation is just not covered by Title VII.

Simonton had tried to argue that his case was like that of Joe Oncale, the oil-rig worker who brought sexual harassment charges based on the verbal and physical assaults of his co-workers, who subjected him to a mock rape with a bar of soap in the shower, among other homophobic antics. In that case, _Oncale v. Sundowner Offshore Services, Inc._, 523 U.S. 75 (1998), the court of appeals had dismissed the Title VII complaint on the ground that same-sex harassment was never actionable under Title VII. The Supreme Court unanimously reversed, opining that the genders of the harasser and harassee were irrelevant; the issue is whether the victim is targeted because of his or her sex.

In this case, wrote Walker, "Simonton has alleged that he was discriminated against not because he was a man, but because of his sexual orientation. Such a claim remains non-cognizable under Title VII."

In a separate section of the decision, where Walker was writing only for himself and one other judge (the third judge declining to join in the dispensation of "dicta" on this issue), the opinion suggests that lesbian or gay employees suffering workplace harassment could invoke Title VII in two kinds of cases: first, where they could allege facts suggesting that the harassment they suffered was because of their sex (i.e., in a same-sex case, there might be an allegation that the plaintiff was the victim of a gay supervisor soliciting unwanted sexual favors); second, where they could allege facts suggesting that they were targeted due to their gender non-conforming behavior, citing to _Price Waterhouse v. Hopkins_, 490 U.S. 228 (1989), in which the Supreme Court approved the argument that an employer violates Title VII by discriminating against an employee for failure to conform to stereotypical behavior for the employee's gender.

As to the latter, Walker wrote, "The same theory of sexual stereotyping could apply here. Simonton argues that the harassment he endured was based on his failure to conform to gender norms, regardless of his sexual orientation. The Court in _Price Waterhouse_ implied that a suit alleging harassment or disparate treatment based on nonconformity with sexual stereotypes is cognizable under Title VII as discrimination because of sex. This would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine. But it would plainly afford relief for discrimination based upon sexual stereotypes. We do not reach the merits of this issue, however, as Simonton has failed to plead sufficient facts for our consideration of the issue. . . We do not have sufficient allegations before us to decide Simonton's claims based on stereotyping because we have no basis in the record to surmise that Simonton behaved in a stereotypically feminine manner and that the harassment he endured was, in fact, based on his non-conformity with gender norms instead of his sexual orientation."

As noted above, Simonton might have fared better had he asserted an equal protection claim against the Postal Service, as an employee of a government corporation. Public employees within the Eastern District of New York have twice won substantial verdicts asserting such claims against their employers. See _Quinn v. Nassau County_, 53 F.Supp. 2d 347 (U.S.Dist.Ct. E.D.N.Y.,1999); 75 F. Supp. 2d 74 (U.S.Dist.Ct., E.D.N.Y.1999); _Manning v. Nassau County_ (Jury verdict rendered July 18 for $1.5 million, as reported in the _NY Times_ on July 19).

Simonton is represented by Frederick Ostrove of Leeds & Morelli, a law firm in Carle Place, N.Y. A.S.L.

Federal Magistrate Rules Title IX Applies to Anti-Gay Student-on-Student Harassment

In an important ruling of first impression, a federal magistrate has refused to dismiss a Title IX claim against a school district brought by an 8th-grade student who claims to have been subjected to harassment by other students due to his perceived sexual orientation. The July 24 ruling by Magistrate James (N.D.Calif.) in _Ray v. Antioch Unified School District_, 2000 WL 1048514, may be the first opinion to apply the federal statute prohibiting sex discrimination by educational institutions that receive federal funds to a homophobic harassment case.

During January and February 1999, young Daniel Ray was subjected by classmates to escalating harassment, including taunting, threats and insults, culminating in a physical attack by fellow student Jonathon Carr that caused a concussion, hearing impairment in one ear, severe and permanent headaches and severe psychological injury, according to the complaint filed on Ray's behalf by his mother. The inspiration for these attacks appeared to stem from the students' reactions to Ray's mother, a preoperative female-to-male transsexual; they apparently perceived Ray to be gay as a result of his mother's appearance. Ray complained to school authorities, but alleges they took no steps to protect him as the harassment escalated.

Ray sued the school district under Title IX, and Jonathon Carr and his parents under state tort law. In this opinion, Magistrate James was addressing the school district's motion to dismiss the Title IX claim, based on the argument that Title IX does not apply to anti-gay harassment. In a recent decision, _Davis v. Monroe County Board of Education_, 526 U.S. 629 (1999), the Supreme Court held that Title IX was available to redress claims of student-on-student sexual harassment, when it was shown that school authorities were deliberately indifferent to sexual harassment of which they had actual knowledge that was so severe and pervasive that it could be said to deprive the victim of access to the educational opportunities and benefits provided by the school.

James produced a methodical opinion that embraces an expansive notion of what constitutes "sex discrimination" under Title IX. Finding no direct precedents, James looked to case law under Title VII of the Civil Rights Act of 1964, in cases involving sexual harassment in the workplace, and noted, as a threshold issue, that the Supreme Court ruled in _Oncale v. Sundowner Offshore Services, Inc._, 523 U.S. 75 (1998), that same-sex harassment would be covered under Title VII, provided the plaintiff proved that he or she was subjected to such harassment because of his or her sex. In subsequent cases, none of which James discusses in the opinion, the federal circuits have been split about how this might apply to harassment motivated by homophobia. Some have accepted the theory that homophobia responds to perceived non-conformity with stereotypical gender roles, and is thus a form of sexism, while others have sharply distinguished between anti-gay as distinguished from anti-male or anti-female motivation, finding Title VII applicable only to the later.

Magistrate James, without delving into this theoretical dispute, found this to be a sex discrimination case. "Accepting Plaintiff's allegations as true, Plaintiff was targeted by his classmates due to his perceived sexual status as a homosexual, and was harassed based on these perceptions. Thus, although Plaintiff's complaint makes no specific characterization of the harassing conduct as 'sexual' in nature, it is reasonable to infer that the basis of the attacks was a perceived belief about Plaintiff's sexuality, i.e., that Plaintiff was harassed on the basis of sex."

James also assertedly found "no difference" between sexual harassment in which "a female student is subject to unwelcome sexual comments and advances due to her harasser's perception that she is a sexual object, and the instance in which a male student is insulted and abused due to his harasser's perception that he is a homosexual, and therefor a subject of prey. In both instances, the conduct is a heinous response to the harasser's perception of the victim's sexuality, and is not distinguishable to this Court."

Having surmounted the theoretical hurdle, James easily found that Ray's allegations sufficed to meet the requirements of _Davis_, and rejected the school district's motion. It would be interesting to see whether Magistrate James's enlightened and sophisticated analysis of the sex discrimination issue would stand up on appeal, but perhaps having lost this first round the school district will be shamed or frightened into offering an adequate settlement to Ray to get rid of the case, leaving Ray to pursue tort remedies against the Carrs. While a magistrate decision has little standing as a precedent, it could prove quite useful to parent and student groups agitating around the country for school boards to get serious about acknowledging the harassment problems experienced by students perceived by their peers to be gay, and taking responsibility for addressing those problems. Coming on top of the 7th Circuit's prior decision in _Nabozny_, this case, the first to implicitly endorse the Department of Education's expansive reading of Title IX (albeit without mentioning the Department's pronouncements on this issue), could send a strong message to school administrators. A.S.L.

Boston Probate Court Finds The Child Has Two Mothers And Orders Entry on Birth Certificate; Colorado Health Department Tries to Bring the Same Issue to State Supreme Court

In an apparent case of first impression for Massachusetts, Suffolk County Probate and Family Court Justice Nancy M. Gould ordered Beth Israel Deaconess Medical Center, Inc., to record both members of a lesbian couple as "mothers" on a birth certificate for their child, conceived through in vitro fertilization, where one member of the couple donated the eggs used for the process, and the other carried the child through pregnancy and gave birth to the child. _Knoll & Finn v. Beth Israel Deaconess Medical Center, Inc._, Docket No. 00W-1343 (June 28, 2000). Just a few months later, Colorado's Health Department, rebuffed by the state's court of appeals in an unpublished opinion, is trying to bring the same issue to that state's Supreme Court after several trial judges authorized birth certificates naming two mothers for children conceived through donor insemination by lesbian couples.

Mary Jane Knoll and Christine Finn, a lesbian couple, wanted to have a child together. They tried various fertilization techniques involving donated sperm in an attempt for Christine to become pregnant, but none were successful. Finally, they decided to use in vitro fertilization, with Mary Jane donating the eggs and the fertilized eggs to be implanted in Christine, and this technique succeeded. The sperm was obtained from a California sperm bank, under a contract governed by a California statute providing that the sperm donor would have no parental rights and would be totally anonymous. Their child was born on June 23, 2000, but anticipating the birth, they had filed an action in the Probate Court on June 8 to ensure that they would both be named as parents on the child's birth certificate. (The hospital, whose responsibility it is under Massachusetts law to complete and file the birth certificate, did not actually oppose their request for this to be done, but agreed, as a friendly defendant, to do whatever the Probate Court decided was appropriate.)

Justice Gould noted that there was a California precedent supporting the request, and found the approach taken in the California case to be persuasive. In the California case, _L.S. and L.M._, San Francisco Superior Court Judge Donna Hitchens (a founder of the organization now known as the National Center for Lesbian Rights) had ordered that both mothers be recorded on the birth certificate in virtually identical circumstances, with one member of the couple donating the eggs and the other serving as gestational mother. Judge Hitchens relied in that 1999 order on recent California precedents involving alternative insemination techniques under which courts ruled that the intent of parties would determine the legal relationship between them and the resulting child. Justice Gould found that rationale persuasive in this case.

"Where the plaintiffs are both connected to the child by biology and through birth, and where both have intentionally pursued this avenue in order to bring a child into their lives, both should be determined to be the legal parents of the child," she wrote. "Each party intended that the other have equal parental rights, and each party desires to be the legal parent of their child and to assume all of the responsibilities, financial and otherwise, of raising their child. The child will benefit from the love, affection and care of two dedicated parents, and the parents will enjoy the benefits of a parental relationship. The best interests of the child are also furthered because each parent is financially responsible for the child, and in the event the plaintiffs separate, the custodial parent will be entitled to support from the other. For all of these reasons, the court finds that the best interests of the child are served by declaring that both Chris and MJ are the child's legal parents."

Justice Gould also found that nothing in Massachusetts statutes stood as a barrier to this result. The Massachusetts Supreme Court approved a second-parent adoption in 1993, in _Adoption of Tammy_, 416 Mass. 205, so the concept of a child having two parents of the same sex is already established in Massachusetts law. Although the statute governing birth certificates, if strictly construed, would appear to require that a child have only one parent of each sex, Justice Gould found that the possibility of plurals is not ruled out by the use of singular language. Furthermore, no concern need be given here to the possible rights of the father, since the sperm donor under California law would have no such rights, and Justice Gould found that California law to be applicable in this case.

Knoll and Finn are represented in this matter by Cambridge attorney Joyce Kauffman, a _Law Notes_ reader whom we thank for sending us a copy of the court's unpublished opinion along with supporting material about the case.

In Colorado, two state district court judges in Boulder, Roxanne Bailen and Morris Sandstead, have authorized placing the names of lesbian co-parents on their newborn children's birth certificates. (The mothers in the seven cases in which this was done proceeded anonymously to protected the privacy of themselves and their children.) The state Health Department, evidently swept up in the current hysteria surrounding same-sex marriage and gay parenting, tried to intervene by appealing the district court decision to the Colorado Court of Appeals, but early in August the Court of Appeals said no, in an opinion that has not been posted to the court's web-site. The Health Department argued that the judges had exceeded their authority by creating a new kind of parent-child relationship not authorized by state laws. Department Director Cynthia Honssinger argues that this should be a legislative decision, and will seek review from the Colorado Supreme Court. Reporting on the controversy, the _Rocky Mountain News_ (Aug. 22) noted that in most of the cases, one member of the couple was inseminated with sperm from an unknown donor. A.S.L.

Idaho Appeals Court Finds First Amendment Bar to Privacy Action Against Newspaper By "Boys of Boise" Affair Victim

In a case of first impression, Idaho Court of Appeals upheld the Ada County district court's order of summary judgment in favor of defendant Federated Publications, Inc., holding that the First Amendment to the U.S. Constitution protected the newspaper from liability for publishing an article that included information implicating the plaintiff in homosexual acts (40 years earlier) that he denies having committed. _Uranga v. Federated Publications, Inc., d/b/a The Idaho Statesman_, 2000 WL 1056095 (Aug. 2).

The _Statesman_ published an article decrying a proposed anti-gay ballot initiative, which included a description of an incident that occurred 40 years earlier, involving a police investigation of sexual activity between men and boys in Boise, Idaho. (This particular witchhunt achieved widespread notoriety as a result of a book about the incident called _The Boys of Boise_.) Ultimately, 1,500 people were interrogated by police and sixteen people were arrested. One of the people questioned was Melvin Dir, who wrote a statement implicating plaintiff Fred Uranga in homosexual acts with a teenage boy (the "Dir Statement"). Uranga was never charged with a crime, but Dir was later convicted of sodomy (and the teenage boy was expelled from West Point and committed suicide). The _Statesman_'s article included a description of the investigation as a "cautionary tale" against homosexual witch hunts. The article included a clear and legible photo of the Dir Statement, which the _Statesman_ obtained from the original court files, but the article did not otherwise mention Uranga by name.

Uranga wrote to the newspaper and asked it to publish another article stating that the allegations in the Dir Statement were untrue. The _Statesman_ refused to do so, but offered instead to publish Uranga's denials on the editorial page, or to publish a statement that the newspaper did not have an opinion as to whether the allegations were true or false. The plaintiff refused these offers, and filed an action against the newspaper for tortious invasion of privacy and intentional or reckless infliction of emotional distress. The trial court hearing the case granted summary judgment on the ground that the right of freedom of the press protect the _Statesman_ from liability under the First Amendment. Plaintiff appealed to the Idaho Court of Appeals.

