6TH CIRCUIT VOIDS FEDERAL STATUTORY BURDEN ON VISUAL DEPICTIONS OF...

November 2007
6TH CIRCUIT VOIDS FEDERAL STATUTORY BURDEN ON VISUAL DEPICTIONS OF SEXUAL ACTIVITY
A unanimous three-judge panel of the U.S. 6th
Circuit Court of Appeals ruled in Connection
Distributing Co. v. Keisler, 2007 WL 3070970
(October 23, 2007), that an attempt by Congress to crack down on child pornography by
requiring every producer of sexually-explicit
images to maintain detailed proof-of-age and
identity records open to government inspection
for all those depicted violates the First Amendment’s protection for freedom of speech.
Ruling on a challenge brought by Connection Distributing Company, which publishes an
adult “swingers” magazine, two of the three
judges agreed that the plaintiff is entitled to
have the law declared facially unconstitutional
and its enforcement permanently enjoined. A
third judge, while agreeing that the statute as
written is unconstitutional, argued that the
court should adopt a narrowing interpretation to
avoid unconstitutional applications and preserve those portions that might be constitutional on their own.
Concerns about enforcement of this recordkeeping requirement caused particular concern among producers of sexually-oriented materials for the LGBT market, including many
small businesses that would find the requirements to impose a substantial burden of time,
space and expense. There was particular concern that because the law could apply to all materials, not just those produced after its effective date, it would make non-saleable the back
catalogues of many producers. These concerns
were multiplied when the Justice Department
during the Bush Administration issued regulations that went far beyond the statutory requirements. The adult entertainment industry filed a
class action suit against the regulations in U.S.
District Court in Denver, and has achieved
some success in getting the regulations narrowed, but this suit in the 6th Circuit attacks
the statute itself.
The opinion for the court by Circuit Judge
Cornelia Kennedy, who was appointed by
President Jimmy Carter, focused on the law’s
application to non-commercial producers of
sexually explicit images, such as a married
adult couple who want to make home movies of
their sexual activities. The statute, 18 U.S.C.
sec. 2257, appears to require that they would
LESBIAN/GAY LAW NOTES
have to add required language to their film indicating compliance with the statute and where
the necessary records would be available for inspection, would have to maintain files containing photocopies of their government-issued
identification documents (such as a passport or
driver’s license), and would have to make those
files available to government inspection during
“normal business hours” without advance
warning. Failure to comply could subject them
to felony liability, fines, and a potential prison
sentence of up to five years.
Kennedy pointed out that in fact Supreme
Court precedents support the conclusion that
this married couple would be engaging in constitutionally protected activity. Under Lawrence
v. Texas, the 2003 sodomy decision, it is clear
that private consensual adult sexual activity is
constitutionally protected, and under Stanley v.
Georgia, a Supreme Court ruling from 1969, a
person has a constitutionally protected right to
possess and view sexually explicit, and even
obscene, materials in the privacy of his or her
home. The only exception the Supreme Court
has recognized to this right of private possession and consumption of obscene materials is
for child pornography. The exception for child
pornography is premised on a compelling state
interest in protecting children from sexual exploitation, and the belief that one way to discourage production of such material is to make
private ownership of it a serious crime.
Congress’s entire justification for the
record-keeping law was to further deter the production of child pornography and assist in the
prosecution of child pornographers. Because it
is not possible to determine with certainty the
age of an individual by visual inspection of
their image, Congress required documentation
of age for all those depicted engaging in sexual
activity. But the court found that in fact it is perfectly obvious in most cases that those depicted
are adults, so the statute goes much further than
would be required to accomplish Congress’s
purpose. Furthermore, by broadly sweeping in
all visual depictions of sexual activity and
broadly defining the term “producer” to include even those making home movies or private, non-commercial photography collections,
Congress was invading the sanctity of the home.
November 2007
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NYC 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., NYC; Alan J. Jacobs, Esq., NYC; Bryan Johnson, NYLS ‘08; Sharon
McGowan, Esq., NYC; Tara Scavo, Esq., NYC; 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
Because the government has a compelling
interest in stamping out child pornography,
while the Constitution provides strong protection for freedom of speech, the ultimate decision requires a balancing of interest and rights.
In this case, the court concluded that the burdens imposed by the statute far outweighed the
government’s legitimate interest. Indeed, as far
as the court could determine, the government
has no legitimate interest in mandating that
adult sexual “performers” sacrifice their anonymity by making their government-issued
identification documents available for inspection by the government, or by requiring that
non-commercial producers of sexually explicit
images of adults open their homes to inspection
of records by law enforcement officials when
the activity they are undertaking is not only legal but also constitutionally protected.
The court used the Overbreadth Doctrine to
strike down the statute. Under this doctrine, developed in free speech cases, the court can find
a statute unconstitutional on its face because of
the strong likelihood that it will deter significant constitutionally protected speech, even if
it could be constitutionally applied to the particular plaintiffs in the case. In this case, it is
possible that some of the photographs that
might be submitted to Connections magazine
for publication would depict individuals who
might be minors, as to whom Congress could
have legitimate concerns, but that would be irrelevant to a facial overbreadth challenge. And,
the court speculated, it is likely that the overwhelming majority of sexually-oriented material affected by this statute depicts only adults,
so the burden on protected speech far outweighs the interest with respect to the minority
of materials that actually depict individual who
may be minors.
In a concurring opinion, Judge Karen Nelson
Moore, who was appointed by President Bill
Clinton, also argued that the statute was even
unconstitutional as applied to the particular
plaintiffs in this case, who included, in addition
to Connections, several John Doe and Jane Doe
adults who wished to publish swinger ads in the
magazine illustrated with sexually-explicit pictures but did not want to sacrifice their anonymity by having to submit photocopies of their
identification material to be available for government inspection.
In a separate opinion, concurring in part and
dissenting in part, Judge David McKeague,
who was appointed by George W. Bush, argued
that the court should adopt a narrow interpretation of the statute to avoid declaring it unconstitutional. He agreed that a literal interpretation
of the statute would sweep in too much constitu-
194
tionally protected material, but argued that the
court should try to salvage some of the statute
by interpreting it not to apply to noncommercial producers who are depicting indi-
November 2007
viduals who are clearly adults. But the other
two judges did not agree that the court had the
competence to craft a workable interpretation
Lesbian/Gay Law Notes
that would render the statute constitutional, declaring that this was the job of Congress.
The government could file a motion to have
this decision reconsidered by a larger panel of
judges from the 6th Circuit (en banc review) or
could file a petition for review directly by the
Supreme Court. A.S.L.
LESBIAN/GAY LEGAL NEWS
6th Circuit Orders Hearing on Anti-Gay
Student’s “Chilled Speech” Claim
In an odd ruling on what the dissenting judge
calls a “case about nothing,” a 6th Circuit
panel voted 2–1 in Morrison v. Board of Education of Boyd County, 2007 WL 3119480 (Oct.
26, 2007), to require the district court to determine whether in fact the School Board hate
speech policy that was briefly in effect during
the 2004–2005 academic year had unconstitutionally “chilled” plaintiff Timothy Morrison’s
ability to express his religiously-motivated
anti-gay views at school. The dissenter argued
that the case should be over, inasmuch as the
School Board reacted to the filing of this lawsuit
by revising its policy to come more clearly
within constitutional bounds.
The genesis of the controversy dates to a lawsuit by LGBT students and their supporters,
seeking to compel the Boyd County Board of
Education to allows a gay-straight student alliance to operate at the county’s high school on
the same-basis as other extra-curricular clubs.
They won that action, and the ultimate settlement of the lawsuit involved an undertaking by
the school to address the continuing problems
of anti-gay harassment by policy and educational efforts. In implementing this settlement,
however, the school board veered towards what
might be called “extreme” suppression of
anti-gay views. Although the Board of Education’s newly-adopted policy disavowed any intention to inflict discipline for speech that is
constitutionally protected, the implementation
came through conduct codes in the schools the
prohibited students from saying anything that
would be considered “insulting” or “stigmatizing.” In addition, a training film to promote toleration included a statement by a psychologist
that students should not articulate their disagreement with how other people live their lives
in effect, to stifle their speech.
The Alliance Defense Fund is one of several
groups that have sought out opportunities to
mount challenges to policies that stifle controversial speech — at least, controversial antigay speech — and they took up the cause here,
with lead plaintiff Timothy Morrison, a student
who claimed his own religiously-influenced opposition to homosexuality could not be expressed at school due to the risk of being disciplined for violating the conduct code and the
district’s policy. The district reacted to the fil-
ing of the lawsuit by agreeing to revise the policy in such a way as to remove objections to it,
but despite achieving this victory, Morrison
pressed ahead to seek a judicial declaration
that the prior policy was unconstitutional and
that he should be compensated for the stifling of
his speech during the academic year when the
policy and code were in effect prior to their revision.
The district court decided the case was over,
granting the District’s motion to end it, but the
6th Circuit reversed, 2–1, in a decision written
by Circuit Judge Karen Nelson Moore. After
finding that Morrison had standing to seek
compensation for the alleged stifling of his constitutionally protected speech during the time
in question, the court refused to order such
compensation, even though in this case it might
consist of a $1 nominal damage award (plus attorneys fees, which is what makes this potentially expensive for the school district), because
the majority found that Morrison’s claim required further factual exploration by the district court. He could not collect even nominal
damages, ruled the court, without some showing that there was a real risk that he would have
been disciplined for stating his beliefs. The
District policy would militate against such discipline, even though the high school behavior
code might support it. A remand was deemed
necessary to sort this out.
This struck dissenting Judge Cook as unnecessarily prolonging the law suit. “Keeping this
case alive for a determination on the constitutionality of an obsolete code of conduct in the
hope of awarding the plaintiff a single dollar
vindicates no interest and trivializes the important business of the federal courts in protecting
actual constitutional violations,” wrote Cook,
passion overcoming grammar. (One thought
that only a percipient observer such as President Bush would assert that federal courts are
supposed to “protect actual constitutional violations.” Of course, he wouldn’t be kidding.
See, e.g., Guantanamo Bay....) A.S.L.
Georgia Appeals Court Revives Legal Claim
Against College for Homophobic Attack
A unanimous Georgia appellate court ruled on
October 5 in Love v. Morehouse College, 2007
WL 2892975, that a trial judge had improperly
dismissed Gregory Love’s lawsuit seeking to
hold Morehouse College accountable for failing
to protect him from a homophobic assault perpetrated against him by another student. According to the opinion for the court by Justice
M. Yvette Miller, the trial judge improperly
faulted Love for not including in his complaint
factual allegations to support a conclusion that
the attack he suffered was “foreseeable.”
Under the legal theories Love was using, the
College would not be liable to him for the attack
unless it took reasonable steps to prevent foreseeable injuries. But the Court of Appeals
found that the issue of whether the attack was
foreseeable was a factual question for a jury, not
a legal question that could be decided by a
judge ruling on a pre-trial motion to dismiss the
complaint.
Love alleged that in November 2002, while
he was showering in a Morehouse College dormitory, he was beaten with a baseball bat by a
fellow student who “allegedly perpetrated the
attack because he believed that Love was homosexual, and that he had glanced at him in an
inappropriate way.” Love pressed charges
against his assailant, who was convicted of aggravated assault and battery and was serving a
prison sentence at the time Love filed his complaint against the College.
Love’s complaint seeks damages for ordinary
and gross negligence, premises liability (the liability of a landholder for injuries to individuals
on their property), and negligent and intentional infliction of emotional distress. All of
these are tort claims, and the negligence claims
in particular require a plaintiff to show that the
defendant failed in their duty to take reasonable steps to prevent the injury that occurred to
the plaintiff. For such a duty to arise, the injury
must be foreseeable.
“Georgia law recognizes that a college or
university has a duty, as a landowner, to exercise ordinary and reasonable care for a student’s safety and to take reasonable steps to
protect against foreseeable acts of violence on
its campus,” wrote Miller. “While this case involves an assault perpetrated by one student
against another, the relevant question with respect to foreseeability remains the same: Were
there previous incidents that should have attracted Morehouse’s attention to the danger
that resulted in the incident at issue?”
According to Miller, Love alleged in his complaint that Morehouse had failed to address the
harassment of students believe to be gay, had
fostered an atmosphere of hatred and violence
Lesbian/Gay Law Notes
towards gay students, had “approved and ratified the disparate treatment” of such students,
and had failed to take disciplinary action
against perpetrators. Love also alleged that at
the time he was attacked, Morehouse was already aware of “several previous instances involving problems of homophobia and intolerance” towards the university’s gay students.
The appeals court found these allegations
sufficient to get past a motion to dismiss. “Although Love speaks of ‘harassment,’” she
wrote, “he may be able to introduce evidence
showing either that such harassment involved
acts of violence or that it was reasonably foreseeable that such harassment could escalate
into violence.”
Thus, it was improper for the trial judge to
dismiss the case, since a dismissal would only
be proper if Love had not alleged any circumstances from which a jury could believe that an
assault of this type was foreseeable. The appeals court believed that the general allegations in his complaint should suffice to allow
him to pursue his claim. Once having survived
the dismissal motion, his attorneys could conduct discovery and build a factual case to support the argument that Morehouse should have
been aware of the problems of homophobia on
campus and taken some steps to counter it.
A.S.L.
California Appeal Court Rejects Challenge to Real
Estate Tax Break for Registered Domestic Partners
Various county assessors in California have
brought suit against the state’s Board of Equalization for allegedly promulgating an unconstitutional rule granting real property tax relief to
transfers of title between registered domestic
partners. The Assessors argued that the California Constitution restricted the tax break to
spouses, preventing the Board from including
registered domestic partners. Subsequent ratification of the rule by the state’s legislature was
therefore improper because the legislature may
not ratify an unconstitutional rule, they argued.
Presiding Judge Arthur Scotland, writing for
the California Court of Appeal, Third District,
held that the Board and state legislature acted
within their powers. Strong v. State Board of
Equalization, 66 Cal.Rptr.3d 657 (Cal. App. 3
Dist., Oct. 2, 2007).
In 1978, California voters adopted a constitutional amendment that limited the amount of
ad valorem tax assessed on real property when
there has not been a “change in ownership.”
The state’s legislature later defined “change in
ownership” to exclude transfers between
spouses, and the state’s voters enshrined this
exclusion in their constitution in 1986. In
2003, the Board promulgated a rule broadening
the exclusion to include intestate succession
between registered domestic partners. Two
years later, the legislature enacted a statute
November 2007
broader than the Board’s rule by including
“any transfer” of real property between registered domestic partners. The Assessors brought
this action for declaratory relief, claiming that
neither the Board nor the legislature had constitutional authority to broaden the tax exclusion to encompass registered domestic partners.
Judge Scotland rejected the Assessor’s argument that defining an exception to “change in
ownership” could only be done by constitutional amendment. The court noted that
whereas the federal constitution grants power to
Congress, the California Constitution is a limitation on the state’s legislative branch. This
creates a presumption of “plenary authority”
when the legislature uses powers “not expressly, or by necessary implication denied to it
by the Constitution.” This presumption is “particularly appropriate” when the legislature enacts a statute with constitutional prescriptions
clearly in mind.
Judge Scotland noted that the 1978 constitutional amendment only required a limitation on
taxation when there was no “change in ownership,” but it did not compel an increase in taxation absent this condition. The amendment did
not attempt to restrict the legislature’s ability to
define and modify “change in ownership” for
public-policy reasons. In enacting the statutes
at issue, the legislature declared its intention to
“reduce discrimination on the bases of sex and
sexual orientation in a manner consistent with
the California Constitution.” This rationale
shows that the legislature did not act in an arbitrary manner when it granted tax relief to registered domestic partners in order to protect them
from “potentially severe economic and social
consequences of abandonment, separation, the
death of a partner, and other life crises.”
The 1986 constitutional amendment concerning the exclusion of inter-spousal transfers
is similarly not offended by the legislature’s actions. That amendment simply prevents the
legislature from unilaterally repealing the
inter-spousal transfer exclusion, but it does not
prevent the legislature from defining additional
exclusions. Neither do the 1978 and 1986
amendments taken together imply that exclusions can only be defined through constitutional amendment. Rather, the legislature has
the power to define the scope of “change in
ownership” for nonarbitrary, rational policy
reasons. As detailed above, the legislature
acted rationally and was thus proceeding intra
vires when it extended the “change in ownership” exclusion to embrace registered domestic
partners. Chris Benecke
Consortium Claim Denied for N.J. Same-Sex
Partner
A federal judge in New Jersey ruled in Brigando v. Walt Disney World Co., 2007 WL
195
3124702 (D.N.J., October 23, 2007), that the
same-sex partner of a woman who was injured
on a theme park ride at Walt Disney World in
Orlando, Florida, may not recover damages for
loss of consortium, which is defined by New
Jersey courts as the “right of a husband or wife
to receive compensation for loss of affection,
comfort, companionship, society, assistance
and sexual relations as a result of the other’s
personal injuries.”
A claim for loss of consortium is based on the
recognition that when a spouse is injured, that
injury may also harm the other spouse through
deprivation of their normal relationship as a result of hospitalization or the restrictions imposed on the injured spouse’s functioning due
to their physical or mental injuries. The New
Jersey Civil Union Act, which went into effect
in February 2007, provides that civil union
partners may sue for loss of consortium, but this
case involves an incident that took place on
June 17, 2004, at which time the couple did not
have any legal relationship to each other.
According to the opinion by Judge Stanley R.
Chesler, Marianne Brigando suffered injuries
while riding the Splash Mountain attraction at
Disney World. In April 2005, about ten months
later, she filed suit against Disney in New Jersey Superior Court, claiming negligence and
seeking compensatory and punitive damages.
In addition, the complaint sought damages for
loss of consortium on behalf of her partner,
Pamela Joy Binder, with whom she had filed a
domestic partnership registration several
weeks before filing the lawsuit.
Judge Chesler’s opinion does not discuss the
basis on which Brigando could sue Disney in
New Jersey state courts. Disney responded to
the lawsuit by removing the case to the federal
district court in New Jersey, a process available
to out-of-state defendants under federal rules,
but the lawsuit would still be decided based on
state law. Disney answered the complaint, thus
apparently conceding that the court has jurisdiction of Brigando’s claim, but filed a motion
to dismiss the claim for loss of consortium, on
the basis that Binder is not Brigando’s spouse.
According to Judge Chesler, the parties agreed
that New Jersey law would determine whether
Binder could sue for loss of consortium, but he
also found that New Jersey law would not produce any different result than Florida law on
this issue.
At the time the incident occurred at Disney
World, New Jersey did not provide any legal
recognition for same sex couples, but the legislature had passed the Domestic Partnership
Act, which had been signed into law by Governor James McGreevey and was scheduled to go
into effect less than a month after the Disney
World incident, in July 2004.
After the DP law went into effect, litigation
continued in New Jersey over the right to
same-sex marriage, culminating in a ruling in
196
October 2006 by the New Jersey Supreme
Court, Lewis v. Harris, 188 N.J. 415 (2006),
holding that same-sex couples should be entitled to all the same rights as married couples
under state law, but leaving it to the legislature
to determine how such rights would be provided. The legislature quickly passed the Civil
Union Act, signed into law by Governor Jon
Corzine in December 2006, which then went
into effect earlier this year. Registered civil union partners are entitled to sue for loss of consortium under the new law, which generally
provides that civil union partners have the
same state law rights as married couples.
Brigando and Binder have never registered
as civil union partners, but their domestic partnership remains in effect.
The question for Judge Chesler was whether,
in light of all these legislative and judicial developments, the New Jersey courts would have
recognized as of June 2004, when Brigando was
injured, that Binder could have a claim under
the state’s common law (non-statutory law used
in personal injury cases) for loss of consortium.
Chesler concluded that they would not.
“The fundamental flaw with Plaintiffs’ loss of
consortium claim is that Plaintiffs are not married or joined in a civil union pursuant to New
Jersey statutory law,” he wrote, “nor were they
at the time of the subject accident. It is axiomatic that, under New Jersey law, marriage is
an essential element of a ‘per quod’ or loss of
consortium claim. In fact, New Jersey law will
not recognize a loss of consortium claim unless
the partner or companion was married to the injured person at the time that the injury occurred.”
Brigando and Binder argued that since they
had become registered domestic partners before filing the lawsuit, Binder should be considered eligible to claim damages, but Chesler was
not convinced. First, as he had noted, the issue
is the legal status of the relationship at the time
of the injury. Additionally, he found that the Domestic Partnership Act, which covered only a
limited list of rights, did not specify a right to
sue for loss of consortium, and he found that the
wording of the statute “does not provide this
Court with any meaningful basis upon which to
conclude that the right to pursue a loss of consortium cause of action is implicit.” He also
found that the legislative history showed that
the legislature intended to confer only limited
rights on domestic partners.
Furthermore, since Brigando and Binder
have not registered for a civil union, Chesler
concluded he did not have to address the question whether civil union status could be treated
as retroactive to the date of the accident. He
never mentioned the possible argument that in
light of Lewis v. Harris, it might be unconstitutional to deny a right of action to Binder on
these facts; perhaps the argument wasn’t presented for his consideration.
November 2007
Ironically, just shortly after Brigando and
Binder first filed their lawsuit in the state Superior Court, a N.J. Superior Court judge in another case involving a loss of consortium claim
as part of a workplace sexual harassment lawsuit had ruled that a registered domestic partner could sue for loss of consortium. That case
involved a lesbian couple from Fairlawn who
were suing the employer of one of them, claiming that a heart attack suffered by the employee
was a result of sexual harassment, and that her
partner should be entitled to damages for loss of
consortium.
In that case, Buell v. Clara Maass Medical
Center, the women had filed a domestic partnership registration shortly after the DP law went
into effect. Judge James S. Rothschild, Jr., reasoned that the language used by the legislature
was broad enough to allow the court to develop
New Jersey’s common law by extending the
right to sue to a legal domestic partner.
Rothschild’s decision was not officially published, and does not appear to have been appealed, so it does not stand as a binding legal
precedent.
Judge Chesler never mentioned this ruling in
his decision, and it may not have even been
brought to his attention. In any event, a federal
judge sitting on a diversity case is supposed to
follow the state law as found in statutes and appellate rulings, so an unpublished trial court
decision might not have weighed particularly
heavily in his decision-making.
