The Love That Need Not Name its Speaker


David M. Munsey{1}

"I've always said [homosexual] was just an adjective. It's not a noun, though it's always used as a noun. Put it the other way. What is a heterosexual person?" I've never met one....I'm in favor of any form of sexual relationship that gives pleasure to those involved. And I have never heard a convincing argument to the contrary."

-Gore Vidal{2}

Ethics and Individuality are two topics currently everywhere out of fashion. The "morality" of the self-styled Moral Majority and its fellow travelers among the Pentecostal white trash, various Churches of Aryan Nations, and Contractors with America is closer to a Nietzschean lampoon of the religion of ressentiment{3} than anything a sane person could glean from the Gospels and the Constitution. In academia and elsewhere there is a self-styled Left who declares values "relative,"{4} denounces individuality, and praises multiculturalism, a theory that advocates people emphasize their differences from others (racial, religious, and ethnic) and form discrete exclusive groups where the well being of the tribe supersedes that of the individual. Diversity is celebrated unless one happens to disagree, in which case one is censored and denounced zealously. The tolerance is along the lines of leftists such as Stalin and Mao rather than Locke or Jefferson. These groups have a lot in common with the rightwing rejectamenta they despise, indeed critic Harold Bloom has dubbed multiculturalists "the School of Resentment."{5} Of course this "Left" is reacting to actual history of oppression, as opposed to the lunacy of asserting that "reverse discrimination" has put African Americans in a superior position to whites, and the lunacy on stilts of denying the Holocaust indulged in by the Right. In the middle are the unconscious Silent Majority of Richard E. Nixon.{6} What does the person who is homoerotic do if she or he wishes to live an authentic existence as her - or himself? The only possible relations with the Right are violent since they are beyond the rational, ergo beyond suasion. The Left, as described above, is only open to those willing to label themselves, and thereby reduce their selves to some virtual non sequitur as "lesbian of colour."{7} The mob is capable of being educated, but actually joining the herd would be a renunciation of individuality. The answer then is to look nowhere outside for help and to be yourself. This can be a terrifying prospect, and few persons of any sexual orientation or in any historical epoch take this path. Those who do are known as individuals.

In this paper I shall examine the essentialism/social constructionist debate in Gay and Lesbian Studies. I shall begin by surveying the current philosophical and legal literature as to how it answers the question "What is homosexuality?" and examine some various classification schemes proposed in attempting to arrive at an answer. I shall then explain what version of

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essentialism I intend to explore and why it is germane to this topic. A brief metaphysical analysis will yield the conclusion that even if there are essential categories and/or essential properties, homosexuality is not one of them because sexual orientation exists along a spectrum as opposed to a binary either/or, hetero/homo duality, and it is capable of changing in the life of an individual. Jean Paul Sartre's ethics of authenticity are then put in the context of western thought and explicated in some detail to provide a framework in which the ethical and psychological implications of the debate can be analyzed for both homoerotic individuals and society in general. The result will be that it is dehumanizing to allow society to reduce a diverse group of millions of individuals to a single stereotype, and that it is an inauthentic retreat from responsibility and an emotionally full existence to objectify one's self, or allow others to objectify one. The legal and political consequences of abandoning essentialism are shown to be less deleterious than those who urge an essentialism/equal protection nexus assert. A merging of gay and lesbian political activism with other groups in opposition to the ruling elite and its minions on the religious right is urged to facilitate psychological well being, and pragmatically advance the cause.

How homosexuality is understood is important to lawyers for two reasons, both relating to how they represent their gay and lesbian clients. The essentialism/constructivism debate is at the cynosure of the equal protection question, many legal theorists argue that an essentialist outcome is necessary to gain suspect classification which would result in strict scrutiny of laws that classify on the basis of sexual orientation. More generally, attorneys must deal with their gay and lesbian clients as individuals, their view of the nature and relative importance of a person's sexual orientation will affect their ability to understand and serve their client. Further, the way gays and lesbians are portrayed in court, and in the opinions of courts will have a potentially enormous effect not just on how the law will view homosexuality, but on how society at large will think about it.{8}


The question "What is homosexuality?" has been answered in a variety of ways by many different theories in recent gay and lesbian studies and legal literature. In order to understand these answers, it is important to identify, and distinguish among several ongoing debates, some of which overlap one another. Two of the more traditional debates have to do with the causes of homosexuality, or its etiology. The most familiar is what is commonly called the nature/nurture debate. This debate concerns the question of whether homosexuality is biologically determined or the result of a person's rearing and early childhood experiences. Those who hold the former position focus on genes, hormones, or pre-natal causes. Most of the nurture theories are rooted in some form of psychoanalysis, although sometimes the culture itself is implicated. Both nature and nurture theories assume the resolution of a logically prior debate, that of determinism vs. choice, in favour of the former. Determinists, whether they adhere to nature or nurture causes, claim that a person's sexual orientation is an immutable trait determined by

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factors beyond her or his volition, ergo beyond their moral or legal responsibility. The alternative is that it is a voluntary choice, that is capable of being changed by an act of will. While those on either side of the nature/nurture debate have already concluded that sexual orientation is determined, those who claim it is a personal choice avoid the nature/nurture debate altogether, rejecting both sides. In many discussions, the actual debate is between biological determinism and choice, or psychoanalytic causes and choice, but it is important to sort out the various claims.

The other major debate that more directly answers the question, "What is homosexuality?" is often referred to as essentialism vs. social constructionism. This is more metaphysical than scientific. There are many subtly different versions of this debate (and a set of definitions for each author on the subject), but they all centre on how homosexuality is defined.{9} Essentialists assert that homosexuality is a core trait, that is an intrinsic, objective property that does not vary across cultures or history. Social constructionists claim that the concept of homosexuality is culturally dependent and cannot be understood, even does not exist, independently of certain cultures and historical periods.{10}

One school of thought, represented by Daniel Ortiz, claims that the essentialism/social constructivism debate is independent of the causal debates in the sense that either essentialism or constructivism can be combined with any of the causal theories biological determinism, nurtured determinism, and voluntary choice.{11} He articulates six categories which he posits represent each of the six combinations. They are laid out in the table below.

group determined/choice nature/nurture essent/constr _______________________________________________________________ Republican choice --- constructed

Christian determined nurture constructed children

race determined nature constructed

biological determined nurture essential eunuchs

biological choice --- essential mother

biological determined nature essential sex

According to Ortiz, a person chooses to become a Republican or a mother,{12} and whether someone is a member of one of the remaining categories{13} is decided for them by things beyond their control-genes in the case of race and sex, other people in the case of Christian children and eunuchs (he assumes no one chooses to be castrated). Ortiz avers that a person's biological sex, whether she has borne a child, and biological eunuchs are all essentialist categories, because they do not vary across history or culture. There have been men and women for centuries.