Writing for the appeals panel, Judge Lansing assumed for purposes of the appeal that Uranga could prove all the elements to state a claim under Idaho state law of invasion of privacy and intentional or reckless infliction of emotional distress. In analyzing the newspaper's First Amendment defense to plaintiff's claims, the Ada County district court had relied primarily on _Cox Broadcasting Corp. v. Cohn_, 420 U.S. 469 (1975), which held that a newspaper's publication of information taken from court records was privileged under the First Amendment. _Cox_ stands for the proposition that "the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection."

Plaintiff Uranga argued that Cox did not apply to his case because the Dir statement was not true insofar as it pertained to him. Therefore, the plaintiff argued, the _Statesman_ can be held liable, even though it accurately reported what was in the court records, since the content thereof was untruthful.

Judge Lansing analyzed whether the district court's application of _Cox_ was overly broad, noting that the Supreme Court's opinion is expressly limited to the narrow issue of the accurate publication of true information taken from publicly available court records. Lansing also observed that other Supreme Court decisions citing _Cox_ as precedent were not exactly on point, either. The court therefore was presented with a case of first impression as to whether the First Amendment protects a newspaper from liability if it accurately reported public records that contained false information. The court found that the underlying policy in _Cox_ and these other cases would demand that the press be held immune in that situation. Otherwise, Lansing wrote, the press would be required to independently verify all allegations found in court records before publishing them. This would create a chilling effect on press coverage, which _Cox_ sought to avoid, and make it virtually impossible for the press to fulfill its civic responsibility of keeping the public apprized of the operations of the judicial system. Accordingly, the court, while expressing sympathy for Uranga as the victim of the _Statesman_'s exercise of its First Amendment rights in publishing a gay-positive article, affirmed the district court's dismissal of his claim. _Elaine Chapnik_

Objections By Gay And Lesbian Foster Children To NYC/NYS Settlement Agreement Are Denied.

On July 10, a year after argument, the U.S. Court of Appeals for the 2nd Circuit affirmed the approval of the New York City and State settlement agreements overhauling the New York City's foster care system. Such approval dismissed the filed objections of representatives of gay and lesbian children who were members of the class action, who were claiming that they could not be adequately represented since their fellow class members were their victimizers. _Joel A.v. Giuliani_, 218 F.3d 132. The court ruled that when compared to the overall relief sought in the class action, these gay and lesbian children were adequately represented.

The instant case derives from _Marisol v. Giuliani_, 929 F. Supp. 662 (S.D.N.Y. 1996) (Marisol I), the 1995 lawsuit initiated by children's rights advocates who sought federal court takeover of the City's Administration for Children's Services. The advocates filed the lawsuit following the death of Eliza Izquierdo, a six-year-old Bronx child whose mother had beaten her to death and whose mother was being monitored by ACS to protect her. Attorneys from Children's Rights, Inc. and Lawyers for Children alleged that systemic failures to protect children under protection of ACS put children at risk of neglect and abuse, and demanded that the agency be placed under a federal receivership answerable to the federal district court.

The Joel A. objectors, a sub-class of the Marisol I class action plaintiffs, objected to the settlement agreements on many grounds, one of which was that each of the Joel A. objectors is a gay child in the custody and care of ACS and alleges bias-related violence, harassment and discrimination at the hands of their heterosexual peers in the foster care system and by the City and State officials responsible for overseeing the child welfare system. They sought statutory federal and state constitutional relief for "bias-related victimization by their peers, and systemic discrimination based on sexual orientation, both of which result in physical, emotional, psychological and developmental injuries."

Joel A. objectors asserted that they could not be adequately represented within the class action, since the class consisted of the very peers who have been victimizing them, and that the district court took insufficient steps to ensure that they were adequately represented in the settlement discussions. Writing for the court on these objections, Circuit Judge John M. Walker, Jr., disagreed. The court observed that with respect to the broad relief sought -- dramatic improvement in the quality of all child welfare services -- the interests of all of the members were identical. The court found no conflicting goals among the subclasses that would require separate representation under the rule established in _Amchem Products, Inc. v. Windsor_, 521 U.S. 591 (1997), as plaintiffs contend. To the extent the Joel A. objectors contend that their representation by the class action subclass was inadequate, the court found that argument untimely, ruling that any perceived differences they had with the other subclass members were apparent when the subclasses were certified in May of 1998 and any objection should have then been made. _K. Jacob Ruppert_

Same-Sex Harassment Victim Entitled to Unemployment Benefits

Reversing a decision of the state's unemployment commissioner, the Minnesota Court of Appeals ruled July 25 that an employee who quit her job after her employer did not adequately address her same-sex harassment complaint was entitled to receive unemployment benefits. _Peppi v. Phyllis Wheatley Community Center_, 614 N.W.2d 750. A Minnesota statute forbids employment discrimination on the basis of sex or sexual orientation.

Sherriann Peppi worked as a preschool teacher at the community center. In February 1999, she received some anonymous letters and an anonymous phone call from a female admirer who sought to have sex with her. Peppi showed the letters to an associate director of the center, who offered to remind all the employees about the center's sexual harassment policy, but Peppi asked her not to do that. In the following months, a female co-worker made sexual remarks and gestures to Peppi, but Peppi didn't add up the evidence until May when the co-worker repeated to her passages from the anonymous letters. Finally, Peppi complained on July 27, 1999, to a supervisor. The supervisor brought the complaint to a management meeting. A few days later, the supervisor told Peppi that a file was opened on the complaint, but it was up to Peppi as to whether an investigation would be launched. Peppi said she was disappointed with this response and did not specifically request an investigation. A few weeks later, the co-worker left another note, asking to see Peppi. Peppi asked a supervisor to accompany her to the meeting, but Peppi was upset, decided not to meet with the co-worker, left work early, called in sick the next day, and resigned a few days later. The employer opposed her application for unemployment benefits on grounds of "voluntary quit,"and the administrative agency ruled for the employer.

Writing for the court, Judge Shumaker noted that the state's unemployment insurance law provided that employees who quit "because of a good reason caused by the employer" are not disqualified from receiving benefits. A provision of the state law specifically addresses the issue of sexual harassment and unemployment benefits, stating that "an applicant has a good reason caused by the employer for quitting if it results from sexual harassment of which the employer was aware, or should have been aware, and the employer failed to take timely and appropriate action." See Minn. Stat. Sec. 268.095(3)(e). Shumaker found that Minnesota cases have imposed an affirmative duty on the employer to investigate and redress sexual harassment complaints, and noted that the center's own personnel policies required an investigation of any such complaint.

"At least by July 30, 1999, Peppi had made an apparently good-faith complaint to a supervisor of sexual harassment by an identified co-worker," wrote Shumaker. "This was sufficient to trigger an affirmative duty by the employer to make a timely and appropriate investigation, irrespective of the complaining employee's opinion as to the need for an investigation. The employer may, however, consider the employee's desires in deciding the manner of the investigation." Because in this instance the employer threw the onus for commencing an investigation back on the employee, her resignation was found to be for good cause within the meaning of the unemployment benefits law, and she is not disqualified from receiving benefits. A.S.L.

6th Circuit Restores Jury Verdict in Death of Gay Inmate

In _Gregory v. Shelby County, Tennessee_, 2000 WL 986351 (July 12),

the U.S. Court of Appeals for the 6th Circuit overruled a remittitur decision by U.S.

Magistrate Judge J. Daniel Breen (W.D. Tenn.) and reinstated a substantial jury award of

compensatory and punitive damages against individuals responsible for the death of a gay

inmate at the Shelby County Jail. However, the court affirmed the magistrate's decision

dismissing the County as a defendant in the case and denying the plaintiff's demand for

attorney fees from the County.

Gerald Gregory, a "known homosexual," died as a result of a severe beating

inflicted upon him by another inmate, Jerry Ellis, while incarcerated in J-Pod, a high

security part of the jail in which official County rules required that no more than one cell

door be open at a time. Gregory's brother, Mickey, brought this action on behalf of his

estate. According to the evidence at trial apparently believed by the jury, Rhett Shearin, a

guard at the jail, acceded to a request by Jerry Ellis to be allowed to go into Gregory's cell

after Ellis and Gregory had been engaged in some sort of argument over a period of several

days. According to the deposition testimony of another inmate that was admitted at trial

after the inmate refused to testify because he was being subjected to threats by other

inmates and guards, Shearin knew that Ellis intended to rape and beat Gregory, and

Shearin may himself have gone into the cell and forced Gregory to perform oral sex on

him. Gregory was found by another guard ten hours later, conscious but severely beaten,

lying on the floor of his cell. He died from the beating a few days later while in the

hospital, having long since lost consciousness.

Magistrate Breen allowed the case to go to the jury against Ellis and Shearin, but dismissed

a constitutional tort claim against the County and various higher jail officials, finding that

the evidence could not support a finding that Gregory was beaten pursuant to an official

policy or custom of the County. This finding was affirmed by the 6th Circuit. The jury

found for the plaintiff against Ellis and Shearin, awarding $778,000 in compensatory

damages against those two defendants, $75,000 in punitive damages against Ellis, and

$2,200,000 in punitive damages against Shearin. Ellis and Shearin moved for remittitur,

which was granted by Magistrate Breen, who reduced the compensatory damages to

$150,000 and the punitive damage award against Shearin by an amount not specified in the

court of appeals' opinion.

Donald G. Nugent, a federal district judge from Ohio, sat on the 6th Circuit panel by

designation and wrote the opinion of the court of appeals. Nugent found that Magistrate

Breen erred in his rulings on the remittitur motion. Nugent stated that Breen's ruling on

the compensatory damages award "seems to be in error. We believe the award was

not clearly excessive and that ample evidence was presented to establish an award of this

amount." Nugent noted that not only was Gregory beaten severely enough to lead to

his death, but that he was left consciously suffering in his cell, without medical attention,

for ten hours, and remained conscious through his first examination at the medical center.

Thus, he was subjected to conscious excruciating pain and suffering, with severe internal

and external injuries, for a significant period of time. Nugent concluded that while it could

not be disputed that the compensatory damage award is "large; it is not, however,

excessive. In light of the egregious circumstances illustrated above, we believe sufficient

proof was presented at trial for the jury to make this award."

As to the punitive damage award against Officer Shearin, Nugent found this to be amply

supported by the trial record. In light of Magistrate Breen's charge to the jury, in order to

make this award, the jury had to have found that Shearin's conduct was "wanton and

reckless, not merely unreasonable." "Moreover," wrote Nugent,

"the record itself speaks volumes of the reprehensible nature of Officer Shearin's

action. Not only did Officer Shearin purposely open Inmate Ellis's cell door and then

allow him into Mr. Gregory's cell, he knew the beating occurred and let Mr. Gregory

suffer through the night with his injuries. Furthermore, there was evidence that Officer

Shearin forced Mr. Gregory to perform oral sex on him. Second, Gerald Gregory lost his

life as a result of defendant's action." The court concluded that the $2.2 million

punitive damage award against Shearin was "appropriate."

However, and rather disappointingly, the court refused to award attorney fees against the

County, concluding that the case against the County had correctly been dismissed. In other

words, the court treated this as a case of a rogue jail guard collaborating with a prisoner to

beat another prisoner, and not something for which the County should have any liability,

even to the extent of compensating the deceased prisoner's attorney. This is significant

because it is most likely that both Inmate Ellis and Officer Shearin (who was since

dismissed from his job, but, according to the County, for subsequent infractions and not

specifically for this incident, as to which the County's alleged internal investigation turned

up no violation of official rules) are virtually judgment proof, which means that in the

absence of any award of damages or fees against the County, the most that Gregory's

estate will see from this litigation is a symbolic victory. A.S.L.

Federal Trial Court in Chicago Rejects Attack on Same-Sex Only DP Plan

On July 26, U.S. District Judge Joan B. Gottschall issued an order granting summary judgment to the Chicago Board of Education against an attack on the board's domestic partnership benefits plan, brought by a heterosexual employee protesting the denial of benefits to her opposite-sex partner. _Irizarry v. Board of Education of the City of Chicago_, 83 Fair Emp. Prac. Cases (BNA) 808, No. 99 C 6991 (U.S.Dist.Ct., N.D.Ill., E.Div.).

The Board adopted its policy, providing health insurance benefits as a term of employment for spouses of married employees and same-sex domestic partners of unmarried employees, on July 1, 1999. Irizarry, an unmarried female employee, sought benefits for her male partner, which were refused. She sued under 42 U.S.C. sec. 1983, claiming that the same-sex benefit plan was unconstitutional if it was not extended to opposite-sex couples, raising due process and equal protection claims.

Judge Gottschall found that the equal protection claim, premised on marital status discrimination, should be evaluated under the deferential rational basis test. The Board's articulated rationale for limiting its plan was that opposite-sex partners "are not legally prohibited from marrying in Illinois, and as a result they have access to employer-provided dependent health care through marriage," while "in contrast, marriage is a legal impossibility for same sex partners" in Illinois at the present time. In addition, the Board argued that same-sex partners had been subjected to "invidious social and political prejudice and stereotyped prejudgments" in the past, thus justifying the Board's interest in providing "equal access to dependent health care benefits to those employees who are otherwise legally prohibited from acquiring such benefits." The Board also emphasized that the plan would help it to recruit qualified employees involved in same-sex relationships, and would help to foster "mutual understanding and respect for the health care considerations of gay and lesbian employees similar to what is extended to heterosexual employees." Gottschall concluded that these articulated rationales for the policy sufficed to show that the policy was not irrational.