Chesler’s ruling shows yet again, if proof
were needed, that the lack of legal recognition
for same-sex relationships deprives such couples of valuable rights enjoyed by married couples. While a comprehensive civil union law
may partially cure the problem for those who
enter civil unions, the more limited domestic
partnership laws in some jurisdictions still
leave important gaps resulting in unequal treatment. And even if Brigando and Binder had
been united in a New Jersey Civil Union at the
time of the injury at Disney World, had Disney
argued that Florida law applied it is possible
their New Jersey civil union would have been
held inapplicable to the case. A.S.L.
State and Local Sexual Orientation Claims Survive
Summary Judgment in Suit by Oregon Lesbian
A lesbian employee made out a prima facie
case of unlawful discrimination after she was
terminated, despite her employer’s assertion
that she was fired for removing files from the office without permission. The U.S. District Court
in Oregon, adopting the findings and recommendations of a Magistrate Judge, ruled against
some of the company’s motions for summary
judgment and permitted the case to proceed in
federal court. Federal jurisdiction was based
upon claims for past wages required under federal law, coupled with claims of violations of Ti-
Lesbian/Gay Law Notes
tle VII of the Civil Rights Act. Wilken v. Cascadia Behavioral Health Care, Inc., No. CV
86–195–ST, 2007 WL 2916482 (D. Or. Oct. 5,
2007).
According to the Magistrate Judge’s findings, Janette Wilken worked for Cascadia Behavioral Health Care, Inc. and its predecessor
company, Unity, Inc., from May 1998 until her
termination in November 2005. Cascadia is a
company that provides and manages housing
for the mentally ill and those with addiction
problems. Wilken was openly lesbian, and had
been in a long-term relationship with a coemployee, Becca Esplin, in 2002, when Cascadia became the owner of Unity, Inc. Wilken’s
run-ins with her superiors arose after Wilken,
in January 2005, entered a relationship with a
second co-employee, Beverly Padilla, whose
work area was in closer proximity to Wilken
than was that of Esplin. Wilken and Padilla established a household together. Up until her relationship with Padilla, Wilken was a respected
employee, and her supervisors considered her
an expert in certain aspects of housing for the
mentally ill and addicted. Other open lesbians
were employed by Cascadia, including the
CEO and CFO.
Starting in March 2005, Juli Garvey,
Wilken’s supervisor, started receiving reports
about physical contact between Wilken and Padilla in the workplace, including kissing, hugging, and holding hands. Garvey, along with Padilla’s supervisor, Audrey Woods, soon met with
Wilken and Padilla and told them that their relationship was “making people uncomfortable,” although no specific examples of discomforting behavior were provided. The two
supervisors then limited various behaviors by
Wilken, including use of the copier in Padilla’s
department, accessing Padilla’s cubicle, and
standing outside Padilla’s cubicle. The supervisors further ordered Wilken to keep her hands
visible at all times when she visited Padilla’s
cubicle.
Wilken felt that these rules were discriminatory (she says that she had seen two heterosexuals hugging on campus, and no action was taken
against them), and she met with the H.R. Director, Janet Timme, who thought the rules were
unenforceable. Nevertheless, the supervisors
continued to enforce rules that were applicable
primarily to Wilken and Padilla.
One morning before work, Wilken and Padilla were found together in a locked office, after which Woods imposed a rule against two
employees from different departments being together in a locked room. The HR Director rejected this rule. Wilken then observed that her
supervisor, Garvey, changed her method of supervising, and started treating Wilken in an angry, hostile manner.
Other incidents occurred over the next few
months, and the women felt that they were being harassed. Then, in November 2005, when
Lesbian/Gay Law Notes
Wilken was home sick, she asked Padilla to
find, in Wilken’s office, a box containing client
files, and to take it home with her so that Wilken
could work on them. Wilken did not ask for permission to remove these files from the office.
These files contained confidential material,
and the loss of the files could lead to serious difficulties for Cascadia. Her superiors considered Wilken’s removal of the files an exercise of
very bad judgment which, according to Cascadia, was the triggering event for her termination
later that month.
Wilken made claims under federal and Oregon law for gender discrimination, harassment,
and retaliation; for unlawful discrimination under the Portland City Code (which includes sexual orientation); for common-law wrongful discharge; and for intentional infliction of
emotional distress. In opposing Cascadia’s motions for summary judgment, Wilken added a
claim of a hostile work environment. Claims for
breach of an employment contract and for negligent supervision were voluntarily dismissed.
On the claim for gender discrimination under Title VII, the court ruled that Wilken’s
claim was based on sexual orientation, and not
gender. Although Wilken attempted to get
around this by stating that her claim was based
upon her being a “lesbian woman,” which is a
distinct subclass of a protected class, the court
held that this claim is not viable, because lesbians do not constitute a protected class distinct
from women.
Wilken also asserted a claim of discrimination based upon her close association with a
member of the protected class, that is, the
member of the protected class is her partner,
Padilla, and she, Wilken, suffered discrimination because of her association with Padilla,
and that this discrimination is cognizable under
Title VII. The court rejected this argument,
holding that the basis for the alleged discrimination was “based not on her identity as a
woman or on someone else’s discrimination indirectly targeting her identity as a woman, but
based on her identity due to her sexual orientation and her relationship with another coworker
in the same building.” (Emphasis in original.)
However, under Oregon law and a Portland
city ordinance, discrimination based on sexual
orientation is prohibited. The state statute prohibits discrimination “because of the individual’s gender or because of the gender of any other
person with whom the individual associates,”
O.R.S. § 659A.030, and has been held by a
state court to prohibit sexual orientation discrimination. (A recent amendment to add sexual orientation explicitly will go into effect
soon, but was not in effect for this case.) The
Portland ordinance directly prohibits discrimination based on sexual orientation. Portland
City Code § 23.01.030(E).
Under these laws, the elements for establishing a prima facie case of discrimination based
November 2007
on disparate treatment are that the plaintiff (1)
belongs to a protected class; (2) was performing
her position in a satisfactory manner; and (3)
was subjected to an adverse employment action; and (4) that similarly situated persons outside the plaintiff’s protected class were treated
more favorably or that her position was filled by
a person outside her protected class. These elements are the same as for showing a prima facie
case under federal Title VII. The court held that
Wilken satisfied all four requirements for proving a prima facie case. The court rejected Cascadia’s argument that the termination could not
have been based upon Wilken’s association
with Padilla, or on the fact that she was a lesbian, because Wilken suffered no adverse employment action when she had an earlier relationship with Becca Esplin, whose work area
was not in as close proximity to Wilken as that
of Padilla. The court held that the mere fact that
one relationship was accepted did not determine the outcome of a case based on another relationship. In addition, “it is reasonable to infer
that bias and discrimination are most prevalent
when the behavior they target (here, a romantic
relationship between two women) is most visible.”
Regarding satisfactory job performance,
Cascadia asserted that the firing was for a legitimate reason, namely, removing files from
the office. However, the court noted that,
merely because a defendant asserts a nondiscriminatory reason that may or may not persuade the trier of fact, the prima facie case does
not disappear.
The termination constituted an adverse employment action, as required by the third prong.
The court held that the rules imposed on
Wilken and Padilla were not, in themselves, adverse employment actions, because they did
not affect Wilken’s job duties, salary, benefits,
or future career prospects. Imposition of the
rules could, however, be used as evidence to
show that the asserted reason for the firing was
only a pretext.
In her claim for differential treatment,
Wilken asserted that people outside her class,
in particular, a heterosexual woman named
Patty Thomas, had removed files from the office
without permission and with Cascadia’s knowledge, and had not been reprimanded for doing
so. The court rejected Cascadia’s attempt to
make a distinction between the removal of files
by Thomas vs. the removal by Wilken, the distinction being that Thomas had only taken portions of files. The court found that there was no
written policy on removal of the files, and that
Thomas and Wilken had been treated differently. After Wilken’s firing, a rule was implemented that specifically permitted removal of
some files without permission, which makes
unpersuasive Cascadia’s argument that it was
common knowledge that files should not be removed.
197
Under federal law, there can be no retaliation
claim because the underlying discrimination
was not against a protected class. However,
courts recognize a cause of action under Oregon
statute, Or. Rev. Stat. sec. 659A.030(1)(f). The
elements that Wilken must show to present a
prima facie case of retaliation for protected
conduct are: (1) she engaged in a protected activity (opposition to discrimination); (2) she
was subjected to an adverse employment decision; and (3) there is a causal link between the
protected activity and the adverse action.
These are the same elements as for a retaliation
claim under Title VII of the federal law.
The plaintiff and defendant agree that one
act of protected conduct occurred, namely,
Wilken’s complaint to the H.R. department on
March 31, 2005. Wilken identified numerous
other complaints as protected conduct, and the
court agreed with Wilken that these complaints
are sufficient to constitute protected conduct.
While it is undisputed that termination is an
adverse employment action, it is not so clear
that there is a causal connection between the
protected activity and the termination. The
court looked at the causal connection in light of
Ninth Circuit rulings, holding that, to show a
causal connection, the plaintiff must present
evidence: (1) of proximity in time between the
protected action and the adverse employment
decision; (2) that the employer expressed opposition to the employee’s speech either to the
employee or to others; or (3) that the employer’s
proffered explanations for the adverse employment decision are false and pretextual.
The court found temporal proximity, in that
there was only one month between Wilken’s last
complaint and her termination. While Cascadia contends that the ultimate decision-maker,
Neal Beroz, vice president of housing, had no
knowledge of the protected conduct, and thus,
temporal proximity was irrelevant, Wilken’s
evidence suggested that Beroz made the decision shortly after conferring with two HR staff,
including the Director of HR, Janet Timme,
who were aware of the complaints. This circumstance is sufficient to create a genuine issue of
material fact, precluding summary disposition..
The court noted that a hostile work environment may constitute an adverse employment
action sufficient to satisfy the second prong of a
retaliation cause of action. The court did not
find that the work environment was hostile in
the manner required to support such a claim.
Occasional comments by a supervisor that had
the effect of “outing” Wilken and Padilla were
not necessarily hostile, and were certainly not
sufficiently severe and pervasive to amount to a
hostile work environment. “There are no allegations of physical, threatening, or objectively
demeaning and frequent conduct sufficient to
establish a hostile workplace claim.” Thus,
Cascadia was awarded summary judgment on
this claim.
198
The court held that Wilken presented a
prima facie case for common-law wrongful discharge. In Oregon, such a claim may be pursued only if statutory claims are inadequate.
Cascadia did not dispute Wilken’s contention
that the statutory remedies (then in effect) were
inadequate, and the court found that Wilken
presented a prima facie case of wrongful discharge for exercising protected rights.
Finally, as for intentional infliction of emotional distress (IIED), the court found that comments by Wilken’s supervisor that “it would be
better to be a lesbian” than to have the problems the supervisor suffered as a heterosexual,
and a handful of rules applied to Wilken in response to coworker complaints, were different
in quantity and in severity from those required
to sustain a claim for IIED. To maintain such a
claim, the comments must constitute an extraordinary transgression of the bounds of socially tolerable conduct, and be intentional and
outrageous. The comments made to Wilken
were not so severe, and the court granted summary judgment to Cascadia on this issue.
Thus, the court held that Wilken may go forward with her claims based on gender discrimination under Oregon law, retaliation under Oregon law, gender discrimination and sexual
orientation under the Portland City Code, and
common-law wrongful discharge. No federal
civil rights claim was allowed to stand, nor was
the claim for intentional infliction of emotional
distress. Alan J. Jacobs
Shocking Homophobia Exposed in NYS
Department of Correctional Services
A decision released by the New York State Division of Human Rights on October 11 exposes
shocking homophobia among supervisory staff
at the Wende Correctional Facility, operated by
the New York State Department of Correctional
Services. In the decision, the Division awarded
$850,000 in compensation for mental anguish
and humiliation to a lesbian correctional officer
whose abusive treatment at the hands of a male
co-worker was tolerated by supervisors and
managers, who allowed the abusive co-worker
to initiate retaliation against her when she formally complained. (The full text of the decision
in Humig v. New York State Department of Correctional Services, Case No. 7905228, can be
found linked to a press release on the website of
the New York State Division of Human Rights.)
A news report in the New York Times on October 12 related chapter and verse from the Division’s decision, but did not reveal what disciplinary action, if any, is being taken by the
Department against the offending supervisors
and managers whose blatant violation of the
State Human Rights Law has exposed the Department to liability and public embarrassment, or what steps the Department is taking to
educate its administrative staff about their re-
November 2007
sponsibilities under the state’s Human Rights
Law.
The Division approved a 23–page opinion by
Administrative Law Judge Martin Erazo, Jr.,
which relates in detail the year of living hell to
which Alicia S. Humig was subjected by Jim
Wright, a co-worker who began his abuse in
July 2002 after Humig complained to her supervisor, Captain Kearney, that Wright had
falsely accused her of having an “improper relationship” with a male inmate. Wright had
asked Kearney to remove the inmate in question from Humig’s control because they were
“too close.”
As a result of Humig’s complaint, Erazo
found, Wright subjected Humig to a stream of
homophobic and sexist vituperation that lasted
for a full year, despite Humig’s complaints and
despite belated counseling of Wright in response to those complaints. In addition, found
Erazo, Wright placed Humig in dangerous
situations by comments he made in the presence of inmates, and took steps to alienate other
guards from her, so that Humig feared they
would not come to her assistance in case of
trouble with inmates.
Erazo also found credible based on Humig’s
testimony as well as corroborating testimony of
other correctional officers that Wright solicited
false charges against Humig from other officers
and inmates and scrawled homophobic graffiti
directed against Humig on the bulletin board
used by the correctional officers.
Captain Kearney, the recipient of Humig’s
various verbal and written complaints, told her
he would “look into” her allegations, but did
not provide any effective response, and in most
instances failed to relay her complaints to the
Diversity Management office, as Department
policy would require. On the other hand, he
promptly initiated investigations of Wright’s
manufactured complaints against Humig.
Erazo’s conclusions are emphatic and reveal
serious shortcomings in the management of the
facility. “Respondent discriminated against
Complainant by denying her equal terms, conditions and privileges of employment, by subjecting her to a hostile work environment, because she is gay and female. Respondent also
retaliated against Complainant for having filed
a written complaint of discrimination,” he asserted. “Complainant described offensive conduct that was sufficiently severe and pervasive
to sustain her claim of harassment because of
her sexual orientation and gender.”
“The credible evidence established numerous incidents of verbal harassment and threats
to Complainant’s safety. Wright subjected
Complainant to a daily, relentless regimen of
humiliating insults directed at Complainant’s
sexual orientation and gender. Complainant endured these insults from July of 2002 until July
of 2003. Complainant’s co-workers also placed
Complainant’s life in danger. Wright frequently
Lesbian/Gay Law Notes
humiliated Complainant in front of inmates.
Wright also succeeded in isolating Complainant from her fellow male corrections officers.
Wright convinced other corrections officers not
to speak or cooperate with Complainant. Wright
delighted in making sure that inmates knew
that Complainant was gay. In one egregious instance, Wright accused Complainant of engaging in drug use in front of at least twenty inmates. Any objective observer appreciates the
extremely serious and dangerous situation that
Complaint found herself [in] given the potential
risks associated [with] guarding male inmates
in a prison setting.”
Humig was the only female officer in the
unit, and was a twenty-year veteran whose job
evaluations were always above average.
Wright’s continued abuse was never effectively
addressed by management, and only ceased
when he initiated a transfer to another assignment and was no longer in daily contact with
Humig.
Erazo found that Captain Kearney, Deputy
Moynihan and Superintendent Zon all “became aware of Wright’s harassing behavior and
did not stop it.” The agency’s inspector general
discovered Wright’s written complaints, which
had not been forwarded up the chain of command as required by the Department’s internal
formal policies, solely by accident, while investigating false charges that Wright had lodged
against Humig. Amazingly, however, even the
Department’s Diversity Management office fell
down on the job, concluding that Wright’s actions did not amount to sexual harassment but
were merely improper, worthy of a counseling
session that had no practical effect.
“Respondent ignored Complainant’s written
complaints about Wright,” wrote Erazo. “Instead, within a few days of Complainant’s September 2002 written complaint, Respondent
chose to launch a full investigation against
Complainant based on Wright’s false allegations he coordinated with various corrections
officers and an inmate. Kearney specifically
testified that Wright’s actions of soliciting negative statements from officers and inmates
against Complainant were ‘wrong.’ Yet, Kearney deliberately chose not to pursue Complainant’s written complaints against Wright.”
“This case reflects the most disturbing nightmare that any employee could find herself,”,
wrote Erazo. “Complainant followed all of Respondent’s rules and respect for chain of command. Complainant gave Respondent’s process the benefit of the doubt. Respondent did
not reciprocate with any sense of responsibility.
Respondent willfully permitted a work environment to flourish where the credible evidence
showed the Complainant could have been
killed because she is a gay female. The very
best Respondent had to offer was a wholly ineffective investigation by its Diversity Management unit that concluded Wright’s conduct was
Lesbian/Gay Law Notes
not sexual harassment. Diversity Management’s internal investigation resulted in a
meaningless formal counseling that did not
stop Wright’s threatening behavior. The harassment stopped only when Wright decided to
leave Complainant’s work place in July of
2003.”
Unfortunately, the Division does not have
authority to order an employer to take disciplinary action against employees, supervisors and
managers who prove to be incompetent, homophobic, sexist, or all of the above. However, after hearing extensive testimony about the psychological damage done to Humig, he did order
damages of $850,000, finding this to be consistent with awards in prior cases that had been
upheld by the courts when challenged on appeal.
While the first instinct of the Department to
this ruling may be to appeal, Judge Erazo’s conclusions seem firmly anchored in numerous citations to the trial testimony, and the role of a reviewing court would be rather sharply limited
as far as the merits of the case are concerned,
although a court might reduce the amount of the
damages. On the other hand, the first instinct of
the Department should be to do some housecleaning in its administrative ranks and to undertake education about the legal responsibilities imposed on all employers in the state by the
Sexual Orientation Non-Discrimination Act.
A.S.L.
Second Circuit Denies Gay Mexican Asylum Claim
On October 16, 2007, the United States Court
of Appeals for the Second Circuit denied an application for asylum, withholding of removal,
and relief under the Convention Against Torture
(CAT) submitted by a gay man from Mexico
claiming a fear of persecution on account of his
sexual orientation. Benitez-Pena v. Keisler, 2007
WL 3010629 (2d Cir. 2007).
In petitioner’s claim for asylum, the Board of
Immigration Appeals found that the asylum application was untimely. Generally, asylum
seekers must file an application within one year
of their arrival in the United States unless they
can show extraordinary circumstances relating
to the delay in filing the application. 8 U.S.C. §
1158. Due to petitioner’s untimely filing, the
Second Circuit lacked jurisdiction to review the
asylum application and summarily dismissed
this claim on appeal. The court then went on to
address petitioner’s claims under the CAT and
withholding of removal.
Notably, perhaps because he was not represented by counsel, petitioner did not claim that
he would be singled out for persecution, he
merely argued that homosexual men in Mexico
are generally subject to persecution. The court
determined that petitioner failed to demonstrate a “pattern or practice of persecution of”
homosexual men in Mexico such that there is a
November 2007
clearly “systematic, pervasive, or organized”
practice of persecution. In addition, the court
found that petitioner did not present any evidence that the Mexican government actively
oppresses homosexuals. Therefore, petitioner
could not show that he was more likely than not
to face persecution or torture if he returned to
Mexico.
Petitioner made additional claims that the
Immigration Judge denied him due process
when the judge denied his request to change
venue, and that the Immigration Judge abused
his discretion in failing to grant a continuance
when petitioner’s attorney failed to appear at
the hearing. The Second Circuit did not provide
a summary of facts, but it appears that petitioner requested a change of venue, from Buffalo, NY to Los Angeles, CA, in order to call witnesses who could support his claims. The Ninth
Circuit is also widely known as the most sympathetic court for gay asylum seekers, so this may
have been a forum shopping attempt by petitioner a savvy strategy considering that he was
representing himself pro se. However, the Second Circuit found that this denial of change of
venue did not “affect either the outcome or the
overall fairness” of the hearing.
Finally, the Second Circuit found that the Immigration Judge’s refusal to grant a continuance after petitioner’s counsel failed to appear
at the hearing was not an abuse of discretion.
The court noted that the Immigration Judge
“made a significant effort to ensure that [petitioner] understood the nature of the proceedings, and asked him multiple times to explain
himself and to provide further details about his
alleged fear of persecution in Mexico.” Accordingly, the court denied in part and dismissed in
part Benitez-Pena’s appeal perhaps confirming
Benitez-Pena’s belief that his only chance for a
successful outcome was to have his appeal
heard by the Ninth Circuit. Ruth Uselton
Court Orders Full Access for Gay-Straight High
School Student Group
Solidifying a preliminary win from last year, a
gay/straight student alliance at a Minnesota
high school won its battle for full access to
school facilities in a federal district court decision. Straights and Gays for Equality (SAGE) v.
Osseo Area Schools District No. 279, 2007 WL
2821823 (D. Minn. Sept. 25, 2007). Ruling for
the student group under the federal Equal Access Act, District Judge Joan N. Ericksen
granted the group’s motion for partial summary
judgment, rejecting the high school’s arguments that activities such as the Synchronized
Swimming and Cheerleading groups were actually “curricular” and thus entitled to preferential access to school facilities. Judge Ericksen
issued a permanent injunction requiring the
school to give the gay/straight alliance the same
199
right to use school facilities (and funds) as all
other student groups.
Straights and Gays for Equality (SAGE) is a
student group at the Maple Grove Senior High
School (MGSH) in Osseo, Minnesota, a suburb
of Minneapolis-St. Paul. SAGE’s purpose is “to
promote tolerance and respect for MGSH students and faculty through education and activities relevant to gay, lesbian, bisexual and transgender … individuals and their allies.” SAGE
had been classified by MGSH as a “noncurricular” student group, which gave the group
very limited access to school facilities meetings
only outside of school hours and the ability to
place a meeting notice on the school bulletin
board. “Curricular” groups, on the other hand,
could meet at any time, use school resources
such as the PA system, and were also allowed to
expend school funds, go on field trips, and conduct fund-raising events. A curricular group
was defined as one “related to the school’s curriculum.”
