FEDERAL COURT STRIKES DOWN CHILD ONLINE PROTECTION ACT

April 2007
FEDERAL COURT STRIKES DOWN CHILD ONLINE PROTECTION ACT
Another chapter has been reached in the
never-ending effort by Congress to protect teenagers from accessing sexually-oriented material on line. On March 22, U.S. District Judge
Lowell A. Reed, Jr., sitting in the U.S. District
Court in Philadelphia, issued a permanent injunction against enforcement of the Child Online Protection Act (COPA), 47 U.S.C. sec.
231(a), a 1998 federal law that has never gone
into effect because of concerns about its constitutionality. ACLU v. Gonzales, 2007 WL
861120 (E.D.Pa.).
COPA was enacted in response to the Supreme Court’s decision striking down a previous statute, the Communications Decency Act,
as violating the First Amendment. COPA provides that “whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the
World Wide Web, makes any communication
for commercial purposes that is available to any
minor and that includes any material that is
harmful to minors shall be fined not more than
$50,000, imprisoned not more than 6 months,
or both.” COPA basically provides that anybody putting such material on the web must
take steps to make it accessible only to adults
by requiring credit cards or adult-verification
systems for access.
As soon as the measure was signed into law, a
group of plaintiffs led by the American Civil
Liberties Union filed suit in Philadelphia,
quickly gaining temporary injunctive relief
pending an ultimate decision by the court.
Judge Reed’s preliminary injunction was appealed by the government and upheld by the
Supreme Court, which found that the plaintiffs
had plausibly argued that COPA unconstitutionally restricted adult access to sexuallyoriented material on the net. Judge Reed’s
March 22 ruling was a final decision on the
merits, communicated in a dense 84–page
opinion that examines in excruciating detail the
technology behind internet access, content filters, and the various devices for restricting access to adults.
Judge Reed concedes that there is a compelling interest in protecting children from accessing information that could be psychologically
harmful to them. The problem, however, is that
LESBIAN/GAY LAW NOTES
because any measure restricting access will
also affect the ability of adults to gain access to
such material, which in many cases is constitutionally protected under the Supreme Court’s
approach to the issue of sexually-oriented material under the First Amendment, the government regulation is subject to strict scrutiny,
which requires that the regulation be no more
restrictive than absolutely necessary.
Where the government regulations fall short,
ultimately, according to Judge Reed, is in restricting access to more constitutionally protected material than is strictly necessary to
shield children, because of the widespread
availability of filtering services that adult computer users can activate to prevent minors from
accessing sexually-oriented materials on their
computers which present a less restrictive alternative. Under First Amendment law, if a less
restrictive alternative exists, the government
cannot persist in requiring a more restrictive
regulation that is content-based.
The judge cited studies showing that the
regulations impose significant burdens on domestic content providers, but are not really as
effective as filters because they can’t be enforced against foreign content providers, which
provide a substantial proportion of the
sexually-oriented material accessible to
U.S.-based users of the internet. Furthermore, it
turns out that surveys show a majority of internet users in the U.S. have become so terrified
about the dangers of identity theft that they are
very reluctant to give out their credit card information in order to access a website, and that
credit card companies advise against using
cards to verify age, as an increasing number of
teenagers now hold credit cards. The credit
card companies have been actively targeting
the youth market, and one study the judge cited
showed that more than 20% of 16 year olds may
now have access to credit cards.
It seems likely that the government will appeal this ruling, but the 3rd Circuit Court of Appeals, the first stopping place for such an appeal, has twice upheld Judge Reed’s
preliminary injunctions. Earlier this week the
Supreme Court granted review of a case from
the 11th Circuit Court of Appeals, based in Atlanta, which raises the question of Congress’s
April 2007
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212–431–2156, fax 431–1804; e-mail: [email protected] or
[email protected]
Contributing Writers: Chris Benecke, Cardozo Law School ‘08; Glenn Edwards, Esq., New York City; Alan J. Jacobs, Esq., New York City; Bryan Johnson, NYLS
‘08; Sharon McGowan, Esq., New York, N.Y.; Tara Scavo, Esq., New York City; Ruth Uselton, NYLS ‘08; Eric Wursthorn, NYLS ‘08.
Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212–353–9118; e-mail: [email protected]. Inquire for rates.
LeGaL Homepage: http://www.le-gal.org
Law Notes on Internet: http://www.nyls.edu/pages/3876.asp; http://www.qrd.org/qrd/www/usa/legal/lgln
©2007 by the LeGaL Foundation of the LGBT Law Association of Greater New York
ISSN 8755–9021
authority to regulate commercial activity
relating to virtual child pornography. This will
provide the first vehicle for the Supreme Court
to address the issue of sexually-oriented material on-line since the appointment of the two
newest members of the Court, Chief Justice
Roberts and Justice Alito, and the resulting
opinion may provide information about whether
the Court will depart from its consistent course
of striking down attempts by Congress to limit
internet access in order to protect children.
Judge Reed concluded his opinion by noting
the difficult problem the internet has presented
for Congress and the courts. “This court, along
with a broad spectrum of the population across
the country,” he wrote, “yearn for a solution
which would protect children from such material with 100 percent effectiveness. However, I
am acutely aware of my charge under the law to
uphold the principles found in our nation’s
Constitution and their enforcement throughout
the years by the Supreme Court. I may not turn a
blind eye to the law in order to attempt to satisfy
my urge to protect this nation’s youth by upholding a flawed statute, especially when a
more effective and less restrictive alternative is
readily available (although I do recognize that
filters are neither a panacea nor necessarily
found to be the ultimate solution to the problem
at hand).” A.S.L.
LESBIAN/GAY
LEGAL NEWS
11th Circuit Denies Asylum to Gay HIV+
Venezuelan
The 11th Circuit Court of Appeals has denied
the petition for review of the decision of the
Board of Immigration Appeals on gay and
HIV+ Venezuelan Edgard Humberto Paredes’s asylum and withholding of removal
claims, in Pardedes v. U.S. Attorney General,
2007 WL 634424 (11th Cir., March 5, 2007)
(not selected for publication)..
Paredes first entered the United States in
1987, and visited many times between 1987
and 2002. He stayed in Venezuela in 2002 to
attend his mother’s funeral, and returned to the
United States as a non-immigrant visitor. After
he overstayed his visa, Paredes was issued a notice to appear before an Immigration Judge (IJ),
and was placed in removal proceedings. He applied for asylum, withholding of removal, and
relief under the Convention Against Torture
(which he later abandoned). The IJ denied his
application for asylum and withholding of removal, and the Board of Immigration Appeals
62
(BIA) affirmed the decision of the IJ. Paredes
petitioned the 11th Circuit.
The per curiam opinion issued by Circuit
Judges Black, Marcus, and Fay listed the errors
that Paredes claimed the IJ had committed by
failing to: 1) credit relevant evidence; 2) address certain expert testimony; 3) properly
weigh expert testimony; 4) address relevant
evidence that undermined government assertions; 5) apply the “pattern or practice” standard; and 6) consider authority with regard to
the social group of HIV-infected individuals.
The court discussed the expert testimony of
Jesus Aguais, the founder of Aid for Aids, an organization that provides free HIV medicine to
people in Latin America. His testimony mostly
consisted of what various patients had told him
about being homosexual and/or HIV+ in Venezuela. The IJ gave limited weight to Aguais’s
testimony because of his “close involvement
and medical treatment of the gay and HIV immigrant community.” Paredes argued that the IJ
had improperly narrowed and given limited
weight to Aguais’s testimony. The court disagreed, and held that Paredes’s claim was without merit because Aguais was not an expert
based on first-hand knowledge of the situation
in Venezuela.
Paredes’s other primary argument, that the IJ
had failed to properly consider and weigh evidence suggesting that there was a “pattern or
practice” of persecution of homosexuals and of
HIV+ individuals in Venezuela, was also rejected by the court. The IJ’s decision was partly
based on the 2003 “Department of State Country Report on Human Rights Practices in Venezuela,” which made no mention of any persecution of homosexuals or HIV+ individuals, and
was further supported by the fact that the government had proposed (but not passed) a constitutional amendment prohibiting discrimination on the basis of sexual orientation, and that
the Supreme Court of Venezuela had ruled that
free health care must be provided to all citizens
with HIV and AIDS. The court agreed with the
IJ that there was no “pattern or practice” of persecution of HIV-infected homosexuals, stating:
“The evidence in the record may support a
finding that there is discrimination against
HIV-infected homosexual men in Venezuela,
but that this discrimination does not rise to the
level of persecution.”
Accordingly, the court held that Paredes did
not have a well-founded fear of persecution if
he were to be returned to Venezuela, and denied
his petition for review. Bryan Johnson
Lesbian Ugandan Wins New Hearing on Asylum
Claim
Olivia Nabulwala, a Ugandan lesbian seeking
asylum in the United States, has been placed in
removal for deportation to Uganda. Nabulwala’s application for asylum and withholding of
April 2007
removal as been denied twice, once by an Immigration Judge (IJ) and again on review by the
Broad of Immigration Affairs (BIA). On appeal
to the Eight Circuit, those decisions were reversed and Nabulwala was granted another
chance to fight for asylum. In Nabulwala v.
Gonzales, 2007 WL 837289 (March 21, 2007),
the Court of Appeals ruled that the IJ had incorrectly applied the legal test for refugee status
and the BIA overstepped its scope of review.
When Nabulwala came out to her parents in
high school she was met with anger, physically
abused by her aunt, and sent to a new school.
Years later, while in college, Nabulwala joined a
lesbian organization that advocated for gay
rights. While attending a meeting of about 15
members, an angry mob of roughly 20 people
attacked the group, beating them with sticks
and throwing stones. Nabulwala testified that
officers of the Ugandan Human Rights Commission witnessed the incident and also told
her organization to disband, though the IJ did
not find her testimony on this particular point
credible. Nabulwala was hospitalized overnight from injuries sustained at the meeting.
In March of 2001, Nabulwala’s parents discovered that she was still a lesbian and became
very upset. Two relatives forced her to have sex
with a stranger in a “family-arranged rape.”
Nabulwala was later disowned by the family
and moved into a YMCA, arriving in the United
States months after on an exchange visitor visa.
After overstaying her visa, Nabulwala was put
into removal proceedings where she then applied for asylum. Although the IJ found Nabulwala to be “generally credible” and was sure
she “suffer[ed] in Uganda because of her sexual orientation,” the IJ denied Nabulwala refugee status after finding that her persecution was
“not in any way government-sponsored or
authorized.”
The 8th Circuit found error in how the IJ applied the test for determining refugee status
when the judge required Nabulwala to prove
persecution “at the hands of” a government official. Rather, persecution can also be shown if
the government is unwilling or unable to control
the organization or people responsible for the
mistreatment. Before the IJ could reject Nabulwala’s application for asylum, the IJ was required to make additional findings regarding
this issue.
In reviewing the IJ’s decision, the BIA stated
that the IJ had made findings of fact regarding
the government’s unwillingness to prevent
Nabulwala’s persecution. The 8th Circuit
faulted the BIA for this false statement. If the
finding was not the IJ’s, the Court of Appeals
reasoned, it must have been a finding of the
BIA. However, the BIA is prohibited by regulation from engaging in any factfinding. The BIA
should have instead remanded the case to the IJ
for further fact-finding rather than substituting
its own judgment. Accordingly, Nabulwala’s
Lesbian/Gay Law Notes
case is remanded to the BIA so that it may direct the investigation in a proper manner. Chris
Benecke
Gay Turkish Man Denied Asylum by 3rd Circuit
The 3rd Circuit Court of Appeals Circuit has
denied the petition for review of the decision of
the Board of Immigration Appeals on gay Turk
Adem Ozmen’s claim for asylum, withholding
of removal, and relief under the Convention
Against Torture (CAT). Ozmen v. Attorney General of the United States, 2007 WL 655296 (3rd
Cir., March 5, 2007) (not selected for publication).
Ozmen came to the United States in 1998 as
a non-immigrant student. In 2003 he stopped
attending school, and shortly thereafter applied
for asylum, withholding of removal, and relief
under CAT. He claimed that he had suffered
past persecution in Turkey on account of being
gay, and thus should be assumed to have a
well-founded fear of future persecution.
Ozmen claimed that as a young man he had
been repeatedly teased, tormented, and occasionally beaten due to his effeminate nature.
He was prevented from starting a gay student
organization by the Dean of his college, who
claimed such an organization was illegal. He
was once arrested and beaten by police. Ozmen
claimed that after the incident with the police,
three students attacked him in the shower and
threatened to rape him if he did not “become
straight.”
The Immigration Judge (IJ) found that while
Ozmen had been teased and suffered physical
attacks, he had not been persecuted and did not
have a well-founded fear of being persecuted
upon returned to Turkey, and ordered him removed. Ozmen appealed to the Board of Immigration Appeals (BIA), which affirmed the decision of the IJ. He then petitioned the 3rd
Circuit to review the BIA’s decision.
Speaking for the court, Circuit Judge Dolores
Korman Sloviter agreed with the IJ that Ozmen
had not met his burden of proof to establish persecution, stating “[a]lthough he was teased
about being a homosexual and was attacked on
one occasion by three fellow students for being
a homosexual, this does not rise to the level of
persecution.” Additionally, Judge Sloviter
wrote that the attack by students did not involve
the “essential element of government action”
required to establish past persecution. She discussed the incident concerning the police, and
held that although it did involve government
action, it did not rise to the level of persecution.
Ozmen also claimed that the IJ had improperly questioned him about a United Kingdom
country report on Turkey which discussed the
“fairly well-developed homosexual scene” in
certain areas of Turkey. Judge Sloviter held that
since the IJ did not rely upon the articles to
Lesbian/Gay Law Notes
make his decision, it was a harmless error, and
that Ozmen’s claim was without merit.
Accordingly, because Ozmen was unable to
establish past persecution or provide proof to
support a claim of future persecution on account of his homosexuality, Judge Sloviter held
that the IJ did not abuse his discretion in denying Ozmen’s application, and denied Ozmen’s
petition for review. Bryan Johnson
More Asylum Rulings from the Circuit Courts
2nd Circuit — In Zhan v. Gonzales, 2007 WL
627463 (Feb. 22, 2007)(not officially published), the court denied the petition for review
seeking asylum, withholding of deportation or
relief under the Convention Against Torture.
Zhan had provided no evidence of past persecution in his home country of China, and the
court found that his “testimony and documentary evidence do not compel us to overturn the
IJ’s finding that he failed to establish a wellfounded fear of persecution” because he made
no showing that “the Chinese authorities were
interested in him at all,” and provided no evidence that “there is a pattern or practice of persecution against homosexuals” in China.
9th Circuit — In Maquiling v. Gonzales,
2007 WL 625136 (Feb. 26, 2007) (not officially published), the court denied a petition for
review from a lesbian from the Philippines
seeking asylum or withholding of removal.
Maquiling had not claimed past persecution,
but asserted that she feared future persecution
if forced to return to her home country. However, wrote the court, “the background reports
of anti-discrimination legislation in the Philippines and the lack of official discrimination
against homosexuals undermine the reasonableness of Maquiling’s well-founded fear of
future persecution.” Maquiling also presented
evidence of economic discrimination against
gays, but the court found that such discrimination “did not amount to persecution,” and noted
that she was able to find employment at home
before coming to the U.S. A.S.L.