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While it is easy to see that the category of Republicans is tied to a very specific time period and culture (part of the 19th and 20th Century America), and the category of Christian children, while broader than that of Republicans, is still limited in time and culture-dependent, the category of race is more problematic. Ortiz says, "While simple skin color and other physiological features may remain stable categories across time and culture, the roles, expectations, and meanings race typically implies are not. A black person enjoys a completely different social role in early modern Africa than in contemporary American society."{14} To my reading, however, he misses the key distinction, in equatorial Africa before the arrival of Europeans,{15} persons were not "black" for any relevant social purpose, in a society where all persons are black, there is no difference. Ortiz draws the distinction between biological sex and gender, claiming that biological sex is essential and gender is socially constructed. A society that makes no distinctions based upon sex cannot be cited, a hypothetical one, however, could be constructed. In the future (perhaps) menstruation could be eliminated, even now a woman need not carry her own child, but some woman must. This too is subject to change in the future, but one wonders if all differences could be effaced.{16} But if Ortiz is correct about this, then there is both an "essential" (biological) component to race and a socially constructed one. According to Ortiz, this is also true of homosexuality. If being "gay"{17} is defined as having same-sex desire (being homoerotic), then it is culturally and historically independent, or essentialist. There is plenty of evidence of homoerotic behaviour in other cultures and historical periods, most notably Ancient Greece.{18} On the other hand, if being gay means denying the validity of traditional gender roles, or being a member of a group on the periphery of society, then it is culturally dependent and hence a socially constructed property. From this Ortiz concludes that each of these positions, essentialist and constructivist, are merely different descriptions of homosexuality that serve different purposes. If one wishes to show that homosexuality has always existed and been accepted by many cultures, to combat current homophobic attitudes, an essentialist description works best. If one is trying to mobilize a political group or create a new culture, a social constructivist description may work better. Ortiz takes a pragmatic approach to the issue, stating, "There is a grand debate only if one demands a single master description of gay identity to serve all purposes. But if that is the case, the debate has meaning but no victor. Our purposes of description are simply too various and complex for any single description to serve."{19} This begs the question by assuming that essentialism, which claims that homosexuality is a single unchanging property, is false. Only social constructionists are free to choose pragmatically, because they hold there is no fact of the matter. This option is not open to essentialists. I shall argue later that even if Ortiz is correct in his assumption that essentialism is false, the ethical and psychological implications of choosing either an essentialist description or social constructivist description need to be factored in along with the pragmatic political and legal ones.

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Ortiz' categories are somewhat simplified, but they do help sort out the various strands of debate in the literature of gay and lesbian theory. The philosopher Richard Mohr draws the lines somewhat differently, identifying two kinds of social constructionism, each with two subspecies, in his book Gay Ideas.{20} The first he calls antirealist social constructionism, which he defines as the view that "no one could be considered of some sexual orientation without taking into account causal forces from society or culture, forces that vary from culture to culture and within the same culture over time."{21} This is a theory of the causes of sexual orientation that opposes the theory that the sole cause can be found in nature. It can be put rather awkwardly into Ortiz' determined/nurture/constructionist category. One subspecies of this theory as identified by Mohr is labeling theory, which says that once a person is assigned a label, others treat that person as such, and the individual so labeled takes on the traits of the label. Mohr believes he refutes this theory as applied to homosexuals because of "the closet." Many homosexuals do not exhibit the stereo-typical traits of homosexuals, indeed it is often difficult to identify a gay person unless they announce it.

And since many homosexuals do not come out of the closet, they are never labeled as gay, yet they still engage in gay behaviour, even if it is in private. However, while labeling theory is inadequate to resolve the entire issue, it does demonstrate the deleterious affect of labels and stereotypes, not merely on those who accept them directly, but also the affect from being treated as an object by those outsiders who accept the label's validity.{22} The second subspecies of antirealist social constructionism Mohr identifies asserts that social concepts of what homosexuality is are at least necessary (even if not sufficient) for homosexuals to exist. This position, associated with Michel Foucault, is defended by the philosopher Ian Hacking and can be summarized as the notion that for a person to be able to perform an intentional act, he must perform that act "under a description."{23} Mohr explains, "If a homosexual activity is intentional activity, so it is claimed, then the homosexual must have a description of the homosexual in mind in order to perform homosexual acts."{24} Mohr's argument against this position is that people have been performing homosexual acts long before the word came into existence. Even without the word 'homosexual' people still have the concept "a person with desires for sex acts with partners of the same biological sex." This seems to be the definition of homosexuality Mohr wishes to adopt to avoid the social constructionist theories and he uses it throughout the chapter.

The second main type of social constructionism Mohr identifies is what he calls antiessentialist social constructionism. This is a purely definitional theory that asserts that there is no culturally neutral, objective definition of 'homosexuality'. It says nothing about the causes of homosexuality, it is merely a claim about the concept-what it is to be homosexual. He then divides this into two subspecies. The first is "no content nominalism"{25} which says that the word 'homosexuality' is non denoting; it does not pick out anything in the world because the concept is context-specific, so always

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changing. Mohr's response to this is that if it were true, there would be no such thing as homosexuality because the term would have no content, thus making it impossible to discuss, define, or study. Since Mohr implicitly accepts the definition of homosexuality as same-sex desire, he easily dismisses this position. The second subspecies of antiessentialist social constructionism Mohr calls "fine textured nominalism."{26} This is the view that 'homosexuality' is so specifically defined that it could only exist in modern culture because it is defined by modern concepts. He uses the example of 'hippie'. If one tethers its definition to beat-up Volkswagens, one, by necessity, is not going to find hippies in the Roman Empire. But if you define "hippie" in a culturally neutral way so that the thesis that hippies did not exist in the past has bite, then it is at least possible, conceivable, thinkable, that there were hippies in the Roman Empire; and if one specifically defined "hippie" in culturally neutral terms such that hippies are communally living, socially detached spiritualists, then it is at least arguable that we should consider the early Christians as hippies.{27} As one might guess, Mohr falls back on the definition of 'homosexual' as "the desire for sexual relations with members of one's own biological sex," to escape this brand of social constructionism.{28}

Another view of the essentialist/social constructionist debate is given by Janet Halley.{29} Although the causal and definitional strands of the debate may be logically independent, they may not be politically so. Halley divides the political debate into four positions

* Pro-gay essentialism holds that because homosexual orientation is fixed, immutable, and definitional, it should be protected from discrimination. * Pro-gay constructivism holds that all forms of sexual orientation are mutable, either across an individual's life, at some important moment of personal choice, or across historical periods, and that social policy on sexual orientation should not impede these variations.