Irizarry argued that the Board's rationales were not responsive to the case, contending that the Board had to explain why it had not also extended the benefits to unmarried opposite-sex partners. Gottschall disagreed, contending that under the rational basis test, the Board had only to explain why it extended the existing spousal benefits plan to include same-sex couples. "The Board is not required to explain why it did not extend those benefits to domestic partners of unmarried heterosexual employees as well." Gottschall also rejected Irizarry's argument that the plan was both under and over inclusive, finding that in a rational basis case, fine-tuning of a government policy is not required.

The court also rejected Irizarry's argument that the Chicago Human Rights Ordinance could be found to provide grounding for a property right to benefits, and thus rejected her due process argument as well. Irizarry had sought to argue that the ordinance's guarantee against discrimination on the basis of marital status or sexual orientation gave her a right to have these benefits if they were given to others and the only distinction between her eligibility and theirs was sexual orientation or marital status. Gottschall held that civil rights ordinances do not function to confer substantive property rights, asserting that "a statute that eliminates discretion does not provide the substantive criteria required to support a property interest," and a due process claim requires a deprivation of a property interest. A.S.L.

Illinois Appeals Court Holds Internet Assignation Followed by Attempted Meeting Sufficed to Constitute Attempted Aggravated Criminal Sexual Abuse

In the continuing saga of police crackdowns on intergenerational sex, the Appellate Court of Illinois, 2^nd District, affirmed the conviction of Richard Patterson, 30, for attempted aggravated criminal sexual abuse. Patterson was sentenced to four years in prison. _People of Illinois v. Patterson_, 2000 WL 1010212 (July 20).

Patterson, who claimed he thought the age of consent in Illinois was 15, was hanging out in an adult gay sex chatroom on AOL in June 1998 when he came across Yacoo, purportedly a 15-year old boy looking for sex with an adult, but actually Detective Richard White of the Lake County Sheriff's Department. Patterson and "Yacoo" communicated through AOL's instant message feature, and carried on extended conversations on June 9 and 11, the June 11 conversation ending with a date being made. When Patterson showed up at a local McDonald's expecting to find his 15-year old date, he found White instead and was questioned and then arrested. White also obtained a search warrant and seized Patterson's computer, which contained plenty of juicy evidence of Patterson's on-line cruising activities. During the IM conversations, Patterson had offered to perform oral sex on Yacoo.

In appealing his conviction, Patterson argued that there was no evidence that he had actually intended to commit the crime of aggravated sexual abuse, pointing out that he "did not make any overt sexual advances to anyone, did not expose himself or touch himself, did not approach any youths, and did not make any utterances of a sexual nature while at McDonald's." The court disagreed, in an opinion by Justice Inglis, noting that Patterson had offered to commit oral sex on the fictitious Yacoo, arrived at the agreed-upon place at the agreed-upon time, dressed as he said he would be dressed and driving the car he had told Yacoo he would be driving. Also, Patterson had sent a graphics file to Yacoo containing his photograph to facilitate connecting at the McDonald's. Also, when White approached Patterson in his car in the McDonald's parking lot, Patterson admitted that he was waiting for a 15-year-old boy. Inglis concluded this was sufficient to support a finding that Patterson intended to engage in oral sex with a 15-year-old boy.

Patterson also argued that he had not taken any substantial step towards completing the offense because there was no 15-year-old boy there waiting to connect with him, but the court once again disagreed, finding that his communications and actions were substantial steps towards commission of the offense, even though ultimately there was no Yacoo with whom he could connect. "Given that Yacoo/Rob did not actually exist, defendant had taken every possible step he could have taken in order to commit the offense of aggravated criminal sexual abuse," wrote Inglis. The court also rejected Patterson's challenge to his questioning by White, finding that he was not in custody at the time and thus the requirement to give Miranda warnings had not been triggered. However, the court did reverse the conviction on two counts on the grounds that they had been added to the complaint too long after the arrest, and thus violated the Speedy Trial Act. This did not, however, affect the sentence, which had been entered on one of the other counts. A.S.L.

Holocaust Claims Settlement Expressly Includes Gays

On July 26, U.S. District Judge Edward Korman issued a lengthy opinion in the on-going litigation over claims by Holocaust survivors to compensation from leading Swiss banks, addressing the fairness of a proposed $1.25 billion settlement negotiated by representatives of the plaintiff class with the defendants. _In re Holocaust Victim Assets Litigation_,105 F.Supp.2d 139 (E.D.N.Y., July 26, as amended Aug. 2, 2000). The opinion is noteworthy for its official recognition of the inclusion of gays as a persecuted group during the Holocaust entitled to compensation for forced labor and expropriation of their property.

In describing the class beneficiaries under the settlement, Judge Korman wrote: "The parties agreed that the settlement should benefit generally persons recognized as targets of systematic Nazi oppression on the basis of race, religion or personal status. Accordingly, at the initiative of plaintiffs' Executive Committee, the settlement was explicitly designed to benefit Jews, homosexuals, Jehovah's Witnesses, the disabled and Romani - groups recognized by the United Nations as having been the targets of systematic Nazi persecution on the basis of race, religion, or personal status."

Among those to be benefitted by the settlement are: those who had assets on deposits with Swiss Banks prior to the Holocaust whose return was rejected by the banks after the war for lack of documentation of ownership; those whose assets were looted by the Nazis and found their way into Swiss banks; those who were impressed into Slave Labor by the Nazis, profits from which found themselves into Swiss banks, and those who were denied entry into Switzerland as refugees during the relevant time period. Judge Korman specifically noted the International Gay and Lesbian Association (he got the word order wrong, but we know who he is talking about) as one of the interested organizations that had submitted proposals for allocation and distribution of settlement funds.

We are not certain whether this is the first official mention in a published U.S. court decision of the Nazi persecution of gay people during the period of the Holocaust, but it is certainly a prominent, official recognition of the fact of such victim status, and thus an important document for gay history. A.S.L.

Litigation Notes: Civil

In _V.C. v. M.J.B_., 748 A. 2d 539 (N.J. Sup. Ct., April 6, 2000), the New Jersey Supreme Court ruled that a lesbian co-parent could seek visitation with the child born to her former partner if she could prove, essentially, that she had served in a parental role and bonded with the child as a result of a relationship that had been encouraged by her former partner while they were living together as a family. Now the birth mother has filed a petition with the U.S. Supreme Court, seeking a writ of certiorari, presumably arguing that this ruling is inconsistent with the Court's recent decision in _Troxel v. Granville_, 120 S.Ct. 2054 (June 5, 2000) , which held that courts must give substantial weight to the preferences of birth mothers in deciding visitation or custody claims by persons who are not legal parents of the child. _Newark Star-Ledger_, July 22.

In _The New Life Center, Inc. v. Fessio_, 2000 WL 11577800 (Aug. 16) (unpublished disposition), the U.S. Court of Appeals for the 4^th Circuit affirmed dismissal of a defamation action brought by a center for the therapeutic treatment of "troubled" and "troublesome" Catholic priests against a Catholic publication that had characterized the center as being a hotbed of homosexuality, operated by the Catholic Church in order to rid the priesthood of anti-gay priests. The per curiam opinion approved the district court's finding that the plaintiff is a "limited-purpose public figure" and that it had failed to prove that any misstatements in the article were made with "actual malice" as required by 1^st Amendment doctrine governing libel suits against the media.

The California Supreme Court ruled in _Armendariz v. Foundation Health Psychcare Services, Inc._, 2000 WL 1201652 (Aug. 24), that a sexual orientation discrimination claim brought under the Fair Employment and Housing Code could be subject to mandatory arbitration under the plaintiffs' contract of employment, but that in this particular case the employer's arbitration provision was so one-sided and outrageous that it would not be enforced as a matter of public policy. The provision, which the court found to be unconscionable as a very one-sided contract of adhesion, provided that employees could not sue the employer in court, but were limited to bringing an arbitration claim, with the arbitration costs borne by each party and the arbitrators limited to minimal compensatory damage awards. On the other hand, the employer reserved to itself the right to sue employees on any claim arising out of their leaving the company (such as a trade secrets or non-competition claim), with no remedial limitation. The underlying claim in this case was brought by two women who claimed they had been discriminated against because they are heterosexual. The court provides no details of their claims. The court unanimously reversed the Court of Appeal's decision, but two members wrote separately staking out a different position as to some aspects of the case.

The _Orlando Sentinel_ reported July 17 that the Supreme Court of Puerto Rico, voting 4-3, has ordered public officials to issue a birth certificate reflecting the sex change of Andres Torres Andino to Alexandra Torres Andino. Andino, born in 1950, had a sex change operation in 1976. In 1995, she went to court to obtain a new birth certificate indicating female sex, but local officials refused to issue such a certificate. The Supreme court decision ends six years of appeals. According to the news report, the majority opinion by Justice Antonio Negron Garcia states that transsexuality is "an evident reality that demands a legal solution," and that somebody who is now living as a female should not be placed in the position of having to explain about her sex-change every time she is required to produce her birth certificate for purposes of job applications, passport renewals, and the like.

In _Thomas v. Anchorage Equal Rights Commission_, 2000 WL 1069977 (U.S.Ct.App., 9^th Cir. En Banc, Aug. 4), an eleven-judge panel of the 9^th Circuit Court of Appeals voted 10-1 that a three judge panel and a district judge should not have reached the merits on a claim by two landlords that their constitutional free exercise of religion rights were violated by a city ordinance that forbids marital status discrimination by owners of rental housing. The plaintiffs, who described themselves as devout Christians who could not countenance sinful behavior by renting apartments to unmarried couples, sought a declaration of unconstitutionality, which the district court and the court of appeals panel (voting 2-1) gave them. Writing for the en banc panel, Circuit Judge McKeown found that the lack of any prior criminal or civil enforcement efforts against religiously-resistant landlords made the case purely hypothetical, and thus outside the scope of the "case and controversy" jurisdictional limits binding on the federal courts. Had the court reached the merits and affirmed the panel ruling, the result could have produced a major constitutional loophole in discrimination law that could severely disadvantage gay litigants under sexual orientation discrimination laws.

The California Supreme Court announced Aug. 10 that it will not review the decision in _Murray v. Oceanside Unified School District_, 79 Cal. App. 4th 1338, 95 Cal. Rptr. 2d 28 (Cal. App. 4th Dist., Div. 1, 2000), in which the Court of Appeal rejected an attempt by the defendant school district to get rid of a sexual orientation discrimination case brought by high school teacher Dawn Murray. Murray claims in her suit that the district unlawfully failed to take action in response to harassment she suffered beginning in 1993 when co-workers learned that she is a lesbian. A trial court had dismissed Murray's case, but it was reinstated by the unanimous appellate panel on April 19. Lambda Legal Defense Fund represents Murray in the case, with amicus assistance from the lesbian and gay bar associations in San Diego and San Francisco, as well as the National Employment Lawyers Association's San Francisco chapter.

U.S. District Judge Bertelsman (S.D. Ohio) ruled Aug. 2 that a former employee of the U.S. Bankruptcy Court clerk's office in Cincinnati could not bring a _Bivens_-type of civil action challenging his discharge on constitutional grounds, because of the existence of an administrative process to deal with such claims. Thomas J. Blade alleged that he was discharged because of his race and perceived sexual orientation, and also alleged harassment based on those factors. Blade, who is Caucasian, claimed that he was working in an office staffed mainly by African-Americans, where he was perceived as gay and subjected to racist and homophobic remarks. The employer claimed Blade was discharged for insubordination and particularly for failing to follow the office's policy governing personal and disability leave. _Blade v. U.S. Bankruptcy Court_, 2000 WL 1145730.

The ACLU of Massachusetts has agreed to defend the North American Man-Boy Love Association (NAMBLA), which is the defendant in a $200 million civil rights lawsuit filed by the parents of a young boy who was murdered by two men, one of whom reportedly had viewed a NAMBLA website and had NAMBLA publications in his possession prior to committing the murder. The legal theory of _Curley v. NAMBLA_ is that the organization's postings and publications actively encouraged the rape and murder of underage boys, a violation of their civil rights. John Robert, executive director of the Mass. ACLU, characterized this as a "fundamental First Amendment case," and ACLU Board Member Harvey Silverglate told the _Boston Globe_ (Aug. 31) that Supreme Court precedents clearly protect NAMBLA's membership list from discovery and protect the organization from being held civilly liable for crimes that may have been committed by individuals. The lawsuit was filed by the parents in May. The attorney for the plaintiffs said that ACLU involvement in the case is good news, because they were having difficulties serving papers on NAMBLA, an organization with no fixed physical location.

In an opinion that reveals next to nothing about the allegations of the complaint, U.S. District Judge Jones (S.D.N.Y.) denied a motion for summary judgment brought by the defendants in a same-sex harassment case, find that the factual allegations raised questions about the sexual orientation of the harasser. _Estela v. Garage Management Corp._, 2000 WL 1228968 (Aug. 30). Drawing inferences from the sketchy opinion, it seems that the defendants sought dismissal on the ground that the alleged misconduct was insufficiently serious as a matter of law to constitute a hostile work environment, and that the plaintiff can't prove he was harassed because of his sex. Evidently the allegations include "one incident of sexual harassment that, if true, amounts to a sexual assault. The nature of that act alone may be sufficient to create an issue of fact as to the alleged harasser's homosexuality." Citing _Oncale v. Sundowner Offshore Services_, 523 U.S. 75 (1998), in which Justice Scalia suggested that a same-sex harassment plaintiff might satisfy the requirement of showing that he was targeted for harassment because of his sex by showing that the harasser was gay, Judge Jones held that these allegations were sufficient to create the necessary factual issues to survive a summary judgment motion.