Ohio Appeals Court Switches Custody from
Trans-Affirming Mom
Reflecting uncertainty about how early in life it
can be said that somebody is transsexual, the
Court of Appeals of Ohio, 7th District, approved a decision by the Jefferson County Court
of Common Pleas that custody of a young boy
exhibiting signs that he wanted to be treated as
a girl should be switched from his mother, who
had actively acknowledged this trend and
planned to smooth her son’s voyage of gender
transition, to his father, who actively opposed
this conclusion and rejected the contention that
his son is transsexual. Smith v. Smith, 2007 WL
901599, 2007–Ohio–1394 (March 23, 2007).
April 2007
Victoria and Kevin Smith were married in
1994. Their older son was born in 1994, the
younger son in 1998. In 2001 they filed a petition for dissolution of their marriage, together
with a separation agreement under which Victoria was designated as residential parent. The
older boy had already displayed signs of gender
non-conformity at that point, according to Victoria, although Kevin denied having noticed
anything like that, and his contact with the boy
was limited over the following years. The boy,
who asked his mother to call him “Christine”
and indicated a preference to wear girl’s clothing, did not encounter opposition to this from
Victoria, who did some research about transsexuality and concluded that her son was transsexual. She took him to an adult transsexual
support group, began researching the appropriate age to provide hormone treatments and gender reassignment surgery, and moved herself
and the two boys to a different town where she
could register her son in school as a girl.
It was the move and school registration that
set off Kevin, who strongly opposed the idea
that his son might be transsexual, arguing that
the boy was too young to reach such a conclusion. (As of now, the child is 12 years old.)
Kevin petitioned to gain residential custody of
both boys, noting their close fraternal bonding
and the desirability of keeping them together.
Victoria, claiming the right of a natural mother
and legal parent, insisted that the court had no
business interfering with her decisions about
the appropriate upbringing of her son. Victoria
had never consulted any kind of expert on gender identity in reaching her conclusion that her
son was transsexual.
The opinion for the appellate court by Judge
Waite suggests that the trial undertook extensive investigation in this case to obtain education about gender identity, hearing from two
medical experts on each side and appointing a
neutral expert. Ultimately, the trial judge concluded that it was premature to label the boy’s
gender identity, disagreeing with his appointed
neutral expert to some extent. From the evidence summarized in the opinion, it would be
difficult to say whether the boy is a transvestite
or a transsexual, as it appears that in some respects he identified as a boy and happily engaged in the kind of play activity characteristic
of pre-teen boys, but in others he identified as a
girl, seeking to dress and be addressed as
Christine. In light of the mixed expert testimony
and the youth of the child, as well as the judge’s
conclusion that the mother could not be relied
upon to comply with the court’s orders to refrain
from encouraging the boy to develop his feminine identity, the trial court ordered the change
of custody sought by the father.
It seems clear from reading the court’s opinion that the trial judge went to great lengths to
try to figure out what was the correct thing to do
in this case. Consequently, it was unlikely that
63
the court of appeals would reverse, since it is
customary to give great deference to trial court
factual findings and exercises of discretion in
custody cases. The court of appeals rejected the
mother’s argument that application of traditional Ohio rules on changes of custody mandated reversing the court’s order, finding that
the developing situation involving the boy’s
gender identity constituted changed circumstances that justified reopening the custody issue, and that the trial court’s findings supported the determination that any harm
resulting from the change of custody was significantly outweighed by putting the boy in an
environment where his gender non-conformity
was not actively encouraged.
It also seems clear that the court is assuming
that it is in the best interest of the child to develop a gender identity consistent with his
birth-assigned sex, a point apparently not open
to argument. It is also difficult to figure out from
this opinion anything about the mother’s motivations in this situation, although the court concludes that she was acting in what she thought
was the child’s best interests. Victoria represented herself pro se in the appeal, while Kevin
was represented by counsel, and so it is also
hard to know whether the outcome was affected
by the lack of professional advocacy in her behalf. A.S.L.
New York Judge Says Westchester County Can
Recognize Out-of-State Same-Sex Marriages
New York State Supreme Court Justice Joan B.
Lefkowitz has rejected a legal challenge against
Westchester County Executive Andrew J.
Spano’s Order to county agencies that they extend recognition to same-sex marriages lawfully contracted in other jurisdictions. Stating
her disagreement with rulings by two other New
York State judges in decisions from other counties, Lefkowitz said in Godfrey v. Spano, 2007
WL 749692 (N.Y. Supreme Ct., Westchester
Co., March 12, 2007), that the New York Court
of Appeals’s decision against same-sex marriage last summer in Hernandez v. Robles, 7
N.Y.3d 338 (2006), did not affect the legal
analysis in this case.
Spano issued his Executive Order last June,
citing as precedent an opinion letter issued by
then-Attorney General Spitzer’s office in 2004
and an opinion letter issued by the counsel to
then-Comptroller Hevesi later in 2004, which
had also relied on the earlier letter. Shortly after
Spano issued his order, the Alliance Defense
Fund, a right-wing litigation group that specializes in attacking pro-gay government policies,
recruited some Westchester County taxpayers
and enlisted a New York law firm, Ruta & Soulious, as local counsel to file suit. A New York
statute, General Municipal Law Sec. 51,
authorizes such lawsuits to “prevent any illegal
official act” or to “restore and make good, any
64
property, funds or estate” of a local governmental unit.
Once Spano had been sued, Lambda Legal
moved to intervene in the case on behalf of Michael Sabatino and Robert Voorhies, Westchester residents who had married in Canada, joining Spano in a motion to dismiss the complaint.
As part of her ruling, Lefkowitz granted the motion to intervene, and decided to use this ruling
as an occasion to issue a final order in the case,
granting summary judgment against the plaintiffs.
“It is well settled in New York that the courts
as a matter of comity will recognize out-of-state
marriages, including common law marriages,
unless barred by positive law (statute) or natural law (incest, polygamy) or otherwise offensive to public policy,” wrote Lefkowitz. The issue before the court, of course, was whether the
existing public policies of New York State
would be offended by recognizing same-sex
marriages that were lawfully entered out of
state.
Lefkowitz pointed out that “New York has
recognized out-of-state marriages, valid where
contracted, though the purpose was to evade
New York laws proscribing such marriage.” For
example, she described a 1929 decision, Fisher
v. Fisher, 250 N.Y. 313, in which “a spouse who
was guilty of adultery and under then extant
New York statutory law barred from remarrying
during the lifetime of the innocent spouse, remarried on the high seas while the innocent
spouse was still alive. The Court of Appeals
recognized the marriage as valid because no
law condemned (italics in opinion at p. 317)
such marriage performed out of state.”
In fact, observed Lefkowitz, there are two reported decisions in which New York courts
“recognized Canadian marriages that would be
invalid in New York,” Donohue v. Donohue, 63
Misc. 111 (Sup. Ct., Erie Co. 1909), and In re
Spector, 129 Misc. 835 (Surr. Ct., Erie Co.
1927).
Turning to evidence of New York public policy more directly, Lefkowitz noted the “expanding recognition of rights accorded homosexuals, lesbians and transsexuals,” citing cases as
recent as the Family Court decision earlier this
month ordering the New York City Administration for Children’s Services to pay for sex reassignment surgery for a person in the agency’s
custody, Brian L. V. A.C.S., N.Y.L.J., March 1,
2007 (Family Ct., N.Y. Co.), as well as the major
U.S. Supreme Court decision in Lawrence v.
Texas, 539 U.S. 558 (2003), declaring laws
against private consensual sodomy unconstitutional. She took special note that although the
federal Defense of Marriage Act authorizes
states to refuse to recognize same-sex marriages performed in other states, New York is
one of the few states that has not passed a statute specifically declaring that it will not recognize such marriages.
April 2007
So far, New York State trial courts in Nassau
and Monroe Counties have issued decisions
stating that last summer’s marriage ruling by
the Court of Appeals prevents recognition of
out-of-state same-sex marriages. Both of those
cases are now on appeal. Funderburke v. N.Y.S.
Civ. Serv., 13 Misc.3rd 284 (Sup.Ct., Nassau
Co. 2006), appeal pending, 2nd Dept.; Martinez v. Monroe Community College, No. 433/05
(Sup.Ct., Monroe Co. 2006), appeal pending,
4th Dept.
Justice Lefkowitz was not persuaded that the
result must be dictated by the prior marriage
decision. “Hernandez v. Robles dealt with the
subject of intrastate licensing of same-sex marriage; not with interstate or foreign recognition
of such marriages,” she wrote. “New York recognizes out-of-state marriages of heterosexuals
that would have been invalid if made in New
York if the marriage was valid where contracted, even if the purpose was to evade New
York law. Absent legislation or appellate court
ruling that declares same-sex marriages outof-state void here, though valid there,” she continued, “there is no positive law to interdict recognition of the marriage. I am not bound by the
holdings of courts of coordinate jurisdiction
and I am not persuaded by [their reasoning]
that the Court of Appeals in Hernandez v. Robles
changed the law with respect to comity regarding recognition of out-of-state or foreign country marriages valid where contracted. Comity is
a doctrine of convenience to be applied in accordance with public policy taking into account
the attitudes of the community. By way of analogy, comity has been extended to recognize foreign country divorces of New York residents on
grounds not available in this State.” (citations
omitted)
Turning to community attitudes, Justice
Lefkowitz cited Westchester County’s own action in legislating a domestic partnership registry and agreeing in collective bargaining to extend same-sex partner health benefits to its
employees. She also noted decisions by the
Court of Appeals recognizing same-sex families under the rent control regulations in the
Braschi case in 1989 and later allowing samesex co-parents to adopt their partners’ children.
She noted as well the attorney general and
comptroller positions asserted in 2004 by Spitzer and Hevesi on this issue, and in a footnote
mentioned the recent opinion by Rhode Island’s attorney general advising that state’s
university system that they should recognize
Massachusetts same-sex marriages of their employees.
The plaintiffs had also argued that County
Executive Spano’s Executive Order constituted
legislation in violation of the separation of powers between the branches of government.
Lefkowitz rejected this argument with a quote,
appropriately, from famed lesbian author Gertrude Stein: “Rose is a rose is a rose is a rose,”
Lesbian/Gay Law Notes
and said that “the Executive Order is exactly
that a policy implementation device in accordance with the current and evolving state of law
on recognition of same-sex marriages out-ofstate,” and thus not legislation.
The Alliance Defense Fund always appeals
such rulings, so this case seems bound for the
Appellate Division, 2nd Department, where it
will join the pending appeal from Nassau
County. A.S.L.
Federal Judge & Magistrate Ignorantly Dismiss
Sexual Orientation Discrimination Claim
Betraying profound ignorance of constitutional
law, U.S. District Judge Henry Lee Adams, Jr.
(M.D.Fla.) adopted a report and recommendation from Magistrate Howard T. Snyder dismissing a pro se complaint challenging sexual
orientation discrimination in the administration of Florida’s food stamp program in Fisher v.
State of Florida, 2007 WL 842981 (March 16,
2007).
James Fisher, petitioning to proceed in forma
pauperis, filed a complaint alleging he had
wrongfully been denied food stamps by a prejudiced state employee. His home-made complaint states: “Defendant Shannon Stafford
stated to Plaintiff that [he] was queer and did
not deserve food stamps and has went to great
measures to make a point of attempting to not
give Plaintiff and his 3 other household members the food stamps we are entitled to by law.”
He goes on to state that “under Title 28 USC
1331 a person cannot be discriminated against
because of color religion, political belief, sex,
sexual orientation.”
Magistrate Snyder opined that “he has not
presented allegations demonstrating entitlement to relief,” and asserted that his characterization of 28 USC 1331 is incorrect. “Contrary to Plaintiff ’s suggestion,” asserted
Snyder, “there does not appear to be any statute
prohibiting discrimination on the basis of sexual orientation in relation to the processing of
food stamp applications.”
Evidently, Magistrate Snyder has never
heard of the 14th Amendment or Romer v.
Evans, in which the Supreme Court held that a
state may not discriminate on the basis of sexual orientation without some rational basis. 28
USC 1331 is a jurisdictional statute; it provides
jurisdiction for the federal district courts to
hear suits for violation of federal statutory and
constitutional claims. Fisher’s complaint alleges a constitutional violation, as discrimination on each of the grounds mentioned in his
complaint may violate some provision of the
constitution in the context of administration of
the Food Stamp program. Indeed, one of the
cases on which the Supreme Court has relied in
finding sexual orientation discrimination actionable is Moreno v. U.S. Dep’t of Agriculture, a
case challenging a provision of the Food Stamp
Lesbian/Gay Law Notes
program that denied benefits to households
containing unrelated adults, the so-called
“hippie commune” provision. So, Magistrate
Snyder’s contention that Fisher failed to state a
legal claim because no statute forbids sexual
orientation discrimination in the Food Stamp
program is inaccurate; the Food Stamp program, like any government program, must comply with the requirement of Equal Protection of
the Law, and it is hard to imagine a legitimate
rational basis for denying food stamps to poor
people because they are gay.
It’s bad enough that Magistrate Snyder
spouted this ignorance, but that District Judge
Adams adopted it is even worse. Why isn’t there
mandatory CLE for federal district judges? It is
worth mentioning, however, that Adams dismissed the case without prejudice, commenting that Fisher was free to refile and pay a fee
instead of seeking permission to proceed in
forma pauperis. But this sounds rather empty to
us, if Fisher would face the same know-nothing
response to a motion to dismiss by the defendants for failure to state a claim. Or does his
complaint suddenly become actionable if he
can come up with the money for a filing fee?
A.S.L.
Florida Court Says Transgender Ex-Wife Entitled to
Continued Alimony
Ruling on a motion for judgment on the pleadings in In re: The Marriage of Lawrence Roach
and Julia Roach, n/k/a Julio Roberto Silverwolf,
No. 04–004277–FD–14 (Fla. 6th Circ. Ct., Pinellas Co., March 28, 2007), Judge Jack R. St.
Arnold decided that the ex-wife of Lawrence
Roach is entitled to continue receiving alimony,
even though Julia has become Julio as a result
of medical treatment including gender reassignment surgery. Under the terms of the settlement agreement approved by the court as part
of their divorce, Julia was to receive alimony of
$1,250 a month unless either she or Lawrence
died or she remarried.
The Roaches married in 1986. They divorced in 2004, reaching a settlement according to the terms mentioned above. The agreement also stated that the alimony obligation was
not to be modified without written agreement of
the parties, and the court approved the agreement on December 2, 2004.
Roach argued that “the sex reassignment
surgery is the legal equivalent of the death of
the Respondent and the support obligation
should be terminated.” Roach also alleged that
his ex-wife is now a man, and “because Florida
does not recognize same sex marriages, as a
matter of law, the Court cannot continue to
award alimony from one man to another.”
But Roach’s attempt to get out of the burden
of paying $1,250 a month foundered on Florida’s refusal to recognize gender reassignment
as having any legal effect. Wrote Judge St. Ar-
April 2007
nold, “Despite the surgery and the fact that the
Respondent holds herself out to be a male,
Florida recognizes the immutable female traits
determined at birth. Whether advances in
medical science support a change in the meaning commonly attributed to the terms “male”
and “female” as they are used in Florida, is a
question that raises issues of public policy that
should be addressed by the legislature, not the
Florida courts.”
St. Arnold cited to the only Florida precedent
on point, Kantaras v. Kantaras, 884 So. 2d 155
(2nd Dist. Ct. App. 2004), in which the court
held that a marriage between a woman and a
post-operative female-to-male transsexual was
void because Florida law considered Michael
Kantaras to be a woman despite his gender reassignment procedure. “Because Florida does
not recognize gender reassignment surgery as
effective to alter an individual’s gender,” wrote
the judge, “this Court cannot find that the Respondent is now a male. Accordingly, there has
not been a substantial, permanent, involuntarily [sic] change in circumstances sufficient to
support a termination of alimony.”