* Anti-gay essentialism holds that homosexual orientation is fixed, immutable, and normatively bad or sick, either in itself or in its manifestation, and that society should tailor discrimination against gay men and lesbians to express normative judgments, deter manifestations of homosexual orientation, or cure homosexuals of their illness. * Anti-gay constructivism either emphasizes the mutability of heterosexual orientation, arguing that heterosexuality must be shored up by anti-gay discrimination, or points to the mutability of homosexual orientation, arguing that discrimination should be designed to convert gay men and lesbians to heterosexuality.{30} Halley focuses on the determined/choice debate, initially declining to enter the nature/nurture debate, and linking determinism to essentialism and choice to social constructivism. By focusing on the political aspects of the debate, she emphasizes what is often considered important in that arena-the question of whether homosexuality can be changed.

Halley later fine-tunes her definitions of essentialism and constructivism, claiming that there are really several different versions of each theory staking out various positions between the two extremes. She does this in order to make the claim that the two theories are not mutually exclusive in the forms most

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commonly advocated, and that a common ground may be found from which gays and lesbians can launch their legal arguments. Halley divides essentialism into two kinds-strong and weak essentialism. Strong essentialism claims that there is a natural or biological trait that identifies and forms the essence of a thing. Weak essentialism claims, more generally, that there is such an irreducible, identifying trait, regardless of its source, without which that which has it would cease to be that thing.{31} Halley adopts Carol Vance's classification of constructivism, identifying five different types that "differ in their willingness to imagine what was constructed."{32} Social meanings constructivism regards sexual object choice and its attendant behaviour as fixed, claiming that different societies give this behaviour different meanings. Behavioural constructivism regards only sexual object choice as fixed, claiming that the behavioural patterns available for satisfying this desire vary across cultures. Gender-of-object-choice constructivism holds that sexuality is pre-determined, but the object of desire is socially determined. Sexuality constructivism, as advocated by David Halperin in his book One Hundred Years of Homosexuality and Other Essays on Greek Love,{33} claims that only the raw physical capacity for erotic pleasure is innate, and that the organization of this physical capacity into a concept with attendant meaning is socially constructed. The most extreme form of social constructivism is advocated by the late Michel Foucault. Halley calls it sex constructivism and it is the claim that "the sheer recognition of certain bodily sensations as sexual is constructed."{34} Halley argues that all but sex constructivism are compatible with weak essentialism, since they all regard something as essential. She chooses behavioural constructivism as the "common ground" from which pro-gay essentialists and constructivists should litigate, devoting the remainder of her article to the reasons why.

Yet another type of essentialism discussed in the literature is specific to lesbians and is articulated by Patricia Cain.{35} Its more general version can be called gender essentialism, which is a feminist theory that claims that there is a universal "woman's experience" common to all women which is independent of race, class, sexual orientation, and other aspects of life.{36} Ortiz identifies this as the essentialism/antiessentialism debate, arguing that it is similar to the constructivist debate in that it is a reaction to what is perceived as an over generalization.{37} Constructivists deny a universal gay identity over time and history, but do not have to worry about being labeled as the same as other "straight" men. Since historical lesbian stories are virtually nonexistent, lesbians are not generalized over time, but they are lumped in with other women regarding contemporary issues. Cain argues against gender essentialism, but endorses the more specific lesbian essentialism-the position that there is an essential lesbian experience common to all lesbians. She has two reasons for this that I shall discuss later in light of some further understanding of essentialism and its ethical implications.

The previous survey demonstrates the variety of "essentialisms" discussed in the literature, and how they relate to various versions of social constructivism to form a "grand debate." However, I shall argue that both sides of the debate

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are mistaken, because they each attempt to define a discrete identifiable thing that they wish to call "homosexuality." The essentialists are mistaken that such an essential property exists, and the social constructionists, albeit conceding that any imagined trait is socially constructed, overemphasize the trait allowing homoerotic persons to be reduced to nothing more than "homosexuals" by their enemies, and in some cases themselves, with catastrophic psychological and political consequences. In order to make these arguments more clearly, a more precise understanding of essentialism is necessary. METAPHYSICS

In this paper I am concerned with what I characterize as metaphysical essentialism. This is very similar to what Halley chose to designate as "weak essentialism." I shall now consider this question. Although my conclusions will be anti-essentialist regarding homosexuality, they will not follow from an ontological or metaphysical anti-essentialist starting point. That is to say I shall not argue from a metaphysical stance that essentialism is false, i.e. there are no essential properties, ergo homosexuality is not an essential property, that would be of no interest to the homosexual debate. I maintain specifically that homosexuality (and heterosexuality and every orientation in between) is not essential to a person's core identity, in some sense it is a social construction.

One distinction must be made before we consider the argument proper. It is the distinction between species and individual members of that species. The former are referred to by natural kind terms, the latter by proper names. Proper names, as we all know, refer to individuals and can be uses to pick out specific, identifiable things (e.g. Bill Clinton, Reed College). Natural kind terms refer to classes of individuals, and can be used to pick out discrete, identifiable classes (e.g. tiger, human being). A natural kind is a class to which a name refers. Many groups, such as southpaws or blondes are not natural kinds, because they are not determinative in terms of an individual's identity. Jean Harlow not blonde is still Jean Harlow, Jean Harlow not a human being is (literally) something else. The difference is best understood in terms of essential properties as possessed by individuals.