U.S. Magistrate Denlow, ruling on a pretrial motion in _Baumgardner v. County of Cook_, 2000 WL 1100438 (U.S.Dist.Ct., N.D. Ill., Aug 4, 2000), held that a plaintiff who files an action under the Americans With Disabilities Act against a public employer entity is not precluded from also claiming an Equal Protection violation under the 14^th Amendment against his supervisor on an individual basis. The opinion does not set out the underlying factual claims in the case, discussing this question totally in the abstract. In an additional point, Denlow rejected the defendants' argument that even if an equal protection claim could theoretically be brought, since it was premised on disability discrimination it should be tossed out because disability is not a suspect classification. Citing _Romer v. Evans_, 517 U.S. 620 (1996), Magistrate Denlow pointed out that an Equal Protection claim does not have to involve a suspect classification to be successful. Referring to the challenged Colorado Amendment 2 in that case, Denlow commented: "Although homosexuals are not a protected class, the Court, nonetheless, found that their equal protection rights were denied by the amendment." Inelegant language, perhaps, but the point was made, and the county's motion to dismiss denied.

In _Moore v. Boston Fire Department_, the Massachusetts Commission Against Discrimination ordered the respondent to pay $50,000 in damages to a black lesbian firefighter who alleged that she had been treated to such constant harassment that she had to seek treatment for depression. _Boston Globe_, Aug. 10.

The _Chicago Tribune_ reported Aug. 16 about a custody case with a novel twist pending before Cook County, Illinois, Circuit Judge Gerald Bender. The story begins in Aug. 1985, when a couple were married at Chicago City Hall. The "husband" was a female to male transsexual who is described in the article as having gone "at least partway through a sex change" and had been living as a man since prior to the marriage. Subsequently, the wife conceived a child through donor insemination, which the couple were raising together. Now the couple has split up and the child, age 8, is the subject of an unusual custody dispute in which the mother claims that the father was not really a man and thus the marriage was invalid, leaving the father with no legal claim to custody. According to the article, the two sides in this case "do not even agree on whether the partner who has been living as a man is male or female" (as if those were the only two possibilities). The mother's attorney argues strict construction of the state's domestic relations laws, under which the father would be considered a legal stranger not entitled to custody. The public guardian argues that the court should face reality and the established parental relationship with the father. The parties are not named in the article.

The Indiana Civil Liberties Union filed a lawsuit in January on behalf of a man who claimed he was not allowed to adopt a 9-year-old girl because of his sexual orientation, but dropped the case after child welfare officials convinced the ICLU that they were following the advice of two psychologists who had evaluated the girl and determined that she would be harmed by the placement, having been influenced by her foster parents to strongly believe that homosexuality is sinful. The man, Craig Peterson, had already adopted the girls' three brothers and was hoping to unite the children in one home. _Louisville Courier-Journal_, Aug. 20.

A homophobic supervisor at a Postal Facility who tried to make life miserable for all employees he perceived to be gay, whether they were male or female, did not incur Title VII sex discrimination liability for his employer, ruled U.S. District Judge Van Antwerpen in _Koschoff v. Henderson_, 2000 WL 1162072 (E.D.Pa., July 13), accepting the argument that the equal-opportunity harasser is not covered by the sex discrimination statute.

The _Star Ledger_ (Newark, N.J.), reported Aug. 31 that a gay man, Robert McDonald, Jr., is suing Jefferson Township High School in state court, alleging that when he was student there from 1992 to 1996 he was subjected to discrimination and harassment by students, faculty and staff because of his sexual orientation. He alleges anti-gay slurs, harassment and physical assaults, and that teachers and administrators responded not by disciplining the harassers but rather by subjecting him to unequal and disparate treatment, such as having teachers escort him in the hallway, requiring him to leave classes early to avoid hall traffic, and having him change into and out of his gym outfit in a restroom rather than the locker room to avoid confrontations with homophobic fellow-students. The newspaper reported that this state court suit was brought after attempts to litigate in the federal courts "failed,"but we were unable to locate any federal opinion involving McDonald and the Jefferson Township High School.

In an unprecedented step, the U.S. Justice Department has filed an amicus brief in a pending challenge to the constitutionality of a local gay rights ordinance, asking the court to dismiss the challenge. In _Hyman v. City of Louisville_, a Kentucky doctor, Barrett Hyman, claims that his religious beliefs compel him to refuse to employ homosexuals, and seeks to overturn the local ordinance that forbids discrimination on the basis of sexual orientation or gender identity. The ACLU Lesbian and Gay Rights Project filed a brief in support of the motion to dismiss as well. The ACLU also reported in an Aug. 15 press release that a similar challenge that had been filed to a gay rights ordinance in Henderson, Kentucky, had been dismissed when it turned out that the named plaintiffs lacked standing to challenge the ordinance; these plaintiffs were represented by Dr. Hyman's attorney. * * * In another move supportive of gay rights, the Justice Department intervened on the side of the plaintiff in a lawsuit in Kansas City alleging that Pleasant Hill High School officials failed to assist a student who was being sexually harassed because of his perceived gay orientation. In a memorandum in support of the motion to intervene, signed by Attorney General Janet Reno, the government stated: "Officials with authority to rectify the situation . . . were deliberately indifferent to the discrimination on the basis of sex. The deliberate indifference of officials prevented [the student] from enjoying the educational benefits and opportunities provided by the Pleasant Hill School District." According to David Buckel, a Lambda Legal Defense Fund attorney who has been specializing in gay student harassment cases, this may be the first time the federal government has sought to intervene on behalf of a student who is being harassed on the basis of perceived sexual orientation. After the Justice Department's move to intervene, the school district settled the case by paying the student $72,500 in damages and agreeing to establish a two-year program to "prevent, identify and remediate harassment and discrimination" on the basis of sex or sexual orientation. According to the order signed by U.S. District Judge Fernando Gaitan on July 31, the district will hire consultants to prepare a plan to carry out the program, and will report regularly to the Justice Department on the progress of the program. The identity of the plaintiff, now a former student, is not revealed in the news reports in the _Kansas City Star_ (July 22 & Aug. 9).

Turnabout didn't work in Texas when a lesbian couple sought a marriage license and argued that a recent Texas appeals court case rejecting the validity of a marriage between a man and a male-to-female transsexual provided precedent for their application. Jessica Wicks, a male to female transsexual, and Robin Wicks, born female, are lovers. They pointed out to the Harris County Clerk that under the ruling in _Littleton v. Prange_, 9 S.W.3d 223 (Tex.App., 1999), Jessica is considered a man in Texas, and thus they are entitled to a license as an opposite-sex couple. The Clerk's office said they were a same-sex couple, and refused to acknowledge the relevance of _Littleton_, according to a press advisory issued by their attorney, Phyllis Randolph Frye of Houston. The Texas Supreme Court refused to review the _Littleton_ case, and a cert. petition was filed with the U.S. Supreme Court in July, claiming the ruling violated fundamental constitutional rights of Ms. Littleton. After the initial publicity about the license denial, attorney Frye secured a promise from the Bexar County Clerk in San Antonio that he would issue a license if the couple applied. Bexar County is under the jurisdiction of the appeals court that issued the ruling in _Littleton_. Frye is now urging all same-sex couples in Texas, one of whom is transgendered, to take advantage of this opportunity and apply for licenses. _Houston Chronicle_, Aug. 31.

In an opinion issued on July 12, Connecticut Superior Court Judge Booth refused to grant a temporary restraining order against the state's Commission on Human Rights and Opportunities in the pending dispute over swimming pool fees in West Hartford. This controversy dates back several years, when a group of gay couples and unmarried straight couples wanted to get the benefit of the preferential spousal rates set by the local municipal swimming pool. On Aug. 11, 1999, the Commission issued a reasonable cause finding regarding their complaints of marital status and sexual orientation discrimination, and was set to proceed to a public hearing. Meanwhile, the city filed a declaratory judgment action in the Superior Court, seeking an order barring the hearing, based on various technical objections to the Commission's jurisdiction. Cutting through a fair amount of procedural detail, Judge Booth concluded that the court should not stop the hearing, finding that the town had failed to show it would be irreparably injured by having to defend its position before the Commission, since ultimately it could seek judicial review of the Commission's ruling after the hearing. _Town of West Hartford v. Commission on Human Rights and Opportunities_, 2000 WL 1172336 (Conn. Super., July 12, 2000).

In the July/August issue of _Law Notes_, we reported that the Kentucky Baptist Homes for Children had decided to forego renewing their contracts with the state of Kentucky, after a statement by the head of the state's social service agency for youth indicated that the state might stop referring children to the home due to its discriminatory anti-gay policies. That was the situation as we went to press, but shortly afterwards, it appears that Governor Paul Patton intervened to make some revisions in the proposed contract, and the board of the Kentucky Homes voted to accepted the contract as modified. A spokesperson for Kentucky Homes stated that the governor had clarified that the state would continue to pursue a "hands-off" policy on the employment policies of contracting agencies, and that individual social workers, rather than the state's Cabinet for Families and Children, would decide whether to refer children to the Homes for care. Patton told the Associated Press: "The state does not have a policy of dictating the personnel policy of any independent contractor, so long as it complies with the law." Sexual orientation discrimination in employment does not violate any state law in Kentucky, or any federal law. _Cincinnati Enquirer_, July 7.

The California Board of Equalization voted July 26 to grant head-of-household status to Helmi Hisserich for tax purposes. This is the first time that the state has recognized a same-sex household for this purpose, and will result in an estimated $2500 tax savings annually for Hisserich and her partner, Tori Patterson, who has stayed home to care for their young daughter while Hisserich's job provides the main income for the household, although Patterson has some freelance income. Shannon Minter, staff attorney for the National Center for Lesbian Rights, argued Hisserich's case before the Board on June 30. University of Iowa College of Law tax specialist Prof. Patricia Cain assisted Hisserich, who represented herself during the initial stages of the case. The initial vote by the board is supposed to be followed by a written opinion in a few months. The State Controller's representative on the board cast the decisive positive vote in the 3-2 decision. _San Francisco Examiner_, July 27.

New Jersey Superior Court Judge Douglas Hague awarded $2.1 million to Ricky E. Bourdouvales, a preoperative male-to-female transsexual, on a default judgment against Wal-Mart Stores. _Bourdouvales v. Wal-Mart_, N.J. Super. Ct., No. L3424-00 (Middlesex County, July 17, 2000). Bourdouvales, who dresses and presents herself according to her preferred female gender, was hired as a cashier in October 1999. Bourdouvales truthfully indicated male sex on the employment application form. When a manager asked about the disparity between the form and Bourdouvale's appearance, she revealed her transsexual orientation and plans for sex reassignment surgery. Bourdouvales claims that immediately harassment ensued, and she was subsequently discharged. (The company told her she was discharged for misconduct, alleging a shortage of $1700 in her cash drawer, which she heatedly denies.) Bourdouvales filed suit under New Jersey's Law Against Discrimination on April 18, claiming sexual harassment and sexual orientation discrimination. Although the papers were properly served on the Wal-Mart store where she was employed, Wal-Mart never responded to the complaint and was defaulted. Judge Hague's award included $50,000 compensatory damages, $50,000 for attorney fees, and $2 million for punitive damages (which are not capped under New Jersey's law). A spokesperson for Wal-Mart claims the corporation first learned about the case when the default judgment was reported in the press, and plans to ask Judge Hague to vacate the default judgment and allow them to contest the claim. BNA _Daily Labor Report_ No. 143, 7/25/00, A-5; _The Record_, July 19; _Star-Ledger_, July 18.

In an opinion showing precious little empathy for the plight of the plaintiff, a pre-operative male to female transsexual federal pre-trial detainee, the U.S. Court of Appeals for the 2^nd Circuit ruled that prison officials were absolutely immune from constitutional liability for denying the plaintiff continued estrogen treatment during her period of pre-trial detention. _Cuoco v. Moritsugu_, 2000 WL 1041227 (July 28). John Andrew Cuoco was detained beginning September 5, 1991; prior to her arrest, she had been receiving estrogen under a physician's treatment for gender dysphoria and was planning to have sex reassignment surgery. Cuoco notified medical authorities at the Federal Correctional Institution in Otisville where she was detained about her medication and need to have it continued pending her trial. The doctors reacted with callous indifference an disbelief, to judge by her detailed pro se complaint. After repeated unsuccessful attempts to get her medication continued, she was placed in medical isolation and endured painful withdrawal symptoms. She filed suit, claiming her constitutional rights had been violated. The federal district judge dismissed the complaint as to some of the defendants (mainly non-medical officials), but refused to dismiss as to the medical officials, who appealed (with Cuoco cross-appealing the dismissals). (Incredibly, U.S. District Judge McKenna spent six years deciding the defendants' motion.) The 2^nd Circuit panel found that a statute provided absolute immunity for federal prison officials against medical malpractice claims, including constitutional claims derived from their alleged treatment failures, and held that only a suit against the government under the Federal Tort Claims Act would be available to the plaintiff. At the same time, the court found nonmeritorious the cross-appeal, ultimately ruling that the entire case should be dismissed. The only sign of empathy was the court's use of the feminine pronoun to refer to Cuoco throughout the opinion.

A federal district court jury in Uniondale, New York, reached a verdict on July 18 awarding damages of $1.5 million to James Manning, a gay man formerly employed as a Nassau County Corrections Officer, for anti-gay harassment at his workplace. Prior to the trial, District Judge Joanna Seybert had rejected the county's argument that Manning had no legal cause of action due to the lack of any applicable statute prohibiting anti-gay harassment. Judge Seybert found that Manning could bring a claim for violation of his civil rights under the Equal Protection clause as effectuated by 42 U.S.C. sec. 1983, the general federal civil rights statute. Reacting to the verdict, the county's attorney, Paul Millus, stated that the county was considering appealing to challenge the court's equal protection ruling, stating: "While all discrimination in the workplace is unacceptable, it is up to the Legislature and Congress to set specific prohibitions addressing sexual orientation and not to expand public employer liability." In a prior case in which a gay county employee won damages for harassment, the plaintiff had to bring an action to attach county assets before the county, which is undergoing a financial crisis, agreed to pay the damages of $500,000. _New York Times_, July 20.