Further, St. Arnold rejected Roach’s argument that “a sex reassignment procedure is the
legal equivalent of death,” presumably because Julia, his ex-wife, no longer exists as
Julia. “This is illogical,” wrote St. Arnold, “in
that there is no physical evidence that the Respondent is in fact dead.”
Finally, he noted that the settlement agreement itself specified that the alimony provision
was no modifiable without written consent of
both parties except for specific listed reasons,
and “gender reassignment surgery was not
listed therein.” Thus, Roach’s motion was dismissed.
This is a bittersweet victory for Julio and the
legal team from Lambda Legal that represented
him, however. While he keeps his alimony, it is
because the court refuses to recognize the legal
effect of his gender reassignment and still continues him a woman for legal purposes. Gregory
Nevins of Lambda Legal argued on behalf of Julio at a hearing on the motion held shortly before the decision was issued. Co-counsel are
Guy M. Burns, Jonathan Coleman, and Jennifer
Reh of the firm of Johnson, Pope, Bokor, Ruppel
& Burns, LLC. Roach reportedly plans to appeal. Los Angeles Times, March 29. A.S.L.
Unpublished Denver Ruling Supports Wrongful
Discharge Claim Premised on City Ordinance
We heard from an attorney at Lambda Legal
about a ruling by a Colorado District Court
judge in Denver last year in a case where
Lambda was representing a gay man with a discrimination claim against Qwest Corporation.
In ruling on the defendant’s motion to dismiss
in Moreau v. Qwest Corporation, Case Number
06 CV 2861 (November 21, 2006), District
65
Court Judge Joseph E. Meyer III had to deal
with the plaintiff’s claim that he had been
wrongfully terminated from his job “in violation
of public policy.” The public policy that Moreau relied upon was the city and county of
Denver’s ordinance forbidding sexual orientation discrimination. Qwest had moved to dismiss this claim by arguing that a municipal ordinance could not provide the basis for a public
policy under state law, and that even if the ordinance could serve for that purpose, Moreau
would have to proceed with an action under the
ordinance, and could not rely upon it for a state
law tort claim of wrongful discharge.
This motion to dismiss presented an interesting question of first impression for the court.
The public policy exception to the employment
at will rule, as adopted in many (but not all)
states, says that if an employer discharges an
at-will employee for a reason that would contradict or violate an established public policy,
then the employee can maintain a tort claim
against the employer. The key question, of
course, is whether a public policy issue is
raised by the discharge, and state courts differ
as to the sources of public policy for this purpose. Certainly, a state statute or constitutional
provision will serve, and some courts have also
looked to traditional common law policies as
well, or even professional ethical codes or rules
promulgated by accrediting bodies. But attempts in some other jurisdictions to premise
wrongful discharge suits on municipal gay
rights ordinances have not been successful.
But Judge Meyer rejected Qwest’s argument,
at least for purposes of a motion to dismiss.
“Colorado case law does not restrict public policy wrongful discharge claims to situations
where the source of the public policy is a state
statute or a constitutional provision,” he wrote.
“In Rocky Mountain Hospital & Medical Service
v. Mariani, 916 P.2d 519 (Colo. 1996), the Supreme Court declared that the professional
ethical code for accounting qualifies as a
source of public policy. Whether a local ordinance so qualifies appears to be a matter not
addressed by any appellate court in Colorado.
For purposes of ruling on a motion to dismiss, I
conclude that defendant has failed to show that
plaintiff has no prospect of recovering on the
public policy wrongful discharge claim simply
because the ordinance he relies on is local
rather than statewide in nature. Measuring this
ordinance against the factors considered in
Mariani, it is designed to serve the broad interests of the public rather than narrow interests of
a particular business or profession; the ordinance does not concern merely technical matters or administrative regulations; and the ordinance provides ‘a clear mandate to act or not to
act in a particular way.’ Mariani at p. 525. I see
no reason why a municipal ordinance enacted
by a home rule city cannot serve as the source
66
for public policy in a public policy wrongful
discharge claim.”
Judge Meyer also noted, in response to
Qwest’s second argument, that the ordinance
specifically provided for enforcement by allowing the plaintiff to file a civil action “for all appropriate remedies,” and asserted that “the ‘remedy’ provided by the ordinance is exactly
what plaintiff is doing here, pursuing a civil action for damages and other relief.” A.S.L.
Unusual Transgender Wedding Stirs Media
Interest in Wisconsin
Barbara Lynn Terry and Nicole Winstanley
wanted to get married. Wisconsin has a constitutional amendment banning same-sex marriages, but that proved no barrier, because Barbara was born male and has not had gender
reassignment surgery, so Wisconsin Circuit
Judge David Hansher decided on March 23
that he could perform the ceremony without
violating the law.
According to news reports from the Milwaukee Journal Sentinel (March 22 & 24) and the
Madison, Wisconsin, Capital Times (March
23), Barbara, who obtained a legal change from
her birth name of Ronald Francis Terry in 1980,
met Nicole, an Australian, through the internet,
and Nicole specifically came to the U.S. earlier
this year with the goal of marrying Barbara.
They brought Barbara’s birth certificate to the
Milwaukee County Clerk’s office, and clerk
Mark Ryan accepted the application and issued
a license on March 12. They were hoping to be
married by Judge Hansher on March 16, but
the judge raised some concerns.
Both names on the license were female, both
prospective spouses appeared to be female, and
Hansher was well aware of the constitutional
barrier to same-sex marriages. He decided to
put off the wedding and have an informal hearing in his chambers on March 23, for the purpose of getting testimony from Barbara’s physician. The doctor, testifying by speakerphone,
confirmed that while Barbara had been receiving hormone treatments for many years and
identified and presented herself as a woman,
she was still genitally male.
“That’s all I needed to hear,” Judge Hansher
told the doctor. In a brief written opinion reported on March 24 by the Journal Sentinel,
Hansher stated, “Since Barbara Lynn Terry is a
man under the law and has taken no steps to
surgically become a woman, there is no legal
impediment to marrying them. In sum, he is
still a man and his bride a woman.”
But as far as the couple are concerned, they
emerged from the judge’s chamber as Mrs. and
Mrs. Terry. Barbara said that although the judge
had pronounced them husband and wife, it
“doesn’t matter what the legal definition is. We
know better.” Barbara wants to have sex reas-
April 2007
signment surgery, but has put it off due to the
expenses involved.
There are many unusual aspects to this marriage. Barbara is 58 and Nicole 22. Barbara is
older than Nicole’s mother, and one of Barbara’s children from a prior marriage is older than
Nicole. Although Barbara’s new mother-in-law
is “fine” with the marriage, according to Nicole, Barbara’s children are not happy about it.
Furthermore, it is not certain that the Homeland
Security Department will agree with Judge
Hansher about the legality of the marriage, or
that problems might develop in securing Nicole’s right to stay in the United States as Barbara’s spouse, given the brief period of time she
spent in the country.
Leslie D. Shear, a Madison attorney who directs a family law project at the University of
Wisconsin Law School, told the Journal Sentinel, “Assuming immigration isn’t an issue, they
should move to Massachusetts. She can have
sex reassignment surgery there and they’ll still
be married.” A.S.L.
Federal Civil Litigation Notes
Supreme Court — In Harper v. Poway School
District, 445 F.3d 1166 (9th Cir. 2006), the 9th
Circuit rejected a constitutional challenge to
the actions of school administrators who would
not allow Tyler Harper to wear anti-gay “Christian” t-shirts at school. Harper petitioned for
certiorari. On March 5, the Supreme Court
granted the writ, vacated the judgment and remanded the case to the 9th Circuit “with instructions to dismiss the appeal as moot,” on
the ground that the case concerned a demand
for injunctive relief against the school system
and Mr. Harper has graduated from high school
during the pendency of the certiorari petition.
His younger sister attempted to intervene to
keep the case alive, but the Court denied her
petition for leave to do so. Justice Breyer dissented without opinion. Thus, the 9th Circuit
opinion holding that the school’s compelling
interest in providing a non-discriminatory educational setting for all students, including
LGBT students, trumped Tyler Harper’s right to
wear an anti-gay t-shirt, has been vacated and
may not be cited as binding precedent in the
9th Circuit. But never fear, sooner or later such
a case will get to the Court quickly enough to
merit review without the threat of mootness, as
student gay-straight alliances spread into the
middle schools...
Supreme Court — Lisa Miller-Jenkins has
filed a petition for certiorari in the Supreme
Court, challenging the decision by the Virginia
courts that a Vermont court order concerning
her former partner’s visitation rights must be
given Full Faith and Credit by Virginia. The
State of Virginia filed an amicus curiae brief on
behalf of petitioner, arguing that its sovereignty
was improperly encroached in the matter, in
Lesbian/Gay Law Notes
light of the vote by its citizens to adopt a state
constitutional amendment forbidding any recognition whatsoever for same-sex relationships. Miller-Jenkins v. Miller Jenkins, No.
06–1110.
7th Circuit — In Schmidt v. Canadian National Railway Corp., 2007 WL 755171 (7th
Cir., March 13, 2007) (nonprecedential disposition — not officially published), the court upheld a summary judgment in favor of the employer in a Title VII case brought by Robert R.
Schmidt, who alleged, inter alia, that his supervisor had subjected to unwanted touching and
sexually charged comments creating a hostile
environment. The plaintiff attributed the male
supervisor’s conduct to his “homosexual desires,” but provided no evidence concerning
the supervisor’s sexual orientation. The summary judgment was granted on several grounds,
but among them was that the conduct of the supervisor was not sufficient to constitute a hostile environment. The per curiam order commented: “As the district court noted, Schmidt
provided evidence that over four years Walker
rubbed his shoulders four times, used vulgar
language, stared suggestively at his own crotch,
asked Schmidt to stay late one time, and complimented his voice another time, but, like the
occurrences in [other cases cited by the court],
these isolated incidents are too insignificant,
even if sexual in nature, to allow a reasonable
inference that Schmidt suffered an objectively
hostile work environment.”
9th Circuit — In an unpublished decision issued on March 5, a 9th Circuit panel upheld a
ruling by District Judge Vaughn R. Walker
(N.D. Calif.), rejecting constitutional claims asserted by some self-identified Christian employees of the City of Oakland who were aggrieved by the removal of flyers they had posted
around their workplaces advertising the formation of their Good News Employee Association,
using language that a lesbian employee construed as anti-gay when complaining about its
posting to a supervisor. Good News Employee
Association v. Hicks, 2007 WL 651452, affirming 2005 WL 351743 (N.D. Cal. 2005). The
court agreed with Judge Walker that under the
controlling Supreme Court precedent of Pickering v. Board of Education, 391 U.S. 563 (1968)
and the 9th Circuit’s leading case on the issue,
Pool v. Van Rheen, 297 F.3d 899 (9th Cir. 2002),
the plaintiffs had not stated a valid constitutional claim, because the public employer’s interest in workplace efficiency trumped any personal interest they had in expressing their
religiously-based views on family law policy in
the workplace. The court also found that the defendants enjoyed qualified immunity in this
suit for injunctive relief, mainly because holding public officials personally liable for constitutional violations requires showing that their
conduct violated well-established constitutional rights. The court quoted an earlier 9th
Lesbian/Gay Law Notes
Circuit opinion as follows: “whether a public
employee’s speech is constitutionally protected
turns on a context-intensive, case-by-case balancing analysis... [that] the law regarding such
claims will rarely, if ever, be sufficiently ‘clearly
established’ to preclude qualified immunity.”
Quoting Moran v. Washington, 147 F.3d 839,
847 (9th Cir. 1998).
EEOC — Michigan — Julie (formerly John)
Nemecek has settled her discrimination complaint against Spring Arbor University, resulting in withdrawal of charges that had been
lodged against the school at the Equal Employment Opportunity Commission. Nemecek, an
ordained Methodist minister who had been employed as associate dean of the School of Adult
Studies, was demoted when she alerted her supervisor that she had been diagnosed with gender identity disorder and planned to undergo
gender reassignment male-to-female. Recent
federal case law in the 6th Circuit supports the
conclusion that gender identity discrimination
is actionable under Title VII as sex discrimination. The terms of the settlement were not disclosed. Nemecek will remain on the University’s payroll through May. She said the goals of
filing her case raising awareness about transgender issues, and being treated with “justice
and fairness” by her employer had been
achieved to her satisfaction. Inside Higher
Ed.com, March 14.
Arkansas — Lawrence v. Texas does not impair the right of police departments to punish
their employees for engaging in extra-marital
affairs with members of the opposite sex, ruled
U.S. District Judge William R. Wilson, Jr., in
Glenn v. Bachand, 2007 WL 865488 (E.D.
Ark., March 20, 2007). Perhaps consenting
adults have a right to have sex in private, but
when one of the adults is a male police officer
and the other is a woman he meets in the course
of his duties, he risks being dismissed for behavior “unbecoming a police officer.” “Even
though police officers have the same rights and
privileges as all other citizens,” wrote Judge
Wilson, “the zone of privacy for public officers
is smaller. Privacy rights of police officers must
be balanced with the legitimate interests of police departments in maintaining discipline and
achieving effective law enforcement.” In this
case, the woman initially accused the officer of
rape, but ultimately after investigation showed
the sex was consensual, he was discharged. The
court rejected an equal protection charge,
premised on the fact that the chief of police was
also having an affair and thus was hypocritical
in dismissing the plaintiff. The court commented that while this might be unfair, it did not
constitute unlawful discrimination.
California — U.S. Magistrate Judge Dennis
L. Beck issued a report on February 27 finding
that California prison inmate Donald C. Bachman had stated an 8th Amendment claim
against several corrections officers, who he
April 2007
charges beat him up to persuade him to drop
charges he had filed against another guard.
Bachman v. Melo, 2007 WL 613948 (E.D.
Calif.)(not officially published). According to
Bachman, he was taken from his cell as a pretext that he was going to a dental appointment,
put in a holding cell, and beaten, after one of the
named defendants asked him, “Why is a nice
Jewish gay boy suing an officer?” According to
Bachman, the same officer called him a “Christ
killing Jewish fag” while beating him, while another of the named defendants called him a
“Jew fag.” Despite these slurs, Magistrate Beck
found no basis for an equal protection claim,
but did find that Bachman had a claim for excessive force. Beck also rejected a due process
claim.
Colorado — In the course of granting summary judgment to the employer in Alvariza v.
Home Depot, 2007 WL 794187 (D. Colo.,
March 14, 2007), District Judge Edward W.
Nottingham, addressing a Title VII sex discrimination claim that defendant had characterized as a non-actionable sexual orientation
discrimination claim, noted precedents rejecting the argument that Title VII forbids sexual
orientation discrimination, and added that the
court’s own research “failed to uncover any
Colorado statute or Thornton municipal ordinance that prohibits such discrimination,” citing “generally” Robert C. Ozer, P.C. v. Borquez,
940 P.2d 371 (Colo. 1997) (“holding that Colorado’s lawful activities statute does not prohibit
discharge due to sexual orientation, but that
Denver’s municipal code does.”). We think this
is not an accurate characterization of the holding in Ozer v. Borquez. The Colorado Court of
Appeals had affirmed a civil rights claim in that
case by a gay lawyer who was discharged after
his sexual orientation became known, relying
on the lawful activities statute, but the ruling on
that point was reversed by the Colorado Supreme Court on the ground that this statutory
theory had not been properly presented to the
jury at trial, not based on a ruling on the merits,
so the question whether the lawful activities
statute would protect a gay employee from discrimination due to his employer’s disapproval
of lawful off-duty homosexual conduct remains
at least an open question in Colorado, with the
affirmative discussion on the merits by the
Court of Appeals remaining available as a persuasive precedent. We attribute Judge Nottingham’s parenthetical comment to judicial negligence...