A "Black Letter" definition of essential property is a property that something cannot lose without ceasing to exist.{38}

Would that I were to have a different genetic code, I would no longer be the David Munsey who matriculated here in 1993. My genetic code is then an essential property of me. On the other hand, if Clinton had lost to Bush, he would still be Clinton, he would just lack the property of having been elected President. Catastrophic perhaps (to him), but to him, not someone or something else. So Clinton's being President is just an accidental property of him. To consider this we must bring to bear our intuitions on counterfactual situations or how we would describe other possible worlds. We can borrow a heuristic device from the logician and philosopher Saul Kripke{39} and imagine other possible worlds. A possible world (for our purposes) is the way this (the real) world might have been had some contingent event transpired other than it did. If there is no such possible world, then the event was not contingent, but necessary. We ask

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ourselves, for instance, "If Dave Frohnmayer had been elected Governor of Oregon in 1990 in a world as close to this one as possible, given that one change, would that object who is Governor still be Dave Frohnmayer, i.e. THE Dave Frohnmayer?" I think the answer is obviously that he would. A less convoluted way of looking at it is to ask whether it is possible in this world that Frohnmayer had won the election. Contrast that to the question of the world where 'Dave Frohnmayer' refers to a lion in the London Zoo. In that world there is no counterpart to the object that is currently (Spring, 1995) President of the University of Oregon. Intuitively, whether Mark Hatfield is straight or gay or in between, he is the same person who was elected Governor, feuded with Tom McCall over Vietnam, angered Bob Dole and others over his holdout on the balanced budget amendment, and so on. Even Hatfield as Pro-Choice Hawk is still Hatfield, but if 'Mark Hatfield' referred to a square in Venice in some other possible world it would be a different object. There would be no counterpart to Mark Hatfield, no Mark Hatfield (the thing we refer to) in that world. Keeping this background in mind, we are now able to proceed.{40}

Is homosexual a natural kind? Another way of posing the same question as we have seen is, "Is homosexuality an essential property of any person?"{41} Before I tackle the metaphysical problem, I shall examine the scientific, or physical findings.

Janet Halley critiques the three most important recent scientific studies that purport to demonstrate a connection between some biological trait and homosexuality.{42} They are Simon LeVay's study of hypothalamic structure,{43} J. Michael Bailey and Richard C. Pillard's study of male twins and adopted brothers,{44} and Dean H. Hamer's study of gay men's family tree patterns.{45} She carefully scrutinizes the selection and categorization of the subjects and the assumptions that were used to show that in each case the scientists have assumed rather than demonstrated that sexuality is bipolar and essential. She observes that "LeVay assumes essentialism in framing the finding upon which his conclusion is based,"{46} noting that he classified every subject in one of two categories, homosexual or heterosexual, putting a bisexual in the homosexual category (as the Religious Right and other hate groups do) and those subjects whose record did not indicate their sexual orientation in the heterosexual category on the basis that most men are heterosexual. Bailey and Pillard's study also has this flaw. Although they had better access to their subjects' sexual orientation since their subjects were alive and could be questioned, they still used only two categories, classifying all self-designated bisexuals as homosexual. Presumably for these objective scientists, a pervert is a pervert. Halley says, "[T]hey have simply assumed this bipolar model of sexual orientation."{47} Although she does not discuss the Hamer study as extensively, Halley summarizes the evidence from the study, concluding that it does not demand the conclusion that homosexuality is an immutable and identifiable property. Hamer himself said, "[W]hat we have found is a linkage between a small region on one chromosome and sexual orientation in men, and what that suggests is that part of whether a person is gay or heterosexual is influenced by the genes that they inherit. However we have not found the gene, which we don't think exists,

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for sexual orientation."{48} Thus it can be seen that the scientific evidence does not come close to proving that homosexuality is determined, much less an essential property, and even some of the scientists doubt that it is.{49} As we shall see when we arrive at the metaphysical analysis, for my purposes it does not matter whether sexual orientation is as rigidly determined genetically as eye colour, or complete caprice.

Psychoanalysis does not consider homosexuality to be a discrete property. Lionel Blackman says, "Latent homosexual feelings exist in all human beings. To put it in psychoanalytic terminology, identification with the parent of the same sex is never absolute and so there is no such thing as complete or absolute heterosexuality. We all have homosexual feelings, but they are generally denied or repressed and relegated to the unconscious mind."{50} That sexual orientation exists along a spectrum, as opposed to dividing the world into two mutually exclusive camps of homosexual and heterosexual, is obvious even to those who reject Viennese witch doctors.{51}

As soon as one attempts to define homosexuality and identify homosexuals, it becomes obvious that there is no single trait which allows one to pick them out. In addition to the metaphysical problem, there is an epistemological one. Janet Halley captures the problem nicely, stating

None of these distinctions predetermines what the essence of sexual orientation is. Some people define a "homosexual" as a person who entertains desire for erotic contacts with a person of the same sex. Others require same-sex fantasy, as well or instead. Still others require actual erotic contacts, and there is a lot of disagreement about whether it takes one contact or many, recent contacts or any, to make a homosexual. Finally, the problem of identity vexes any effort to establish all important aspects of homosexual orientation as unchanging. If a person has a lot of same-sex contacts, desires them and fantasizes about them, but does not imagine himself to be gay, or a homosexual, or bisexual, is he wrong? And public identity has its own range of mutabilities largely regulated by the closet and the rule that anyone not designated homosexual is by default construed as heterosexual.{52}

The fact that one cannot even pick out a candidate definition of 'homosexuality' that captures most people's intuitions and does not ignore the existence of bisexuals, is strong evidence that sexual orientation is not bipolar.

As is almost always the case with metaphysics, the question as to whether homosexuality is or is not an essential property must be ultimately adjudicated by individual intuitions.{53} That does not mean that we do not have a clear criteria. As stated above, an essential property is a property that something cannot lose without ceasing to exist. This may seem like a very exclusive category, but this is what an essential property is, and this is what the debate is about in Gay & Lesbian Studies. If homosexuality is an essential property, it would be (literally) impossible for a person to change it, the legal and ethical implications of this are manifest. As I also said earlier, a natural kind is a group of individuals that share some essential property. An example would

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be that all and only those objects that have the property of possessing an atomic number of 79 are gold. Having the atomic number 79 is what makes gold gold, as opposed to say iron pyrites.{54} If something ceases to have the property of possessing an atomic number 79, it ceases to be gold. Possessing an atomic number 79 is therefore an essential property of those things that have it, and those things constitute the members of a natural kind.