Some losing plaintiffs will never give up. In _Board of Regents of the University of Wisconsin System v. Southworth_, 120 S.Ct. 1346 (March 22, 2000), the Supreme Court unanimously ruled that public universities may collect student activity fees that are then distributed to student organizations, without regard to whether particular students object to the political activities of particular student organizations, so long as the process of funding student organizations is viewpoint-neutral. The case was originally brought by some conservative students who did not want their activity fees spent on such organizations as the Women's Center or the Gay/Lesbian student organization at the university. During the litigation, the parties stipulated that the University's method of distributing money was "viewpoint neutral." The Supreme Court remanded the case to the 7^th Circuit. Now, responding to a petition from the plaintiffs, the 7^th Circuit has remanded to the U.S. District Court in Madison, Wisconsin, for a response to the plaintiffs' desire to set aside the stipulation and consider whether the University's system is viewpoint neutral. The plaintiffs are claiming that the Supreme Court's decision had "changed the landscape of the law," making viewpoint-neutrality much more significant than it had previously been, and so they wanted to withdraw from their stipulation and litigate about it. The 7^th Circuit, which was reversed by the Supreme Court, deemed the plaintiffs' request to be "reasonable." The University has filed a petition for en banc reconsideration of this decision, protesting any determination by the 7^th Circuit that the plaintiff's request was "reasonable" without having obtained an input from the University in response to the plaintiffs' request. _Wisconsin State Journal_, July 8.

File this one under the heading of civil litigation averted: Danielle Goldey and Meredith Kott, a lesbian couple who are also big fans of the Los Angeles Dodgers baseball team, were attending a game at Dodger Stadium on August 8. Security officers told them they had to leave the ballpark, after other spectators complained about them kissing, saying children should not be exposed to "those people." Goldey and Kott had been attending the game with two other fans, a heterosexual couple, who had also kissed at some point but were not asked to leave. They considered filing a public accommodations discrimination complaint based on this unequal treatment, but when their attorney brought the matter to the attention of the Dodgers, the organization responded with a public apology, free tickets right behind home plate for another game, and the donation of 5,000 free tickets to Dodgers Stadium to three gay and lesbian organizations. The Dodgers also promised to provide sensitivity training for their security guards. Said Goldey, "I think they stepped up to the plate more than they had to. All we wanted was an apology. I'm very proud to be a Dodger fan." Their attorney, Bernie Bernheim, said he was "shocked" at the Dodgers' response, which he characterized as "atypical and outstanding." Lambda Legal Defense Attorney Jon Davidson commented that this result "is a home run for all concerned." _Associated Press_, Aug. 24. Somebody in the Dodgers' P.R. department is truly "on the ball." A.S.L.

Litigation Notes: Criminal

The U.S. Court of Appeals for the 10^th Circuit upheld a death sentence for Gerardo Valdez, who killed a gay man because the victim refused to listen further to Valdez's sermon on the sinfulness of homosexuality. _Valdez v. Ward_, 2000 WL 1034637 (July 27). According to the opinion by Chief Judge Seymour, Valdez met the victim, Juan Barron, in a bar in rural Oklahoma where, after consuming numerous drinks, Valdez, Barron and another man went to Valdez's home. At the bar, Valdez alleged rejected a sexual advance from Barron. At Valdez's home, Valdez "began preaching to Mr. Barron out of the Bible, attempting to convince Mr. Barron of the sinfulness of his homosexuality. When Mr. Barron rejected this proselytizing, Mr. Valdez brought out his gun. He began slapping Mr. Barron, telling him he was going to kill him and that according to the Bible homosexuals do not deserve to live. Ordering Mr. Barron to remove his clothes, Mr. Valdez gave him the option of death or castration, and continued to hit and slap him. When Mr. Barron started to fight back, Mr. Valdez shot him twice in the forehead and then hit him in the head with the gun. While Mr. Barron lay on the couch, Mr. Valdez retrieved a knife and cut his throat, finally killing him. Mr. Valdez threatened to kill Mr. Orduna if he told anyone about the murder, and demanded Mr. Orduna's assistance in disposing of the body. The two men carried Mr. Barron, the couch, and the surrounding rug to the backyard, where they set them on fire." When the police began investigating Barron's disappearance months later, they eventually found Orduna, who told them what had happened, leading to the arrest of Valdez and his subsequent confession. He was convicted of first degree murder and sentenced to death by the jury, and the Oklahoma Court of Criminal Appeals affirmed the sentence. Rejecting Valdez's petition for habeas corpus, the 10^th Circuit concluded that Valdez's claims of constitutional violations in his interrogation and trial were without merit, and that the state courts had reasonably denied his demand that the jury be charged on a diminished capacity defense based on his alcohol consumption at the bar that night.

On July 12, the California Supreme Court refused to review the Court of Appeal decision in _In re On Habeas Corpus of Rosenkrantz, Terhune v. Superior Ct. of Los Angeles County_, 95 Cal. Rptr. 2d 279, 80 Cal. App. 4th 409 (2nd Dist., Div. 1, April 27, 2000), which held that the state parole board was abusing its discretion by refusing to set a parole date for Robert Rosenkrantz, a gay man serving a life sentence for murdering Steven Redman, who had "outed" Rosenkrantz to his father on the day of his high school graduation and then virtually goaded Rosenkrantz into killing him. Even if the parole board sets a date, Rosenkrantz's hopes for being released from prison must be dim in light of Gov. Davis's stated opposition to paroling any convicted murderers, regardless of their state of rehabilitation or the circumstances of their offense. _Los Angeles Times_, July 13.

In _Winckler v. Commonwealth of Virginia_, 2000 WL 978757 (Va. Ct. App., Alexandria, July 18, 2000), the court affirmed the capital murder conviction of Domica Chantel Winckler for the murder of Stacey Hanna. The details of this case are too gruesome to relate here, but Hanna, a lesbian, was killed by Winckler, also a lesbian, in concert with a group of other lesbians who believed that Hanna had lied and interfered with various relationships in the group. Those with a taste for gore are referred to the detailed narrative provided by Judge Annunziata in the court's opinion. Although a jury passed the death sentence on Winckler, the trial court imposed life imprisonment instead.

This comes under the heading of taking care of unfinished business. . . Although the Massachusetts Supreme Judicial Court many years ago cast doubt in a heterosexual case on the enforceability of the state's sodomy law against consenting adults in private, the statutes are still there and not definitively declared unconstitutional in relation to gay sex. As such, Massachusetts remains the last state in New England with a sodomy law, an intolerable situation for Gay & Lesbian Advocates & Defenders, New England's gay rights public interest law firm. So GLAD has filed a suit asking the Supreme Judicial Court to issue a declaratory judgment doing away with the laws. Massachusetts advocates have tried to obtain legislative repeal several times without success. Massachusetts statutes embody the antiquarian, pre-Model Penal Code style of sex crimes laws, prohibiting the "crime against nature" and the commission of "unnatural acts." Anyone who wants to know exactly what is forbidden has to consult the case law, which applies these statutes to oral and anal intercourse. The state attorney general and two local prosecutors were named as defendants. _Boston Globe_, July 15.

Manatee County, Florida, Circuit Judge Marc Gilner denied an application from a gay man for a restraining order against the applicant's abusive same-sex partner, according to an Aug. 7 press release from the ACLU Lesbian & Gay Rights Project. Gilner held that the statute authorizing such injunctions applies only to persons living together as a "family," and does not apply to "roommates." The applicant stated in his request that he and his partner had been living together in a "monogamous, committed relationship." When the applicant asked Gilner to reconsider his denial, the judge issued a hand-written statement, asserting: "Florida law does not recognize same-sex, live-in relationships as family." Gilner apparently was relying on a Florida mini-DOMA statute banning recognition of same-sex marriages in the state. The ACLU reported that judges in neighboring Sarasota and Charlotte Counties have issued domestic violence injunctions regardless of sexual orientation, but that clerks in Manatee County have refused to issue applications for such relief since Gilner's ruling. See also _Florida Times-Union_, Aug. 6.

In _People of the State of New York v. Harvey_, 710 N.Y.S.2d 141 (N.Y. App. Div., 3^rd Dept., June 22), a unanimous panel upheld the multiple murder convictions of Michael Harvey in a case where the defendant told police that he had killed the victim in response to a repeated homosexual solicitation. The brief opinion by Justice Spain does not specify the sentence imposed on the defendant, other than to state that he was sentenced to serve the maximum terms on all counts, consecutively. Since the counts on which he was convicted included First Degree Murder, one suspects the result is, in effect, a life sentence. The only issues on appeal were ineffective assistance of counsel, which was brushed aside by the court, and a claim that defendant's statement to police should have been excluded. The court found that defendant was not in custody at the time he was questioned, and that although he had been arraigned on charges for a separate offense at the time of the questioning, no lawyer had yet been appointed for him, so his right to have counsel present was not violated. A.S.L.

Legislative Notes

Opponents of same-sex marriage have managed to qualify initiative measures in two states for presentation to the voters in November. The Nevada measure will add a definition of marriage to the state constitution, as follows: "Only a marriage between a male and female person shall be recognized and given effect in this state." The authors of the amendment are obviously not heavy hitters in the field of English composition, but the idea gets across. The Nebraska measure would add the following to the state constitution: "Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership or other similar same-sex relationship shall not be valid or recognized in Nebraska." This one is, unfortunately, both better written and more far-ranging. _Las Vegas Review Journal_, July 8; _Omaha World-Herald_, July 8.

The Naperville, Illinois, school board voted Aug. 14 by 5-2 to expand the district's anti-harassment policy to include sexual orientation, reacting to testimony at a board hearing about gay students being threatened in the schools. Gay students, their parents, and some ministers appeared at the hearing to champion the new policy, claiming that teachers had done nothing to help the student victims. Schools Superintendent Donald Weber said, "I'm appalled by the action or lack of action in our schools if what I've heard is true." _Chicago Sun-Times_, Aug. 15.

The Decatur, Georgia, City Commission voted June 5 to prohibit discrimination based on "sexual orientation, sexual preference or transgender status" in municipal employment. The city has 190 full-time employees. _Southern Light_, June 15.

Opponents of the ordinance forbidding sexual orientation discrimination in Grand Rapids, Michigan, were unsuccessful in obtaining sufficient petition signatures to place a repeal question on the ballot in November 2001. _Grand Rapids Press_, Aug. 10.

The Charlottesville, Virginia, school board voted 4-1 on Aug. 3 to add "sexual orientation" to the prohibited grounds of discrimination in its official policies and student code of conduct. _Richmond Times-Dispatch_, Aug. 5.

A proposal to amend the New York City Human Rights Ordinance to ban discrimination on the basis of gender identity, self-image and appearance won a strong editorial endorsement from the _New York Times_ on Aug. 29. The measure has 28 co-sponsors in the council, but neither Council Speaker Peter Vallone, who controls the calendar, nor Mayor Rudolph Giuliani, has taken any public position on this issue. The _Times_ urged speedy passage, after pointing out that similar measures have been enacted in "nearly two dozen cities, including Atlanta, San Francisco, and Minneapolis."

New York Governor George Pataki (Rep.) signed the recently passed hate crimes bill into law on July 10 in a ceremony at the Westchester Holocaust Center at Manhattanville College. Leaders of gay rights groups were prominent among those in attendance and among the speakers at the event. _New York Times_, July 11. A.S.L.

Boy Scouts Decision Sparks Protest & Reaction

_Boy Scouts of America v. Dale_, 120 S.Ct. 2446 (2000), in which the Court upheld the right of the BSA to exclude gays from leadership and membership, has stimulated significant activism. Eleven members of Congress wrote to President Clinton, urging him to resign as honorary president of the organization. _San Francisco Chronicle_, July 15. U.S. Rep. Lynn Woolsey (D-Calif.) announced that she would file a bill to repeal the federal charter of the Boy Scouts. The charter, first issued in 1916, is an honorary recognition of the BSA of a type routinely given to patriotic, charitable and educational groups. _Associated Press_, July 19. It was also reported at the end of August that the U.S. Department of the Interior, which administers the national park system, had launched an internal investigation to determine the extent of the agency's involvement in Scout activities, preparatory to responding to the Justice Department about whether any activities will need to be curtailed pursuant to an Executive Order issued by President Clinton in June, forbidding sexual orientation discrimination in federal education and training programs. A spokesperson for the BSA, contacted by a reporter to comment on this, asserted that any money the Scouts receive from the federal government is "minimal" and would not affect the program. _Washington Post_, Aug. 31.

Protesters presented a petition with 55,000 signatures calling for the BSA to abandon their anti-gay membership policies on Aug. 21, but attempts by the demonstrators to get into BSA national headquarters in Irving, Texas, to communicate their protest personally was rebuffed by security guards, who turned back the dozen demonstrators, some of whom were wearing their Scout uniforms. _Los Angeles Times_, Aug. 22. Protests took place simultaneously at numerous organizational headquarters of the Boy Scouts around the country, and many school districts and municipalities began to ponder whether they could continue to provide economic subsidies or free meeting space to the organization while being true to their non-discrimination policies. In San Diego, California, the issue went beyond mere debate, as the ACLU filed suit on Aug. 28 on behalf of two local families, arguing that the city should terminate a $1 a year lease arrangement under which the local Boy Scouts have the use of 18 acres of city park grounds for their outdoor camping activities, as well as rent-free use of a city-owned aquatic facility. _Los Angeles Times_, Aug. 29.

The Tucson, Arizona, city attorney, Merle Turchik, advised the City Council that the non-discrimination provisions in the city code do not require the city to suspend all funding to the BSA. Turchik, taking a very formalistic approach, observed that city code sexual orientation provisions apply only to housing, employment, and places of public accommodation, and do not directly address questions of city funding. The city's commission on gay and lesbian issues had recommended that the City Council cut off the funding, arguing that city policies should be construed to prohibit giving taxpayer dollars to discriminatory organizations. The City Council was expected to take up the issue during September. _Tucson Citizen_, Aug. 15.