Florida — Professional incompetence must
run rampant among school board attorneys... at
least when they’re confronted with the issue of
allowing LGBT student groups to function on
high school campuses. It’s difficult to look back
over many years of litigation under the Equal
Access Act and to believe that school board attorneys are still advising school administrators
that they can deny recognition or on-campus
67
meeting rights to LGBT high school student
groups while continuing to recognize a variety
of other non-curricular groups. In Gay-Straight
Alliance of Okeechobee High School v. School
Board of Okeechobee County, 2007 WL 762928
(S.D. Fla., March 13), District Judge Moore denied the defendants’ motion to dismiss the case,
rejecting the ridiculous argument that the student group, as an unincorporated association,
did not have standing to bring a federal civil
rights claim under 42 USC section 1983, and
the even more ridiculous argument that if they
had standing, they had failed to state a claim
under the Equal Access Act because the school
did not recognize any non-curricular groups. A
motion to dismiss assumes the truth of matters
pled in the complaint; the complaint states that
the school has permitted and continues to permit numerous non-curricular student clubs to
meet on school grounds and use school facilities; Q.E.D... Oh, in this case, the hapless
school board attorneys are not named in the
Westlaw report of the case that we accessed
Illinois — In Armintrout v. Bloomingdale’s
Pizza, Inc., 2007 WL 837279 (N.D. Ill., March
13, 2007), the court granted summary judgment for the employer in a hostile environment
sex discrimination case brought by a male employee complaining about a male supervisor.
From reading the detailed fact summary by
Judge Filip, it seems clear that this was an uninhibited, sexually vulgar supervisor who subjected both male and female employees to unwanted touching, pinching, kissing, stroking...
and thus the charges were not actionable under
Title VII, because the plaintiff could not credibly allege that he was subjected to a sexually
hostile environment “because of his sex.”
While it is hard to understand why any employer would allow a supervisor to behave in
this manner toward the employees upon whose
productivity and job satisfaction the employer’s
prosperity relies, as Title VII is construed by
our federal courts, the failure of employers to
curb such activity is not unlawful unless it is directed only to employees of one sex. And Congress has yet to wake up to this recurring problem, which also plagues their own houses, as
evidence by the Mark Foley scandal of last fall.
Louisiana — A gay ex-con’s claim that a private prison guard forced him to perform oral sex
on the guard on two occasions and that the private prison authorities refused to take action
when the prisoner complained can be the basis
of federal constitutional and state tort claims
against the prison, but not against one of its officials, according to a March 15 ruling in
Mitchell v. CCA of Tennessee, Inc., 2007 WL
837293 (W.D. Louisiana), by District Judge
Dee D. Drell. Openly-gay former prisoner Brian
B. Mitchell alleged that while in the custody of
CCA, a private company that operates prisons
under contract with the state, he was forced on
two occasions by threat to perform oral sex upon
68
Charlie Roberts, a correctional officer. On one
of those occasions, he had the presence of mind
not to swallow Roberts’ semen, instead spitting
it out later into his t-shirt and saving the t-shirt.
This later provided evidence when an investigation into his charges led to DNA testing and
proof that the semen came from Roberts! Judge
Drell noted recent precedent holding that private prison contractors are subject to the same
constitutional standards as governmentoperated prisons, and found that Mitchell had
adequately pled facts to support a constitutional action against the corporation for having
a custom of ignoring prisoner complaints of unconstitutional action by guards. Further, she
noted, under Louisiana tort law, CCA could be
held vicariously liable for torts, such as sexual
assault, committed by its employees within the
scope of employment. She noted analogous
cases in which hospitals had been held liable
when staff members sexually assaulted patients. However, she found that the Secretary of
Corrections for Louisiana, a named defendant,
enjoyed qualified immunity on the constitutional claims and could not be held on the tort
claims.
Pennsylvania — In Manocchio v. Children’s
Service Center of Wyoming Valley, 2007 WL
674590 (M.D. Pa., Feb. 28, 2007) (not officially
published), U.S. District Judge James M. Munley granted a motion to dismiss a Title VII retaliation complaint by Victor Manocchio, who
alleged that he had been discharged for complaining to the EEOC and the Pennsylvania
Human Relations Commission about workplace mistreatment arising from his informing
his employer that he was doing volunteer work
with the Michael Pierson Memorial Project, a
community organization concerned with gay
and lesbian issues. When he first informed the
employer about these activities, the response of
his supervisor, he alleges, was to say to him,
“Why should anyone care? What business is it
of anyone else’s if you are involved in screwed
up sexual practices.” Manocchio alleges that
this was followed by other offensive incidents,
leading him to file numerous grievances. Judge
Munley noted that neither Title VII nor the
Pennsylvania law forbid sexual orientation discrimination, so retaliation related to a sexual
orientation claim would not give rise to a federal cause of action.
South Carolina — In Fleming v. Florence
County School District Three, 2007 WL 781655
(D. South Carolina, March 13, 2007), District
Judge Terry L. Wooten accepted a recommendation by Magistrate Judge Thomas E. Rogers,
III, that the school district’s motion for summary judgment be granted. Plaintiff had been
employed as a basketball coach and science
teacher at the high school for several years. He
was non-renewed for the coaching position after the school received and investigated a complaint from a student and his parents that the
April 2007
plaintiff had used the terms “gays” and “faggots” during a physical science class and stated
that he would not allow “faggots” on his basketball team or in his classroom and asked the
complainant and another student to leave the
room. The complainant had been suspended after engaging in a fight with another student after
being called a faggot. The school superintendent, after investigating the complaint, concluded that complainant had used inappropriate language indicating “intolerance for
homosexuals” that the superintendent judged
to be unacceptable. There were also allegations
that as a coach plaintiff had abetted violations
of athletic competition rules. The court rejected
his Title VII claim. A.S.L.
State Civil Litigation Notes
California — California’s domestic partnership statute provides a mechanism for couples
to go through a divorce process in order to dissolve their relationship and divide their assets.
But what if it turns out that the couple’s domestic partnership was not duly registered with the
state, although one party thought that it had
been done? In the analogous situation where it
turns out that parties were not married due to
some technical problem, courts have used a
“putative spouse” doctrine to get over the formal hurdles of providing access to the divorce
statute. Why not for same-sex couples?
Lambda Legal is representing Darris Ellis, who
was in a committed relationship with David Arriaga for 5–1/2 years. They had executed domestic partnership papers in 2003, but Arriaga,
who was supposed to send the notarized form to
the state for filing, failed to do so. Ellis assumed
that the partnership had been registered. In
September 2006, he filed a petition for dissolution of domestic partnership, but Arriaga responded with a motion to dismiss on grounds
that the partnership had never been duly registered, and won the motion. Lambda has filed an
appeal to the 4th District Court of Appeal, arguing that the “putative spouse” doctrine should
be used on these facts to afford Ellis access to
the legal dissolution process. Lambda Legal
News Release, March 28.
Connecticut — Judge Robert Berdon ruled
on March 8 that Kelly Skorzewski, who had
charged the Town of Guilford with sexual orientation discrimination, was entitled to the money
negotiated as a settlement of her claim even
though she rejected the defendants’ demand
that she execute a statement indicating that she
was denied employment for legitimate nondiscriminatory reasons. Skorzewski v. Town of
Guildford, 2007 WL 901822 (Conn. Super.
Ct.). Skorzewski had received a conditional appointment as a police dispatcher, pending a
home visit by a police officer. She was told that
all residents of her home should be present for
the visit. Her same-sex partner was there, and
Lesbian/Gay Law Notes
at that time the police department first learned
that she was a lesbian. She was subsequently
notified that she did not qualify for the position,
and filed her comlaint with the Human Rights
Commission alleging sexual orientation discrimination. Skorzewski represented herself in
negotiating a settlement with the attorney representing the defendants, involving a payment
of $3,500.00. After this agreement was
reached, the defendants insisted she sign an
exculpatory statement in order to get the money,
while she argued that she had never agreed to
that. The defendants then filed a motion with
the Superior Court to enforce the settlement
agreement according to the terms of the written
release they had proffered to Skorzewski. Judge
Berdon found that she had not agreed to that
condition. “This court could understand why
the plaintiff would not want to give the defendants a clean slate,” wrote the judge. “It has not
been demonstrated that plaintiff’s sexual orientation is a relevant factor that the defendants
could consider in her employment and it would
be contrary to the public policy of this state,”
citing the statute forbidding employment discrimination based no sexual orientation. Thus,
the defendants’ motion to enforce the agreement using their written form containing the exculpatory language was denied.
New York — The paired cases of Charney v.
Sullivan & Cromwell and Sullivan & Cromwell
v. Charney, now pending in New York County
Supreme Court before Justice Bernard Fried,
took some interesting twists and turns since last
month. Justice Fried had ordered Charney to
submit to a deposition about what happened to
his computer and the client and firm documents he possessed when he filed his sexual
orientation discrimination suit against S&C.
Charney admitted at the deposition that he had
provided a document to the Wall Street Journal;
leaking firm documents is one of the issues
raised in S&C’s case against Charney. On the
other hand, after a hearing on March 14 at
which Charney’s destruction of the hard drive
on his computer was a continuing focus of attention, Justice Fried ordered two S&C attorneys (and a former S&C attorney who was representing one of them) to submit to depositions
about what was said at the now-famous secret
settlement meeting held Jan. 31, the day before
S&C filed its lawsuit against Charney (whose
original lawsuit was filed on Jan. 16). Charney
is claiming that he was “ordered” to destroy his
hard drive by S&C partner Gandolfo di Blasi,
who was present at the Jan. 31 meeting. When
Charney’s lawyers filed a reply memorandum
in support of Charney’s motion to dismiss
S&C’s complaint, they appended another part
of the March 5 Charney deposition, in which
Charney claimed that at the January 31 meeting, DiBlasio had invoked S&C’s past representation of the Nazis (a reference to S&C’s
representation of businesses doing deals in
Lesbian/Gay Law Notes
Nazi Germany during the 1930s) as part of a
diatribe to convince Charney that the firm was
invincible and would crush him if he did not
abandon the litigation and surrender his computer. A.S.L.
Criminal Litigation Notes
California — In People v. Romero, 2007 WL
925517 (Cal. App., 4th Dist., March 29, 2007),
the court affirmed the conviction of Guillermo
Romero, who had been charged with murdering
his same-sex lover, Ffelix Antonio Acosta Ramos, and was convicted of the lesser-included
offense of involuntary manslaughter. The case
seems to have revolved around the defendant’s
intense jealousy. According to the trial record,
the men had a violent quarrel instigated by Ramos, during which Romero “lost it,” grabbed a
knife and stabbed Ramos six times. On appeal,
Romero objected to the admission of certain
statements attributed to Ramos by a third party,
in which the victim accused Romero of being
jealous and of having threatened to kill the victim if Romero ever found him with another man.
The opinion by Justice Benke recounts the evidence in detail, a sad story of passion and tragedy. The court concluded that absent the evidence in question, Romero would likely have
been convicted of murder rather than manslaughter and rejected his appeal, also rejecting Romero’s objections to the manner in which
the trial judge had charged the jury on the issue
of self-defense.
Kansas — The Kansas Court of Appeals rejected a constitutional challenge to a prosecution under the state’s statutory rape law in State
v. Jones, 2007 WL 656367 (March 2, 2007)
(unpublished disposition). Defendant Montell
W. Jones, Jr., was 19 years old when he received
a communication in an internet chat room from
12–year-old J.J., a girl who claimed to be 17.
After chatting over a period of months, Jones
picked up J.J. from school, pretending to be her
brother, took her to his apartment, and they had
sex. He then dropped her off again at her middle school. Evidently she talked about it, and
he was charged and convicted of rape, receiving a ten-year prison term. On appeal, he
claimed his conduct was shielded by the Due
Process and Equal Protection Clauses, arguing
that the statutory rape law impermissibly imposes a blanket prohibition on consensual intimate contact regardless of consent. The court
rejected his argument that Lawrence v. Texas
would apply, as that case involved consensual
activity by adults. Furthermore, the court found
that the state has a rational basis for protecting
children from sex with adults. Indeed, said the
court, referring to an earlier holding, “the State
has a compelling interest in the well-being of
children and may exercise its police powers to
protect them from adult sexual predators.” Although the court says nothing about this, evi-
April 2007
dently it was found to be incredible that Jones,
upon meeting J.J. personally, could have believed that she was actually 17.
Michigan — The Michigan Court of Appeals
concluded that the 14th Amendment liberty interest identified in Lawrence v. Texas (the 2003
decision in which the U.S. Supreme Court invalidated Texas’s law criminalizing gay sex) did
not apply to Mark Steven McPhee’s sexual assault of his 16–year-old sister-in-law. People v.
McPhee, 2007 WL 912116 (Mich. App., March
27, 2007) (not officially reported). McPhee
claimed the sex was consensual, and his
sister-in-law was above the age of consent. The
victim claimed it was not consensual but that
she had been forced by the defendant’s wife to
write a letter to the prosecutor stating that it
was. The jury was told it could convict on alternate grounds: either the sex was nonconsensual, or if it was consensual, that it violated a law against sexual contact between parties “related by blood or affinity to the third degree,” essentially a prohibition on incest.
Appealing his conviction, as to which the jury
did not specify which theory they were applying, McPhee insisted the sex was consensual
and protected under Lawrence. Not so, insisted
the court per curiam, finding that the law at issue significantly differs from the Texas law
struck in Lawrence, as did the facts of the case.
“In contrast to a consensual sexual relationship
between two adults ‘who, with full and mutual
consent from each other, engaged in sexual
practices common to a homosexual lifestyle,’
this case involved a 42–year-old married man’s
forced sexual contact with his intoxicated,
16–year-old sister-in-law to whom he acted as
an authority figure.” Clearly, this fell into one of
the many disclaimers made by the Lawrence
court in reciting what its holding was not about.
North Carolina — The Associated Press
(March 16) reported that three men had been
sentenced to jail for operating a “sadomasochistic dungeon” in which, among other things,
they performed various physical operations on
willing male victims, including some castrations. In sentencing the men, Richard Peter
“Master Rick” Sciara, Michael Mendez, and
Danny Carroll Reeves, Superior Court Judge
Dennis Winer said that it was difficult to call
the dungeon’s patrons “victims,” but that the
performance of these operations was clearly a
crime. “I think this is a type of perversion that
cannot be tolerated by society,” said Winner.
Ironically, however, in light of time served
pending the sentencing hearing, Sciara would
serve only two more weeks to complete his
one-year sentence, and the other men would be
released, credited with time served to satisfy
their sentences. In exchange for their guilty
pleas to maiming charges, the state dropped
charges of practicing medicine without a license and conspiracy. Ironically, Sciara may
have had relevant expertise to perform the op-
69
erations he undertook, as he worked as a physician’s assistant at a veterans medical center in
Topeka, Kansas, for more than twenty years.