Is homosexual a natural kind? Is homosexuality a distinction such that if an individual who has the attribute of (say) being homoerotic, or engaging in acts of homosexual sex, ceased to have that property, she or he would cease to be that individual? We will look at some examples of individuals who lose essential properties (gold and a tiger) and those who lose contingent (or accidental or non-essential) properties (hair colour and wine preference) and see which homosexuality most resembles. Imagine five individual objects on 15 March 1995 a wedding band with an atomic number of 79, a pet cat that is a Bengal Tiger, a middle aged man who is exclusively homoerotic in mind and deed, a teenage girl with long strawberry blonde hair, and an elderly man who prefers Chateau Lafite-Rothschild 1970 above all other clarets. In all cases these individuals are commonly identified by the properties that I have attributed to them. The question is the nature of the properties, i.e. are they essential or contingent? If they are essential it would be impossible for the individual to lose it without ceasing to exist. On 15 April 1995 we have five individuals that are purported to be the same five individuals observed a month earlier in the Ides of March. We have a wedding band that possesses an atomic number of 78, a pet cat that is an African Lion, a middle-aged man who is exclusively heteroerotic in mind and deed, a teenage girl with short raven black hair, and an elderly man who prefers Chateau Lafite-Rothschild 1961 above all other clarets. Now is it possible in each case that we have the same individual? If it is even possible, then the property they had a month ago but no longer possess was not an essential property.

The wedding band is clearly a different object, it now consists of platinum rather than gold. If its possessor claims it is the same object merely transmogrified by alchemy, try purchasing it at the current Zrich gold price. The second individual, the lion, is also obviously a different individual from the tiger of a month ago. There is no satisfactory explanation to the contrary. The latter two cases, however, do lend themselves to such explanations. The teenage girl became ensorceled by Joan Jett and became a "Joan clone" via a haircut and dye. The Bordeaux connoisseur heard that John Steed of The Avengers favoured the 1961 vintage. There are numerous other possible explanations for these changes, the point is that in these cases it is not impossible that we are seeing the same individuals because the properties that they lost were not essential properties.

What about the middle-aged man? Is it possible{55} that his sexual orientation changed in a month? The above discussion of spectrums and the life histories show that it is. It is not a contradiction to say of someone that David Bowie used to gay, but now he is straight. It could be true, it could not be true of

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any individual that they used to be a tiger, but now they are a lion, or that they used to have a certain pair of biological parents, but now they have a different pair.{56} Homosexual is not, therefore, a natural kind like gold or tiger, but a contingent (if in some cases very important) property that like hair colour and wine preference can change over time.

Homosexuality is not an essential property because it is neither a natural kind term nor a stable property at all, either as a category or in the life of specific individuals. Sex preference is not divided between a majority of exclusively heterosexual persons, and a minority of exclusively homosexual persons. In the case of individuals it is not the case that all persons have a specific place on the spectrum where they remain for their entire mature life. Sexual preference is more akin to an appetite than a property. Gore Vidal once confided to an interviewer that his first sexual experience occurred when he was eleven. When asked if it were heterosexual or homosexual, Vidal replied, "I was too polite to ask."{57} In Vidal's experience then, sexuality is natural, while society, or some self appointed representative, must more or less arbitrarily classify various aspects of it to suit their purposes, often nefarious.{58} In Ortiz's terminology sexuality is thick while the spectrum of preferences is (perhaps, if anything) thin. Society historically labels others (such as southpaws) for being different. The difference need not be essential, only discernible. It takes traits that obtain along a spectrum (ambidexterity is ignored) and lumps all deviations from the pure norm (righthandedness) as unorthodox (lefthandedness) and evil (sinister in the case of southpaws). This does not make the property essential, it is only important because the ruling class and the mob assert it to be so, and act upon it in ways deleterious to the scapegoated minority. Of course heterosexuality is not the most common practice anyway-masturbation is.{59}

Race in the United States is an excellent illustration of this. As we saw earlier, race cannot be essential irrespective of time and place. In the nineteenth century United States there were, as today, persons of varying skin colour from black to what we call white (or "flesh" to emphasize what is normal). Nonetheless there were, socially and legally, only two races, and a barely secernable amount of African origin ("Negro blood"), such as one thirty-second, made a person a member of the minority race. This was very bad even after abolition and unspeakable before. A person was subject to public auction. Homosexuals are in this unenviable position today (not subject to public auction, but a hated and legally inferior{60} minority). 'Homosexual' equals 'pervert' rather than 'sinister' or 'nigger', but it is all the same thing.

It is the sign of fanaticism that any heterodoxy is the only heterodoxy (e.g. believing all one's political opponents are communists), by which I mean as in the above examples of southpaws and Negroes, any deviation from exclusive heterosexuality is homosexuality. The person with eight opposite sex lovers in a decade, and two same sex lovers is classified the same as an exclusive homosexual, namely a pervert or a deviate. It is also interesting, albeit unsurprising, to note that having made this deviation a crime, it is then (incorrectly according to all available studies) assumed homosexuals are more likely to

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engage in other criminal deviations such as rape and child molestation. It is always the minority's property that is considered essential, like a defect or a disease. A person's flamboyant behaviour is commonly explained by the fact he or she is a homosexual. Many people find this to be plausible, no one would find the proposition that someone's flamboyant behaviour was caused by his or her heterosexuality. This is social conditioning, one is as absurd and reductive as the other.{61} To reduce several individuals to a group with one trait makes it far easier to persecute them. They become less human, ergo easier to destroy. We have such objectifying epithets as "Krauts," "Japs," and "Gooks" that facilitated killing our "enemies" from recent wars as examples. Society, in this case the Christian Right with the acquiescence at least of the ruling class, is on a campaign to turn persons whose sexual orientation deviates from exclusively heterosexual{62} into objects to be hated, discriminated against legally, and denied full human status. It has not been a total failure unfortunately. There is then a contingent and under inclusive group called "homosexuals" in our society. Many persons in it are homoerotic, others may be merely cross dressers, athletic females, persons who enjoy gay or lesbian culture, and so on. This group has been created by the persecutors of persons with (most of them anyway) a sexual preference other than exclusively heterosexual. As I have argued there is no discrete group that is essentially non-exclusively heterosexual. There is no doubt that the majority of people in the United States believe otherwise to the detriment of a minority. The question to which I now turn is whether those in the oppressed group, those who are not exclusively heterosexual, should embrace this category (with modifications), or reject it.