SAGE, along with two of its members, sued
the school district, high school, and several administrators in 2005 alleging, primarily, that
the school had denied SAGE equal access to
school facilities, in violation of the Equal Access Act, 20 U.S.C. sec. 4071. (SAGE also
made constitutional claims and claims under
the Minnesota Human Rights Act.) Judge Ericksen granted a preliminary injunction in
April 2006 requiring MGSH to give SAGE the
same access as all other student groups, which
was affirmed by the Eighth Circuit in December 2006. SAGE v. Osseo Area Sch. Dist. No.
279, 471 F.3d 908 (8th Cir. 2006). [See Law
Notes for May 2006 and February 2007.] SAGE
then moved for summary judgment on the
Equal Access Act claim.
The Equal Access Act applies to any school,
such as MGSH, that receives federal funds, and
requires that if the school provides facilities for
any noncurriculum-related student group to
meet during noninstructional hours what the
act terms a “limited open forum” then the
school cannot deny access to that limited open
forum to any other students wishing to meet
based on “the religious, political, philosophical, or other content of the speech at such meetings.” As interpreted by the Supreme Court in
Board of Education v. Mergens, 496 U.S. 226,
239 (1990), “[E]ven if a public secondary
school allows only one noncurriculum related
student group to meet, the Act’s obligations are
triggered and the school may not deny other
clubs, on the basis of the content of their
speech, equal access to meet on school premises during noninstructional time.”
MGSH’s classification of student groups
was, obviously, intended to comply with the
strictures of the Act. What was at issue in the
SAGE case, however, was the school’s rather
dubious classification of certain groups as
“curricular.” In particular, SAGE contended
200
that there were at least 4 groups Synchronized
Swimming, Cheerleading, Spirit Council, and
Black Achievers that were classified by the
school as “curricular” (and thus entitled to full
use of MGSH facilities, funds, and avenues of
communication), but that were in fact
noncurriculum-related. By granting these
groups access to which SAGE was denied,
plaintiffs contended, defendants had violated
the Act.
(Interestingly, the court’s original opinion
granting the preliminary injunction noted that
one of the groups classified as “curricular”,
and thus entitled to full access, was the “Gays,
Lesbians, Bisexuals, Transgender, Questioning
and Allies”. Why the school had apparently
recognized this group, but not SAGE, is not apparent from the court’s opinions.)
Judge Ericksen agreed with SAGE, rejecting
all of the school’s arguments as to why these
four groups did not trigger the Act’s provisions.
The school first argued, unconvincingly, that
Synchronized Swimming and Cheerleading
were not even “student groups” under the Act,
because they purportedly did not involve expressive conduct or speech. The court found no
basis in the Act for such a qualification and
noted that the Supreme Court in Mergens had
specifically held that groups related to chess
and scuba diving, for example, were student
groups under the Act. (Judge Ericksen was particularly dubious of the argument that Cheerleading did not involve expressive activity.)
The bulk of Judge Ericksen’s opinion, however, was devoted to the school’s arguments as
to why the four student groups relied on by
SAGE were accurately classified as
“curriculum-related.” With respect to the Synchronized Swimming and Cheerleading groups,
MGSH argued that, because the school required all students to complete a “Life Fitness”
course to graduate, and because this course required students to adopt a physical fitness plan
which could be satisfied, in part, by activities
such as synchronized swimming, then participation in these groups actually resulted in academic credit. Judge Ericksen unsurprisingly
found this argument “too attenuated,” quoting
Mergens’ statement that “a curriculum-related
student group is one that has more than just a
tangential or attenuated relationship to courses
offered by the school.” After all, she noted, evidence showed that students had satisfied their
physical fitness plan requirements with activities such as hackeysack, snow shoveling, and
walking the dog; the school’s argument necessarily would require student groups devoted to
any of these activities to also be deemed curricular, a result Judge Ericksen termed “absurd.” She also noted that the Eighth Circuit
had effectively invited the school to remedy its
discrimination by actually granting academic
credit directly for participation in student ath-
November 2007
letics such as synchronized swimming, but that
the school had chosen not to do so.
The school’s failure to meet its burden to
demonstrate that Synchronized Swimming and
Cheerleading were legitimately classified as
curriculum-related was by itself sufficient to
demonstrate a violation of the Act, but the court
went on to discuss SAGE’s other two examples.
The Spirit Council, a part of the student government, was responsible for planning activities
such as Homecoming and other events that
“foster a sense of positive school spirit and
pride.” MGSH’s argument here was that student government involved topics generally
taught in Political Science classes. Again, however, Judge Ericksen found this connection far
too attenuated, noting dryly that “planning
school dances and events is not taught in Political Science.” As for the Black Achievers, a student group that provides support to African
American students with integration into MGSH
and leadership skills, the court noted that although there were courses dealing in leadership skills generally, none actually taught such
topics with respect to African American students. Again, Judge Ericksen reminded the
school of the Supreme Court’s admonition in
Mergens that “curriculum-related” was not so
broad a term as to encompass “anything remotely related to abstract educational goals.”
Given these violations of the Act, the Court
easily found that a permanent injunction was
warranted. SAGE was being irreparably
harmed by the denial of access, said Judge Ericksen, and the cost to the school of providing
that access was minimal.
As is often the case, perhaps the most interesting comment in Judge Ericksen’s opinion
was in the footnotes. Apparently there was some
argument among the parties as to whether
SAGE should itself be considered curriculumrelated (a ground not reached by the court), and
the opinion noted that MGSH’s arguments
against that proposition demanded a “one-toone relationship … between the subject matter
of SAGE and MGSH’s curriculum … not demanded of other groups” such as Spirit Council
or Black Achievers. But Judge Ericksen also
noted that the school asserted at oral argument
that “SAGE has provided no materials to the
Court that say there’s a subject taught at Maple
Grove that actually encourages acceptance of
gays” or that “the subject matter of tolerance
and respect relevant to [gay, lesbian, bisexual,
transgender, and questioning] individuals is
actually taught in any course.” Perhaps remedying that deficiency would be a good place to
start. Glenn C. Edwards
Lesbian/Gay Law Notes
Court Rules on Pretrial Evidentiary Issues in
Challenge to Wisconsin Law Barring Hormone
Treatment for Trans Inmates
Lambda Legal has been challenging the constitutionality of a Wisconsin law that would prohibit government funding of “hormonal treatment” and surgery for transgender state prison
inmates. At the center of the fight are five Wisconsin inmates who have been diagnosed with
Gender Identity Disorder (GID) and are at risk
of having their prescribed hormone treatment
discontinued. The plaintiffs, currently receiving treatment through a preliminary injunction,
have filed a 42 U.S.C.1983 claim for violation
of their 8th Amendment right to be free from
cruel and unusual punishment and their 14th
Amendment right to equal protection. On October 10, 2007, twelve days before the scheduled
bench trial, Judge Clevert issued an opinion on
various motions concerning exclusion of evidence. Sundstrom v. Frank, 2007 WL 2916559
(E.D. Wis.).
The plaintiffs objected to the inclusion of expert testimony by Dr. Daniel C. Claiborn, a
clinical psychologist who has provided counseling to 30 to 50 transgender clients over the
last three decades. Dr. Claiborn testified that
the plaintiffs’ “transgender issues do not result
in serious medical needs … the transgender issue is about choices, not medical necessity.”
Dr. Claiborn also challenged the authority of
the Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV), which lists GID as a psychological disorder. The plaintiffs contend that
Dr. Claiborn’s opinions are not based upon empirical evidence and thus do not meet the reliability threshold for expert testimony under
Federal Rule of Evidence 702.
In evaluating and denying the plaintiffs’ motion, Judge Clevert found that the plaintiffs undervalued Dr. Claiborn’s “significant” experience counseling transgender clients which
deserved “great weight” in evaluating the reliability of his testimony. Judge Clevert also
noted that the Seventh Circuit had already held
that GID is a “serious medical need” and the
only issue before the court is the treatment of
GID, to which Dr. Claiborn’s experience appeared clearly relevant to the court. Finally, the
court noted that since there was no jury, the
judgecould hear the evidence and make a judgment on reliability once the trial had already
begun.
The defendants in turn sought to exclude
parts of plaintiffs’ expert testimony by Dr.
Randi Ettner. The defendants maintain that Dr.
Ettner, a Ph.D. psychologist (like Dr. Claiborn),
was speaking beyond her experience when she
discussed the medical necessity of treatment
for GID and the effects of such treatment. Judge
Clevert made short work of denying the motion,
noting that Dr. Ettner’s experience of working
with 2,500 gender dysphoric patients, exten-
Lesbian/Gay Law Notes
sive publishing on the causes and treatment of
GID, and recent editing of a medical textbook
on transgender issues made her qualified to
speak on the issues about which she testified.
Judge Clevert also ruled on two other motions. Inclusion of the plaintiffs’ past convictions relating to dishonesty were allowed for the
purpose of attacking the credibility of plaintiffs
should they take the stand. Judge Clevert also
excluded the medical opinion testimony of defendants’ corrections expert, noting that the expert had no psychological or medical training or
education. Chris Benecke
Partner of Missing New Yorker Entitled to Stay in
Rent Stabilized Apartment
New York County Civil Court Judge David B.
Cohen held that even though same-sex partners
Daniel Carrier and Marco Smythe were closeted and had taken no steps to formalize their
relationship, they are family members and Carrier is entitled to remain in Smythe’s rent stabilized apartment after Symthe stopped paying
rent and then disappeared in January 2006.
Westprop Corp v. Smythe, 2007 WL 2915597
(N.Y. City Civ. Ct., Oct. 3, 2007).
Smythe moved into his rent stabilized apartment in 1981. He met and began dating Carrier
in 1985. Carrier moved in a few months later
and had lived there since. In the mid-nineties
the two men ended their romantic relationship,
but continued to live together in the apartment.
Carrier testified that very little changed in their
relationship and they considered themselves
“family.” Their relationship was known to a few
mutual friends, who testified before the court,
but was otherwise unknown to their biological
families, friends, or coworkers.
In May, 2005, Smythe submitted a lease renewal form to his landlord, Westprop Corp., in
which he listed Carrier as an “other family
member.” Westprop did not object to this when
it was filed. On January 9, 2006, Smythe left a
notice of non-payment of rent from August
2005 (even though Carrier had given Smythe
his share of the rent and Smythe had cashed the
checks) and disappeared. A missing person report was filed by Smythe’s brother (the police
wouldn’t let Carrier file it because he was “not
family”). Westprop filed suit shortly thereafter
seeking to reclaim possession of the apartment.
Carrier responded, claiming he was entitled to
succession of the apartment because he was a
“family member.”
Judge Cohen listed a set of factors in determining whether a “nontraditional family” exists under the Rent Stabilization Code: the longevity of the relationship, the extent of sharing
of expenses and intermingling of finances, the
engaging in family-like activities by jointly attending family functions, the formalizing of legal obligations, whether the participants hold
themselves out to be in a relationship or regu-
November 2007
larly perform family functions, or any other action which evidences the intent to create a
long-term and emotionally committed relationship. He stated that the critical element is an
emotional and financial commitment and interdependence, and that evidence of a sexual relationship (or here, lack of one) may not be considered.
In examining their relationship, Judge Cohen found that Smythe and Carrier had shared
rent, household expenses, and vacation costs,
but that they had not intermingled their finances. Even though Smythe contributed far
less to expenses, Judge Cohen stated it was because Carrier was the higher earner, and that
Smythe “had very little finances to intermingle.”
Judge Cohen found Carrier’s close relationship with Smythe’s mother a significant factor,
and stated that Carrier even served as an honorary pallbearer at her funeral, a position usually
reserved for family. Stating it is often “unrealistic” for gay couples to hold themselves out as a
couple to their families and the public, and because Carrier had submitted numerous photos
and postcards evidencing their relationship,
Judge Cohen gave little weight to the fact that
the men were closeted and that few knew of
their relationship. He gave substantial weight
to the form that Smythe had submitted to Westprop naming Carrier as a family member.
Based on the totality of the evidence, Judge
Cohen held that Carrier had proven an “emotional and financial commitment and interdependence” and a “dedicated, caring and selfsacrificing family relationship” as required under the Rent Stabilization Code. Accordingly,
Judge Cohen ordered Westprop to produce a
lease naming Carrier as the tenant of the apartment within 20 days of his decision. Bryan
Johnson
Charney Settles with Sullivan & Cromwell
Aaron Brett Charney and the law firm Sullivan
& Cromwell have settled the sexual orientation
discrimination and retaliation case that Charney filed against the firm in January, according
to an article published in the New York Law
Journal on October 26. The terms of the settlement are confidential.
Charney had alleged hostile environment
harassment on the basis of his sexual orientation in violation of New York City’s Human
Rights Law, and that when he complained to the
firm about the harassment, he was met by a retaliatory campaign that included pressuring
him to transfer to the London office and giving
him a negative review not merited by his work.
When a meeting late in January between Charney and some Sullivan & Cromwell lawyers
failed to persuade him to withdraw his case,
Sullivan discharged him (assertedly for violating firm confidences) and countersued. The
201
cases were consolidated before New York Supreme Court Justice Bernard Fried, who dismissed Charney’s original pro se complaint
with leave to replead; the amended complaint
reasserted the original causes of action and
added two more, for conspiracy and infliction of
emotional distress, which were dismissed in a
later ruling. However, this time Charney’s initial causes of action remained in play, and
rather than have to answer the complaint and
submit to discovery, Sullivan and Charney negotiated a settlement on undisclosed terms.
The fall-out from the case included speculation that Sullivan’s reputation as a gay-friendly
firm might be harmed, a detriment in the new
associate recruitment process on major law
school campuses, although the settlement may
blunt that impact. Secondary fall-out occurred
to this Association, as an off-the-cuff comment
in response to a reporter’s question by LeGaL’s
president, Jack Scheich, resulted in consternation among some LeGaL members, prompting
Scheich to resign after many years of service to
LeGal as Vice President, board member, and
volunteer. Finally, Gera Grinberg, an S&C associate who had worked closely with Charney,
leading to the unfounded rumors about a sexual
affair that made up a significant party of Charney’s hostile environment allegations, became
embroiled in the case as well and is no longer
working at S&C, but may yet file his own lawsuit against the firm. A.S.L.
Minnesota Judge Refuses to Let Senator Craig
Withdraw His Guilty Plea
A Minnesota trial judge ruled on October 4 that
U.S. Senator Larry Craig (R-Idaho) may not
withdraw his guilty plea to a disorderly conduct
charge resulting from his conduct in a public
restroom in the Minneapolis-St. Paul International Airport on June 11, 2007. According to a
lengthy written opinion issued by Hennepin
County District Court Judge Charles A. Porter,
Jr., Senator Craig’s guilty plea was “accurate,
voluntary, and intelligent” and “the conviction
is supported by the evidence.” State of Minnesota v. Craig, 27 CR 07–043231 (Hennepin
Co. Dist. Ct.).
An undercover airport police officer had
been placed in the restroom purportedly in response to complaints about sexual activity in
the restroom. According to his report on the
June 11, 2007, incident, Sgt. David Karsnia
was occupying a stall. Senator Craig stood outside the stall for several minutes, peering
through the crack along the door and making
eye contact with Sgt. Karsnia. Craig occupied
the adjacent stall, sat down, tapped his foot,
Karsnia responded with some foot tapping and
Craig moved his foot under the divider to touch
Karsnia’s foot, then reach under the stall with
his left hand and gestured, at which point
Karsnia identified himself as law enforcement
202
and subsequently arrested Craig on invasion of
privacy and disorderly conduct charges. Craig
does not dispute the factual allegations, merely
the interpretation to be put on them. (In the immediate aftermath of his apprehension, he
claimed his foot touched Karsnia because he
sat with a “wide stance” to avoid his pants
dropping to the floor, and that he was leaning
down to pick up a piece of stray toilet paper, but
Karsnia was not buying the story.)
After communications back and forth with
the police and the prosecutor, Craig submitted a
mailed guilty plea to the disorderly conduct
charge about two months after his arrest, and
was given a suspended one year jail sentence
and a $1,000 fine reduced to $500, on condition he not engage in similar conduct over the
course of the year. The matter came to light in
the press several weeks after Craig submitted
his guilty plea. First Senator Craig stated he
would resign from the Senate at the end of September. Then, after consulting counsel, he decided to seek to withdraw his guilty plea and
contest the charges, stating that he would resign
from the Senate if he was not allowed to withdraw his guilty plea. But his immediate reaction to the court’s October 4 decision was to
state that he intended to serve out his Senate
term, which runs through January 2009, but not
stand for re-election.
In his motion, Senator Craig argued that he
should be given a chance to contest at trial
whether his conduct was criminal under the
statute, while also arguing that the statute was
unconstitutionally vague. The American Civil
Liberties Union (ACLU) submitted a brief in
support of Senator Craig’s motion, arguing that
under a prior decision of the Minnesota Supreme Court restricting the scope of the disorderly conduct statute on First Amendment and
Due Process grounds, “there is a very real possibility that this defendant pled guilty under
circumstances in which the Constitution would
not have permitted a conviction," and so he
should be allowed to withdraw his guilty plea
“in the interests of justice.” (The ACLU amicus
brief is available on Westlaw at 2007 WL
2892650. We have not seen the court’s opinion
on Westlaw, but a scan into a pdf file was linked
to the story on the Associated Press website the
day the opinion was released.)
Judge Porter rejected all of Senator Craig’s
arguments as well as the ACLU’s arguments.
After reciting in detail the facts recorded in
the report filed by Metropolitan Airport Commission police sergeant David Karsnia, the arresting officer, as well as the chronology of
Senator Craig’s subsequent contacts with the
police and the prosecutor’s office, Judge Porter
noted that criminal defendants in Minnesota do
not have “an absolute right to withdraw a guilty
plea,” and in a motion made before trial, the
court may allow a defendant to withdraw the
plea “only of the motion is timely made and
November 2007
‘withdrawal is necessary to correct a manifest
injustice,’” as specified in the state’s criminal
procedure statute. Courts interpreting the statute have ruled that “a manifest injustice occurs
when a plea is not accurately, voluntarily, or intelligently made,” according to Judge Porter’s
summary of the cases.
The state prosecutor argued that Senator
Craig waited too long to withdraw his plea, acting only after the matter became public, and
thus his motion was “politically motivated.”
But Judge Porter found that the state had not
been prejudiced by the brief delay of a few
weeks, and that “the Defendant’s relative diligence in seeking withdrawal” entitled him to a
ruling on the merits of his motion.
However, Porter decisively rejected Craig’s
argument that his plea was the result of panic or
misunderstanding. He found that the complaint
recited the facts in enough detail for Senator
Craig to be fully aware of what he was pleading
guilty to, and that Craig “knew or should have
known that his entrance into Sgt. Karsnia’s stall
with his eyes, foot, and hand are the type of acts
that would ‘tend reasonably to arouse alarm,
anger, or resentment in others,’” the conduct
prohibited by the statute. Porter also found
nothing out of order regarding the forms Craig
filled out waiving his right to appear personally
before the trial court that was accepting his plea
and passing sentence on him. “Because the Defendant waived his appearance for the plea and
sentencing, he cannot challenge the absence of
questioning of him by the court about the factual basis for the plea and his admission to
those facts,” wrote Porter. “It is not a manifest
injustice to force the Defendant to be bound by
his plea bargain and the waivers and admissions which he made in conjunction with the
execution of that bargain.”
Porter also rejected the argument that Craig’s
plea was not voluntary, finding that the interrogation transcript failed to support Craig’s argument that he had been subjected to “aggressive” police interrogation at the time of his
arrest. “The Defendant may have felt intimidated by the situation,” wrote Porter, “but he
also acted with a degree of confidence when,
upon arriving at the POC [police headquarters],
he identified himself as a United States Senator
and said, ‘What do you think about that?’”
Perhaps more significantly on this issue of
voluntariness, Craig did not plead guilty until
two months later, after numerous telephone
contacts with the prosecutor and plenty of time
in which he could think things over and consult
a lawyer. “This Court concludes that the Defendant was not a victim of police or prosecutorial
coercion,” wrote Porter. The pressures to plead
guilty in this case did not, in his view, result in
injustice to Craig.
Finally, on the issue of intelligence, Porter
showed a bit of humor when he commented,
“The Defendant, a career politician with a col-
Lesbian/Gay Law Notes
lege education, is of, at least, above-average intelligence. He knew what he was saying, reading, and signing.” He had noted on the forms
that he was not represented by counsel, but Porter found his waiver of representation to be
valid, commenting that Craig “is an educated
adult, who was advised by the prosecutor himself to consult an attorney.”
In this case, Porter found, Craig had intelligently waived the right to trial, based on
charges that were “stated in plain language,
and given his intelligence, the Defendant undoubtedly understood them.” Porter rejected
the idea that Craig acted in haste, noting the
two-month period between arrest and conviction that fell comfortably within the norm for
disposition of such cases. In his motion, Craig
suggested that some promise to him had been
broken as a result of the case becoming public,
having relief on Sgt. Karsnia’s statement at the
time of arrest that he would not go to the press,
but Porter responded that Craig had presented
no evidence to indicate that any promise had
been made to him. “Once a conviction is entered, the record of the case is publicly available on the Minnesota State Courts website,” he
explained. “The Defendant clearly knew that
even if Sgt. Karsnia did not call the media, the
charges and conviction in this case would be of
public record.”
“Here,” concluded Porter, “the Defendant’s
receipt of negative attention is a social and political collateral, not direct, consequence because it was not a definite, immediate, and
automatic consequence of his pleading guilty.
Because negative attention is not a direct consequence of the Defendant’s conviction in this
case, it is not an appropriate basis for plea withdrawal.”
Porter also concluded that the evidence presented in the case, basically the police report to
which Craig did not take factual exception, was
sufficient to sustain a conviction under the statute. “The fact that Sgt. Karsnia was an undercover police officer and not a private citizen using the restroom for its traditional purpose does
not diminish the criminality of the Defendant’s
conduct because the statute requires only that
the offensive conduct ‘tends reasonably’ to
cause alarm, anger, or resentment, and not that
the conduct must actually cause alarm, anger,
or resentment,” wrote Porter, quoting from the
statute, and observing further that Craig had
not presented any new evidence that would
“significantly weaken” Karsnia’s account of
events.