According to the Associated Press report,
“Prosecutors said the men ran a sadomasochistic ‘dungeon’ fashioned from an enclosed carport in 2004 and 2005 at a house in a quiet
neighborhood near Waynesville in western
North Carolina. Six men, some from as far away
as South America, came to the home for castration, while others went seeking other types of
body-modification surgery.”
Ohio — Ohio courts are capable of intriguing
hair-splitting distinctions. To wit, in State v.
Heffley, 2007 WL 638453, 2007–Ohio–904
(Ohio App. 3rd Dist., March 5, 2007), the 3rd
District Court of Appeal, which had previously
declared the state’s Domestic Violence Law to
be unconstitutional under the state’s anti-gay
marriage amendment when applied to unmarried cohabitants, nonetheless affirmed the conviction and sentence of Mr. Heffley, who was not
married to his cohabiting victim. The distinction? Heffley and victim were formerly married,
but were no longer legally married at the time of
the incident giving rise to the charges. Wrote
Judge Shaw: “In McKinley, the defendantappellant (McKinley) and the victim were boyfriend and girlfriend who were living together at
the time of the domestic violence incident.
McKinley was not the spouse or former spouse
of his victim… In McKinley, we held that as applied to McKinley, R.C. 2919.25(F) categorized victims based on marital-type relationships and recognized a legal status for
cohabitants. Therefore, we found R.C. 2919.25
to be unconstitutional pursuant to the Defense
of Marriage Amendment as applied to one man
and one woman who cohabitate and have not
parented children together. However, in contrast to the factual situation set forth in McKinley, Heffley’s victim was his former spouse. We
agree with the trial court’s finding that ‘[a]
former spouse who resides with an offender is
one of three separate, potentially non-parental,
status categories that are included in the R.C.
2919.25(F) definition of “family or household
member.”’ Accordingly, a ‘former spouse’ such
as Heffley is a victim-status category separate
and distinct from a ‘person living as a spouse’
such as McKinley’s victim.” That reasoning
closely resembles a pretzel. The Ohio Supreme
Court is expected to rule imminently on this
matter in another case.
Air Force Court of Criminal Appeals — Affirming a 15 year sentence imposed on Senior
Airman Donald E. Tipton, convicted of indecent assault, forcible sodomy, and wrongful distribution of Ambien pills, the U.S. Air Force
Court of Criminal Appeals rejected Tipton’s argument that the court martial imposed an excessive sentence because of his sexual orientation. According to the opinion in U.S. v. Tipton,
2007 WL 765938 (Feb. 20, 2007) (not reported
70
in M.J.), Tipton mixed up a super-duper drink
for his victim, then gave him two Ambien pills,
then the victim passed out and Tipton took him
to his room, where he had his way with him (including anal intercourse). Tipton denies having
done anything wrong, of course, but apparently
admits to having sex with the individual in
question. A.S.L.
Legislative Notes
Arkansas — On March 27, the Arkansas House
Judiciary Committee rejected SB 959, a bill
that would have banned gay people and most
unmarried heterosexual couples who live together from adopting children or serving as foster parents. At present, the only state that categorically forbids gay people from adopting
children is Florida, but that state allows gay
people to serve as foster parents. ACLU News
Release, March 27.
District of Columbia — On March 14, the
Domestic Partnerships Joint Filing Act of 2006
went into effect, which will make it possible for
registered domestic partners in the District to
file their D.C. taxes jointly beginning with the
2007 tax year. The bill was inspired by a samesex couple who had married in Massachusetts
but were not allowed to file their taxes jointly in
D.C. because local law followed federal law,
which does not recognize Massachusetts
same-sex marriages (or D.C. domestic partners). The couple in question would still have to
register as domestic partners in D.C. in order to
file jointly. Another bill that went into effect on
March 14, the Domestic Partnership Property
Equity Act of 2006, protects domestic partners
from joint liability on debts and contracts entered by their partners without their knowledge.
(Under prior DP legislation in DC, there is joint
liability where the partners are aware of the
debts or contracts when they are being entered
into.). These two bills were the 10th and 11th
measures to be enacted since 2001, in an effort
to incrementally expand the legal effect of Domestic Partnership in the District on an issue by
issue basis. For a full accounting the rights accorded domestic partners in D.C. as a result of
this cumulative legislation, visit the website of
the Gay and Lesbian Activists Alliance of
Washington, D.C., www.glaa.org.
Illinois — The House Human Service Committee voted 5–4 to approve a bill that would
create the status of civil unions for same-sex
couples. Civil unions would have the state law
rights accorded married couples. Chicago Tribune, March 22.
Iowa — On March 5, Iowa enacted a new law
establishing a state policy against harassment
and bullying in schools, specifying sexual orientation and gender identity as forbidden
grounds for such harassment. The law requires
that every school in the state to have a harassment policy in place by September 1, 2007,
April 2007
with procedures for its enforcement. The law
also provides immunity against civil liability
for persons who make good faith reports about
incidents of harassment or bullying in compliance with such procedures, and requires
schools to maintain records of incidence data.
The law will be codified as Section 280.28 of
Iowa Code 2007. Text is available on Westlaw:
2007 Ia. Legis. Serv. S.F. 61.
Iowa — On March 27, the Iowa Senate
passed SF 427, which would add sexual orientation and gender identity to the list of characteristics in the state’s civil rights law. The
measure now goes to the House of Representatives. Some Republicans in the Senate who opposed the measure worried that it would affect
the state’s ban on same-sex marriage and
whether it would impede the enforcement of
any dress codes that schools might have. The
latter concern is not as idle as it might sound. In
Massachusetts, for example, a court ordered a
high school to allow a transgender student to
dress according to the student’s gender identity, in contravention to the school’s student
dress code. The answer, of course, is that this is
reason to support the bill, not to oppose it. Jurist.law.pitt.edu, March 27.
Kansas — Responding to news that the city
council in Lawrence was thinking of enacting a
domestic partnership registry ordinance, Republican leaders in the state legislature introduced legislation that would preclude any political subdivision of the state from recognizing
relationship that were not recognized by state
law. House Bill 2299 is needed, according to
Republican State Representative Lance Kinzer, to “protect” the state’s constitutional
amendment banning same-sex marriage. The
House Federal and State Affairs Committee
voted 10–6 in favor of reporting the bill to the
House on March 22. Journal-World, March 23.
Maryland — The House Judiciary Committee voted 12–8 to reject House Bill 919, which
would have placed before the voters a constitutional amendment to ban same-sex marriages
and would bar public schools from teaching
about “same-sex relationships.” A similar bill
pending in the Senate was believed unlikely to
come to a vote before the end of the legislative
session in April. Washington Blade, March 22.
Minnesota — The State Senate voted on
March 24 to include in the annual state budget
a provision that would allow same-sex partners
of state workers to buy into the state health insurance plan. The bill was sent to the House,
but a spokesperson for Governor Tim Pawlenty
announced that the governor would veto the
measure if that provision was included.
365Gay.com, March 26.
New Hampshire — The state House voted on
March 21 to approve a bill that would amend
the state’s adoption law to allow same-sex partners to adopt children. The vote was 234–127,
and passage is expected in the Senate. Boston
Lesbian/Gay Law Notes
Globe, March 22. The following week, the
House voted 233–124 to reject a proposed constitutional amendment banning same-sex marriage. Rutland Herald, March 29.
New Mexico — Governor Bill Richardson
called a special session of the legislature to deal
with proposals left unfinished at the end of the
legislative session, among them a pending domestic partnership bill. The measure passed
the House, but the Republican-controlled Senate balked at taking up this and several other
controversial measures that the House had approved. It was unclear at the end of the month
what the eventual fate of the bill would be.
Some Republicans accused the governor, who
is a candidate for the Democratic Presidential
nomination, of having pushed the matter forward to curry favor with gay voters nationally. It
is kind of nice to think that among Democratic
presidential candidates this issue is seen as a
plus rather than a minus. 365Gay.com, March
26.
New York — New York City — The City of
New York added a new section to the city’s domestic partnership ordinance to clarify that
registered domestic partners are entitled to be
treated on the same basis as married couples
under city law. The new Section 3–244 of the
Administrative Code provides that, “to the extent permitted by state and federal law, any
benefit or service directly provided by the city
of New York to persons based on spousal relationship shall be available to persons who are
domestic partners… or in a relationship recognized as a domestic partnership.” The measure
also provides that a certificate of domestic partnership issued by the city clerk’s office “constitutes sufficient proof of domestic partnership.”
Mayor Michael Bloomberg signed the measure
into law on March 28. By its terms, it takes effect 30 days later. The law spells out specific
benefits in an “including but not limited to”
listing: bereavement leave and child care leave
of absence for city employees, visitation in city
correctional and juvenile detention facilities,
visitation in facilities operated by the city’s
health and hospitals corporation, eligibility to
be treated as a family member for purposes of
residing with a tenant in city housing, tenant
succession rights in rent-regulated apartments,
health benefits for city employees and their
families, and “ such other rights or benefits as
may be established pursuant to applicable
law.” City of New York Office of the Mayor Press
Release, March 28.
Oregon — On March 21, the Oregon Senate
voted 21–7 to approve SB2, a bill intended to
outlaw sexual orientation discrimination in the
state. The bill still required approval in the
House and by the Governor, who supports the
legislation.
South Carolina — Following up on the voters’ action last November, on March 22 South
Carolina legislatively implemented its mar-
Lesbian/Gay Law Notes
riage amendment, which provides: “A marriage between one man and one woman is the
only lawful domestic union that shall be valid or
recognized in this state.” AM New York, March
22.
Utah — During March, Governor Jon Huntsman, Jr., signed into law a measure setting strict
rules for student clubs at public schools, giving
administrators authority to shut down clubs
whose members violate “the boundaries of socially appropriate behavior.” There is significant concern that the measure might be used
against Gay-Straight Alliances, especially as
the law specifically bans any discussion by student clubs of “ human sexuality,” which is defined as “advocating or engaging in sexual activity outside of legally recognized marriage or
forbidden by state law,” and “presenting or discussing information relating to the use of contraceptive devices.” The law was dreamed up
by Republican state legislators who favor the
spread of HIV among sexually active teens...
oops, did we really write that? At any event, so
much for GSAs in Utah trying to play a constructive role in protecting their members from
HIV through anything other than abstinence
advocacy. It will be interesting to see if this law
stands up to federal preemption under the
Equal Access Act, which requires schools to
provide equal access to all student clubs if they
allow any non-curricular clubs to operate on
their campus. New York Times, March 17.
Washington State — The State Senate overwhelmingly approved a domestic partnership
bill on March 1. The vote was 28–19, and the
governor has indicated her support, although
passage in the lower house is not certain. The
bill would create a state domestic partnership
registry, and would provide a handful of specific rights for registered partners, including
hospital visitation, the ability to authorize
autopsies and organ donations, and intestate
inheritance rights. Domestic partnership would
be available to cohabiting same-sex couples
and unmarried different-sex couples where one
partner is at least 62. Following the strategy
originally embraced by California activist, the
bill is minimalist, seeking to establish the concept of domestic partnership in Washington
law, so that subsequent attempts can be made to
amend it in the future adding more rights. KOMOTV.com, March 1. A.S.L.
Law & Society Notes
Religion — Reconstructionist Judaism — The
Reconstructionist Rabbinical Assembly, the
professional association for rabbis in the Reconstructionist Movement, which is the smallest but most progressive movement in American Judaism, has elected as its president Rabbi
Toba Spitzer of Congregation Dorshei Tzedek.
She was described in press reports as “the first
openly lesbian or gay person to head a rabbini-
April 2007
cal assembly.” The movement numbers about
165,000 members out of the approximately 5.5
million Jews in the U.S. The appointment attracted notice from the Boston Globe, March 14,
since Rabbi Spitzer’s congregation is in the
Boston metro area. The Reconstructionist
Movement was the first to ordain openly gay
and lesbian rabbis and to affirm same-sex commitment ceremonies.
Religion — Conservative Judaism — Following the vote in its Committee on Jewish Law and
Standards to affirm the possibility of ordaining
openly gay rabbis and cantors, the two Conservative Seminaries in the United States, the Ziegler School of Rabbinic Studies in Los angeles
and the Jewish Theological Seminary of America, in New York, have announced that they will
accept applications for those programs from
openly gay and lesbian candidates. New York
Times, March 27. In reporting on the move, the
New York Times described the New York seminary as “the intellectual and spiritual center of
Conservative Judaism.”
Military Policy — In an interview with the
Chicago Tribune published March 12, General
Peter Pace, Chairman of the Joint Chiefs of
Staff, stated that he supported the “don’t ask,
don’t tell” military policy because he regarded
homosexual acts as “immoral” and, in his view,
the Pentagon should not “condone” immoral
behavior by allowing lesbian and gay personnel
to serve openly. He said his views were based
on his “upbringing,” and that he considered
homosexual conduct to be similar to adulterous
conduct. His published conducts caused a firestorm of commentary, leading to a later statement by General Pace that he should not have
stated his personal moral views when responding to a question about the military policy. Some
commentators observed that Pace’s comments
gave the lie to the “official” military justification for the policy — the belief that letting
openly gay people serve would undermine unit
cohesion and discipline because of the anti-gay
views held by most military personnel, who
tend to be socially conservative. The controversy surrounding his remarks led to a new
round of newspaper, magazine, and electronic
media discussion of the policy, and a new round
of editorials denouncing it and calling for its repeal. Some gay rights leaders seemed pleased
that Pace had made his comments, providing an
educational moment for the movement to end
the policy. Meanwhile, a pending lawsuit challenging the policy by Servicemembers Legal
Defense Network was argued to the 1st Circuit
this month. Chicago Tribune Online, March 13.
Largo Discrimination Day — The city commissioners of Largo, Florida, voted on March
23 by 5–2 to reaffirm their earlier decision to
discharge City Manager Steve Stanton, who had
previously disclosed his intention to cure his
gender dysphobia by undergoing the process of
gender reassignment. Several of the commis-
71
sioners claimed that their vote was not do to any
prejudice against transsexuals, but rather because they had lost trust in Stanton for having
kept his intentions a secret. Stanton only went
public with his intentions after receiving word
that the St. Petersburg Times had gotten wind of
his plans and was preparing to publish a story.
Orlando Sentinel, March 24; Bradenton Herald, March 25.
Police Behaving Badly — The Rocky Mountain News reported March 21 that a gay law student had filed a complaint against Denver Police Office Richard Boehnlein, claiming that
the officer had told him to just go home after he
was assaulted by a man who had made a derogatory, anti-gay statement to him. The officer
did not get the name of the assailant of Nima
Daivari, a student at New York Law School who
was in Denver visiting a relative when the event
occurred at a shopping mall. The police officer
did not file a report of the incident, but Daivari
went to the police station with witnesses and
gave statements about the event. The Department’s Internal Affairs Division is investigating
the complaint. A.S.L.
Recent European Human Rights Court Rulings
Indicate Reluctance to Consider Same-Sex
Marriage Issue
Many commentators would say that, with only
three of 46 member states of the Council of
Europe permitting same-sex couples to marry
(four, if a recent recommendation in Sweden
becomes law in 2008), it is too early to take the
question of equal access to legal marriage for
same-sex couples to the European Court of Human Rights (cf. 1 of 50 states in the USA). But it
is often hard to persuade individual litigants
and their lawyers not to do so. The Court has already received an application from Austria, and
could soon receive others from France and Ireland.