The metaphysical issue has been settled, homosexuality is not only not an essential property, but there is probably no meaningful stable accidental property that embraces all those persons who are not exclusively heterosexual. I shall examine the moral and psychological implications of embracing a group identity in light of Jean-Paul Sartre's ethics of authenticity. Authenticity, a key ethical concept in twentieth century ethical thinking, arose from the two major texts of existentialism, Martin Heidegger's Being and Time{63} and Jean-Paul Sartre's Being and Nothingness.{64} As 'being' would indicate, these massive tomes are primarily concerned with ontology, however, by presenting such a complete picture of human existence, both authors have depicted what it is to be a self and posed questions about the integrity of the self in the world. Before I begin an exegesis of Sartre's theory of authenticity{65} I shall present a "Black Letter" definition of authenticity, then take a quick look at its origins in German thought.{66}

Authenticity is defined in The Oxford Dictionary of Philosophy as "The condition of significant, emotionally appropriate living. Contrasted...with inauthenticity a state in which life, stripped of purpose and responsibility, is depersonalized and dehumanized."{67} For Sartre the psychological and ethical dovetail as in Aristotle because doing what is good is good for you. This is a concept not found in

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many modern philosophers' ethics influenced by Christianity, notably Kant.

Heidegger and Sartre both agree generally that given one is a human being he or she has choices, ergo one must decide which choices are best (not choosing is seen as a choice to abstain). Both have the same basic answer, i.e. that those choices that reflect an authentic understanding of being are the best choices.

For Heidegger, the central tenet of authenticity is the acceptance, and eventually the embracing of one's own finitude. A person must be death aware and plan his or her life in light of this fact. A person must embrace her or his own death.{68} Christianity is among the most common refuges from reality sought by the mob. The dread and anxiety caused by the realization of one's temporality drives most people to just such a retreat, however, it can be better conquered by facing up to it and willing that it should be so. This solution obviously echoes Nietzsche's berman who never wishes for things to be other than they are, "My death I praise to you, the free death, which comes to me because I want it."{69} The idea also appears explicitly in Freud's 1913 essay "The Theme of the Three Caskets" where, in a pretty much otherwise zany reading of King Lear, he states that, "Eternal wisdom...bids [Lear]...choose death and make friends with the necessity of dying."{70} Prima facie, Sartre is not as straightforward on the subject of authenticity as is Heidegger.{71} We shall begin then by getting clear about what Sartre means by "bad faith" before suggesting what existential authenticity might be like.

We must start by seeing how Sartre's ethics spring from his theory of being for which he has three categories. The first is Being-for-itself (etre-pour-soi). This is defined by Hazel Barnes as "The nihilation of Being-in itself; consciousness conceived as a lack of Being, a desire for Being, a relation to Being. By bringing Nothingness into the world the For itself can stand out from Being and judge other beings by knowing what it is not. Each For-itself is the nihilation of a particular being."{72} This is what a human being is when fully realized. It is a finite creature who realizes that a human being is alone, abandoned in an absurd (devoid of objective meaning or value) universe with no values except the ones that it forges for itself out of experience. For the authentic human being one is the sum of his or her actions rather than some essential thing (see Being-in-itself), an authentic person can never say "I was not myself," to excuse behaviour because the self is just the total of its past acts and nothing more. The second category is Being-in-itself (etre-en-soi), it is "Non-conscious Being. It is the Being of the phenomenon and overflows the knowledge which we have of it. It is a plenitude, and strictly speaking we can say of it only that it is."{73} This is the being of objects. It is inauthentic to seek refuge from the responsibility to make free choices by turning oneself into an object, or by permitting others to do it (which is a choice to permit in any case.) A Secretary of State who, in the name of duty, certifies a ballot measure that he believes to be immoral, or a lawyer in the attorney general's office who, in the name of statutory obligation, litigates an issue from the side that she believes is wrong, or a concentration camp guard who, "following orders,"

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perpetrates atrocities-all three are in flight from their freedom (to choose otherwise) and in denial of the fact that by acting thus they have chosen. They seek to escape responsibility for their actions by objectifying themselves with phrases as, "I am an attorney for the state, this is what such people (things?) do." It did not wash at Nuremberg. The third category of being applies only to (inauthentic) human beings, it is Being for others (etre-pour-autrui). In this category "There arises here a new dimension of being in which my Self exists outside as an object for others. The For-others involves a perpetual conflict as each For-itself seeks to recover its own Being by directly or indirectly making an object out of the other."{74} This is a common form of inauthenticity that is intuitively recognizable to most of us. The son who goes to law school because his parents' want him to become a lawyer and the housewife who loses herself in being a mother and wife and daughter-in-law to others are two obvious examples.

Anguish is very important as key to self-realization for Sartre, as it is for Heidegger. Through anguish comes "the realization that a nothingness slips in between my Self and my past and future so that nothing relieves me from the necessity of continually choosing myself and nothing guarantees the validity of the values which I choose."{75} This latter part is all important in that it points out the absurdity or objective meaninglessness of all human values. The first part, about the necessity to continually choose, demonstrates the inauthenticity of seeing one's self as a Being-in-itself, that is to liken one's self to an unconscious object rather than a conscious being capable of changing his or her behaviour, and of making choices to change one's behaviour. Sartre's famous gambler has such an existential revelation in a brilliant passage when, after having resolved to become a non-gambler, he begins to weaken in a casino [T]he total inefficacy of the past resolution. It is there doubtless, but fixed, ineffectual, surpassed by the very fact that I am conscious of it. The resolution is still me to the extent that I realize constantly my identity with myself across the temporal flux, but it is no longer me -- due to the fact that it has become an object for my consciousness. I am not subject to it, it fails in the mission which I have given it. The resolution is there still, I am in the mode of not-being. What the gambler apprehends at this instant is...the permanent rupture in determinism; it is nothingness which separates him from himself....By the very fact of taking my position in existence as consciousness of being, I make myself not to be the past of good resolution which I am.{76}

Although similar to Heidegger, one difference in accent between the two, as I indicated earlier, is that Heidegger's inauthenticity could be seen as a flight from death while Sartre's is more a flight from freedom. Both flee to Being-in-itself and Being-for-others, however, and both are fleeing from reality. Both of these can be shown in the example of the person who practices homosexuality and a person the practice offends. The person who practices homosexuality frequently has an intolerable feeling of guilt, and his whole existence is determined in relation to this feeling. One will readily see that he is in bad faith. In fact, it frequently happens that this man, while recognizing his homosexual

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inclination, while avowing each and every particular misdeed which he has committed, refuses with all his strength to consider himself a 'homosexual.' His case is always 'different,' peculiar; there enters into it something of a game, of chance, of bad luck....The critic asks only one thing...that the guilty one recognize himself as guilty, that the homosexual declare frankly...'I am a homosexual.' We ask here who is in bad faith. The homosexual or the champion of sincerity?