As to the ACLU’s argument, Porter stated
that the case on which the ACLU brief was relying so heavily was concerned only with the portion of the disorderly conduct statute that imposed criminal penalties for speech. In that
1978 case, the court had said that statute could
only be applied to speech that fit the category of
fighting words, that is speech likely to incite
Lesbian/Gay Law Notes
violence. In this case, said Porter, the relevant portion of the statute was that applying to
conduct. Craig was not being punished for anything he said, but rather for his conduct. Also,
although Minnesota courts have recognized
that consensual sex in a public restroom stall
might come within the “reasonable expectation
of privacy” necessary for constitutional protection, in this case the allegation was not sexual
conduct but rather “solicitation,” and “the
criminal behavior is the Defendant’s entry into
an occupied stall with his eyes, hand, and foot.”
Craig could attempt to appeal this ruling, but
Porter seems to have taken pains to provide a
detailed, reasoned response to every point
raised by Craig’s motion. Assuming the accuracy of Porter’s description of the Minnesota
rules on withdrawal of guilty pleas, Craig would
have little chance of success on appeal unless a
court were to find convincing the ACLU’s constitutional arguments on his behalf. A.S.L.
N.Y. Family Court Judge Allows Child Support Suit
Against Mom’s Former Same-Sex Partner
The former same-sex partner of the mother of a
child born through donor insemination may
have an obligation to pay child support, according to a September 11 ruling in H.M. v. E.T. by
Rockland County Family Court Judge William
P. Warren, reported in the New York Law Journal on October 8, page 26, column 1.
Reversing a ruling by Support Magistrate
Rachelle C. Kauffman to dismiss the mother’s
complaint, Judge Warren found that the facts
alleged by the child’s biological mother were
sufficient to support a claim using the legal theory of “equitable estoppel,” by which her
former partner would be precluded from arguing that she was not a parent of the child for purposes of the support obligation.
According to the complaint filed by H.M., the
parties lived as a couple for more than five
years, beginning in August 1989. E.T. was attending chiropractic school while H.M. was a
stay-at-home mother for E.T.’s children., with
the plan that once E.T. graduated, she would
work as a chiropractor and support H.M.
through social work school. The women also
planned to have children together. “After the
parties received fertility services from three
fertility clinics,” wrote Judge Warren, “and after eleven failed attempts to conceive a child together, in December 1993, the parties laid on
the bed they shared together as a couple and the
respondent inseminated vials of sperm into the
petitioner, resulting in the conception of Ryan
M.”
While pregnant, H.M. was accepted into an
adult education program and achieved her high
school equivalency diploma, “completing a
major step towards achieving the parties’ commitments and plans,” wrote Warren. Ryan was
born on September 20, 1994, at home, with E.T.
November 2007
cutting the umbilical cord. “For the first three
months of the child’s life, the respondent nurtured and cared for the child as a parent,” wrote
Warren, “however, in January 1995, the respondent ended the parties’ relationship. She
gave petitioner $1,500, however, as petitioner
had no other income or place to live, she and the
child moved in with her parents in Montreal,
Canada.”
In her petition to the court, H.M. claimed that
E.T. had “failed to honor her commitment to
support her while she acquired her social work
degree, and has refused to accept financial responsibility for the child.”
The opinion provides no explanation why
H.M. waited until January 2007 to file her petition seeking a declaration that E.T. is a parent
and obliged to provide child support payments.
H.M. is seeking payments retroactive to the
child’s birth, now thirteen years ago.
Judge Warren noted that under existing New
York law, “a former same-sex partner who is
neither an adoptive nor biological parent of the
subject child has no standing to seek custody or
visitation, and cannot rely upon the doctrine of
equitable estoppel to establish her status as a
de facto parent of a child to which she was a legal or biological stranger. However, as far as the
obligation of a former same-sex partner to support a child which is neither her biological nor
adoptive child, there appears to be scant
authority in the State of New York.”
Warren mentioned a 1985 case, Karin T. V.
Michael T., 127 Misc.2d 14 (Fam. Ct., Monroe
Co.), involving a female-to-male transsexual
who had obtained a marriage license, whose
wife had a child through donor insemination,
and then who sought to escape support obligations when the couple broke up and had their
marriage invalidated. In that case, the Monroe
County Family Court held the legal father to the
support obligation, writing, “However, by her
course of conduct in this case which brought
into the world two innocent children she should
not be allowed to benefit from those acts to the
detriment of these children and of the public
generally.”
In that earlier case, there had been a written
child support agreement at some point, but
Judge Warren did not consider the lack of a
written agreement in this case to be crucial,
finding that an implied agreement could be
found based on the circumstances. He also
noted other cases involving different-sex couples where courts bound non-biological parents
to support obligations, including a recent ruling
by the state’s highest court, Shondel J. v. Mark
D., 7 N.Y.3d 320 (2006), where a man who
agreed to support a child under the mistaken
belief that he was the biological father was
nonetheless held to his support obligation.
“By statute, the Legislature has recognized
the viability of the doctrine of equitable estoppel applying in paternity proceedings,” Warren
203
explained. “Those statutes direct the court to
not order Genetic Marker on DNA tests if the
court finds that it is not in the best interests of
the child on the basis of, inter alia, equitable estoppel. Therefore, if the circumstances exist to
justify the application of the doctrine of equitable estoppel, no scientific test is ordered and
the issue of biology is never even reached. If the
issue of biology is not a factor in a paternity proceeding where equitable estoppel is established, it would appear that the gender of the individual against whom the doctrine is applied
becomes irrelevant. Consequently, a paternity
proceeding could proceed against a same sex
partner if circumstances are established justifying the application of equitable estoppel.”
Confronting a motion by E.T. to dismiss the
case, Warren pointed out that he was obliged to
treat as true all of H.M.’s factual allegations for
purposes of deciding whether she had alleged
facts that would support the application of equitable estoppel. “In this court’s view,” he wrote,
“based upon the facts alleged by the petitioner,
it is possible that a court could conclude that
the respondent should be estopped to deny her
role as a person responsible to provide support
for the child,” and thus it was wrong for the
Magistrate to have dismissed the case. “The focus of a court’s analysis must be on the child,
and the protection of his rights, interests and
welfare,” Warren asserted. Although he found
that the law provided no “bright line test” to determine when a non-biological and nonadoptive parent should be bound to provide
child support, it was necessary for the court to
make such a determination to protect the child.
“To automatically relieve an individual of
any duty of furnishing support for a child resulting from the artificial insemination of her
same-sex partner, to which insemination the
same-sex partner submitted in reliance upon
certain promises, could be against the best interests of the child as well as cast a financial
burden upon the biological parent which in equity and conscience should be shared,” Warren
concluded, ordering that a hearing be scheduled to determine the facts necessary to decide
whether such an obligation should be imposed
on E.T. A.S.L.
New York Court Rejects Attempt to Expand
Charney Lawsuit
New York Supreme Court Justice Bernard J.
Fried rejected an attempt by gay attorney Aaron
Brett Charney to expand his sexual orientation
discrimination/retaliation lawsuit against Sullivan & Cromwell to encompass claims of intentional infliction of emotional distress and conspiracy to violate New York City’s Human
Rights Law. Charney v. Sullivan & Cromwell,
LLP, 2007 WL 2822423 (N.Y. Sup. Ct., N.Y.
Co., Sept. 27, 2007) (table).
204
Charney filed suit against S&C in January
2007, claiming that he had been subjected to
sexual orientation discrimination at the firm
and that his attempts to raise an internal complaint had led to retaliation against him. He accompanied the filing of his complaint with a
publicity campaign that quickly caught S&C’s
attention, as he was suspended from the firm
and, after refusing to back down, discharged
and named as defendant in a counter-suit. Motion practice ensured, and an amended complaint was filed, adding claims of intentional
infliction and emotional distress and conspiracy to violate the Human Rights Law. These additional claims were predicated largely on
S&C’s response to the first complaint. Charney
alleged that he was threatened and bullied by
an S&C partner in a meeting the day before
S&C filed suit against him, and that S&C lawyers had conspired with an outside attorney,
Edward Gallion, hired by S&C to represent another associate, Gera Grinberg, who had
worked closely with Charney at the firm, to destroy evidence related to this emotional distress
claim and to get his client to make a false affidavit suggesting that Charney had himself wrongfully destroyed evidence.
S&C filed a motion to dismiss these new
claims, and also seeking to have stricken from
the amended complaint the factual allegations
that related to events that took place after the
original complaint was filed.
In grant the motion so far as the new legal
claims were concerned, Justice Fried found that
inasmuch as damages for emotional distress
were recoverable under the city Human Rights
Law, Charney’s attempt to add a separate tort
claim seeking damages for emotional distress
was duplicative and thus should be dismissed.
Justice Fried also found that New York courts
have not recognized a stand-alone claim for
conspiracy to violate a statute. In the context of
civil litigation, he observed, a claim of conspiracy has to be directed at the commission of an
underlying tort. Since he had dismissed the intentional infliction of emotional distress claim,
there was no underlying tort claim in the case
on which to hang the conspiracy claim. Consequently, it had to be dismissed as well.
But Fried was not willing to accept S&C’s argument that the paragraphs in the amended
complaint relating to S&C’s conduct after the
original complaint was filed should be stricken
as “irrelevant, scandalous, and prejudicial allegations.” Fried found that New York precedents would focus him on the question whether
the challenged paragraphs “are relevant to the
cause of action.” “I conclude that the allegations in the disputed paragraphs are potentially
relevant to the retaliation claim and also serve
to put the defendant on notice of plaintiff’s intent to bring post-termination conduct into this
lawsuit. This potential for relevance is enough
to survive a sec. 3024(b) motion. While no one
November 2007
likes to be sued, the allegations are not of such a
scandalous or prejudicial nature as to warrant
being stricken ... ”
However, Justice Fried was willing to strike
two paragraphs that specifically quoted from
the April 12 deposition testimony of Gera Grinberg. Grinberg’s deposition had been ordered
at that early stage of the case, prior to the formal
discovery process, in order to put on the record
statements alleged to have been made at the
meeting held that day before S&C discharged
and file suit against Charney, and Justice Fried
had directed that disclosure of the deposition
be limited to attorneys and clients only, “until
further application made to this Court.” Charney’s lawyers did not apply to the court for permission to disclose any of this deposition in
their complaint, so Fried struck those paragraphs.
Although S&C achieved a tactical victory in
getting the tort claims dismissed, Fried dismissed them without prejudice, so they could
surface again, and by his comments about the
motion to strike clearly indicated the possibility
that the underlying claims that were stricken
could nonetheless be considered as part of
Charney’s discrimination and retaliation
claims, which were not attacked on this motion
to dismiss, it being clear that S&C will have to
answer the complaint on those charges. Meanwhile, discovery was scheduled to begin concurrent with the continuing motion practice, although any discovery that is taking place has
not been revealed to the public.
Charney’s is undoubtedly the most highprofile sexual orientation and discrimination
claim to have been brought under the New York
City Human Rights Law, which was first
amended to cover sexual orientation discrimination in 1986. Ironically, the defendant law
firm is known for having among the largest
number of openly-gay partners from among the
large New York City firms, and scores at the top
of the scale on the internal firm policies that activist groups look at to determine the gayfriendliness of an employer. From the allegations of his original complaint, it seems that
Charney’s difficulties stemmed from his “closeted” status at the firm (he only “came out” in
the course of complaining about alleged mistreatment by one of the junior partners), and the
subsequent poor handling of his complaint under S&C’s rather informal internal procedures.
A.S.L.
Nassau County Court Tosses Criminal Indictment
of Gay Cross-Dresser on Burglary Charge
Acting Nassau County Supreme Court Justice
David J. Ayres dismissed a burglary and criminal trespass indictment against Walter Hodge,
a gay man who cross-dresses, finding that the
prosecutor’s presentation of evidence about Mr.
Hodge’s sexual orientation and cross-dressing
Lesbian/Gay Law Notes
activities to the grand jury was prejudicial. Ayres’s September 26 rulingin People v. Hodge,
Indictment No. 1820N–07, was reported in the
New York Law Journal on October 9.
According to the Law Journal report, which
was based on an interview with Hodge’s attorney, Andrew Monteleone, as well as the court’s
written opinion, Mr. Hodge’s aunt returned
from a two-week vacation to find that somebody
had broken into her house and taken some
beauty products and shoes. She reported the
suspected burglary to the police, and may have
also related suspicions that the burglar might
have been her cross-dressing nephew, because
she was presented as a witness to the grand jury.
In her testimony, she responded affirmatively to
the questions whether Hodge sometimes
“dresses as a woman,” sometimes uses
makeup, and sometimes wears his hair “like a
woman.”
Another witness, a Long Beach Police Department detective, testified as to Mr. Hodge’s
appearance. “He’s feminine, definitely feminine, and he’s openly homosexual, he’s admitted to me several times. He’s got long hair. His
hair changes. Most of the time he keeps it
longed and braided to the back… I’ve also seen
him wear women’s clothing from time to time.”
After the indictment was voted, Monteleone
objected that no instruction had been given to
the grand jury that they were not to assume that
just because Hodge was gay and cross-dressed
that he was the burglar. Justice Ayres agreed
with this objection.
After quoting the testimony from the grand
jury minutes, he wrote, “this Court finds that
the integrity of the grand jury proceedings was
impaired by the introduction of evidence regarding the defendant’s sexual orientation
and/or preference, and that the presentation of
such wholly irrelevant evidence may have resulted in prejudice to the defendant.”
“Even the most generous interpretation of
the evidence of defendant’s sexual orientation
as relevant — that because he dresses like a
woman he likely stole the victim’s hair products
and shoes — is such an incredible leap of logic
as to astound this Court,” Ayres continued. “If
such evidence had any probative value at all, it
was of such slight value when viewed in the
context of the totality of the evidence presented
to the Grand Jury, and so vastly outweighed by
the potential prejudice that may have inured to
the defendant by its introduction, that this
Court is left with no alternative but to dismiss
the indictment in its entirety.”
However, the indictment was dismissed
without prejudice, so the prosecutor can represent the case to a new grand jury, without the
prejudicial evidence. Furthermore, Mr.
Hodges, who is being held in jail pending trial,
was not released as a result of this action, the
court noting that “his bail status of ‘remand’ is
continued."” Justice Ayres gave the prosecu-
Lesbian/Gay Law Notes
tion until November 10 to re-present their case
to the grand jury.
Hodge’s attorney told the Law Journal that if
the prosecutor decided to re-present the case,
Hodge would not testify to the grand jury. The
assistant district attorney who presented the
case to the grand jury was Kylie Higgins. A.S.L.
November 2007
supervisor. He did so in a manner unacceptable
to any workplace. His insensitive tirade also
suggested a lack of tolerance for his co-workers’
sexual orientation, which is itself contrary to
the policies of the LAD to eliminate such bias in
the workplace.” A.S.L.
N.J. Appellate Division Upholds Discharge of
FedEx Driver Who Felt Persecuted by Lesbians
Federal Judge Finds Civil Commitment Provision
for “Sexually Dangerous Persons”
Unconstitutional
In Palmieri v. Federal Express, Inc., 2007 WL
2982302 (N.J.App.Div., Oct. 15, 2007), the
court upheld a decision by the Director of the
New Jersey Division of Civil Rights that the employer had not violated the plaintiff’s rights under the Law Against Discrimination when it
discharged him after he had accumulated three
warning letters in a one-year period. Plaintiff
Vincent Palmieri worked as a package courier
driving a truck for FedEx.
The first warning was for violation of a safety
rule requiring FedEx drivers to keep the door on
their delivery truck closed while driving. When
Palmieri’s supervisor, Mary Kish, gave him this
warning after his violation had been reported by
a co-worker, Kish testified that Palmieri became agitated and exclaimed, “there were two
lesbian manhaters out to get him because he
was a man.” Palmieri was referring to the coworker and the office’s senior manager, both of
whom were openly lesbian.
A few days later, Kish gave Palmieri a second
written warning for exhibiting “blatant disrespect toward a co-worker as well as another
manager,” relating back to his outbursts at the
previous meeting. Palmieri subsequently denied that he had intended any disrespect, and
grieved the warning.
His third warning was for leaving a COD
package for a customer without getting the customer’s signature, because the customer left a
note in the front door enclosing payment for the
item. FedEx insisted that this was a violation of
its rules, because it had no proof that the customer had received the package without a signature from the customer, and although there
had been no complaint from the customer on
this occasion, it did not want its drivers varying
from company rules because of potential liability. Palmieri was terminated upon this third
warning, which he also grieved, and upon
FedEx finding no basis for his grievances, filed
his discrimination complaint, also claiming retaliation.
The Civil Rights Division, affirmed by the
court, found that all three warnings appeared to
be meritorious and that there was no ground for
finding retaliation or discrimination against
Palmieri. While recognizing employee free
speech rights, the court found “that there is ample direct and circumstantial proof that, notwithstanding his failure to admit it, Palmieri exhibited anger at the June 2002 meeting with his
U.S. Senior District Judge W. Earl Britt ruled on
September 7 that the civil commitment provision of the Adam Walsh Child Protection and
Safety Act of 2006, 18 U.S.C. section 4248, exceeds Congress’s legislative authority under
Article I of the Constitution and violates the
Due Process rights of those subject to it. So
finding, Judge Britt granted motions to dismiss
petitions by the Bureau of Prisons for the civil
commitment of five individuals now in federal
custody in U.S. v. Comstock, 2007 WL 2588815
(E.D.N.C.).
Under section 4248, the Bureau of Prisons
can seek a commitment hearing for any person
who is in federal custody as to whom the BoP
believes that their release from custody would
present a danger to the community because
they are “sexually dangerous persons.” The individuals in question can be federal inmates
who are about to complete their sentences, persons committed to the custody of the Attorney
General based on mental incompetence to
stand trial, or individuals against whom federal
criminal charges have been dismissed solely
due to their mental condition. In the commitment hearing, the government has the burden of
showing by “clear and convincing evidence”
that the person “has engaged or attempted to
engage in sexually violent conduct or child molestation and ... is sexually dangers to others.”
A person is deemed to be “sexually dangerous
to others” if the person “suffers from a serious
mental illness, abnormality, or disorder as a result of which he would have serious difficulty in
refraining from sexually violent conduct or
child molestation if released.” The statute does
not define the terms “sexually violent conduct”
or “child molestation.”
The lead defendant in the case, Graydon
Comstock, was convicted of possessing child
pornography on his computer and sentenced to
37 months in prison to be followed by three
years of supervised release. His term was set to
expire on November 2, 2006, but the government certified him as a “sexually dangerous
person” under Section 4248, resulting in a stay
of his release pending a hearing on civil commitment. Several of the other defendants have
similar prosecution histories, although one was
actually convicted of sexually abusing a minor,
while another was not tried due to mental incompetence. Federal public defenders filed
motions to dismiss the government’s petitions
205
for commitment hearings, raising various constitutional objections to the statute.
Judge Britt found two of those constitutional
objections well founded. First, building on the
“new federalism” rulings of the Rehnquist Supreme Court, which had struck down federal
laws against possession of firearms near
schools and authorizing a private federal right
of action for damages in cases of violence
against women, that Court had reigned in the
prevailing loose construction of Congress’s legislative authority under the Commerce Clause.
In this case, the government was predicating
the civil commitment statute on both the Necessary and Proper Clause and the Commerce
Clause. Britt found that federal precedents required that a federal statute of this type needs to
be rooted in a substantive grant of power under
Article I; that the Necessary and Proper Clause
may not stand as the sole authority for a federal
enactment that trenches on the traditional reservation of legislative authority to the states in
matters of criminal law. While concern about
sexual violence and child molestation may be
nationwide in scope, there is no showing that
states have failed to address concerns about
such activity by enacting criminal statutes. Furthermore, as in the Violence Against Women
Act, the court found any connection to interstate commerce to be strained.
However, even if legislation on this subject
were within the authority of Congress, Judge
Britt found, the statute failed to protect the 5th
Amendment Due Process rights of those in federal custody. In this case, the hearing process
required a determination whether the individuals in question had “engaged or attempted to
engage” in certain specified acts, as a predicate
to determining whether they presented a danger to the community. Britt agreed with the defendants that a factual determination that can
lead to incarceration, even of the civil confinement variety not intended to punish, must be
made by proof beyond a reasonable doubt. Although the courts have upheld preventive detention statutes where a determination of future
dangerousness through psychiatric testimony
was allowed under a lesser standard of proof,
because by definition such predictions cannot
be established by proof beyond a reasonable
doubt, Britt noted that this statute was significantly different, predicating commitment on
actual acts or attempts, thus invoking the
higher standard.
Judge Britt stayed his opinion pending appeal. A.S.L.
Gay Doctor Loses Appeal Contesting Hospital’s
Refusal to Reinstate Him to Medical Staff
An African-American doctor who describes
himself as “openly gay” lost his appeal of the
decision by the medical staff of Riverside
Healthcare System to readmit him to the medi-
206
cal staff after he allowed his membership to
lapse by failing to submit a timely dues payment. The unanimous ruling by the California
Court of Appeal, 4th District, on October 15, rejected Dr. Christopher Johnson’s claim that
anti-gay bias improperly affected the decision.
Johnson v. Riverside Healthcare System, L.P.,
2007 WL 2985251 (not officially published).
Johnson had accumulated numerous written
complaints from other staff members and patients about his attitude and behavior. The
deadline for him to submit his annual dues to
retain his staff membership at Riverside came
and went while he was overseas on a medical
mission, and he learned of his automatic removal from the staff when he got back. He was
planning to leave for other employment shortly,
but he sought to have his membership reinstated in order to finish up on some patient work
before he left, so he submitted a dues payment
and an application for readmission to the practice. The Medical Executive Committee (MEC)
decided to recommend against readmission.
Johnson requested a hearing, and the hospital’s
Judicial Review Committee, after reviewing the
complaints, decided against him, based on his
behavior being sufficiently disruptive to have
posed a risk to patient care, although the JRC
found insufficient evidence to deny the application based on clinical competence.