These applicants are probably wasting their
time (and more importantly the Court’s time),
as a result of two recent decisions dealing with
same-sex couples consisting of a transsexual
woman and a non-transsexual woman, R. and F.
v. United Kingdom, Application No. 35748/05
(declared inadmissible on 28 Nov. 2006) (couple from Scotland), and Wena & Anita Parry v.
United Kingdom, Application No. 42971/05
(declared inadmissible on 28 Nov. 2006) (couple from England). (“Admissibility decisions”
have less precedential weight than “judgments.”)
In each case, the two women were married as
a male-female couple before the transsexual
woman (born male) transitioned. Under the
UK’s Gender Reassignment Act 2004, the
transsexual party to such a marriage must
choose between legal recognition of their gender reassignment and remaining legally married to their spouse: a divorce is a condition of
72
obtaining a full “gender recognition certificate.” At the time their cases were considered
by the Court, both couples were legally
different-sex (the transsexual women were legally male) but factually same-sex. They argued that the European Convention on Human
Rights requires the UK Government to grant
the gender recognition certificates AND permit
them to remain married as both legally and factually same-sex couples.
A seven-judge Chamber of the Court unanimously declared both applications inadmissible as manifestly ill-founded. The reasoning in
each decision is identical, with the following
quotations taken from Parry:
(1) No violation of Article 8 (right to respect
for private and family life)
“In the present case, the Court notes that the
requirement that the applicants annul their
marriage flows from the position in English law
that only persons of the opposite gender may
marry; same-sex marriages are not permitted.
Nonetheless it is apparent that the applicants
may continue their relationship in all its current essentials and may also give it a legal
status akin, if not identical to marriage, through
a civil partnership which carries with it almost
all the same legal rights and obligations. It is
true that there will be costs attached to the various procedures [an annulment or divorce followed by a civil partnership]. However the
Court is not persuaded that these are prohibitive or remove civil partnership as a viable option. The Court concludes, as regards the right
to respect for private and family life, that the effects of the system have not been shown to be
disproportionate and that a fair balance has
been struck in the circumstances.”
(2) No violation of Article 12 (right to marry)
“In domestic law marriage is only permitted
between persons of opposite gender, whether
such gender derives from attribution at birth or
from a gender recognition procedure. Same-sex
marriages are not permitted. Article 12 of the
Convention similarly enshrines the traditional
concept of marriage as being between a man
and a woman (Rees v. the United Kingdom).
While it is true that there are a number of Contracting States which have extended marriage
to same-sex partners, this reflects their own vision of the role of marriage in their societies and
does not, perhaps regrettably to many, flow from
an interpretation of the fundamental right as
laid down by the Contracting States in the Convention in 1950. The Court cannot but conclude therefore that the matter falls within the
appreciation of the Contracting State as [to?]
how to regulate the effects of the change of gender in the context of marriage (Christine Goodwin v. United Kingdom). It cannot be required
to make allowances for the small number of
marriages where both partners wish to continue
notwithstanding the change in gender of one of
them. It is of no consolation to the applicants in
April 2007
this case but nonetheless of some relevance to
the proportionality of the effects of the gender
recognition regime that the civil partnership
provisions allow such couples to achieve many
of the protections and benefits of married
status. The applicants have referred forcefully
to the historical and social value of the institution of marriage which give it such emotional
importance to them; it is however that value as
currently recognised in national law which excludes them.”
(3) No violation of Article 14 (prohibition of
discrimination)
“The Court doubts that the applicants can,
for the purposes of Article 14 ..., claim that they
are in a comparable position to others who are
unaffected by the new legislation but to the extent that any possible issue of difference of
treatment arises, this is justified on the same
grounds identified above in the context of Articles 8 and 12 ...”
Normally the original intent of drafters is not
considered significant in interpreting the European Convention on Human Rights, which the
Court construes in light of current European
practices and not those of decades ago, so the
court’s invocation of this idea seems contrary to
normal practice. However, it is worth noting
that UK civil partnerships confer almost all the
rights of marriage, not just “many” per the
courts comment.
In same-sex marriage litigation around the
world, it is still worth citing the case law of the
European Court of Human Rights for its analogies between sexual orientation and race, religion and sex, its “strict scrutiny” (“particularly
serious reasons” are required), and its rejection
of the “procreative capacity argument” in the
2002 Goodwin ruling. The decisions in R. & F.
and Parry must be acknowledged. But they only
show that the Court is not yet willing to interpret
the Convention as requiring full equality for
same-sex couples in 46 countries with over
800,000,000 people. This does not mean that a
court interpreting a constitution for one country,
or one state within a country, with a much
smaller population, should hesitate to require
full equality. Robert Wintemute, Kings College,
London.
International Notes
Canada — In a somewhat technical decision,
the Supreme Court of Canada ruled in Attorney
General of Canada and Hislop, 2007 SCC 10
(March 1, 2007), that the Parliament violated
Charter equality rights in 2000 when it responded to the Court’s decision in M v. H by extending survivor benefits to same-sex partners
whose spouses had died only if the spouses
passed away on or after January 1, 1998, in
light of the fact that the Court’s decision was
based on an interpretation of a Charter provision that came into force on April 17, 1985. On
Lesbian/Gay Law Notes
the other hand, the Court was unwilling to order
that all benefits be made retroactive to the earlier date, instead approving a ruling that a
same-sex surviving spouse was entitled to survivor benefits subject to a 12–month cap on arrears and a limitation on estate claims, because
these provisions applied to all benefits claimants, not just surviving same-sex partners. The
practical significance of the holding is limited
by subsequent adjustments in Canadian law,
not least the right to marry for same-sex couples
that became available in some provinces as
early as mid–2003 and was subsequently codified by the Parliament.
China — The China Post reported on March
6 that the scope of domestic violence laws had
been expanded to encompass same-sex cohabiting partners under the same protection now
extended to married couples.
Israel — The daily newspaper Ha’aretz reported on March 13 that the Housing and Construction Ministry had recently decided to provide housing and mortgage assistance to
common-law couples, including same-sex couples, removing a major obstacle to equality for
alternative families. Dan Yakir, the chief legal
counsel for the Association for Civil Rights in
Israel, commented to the newspaper that this
ministry was “nearly the last stronghold that
persistently refused, for many years, to apply
these benefits to common-law couples.” Attributing the change to efforts by the gay community in Israel, he said this was the first instance
of which he was aware where the efforts of gay
rights advocates to achieve equal benefits has
led a government agency also to expand benefits to heterosexuals — in this case oppositesex unmarried cohabitants, a significant part of
the Israeli scene because of the absence of civil
marriage in that country and the inability of
some couples to go overseas to get a civil marriage.
Israel — A group of Arab lesbians met in
Haifa for a conference on gay Arab women, despite being picketed by Arab women in head
scarves holding up signs asking God to “guide
these lesbians to the true path.” Some attendees told the press they were sad that the
only safe place to hold such an event was in a
Jewish area of Haifa. Probably the only safe
place in the entire Middle East.... Chicago Tribune, March 29, 2007.
Mexico — International media paid attention
on March 16 when Jorge Cerpa and Antonio
Medina because the first same-sex couple
united under Mexico City’s civil union law,
which grants civilly-united same-sex couples
many social benefits similar to those given married couples. Some opponents of the law have
filed suit seeking to have it invalidated. New
York Times, March 17.
Nigeria — A pending legislative proposal in
Nigeria to ban same-sex marriage and prohibit
gay people from associating with each other in
Lesbian/Gay Law Notes
any way, carrying draconian criminal penalties,
has drawn negative comment from the European Parliament, in a rather weakly-worded
resolution approved in March. The resolution
criticized “infringements of the basic human
rights of freedom of expression and opinion, in
particular when it envisages a five-year prison
sentence for anyone involved publicly or privately in positive representation of or advocacy
for same-sex relationships.” The main proponent of the measure is the Nigerian branch of
the Anglican church, whose leader Archbishop
Peter Akinola is also leading those within the
Anglican Communion seeking to force the
Episcopal Church in the U.S. to back off from its
gay-affirmative positions. 365Gay.com, March
20.
Spain — On March 2 the Spanish Parliament
gave final approval to a new law that allows
transsexuals to change their names and legal
gender designation with need for surgery, provided a doctor certifies their need for a change
of legal sex designation. El Pais (English edition), March 2; Australian, March 3.
Sweden — Hans Regner, head of an official
inquiry on the question of legal recognition for
same-sex couples, recommended that the government open up full marriage rights to samesex couples, while reserving to individual
clergy the decision whether they would perform
such ceremonies. Gay rights compaigners
slammed the idea of allowing clergy to opt out.
Regner commented in his report that the Swedish word for marriage should be used, rather
than invent some new partnership nomenclature. The Church of Sweden has confirmed that
it will provide officiants for same-sex marriages, although individual priests who object
April 2007
to performing such ceremonies will not be required to do so. The Local, March 21.
United Kingdom — The House of Commons
voted 310–100 in favor of the Equality Act
(Sexual Orientation) Regulations 2007, intended to require businesses and other service
providers not to discriminate on grounds of sexual orientation. The measure faced heavy opposition lobbying from the Catholic Church,
which contends that it will have to shut its
adoption agencies if the law would require it to
place children with same-sex couples. Daily
Telegraph, March 20.
United Kingdom — Prime Minister Tony
Blair showed up as the secret guest of honor at a
gala dinner held by the nation’s leading gay
rights group, Stonewall. His appearance came
the day after the House of Lords voted in favor
of the Equality Act (Sexual Orientation) Regulations 2007, and the P.M. was reportedly in a
celebratory mood. Independent, March 23.
United Kingdom — An Employment Tribunal in Sheffield ruled that a Justice of the Peace
who did not want to perform child adoption proceedings involving same-sex couples was not
entitled to an exemption from his formal duties.
Andrew McClintock had resigned from the
bench, citing his religious objections to approving such adoptions, and the refusal of the Lord
Chancellor to allow him to elect not to preside
over such cases. The tribunal said, “Gay couples have human rights too, and to suggest Mr.
McClintock’s human rights are being infringed
by refusing to allow him to opt out of a situation
whereby he might feel forced to discriminate
against same-sex couples strikes us as being
wrong.” The tribunal noted that “expert opinion is divided as to whether or not it is in the
child’s best interests to be placed into the care
73
of or adopted by same sex couples.” McClintock claimed that recent legal developments requiring him to approve same-sex adoptive couples violated his duty to look out for the best
interest of children. Daily Mail, March 2.
A.S.L.
Professional Notes
The Massachusetts Lesbian & Gay Bar Association will hold its annual dinner on May 11.
The keynote speaker will be Massachusetts Attorney General Martha Coakley. The honorees
on the occasion will be John N. Affuso, Jr., Esq.
(Kevin Larkin Memorial Award for Public
Service), Pauline Quirion, Esq. (MBA Community Services Award), and Joyce Kauffman,
Esq. (Gwen Bloomingdale Pioneer Spirit
Award). Online registration is available at
www.mlgba.org.
Openly-gay Staten Island attorney Matthew
Titone won a special election on March 27 for a
vacant New York State Assembly seat. He had
previously run unsuccessfully for a State Senate seat in November 2006. Titone is a son of
the late Vito Titone, New York Court of Appeals
judge and author of the famous Braschi decision, the first appellate ruling in the U.S. (and
perhaps in the entire world) to recognize that a
same-sex couple could be considered a family
in a legal context.
The March 29 issue of the Toronto Star included a profile of El-Farouk Khaki, a gay Muslim lawyer who is a major presence in both the
Muslim and LGBT communities in that city. He
won the 2007 Steinert & Ferreiro Award from
the Lesbian & Gay Community Appeal Foundation for his work in promoting understanding
of the LGBT community among Muslims,
which was awarded on March 27, providing the
occasion for the news report. A.S.L.
AIDS & RELATED LEGAL NOTES
Long Island Counties Lose Bid to Maintain
Earlier Ryan White CARE Act Funding Level
Long Island stands to see reduced funding for
HIV/AIDS services after a federal judge refused to block implementation of the Department of Health & Human Services’ (HHS) interpretation of the recent re-authorization of
Ryan White Act funding. In County of Nassau v.
Leavitt, 2007 WL 708321 (E.D.N.Y. Mar. 1,
2007), District Judge Joanna Seybert denied a
request by the two counties of Long Island,
Nassau and Suffolk, along with various HIV
service providers, to grant a temporary restraining order preventing HHS from placing Nassau
and Suffolk into a newly-created second tier of
funding eligibility based on the lower number
of AIDS cases on Long Island.
The Ryan White Comprehensive AIDS Resources Emergency (CARE) Act was first en-
acted in 1990 to provide funding to states and
localities for medical and support services for
patients with HIV and AIDS. Under Title I of
the CARE Act, funds were provided directly to
localities disproportionately affected by the
HIV epidemic, so-called Eligible Metropolitan
Areas (“EMAs”). Nassau and Suffolk Counties
(combined) had been an EMA for many years
up through FY 2006, in which the NassauSuffolk EMA received approximately $6.1 million in Title I funds.
In December 2006, Congress reauthorized
Ryan White funding by enacting the Ryan
White HIV/AIDS Treatment Modernization Act
of 2006 (the “Modernization Act”). See Pub. L.
109–415 (signed into law December 19,
2006). The Modernization Act created a new,
second tier of eligibility for funding under Title
I (now called “Part A”). This new tier, called the
Transitional Grant Area (“TGA”), was intended
to include localities that had a lower number of
AIDS cases than EMAs (per a formula to be discussed below). Funding for TGAs as a group
under the Modernization Act is significantly
less than for the group of EMAs.
On February 12, 2007, HHS notified Long
Island officials that Nassau-Suffolk would be
considered a TGA for FY 2007. The counties
(and other plaintiffs), fearing a reduction in
funding, filed suit, asking Judge Seybert for a
temporary restraining order enjoining HHS
from downgrading Nassau-Suffolk from an
EMA to a TGA.
The parties and the court focused their arguments solely on whether plaintiffs had a likelihood of success on the merits; i.e., whether
HHS’s interpretation of the Modernization Act
was correct. The Act defines an EMA as “any
metropolitan area for which there has been reported to and confirmed by the Director of the
74
Centers for Disease Control and Protection a
cumulative total of more than 2,000 [new]
cases of AIDS during the most recent period of
5 calendar years.” 42 U.S.C. § 300ff–11(a). A
TGA was defined as an area with between 1000
and 2000 reported AIDS cases over the past 5
years. 42 U.S.C. § 300ff–19(b). NassauSuffolk’s case count for 2001–2005 was 1505.
HHS’s reclassification was therefore, Judge
Seybert noted, “a literal application of the statutes just cited.”
The Modernization Act also contains a transitional provision, however, providing for “continued status” as an EMA for a three-year period after an area saw reduced levels of AIDS
cases. Specifically, the Act provides that “a
metropolitan area that is an eligible area for a
fiscal year continues to be an eligible area until
the metropolitan area fails, for three consecutive fiscal years,” to (1) meet the cumulative
AIDS case numbers required for an EMA, and
(2) to have a total of 3000 or more cases of persons living with AIDS for the most recent year
for which reporting was available. 42 U.S.C. §
300ff–11(b).
Because Nassau-Suffolk’s five-year total had
not been reported as below 2000 for three consecutive years, and because the area had over
3000 living AIDS cases for the prior two years,
plaintiffs argued that Nassau-Suffolk was entitled under this provision to continued status as
an EMA.