The homosexual recognizes his faults, but he struggles with all his strength against the crushing view that his weakness constitutes for him a destiny. He has an obscure but strong feeling that a homosexual is not a homosexual as this table is a table or as this red-haired man is red haired.... Does he not recognize in himself the peculiar, irreducible character of human reality?...He would be right actually if he understood the phrase 'I am not a homosexual' in the sense of 'I am not what I am.' That is, if he declared to himself, 'To the extent that a pattern of conduct is defined as the conduct of a homosexual and to the extent that I have adopted this conduct, I am a homosexual. But to the extent that human reality cannot be finally defined by patterns of conduct, I am not one.' But instead of this he slides surreptitiously toward 'not being' in the sense of 'not-being-in-itself.' He lays claim to 'not being a homosexual' in the sense in which this table is not an inkwell. He is in bad faith.{77} "Destiny" of course does not obtain when existence precedes essence,{78} except in the Heideggerian sense in which it is the destiny of a human being to die. This would be fine with Sartre, but any other talk of destiny vis--vis a human being is a flight from Being-for-itself. But what about the champion of sincerity, the critic of homosexuality? The critic demands of the guilty one that he constitute himself as a thing....Who cannot see how offensive to the other and how reassuring for me is a statement such as 'He's just a homosexual,' which removes a disturbing freedom from a trait and which aims at henceforth constituting all the acts of the Other as consequences following strictly from his essence. That is actually what the critic is demanding of his victim-that he constitute himself as a thing.{79}

This is what the Rightwing hate groups do to individuals when reducing them to "homosexuals" or perverts, criminals, sinners, etc. In this society to be designated "homosexual" is to be reduced in the majority's eyes to a thing, a set of ill conceived stereotypes, and thus not taken as an individual. Persons like Billie Jean King and Martina Navratilova who were admired as tennis players and respected as persons before they came out found a great deal of acceptance from the average citizen when they did reveal their homoerotic proclivities. Had they been introduced to the public as lesbians to begin with they never would have been judged as individuals. Another revealing case along these lines is that of Christian Crusade founder Billy James Hargis.{80} On a somewhat grander scale, Walt Whitman is considered the greatest poet produced by the United States, Marcel Proust the century's most accomplished novelist, and John Maynard Keynes the century's preeminent economist. All of these persons projected their personalities and achievements on society to the point a later revelation anent their sexuality became unimportant.{81} The point is that individuals can be accepted

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on their own terms if they are seen as individuals, including the fact they are homoerotic, but to be introduced as merely a homosexual, a representative of a group with a label such as lesbian or communist or born-again Christian, that is to be put in a position of having to overcome a shallow stereotype. As St. Jerome admonishes, early impressions are hard to eradicate from the mind. Another classically inauthentic mode is to say that one cannot help what one is. This reduces the individual to a person incapable of free choice or responsibility. People can tell their parents for instance that they are biologically homosexual ergo not responsible. This is fine to keep financial support flowing, but not as the basis of an authentic loving relationship. It has two other problems, one is that a typical response would be that one cannot choose one's sexual orientation, but one can refrain from engaging in sin. The other is especially deleterious to those who are not only attempting to deceive others, but themselves as well, namely that it virtually concedes that homoeroticism, or at least the practice of homosexuality is bad in some way. This means that not only is the person who takes refuge in this flight from freedom bad, but it is an essential property of theirs that is bad. This can be psychologically devastating.

The above paragraph considers the effects on the individual of the biologically determined position, but what about how the group is viewed by the rest of society. First, of course, the arguably irrelevant difference is raised to paramount importance as mentioned above, but what evidence is there that the critics would be quieted? Everyone agrees that AIDS is not deliberately contracted, yet many on the religious right advocate exiling HIV-positive persons to remote islands (except those who subscribe to the theory that it can be carried by mosquitoes, they recommend more drastic measures). In the near future nothing is likely to sway the lunatic fringe, but what about the sympathetic heterosexual? James Bond, who enjoyed as wide a public acceptance, indeed respect, as any cultural figure of the early sixties subscribed to the theory that biology is sexual destiny and reflected thus

Bond came to the conclusion that Tilly Masterton was one of those girls whose hormones had got mixed up. He knew the type well and thought they and their male counterparts were a direct consequence of giving votes to women and 'sex equality'. As a result of fifty years of emancipation, feminine qualities were dying out or being transferred to the males. Pansies of both sexes were everywhere, not yet completely homosexual, but confused, not knowing what they were. The result was a herd of unhappy sexual misfits - barren and full of frustrations, the women wanting to dominate and the men to be nannied. He was sorry for them, but he had no time for them.{82}

While I fear that 007 is not educable, his public, the public, is, and they are the landlords and employers who discriminate as well as the swing vote in ballot measures. Bond's is not the sort of response most lesbian and gay activists are after. Given that it is healthier to be one's self and take responsibility for who one is, I suggest minimizing the overall differences between persons of differing sexual orientation is preferable to exaggerating and emphasizing them. Homoeroticism must be seen as no more and no less important to individuals than

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heteroeroticism, that is to say sexuality should define an individual to the extent an individual defines her- or himself in sexual terms. Don Juan and Graham Greene's priest protagonist in The Power and the Glory can both be labeled as heterosexuals, but it is hardly informative. Some people live for sex{83} while others appear to be uninterested{84} and most people are somewhere in the middle. It is the successful strategy of the hate groups to emphasize sex preference allowing them to reduce and dehumanize their victims. I believe that showing Middle America that people are not very different from themselves is the best practical strategy to defuse the attack. As William James observed, a difference that does not make a difference is not a difference. It follows that a target that does not make a difference is not a target. This is most emphatically not to follow Messrs. Kirk and Madsen{85} who show their sagacity concerning human psychology with howlers like labeling Oscar Wilde's insights "perverse"{86} and the ingredients of "half-baked political pronunciamentos [sic]."{87} As the West's leading literary critic never tires of pointing out, "...the sublime Oscar Wilde was right about everything."{88} I presume they are contrasting Oscar's wisdom to their own, which at this point in their text consists of listing, a la Pat Robinson, ten categories of moral offenses committed by homosexuals less constrained by the fetters of bourgeois morality than themselves.{89} This is followed by a stern admonition to clean up their act,{90} so that they, Messrs. Kirk and Madsen, will be better accepted by the academic community where they are currently condemned to the outer fringes, less for their sexual orientation than their slipshod work and lack of credentials I would infer from their book. Since I reject the notion homosexuals modify their behaviour in any manner that would be untrue to their selves, I obviously do not advocate that people deny their sexual orientation, only that they not be goaded into reducing their entire identity to it by a bunch of hate mongers. Of course the targets of an election campaign to deny homosexuals their rights must group together as homosexuals and fight their oppressors, solidifying their identities as (merely) homosexuals in the minds of Middle America, who rarely sees them in any other context. This cannot be avoided, at least for the nonce.