Johnson appealed this determination to the
hospital’s appellate committee, which upheld
the JRC decision, but found, contrary to the
JRC, that Johnson should not be admitted back
to the staff for both clinical and behavior reasons, and the hospital’s board adopted this
committee decision as its own. A notice was
sent to the state, as required by law, that the application had been rejected for reasons of both
clinical competence and behavior, and a national registry was also notified. Johnson sought
judicial review. Under a state statute governing
hospital self-regulation of physician credentials, the decision was appealable directly to
the District Court of Appeal.
During the hospital’s hearing process, Johnson had presented evidence that he had been
disliked due to his sexual orientation. One of
his witnesses testified that some of the nurses
engaged in “little negative backstabbing-type
talk” about Johnson and “weren’t too thrilled to
do his cases,” “maybe because of his personality” or “sexual orientation.” This same witness
testified hearing some of the nurses discussing
Johnson’s sexual orientation “in a derogatory
way,” describing him as “flamboyant, a flamer”
and “very colorful,” and that nurses argued
among themselves about who had to work with
him on his cases.
Despite this testimony, the court found that
the hearing record contained sufficient credible evidence about Johnson’s behavior faults to
sustain the decision to deny him readmission,
noting that the letter informing Johnson about
November 2007
the MEC’s recommendation had gone into detail about the complaints against him,
including “rude and inappropriate remarks
and conduct towards staff members, a patient,
and a physician, often in a raised voice or in a
demeaning, insulting, or offensive tone,” and
describing unreasonable demands on staff
members, lack of cooperation, interrupting a
medical procedure to take a “non-urgent phone
call,” violating sterile procedures, and failure
to comply with various hospital rules and customary practices.
Most of Johnson’s objections on appeal went
to procedural points, as to which the court
found Johnson’s characterization of the procedures followed in his case as sometimes inaccurate, and ultimately the court concluded that
Johnson had been afforded fair procedures.
“The evidence supporting the JRC’s findings
was clear and not closely contested at the hearing,” concluded the court, and Johnson had actually admitted “several of the charges of inappropriate behavior.” Thus, given the limited
scope of substantive review of this sort of internal administrative decision, the court affirmed
the hospital’s decision and ordered that the
hospital recover its costs on appeal. A.S.L.
District Court Extends Title VII Interpretation to
State Human Rights Law
In Wamsley v. Lab Corp., 2007 WL 2819632,
the U.S. District Court for the Northern District
of West Virginia followed precedent by denying
a sexual orientation discrimination claim under
Title VII of the Civil Rights Act of 1964. In addition, the court extended this interpretation to
the West Virginia Human Rights Act
(WVHRA), which is the state’s version of Title
VII. Although the claim was actually barred by
the two-year statute of limitations, Judge Keeley addressed the merits of the sexual orientation discrimination claim and made it clear that
even if the plaintiff had timely filed, her claim
would be dismissed as failing to state a claim.
Sexual orientation discrimination claims under Title VII have consistently failed, and a
growing body of case law in the federal courts
supports this proposition. Therefore, the plaintiff also filed a discrimination claim under the
WVHRA, likely because the West Virginia Supreme Court of Appeals has not directly decided whether sexual orientation discrimination is prohibited under the state statute.
However, the state high court has a record of
mirroring federal discrimination law when interpreting the WVHRA, which lead the district
court to summarily dispose of the issue. Sexual
minorities are not a protected class under Title
VII or the WVHRA, and until the federal and
state legislatures amend these statutes, the
LGBT community will continue to have no recourse for work-place discrimination based on
sexual orientation. Ruth Uselton
Lesbian/Gay Law Notes
Federal Civil Litigation Notes
Supreme Court — The Supreme Court has refused to review the 11th Circuit’s decision that
public morality concerns are a sufficient basis
to sustain an Alabama law making it a crime to
distribute sex toys. Williams v. King, No.
06–1501 (Certiorari denied, Oct. 1, 2007); decision below, Williams v. Morgan, 478 F.3d
1316 (11th Cir.).
California — In Nguon v. Wolf, 2007 WL
2827749 (C.D. Calif., Sept. 25, 2007), District
Judge James V. Selna concluded that a high
school principal and other officials at Santiago
High School in the Garden Grove Unified
School District did not violate the constitutional rights of a lesbian student by imposing
discipline for violating the school’s rules
against public displays of affection, or by informing her mother about the reason for her discipline in such a way as to reveal to the mother
that her daughter was a lesbian. Judge Selna
found that the school had applied the rules in a
non-discriminatory manner, and that the dealings with the plaintiff’s mother were appropriate to the circumstances. Thus, there were no
violations of federal Equal Protection or First
Amendment rights, or of privacy protections
provided under the California Constitution.
“While the Court finds that [the Plaintiff’s]
rights were not violated,” wrote Selna, “the
Court is compelled to make several additional
observations. There is no doubt that [the Plaintiff’s] junior and senior years were very difficult
times for her, and that dealing with her sexuality
and her relationship with [T.] took a heavy emotional and psychological toll. The self-imposed
scars on [the Plaintiff’s] arm which she revealed at trial were very real; the fact that she
considered suicide her senior year was very
real. Virtually all teenagers have difficult times
as they pass into adulthood. The record makes
clear that passage is even more difficult for gay
students. The result here is no license for intolerance. The Court simply finds that the Constitutional and statutory rights which protect [the
Plaintiff] as a gay person were not violated.” We
were surprised that the Court used the actual
names of the plaintiff, her girlfriend and other
students in the opinion, and decided to redact
them here.
District of Columbia — Watch out what images you capture on your cell-phone, as they
may be subject to discovery!! Andrei Smith, an
openly gay man employed as a host and waiter,
sued his employer, Caf‚ Asia, claiming he had
been subjected to verbal taunting by the
kitchen staff due to his sexual orientation, that
he was subjected to humiliating physical harassment, the management knew about and tolerated all this, and that one of the managers
sent him an email containing images portraying
gay sex acts. Caf‚ Asia defended by claiming
that all of this behavior was actually welcomed,
Lesbian/Gay Law Notes
encourage, and instigated by Smith himself. A
discovery dispute ensued, when Caf‚ Asia demanded that Smith surrender his cellphone,
which it was claimed carried just the kinds of
visual images that Smith was now suing about
receiving from the manager by email. Smith
stood on his right to privacy and refused. U.S.
Magistrate John M. Facciola, supervising discovery in the case, has ordered that Smith preserve the images on his cellphone and allow one
defense attorney to view them in preparation for
arguing to the District Court Judge about their
relevance and probative value. Smith v. Caf‚
Asia, 2007 WL 2849579 (Oct. 2, 2007). The
Westlaw report indicates this case will be published in Federal Rules Decisions. Presumably
its value relates to being a novel ruling on the
admissibility of cellphone images as evidence.
Georgia — According to a report in the Atlanta Journal-Constitution published on October 26, the 11th Circuit Court of Appeals rejected a discrimination claim filed by an HIV+
police officer who asserted that his discharged
flowed from his having ended a homosexual relationship with a supervisor as well as his HIV
status. The court’s decision in Rogers v. City of
Riverdale did not appear on its website or on
Westlaw as of October 27.
Maryland — Granting only part of a summary judgment motion filed by the defendants,
U.S. District Judge Richard D. Bennett ruled
from the bench on Oct. 15 that the family of Marine Lance Corporal Matthew Snyder, who died
shortly after deployment to Iraq, may pursue
their federal court claim against members of
Westboro Baptist Church for intentional infliction of emotional distress and invasion of privacy as a result of the defendants’ picketing of
Snyder’s funeral at St. John Roman Catholic
Church in Westminster. On October 31, the jury
awarded a total of $2.9 million in compensatory
damages, an amount that Judge Bennett noted
“far exceeds the net worth of the defendants”
according to financial statements filed with the
court, reported the Washington Post on-line. A
further hearing on the issue of punitive damages was expected, although such an award
would be pointless in terms of actual recovery.
••• Westboro Church takes the position that
God is punishing the U.S. for tolerance of homosexuality, and members of the church make this
point forcibly by picketing military funerals
chanting slogans and carrying signs conveying
this message. In the case of Cpl. Snyder, the
church posted comments on its website stating
that Albert Snyder, his father, had raised his son
“for the devil” and to “defy his Creator, to divorce and to commit adultery.” Snyder first
filed suit in federal court in 2006, but problems
about service of the complaint led to a dismissal
without prejudice. The suit was refiled, and in
June of this year, Judge Bennett denied defendants’ motion for summary judgment in Snyder
v. Phelps, 2007 WL 3071412 (D. Md., June 5,
November 2007
2007). However, in his October 15 ruling,
Judge Bennett narrowed the case by granting
summary judgment on charges that the website
postings defamed Snyder’s father and invaded
the privacy of the Snyder family. The defendants argued that their picketing activities at
the funeral were protected expressive conduct
under the First Amendment, but Bennett found
that Snyder was not a public figure, so a jury
would have to decide whether his family was
harmed by the protesters’ slogans, and whether
the defendants were “celebrating the death of a
soldier” in an extreme and outrageous way that
would entitled the Snyder to emotional distress
damages, according to a report in the Baltimore
Sun on October 16. A.S.L.
Massachusetts — Stephen Dunne, who
claimed he failed the Massachusetts bar exam
because he failed to answer a question about
same-sex marriage, has withdrawn his federal
lawsuit, in which he had asserted the bizarre
claim that the court should order the Bar Examiners to pass him on the exam by ignoring his
failure to answer the question. Dunne v. Massachusetts Board of Bar Examiners, No.
07–11166 (D. Mass.) The Board of Bar examiners announced that they had not reached any
agreement with Dunne to limit the scope of
questions on future bar examinations, as he had
demanded in his complaint. The court approved withdrawal of the complaint on Oct. 9.
Massachusetts — U.S. District Judge Saris
rejected most elements of a motion to dismiss
by the Town of Hudson, Massachusetts, and its
School Board, in a suit over the lawfulness of
the school’s censorship of posters from the
Hudson High School Conservative Club that
listed the URL to the High School Conservative
Clubs of America (HSCCA), which itself promoted and provided links to video clips showing beheadings performed in the Middle East
by terrorists. Bowler v. Town of Hudson, 2007
WL 2874393 (D. Mass., Oct. 4, 2007). Some
teachers had voiced objection to the formation
of the Club, fearing that it would be anti-gay
and provocative. When club members put up
posters advertising the HSCCA website, school
administrators checked out that website and
found on it, among other things, calls to take
down rainbox flags and put up American flags,
statements supporting the right to bear arms
under the 2nd Amendment, a “12–Step Liberal
Recovery Program,”, and a proposal to abolish
the National Education Association, as well as
a “prominent banner” titled “Islam: A Religion
of Peace?”, over a picture of a blindfolded hostage kneeling in front of three masked and
armed terrorists, with a link to video showing
the actual beheadings. School administrators
decided this material was inappropriate and
took down the posters, telling the HHSCC
members that they could only put up posters
that did not show the link. They were allowed to
put their original posters up with the link
207
blacked out and the handwritten word “Censored” placed next to it. In the lawsuit, the conservative students alleged a violation of free
speech and equal protection rights. Judge Saris
found that the matter could not be disposed of
by motion to dismiss, opining that it was not
clear as a matter of law that including the link
on the poster was unprotected activity. Although claims against the individual school administrators were dismissed on qualified immunity grounds, claims against the school
board and the town were not, since only prospective injunctive relief was sought as to them.
Missouri — Officials at the St. Charles
County Jail did not violate the constitutional
rights of a pair of gay inmates when they decided to end their cell-mate status and send
them to separate cells and separate housing
units, ruled U.S. District Judge E. Richard
Webber in Conn v. St. Charles County Jail,
2007 WL 2994271 (E.D.Mo., Oct. 11, 2007).
Plaintiff Conn alleges that he asked a prison
guard why the two men were being split up, and
was told “We never should have placed you and
Howard together to start with. That was our mistake, placing two of your kind together.” The
two inmates allege that another guard falsely
told them that there was an order of separation
governing their housing. They allege sexual orientation discrimination at work. But Judge
Webber asserted, “Prisoners do not have a constitutional right to be housed with a cellmate of
their choice. Cell assignments are matters of
prison administration within the discretion of
state authorities.” Which, of course, is totally
non-responsive to their complaint. If indeed,
they were separated for no reason other than
that the guards discovered belatedly that they
were both gay and enjoying each other’s company amidst the misery of incarceration, would
not the question of discrimination arise?
Webber also rejected their attack on the jail’s
refusal to allow them to receive books and
newspapers from visitors or through the mail,
holding that the distribution of publications
was also a matter of discretion of the prison administration, once again failing to consider on
the merits the plaintiffs’ claim of discrimination.
Missouri — The standard for seeking damages for intentional infliction of emotional distress in Missouri is very demanding, at least in
the view of U.S. District Judge Dean Whipple,
ruling in Bailey v. Bayer Cropscience, 2007 WL
3145011 (W.D. Mo., Oct. 23, 2007). According
to the judge’s account, two supervisors called
plaintiff Bailey into the Personnel Office, told
him that somebody had accused him of sexual
harassment, and asked for his response. Bailey
responded on the assumption his accuser was
female, but one or the other of the supervisors
told him in was male, and named a social acquaintance of Bailey. Bailey alleges that he
subsequently spoke to the acquaintance, who
208
denied having made any sexual harassment accusation against Bailey. “Plaintiff claims that
[the social acquaintance] also said that [the supervisors] had threatened [his] job if he did not
collaborate [sic] the purported allegation.”
Amplifying on his tort claim, Bailey explained
that in essence these supervisors had “accused
him of being gay and of having made unwanted
sexual advances toward another male employee,” which Bailey asserts is untrue. In rejecting the claim, Judge Whipple said, “Conduct of this nature, however, is not that which
rises to the level of going ‘beyond all possible
bounds of decency...,’” and noted that the
plaintiff had not presented any evidence that
the supervisors were “abusive, raised their
voices or presented themselves in a manner reflecting a plan to cause Plaintiff emotional
harm.” Thus, summary judgment was granted
against the plaintiff.
New Jersey — On October 4, U.S. District
Judge Joel A. Pisano issued an order denying a
preliminary injunction that was sought by the
Ocean Grove Camp Meeting Association to
stop a discrimination investigation against the
Association by the New Jersey Division on Civil
Rights. Ocean Grove Camp Meeting Association
v. Vespa-Papaleo, Civil Action No. 07–3802
(D.N.J.). The investigation arose from the refusal of the Association, which controls public
spaces in Ocean Grove, to allow same-sex civil
union ceremonies to be held in a pavillion
where wedding ceremonies have been held in
the past. One consequence of the Association’s
actions has been a decision by state authorities
to end preferential tax treatment for the real estate in question, on the ground that the preferential tax treatment was predicated on the
property being open for public use without discrimination on grounds, inter alia, of sexual orientation. Judge Pisano stated the reasons for
his ruling in court, but did not embody them in
a written opinion, merely issuing a brief, oneparagraph order denying the motion for injunctive relief.
New York — A gay New York state prison inmate who claims that prison officials should not
have housed him with cellmates who attempted
to sexually assault him lost his 8th and 14th
Amendment lawsuit when U.S. District Judge
Thomas J. McAvoy accepted a recommendation
by Magistrate Judge David R. Homer in Newman v. Duncan, 2007 WL 2847304 (N.D.N.Y.,
Sept. 26, 2007). Newman alleged that prison
officials should have known that housing an obviously gay inmate with other male inmates
would lead to trouble. Homer was not persuaded in the absence of evidence that prison
officials were aware of any proclivities to engage in such activity on the part of Newman’s
various cellmates.
Ohio — In a rather bizarre case, Tillman v.
Speedway America, Inc., 2007 WL 3095377
(N.D.Ohio, Oct. 19, 2007), a prison inmate rep-
November 2007
resenting himself pro se sought $3,800,000.00
in damages from a gas station and its employees, claiming that during the year prior to his
incarceration he had been repeatedly subjected to a sexually hostile environment when
he attempted to patronize the gas station due to
unwanted sexual advances and comments from
a male employee of the gas station. The facts related in the opinion by District Judge Christopher A. Boyko sound rather improbable. Why
would a man who claims to have suffered such
emotionally distressing mistreatment keep returning again and again to patronize the same
gas station and subject himself to the same mistreatment? In any event, Judge Boyko found
that Tillman’s invocation of Title VII of the Civil
Rights Act of 1964 provided no basis for recovery, since it only relates to employer-employee
relationships, and Tillman was not an employee
of the gas station. Attempting to find another
federal basis for the claim, Boyko pointed out
that 42 U.S.C. sec. 1983 would not apply because no state action was involved. The court
did not consider the possibility that Tillman’s
allegations might fall under the public accommodations coverage of federal civil rights law,
and also found that with the lack of a federal basis for jurisdiction and the lack of diversity,
there was no basis to assert federal jurisdiction
over Tillman’s state tort claim of infliction of
emotional distress.
Pennsylvania — U.S. District Judge Christopher C. Conner granted a motion for summary
judgement in favor of York Police Detective Anthony Fetrow and the York Police Department,
who were being sued by Khalid Abdullah, a gay
man who was arrested by Detective Fetrow and
charged with identity theft. Abdullah v. Fetrow,
2007 WL 2844960 (M.D. Pa., Sept. 26, 2007).
Abdullah’s sister contacted the police, complaining her brother had used her social security number without her authorization to purchase a car on credit as well as to open some
credit card accounts. Based on some confirmatory investigation, Fetrow obtained a search
warrant and went with three officers at midmorning on June 4, 2003, to Abdullah’s residence, where they found Abdullah in bed with
his long-time same-sex partner, rousted the
men out of bed, searched the place, arrested
Abdullah, seized the car, and transported Abdullah in handcuffs to the police station, where
he was book and held briefly. He requested the
presence of a lawyer as soon as he was read his
Miranda rights, so questioning ceased. Ultimately, Abdullah was not prosecuted. He explained that he had mistakenly used his sister’s
social security number, which had only one
digit different from his own. In his suit for various constitutional violations, Judge Conner
found that there was probable cause for the
search and that none of Abdullah’s constitutional rights were violated. Abdullah claimed
that Fetrow questioned him about his sexual
Lesbian/Gay Law Notes
orientation, and that he encountered some
prejudical statements during the process, but
Fetrow denied these allegations and Conner
concluded that nothing alleged rose to the level
of a constitutional violation. On his Equal Protection claim, Abdullah alleged discriminatory
animus based on race, sexual orientation, religion, and disability. Conner found these claims
“bereft of proof... While Abdullah has suggested that Fetrow and other officers engaged in
harassing and demeaning behavior on the basis
of his sexual orientation and disability, such behavior is insufficient to establish an equal protection claim absent evidence that similarly
situated individuals outside of those protected
classes received different treatment,” of which
there was no evidence. Conner also found that
since Abdullah was open about his homosexuality, Fetrow’s inclusion of this information in a
police report did not constitute an invasion of
privacy. A.S.L.
State Civil Litigation Notes
Massachusetts — If a BDSM “master” negligently allows his “slave to die and buries the
body without reporting the death, then commits
suicide out of remorse, can his estate be held liable to the victim’s survivors in a wrongful
death action? That’s the question facing a Massachusetts trial court in the case of Exley v.
State of LeBlanc. Adrian Exley sought an extreme bondage adventure, and met bondage
master Gary LeBlanc through an online forum
for gay S&M devotees. Exley traveled from
England to experience mummification and extreme bondage in LeBlanc’s Lyn, Massachusetts, rubber-lined dungeon. The problem was
that Exley was left wrapped in plastic too long
and suffocated. LeBlanc and a friend drove the
body to Rhode Island and buried it, but it was
later found. Before shooting himself, LeBlanc
wrote that he was “responsible for a horrible
tragedy” and “Had I dealt with the first crisis
[when Exley had trouble breathing] responsibly, he would likely have returned home
safely.” Exley’s mother decided to initiate the
lawsuit. Although it is clear that the mummification/SM scene was consensual, the plaintiffs
contend that Exley did not consent to be dealt
with negligently in a way that would be lifethreatening. CNN News, Oct. 12.
New York — A particularly nasty custody
and visitation dispute is unfolding in the case of
S.S.P. v. D.M.S., 2007 WL 2894264 (N.Y. Family Ct., Nassau Co., Oct. 4, 2007) (Unpublished
opinion; to be listed in disposition table). Upon
divorce in 2004 the father and the lesbian
mother agreed that mother would have sole custody with liberal visitation for the father. The
children are now ten and seven years of age.
The mother seeks to cut down the father’s visitation, and the father seeks to have sole custody
changed to him. Each party was using the liti-
Lesbian/Gay Law Notes
gation process to sling plenty of mud at the
other party. Wrote Family Court Judge Conrad
Singer, “the parties fit the profile of that breed
of litigant that the family court tends to encounter all too often; the career or habitual litigant.
The moving documents in this current proceeding alone dispense such vitriolic and venomous
allegations as to make it clear that the parties,
the parents, while each claiming to be the true
protector of the children’s best interests, simply
appear to be suing the Court as a vehicle to attack and demean one another.” Judge Conrad
found that the mother had not alleged any
changed circumstances that would justify reopening the father’s visitation rights, but that
the father’s factual allegations did raise questions of changed circumstances, albeit contested by the mother, creating factual issues
precluding summary judgment on his motion to
change custody. After setting four dates in October for a hearing on the motion, Judge Conrad
commented, “Despite the fact that the mother’s
petition for modification is dismissed, should
the father’s fitness be effectively impugned,
some of her requested changes, if not more than
she requested, could occur anyway. The parties
are cautioned that the hearing is for the purpose
of exploring only those issues which affect the
best interests of the children. The Court will not
be used as a forum for the parties to attack one
another. An attempt by either party to do so will
be dealt with harshly.”
North Carolina — The BNA Daily Labor Report (Oct. 10, 2007) reported that a North Carolina Superior Court jury issued a $1.15 million
verdict in a same-sex sexual harassment discrimination case, Hallaman v. Smithfield Management Corporation, No. 04–CVS–9765, on
October 4. Jason C. Hallaman was hired to be a
personal assistant to Gregory Moore, CEO of
the defendant company, beginning July 2002.