In Massachusetts, the State's United Way organization told the _Boston Herald_ (July 22) that it would continue to fund Boy Scout Councils in the state, because the five local councils that they fund had all signed anti-discrimination pledges. A reporter trying to verify this story managed to speak with representatives of two of the local councils, one of whom confirmed that his council had never banned anyone from participating because they are gay, while the spokesperson of the other claimed that they supported the national organization's policy and did not know how this would affect their United Way funding. By contrast, the United Way of Southeastern New England has given Rhode Island's Boy Scouts chapter five months to end its current anti-gay policies or otherwise to forfeit United Way funding. The organization voted a general policy, effective in five months, to cease funding any organization that discriminates on the basis of sexual orientation. Last year, the United Way gave the local Boy Scouts $200,000, or about 5% of the Scouting budget in the state. _Providence Journal_, July 19.

In New York City, the Queens Lesbian and Gay Pride Committee sent a letter to Schools Chancellor Harold O. Levy, asking that the public school system cease hosting Scout meetings so long as the organization continues to have an official anti-gay membership policy. A City Councilmember, Christine Quinn (who represents Greenwich Village and neighboring areas), is seeking legislation that would prohibit the Police Department from continuing certain Scout-related activities. _Newsday_, July 19.

In West Hollywood, California, the gay-majority city council passed a resolution prohibiting use of public buildings by groups that "openly discriminate" on any basis covered by the city's anti-discrimination ordinance, including, of course, sexual orientation. A spokesperson for the local Scouts organization said the resolution would have no effect, because the group's meetings in West Hollywood were open to everyone. _Los Angeles Times_, Aug. 23.

Several businesses that have routinely donated to the BSA have begun to reconsider, in light of their own internal anti-discrimination policies. The _Los Angeles Times_ reported on Aug. 25 that Levi Strauss & Co. and Wells Fargo have decided to suspend their financial support as long as the current policy remains in place, that Textron decided not to give its annual donation to a Scout fundraising dinner that has been a tradition in Providence, R.I., and that Chase Manhattan Corp. and Merrill Lynch & Co. were seriously considering discontinuing their financial support for the BSA. A front-page _New York Times_ story on Aug. 29 suggested that Chase Manhattan has already withdrawn its support for Scouts activities, and led with the assertion that in the two months since the _Dale_ decision, "corporate and governmental support for the organization has slipped markedly."

The reaction of BSA spokespeople has been to assert that nationwide membership has increased over the past several years as the anti-gay policy has become better known due to litigation, showing that many parents are delighted to send their children to an organization whose "values" they share. BSA spokespeople have also sought to minimize the level of protest and the amount of financial shortfall that might be created by some donors withdrawing their support over this issue. A.S.L.

Law & Society Notes

In yet another attempt to make the current military policy appear rational, the Defense Department announced July 21 that it will implement a new "anti-harassment action plan," which sounds like every prior such plan, calling for training of military officials about how to administer the "don't ask, don't tell" policy. _Associated Press_, July 22. Meanwhile, the Army claims that an internal investigation found no basis to blame any officers for the murder of Pfc. Barry Winchell by Private Calvin Glover, who was egged on by Spc. Justin Fisher. Glover was convicted of murder, and Fisher plea-bargained to a lesser charge in exchange for his testimony. Responding to charges that there was a climate of homophobia at Fort Campbell, Kentucky, that officers encouraged or at least did nothing to counter, the Army investigation sought to contain the blame at the level of Winchell's first sergeant, who is apparently the Army's designated fall-guy in this case, and concluded that the 101^st Airborne Division does not suffer from an "unacceptable" degree of homophobia. (The idea that any level of homophobia is "acceptable" strikes this observer as a bit odd.) So much for military justice.... _New York Times_, July 19.

On January 27, 1914, the Multnomah County Bar Association in Portland, Oregon, voted to expel Edward McAllister as a member shortly after the state supreme court reversed his sodomy conviction. Although McAllister was not disbarred, his expulsion from the bar association led to the dissolution of his law partnership, shunning from local bar and clients, and his exit from law practice, as he moved to southern rural Oregon and worked as a farmer for the remaining 12 years of his life. A few years ago, historian George Painter was researching a "Vice Clique" scandal in Portland in 1912-13 which resulted in the arrests of 68 gay men, many of whom were then prosecuted for sodomy. He came across McAllister's story, decided an injustice had been done, and contacted the bar association. MBA president Judy Snyder referred the matter to the MBA's Equality Committee, which examined the documentary evidence Painter had uncovered, determined that McAllister was hounded out of the Association solely because he was gay, and recommended his posthumous reinstatement. On June 17, 2000, the MBA Board of Governors unanimously approved the committee's recommendation. Painter is also working on getting a posthumous revocation of an action by the state's Medical Examiners that had ended the career of a gay doctor caught up in the scandal. He hopes that gay history fans in other parts of the country will be inspired to research and remedy similar injustices, as a useful device for enlisting professional associations in the effort to erase homophobia in our society.

Wake Forest University will extend employee benefits plans to cover domestic partners of gay faculty and staff, pursuant to a vote of the board of trustees in July. The plan, which will be effective Sept. 1, was approved on the recommendation of the Faculty Senate. Wake Forest was affiliated with the North Carolina Baptist Convention, which founded the school, but became independent in 1986. _Charlotte Observer_, Aug. 17.

In Baltimore, the Howard Community College board of trustees voted to extend tuition benefits to domestic partners of employees (both same-sex and opposite-sex partners) on Aug. 23. The board does not have authority to extend health benefits, which are controlled by county officials, but College President Mary Ellen Duncan told the trustees that county officials are considering the issue. _Baltimore Sun_, Aug. 24.

Chicago-based Bank One, which has more than 82,000 employees in several states, has announced that it will provide medical, dental, vision and legal service benefits to domestic partners of employees, effect Jan. 1. The bank has not yet specified the qualifications for receiving the benefits. _Columbus Dispatch_, Columbus, Ohio, Aug. 30.

Another important gay rights litigant has passed away. Gary Van Ooteghem, one of the first gay public employees to successfully litigate against his discharge for pro-gay political activity, died from a heart attack, age 58, in Houston on July 6. _See Van Ooteghem v. Gray_, 628 F.2d 488 (5^th Cir. 1980). From the time of his discharge in 1975 from the position of assistant treasurer of Harris County, it took Van Ooteghem ten years to win final vindication, when the cited opinion, which had been subjected to en banc reconsideration, certiorari petitions, and multiple decisions on remand, was finally ended in 1985 with an award of fees to Van Ooteghem's attorneys. The case vindicated the 1^st Amendment rights of gay public employees to advocate for gay rights publicly during non-working time. (Van Ooteghem was fired, in effect, for testifying at a legislative hearing in support of gay rights.) He worked as an accountant, and was a leader in the gay community in Houston, founding or heading a variety of gay and AIDS-related organizations, including serving as president of Houston's chapter of the Log Cabin Republicans. _Houston Chronicle_, July 9.

On July 4, two teenagers murdered Arthur Warren, 26, a gay African-American, in Marion County, West Virginia. The youths admit to having beaten Warren and then run him over to make it look like a hit-and-run accident, but claim they did not intend to kill him. Local law enforcement officials have resisted classifying this as an anti-gay hate crime. On July 20, the Justice Department announced that the Federal Bureau of Investigation was opening a preliminary investigation to determine whether there was a case to be made for violation of Warren's civil rights as a federal offense, in addition to state criminal charges. _Chicago Tribune_, July 21.

The anti-gay Oregon Citizens Alliance obtained sufficient petition signatures to put on the state ballot in November a measure providing that "the instruction of behavior relating to homosexuality and bisexuality shall not be presented in a public school in a manner which encourages, promotes or sanctions such behaviors." Apparently, the Alliance hasn't yet woken up to the significant transsexual threat to Oregon's youth, or they would have been included as well. Basic Rights Oregon, a gay rights organization that will lead the battle against the measure, observed that it might severely limit the effectiveness of AIDS education in the state's schools, as well as undermining the teaching of tolerance. _Los Angeles Times_, Aug. 1.

So much for the "common wisdom" that gays are wealthier than comparable non-gays. In its May issue, _Demography_, a magazine published by the Population Association of America, reports based on figures from the 1990 Census and two respected academic surveys that men who had a same-sex unmarried partner tended to make slightly less than heterosexual men of the same age, even thought they also tended to be better-educated. The earnings disparity did not appear for women with unmarried same-sex partners, even though they also tended to be better-educated than their heterosexual counterparts. _Capitol Times_, Madison, Wisconsin, Aug. 23.

One of the frustrations of dealing with gay and HIV law is that many important federal court decisions, sometimes decisions of first impression, are designated by the court as "unpublished dispositions," and thus under court rules they are not official precedents and are not supposed to be cited as authority in later cases. Well, now a federal appeals court panel has announced that they think such rules are unconstitutional! In _Anastasoff v. United States_, 2000 WL 1182813 (8^th Cir., Aug. 22, 2000), the appellant taxpayer had a dispute with the IRS about whether her refund claim was timely. A prior unpublished decision by the 8^th Circuit, on virtually identical facts, held squarely against her, but the taxpayer argued that the court should ignore the prior ruling, due to the 8^th Circuit's rule providing that unpublished dispositions are not precedential. In a very scholarly opinion, Circuit Judge Richard Arnold reviewed the history of precedent in the American legal process and concluded that federal courts do not have the authority to declare that their unpublished dispositions are not precedents. (In a brief concurring opinion, Circuit Judge Heaney suggests that this case should go to en banc review, because Heaney wants to see that prior unpublished decision reconsidered on the merits.) So, the taxpayer loses, but if this opinion catches on, gay rights and HIV litigants may be the winners!

Sign of the Times: In her nationally syndicated column on Aug. 24, Abigail Van Buren published a letter from a transsexual describing the coming-out process and sexual identity issues, asking Abby to help educate people about transsexuality. In her response to the letter, Abby dismissed the idea that transsexuals are biological "mistakes" (take that, Dr. Laura...), asserted that "Transsexualism is inborn," applauded the letter writer's honesty and the support of the writer's family members, and urged those with questions and concerns to contact P-FLAG. _Chicago Tribune_, Aug. 24.

University of Texas Professors Dennis McFadden (Experimental Psychology) and Craig Champlin (Communication Sciences and Disorders) teamed up to produce some new research about physical differences that correlate with sexual orientation. In research published July 14 in the _Journal of the Association for Research in Otolaryngology_ and summarized in the _Austin American Statesman_ of that date, they found that sexual orientation correlates with differences in how people process sound. Heterosexual men and women process sound waves in different ways. It turns out that lesbians and bisexual women process sounds in ways more like heterosexual men than like heterosexual women. And gay and bisexual men process sound in a "hypermasculinized" fashion. This is tendered as further evidence that sexual orientation has a physical basis and is not solely a psychological phenomenon. (But does it explain why so many gay men are Opera Queens?) A.S.L.

European Court of Human Rights Finds Privacy Right to Group Sex

On July 31, in _A.D.T. v. United Kingdom_, Application No. 35765/97, <http://www.echr.coe.int/hudoc>, a seven-judge Chamber of the European Court of Human Rights held that the conviction of a gay man for engaging in consensual, non-sado-masochistic, sexual activity (oral sex and mutual masturbation) with four other adult men in his own home violated Article 8 (right to respect for private life) of the European Convention on Human Rights. The applicant had hosted a sex party in his home and made a video of it, which police found while searching his home with a warrant. He was convicted of "gross indecency" between men, contrary to sec. 13 of the Sexual Offences Act 1956 (England and Wales), and given a conditional discharge for two years. The sexual activity would have been legal under the Sexual Offences Act 1967 (England and Wales) but for sec. 1(2)(a): "An act which would otherwise be treated ... as being done in private shall not be so treated if done -- (a) when more than two persons take part or are present ..."

Relying on _obiter dicta_ in _Laskey v. United Kingdom_ (1997) (which involved a video of group sado-masochistic sexual activity in a private home), the U.K. Government argued that the number of individuals present and the video recording took the sexual activity outside the scope of "private life." The Court disagreed, finding no "likelihood of the contents of the tapes being rendered public." The Court also held that the mere existence of the criminal legislation interfered with the applicant's right to respect for his private life under Article 8(1). Thus, even in the absence of a prosecution, he would have had standing to challenge the law under the Convention, as a group-sex enthusiast fearing prosecution.

The U.K. Government then argued under Article 8(2) that the interference was "necessary for the protection of morals or the rights or freedoms of others." There was a distinction between "intimate, private and therefore acceptable homosexual activity (between two men), and group, potentially public and therefore unacceptable homosexual activity (between more than two men)"; "the possibility of [group] activities being publicised is inevitable ... all the more where the activities are video taped," the U.K. government argued. The Court agreed that "at some point, sexual activities can be carried on in such a manner that State interference may be justified, either as not amounting to an interference with the [Article 8(1)] right ..., or ... for the protection of ... health or morals." But the applicant's activities "were with a restricted number of friends in circumstances in which it was most unlikely that others would become aware of what was going on," and the prosecution was "for the activities themselves, ... not for the recording, or for any risk of it entering the public domain." The Court concluded that, "[g]iven ... the absence of any public health considerations and the purely private nature of the behaviour ..., the reasons submitted for the maintenance in force of legislation criminalising homosexual acts between men in private ... are not sufficient to justify the legislation and the prosecution."