Judge Seybert disagreed. She read the Modernization Act as re-defining an EMA to require
over 2000 cumulative AIDS cases over the previous five years, and, therefore, “NassauSuffolk was not an EMA as defined by the 2006
amendments to the Act. In essence, NassauSuffolk cannot continue status as an EMA because it had no EMA status to begin with.” She
further found this reading supported by the legislative history of the Modernization Act. In
Judge Seybert’s view, the report of the Committee on Energy and Commerce, H.R. Rep. No.
109–695, spoke directly to Nassau-Suffolk’s
situation, stating that “EMAs that received
funding in fiscal year 2006 but were not eligible
for tier one in fiscal year 2007 would be added
to the tier two category.” Accordingly, Judge
Seybert held that the plaintiffs had no likelihood of success in proving that HHS’s application of the law was incorrect, and she denied the
requested injunction.
Plaintiffs have filed an appeal to the Second
Circuit Judge Seybert denied plaintiff’s request for a preliminary injunction pending appeal. According to information from the HHS
website, on March 5, 2007, HHS announced
the so-called “Formula Grants” under Part A.
(Formula Grants comprise only one part of Part
A funding; localities are also entitled to compete for supplemental funding based upon need
and to apply for grants under the Minority AIDS
Initiative.) Of the 51 localities that were EMAs
April 2007
in FY 2006, 29 were downgraded to TGAs.
Nassau-Suffolk’s Formula Grant, which made
up a little over one-half of its 2006 funding, was
reduced from $3.2 M in FY 2006 to $3.1 M in
FY 2007. HHS has said it will announce the remainder of the Part A funding later in the year.
Glenn C. Edwards
Court Rejects AIDS Discrimination Claim but
Allows Retaliation Claim to Go to Trial
One may not, as a matter of law, claim an impairment that substantially limits a major life
activity, as required to prove discrimination under the Americans with Disabilities Act (ADA),
if one’s alleged impairment is merely an inability to concentrate and difficulty remembering
things, held the U.S. District Court for Northern
Illinois, even if AIDS causes such difficulties.
However, if one is fired after asking an employer for a reasonable accommodation to manage these difficulties, one might establish a
prima facie case of discrimination under the
ADA, which is a sufficient fact question to present to a jury. Sanchez v. City of Chicago, 2007
WL 647485 (N.D. Ill. Feb. 28, 2007).
Gregory Sanchez was diagnosed with HIV in
1992, after which he undertook a course of
studies to develop an expertise in the field of
AIDS and other sexually transmitted diseases.
He founded an AIDS support organization and
was employed by various other similar organizations. However, after about 10 years of this
sort of employment, during which he developed
full-blown AIDS, he started to develop related
problems: anxiety, stuttering, memory loss. He
eventually quit his job, and applied for Supplemental Security Income (SSI), a form of Social
Security for people with disabilities. In 2004,
he got a job with the City of Chicago as a Communicable Disease Control Investigator. His
responsibility was to conduct interviews with
people who suffered from communicable diseases in a manner that “contributes to the interruption of their transmission.” When interviewing for the job, he told his employers about
his AIDS and his attention-deficit hyperactivity
disorder (ADHD); he did not tell them that he
also suffered from depression.
The City of Chicago hired and trained him,
and he received good scores on his training
modules. He started performing interviews, but
had difficulty interviewing and completing paperwork for syphilis cases. He became reluctant to conduct any interviews at all, according
to his supervisors, and asked for reasonable accommodations, using an official City of Chicago
“Request for Reasonable Accommodation”
form. His requests were for: (1) visual aids to
assist with paperwork in syphilis interviews, (2)
a smaller caseload for syphilis cases, to be increased over time, (3) closer supervision including more job shadowing in areas of inexperience (syphilis cases), and (4) free time off for
Lesbian/Gay Law Notes
medical appointments. Sanchez also submitted
a letter from his psychologist stating that he suffered from ADHD, which may be related to his
HIV infection. The psychologist did not mention Sanchez’s anxiety or depression.
Sanchez received his accommodations, and
was supplied with a variety of items to help him
perform his job. However, his supervisors decided that he was unable to perform the job adequately, and he was fired after holding the position for a little over six months.
Sanchez sued the city for discrimination
based on disability and on retaliation for submitting the Request for Reasonable Accommodation. The question on a motion for summary
judgment was whether a reasonable juror could
find for Sanchez on any issue. The district court
judge, Charles P. Kocoras, found no such issue
regarding disability discrimination, but he denied summary judgment on the issue of retaliation.
Under the ADA, an employer must provide
reasonable accommodation for the known
physical or mental limitations of an otherwise
qualified individual, unless that accommodation would impose an undue hardship on the
operations of the employer. The employee must
show that he has a disability impairing a major
life activity that the average person in the general population can perform. Sanchez contended that his mental disability limits his ability to learn and think, and that this is a major
life activity. The court found, however, that his
disability as to learning and thinking was only
substantially limited as to one aspect of his job:
interviewing people with syphilis; he was able
to perform tasks in regard to other diseases. The
disability did not qualify under the ADA because it was a limitation specific to the job that
he was hired to perform.
Sanchez also contended that he had difficulty completing thoughts and sentences, was
distracted when uninterested, and had trouble
operating the computer, remembering his
medication, going grocery shopping, dealing
with finances, following directions, and studying for tests. The court found, however, that this
list describes difficulties that many if not most
people frequently face; these do not qualify as
disabilities under the ADA.
Sanchez further points to the fact that he received SSI to show that he had a recognized disability. The court, however, pointed out that his
SSI benefits pertained to his depression, not to
his HIV or ADHD. Depression was not an ailment revealed to his employers, therefore, they
cannot be held to have discriminated based on
depression. A qualifying disability must be one
that is known to the employer.
Finally, however, the court found for Sanchez
on the retaliation claim. In order to survive
summary dismissal, the plaintiff on a retaliation claim must show evidence that (1) he engaged in a statutorily protected activity; (2) the
Lesbian/Gay Law Notes
defendants subjected him to an adverse employment action; and (3) a causal connection
existed between the two events. Here, Sanchez
put in a request for accommodation, which is a
statutorily protected activity for establishing a
retaliation claim under the ADA, and was fired,
which is an adverse employment action. The
court decided that it was up to a jury to decide
whether Sanchez’s supervisor knew of Sanchez’s request for accommodation, and whether
that knowledge caused the supervisor to fire
him. Sanchez presented sufficient circumstantial evidence to allow a reasonable fact finder to
infer that there was a causal connection between Sanchez’s request for accommodation
and his discharge; hence, the judge denied the
city’s motion for summary judgment on the retaliation issue. Alan J. Jacobs
AIDS Litigation Notes
Federal — 5th Circuit — In Xuan v. Drago,
2007 WL 788328 (March 13, 2007), an unpublished summary per curiam disposition, the
court characterized as “legally and factually
frivolous a claim under 42 U.S.C. sec. 1983
seeking redress by the plaintiff from local Tarrant County, Texas, law enforcement officials,
on a claim that he suffered injury when he was
“ordered to undergo an HIV test and was falsely
informed that he was HIV positive.” The court
provides no explanation for its ruling.
Federal — 5th Circuit — In Ochondo v. Gonzales, 2007 WL 625041 (Feb. 23, 2007)(not officially published), the court rejected an appeal
in an asylum, withholding of removal, and Convention Against Torture case brought by an
HIV+ man from Kenya. “Ochondo argues that
the IJ erred by denying his request for withholding of removal on the grounds that he was
HIV positive, that people with HIV are discriminated against in Kenya, and that sufficient
medical care is not available.” But these are not
grounds for withholding of removal; an applicant has to show the likelihood that he will be
subjected to imminent, harsh persecution to
win relief on this ground; mere discrimination
or insufficient medical care are not grounds.
Federal — 5th Circuit — The court upheld
the grant of summary judgment on behalf of a
prison doctor and prison nurse charged by the
mother of a deceased inmate with violation of
the inmate’s constitutional right to medical
treatment. Lee v. Stalder, 2007 WL 760725
(March 9, 2007) (not officially published). Inmate Gregory Lee arrived at Elayn Hunt Correctional Center accompanied by medical records indicating he was HIV+. He arrived in an
agitated state requiring physical restraints and
was placed in the mental health nursing unit,
where Dr. Hegmann and Nurse Nickens were
called to evaluate him. Hegmann concluded
that Lee was very sick. Nickens ordered a series
of tests, including HIV viral load, CD4, and a
April 2007
chest x-ray. Both Hegmann and Nickens were
experienced in working with HIV+ inmates.
The tests came back a few days later and were
reviewed Nurse Hancock, who concluded that
there was no emergency and scheduled Lee to
be seen by a specialist after the weekend. Lee
died of heart failure over the weekend. He had
not been on anti-virals. His mother claimed
that the treatment he received showed deliberate indifference to his serious health problems,
in violation of the 8th Amendment, but the trial
judge disagreed, and was affirmed per curiam,
stating “there is insufficient evidence of deliberate indifference. The test results that Hancock reviewed did not indicate inmate Lee’s
heart condition. Furthermore, there is little evidence to suggest that inmate Lee’s blood test
results, although generally abnormal, were abnormal as compared to other HIV patients.
Both Dr. Hegmann and Hancock testified that
inmate Lee’s abnormal enzyme levels were
consistent with HIV patients. Dr. Hegmann testified that had he viewed inmate Lee’s test results on Friday, he would have done nothing
more than what Hancock already had done,
which was to schedule a meeting with the HIV
specialist the following Monday.” Thus, the
court found, the defendants were immune from
liability and the summary judgment was appropriate.
Federal — W.D. Ark. — In Richey v. Ferguson, 2007 WL 710129 (W.D. Ark., March 6,
2007) (not officially published), U.S. District
Judge Jimm Larry Hendren adopted a report
and recommendation by Magistrate Judge
James R. Marschewski that an HIV+ prisoner’s constitutional claim for denial of adequate
medical care in violation of his 8th Amendment
rights be allowed to proceed, while granting
summary judgment on the claim that his privacy rights in his medical information were violated or that the grievance procedure at Benton
County Detention Center is inadequate. While
Richey was held pending trial, he was denied
the HIV meds prescribed for him for a period of
a month, and then was given only some of the
meds, allegedly because the doctor decided
that it was too expensive to provide all the meds
that Richey’s doctor had prescribed. The magistrate noted that differences of medical opinion about appropriate treatment for HIV do not
rise to the level of a constitutional claim, but
outright denial of medication for a significant
period of time would, as would denying medication for non-medical reasons, which would
evidence the “deliberate indifference” to an inmate’s health that is the standard under the 8th
Amendment’s prohibition on cruel and unusual
punishment.
Federal — M.D. Georgia — U.S. Bankruptcy
Judge John T. Laney, III, ruled on March 14 in
Douglas v. Educational Credit Management
Corp., 2007 WL 788429, that it would pose an
undue hardship on an HIV+ single mother
75
with a criminal record whose earnings are insufficient to support herself and her son to except from bankruptcy discharge her accumulated student loan obligations. Although the
court did not rest its ruling solely on the
mother’s HIV+ status, that was a factor in analyzing her current financial situation, including
the fact that she had no health insurance from
her part-time receptionists job. Although she
has access to free drugs from the state, she
bears the expenses of quarterly blood-work to
monitor her HIV and T-cell levels, as well as associated medical expenses. Federal law makes
it very difficult to get student loan obligations
discharged in bankruptcy, but the court found
in this case that the woman, whose annual income barely exceeds the official poverty level,
could not make ends meet and still make her
monthly loan payments.
Federal — S.D. Georgia — In Mason v. Warrent, 2007 WL 845904 (March 15, 2007), District Judge Lisa Godbey Wodd approved a report by Magistrate W. Leon Barfield
recommending dismissal of a pro se complaint
by an HIV+ prisoner complaining about discriminatory treatment in the prison. Apparently
Mason had been cutting hair in the prison, but
was told when it was determined he was HIV+
that he could no longer cut hair. Later that day,
he shared a cigarette with another inmate and
was promptly written up, even though he claims
nobody told him he couldn’t share a cigarette
just because he was HIV+. After being written
uphe was placed in segregation for about a
month, and he claims his request to see a doctor
was denied during his segregation. Recommending dismissal of his complaint, Barfield
relied on the execrable 11th Circuit precedent
on treatment of HIV+ prisoners, under which
prison authorities are free to deprive them of
participation of any and all activities involving
contact with other inmates and to place them in
segregation pretty much at whim. See Harris,
941 F.2d 1495 (11th Cir. 1991).
Federal — E.D. Michigan — A state prisoner seeking a writ of habeas corpus who was
convicted in a jury trial of “sexual penetration
with an uninformed partner by a person infected with acquired immunodeficiency syndrome (AIDS)” and sentenced to 120 to 180
months in prison was denied the writ in Holder
v. Palmer, 2007 WL 713149 (E.D.Mich., March
7, 2007), District Judge Victoria A. Roberts
having found that the petitioner did not suffer
from ineffective assistance of counsel, that
there was no need for the trial court to recuse itself just because the same judge had sentenced
the petitioner on a prior offense years earlier,
and that alleged departures from sentencing
guidelines do not provide the basis for a constitutional claim. Much of the discussion in the
opinion centers around the fact that this was an
interracial sex case and that the issue was very
much present during jury selection, during
76
which Holder’s defense attorney did not object
to seating various jurors who had expressed reservations or dislike towards interracial relationships but had stated that they could decide
the case fairly nonetheless.
Federal — N.D.N.Y. — An HIV+ woman incarcerated in the Broome County Correctional
Facility did not suffer an 8th Amendment deprivation when there was a delay of more than two
months between the time she was received at
the facility and the time she was administered
anti-viral medication for her HIV, according to
Senior U.S. District Judge Thomas J. McAvoy.
Pierre v. County of Broome, 2007 WL 625978
(N.D.N.Y., Feb. 23, 2007). This opinion is incredibly frustrating to read, since so much is
left out in terms of the facts. It appears that Ms.
Pierre, who had been receiving retrovirals, was
incarcerated on Oct. 19, 2004. She spoke to a
doctor at the prison and explained her condition on October 20, making her first request for
medications, but she seems to have been confused and gave him the wrong information
about which pharmacy to contact, and it seems
that her own doctor and the pharmacies that
had been prescribing her meds were slow to respond to the prison’s request for verification.
Ultimately, between one thing and another, she
received no anti-retroviral medication until
early in January 2005. In the interim, her viral
load went up drastically and her T-cell count
plummeted, and she claims to have suffered a
variety of symptomatic problems that could be
associated with depressed immunity. After resuming treatment, these numbers improved,
and Pierre testified that they went back to what
they were before she was incarcerated. On this
record, Judge McAvoy found no evidence of deliberate indifference to her serious medical
condition, opining that no evidence in the record suggests that a delay of two months or more
in such treatment was serious. *** The recurring problem of delays in anti-retroviral treatment for HIV+ persons incarcerated in jails
April 2007
and prisons is well illustrated by this case.
Given the serious public health consequences
if prisoners were to be released with drugresistant strains of HIV, one would think that
prison health authorities would respond with
alacrity to requests to resume interrupted treatment when a person is incarcerated or transferred between facilities. Some may do so, but
the frequency with which this problem arises in
8th Amendment litigation suggests that many
prisons are not adequately prepared to provide
the necessary care.