He was discharged a four months later, after
spurning several sexual advances from Moore.
Hallaman alleged that Moore set up a trap to
justify firing him on bogus forgery charges,
authorizing Hallaman to sign Moore’s name on
a check and then terminating him, filing criminal charges against him, and evicting him from
a house that had been provided for Hallaman,
his wife and child as part of his compensation
package. Although a separate hearing had been
scheduled to consider Hallaman’s claim for punitive damages, it was postponed as settlement
talks proceeded in the wake of the jury’s verdict. BNA’s informant for the story was Hallaman’s attorney, James E. Hairston, Jr., of Raleigh. A.S.L.
Criminal Litigation Notes
Federal — 10th Circuit — A gay bank robber/murderer failed to obtain a writ of habeas
corpus, premised in part on the claim that the
prosecutor had overplayed the issue of his sex-
November 2007
ual orientation during the trial in violation of his
right to a fair trial. Affirming the trial court’s denial of the writ in Johnson v. Mullin, 2007 WL
3120405 (10th Cir., Oct. 26, 2007), the court
noted that Johnson and his partner in crime
Neill, made no secret during the course of the
ultimate trial that they were sexual partners. Indeed, part of Johnson’s defense was that he was
the passive, effeminate partner in the relationship, under the sway of Neill, who was the
leader in their bloody bank robbery adventure,
during which they killed several bank employees and a customer, and severely wounded several other customers of the bank. The two men
were originally tried together and sentenced to
death, but the state appeals court in Oklahoma
determined that a joint trial was improper in
their case as Johnson’s defense theory was as
stated above. Johnson raised many different issues in his unsuccessful habeas petition, but
the one that concerns us here is the claim that
the prosecutor played on the (presumed) homphobia of the jury by emphasizing the “gay” angle at every turn. For example, by bringing out
through testimony that Johnson and Neill were
apprehended while staying in a hotel that caters
to gay tourists, had visited gay bars together,
etc. The court concluded that Johnson had
opened the door to this kind of information by
premising his defense on the alleged nature of
his relationship with Neill, and that overwhelming evidence of his guilt overcame any
argument that he had an unfair trial. On the
separate retrials, each of the men was convicted
on multiple murder and robbery counts, but
this time their penalties fell short of death, although they will probably keep them incarcerated for the balance of their lives. One suspects,
after the nature of the trial, that Johnson and
Neill did not request to be cell-mates, not that
such a request would be honored in any event...
Navy — Criminal Sodomy Conviction —
Upholding a bad conduct discharge following a
year in confinement and a reduction in pay
grade, the U.S. Navy-Marine Corps Court of
Criminal Appeals rejected charges of judicial
bias and violation of a pretrial plea agreement
in the case of United States v. Hayes, 2007 WL
2847173 (N.M.Ct.Crim.App., Sept. 25, 2007)
(not officially published). According to the
opinion by Judge Stolasz, Seaman Tyrice L.
Hayes entered a barracks room and began fellating the sleeping Corporal B, who awoke with
his bed sheet covering his face. “He felt the
senation that he was being orally sodomized,
but was paralyzed as if in a state of shock. He
then felt his penis being removed from the
mouth of the individual sodomizing him, and
inserted into the perpetrator’s anus. A noise
outside the room startled the perpetrator, at
which time Cpl B lifted the sheet from his face
and identified the appellant as the person who
was sexually assaulting him. Cpl B chased the
appellant out of his room and down the hall, but
209
was unable to catch him.” Hayes’ military defense attorney negotiated a plea bargain under
which he admitted to masturbating the sleeping
Corporal B to orgasm, but at the actual hearing,
Corporal B testified to being fellated and the attempted anal sex, which Hayes objected to as a
violation of the plea agreement. Also, Hayes’
attorney testified to hearing the military judge
state after the hearing that Marines should not
be exposed to people like Seaman Hayes. The
appellate panel rejected the charge of judicial
bias, finding that the judge had conducted the
hearing in a fair manner, and rejected the
charge of violation of the plea agreement, finding that it was appropriate to let Corporal B give
truthful testimony which, in the view of the appellate panel, did not contradict the rather
vague fact stipulation to which Hayes had
agreed.
Navy — Criminal Sodomy Conviction —
The U.S. Navy-Marine Corps Court of Criminal
Appeals upheld the conviction of Fire Control
Technician Christopher A. Stephens on charges
of consensual sodomy in U.S. v. Stephens, 2007
WL 3025080 (N.M.Ct.Crim.App., Oct. 11,
2007) (not reported in M.J.). Stephens performed oral sex and digitally penetrated the vagina of the wife of another Navy member who
was assigned overseas at the time. On the argument that he could not be convicted of violating
Article 125, the military sodomy law, in a case
involving a civilian partner, the found no constitutional violation of his rights under the
precedent of U.S. v. Marcum, 60 M.J. 198
(C.A.A.F. 2004), on grounds that this case
raises issues of “military interests of discipline
and order.” “The appellant was a married service member, who engaged in oral sodomy with
the spouse of a deployed service member,”
wrote the court. “The appellant’s sexual conduct with the wife of a deployed service member clearly impacts and undermines good order
and displine in the military,” and thus would
fall outside the sphere of liberty recognized by
the Supreme Court in Lawrence v. Texas. The
court also found that the court martial members
had been properly instructed concerning consensual sodomy and that they “must further be
convinced that the facts and circumstances of
the sexual conduct concern factors relevant
solely to the military environment.” The general approach of military courts in cases involving consensual sodomy between military members and civilians has been to evaluate whether
the circumstances show some nexus to legitimate military concerns. If there is no nexus, in a
rare case, the conviction will be set aside. But
where conduct takes place on a military base or
with somebody who has a family link or tie to
the military, a military nexus may be found.
California — A bitter dispute among transgender denizens of Yukon Mining Company, a
West-Hollywood bar, ended in tragedy on
March 17, 2003, when Amara Vadillo, meaning
210
to shoot Tanya Amador, ended up in a struggle
during which her gun went off and hit Laura Ornelas, who soon expired from her wound. In
People v. Vadillo, 2007 WL 2966029
(Cal.Ct.App., 2nd Dist., Oct. 12, 2007), in
which Vadillo’s conviction and sentences of 20
to life for murder and consecutively 25 to life
for various enhancements to the sentence are
upheld, Judge Flier tells the whole sorry story.
Florida — Lee County Circuit Judge James
R. Thompson erred by allowing testimony
about a criminal defendant’s homosexuality, in
Wessel v. State of Florida, 2007 WL 3120475
(Fla. App. 2nd Dist., Oct. 26, 2007). Finding
that such testimony was prejudicial in a case
where the male defendant was convicted on two
counts of lewd and lascivious molestation for
“inappropriate” touching of his two young
grandsons while bathing them, Chief Judge
Northcutt noted that the prosecutor had argued
that “Wessel’s sexual orientation was relevant
to Wessel’s intent when touching his grandchildren,” and in closing arguments, the prosecutor
told the jury that Wessel’s homosexuality was
brought out at trial “because if the State needs
to prove this touching is unchaste, part of his intent, part of what’s going through his mind, he is
attracted to men.” However, as Judge Northcutt
also noted, “the State offered no evidence of a
connection between homosexuality and pedophilia.” This was reversible error in the eyes of
the court, citing earlier Florida decisions from
1966 and 1975 on point, and asserting, “Likewise in this case, we conclude that the evidence
was irrelevant and prejudicial. “The harmfulness of this irrelevant evidence was clear,”
Northcutt insisted. “It may well have caused
the jury to believe that conduct it might have
considered innocent was, instead, down with
criminal intent solely because the defendant
was homosexual. Indeed, wittingly or unwittingly, in her closing argument to the jury the
prosecutor suggested just that.” The matter was
remanded for a new trial.
Georgia — The Georgia Supreme Court
voted 4–3 to overturn the conviction and sentence of Genarlow Wilson, who had been sentenced to ten years in prison without parole, one
year of supervised probation, and the requirement to register as a sex offender for life with
consequent restrictions on where he can live,
for the crime of engaging in consensual oral sex
with a fifteen year old girl when he was seventeen years old. Humphrey v. Wilson, 2007 WL
3118862 (Oct. 26, 2007). Responding affirmatively to Wilson’s argument that his conviction
on this felony charge and consequent sentence
violate the 8th Amendment ban on cruel and
unusual punishment, the court noted that when
his earlier appeal was pending, the legislature
voted in 2006 to modify the law to reduce the offense he committed to a misdemeanor, as a result of which the sentence would not exceed one
year and there would be no requirement to reg-
November 2007
ister as a sex offender and no restrictions on
residence. Although this statute had been previously held by the court not to apply retroactively, the majority felt that the statute was indicative of a societal shift in opinion about the
seriousness of consensual oral sex between
teenagers. The dissent found this result inconsistent with the prior ruling against retroactive
application of the 2006 law.
New York — In a controversial application of
New York’s “hate crime” law, juries convicted
co-defendants Anthony Fortunato and John Fox
of manslaughter as a hate crime for their roles
in the death of Michael Sandy, a gay man who
was located through a gay chat room and lured
to a beach known as a gay cruising place in
Sheepshead Bay, where an attempted robbery
and assault resulted in Sandy running into traffic to escape his assailants. Sandy was struck
by a car and died from his injuries. Another defendant pled guilty to attempted robbery as a
hate crime, and a fourth has yet to be tried. The
defendants argued against hate crime enhancement of their offenses on grounds that they were
not homophobic, having selected their victim
based on their belief that a gay man would be an
easier victim but not out of bias or hatred. After
the court rejected that defense, pointing out
that the defendants conceded having selected
Mr. Sandy as their victim because of his sexual
orientation, literally within the language of the
statute, Mr. Fortunato complicated things by
contending that he was, in fact, a closeted gay
man who had hoped to use this incident to come
out to his friends. Testimony of other men who
had engaged in sex with Mr. Fortunato persuaded the jury that he was possibly gay, and after the verdict was announced there were reports that the jury had argued intensely about
the appropriateness of applying the hate crimes
statute in this case, but ultimately the argument
that the facts fell within the judge’s charge won
out.
Wisconsin — In the course of affirming Elton
A. Kelly’s conviction for kidnapping, attempted armed robbery, and illegal possession
of cocaine, marijuana and a firearm, the Court
of Appeals of Wisconsin upheld a decision by
Manitowoc County Circuit Judge Patrick L.
Willis to exclude evidence that two witnesses in
the case (one of whom was a victim) were gay
men engaged in a same-sex partnership. State
of Wisconsin v. Kelly, Defendant Kelly sought to
introduce the evidence in support of a claim
that one of the men would be biased to support
the other’s testimony because of that relationship. On appeal, Kelly’s attorney argued, “It is
the common human experience that the emotional ties that accompany a physical human
relationship are much stronger an more likely
to lead to biased perceptions and testimony
than mere friendship.” Continued the per curiam opinion, “The trial court ruled that Kelly
could only inquire if the two are friends and
Lesbian/Gay Law Notes
how long they had been friends and roommates.
It did not allow Kelly to establish that they were
romantically involved because it did not add
significantly to proof of bias and it was potentially prejudicial… The trial court found that
‘[t]here is a substantial portion of the populace
which still strongly disapproves of homosexual
relationships.’ With that finding in place and
not challenged by Kelly, the trial court’s determination that the danger of unfair prejudice
outweighed the minimal probative value was
reasonable.” In addition, the court “the jury
learned the nature of the relationship in any
event.” A.S.L.
Legislative Notes
Federal — As noted in the October 2007 issue
of Law Notes, late in September as final committee hearings and a potential floor vote
seemed imminent for the Employment NonDiscrimination Act, H.R. 2015 (ENDA), some
of the sponsors, most notably lead sponsor Rep.
Barney Frank (D-Mass.), became convinced
that the inclusion of “gender identity” in the list
of prohibited grounds for discrimination would
cause the bill to be defeated in the full House.
On September 28, Rep. Frank introduced two
substitute bills in place of the original ENDA.
One, H.R. 3685, only covers sexual orientation
discrimination, and was expected to move
quickly through final committee action to a vote
on the floor of the House. The other, H.R. 3686,
would amend ENDA to add back “gender identity.” This bill was not expected to be taken up
any time soon, and would move at a separate,
slower pace than ENDA. A large coalition of
LGBT advocacy groups quickly organized to
express opposition to this “splitting” of the bill,
leaving LGBT-affirmative legislators scrambling to take sides. House Speaker Nancy Pelosi issued a statement indicating that her preference would be to go forward with the original
bill, but that “the new ENDA legislation proposed by Congressman Frank has the best prospects for success on the House floor.” BNA
Daily Labor Report, No. 189, Oct. 1, 2007. On
October 18, the House Education and Labor
Committee voted 27–21 to approve the sexual
orientation-only bill, but its journey to the
House floor was delayed by further lobbying by
LGBT rights groups, who opposed bringing the
measure to the House floor without coverage of
gender identity as part of the package. U.S.
Rep. Tammy Baldwin proposed a floor amendment to add gender identity back into the bill,
and it rapidly picked up support among some
House members who are the most consistent
proponents of gay rights legislation. However,
White House staff emphasized the purely symbolic nature of any House vote by issuing a
statement that Bush would veto the measure
due to concerns about its constitutionality, and
some freshmen Democrats, panicked at the
Lesbian/Gay Law Notes
idea of being recorded in an up-or-down vote on
transgender rights, lobbied to prevent the Baldwin amendment from being brought to a vote in
the House.
California — Governor Arnold Schwarzenegger, true to the statements that had been
circulating since the legislature gave final approval to a second measure to make full marriage rights available to same-sex partners, the
Religious Freedom and Civil Marriage Protection Act, AB 43, announced that he would not
sign the measure, for the same reasons he had
cited in 2005 when he vetoed an earlier version
of the bill. Schwarzenegger insisted that the initiative vote in 2000 that amended the state’s
marriage law to forbid recognition of same-sex
marriages had settled the matter unless either
the Supreme Court (in a pending marriage
case) or the people themselves through a new
initiative sought to change it. The consolidated
marriage litigation pending before the state’s
Supreme Court will probably be decided sometime next year after oral arguments have been
held. It struck some observers as ironic that the
governor would allow a seven-year-old initiative vote to trump the clear majority views of the
legislature reflecting the evolving public attitudes since that vote. ••• However, the governor signed into law numerous other gay-related
measures passed by this session of the legislature, including the Student Civil Rights Act,
SB777, the Safe Place to Learn Act, AB394, the
Juvenile Justice Safety and Protection Act,
SB518, the Civil Rights Act of 2007, AB14, the
Fair and Equal Taxation for Surviving Partners
Act, SB559, the Name Equality Act, AB102,
and the Domestic Partners Joint Income Tax
Filing Implementation Bill, SB105. Full explanations of these enactments can be found on the
website of Equality California, the state’s
LGBT lobbying organization. ••• SB777,
which amends non-discrimination provisions
governing public schools to add sexual orientation and gender identity, stirred up the ire of
some conservative groups by banning teaching
that “promotes a discriminatory bias” on any of
the specified grounds. Opponents, arguing that
the law will mandate promoting gay lifestyles in
the school, have filed a proposed initiative to
repeal it by public vote. In order to get the initiative on the June 2008 ballot, they need to
collect 433,971 valid signatures in 90 days.
Long Beach Press-Telegram, Oct. 21.
Florida — Wilton Manors — City commissioners in Wilton Manors voted unanimously on
Oct. 23 to add gender identity and expression to
the list of prohibited grounds for discrimination
under the city’s non-discrimination policy. The
policy extends to municipal employees only.
South Florida Sun-Sentinel, Oct. 24.
Oregon — Supporters of an initiative to force
a vote on Oregon’s recently-enacted Domestic
Partnership Law fell short of the required signatures to place their proposal on the ballot, the
November 2007
Oregon Secretary of State’s office announced
on October 8. Supporters of the initiative vowed
to try again, seeking signatures in support of a
referendum to repeal the law, which would require them to collect 82,000 valid voter signatures by next July 3. Equality Oregon Press Advisory, Oct. 8. A few days later, the same office
announced that proponents of a repeal initiative aimed at the recently enacted gay civil
rights law had also fallen short of the necessary
signatures to put the measure on the ballot.
Oregonian, Oct. 13.
Pennsylvania — The Board of Governor’s of
Pennsylvania’s higher education system voted
to extend health-care benefits to same-sex partners of faculty members. Among board members voting for the proposal were Governor Ed
Rendell. The vote was reported on the website
of the anti-gay group Focus on the Family, which
pointed out that taxpayers and students
(through tuition payments) would foot the bill
for these benefits, which might result in raising
tuition. However, if the number of those who
sign up for benefits is similar to the experience
in other state university systems, the impact on
tuition should be negligible.
Law & Society Notes
Asylum Claims — A study by the Transactional
Records Access Clearing House (TRAC) at
Syracuse University, reported by the New York
Law Journal on Oct. 4, found wide disparities
between Immigration Judges in the rates of approving asylum claims. Studying the records of
200 judges, the report found rates of approval in
the New York office varying from a low of 9.5%
to a high of 91.6%, and slightly less disparate
results in Miami, Los Angeles, and San Francisco, the other cities studied. “The unusual
persistence of these disparities, no matter how
the asylum cases are examined, indicates that
the identity of the judge who handles a particular matter often is more important than the underlying facts,” said the report, characterizing
the findings as “disturbing.”
Florida — Alex Sink, Florida’s Chief Financial Officer as head of the Department of Financial Services, has revised the agency’s employee handbook to allow employees to use sick
leave to care for their domestic partners. The
policy change came in response to a request
from the Palm Beach County Human Rights
Council, which asked Sink to consider granting
DFS employees with domestic partners the
same family benefits as married employees.
Apart from DFS, the only public employers in
Florida that provide any partnership benefits
are various higher education institutions. The
Council, which issued a news release announcing Sink’s action, said it would next target other
state government department heads with similar requests.
211
Maryland — The highest judicial body of the
United Methodist Church has ruled that a
transgender man whose pastorate at a Methodist Church in Charles Village had been challenged could remain the pastor. Although the
denomination’s Book of Discipline prohibits
non-celibate gay men or lesbians from serving
as clergy, it has nothing to say about transgender people. The ruling, reported in the Baltimore Sun on October 31, said that “a clergyman’s good standing cannot be terminated
without administrative or judicial action having
occurred and all fair process being accorded.”
The Judicial Council, without explicitly addressing the status of transgender people within
the church, said that the “BaltimoreWashington Conference is operating within the
laws of the church.” By its ruling, the Council
upheld a decision taken last spring by Bishop
John R. Schol to reappoint the Rev. Drew Phoenix, previously known as the Rev. Ann Gordon,
to St. John’s United Methodist Church.
New York — N.Y. State Assembly Speaker
Sheldon Silver named Virginia Apuzzo as his final designee to sit on the New York State Commission on Public Integrity, a new agency that
will become the main arbiter of public employee ethics in the state. Apuzzo, openly lesbian, is a past Executive Director of the National Gay & Lesbian Task Force, a former
president of the New York State Civil Service
Commission under Governor Mario Cuomo,
and served as a management executive in the
White House during the Clinton Administration. N.Y. Law Journal, Oct. 12, 2007.
Pennsylvania — Philadelphia — City officials have determined that a sweetheart rental
deal with the Boy Scouts for a building in Fairmount Park must end because of the organization’s discriminatory membership policies, the
Associated Press reported on Oct. 20. The Cradle of Liberty Council of the Scouts currently
pays $1 a year symbolic rent, but in future will
have to pay $200,000 when the lease comes up
for renewal. Scouting officials have questioned
the appraisals that led to the calculation of this
market rent for the building. The Council
sought to avoid this result by adopting a nondiscrimination policy in accord with city law in
2003, but the national BSA ordered them to rescind the policy or lose their Scout charter.
Tennessee — Attorney General Robert Cooper issued Opinion No. 07–140 on October 10,
asserting that it is legal to permit an adoption by
a same-sex couple in Tennessee. Although the
state’s adoption statute does not specifically
authorize such adoptions, neither does it specifically prohibit them, and Cooper found that
the statutory language could be interpreted to
allow them, since unmarried individuals are allowed to adopt children, and a provision of the
state’s interpretive statute provides that singular nouns can be construed to include the plural
“unless the contrary intent is manifest.” Coo-
212
per noted that a similar interpretation had been
embraced in courts in several jurisdictions that
had similarly worded adoption statutes. The
opinion was issued in response to a request for
advice from Circuit Court Judge Clara Byrd of
the 15th Judicial District Circuit Court in Lebanon, Tennessee, who presumably is faced with
such a petition. There have been legislative
proposals in Tennessee to ban such adoptions,
but they have been voted down in committee.
Gay Worms? — Further reports from the front
lines of science on the genetic/biological bases
of sexual orientation: Current Biology reported
on-line on Oct. 25 that scientists at the University of Utah had managed to convert certain
worms from heterosexuality to homosexuality
by genetic manipulation. The idea of worms
copulating under a microscope strikes us as intensely non-erotic, but evidently the scientists
were fascinated to discover that sexual orientation may be hard-wired into the tiny worm
brains, and that the wiring could be affected by
genetic manipulation. They hesitated to speculate about the significance of this finding to further understanding of human sexuality, but
we’re waiting for the major motion picture sure
to be generated based on this discovery. A.S.L.
International Notes
Austria — Justice Minister Maria Berger, a Social Democrat, presented a draft for a registered
partnership law for same-sex couples to a working group meeting with her party’s coalition
partner, the conservative People’s Party. The
proposal would accord many but not all rights of
marriage to registered couples, and would provide a procedure for dissolution of a partnership, either amicably or through a contested
court proceeding. This measure would not affect adoption rights, and would only apply to
rights within the province of the Justice Ministry. Berger noted that matters falling under the
Social or Finance Ministries would have to be
worked out separately. Austria Presse Agentur
[English News Service], Oct. 24.
Cambodia — Speaking at a school graduation ceremony on October 30, Prime Minister
Hun Sen of Cambodia announced that he and
his wife were instituting proceedings to void the
adoption of one of his daughters, who it turns
out to his “disappointment” is a lesbian who is
now living with another woman. The prime
minister seeks to disown the daughter legally to
block any inheritance claim she might have
against his family. The daughter was adopted as
an infant in the 1980s. Hun Sen said that he is
not discriminating against homosexuals, and
appealed to society to show them respect. Evidently, however, he just does not want to have
one in his family. Chicago Tribune, Oct. 31.