The Court declined to consider the question of discrimination under Article 14, in that group sexual activity between women or between men and women (as long as there are no sexual acts between two men) is legal in England and Wales. This would have been a far easier basis on which to decide the case, and would have postponed the question of an Article 8 right to engage in group sexual activity. However, following its practice of avoiding Article 14 whenever possible, the Court boldly continued down the road that U.S. Supreme Court Justice Byron White refused to take in _Bowers v. Hardwick_ in 1986. Having already found an Article 8 right to private, consensual, adult sexual activity in _Dudgeon v. United Kingdom_ in 1981, and excluded sado-masochistic sexual activity (causing injuries that are more than "trifling or transient") in _Laskey_, the Court extended the right to group sexual activity, or at least to groups of three to five. The Court reserved the right to draw a line somewhere between five and U.S. Supreme Court Justice Scalia's example in _Barnes v. Glen Theatre_, Inc., 501 U.S. 560 (1991) ("60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another"). "Public health considerations" might be invoked in the context of a sauna or backroom, let alone a covered football stadium.

The "exception to the privacy exception" in the U.K. legislation is now effectively unenforceable, although its formal removal from the statute book will not take place until at least a year or two after the next elections (not expected before May 2001). The amendment required by the Convention will probably be included in a comprehensive reform of sexual offences legislation recommended in the Home Office's Sex Offences Review Team's consultation paper, published on July 26 (http://www.homeoffice.gov.uk/new.htm, views sought by March 31, 2001). _Setting the Boundaries: Reforming the law on sex offences_ recommends the repeal of several offences in the Sexual Offences Act 1956: buggery (sec. 12) and gross indecency between men (sec. 13) (which appear under the heading "Unnatural Offences"), as well as assault with intent to commit buggery (sec. 16) and solicitation by men in a public place for an immoral purpose (sec. 32). The Review Team concluded that the criminal law "should not treat people differently on the basis of their sexual orientation. Consensual sexual activity between adults in private that causes no harm to themselves or others should not be criminal." As for "inappropriate sexual behaviour in public places, including public toilets," they recommended "a new [sex and sexual orientation neutral] public order offence to enable the law to deal with sexual behaviour that a person knew or should have known was likely to cause distress, alarm or offence to others in a public place." _Robert Wintemute_

Other Developments in European and U.K. Law

Protocol No. 12: The draft Protocol creating a free-standing non-discrimination right was adopted by the Committee of Ministers (representatives of the 41 member state governments) of the Council of Europe on June 26. (See http://www.coe.fr/cm/dec/2000/715/43.htm.) The Committee did not change a single word of the substantive Article of the Protocol, rejecting the Parliamentary Assembly's opinion that "sexual orientation," and a statement that "men and women are equal before the law," should be added. (See [2000] L.G.L.N. 38.) The Protocol will be opened for signature by member states on Nov. 4 in Rome, on the 50th anniversary of the European Convention on Human Rights. It will come into force when ten member states have ratified it, and will not apply to any member state that chooses not to ratify it. The U.K. Government abstained from voting and seems determined not to ratify the Protocol. Although inclusion of "sexual orientation" was historically justified by past and current discrimination, and would have been symbolically very important, it is unlikely to have a significant effect on the legal protection the Protocol provides against sexual orientation discrimination. Nor is the U.K.'s apparent intention not to ratify the Protocol as serious an issue for the lesbian, gay, bisexual and transgendered minority as it is for women, ethnic minorities and persons with disabilities. Most sexual orientation or gender identity discrimination can be challenged under the existing non-discrimination Article (14), combined with Article 8 (right to respect for private life).

Armed Forces: On July 25, the European Court of Human Rights awarded the four lesbian and gay applicants dismissed by the U.K. Armed Forces non-pecuniary damages of about $114,000 (emotional and psychological impact), pecuniary damages of around $370,000 (loss of earnings and pension benefits), and costs and expenses of the U.K. and Strasbourg proceedings of around $74,000. The total of $558,000, generous by the Court's standards, was less than what the applicants had claimed and more than what the U.K. Government had offered. (See _Lustig-Prean & Beckett v. United Kingdom_, _Smith & Grady v. United Kingdom_, http://www.echr.coe.int/hudoc.) Compensation claims by more than 80 lesbian and gay military personnel who were dismissed before the policy was changed (see [2000] L.G.L.N. 24) remain to be settled.

Employment Discrimination: In exercising the new anti-discrimination competence under Article 13 of the European Community Treaty, the political priority of the 15 member states was clearly race discrimination against immigrants and asylum-seekers from outside the European Union. Just over seven months after the Commission's proposal, they speedily adopted "Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin," Official Journal L 180/22 (July 19, 2000). The new Directive is far broader than existing EC sex discrimination law, covering not only employment and social security but also social protection (including healthcare), social advantages, education, and supply of goods and services (including housing).

The proposed Directive on discrimination (only in employment) based on religion or belief, disability, age or sexual orientation (see [2000] L.G.L.N. 12, 38) now appears to be in the slow lane. The U.K. Government, which has refused to legislate with regard to religion, age and sexual orientation, and would be cautious about extending the Disability Discrimination Act 1995, will probably try to make sure it stays there. The Christian Institute (http://www.christian.org.uk), which has led campaigns against an equal age of consent and the repeal of Section 28, is now urging the U.K. Government to veto the proposed Directive, unless "religion or belief" and "sexual orientation" are deleted entirely, because of their fears about its application to religious institutions.

Although the operative text of the proposed Directive does not yet contain any express exception for employment benefits for partners, the Commission's Explanatory Memorandum, COM (1999) 565 final (Nov. 25, 1999), http://europa.eu.int/eur-lex/en/com/dat/1999/en_599PC0565.html, states: "With regard to sexual orientation, a clear dividing line should be drawn between sexual orientation, which is covered by this proposal, and sexual behaviour, which is not. Furthermore, it should be underlined that this proposal does not affect marital status and therefore it does not impinge upon entitlements to benefits for married couples." It appears that a similar statement regarding marital status and benefits has been added as a recital in the preamble of a more recent draft of the proposed Directive.

Section 28: The U.K. Government's current efforts to repeal Section 28 for England and Wales (see [2000] L.G.L.N. 39, 60, 130) ended on July 24, when the House of Lords rejected repeal by a vote of 270 to 228 (http://www.parliament.the-stationery-office.co.uk/pa/ld199697/ldhansrd/pdvn/home.htm, Columns 97-126) The Government then removed the clause effecting the repeal from its Local Government Bill. It now seems unlikely that Section 28 will be repealed until after the next elections (if Labour are re-elected). Even if a special repeal bill is introduced in the House of Commons in the next session of Parliament, beginning in November, the House of Lords can block it again. If the Labour Party were to include a commitment to repeal Section 28 in its 2001 election manifesto (platform) (there had been one in 1992 but it was dropped in 1997), by convention, the House of Lords would not block repeal. Otherwise, the House of Commons will have to pass a repeal bill first introduced in the House of Commons (this was not the case for the recent attempt) on two occasions, one year apart, before the Government can invoke the Parliament Acts 1911 and 1949 to overrule the House of Lords.

The net result of the Government's strategy is that Section 28 ("no intentional promotion of homosexuality") remains on the statute book, joined by its intended replacement, sec. 148 of the Learning and Skills Act 2000, which provides that: "(1A) The Secretary of State must issue guidance designed to secure that when sex education is given to registered pupils at maintained schools - (a) they learn the nature of marriage and its importance for family life and the bringing up of children, and (b) they are protected from teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned. (1B) ... [G]overning bodies and head teachers must have regard to the Secretary of State's guidance." On July 7, the Department for Education and Employment published its final _Sex and Relationship Education Guidance_, http://www.dfee.gov.uk/sreguidance. Sex and relationship education "is not about the promotion of sexual orientation or sexual activity - this would be inappropriate teaching" (Intro., para. 9). "Young people, whatever their developing sexuality, need to feel that sex and relationship education is relevant to them and sensitive to their needs ... [T]eachers should be able to deal honestly and sensitively with sexual orientation, answer appropriate questions and offer support. There should be no direct promotion of sexual orientation. Schools need to be able to deal with homophobic bullying" (paras. 1.30-1.32.). Amazingly, the Guidance manages not to use the words "homosexual", "lesbian", "gay", "bisexual" or "heterosexual" even once!

Transsexuals: On 26 July, the U.K. Government's Home Office published the _Report of the Interdepartmental Working Group on Transsexual People_, http://www.homeoffice.gov.uk/new.htm. Having been asked "to consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexual people, having due regard to scientific and societal developments, and measures undertaken in other countries to deal with this issue," the Working Group does not actually make any recommendations, merely identifying three options to put out to public consultation: "to leave the current situation unchanged; to issue birth certificates showing the new name and, possibly, gender; and to grant full legal recognition of the new gender subject to certain criteria and procedures" (para. 5.5). With regard to marriage, the Working Group notes: "Legal recognition of a change of sex would have implications for pre-existing marriages. If a subsisting marriage continued after one of the partners had changed sex, this would conflict with the current legal position that a person can be married only to someone of the opposite (legal) sex. It might therefore be necessary to require, as in most countries which allow marriage after a change of sex, that any previous marriage should be dissolved before a change of sex could be legally recognised" (para. 4.17.). _Robert Wintemute_

Canada Denies Asylum To Gay African Emigrant.

Jemal Mohammed Talke, a gay immigrant to Canada, made an application for judicial review after his asylum application based upon a well founded fear of persecution as a homosexual was denied. _Talke v. Canada_, 2000 CarswellNat 1531 (July 19). The Federal Court of Canada, Trial Division, agreed with the Canadian Immigration and Refugee Board (IRB) that Talke failed to meet the burden of satisfying the tribunal that he had a well-founded fear of persecution.

Talke is a native of Eritrea, a small and new African country that declared and won its independence from Ethiopia in 1993. Talke was a member of the fighting force for that independence and later served in the Eritrean military for two years, then earned a BA from an Eritrean university at the government's expense. After his graduation, he received a passport from his government to study in the US on a US scholarship. In 1997, before finishing his studies, he immigrated to Canada and claimed refugee status and sought asylum.

Talke alleges that the IRB erred in many respects, including drawing an analogy of Eritrea's policies toward women to determine what Eritrea's government policies on homosexuality may be. Also, Talke objected to the finding that a 10-day jail term for a homosexual act is not persecution and that the Ethiopian Penal Code, a code that persecutes homosexuals, is not being used by the Eritrean government until the government passes its own legislation. Talke claimed to have been beaten, detained, and removed from active military duty.

Judge Rouleau found that although that there may seem to be some inconsistencies in the IRB decision, it does sustain a finding that Talke failed to meet his burden of proof. What the court found unable to be explained away was the fact that Talke's homosexual act complained of was before his military service. Rouleau found that the Eritrean government was obviously aware of his conduct during his service years but still permitted him to pursue his course of studies and granted him a passport to leave the country in order to improve his education. "If the authorities were that stringent and indeed lacking in intent to reform the government and not determined to improve the old Penal Code systems, how can it be reasonably inferred that they were not aware of his homosexual past in light of the largess shown by this government by allowing him to pursue his education abroad?" The court further agreed with the IRB that there were credibility issues in light of all of what they considered to be pertinent facts, and affirmed the asylum application dismissal. _K. Jacob Ruppert_

Other International Notes

On July 28, the Federal Court of Australia declared that a provision of the law of the state of Victoria, restricting the availability of fertility treatment (including performance of in vitro fertilization) to married women or women living in a heterosexual partnership relation, violated the rights of single women as protected by Section 22 of the Commonwealth Act, which prohibits discrimination on the basis of marital status in providing goods and services. The Victoria law had been used to deny in vitro services to lesbians as well as single heterosexual women. Intervening to defend the law when representatives of the government took a "neutral" position in the case, the Catholic Church argued that other international human rights treaties guaranteed a child the basic right to be raised by its parents, and contended that this right would be abridged by allowing children to be born to single mothers. This argument did not persuade Justice Sundberg, writing for the court in _McBain v. State of Victoria & Others_, 2000 FCA 1009, but it made an impression on Australia's Prime Minister, John Howard, who announced on August 1 that he will seek an amendment to the Commonwealth Sex Discrimination Act. Howard stated his belief that the drafters of the sex discrimination law did not intend to prohibit Australia's states from restricting the practice of IVF in this way, and denied that such an amendment would constitute an attack on single parents, stating: "The overwhelming bulk of single-parent families are the result of broken relationships and where it was never the intention in the first place that children should be denied the care and affection of both a mother and a father. To suggest for a moment that this is some way an attack on single-parent families is ridiculous." Howard's announcement provoked a national debate, with outspoken openly-gay Senator Brian Greig accusing the P.M. of pandering to homophobia, and a spokesperson for Australia's Green party stating that they would "fight this all the way down the line." _Canberra Times_, Aug. 2. The bill was formally introduced on Aug. 17, and debate over the issues has dominated the headlines in Australia ever since. _The Age_, Aug. 18.

A new biography of Scotland's King James VI (who later became King James I of England) by Prof. Michael Young of Illinois Wesleyan University claims that James, although married and the father of numerous children, was actually gay, and that he severely undermined the monarchy's authority by bestowing favors and titles on several young men with whom he conducted romantic activities, including the Duke of Lennox, the Earl of Somerset, and the Duke of Buckingham. Wrote Young, "James was homosexual and the country knew it. His behaviour and effeminacy that surrounded the court contributed to the development of the mentality that could contemplate civil war." _The Scotsman_, July 31.

Brian Souter, chief executive of the Stagecoach corporation, spearheaded the opposition in Scotland to the repeal of Section 28 of the Local Government Law, which prohibited use of funds under the law in any activities that might promote homosexuality or depict it as a normal way of life. Imagine his embarrassment when one of his chief lieutenants at Stagecoach, Barry Hinkley, was arrested in Houston, Texas, in a gay prostitution sting by local police. Hinkley ordered up a male escort from a phoney service set up by the vice squad to entrap gay men. He has resigned as an executive director of the company. _The Guardian_, July 26.