Federal — S.D.N.Y. — In Petty v. Goord,
2007 WL 724648 (S.D.N.Y., March 5, 2007),
U.S. District Judge Rakoff adopted a report and
recommendation by Magistrate Judge Frank
Maas to reject a motion to dismiss in a 42 USC
1983 suit by an HIV+ prisoner alleging an 8th
Amendment violation by prison staff “disclosing his HIV-positive status to non-medical personnel, which, in turn, led to harassment of him
while he was incarcerated at the Green Haven
Correctional Facility.” The prison officials
sought to have the case dismissed for failure to
exhaust administrative remedies before filing
suit, but Magistrate Maas found that there are
“issues of fact as to whether Petty’s acknowledged failure to exhaust his remedies should be
excused.” The magistrate judge’s opinion is
concerned with these procedural issues.
California — Yet another decision in the
long-running saga of inappropriate ordering of
HIV tests by California court... In People v. Walden, 2007 WL 642019 (Cal. App., 2nd Dist.,
March 5, 2007) (not officially published), the
court ordered HIV-testing although the defendant’s offense of sexual touching of female minors did not involve any activity that could have
remotely transmitted HIV. Said the appellate
court, “Here, the record does not provide evidentiary support for a finding that bodily fluids
capable of transmitting human immunodeficiency virus were transferred from defendant to
either victim. Defendant touched each victim
Lesbian/Gay Law Notes
with his hand in their vaginal area on top of
their clothing.” The court remanded to give the
prosecutor “the opportunity to offer additional
evidence at further proceedings to establish the
requisite probable cause for testing.” One wonders why, given the nature of the charges....
New York — The N.Y. Appellate Division,
First Department, affirming a grant of summary
judgment in DaSilva v. Rector Church Wardens
& Vestrymen of Parish of Trinity Church, 2007
WL 925662, 2007 N.Y. Slip Op. 02671 (March
29, 2007), rejected the argument that negligent
hiring could be premised on the fact that an employee was gay and HIV+. The brief memorandum decision by the Appellate Division does
not lay out the facts in any systematic way, but
inferences from the cryptic statements of the
court suggest that the plaintiff suffered a sexual
assault by one Forbes, an employee of the
church who is gay and HIV+. The plaintiff
seeks to hold the church liable for his injury on
a respondeat superior or negligent hiring and
supervision theory. The court mentions that
Forbes had worked for the church for five years
prior to the alleged assault, during which time
the church never received complaints about his
conduct and he had never been convicted of
any crime. Justice Marylin G. Diamond had
granted summary judgment to the defendants.
A.S.L.
International AIDS Notes
World Health Organization — The WHO announced on March 28 that research results now
justify calling on heterosexual men to be circumcised as a method of decreasing their risk
of contracting HIV infection. Although UNAIDS and WHO made clear that circumcision
does not provide complete protection against
infection, it seems to dramatically reduce the
risk of transmission female to male transmission through vaginal intercourse. Associated
Press, March 29. A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
Movement Positions
LGBT & RELATED LEGAL ISSUES:
Lambda Legal has staff attorney openings for
which it is taking applications in several of its
offices. Lambda normally requires that staff attorneys already have several years of relevant
litigation practice experience before joining the
Lambda staff so that they can quickly assume a
full caseload and be integrated quickly into the
impact litigation team. Details about the available positions, content and deadlines for application submissions, can be found on Lambda’s
website, www.lambdalegal.org.
Adler, Matthew D., and Chris William Sanchirico, Inequality and Uncertainty: Theory
and Legal Applications, 155 U. Pa. L. Rev. 279
(Dec. 2006).
Araujo, Derek C., A Queer Alliance: Gay
Marriage and the New Federalism, 4 Rutgers J.
L. & Pub. Pol’y 200 (Fall 2006).
Arnon, Harel, Legal Reasoning: Justifying
Tolerance in the U.S. Supreme Court, 2 NYU J.
L. & Liberty 262 (2007).
Bader, Eleanor J., Book Review, Gay and
Lesbian Parenting Choices: From Adopting to
Using a Surrogate, by Brette McWhorter Sember (Newman Communications, Career Press,
Brighton, Mass., paperback), NYLJ, March 28,
2007, p. 2.
Barnett, Randy E., The Ninth Amendment: It
Means What It Says, 85 Tex. L. Rev. 1 (Nov.
2006).
Bible, Jon D., In a Class by Themselves: The
Legal Status of Emlpoyee Appearance Policies
Under Title VII After Jesperson v. Harrah’s Operating Co., 32 Emp. Rel. L. J. No. 4, 3 (Spring
2007).
Bitton, Yifat, The Limits of Equality and the
Virtues of Discrimination, 2006 Mich. St. L.
Rev. 593.
Buys, Cindy G., Burying Our Constitution in
the Sand? Evaluating the Ostrich Response to
the Use of International and Foreign Law in U.S.
Lesbian/Gay Law Notes
Constitutional Interpretation, 21 BYU J. Pub. L.
1 (2007).
Constitutional Law First Amendment Seventh
Circuit Holds That Public University Cannot
Refuse to Recognize Student Group Based on
Group’s Violation of School Nondiscrimination
Policy. Christian Legal Society v. Walker, 453
F.3d 853 (7th Cir. 2006), 120 Harv. L. Rev.
1112 (Feb. 2007).
Douglas, Gillian, Julia Pearce and Hilary
Woodward, Dealing with Property Issues on Cohabitation Breakdown, 37 Fam. L. (UK) 36
(Jan. 2007).
Epstein, Richard A., Of Citizens and Persons:
Reconstructing the Privileges or Immunities
Clause of the Fourteenth Amendment, 1 NYU J.
L. & Liberty 334 (2005).
Estrada, Rudy, and Jody Marksamer, Lesbian, Gay, Bisexual, and Transgender Young
People in State Custody: Making the Child Welfare and Juvenile Justice Systems Safe for All
Youth Through Litigation, Advocacy, and Education, 79 Temple L. Rev. 415 (Summer 2006)
(from Symposium on Law and Adolescence).
Fletcher, Katie D., IRS Advises No Medical
Expense Deduction for Sexual Reassignment
Surgery, 1 Loyola Pub. Int. L. Rep. 25 (Winter
2006).
Gee, Harvey, Covering Discrimination: A Review of Kenji Yoshino’s Covering: The Hidden
Assault on Our Civil Rights, 47 Santa Clara L.
Rev. 187 (2007).
Gonzales-Frisbie, Jennifer, Personality Tests
in Jeopardy: An Evaluation of the Seventh Circuit’s Decision in Karraker v. Rent-A-Center
and its Impact on the Future Use of Personality
Tests in Pre-Employment Screening, 9 U. Pa. J.
Lab. & Emp. L. 185 (Fall 2006).
Greene, Jamal, Lawrence and the Right to
Metaprivacy, 115 Yale L.J. Pocket Part 125
(June 2006).
Haque, Adil Ahmad, Lawrence v. Texas and
the Limits of the Criminal Law, 42 Harv.
C.R.-C.L. L. Rev. 1 (Winter 2007).
Hayden, Cori, Kinship Theory, Property, and
the Politics of Inclusion: From Lesbian Families
to Bioprospecting in a Few Short Steps, 32 Signs
337 (Winter 2007).
Hill, Barbara B., The Hunkiest Little Whorehouse in Town is Looking for a Few Good Men,
But Only to Work: The Constitutional Implications of Heidi Fleiss’s Female Brothel, 14 Vill.
Sports & Ent. L.J. 77 (2007). (So a law student
desperate for a Comment topic came up with
this conversation stopper: Heidi Fleiss proposes to open a licensed brothel in Nevada with
a twist: male instead of female prostitutes, and
customers may only be women, no gay men
need apply to have sex the male prostitutes.
Problem: Nevada bans sexual orientation discrimination in places of public accommodation. [Presumably straight men would not apply
to work at her brothel if they were required to
have sex with male customers??? Worth a law
April 2007
review comment? Award for originality? Or a
student with too much time on her hands????)
Hyland, Stephen J., Civil Unions in New Jersey, 146 Trusts & Estates No. 2, 26 (Feb. 2007)
(Impact of NJ Civil Union Act on estate planning for same-sex couples).
Jones, Leigh, Gay, Lesbian Lawyers Gain at
Larger Firms, 29 Nat’l L.J. No. 29, 1 (March 26,
2007).
Kasparek, Tracy, Fostering to Children’s
Needs or Fostering to Legislators’ Personal
Agendas?, 9 Scholar: St. Mary’s L. Rev. on Minority Issues 313 (Winter 2007).
Kmiec, Douglas W., Overview of the Term:
The Rule of Law & Roberts’s Revolution of Restraint, 34 Pepperdine L. Rev. 495 (Jan. 2007)
(symposium: The Rookie Year of the Roberts
Court & A Look Ahead).
Kubica, Robert, Let’s Talk About Sex: School
Surveys and Parents’ Fundamental Right to
Make Decisions Concerning the Upbringing of
Their Children, 51 Villanova L. Rev. 1085
(2006).
La Vita, Maria A., When the Honeymoon is
Over: How a Federal Court’s Denial of the
Spousal Privilege to a Legally Married SameSex Couple Can Result in the Incarceration of a
Spouse Who Refuses to Adversely Testify, 33 New
Eng. J. Crim. & Civ. Confinement 243 (Winter
2007).
Lamm, Betsy, Unprotected Sex: The Arizona
Civil Rights Act’s Exclusion of Sexual Minorities, 38 Ariz. St. L.J. 1139 (Winter 2006).
Loper, Timothy P., Substantive Due Process
and Discourse Ethics: Rethinking Fundamental
Rights Analysis, 13 Wash. & Lee J. Civil Rts. &
Soc. Just. 41 (Fall 2006).
Martin, Ryan M., Return to Gender: Finding
a Middle Ground in Sex Stereotyping Claims Involving Homosexual Plaintiffs Under Title VII,
75 U. Cin. L. Rev. 371 (Fall 2006).
McCormack, Wayne, Lochner, Liberty, Property, and Human Rights, 1 NYU J. L. & Liberty
432 (2005).
Milgate, Michael, The Politics of Sodomy and
Legal Process R V. Pons Hugh de Ampurias,
2006 The Jurist No. 2, 483.
Mollen, Scott E., State Human Rights Law
Bars Same-Sex Harassment by Landlord
Against Tenant — $10,000 Award Upheld —
Executive Law sec. 296, NYLJ, 3/7/2007, p. 5.
Murray, Christopher R., Grappling With “Solicitation”: The Need for Statutory Reform in
North Carolina After Lawrence v. Texas, 14
Duke J. Gender L. & Pol’y 681 (January 2007).
Neily, Clark, No Such Thing: Litigating Under the Rational Basis Test, 1 NYU J. L. & Liberty 898 (2005).
Pitts, P. Casey, To Young People, “Don’t Ask,
Don’t Tell” Means “Don’t Enlist”, 115 Yale L.J.
Pocket Part 254 (November 2006).
Pollard, Deana A., Sex Torts, 91 Minn. L. Rev.
769 (Feb. 2007).
77
Rizzo, Mario J., The Problem of Moral
Dirigisme: A New Argument Against Moralistic
Legislation, 1 NYU J. L. & Liberty 790 (2005).
Schiffman, Jay, Tolerance As Understanding,
3 Margins: Md. L.J. Race, Religion, Gender &
Class 1 (Spring 2003).
Schultz, Vicki, Understanding Sexual Harassment Law in Action: What Has Gone Wrong
and What We Can Do About It, 29 Thos. Jefferson L. Rev. 1 (Fall 2006) (6th Annual Women
and the Law Conference: 4th Annual Ruth
Bader Ginsburg Lecture).
Seaton, Liz, The Debate Over the Denial of
Marriage Rights and Benefits to Same-Sex Couples and Their Children, 4 Margins: Md. L.J.
Race, Religion, Gender & Class 127 (Spring
2004).
Smith, Paul M., What the Court Said in Lawrence, 115 Yale L.J. Pocket Part 129 (June
2006) (response to Greene article, above).
Social Science and the Law: Intent and Biology in California’s Lesbian Parenting Cases, 46
Jurimetrics 421 (Summer 2006).
Stieglitz, Eric J., Anonymity on the Internet:
How Does It Work, Who Needs It, and What Are
Its Policy Implications?, 24 Cardozo Arts & Entertainment L.J. 1395 (2007) (Who needs it?
Need we ask...?)
Wald, Michael S., Adults’ Sexual Orientation
and State Determinations Regarding Placement of Children, 40 Fam. L. Q. 381 (Winter
2006).
Whelan, Edward, The Meta-Nonsense of
Lawrence, 115 Yale L.J. Pocket Part 133 (June
2006) (response to Greene article, above).
Wilson, Gerald, Financial Provision in Civil
Partnerships, 37 Fam. L. (UK) 31 (Jan. 2007).
Wilson, Justin T., Preservationism, or the Elephant in the Room: How Opponents of Same-Sex
Marriage Deceive Us Into Establishing Religion, 14 Duke J. Gender L. & Pol’y 561 (January
2007).
Wyatt, Rachel, Male Rape in U.S. Prisons:
Are Conjugal Visits the Answer?, 37 Case West.
Res. J. Int’l L.579 (2006).
Yarbrough, Michael W., South Africa’s Wedding Jitters: Consolidation, Abolition, or Proliferation?, 18 Yale J. L. & Feminism 497 (2006).
Symposia:
The Fall 2006 issue of the Harvard Journal of
Law & Public Policy includes a symposium on
International Law and the Constitution, collecting papers from the 25th Annual National Student Federalist Society Symposium on Law and
Public Policy.
Specially Noted:
Out Law: What LGBT Youth Should Know
About Their Legal Rights, by Lisa Keen, is
scheduled for June publication by Beacon
Press. Lisa Keen, an award-winning journalist
on LGBT issues who has written for The Washington Blade and The Boston Globe, is co-
78
author of Strangers to the Law: Gay People on
Trial, the inside story of the Romer v. Evans
Colorado Amendment 2 litigation. This new
book lays out in simple, direct language the legal information that LGBT youth (and, indeed,
all LGBT people) should know about their legal
rights.
AIDS & RELATED LEGAL ISSUES:
Abbinante, Kristin P., Taming the Nature of the
Beast: Why a Reasonable Accommodation for a
Perceived Disability Should No Longer be Considered the ADA’s Necessary Evil, 32 U. Dayton
L. Rev. 63 (Fall 2006).
Fordyce, Elizabeth, The Elusive Protected
Class: Who is Worthy Under the Americans With
April 2007
Disabilities Act?, 51 Villanova L. Rev. 1031
(2006).
Levy, Vivian, et al., Factors in the Delayed
HIV Presentation of Immigrants in Northern
California: Implications for Voluntary Counseling and Testing Programs, 9 J. Immigrant & Minority Health 49 (Jan. 2007).
Richter, Marlise, The Right to Social Security
of People Living With HIV/AIDS in the Context
of Public-Sector Provision of Highly Active Antiretroviral Therapy, 22 S. African J. Hum. Rts.
197 (2006).
Sentome, Vladimir W., Attacking the Hidden
Epidemic: Why a Strict Liability Standard
Should Govern the Transmission of Sexually
Transmitted Diseases, 2006 U. Chi. Legal Forum 409.
Lesbian/Gay Law Notes
Specially Noted —
The American Association of Blood Banks’s
Autologous Blood Donation Suggested Guidance is published under the title Autologous
Blood, HIV, and the Americans With Disabilities
Act, 46 Jurimetrics 407 (Summer 2006).
EDITOR’S NOTE:
All points of view expressed in Lesbian/Gay
Law Notes are those of identified writers, and
are not official positions of the Lesbian & Gay
Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in
Lesbian/Gay Law Notes is welcome and will be
published subject to editing. Please address
correspondence to the Editor or send via email.