Canada — In an ill-timed attempt to dredge
up a settled issue, Prime Minister Stephen
Harper asked the Parliament to consider a reso-
November 2007
lution to reopen the same-sex marriage question on October 11. The motion was defeated on
a free vote, 175–123, thus putting to rest the
contention that the marriage bill originally
passed only because the governing Liberal
Party had imposed party discipline on cabinet
ministers to vote for same-sex marriage in redeeming a campaign pledge. After the vote,
Harper said “I don’t see reopening this question. It’s not our plan.”
China — China Post reported on Oct. 5 that
effective in May of this year, employers were
forbidden to discriminate against job applicants on the basis of sexual orientation, as a result of the addition of twelve “attributes” or forbidden grounds for discrimination to the rules
contained in the Employment Service Law,
which generally bans workplace discrimination
on the basis of grounds listed therein.
Colombia — Reuters reported on October 6
that the Constitutional Court held that gay people may include their partners in their health
insurance plans, pursuant to a law that had initially passed the legislature but then appeared
to be rescinded when a group of senators
“changed their minds.” The proponents of the
bill then appealed to the court, which held that
it had been validly enacted.
Ireland — On Oct. 19, Justice Liam
McKechnie of the High Court found that events
in Europe have caused him to reconsider his
ruling from 2002 on the application of Dr. Lydia
Foy, born Donal Mark Foy, for a declaration that
the failure of the government to recognize her
female gender violates her right to respect for
private life under Art. 8 of the European Convention on Human Rights, to which Ireland is a
party. Although Foy was able to get a legal name
change, her attempts to obtain legal recognition
of her gender have been opposed by her ex-wife
and children, according to a report in the Oct.
20 issue of Irish Times. McKechnie’s prior decision, denying relief, came shortly before the
European Court of Human Rights had ruled on
the application of Christine Goodwin, a British
transsexual, holding that the U.K. was obliged
by the Convention to undertake legislative reform. That ruling had resulted in enactment of
the Gender Recognition Act in Great Britain,
providing a mechanism for legal sex change.
Justice McKechnie suggested that Ireland
should consider a similar course to comply with
its obligations. Under his ruling, the Taoiseach
has 21 days within which to go before the Dail
to outline a proposal for bringing Ireland into
compliance with Art. 8. Dr. Foy, a dentist, may
also seek compensation for the state’s failure to
respect her rights.
Lithuania — The Mirror (UK) reported on
Oct. 27 that a meeting of more than 200 LGBT
rights activists in Vilnia had to be ended prematurely because somebody set off a smoke
bomb nearby. The mayor’s office said the meeting was cancelled due to “safety concerns.”
Lesbian/Gay Law Notes
Nepal — A group of gay rights advocates
filed a petition in the nation’s Supreme Court,
demanding that sexual orientation and gender
identity discrimination be addressed as part of
the process of writing a new constitution for the
country that is now under way. The court heard
arguments on the petition on October 6. The
court expressed interest in being informed
about international human rights precedents
before making a decision, and invited additional submissions from the petitioners, according to a report by activist Sunil Pant distributed on-line.
New Zealand — New Zealand activists celebrated the 1,000th civil union formed under the
Civil Union Act, which became effective on
April 26, 2005. About 20% of the civil unions
have involved different sex couples. Of the remaining 80%, a majority are of lesbian couples.
The New Zealand version of a civil union is
substantially parallel to marriage, which remains available only for different-sex couples.
Scoop Independent News, Oct. 1.
Philippines — The Supreme Court ruled on
Oct. 22 that a transsexual was not entitled to a
name change and change of sex on registration
records because allowing same presented a
question of public policy within the exclusive
province of the legislature, not the courts. A Regional Trial Court had granted the relief requested by the petitioner, Rommel Jacinto
Dantes Silvio, who sought to change her first
name to Mely to be registered as female in the
Office of the Civil Registrar, holding that allowing the change was consonant with basic principles of justice and equity. The high court decision, authored by Associate Justice Renato
Corona, acknowledged the difficulties faced by
transsexuals, but pointed out that “in our system of government, it is for the legislature,
should it choose to do so, to determine what
guidelines should govern the recognition of the
effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are
statute-based.” Manila Times, Oct. 23.
Russia — When Moscow Mayor Yuri
Luzhkov told a public meeting that gay rights
marches were “Satanic,” he provoked the ire of
organizers of Moscow’s gay rights march, who
filed a lawsuit accusing him of defaming them,
but the trial court ruled that the plaintiffs had
no standing because the mayor had not specifically named them in his remarks, and an appeals court upheld that ruling, reported
365Gay.com on October 11. The two organizers
who filed the suit, Nikolai Alekseyev and Nikolai Baev, said they would attempt to bring the
matter to the European Court of Human Rights.
Singapore — A parliamentary debate on October 24 resulted in failure to repeal Section
377A of the criminal code, which penalizes homosexual sex. Speaking during the debate,
Prime Minister Lee Hsien Loong stated that
Lesbian/Gay Law Notes
Singapore had to maintain a balance between upholding a stable society with traditional, heterosexual family values, and giving
gays space to live their lives. He warned that if
gay groups pushed this issue too hard, there
would be a “push-back” from conservative
forces. Gay rights leaders indicated that they
would not push the matter further for now, but
would work on educating society to greater acceptance before trying again to get the section
repealed. Straits Times, Singapore, Oct. 25.
A.S.L.
Professional Notes
We note the passing of Arthur Cyrus Warner, a
founder of the modern gay legal rights movement, who died in Princeton, New Jersey, on
July 22, 2007, at age 89. Warner graduated
from Harvard Law School in 1946, but was not
able to gain admission to the bar because of his
discharge from the Navy during World War II
November 2007
for homosexuality. He returned to Harvard for a
PhD in history and became a history professor.
Warner was active in early gay liberation
groups in New York City and became chair of
the legal committee of the New York Mattachine Society (under the pseudonym Austin
Wade) during the pre-Stonewall period. Later
he started the National Committee for Sexual
Civil Liberties, which worked behind the
scenes on court cases challenging the constitutionality of sodomy laws, and achieved success
in several state court decisions. He took early
retirement from teaching to pursue his own
scholarly interests, and provided intellectual
nourishment to several generations of gay legal
scholars and activists. Memorial tributes to him
have been written by John Lauritsen (in the
Harvard GLBT Alumni Newsletter) and Wayne
Dynes.
The Washington Blade OnLine (Oct. 30) reported that Ohio will be getting its first openly
LGBT judge with Govenor Ted Strickland’s ap-
213
pointment of former Dayton City Commissioner
Mary Wiseman to the Montgomery County
Court of Common Pleas. Equality Ohio, the
state gay rights lobbying group, says Wiseman
will be the first “out” judge in the state’s history. Gov. Strickland stated that he made the appointment because of Wiseman’s qualifications, not because of her sexual orientation.
Lambda Legal announced the hiring of two
new staff attorneys in an October 19 news release. Flor Bermudez has joined the staff as the
new Youth in Out-of-Home Care Attorney. She
is a Rutgers Law School graduate, clerked for a
New Jersey Supreme Court justice, and has
worked in public interest law since her admission to the bar. Tom Ude, formerly corporation
counsel for the city of New Haven, Connecticut,
joins Lambda as a Senior Staff Attorney after
more than seventeen years of trial and appellate
experience at all levels of the Connecticut
courts. He is a graduate of the University of
Michigan Law School and clerked for a U.S.
district judge in Connecticut before launching
his practice career. A.S.L.
AIDS & RELATED LEGAL NOTES
Florida Supreme Court Waives Impact Rule in
HIV Confidentiality Suit
In a per curiam opinion representing the views
of a bare majority of the court, the Florida Supreme Court ruled in Florida Department of
Corrections v. Abril, 2007 WL 3024020 (Oct.
18, 2007), that the state’s “impact rule” in negligence actions seeking only damages for emotional distress and mental anguish does not apply to a private action for the unauthorized
disclosure of an HIV test result.
Lisa M. Abril, who worked as a licensed
practical nurse for the Hendry County Correctional Institution, became concerned about potential exposure to HIV after providing mouthto-mouth resuscitation to an inmate who was infected with hepatitis C but whose HIV status
was unknown. The institution’s workers compensation carrier declined to authorize testing
because it determined that this activity did not
present a risk of HIV transmission, but Ms. Abril prevailed on the institution’s chief medical
officer to have her blood sample sent to Continental Laboratory, which was under contract
with the state to provide HIV testing for inmates. Continental’s analysis produced an erroneous HIV+ result, which they faxed to unsecured fax machines at the Department of
Corrections. After she was informed of the test
result, she sought confirmatory testing, this
time with the worker compensation carrier’s
authoriiation, and tested negartive. Abril contended that this breach of her medical confidentiality resulted in severe emotional distress,
and sued in tort.
Although Abril did not expressly rely on the
state’s HIV confidentiality statute as a determinant of the laboratory’s duty of care, its relevance was drawn into consideration. The trial
judge dismissed the action, noting that there
was no “impact” as required by Florida precedents for a negligence action seeking solely
emotional distress damages. The judge’s ruling
seemed consistent with the Florida Supreme
Court’s previous decision in R.J. v. Humana of
Florida, Inc., 652 So.2d 360 (Fla. 1995), which
refused to allow a negligence action for emotional distress against a health care provider
that had communicated an erroneous HIV+
diagnosis to the plaintiff. The 2nd District
Court of Appeal reversed, and certified to the
Supreme Court the following question: “Is
Florida’s impact rule applicable in a case in
which it is alleged that the infliction of emotional injuries has resulted from a clinical laboratory’s breach of a duty of confidentiality under section 381.004(3)(f), Florida Statutes
(Supp. 1996), with respect to HIV test information?” As noted above, Abril had not premised
the laboratory’s duty on this statute in her presentation of the case.
Responding in the negative to this question,
the per curiam majority found that the confidentiality statute provided the basis for imposing a duty on the laboratory for purposes of tort
law, even though the statute specified methods
of enforcement that did not include a private
right of action for damages. More controversially, the court found that the “impact rule”
should not apply to this case, drawing upon its
prior ruling in Gracey v. Eaker, 837 So.2d 348
(Fla. 2002), in which the court authorized the
award of emotional distress damages for a psychiatrist’s breach of patient confidentiality in
violation of a statutory confidentiality requirement. The court decided that the analogy to
Gracey was stronger than the analogy to Humana.
The court wrote that the district court of appeal “noted that the statutes in Gracey and in
the instant case had the same purpose of protecting individuals from disclosure of highly
personal, sensitive information and in both
situations, the only possible injury flowing from
the violation of the respective statutes was emotional distress. While the court noted that unlike Gracey, no technical fiduciary relationship
existed between the laboratory and the plaintiffs, the duty of confidentiality owed to the
plaintiffs was ‘unquestioned.’” Agreeing with
the district court’s reasoning, the Supreme
Court continued, “Because the only reasonable
damages arising from a breach of section
381.004(3)(f) are emotional distress, and because this emotional damage would be akin to
that suffered by victims of defamation or invasion of privacy, we conclude they should not be
barred by the impact rule.”
The per curiam opinion won the votes of
Chief Justice Lewis and Justices Anstead, Pariente and Quince. Justice Pariente also submitted a brief concurring opinion, urging the court
to abandon the impact rule entirely, as a relic of
the days when courts were suspicious about
emotional distress claims on principle. Pariente
found that the court’s practice of making ad hoc
exceptions to the rule had proven unduly confusing to the lower courts.
214
Justice Cantero, concurring in part and dissenting in part, agreed that the confidentiality
statute could be the basis for finding a duty on
the part of the lab, nonetheless believed that the
impact rule should be applied in this case,
criticizing the court’s process of recognizing
fact-specific exceptions to the rule. Cantero
found Gracey to be easily distinguishable,
based on the fiduciary duty between a psychiatrist and a patient. Cantero also found unconvincing the reference to emotional distress
claims founded on defamation or invasion of
privacy, pointing out that those are intentional
torts and the impact rule was part of the law of
negligence.
Justice Wells dissented, finding the case to
be controlled by Humana, which also involved
“negligence in respect to an HIV test.” Justice
Bell, also dissenting, argued that because Abril
had not premised her case on a violation of the
confidentiality statute, the court should not
have accepted the certified question in the first
place, and stated a concern that the court had
created a broad exception under which any
breach of confidentiality in violation of a statute
could be held sufficient to ground a negligence
action for emotional distress damages. Bell
wrote at length about the failure to the court to
acknowledge the particular legislative history
of the HIV confidentiality statute, which the
judge asserted was inspired by public health
concerns arising from lack of HIV testing rather
than from a primary concern to protect the privacy of individuals who had submitted to testing. The remedial scheme of the statute itself
showed that the legislature, which knew how to
create a private right of action, had not intended
to do so here, preferring to relying on regulatory
remedies against offending labs and health
care institutions.
The certified question having been answered, the district court of appeals will remand the case to the trial court for proof of the
allegations in the complaint. A.S.L.
Georgia Supreme Court Applies Time Bar on
Liability for Failure to Diagnose HIV Infection
In a heartbreaking 4–3 ruling, the Georgia Supreme Court held in Kaminer v. Canas, 2007
WL 3129948 (Oct. 29, 2007), that a young man
who was infected with HIV in infancy through
blood transfusion may not sue his doctors and
hospital for malpractice for failing to diagnose
his HIV infection until 2001, under a state five
year repose statute.
According to the opinion for the majority of
the court by Justice Carley, Derek Canas was
born in 1984 with a rare heart defect that required surgery at Medical College of Georgia
Hospital when he was just two months old. The
two defendant doctors became Canas’s pediatrict cardiologist and general pediatric physician a few years later. Although Canas exhib-
November 2007
ited some symptoms consistent with pediatric
AIDS, neither doctor diagnosed the condition,
attributing his symptoms to his heart condition
and not even performing HIV testing. It was not
until April 2001, when Canas was in his teens,
that he first received HIV testing and discovered he was position. He was diagnosed with
AIDS as a result of his symptoms, and submitted to treatment, to which he has “responded
favorably,” according to the court. It is not disputed that he picked up his HIV infection from
transfusions he received at defendant hospital
in 1984, which was prior to the licensing of the
HIV antibody test that began to be used for
screening donated blood in the spring of 1985.
Canas filed suit against his doctors, and
added the hospital in an amended complaint,
both within the two year statute of limitations
based on his allegations that the doctors had
continued to misdiagnose his symptoms as attributable to his heart condition right up to the
time he tested positive for HIV. The trial court
granted summary judgment to defendants for
any claims dating back prior to five years before
the complaint was filed, but denied summary
judgment “on all medical malpractice claims
where the injury occurred within two years of
the date this action was filed and the negligent
or wrongful act or omission that caused the injury occurred within five years of the date this
action was filed.”
The court of appeals affirmed, stating that
“where a patient continues to be treated by the
doctor and presents the doctor with a significant change in manifestations of his condition
additional symptoms or significantly increased
symptoms such that the standard of care would
require the doctor to reevaluate the first diagnosis, it can be a new negligent act or omission to
fail to reconsider the original diagnosis and
take appropriate action.” Finding that Canas
had presented such a scenario, the court of appeals felt that the clock should start running
again, making the complaint timely with respect to the more recent failure to diagnose
prior to the positive test.
In reversing, the majority took the position
that the court of appeals ruling undermined the
legislative policy embodied in the statute of repose. Quoting a prior decision to the effect that
“the true test to determine when the cause of
action accrued is to ascertain the time when the
plaintiff could first have maintained his action
to a successful result,” the court said, “With regard to Canas’ claim for the misdiagnosis of his
AIDS condition, he was injured and, consequently, the statute of limitations began to run,
on the date that Dr. Kaminer and Dr. Al-Jabi
first failed to diagnose it.” The fact that his
symptoms worsened does not change the timeline, according to the court, because the subsequent symptoms “were directly related to the
initial symptoms and misdiagnosis.
Lesbian/Gay Law Notes
The court found that although one could conceptual each new instance of the doctors failing
to accurately diagnose Canas’ problem as “new
and separate instances of professional negligence,” nonetheless the Georgia statute
changes the analysis by proviing that the claim
does not being to run on the occurrence of negligence, but rather on the date of the patient’s
injury, for purposes of repose. “Even assuming
that, following the initial misdiagnoses, Dr. Kaminer and Dr. Al-Jabi were serially negligent in
failing to diagnose Canas properly, he has no viable claim for their breach of the applicable
standard of medical care unless he suffered an
injury as a result.” The court characterized the
newer misdiagnoses as a failure to “mitigate
their own damages” rather than “an act inflicting new harm,” as the harm had been done
when the infection was initially misdiagnosed.
Arguing that this cannot possibly be the
meaning of the law, Presiding Justice Hunstein,
with the concurrence of Chief Justice Sears and
Justice Thompson, dissented, stating, “I do not
agree with the majority’s holding that, as a matter of law, there can be only a single, indivisible
injury flowing from serial misdiagnoses of the
same condition.” Hunstein argued that “the
majority opinion overlooks the possibility that
there may be a separate injury after a later misdiagnosis, in the form of the continued pain and
expense caused by the untreated condition
which, but for the later misdiagnosis, would not
have occurred. This possible factual scenario
renders inappropriate the majority’s ruling as a
matter of law.”
Hunstein disputed the majority’s argument
that its ruling was necessary to soter “stability
and certainty” in the law. Hunstein argued that
“curtailing the rights of the injured in the name
of stability in the law is misguided where, as
here, neither the letter nor the intent of the statute in question requires such a harsh result.”
Hunstein suggested that where new or more severe symptoms require a reconsideration of an
earlier diagnosis, failure to competently make a
new diagnosis should give rise to a malpractice
claim running from the date of the subsequent
misdiagnosis, as held by the court of appeals.
A.S.L.
State Prisoner Whose HIV Infection Went
Untreated for Six Months Loses Deliberate
Indifference Claim
On September 26, 2007, Plaintiff Duane B.
Harris, an HIV+ inmate confined at the Stiles
Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, lost his
42 U.S.C. section 1983 claims against prison
officials and medical personnel. Harris v.
Doughty, 2007 WL 2818259 (E. D. Texas). U.S.
District Judge Marcia A. Crone adopted Magistrate Judge Earl S. Hines’ report, which recommended a grant of summary judgment to the de-
Lesbian/Gay Law Notes
fendants, and overruled Harris’ objection that
the defendants failed to provide complete copies of his extensive medical and grievance records. It is unclear from the decision what records Harris specifically claimed the defendants
failed to disclose.
Harris alleged that “he was transferred to the
Stiles Unit on December 19, 2003, so that he
could receive a new HIV medication called Fuzeon.” He had become resistant to his prior antiviral regimen, as indicated by his decreasing
T cell count. However, he did not receive Fuzeon until June 2004. In fact, it is undisputed
that Harris’ HIV infection went untreated during that period of time.
Specifically, Harris alleged that “[o]n December 31, 2003, [he] complained that he was
not receiving the Fuzeon injections” and believed his previous antiviral regimen was discontinued as a punishment. He shared his suspicions with medical personnel, who “blamed a
physician for the delay in authorizing the Fuzeon medication.”
In addition to his HIV infection, Harris had
many other health-related complaints: herpes,
diabetes, sores in his mouth, problems with his
dentures, eye problems, stomach cramping,
chronic back and shoulder pain, and a chronic
rash in his groin area. Harris asserted numerous allegations that medical personnel gave
him incorrect and/or conflicting information regarding his treatment for all of these conditions.
Harris also claimed that the defendants failed
to provide other medications which were prescribed for his many ailments, that medications
he received were ineffective and that he did not
receive certain medical supplies to which he
was otherwise entitled.
After he began receiving Fuzeon in June
2004, he claimed he was denied the medication
on multiple occasions. For example, Harris “refused [a Fuzeon] injection because the nurse
was using the wrong needle. Another time,
[Harris] missed his injection time because he
had gone to eat breakfast.”
”On September 10, 2004, [Harris] was told
that the unit medical department was out of Fuzeon, and that [his] personal supply of Fuzeon
had been gone since September 2.” The medication was supposed to arrive on September 11,
2005, but as of September 14, 2004, the date
Harris filed this lawsuit, the medication had
still not arrived.
The affidavit of Dr. Natascha Dumas was provided in an amicus curiae submission by the
Texas Attorney General. Dr. Dumas explained
that Fuzeon was recommended for Harris by an
Infections Disease specialist at the University
of Texas Medical Branch. (It is unclear from the
decision what UTMB’s connection with inmate
treatment is.) However, at the time in question,
Fuzeon was an experimental drug which “was
not widely used in the free world and not yet
used in correctional care.” Dr. Dumas stated
November 2007
that Fuzeon needed to be approved by the Pharmacy and Therapeutics Committee before Harris could receive it, and that this process “may
take anywhere from a month to several
months.”
Dr. Dumas concluded, based on Harris’
medical records, that Harris could not be diabetic because his blood glucose level never
rose above the threshold level of mid–120s and
that Harris received adequate medical supplies
for his condition. However, she noted that certain aspects of Harris’ physical condition dental problems and oral lesions were attributable
to his HIV infection. Dr. Dumas otherwise admitted many of plaintiff’s factual allegations.
Finding that Harris could not have possibly
exhausted his administrative remedies as required by 42 U.S.C. section 1997e(a) with respect to those of his claims that arose after this
lawsuit was filed, Magistrate Judge Hines ruled
that these claims should be dismissed. Hines
then focused on Harris’ claim “ that his Fuzeon
treatment was delayed for six months while the
medical staff waited for the Pharmacy and
Therapeutics Committee to approve the medication and for it to be shipped to the Stiles
Unit.” Hines ruled that this claim must fail because Harris failed to “demonstrate that any of
the defendants were deliberately indifferent to
his need for the Fuzeon treatment because none
of them were involved in the approval or procurement process.”