The government of the Canadian province of British Columbia is going to court to seek marriage licenses for same-sex couples. On July 20, Attorney-General Andrew Petter announced that the province would file suit in the British Columbia Supreme Court, seeking a declaration that the federal common law (as recently reinforced by federal statute) limiting marriage to opposite-sex partners violates the Canadian Charter of Rights and Freedoms, in light of recent decisions by the Canadian Supreme Court. If the courts act quickly enough, Canada might beat the Netherlands to the punch in becoming the first jurisdiction in the world that allows same-sex partners to marry on the same basis as opposite-sex partners, but don't hold your breath! _Globe and Mail_, July 21.

The long-running sodomy trial of Anwar Ibrahim, former Deputy Prime Minister of Malaysia, concluded with a conviction and a nine-year prison sentence, which will begin after Ibrahim finishes serving a 6 year sentence for corruption imposed last year. The leader of the opposition party in Malaysia characterized the proceedings as a "kangaroo court," and the prosecution and conviction was widely seen as a frame-up by Ibrahim's political enemy and former mentor, Prime Minister Mahathir Mohamad. _Birmingham Post_, Aug. 9.

Justice Ray Taillon of the Ontario (Canada) Court of Justice, sitting in Oshawa, dismissed charges of operating a "bawdy house" that were brought against the proprietors of an internet website that provided access to images of naked women engaged in fondling themselves and simulating lesbian sex. The prosecutor, Bryan Davies, had charges that women performing explicit sexual acts over the Internet for paying customers were, in essence, engaging in a form of prostitution, thus subjecting their employer to the bawdy house charge. But Justice Tailoon stated that the question whether to extend existing law to this situation is for legislators, not the courts. _Toronto Star_, Aug. 24.

A dispute over the Israeli Board of Film Review's decision to restrict viewership for a film called "Edge of Seventeen" to those age 18 and above reached the High Court of Justice (the Israel Supreme Court) on July 27. The lawsuit, brought by the nation's gay rights movement organization, argued that this was a film that would be especially valuable for teenagers to see, dealing sensitively with problems encountered by gay youth, prompting the Supreme Court to give the Board twenty days to come up with a sufficient justification for the restriction it was imposing. The board subsequently backed down, announcing on Aug. 15 that it would reduce the restriction to age 16 and above. Although the plaintiffs had argued that there should be no age restriction on the film, they had actually suggested the 16-and-above standard as a compromise, and are now contemplating whether to bring the case back to the Supreme Court. _Society for the Protection of Personal Rights for Gay, Lesbians, Bisexuals and Transgendered v. Board of Film Review_, No. 4902/00 (Israel High Court of Justice). The plaintiffs are represented by Aeyal Gross and Eran Lev. _Postings to Queerlaw by Aeyal Gross_, Aug 1 & 15.

Israel's Prime Minister, Ehud Barak, has proposed an initiative to secularize many areas of Israeli law that are presently controlled by the rabbinate. On Aug. 29, Justice Minister Yossi Beilin announced a legislative proposal to allow unmarried couples to register with the government and attain essential the same rights and benefits as married couples. (At present, many Israeli couples live together without benefit of marriage because of their refusal or inability to comply with the requirements of the rabbinate, which will not marry religiously-mixed couples. Marriage in Israel is under the jurisdiction of religious authorities, and some couples travel outside of Israel in order to get married, because the country will recognize marriages performed elsewhere.) However, Beilin told a group of the lesbian and gay leaders that he had decided to limit the proposed law to opposite-sex couples, opining that the proposal as it stands will be difficult to enact, and that adding registration for same-sex couples would make it politically impossible. Israel's only openly-gay elected official, Tel Aviv city councillor Michal Eden, commented to the _Jerusalem Post_ (Aug. 30) after the meeting with Beilin: "I find it strange that a bill intended to correct the injustice caused to many sectors of the public excludes homosexuals and lesbians and thus perpetuates the existing discrimination."

New Zealand's Broadcasting Standards Authority has rejected a complaint filed by the Christian Heritage Party and several individuals objecting to an episode of the British gay soap opera, _Queer as Folk_, recently broadcast in New Zealand. The episode depicted an incident of gay sex between an adult and a 15-year-old boy. The complainants pointed out that the act depicted was illegal, and also objected to blasphemous language and the broadcasting at a time (9:30 pm) when minors might be watching. The Authority noted that numerous television programs depict illegal activity (indeed, it is a staple of crime drama), and that the program could not be said to have condoned pedophilia. It also ruled that the program did not breach standards of good taste and decency required for broadcasting in New Zealand. _The Dominion_, July 31.

The Chief Personnel officer for Makati City, Philippines, issued a memorandum warning city employees that anybody dressing in a manner revealing of their "sexual preferences" during business hours would be subject to discharge. The memorandum was issued with the approval of the mayor, and sparked outrage from a local gay rights organization. _Philippine Daily Inquirer_, Aug. 23. A.S.L.

Professional Notes

Gay & Lesbian Advocates & Defenders, New England's lesbian and gay public interest law firm, will honor Mary Bonauto, the director of GLAD's Civil Rights Project, on ten years of magnificent service with the organization, at its "Spirit of Justice Dinner" on September 22. The dinner will be held at the Royal Sonesta Hotel in Cambridge, Mass. To order tickets by phone, call 617-426-1350.

Lesbian attorney Leslie Katz, a member of the San Francisco Board of Supervisors since June 1996, surprised local gay politicos by announcing she will not run for reelection. A switch from at-large to district voting threw Katz into the same district with the popular openly-gay board president, Tom Ammiano. Rather than move out of the district, she will seek other opportunities. Katz is currently the only openly-lesbian member of the Board. _San Francisco Examiner_, July 9.

Robert Borquez, the gay attorney whose discharge case led to a historic decision by the Colorado Supreme Court recognizing a common law right of privacy, is running for the Democratic nomination for Colorado State Senate District 28. _Rocky Mountain News_, Aug. 23. At press time, he was resisting pressure from a fellow Democrat, Suzanne Williams, who wants to run against the Republican who has the nomination, and is trying to persuade Borquez to run instead to succeed Williams in the state House.

Attorney Maureen Murphy of New Haven, Connecticut, was the subject of a feature article in the _Hartford Courant_ (Aug. 14) focusing on her high profile role in two on-going gay rights law suits. In one, Murphy represents a discrimination plaintiff against Albertus Magnus College; in the other, she represents gay citizens of West Hartford who have been denied family rates at a municipal swimming pool. According to the article, Murphy, a lesbian, "has become the 'go-to' lawyer for the gay community, although she appears uncomfortable with the mantle, preferring instead to share the spotlight with other attorneys." Joe Grabarz, the openly-gay executive director of the Connecticut Civil Liberties Union, said of Murphy: "She understands civil liberties issues right down to the marrow of her bones. She's just a good attorney and a nice person, and that's a rare combination."

The _Washington Post_ published a feature article on July 24 about openly-gay attorney Edward Flanagan, the Vermont State Auditor, who is seeking the Democratic nomination for the United States Senate in a primary election in September and, if successful, will take on incumbent Republican Senator James M. Jeffords in the general election. The article noted that Flanagan would be the first openly-gay member of the U.S. Senate if elected, and commented favorably on his service in Vermont and the achievements to date of his campaign.

Peter Cicchino, age 39, an openly-gay professor at American University Washington College of Law, died July 8 in Washington, D.C. A Harvard Law School grad, Cicchino was a co-founder of the Harvard Law School Association Lesbian Gay Bisexual Alumni/ae Committee. He founded and directed the Lesbian and Gay Youth Project at the Urban Justice Center in New York, and worked as a staff attorney at the ACLU Lesbian and Gay Rights Project with Skadden Fellow funding. He had joined the law faculty two years ago. During the final months of his illness, he was honored by a conference at his law school examining his life and scholarship, and the initiation of a public service award in his name. The New Jersey State Legislature and the Kearny, N.J., Town Council both passed resolutions honoring him this spring. (His father, also named Peter Cicchino, is a member of the Kearny Town Council.) _Star-Ledger_, Newark, N.J., July 9.

Dan Foley, a non-gay lawyer who was the first to champion the same-sex marriage case in Hawaii and argued the original appeal in the Hawaii Supreme Court leading to the historic opinion in _Baehr v. Lewin_, 852 P.2d 44 (Haw. 1993), holding that the refusal to issue marriage licenses to same-sex couples was sex discrimination under the state constitution, has been appointed by Governor Ben Cayetano to a seat on the Intermediate Court of Appeals, the state's second highest court, to fill a vacancy resulting from the recent elevation of another judge to the state Supreme Court. _Honolulu Advertiser_, July 28.

A summer taker of the Connecticut bar examination reports that an essay question raised the issue whether a male church minister's molestation of a young girl would subject the church to liability for negligent hiring, where it turns out that the church's hiring process had failed to turn up the information that the minister had engaged in a homosexual relationship in the past. What will those imaginative state bar examiners think of next? We would be curious to know how they are allocating points for answering that question. . . A.S.L.

AIDS & RELATED LEGAL NOTES

7^th Circuit Rejects Privacy Challenge to Illinois AIDS Confidentiality Law

Upholding the decision of a District Court, a panel of the U.S. Court of Appeals for the 7th Circuit found that Donald J. Sierakowski lacked standing to bring a suit relating to an unauthorized HIV test. He was tested without his consent under Illinois statutes. _ Sierakowski v. Ryan_,. 2000 WL 1060600 (Aug.3 2000).

Section 8(b) of the Illinois AIDS Confidentiality Act provides that "written informed consent" is required before an HIV test is given, but also provides that consent is not required when a doctor finds that "such testing is medically indicated to provide appropriate diagnosis and treatment . .. provided that the subject of the test has otherwise provided his or her consent to such physician for medical treatment." Due to a seizure disorder, Sierakowski must have evaluations of his liver functions and blood tests done every three months. In November 1996, Sierakowski was admitted to a hospital by his doctor. When asked by the hospital for authorization for an HIV test, he refused. Sierakowski had never previously granted such consent. At his next visit to his doctor, he was told that he had been tested for HIV and that the result was negative. In November 1998, Sierakowski filed a complaint claiming that because it provided for testing for HIV without his specific consent, section 8(b) of the Act violated his 4th and 14th Amendment protection against unreasonable search and seizure.

District Judge James Holderman (N.D. Ill.) dismissed the case, finding that Sierakowski had not shown an "ongoing or threatened violation of federal law" or "that he is likely to be tested again for AIDS without consent." Holderman found that Sierakowski's injuries were "too abstract and conjectural to give him standing to seek injunctive and declaratory relief."

Writing for the 7^th Circuit panel, Judge Joel Flaum, found that Supreme Court precedents do not support Sierakowski's claim to have standing to bring suit. To seek "prospective equitable relief," the Court found, that it was necessary "to show a significant likelihood and immediacy of sustaining some direct injury. . . . Sierakowski's prospects of future injury are purely speculative," Judge Flaum wrote. Sierakowski claimed that he was tested previous to November of 1996 without authorization and that his medical situation required him to see a doctor more often than most people. _Daniel R Schaffer_

2^nd Circuit Upholds Dismissal of ADA Discrimination Claim by HIV+ Who Sought Disability Benefits

In _DiSanto v. McGraw-Hill, Inc./Platt's Division_, 220 F.3d 61 (July 11), the U.S. Court of Appeals for the 2nd Circuit affirmed the dismissal as a matter of law of a wrongful discharge action brought by an HIV+ plaintiff because the plaintiff could not reconcile his claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101, which required him to show that he could perform essential job functions if given reasonable accommodations when he was dismissed, with his application for Social Security benefits, which disclaimed his ability to work at that time. The court's per curiam ruling also upheld judgment for the defendant on a claimed violation of the New York Human Rights Law, N.Y. Exec Law §296 ("NYHRL"), because, at the time in question, the law did not require employers to make reasonable accommodations for disabled employees.

The plaintiff, Robert J. DiSanto, alleged that his discharge violated the ADA and the NYHRL because he was HIV+ and suffering from depression, because his disability was not accommodated, and because he was subjected to a hostile working environment. At trial, the evidence showed that after his April 1995 discharge, he filed a claim for disability benefits, asserting that due to the combination of depression and HIV he had been unable to work since July 30, 1994. Yet, in his ADA/NYHRL complaint, he alleged that he was a qualified individual with a disability (i.e., able to perform the functions of his job with reasonable accommodation) at the time of the discharge. After trial, the jury found for the employer on the to failure to accommodate and hostile working environment claims, but found in favor of DiSanto on the discriminatory discharge claim. The jury awarded him $180,000 in back pay, $100,000 in compensatory damages, and $1 million in punitive damages. The defendants then moved for judgment as a matter of law pursuant to Rule 50 of the Fed R. Civ. Pro., arguing that DiSanto could not perform the essential functions of his job as a salesman when he was dismissed. The trial court agreed, ruling that under the NYHRL as it was then in force in 1997, an employer had no obligation to provide reasonable accommodation to a disabled employee. As to the ADA claim, the court found that in DiSanto's application for Social Security benefits, he claimed he could not perform his job because he was too depressed to work for a substantial period prior to his discharge. While such a representation would not automatically preclude DiSanto from going forward with an ADA claim, a 1999 Supreme Court decision, _Cleveland v. Policy Management Systems_, 119 S.Ct. 1597, requires him to reconcile this claim with his claim at trial that he was able to work, if given reasonable accommodation. The trial court found that DiSanto failed to do so at trial.

The appeals court undertook a review of the record de novo as to the NYHRL and ADA claims, and agreed with the trial court. Apparently, the court felt, DiSanto was trying to have his cake and eat it, too, collecting both disability benefits and back-pay for the same period of time. _Steven Kolodny_

10^th Circuit Finds Blabber-Mouthed Federal Probation Officer Immune From Breach of Privacy Suit