As for leaving Harris without any treatment
for his HIV, Judge Hines saw no 8th Amendment problem with this. Rather, Hines stated
that the prior antiviral regimen was discontinued because plaintiff had become resistant to
that treatment, and never addressed the issue of
whether leaving Harris’s HIV infection untreated for six months could possibly constitute
deliberate indifference. Moreover, the issue of
whether another HIV treatment was even available to Harris while awaiting the approval of
Fuzeon was never addressed by the magistrate.
As for Harris’ remaining factual allegations,
Hines summarily dispatched those in one paragraph by reducing these claims to “a number of
disagreements with medical staff over diagnoses and treatment of other conditions.” Hines
effectively ruled that six months of no treatment
for HIV, without any evidence that the defendants monitored Harris’ T-cell count or viremia
during that time, does not raise a genuine issue
of fact from which a reasonable jury could conclude that any one of the twenty-two defendants
were deliberately indifferent with respect to
Harris’ medical needs.
Unsurprisingly, Judge Hines also concluded
without any written analysis that there was no
evidence that any of Harris’ factual allegations
“resulted in any harm” to him. Without any evidence to support the assertion, Hines implicitly
concluded that all those “other conditions”
which Harris suffered from could not possibly
215
be related to six months of untreated HIV infection, even though Dr. Dumas stated otherwise.
Eric Wursthorn
HIV+ Postal Worker Suffering Dementia Not
Excused from Timely Filing Requirements for
Discrimination Claim
An HIV+ postal worker suffering from dementia was not entitled to equitable tolling of the
time to file his internal complaint, ruled U.S.
District Judge Claire V. Egan in White v. Potter,
2007 WL 3028421 (N.D. Oklahoma, Oct. 15,
2007).
White had been employed by the Postal
Service for twenty-seven years, and has been
HIV+ since at least 1986. He alleged that he
disclosed his HIV status for the first time in
April 2006, and was discharged soon thereafter
“under false allegations of a safety violation.”
According to the Postal Service, White’s supervisor took him off duty after he walked in front
of a moving forklift and was almost hit. A union
steward had informed the supervisor that White
was suffering from “some type of dementia,”
and the supervisor required White to submit to
a fitness-for-duty examination. The doctor decided White was unable to return to work for an
“indefinite” period. The physician’s report
mentioned HIV and stated that White exhibited
weakness and memory loss due to anti-viral
medications, as a result of which he was relieved of duty. White contended he was capable
of performing his job safely.
White contacted an EEO counselor, who was
assisting him with his discrimination claim, but
he filed his discrimination claim too long after
his informal complaint had not been resolved,
missing the deadline under the Postal Service’s
internal grievance procedure. His complaint
was dismissed by the Postal Service’s EEO
Compliance and Appeals Office as untimely.
The Postal Service responded to White’s
lawsuit with a motion to dismiss, premised on
the untimeliness of his internal grievance filing. Judge Egan noted White’s argument that
the untimeliness of his complaint related to
memory loss attributable to his HIV medication. “Plaintiff’s argument is perplexing,” Egan
commented. “He asserts that USPS speciously
used the forklift incident as an excuse for his
fitness-for-duty examination and subsequent
discharge. In essence, he claims that his HIV
status did not make him incapable of performing his duties without endangering himself or
coworkers. Yet, at the same time, he maintains
that his dementia was so severe that he could
not understand the Notice, could not remember
to file it within 15 days of receipt, and presumably, could not obtain legal counsel. Notwithstanding the Court’s sympathy for plaintiff’s
condition, his argument is inherently inconsistent.”
216
Egan concluded, in effect, that White could
not have it both ways. Either his memory was
too bad to hold him to the filing deadline, or it
was too bad for him to be qualified to do his job
safely. Giving White the benefit of the doubt on
his work capability, Egan concluded that he
had not proved an “exceptional circumstance”
to justify equitable tolling of the time limits, and
dismissed the complaint. A.S.L.
N.J. Appellate Division Find Anticipatory Breach of
Viatical Agreement
A per curiam ruling by a N.J. Appellate Division panel upheld the ruling by a Camden
County Superior Court judge that a viatical
company had anticipatorily breached its contract with an HIV+ woman when it notified her
that it would no longer pay the annual premium
on her health insurance policy. However, the
case was remanded to Superior Court for a full
hearing on the issue of remedy, the appellate
panel finding that failure to afford such a hearing before ordering the viatical to fund a trust to
pay future insurance premiums violated the
due process rights of the defendant. Smith v.
Life Partners, Inc., 2007 WL 2847400 (N.J.
App. Div., Oct. 3, 2007) (not published in
A.2d).
Plaintiff Smith, now age 52 and HIV+, responded in 1992 to an advertisement in a
magazine directed to people living with HIV
concerning viatical purchases of insurance
policies, and a viatical broker matched her up
with LPI, which paid her $90,000 in August
1994 for the right to receive the $150,000 face
amount on the life insurance component of her
combined group life/health policy from Guardian Life Insurance Company in the event of her
death. By terms of the purchase contract, LPI
obligated itself to place a certain amount in escrow to pay her premiums. Guardian Life did
not separate out the premiums for life and
health coverage at that time, so it was understood that LPI would pay the full premium for at
least two years.
AIDS wonder drugs intervened, and the
plaintiff is still living. Over the years, LPI
fussed about having to pay her health insurance
premiums from time to time, but in response to
letters from her lawyer repeatedly caved in and
paid to avoid being sued. Finally, in the fall of
2005, LPI sent an email stating that as Guardian had for the first time sent an itemized bill
that separated out the premiums for life and
health, LPI would no longer pay for the health
insurance, since it had only purchased the right
to her life insurance proceeds and had only
paid her health insurance premiums because
Guardian Life had previously not allowed for
separate premium payments under its group
policies.
As Smith did not have the resources to pay
the health insurance premium and her cover-
November 2007
age was in danger of lapsing, she got her lawyer
to write another letter, and LPI paid for one
more year. But Smith decided to end any suspense about future payments by suing, claiming anticipatory breach of the contract and
seeking a judicial remedy that would guarantee
future payment of her health premiums. The
trial judge found anticipatory breach and ordered LPI to fund a trust to pay future health insurance premiums, in the amount of
$837,357.00, derived by calculating Smith’s
expected remaining life-span using standard
tables, multiplied by the most recent annual
premium. The judge indicated that by not including any assumption about increased anual
premium costs, he was taking into account the
possibility that Smith’s HIV infection might reduce her life span. LPI disputed the finding of
anticipatory breach, noting that it had paid the
next year’s premium, and argued that the court
should have waited to hear testimony from its
actuarial expert before establishing the trust.
The appellate panel found that LPI’s email
was an unequivocal anticipatory repudiation of
its contractual obligation to pay the full premium due on the group life/health policy, thus
opening LPI to liability, and that the establishment of a trust to pay the future premiums was
one appropriate remedy. However, the court
agreed with LPI that the trial judge should not
have ordered the establishment of this very expensive trust without at least hearing proffered
actuarial testimony about Smith’s life span and
the actual projected premium costs. LPI is a
Texas corporation, and it also protested against
being subjected to the jurisdiction of the New
Jersey court, especially since when the contract
was made Smith was a Pennsylvania resident.
However, the appellate division agreed with the
trial judge that “long-arm jurisdiction” based
on LPI doing business with the plaintiff, now a
New Jersey resident, justified the assertion of
jurisdiction in this case, which seems fair. After
all, plaintiff is a person living with HIV in New
Jersey. Why should she be required to travel to
Texas to litigate against a company that in fact
conducts business on a 50–state basis? A.S.L.
AIDS Litigation Notes
Federal — California — In Basque v. Schwartz,
2007 WL 3037289 (E.D. Calif., Oct. 17, 2007),
U.S. Magistrate Judge Kimberly J. Mueller rejected a charge that California prison officials
violated the constitutional rights of an HIV+
prisoner, who also suffers from heart disease,
when they rejected his requests to be assigned
to a conservation camp or firefighting duties
where he could earn credit towards an earlier
release. “Petitioner’s medical chronos indicate
that he could not be cleared for camp placement not just because of Petitioner’s HIV infection, a chronic infectious disease, but also due
to his heart disease, his history of ankle fracture
Lesbian/Gay Law Notes
and his Achilles surgery. Petitioner fails to establish that his medical problems do not make
him any less capable of performing the work or
subject him to heightened need for medical supervision than those inmates who are medically
cleared for light duty non-hazardous work.”
The judge found the Department’s decision to
be rationally related to its legitimate interests in
maintaining the petitioner’s health and safety
while in custody, and that the petitioner’s allegations did not involve forms of discrimination
that would require heightened or strict scrutiny
of the Department’s justifications.
Federal — New York — In Murray v. Prison
Health Services, 2007 WL 2915178 (S.D.N.Y.,
Oct. 2, 2007), U.S. District Judge Victor Marrero, after noting the plaintiff’s allegations that
he was deprived of HIV-related medication for
a week after being transferred from one prison
to another, abstained from deciding whether
this raised an 8th Amendment issue upon determining that the inmate had failed to exhaust
administrative remedies prior to filing suit, as
required by the Prison Litigation Reform Act.
Although the inmate had written some protest
letters about his treatment situation, he failed to
file a formal grievance under the system established by the NY Department of Correctional
Services. The statute requires that an inmate
exhaust internal prison grievance procedures
before filing suit in federal court.
Federal — Ohio — In another frustrating
HIV treatment in prison case, U.S. District
Judge John R. Adams rejected an HIV+ pro se
claimant’s argument that his treatment at a federal prison in Lisbon, Ohio, violated his 8th
Amendment rights. Maclennan v. U.S., 2007
WL 3129893 (N.D. Ohio, Oct. 23, 2007). Maclennan, an HIV+ Canadian national, pled
guilty to some interstate commerce violations,
and then advised the Bureau of Prisons on
March 4, 2005, that he had been diagnosed
HIV+ many years before. Two months after informing BOP about his serostatus, he developed symptoms reflective of immune deficiency attributable to advancing HIV infection.
Despite these symptoms and his repeated requests and grievances, Maclennan alleges that
he was afforded no medical care for this condition from the time of his incarceration until
January 2006, when the Johnston County Jail
where he was staying finally brought him to a
university hospital, but even then he did not see
a specialist and get medications prescribed until February 2006. (The specialist advised that
his immune system had been seriously impaired “due to advancing HIV and the lack of
treatment for eleven months.” Medications
were prescribed and delivered to him at the
Franklin County Detention Center, but he was
not provided with follow-up examinations and,
according to his complaint suffered various
side-effects from the medications that the
prison’s medical staff was unable to handle. In
Lesbian/Gay Law Notes
effect, Maclennan, who sought assistance from
the Canadian Consulate General that resulted
in a letter of concern about his treatment to the
U.S. Bureau of Prisons, alleges incompetent
treatment at the hands of prison medical officials who were not knowledgable about HIV
treatment. Although his sentence is not to expire until sometime in 2009, in this action he
sought an order from the court releasing him to
the custody of Canada, hopeful that he will receive better treatment there. Despite this sad
story, none of which is contested, Judge Adams
found that Maclennan missed various procedural steps, so the merits of his case was not
properly before the court. But in any event, Adams opined, these facts would not state an 8th
Amendment claim for cruel and unusual punishment, since the Supreme Court has ruled
that incompetent medical treatment for prisoners does not violate their constitutional rights.
(Perhaps inadequate medical treatment in prisons in the U.S. is so widespread that it can’t
properly be terms “unusual” and thus does not
violate the prohibition on cruel and unusual
punishment?) Adams pointed out that only “deliberate indifference” to an inmate’s serious
medical condition can ground an 8th Amendment claim, and a mere “difference of opinion”
about appropriate treatment does not meet that
standard. Adams says Maclennan’s factual recital does not meet this claim, even though he
alleged that medical staff conceded that they
lacked the knowledge necessary to treat his
November 2007
condition. This would seem to go beyond a mere
“difference of opinion,” since the medical staff
conceded they did not have enough knowledge
to have an opinion as to proper treatment. In an
attempt to be helpful, one staff member actually
prescribed a medication that could not be
mixed with his other HIV meds, and only the intervention of Maclennan’s father averted a further tragedy on that score. Are there some problems with the legal regime governing prison
health care?
Federal — Oklahoma — U.S. District Judge
Kern granted summary judgement to defendants on sexual harassment, due process and
defamation claims brought against Grove Public School District by T.D., an 8th grade student,
and his mother, after rumors that T.D. was
HIV+ and resulting graffiti and remarks culminated in a confrontational incident involving
T.D., his mother and the school principal,
which led to T.D. receiving home schooling for
the remainder of his 8th grade year at the
school’s expense. Dawson v. Grove Public
School District, 2007 WL 2874831 (N.D.
Okla., Sept. 27, 2007). According to Judge
Kern’s opinion, T.D. had sexual intercourse, using a condom, with A.D., a Grove High student
known to be HIV+. T.D. claimed he had told
only his parents and a middle school counselor
about this, but word of it quickly spread, and
there was testimony by another student that half
of the 8th graders were aware of the incident.
Over the ensuing weeks, various school admin-
217
istrators learned about the rumors sweeping the
school that T.D. might be HIV+ as a result, although he had not been tested because his family did not want to pay for a test. (Evidently, free
confidential HIV testing is not available to
teenagers in the Grove school district, a point
not discussed by the judge and worthy of concern as a public health matter.) T.D. claimed
that when he complained to a teacher about
graffiti stating that he had AIDS, she told him to
clean up the graffiti, causing him emotional
distress. In any event, at some point T.D. got fed
up with the graffiti and questioning from classmates, went to the principal’s office in midDecember, and asked to use the phone to call
his lawyer. The principal refused to let him do
so, called T.D.’s mother to come in to school,
and an angry confrontation ensued about the
school’s refusal to come to T.D.’s assistance in
combating graffiti and unfair comments, which
led the principal to tell Mrs. Dawson to take her
son home. T.D. never returned to Grove Middle
School, earning his graduation through home
study over the remainder of the school year. On
these facts, Judge Kern found that the school
was entitled to summary judgement, concluding that T.D. had not been subjected to actionable sexual harassment and that it was not foreseeable that their actions towards T.D. would
cause emotional distress. There was also no
evidence that school officials had any role in
spreading rumors about T.D.’s HIV-status, and
thus could not be held liable for defamation.
A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
Movement Positions
Lambda Legal has an opening for a staff attorney in its New York City national headquarters
office, to do litigation work in cases arising in
the national headquarters region (New York
and neighboring Northeastern states, excluding
New England matters in the geographical jurisdiction of Gay & Lesbian Advocates & Defenders, headquartered in Boston). The job involves
public speaking, writing, public education as
well as litigation work. Applicants should have
at least four years of practice experience, including litigation experience relevant to this
work. Letters of interest, resumes and writing
samples should be sent to Gary Brubaker —
HDQ Staff Attorney Position, Lambda Legal,
120 Wall Street, Suite 1500, New York NY
10005–3904. They can also be faxed to
212–809–0055, or emailed to [email protected]. The title of the position must appear on the first line of the envelope
if mailed or the title line of the email, or the application may not be processed. The announcement from Lambda Legal did not specify a
deadline for applications.
HIV & AIDS Legal Services in Los Angeles
is seeking applicants for the position of Legal
Director, which require membership in good
standing in the California state bar, a minimum
of six years of poverty law experience and at
least three years experiencing supervising staff
attorneys. In depth knowledge of poverty law is
required. Applications must include a cover
letter describing interest, specific qualifications, resume, salary history, and three professional references. Mail to Executive Director,
HALSA, 3550 Wilshire Blvd., Suite 750, Los
Angeles, CA 90010, or email to [email protected]. Use the same email
address to request the full text of the position
announcement, and go to www.halsaservices.org to learn more about the organization.
The position announcement did not specify a
deadline for applications.
The Center for HIV Law & Policy, based in
New York, is seeking applicants for a staff attorney position. This is NOT a litigating position.
The staff attorney will participate in the policy
and advocacy work of the Center, helping to
maintain the national online Resource Bank,
assisting in research and policy development,
working in coalition with other HIV-policy-
oriented groups, assisting in the supervision of
legal interns and support staff and providing
backup for community and legal advocates
around the country on legal and policy work.
The applicant should have a J.D. degree and be
admitted to practice law with a minimum or two
years experience or equivalent post-graduate
advocacy experience or significant academic
achievement. The Center is a tax-exempt charitable organization. Compensation commensurate with experience and a generous benefits
package. Send a letter of interest, resume, legal
writing sample and contact information for a
minimum of two references by email to Catherine Hanssens, Executive Director, at [email protected]. Application deadline is November 15, 2007.
LGBT Student Writing Competition
The Williams Institute at UCLA Law school has
announced its 2007 Student Writing Competition, offering a prize of $1,000.00 and publication in the Institute’s annual Dukeminier
Awards Law Review, to the first place paper.
The competition is open to all students enrolled
in an accredited law school during the
218
2007–2008 academic year. Entries should focus on a cutting-edge legal issue affecting the
LGBT communities, should have been written
during 2007 and not previously published or
scheduled for publication, written in standard
law review Note format, with a 40 page limit (12
point Times Roman type, double-spaced text,
one-inch margins). Page limit includes footnotes. No appendices or endnotes allowed. Entries may be submitted by email to [email protected] or surface mail to
Dukeminier Awards Writing Competition,
UCLA Law School, P.O. Box 951476, Los Angeles, CA 90095–1476. Questions about the
competition should be directed to the same addresses with the subject line “Writing Competition.”
LESBIAN & GAY & RELATED LEGAL ISSUES:
Avery, Diane, The Great American Makeover:
The Sexing Up and Dumbing Down of Women’s
Work After Jespersen v. Harrah’s Operating Company, 49 U.S.F. L. Rev. 1 (2007).
Benesch, Susan, Due Process and Decisionmaking in U.S. Immigration Adjudication, 59
Admin. L. Rev. 557 (Summer 2007).
Brake, Elizabeth, Marriage, Morality, and
Institutional Value, 10 Ethical Theory & Moral
Practice 243 (June 2007).
Cossman, Brenda, Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging (Stanford Univ. Press. 2007).
Goffe, Wendy S., Preparing Effective Cohabitation Agreements for Unmarried Couples, 34
Estate Planning No. 9, at 7 (Sept. 2007).
Kellerman, Mary M., Citizens for Equal Protection v. Bruning: Why the Eighth Circuit
Wrongly Upheld Nebraska’s Section 29 in the
Face of an Equal Protection Challenge, 30
Hamline L. Rev. 373 (Spring 2007).
Koch, Katie, and Richard A. Bales, Transgender Employment Discrimination, available
through the Social Sciences Research Network
online database, scheduled for publication in
17 UCLA Women’s L.J. No. 2 (2008).
Landers, Renee M., A Marriage of Principles:
The Relevance of Federal Precedent and International Sources of Law in Analyzing Claims
November 2007
for a Right to Same-Sex Marriage, 41 New Eng.
L. Rev. 683 (Summer 2007).
Malanga, Christian A, Expressive Association
Student Organizations’ Right to Discrimination: A Look at Public Law Schools’ Nondiscrimination Policies and Their Application to
Christian Legal Society Student Chapters, 29
Western New Eng. L. Rev. 757 (2007).
Richards, Robert D., and Clay Calvert, The
Legacy of Lords: The New Federal Crackdown
On the Adult Entertainment Industry’s AgeVerification and Record-Keeping Requirements,
14 UCLA Entertainment L. Rev. 155 (Summer
2007).
Samar, Vincent J., Privacy and Same-Sex
Marriage: The Case for Treating Same-Sex
Marriage as a Human Right, 58 Mont. L. Rev.
335 (Summer 2007).
Secunda, Paul M., The Solomon Amendment,
Expressive Associations, and Public Employment, 54 UCLA L. Rev. 1767 (Aug. 2007).
Sivakumaran, Sandesh, Sexual Violence
Against Men in Armed Conflict, 18 European J.
Int’l L. 253 (2007).
Southerland, Abigail Jones, The Tug of War
Between First Amendment Freedoms and Antidiscrimination: A Look at the Rising Conflict of
Homosexual Legislation, 5 Regent J. Int’l L.
183 (2007).
Visser, Ryan C., Collision Course?: Christian
Legal Society v. Kane Could Create A Split Over
the right of Religious Student Groups to Associate in the Face of Law School Antidiscrimination Policies, 30 Hamline L. Rev. 449 (Spring
2007).
Wang, Annie Y., Unmarried Cohabitation:
What Can We Learn From a Comparison Between the United States and China?, 41 Fam. L.
Q. 197 (Spring 2007).
Weiss, Jillian T., Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals (BookSurge Publishing, 2007)
(ISBN–10–1419673289).
Widmer, Corinne, Book Review, Ian CurrySumner, All’s Well That Ends Registered? The
Substantive and Private International Law Aspects of Non-Marital Registered Relationships
in Europe. A Comparison of the Laws of Belgium, France, The Netherlands, Switzerland
Lesbian/Gay Law Notes
and the United Kingdom, 9 European J. L. Reform 145 (2007).
Yang, Andrea E., Historical Criminal Punishments, Punitive Aims and Un-“Civil” PostCustody Sanctions on Sex Offenders: Reviving
the Ex Post Facto Caluse as a Bulwark of Personal Security and Private Rights, 75 U. Cincinnati L. Rev. 1299 (Spring 2007).
Specially Noted:
The Eighth Annual Review of Gender and
Sexuality Law has been published as 8 Georgetown J. Gender & L. No. 2 (2007), providing
more than 700 pages of summary discussions
on developments in the law relating to sexuality
and gender over the past year, compiled and edited by the students on the Journal staff. The
coverage includes constitutional law developments, criminal law, education law, employment law, family law, and health care law.
AIDS & RELATED LEGAL ISSUES:
Iseminger, David M., A Condom Versus Philippine AIDS Prevention and Control Act of 1998:
Which Has Holes Leaving Filipinos Unprotected?, 16 Pacific Rim L. & Pol’y J. 725
(2007).
Kagan, Erica Tracy, Morality v. Reality: The
Struggle to Effectively Fight HIV/AIDS and Respect Human Rights, 32 Brooklyn J. Int’l L.
1201 (2007).
Stein, Michael Ashley, and Penelope J.S.
Stein, Beyond Disability Civil Rights, 58 Hastings L.J. 1203 (June 2007).
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.