While Sartre abounds in rich illustrations of the inauthentic and rebuffs previous philosophy as being in bad faith, he does not have much in the way of a specific account of the authentic and even seems to deny it is possible, both explicitly ("Man is a useless passion") and implicitly by never writing his promised book on ethics. So the authentic is only gestured at and implied in most of the work. There is, however, one major contribution by Sartre which can be extrapolated from the late section "Existential Psychoanalysis."{91} This notion is that every human being has a true self or lifetime project of which she or he is either aware or potentially aware through introspection. This theme is that which would unify one's life into a whole but only at its completion.{92} What then is it for a homoerotic person, or for that matter any person, to be existentially authentic? One is tempted to use illustrations as Sartre himself does so effectively. It is clear that a list including Percy Shelley, Barney Frank, Jerry Brown, Molly Bolt and Sartre himself would capture our intuitions about

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authenticity while one comprised of William Wordsworth, Mark Hatfield, Bill Clinton, Daisy Buchanan, and the Nazi collaborator Heidegger would not. This is inadequate however for two reasons.

Firstly, in all cases but the literary ones we lack access to inner states, and in some cases the life is not yet complete. Secondly, it is much too vague. How do we determine cases in the gray area, or problematic ones like Hamlet, Sir John Falstaff, or Ivan Karamazov? It may not be possible to list the properties of an authentic person. Someone who is in bad faith either by reducing themselves to an object, or allowing others to do it is inauthentic.{93} One thing is clear from our discussion, there is no essential difference between homoerotic persons and others along the spectrum, so there is no essentially different answer as to how they should best live.

It is clear then that the existentially authentic hero is an individual owning up to reality and creating her or his own values as the berman does, and not the one who has "chosen" Kierkegaard's craven leap of faith. Christianity, especially the Pentecostal white trash ilk, is not only the chief haven of those who would escape the dread of freedom and individual responsibility, it is also, by no mere fortuity, a stronghold of homophobia and other hateful practices. The homoerotic or bisexual person is in the same position as the heteroerotic, he or she must become who he or she is.


I shall now discuss more fully some of the legal consequences of the positions I have been advocating. The most commonly cited legal reason for adopting an essentialist position has to do with equal protection. Many people wish to argue that homosexuals are a suspect class deserving of equal protection. This is much easier to do if homosexuals are a distinct identifiable group, preferably marked by some immutable, biological trait over which they have no control, or so the argument goes. Before I undertake an extensive critique of this proposition, I shall briefly discuss the implications of my theory for other gay and lesbian legal issues.

First I shall state the implications of my theory 'Homosexual' is an adjective that describes acts or desires when used in strict conformity to metaphysical and authentic precepts.

Many persons have homoerotic desires to some extent, this does not in the least cause them to be essentially different from persons who do not have them. The majority has tried to objectify and dehumanize those whose sexual orientation differs from theirs, this is inauthentic of them, and it is inauthentic for those who have them to allow themselves to be reduced in this way to escape responsibility for who they are. The political agenda of homosexuals and their allies (which I shall discuss in detail below) should aim through education and political action to reduce this so-called difference to the status now enjoyed by left handed persons.

Because this process would minimize difference and deny there is even such a thing as a homosexual, the "Don't ask, don't tell" would fail because there would be nothing to ask or tell. You cannot infer conduct from a status that does not obtain, and

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albeit the military will, presumably, prohibit all sexual acts under certain conditions (e.g. in combat, in boot camp etc.) and ignore all sex acts in other contexts, if sexual orientation is seen as neither concrete nor important, it will not occur to anyone to employ it as a category. I would have been philosophically inclined to take this route in the dissenting opinions{94} in Able{95} and Steffan.{96} This is a projected result of a long campaign of education, a process of changing how non-heterosexuals are viewed by everyone in society, it must begin, of course, with non-heterosexuals themselves. "The strongest of all warriors," says Tolstoy in War and Peace, "are these two-Time and Patience."

Same sex marriage and adoption would also benefit if the gender of one's partner were deemed no more important legally than the once explosive question of skin colour is legally germane today. Take, for instance, the way same sex parent adoption was facilitated in Multnomah County, Oregon. A process of education was carried out, first with the social workers who make the determinations, and then with certain judges. The education consisted in demonstrating the lack of essential differences between persons of differing sexual orientation.

Domestic partner benefits along with employment and housing discrimination would also slowly fade as the emphasis on difference ebbed out of public consciousness. The legal arguments would be based on the premise that the state or the defendant cannot do this to me or us because I or we are citizens like everyone else, rather than "we cannot help what we are so you cannot punish us for it." The latter leads to pity and contempt, and as African-Americans have found out, malicious and baneful backlash.

The voter initiatives should be the first battleground where total victory is achieved. As in the abortion rights battle, a coalition of all progressives must mobilize against the apostles of hate and intolerance and expose them to the public ridicule that they so richly deserve, and as in the abortion referendums, kick their teeth in at the ballot box. These vicious witch hunts, ironically, provide for an opportunity to educate Middle America, and thereby a loosening of the grip that ignorance and fear have upon them. When the situation is hopeless, as in small towns in Oregon, other strategies need be employed as the recent Oregon Appeals Court victory on state/local federalism demonstrates.{97}

I now arrive at the argument that asserts that an essentialist position will lead to suspect classification for homosexuals and therefore equal protection. Because the Supreme Court has shown itself to be both homophobic{98} and averse to creating any new suspect classes, I find this claim to be dubious. In City of Cleburne v. Cleburne Living Center,{99} the Court refused to create even a quasi-suspect class for the mentally retarded. In other cases both the aged{100} and the poor{101} were also rebuffed. All three of these groups would appear to be is less disfavour with the court than homosexuals.

Cleburne also indicates that immutability is not as relevant to suspect classification as once was thought. Although mental retardation is unquestionably immutable and not the result of a choice made by those afflicted with it, the court refused to grant them suspect classification, stating,

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[I]t would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.{102} Legal scholars have also concluded that immutability is neither a necessary, nor sufficient condition for obtaining equal protection via suspect class status. Halley, after analyzing both the law and the ineffectiveness of immutability arguments in recent cases, claims that "gay-rights advocates who base their equal protection cases on the argument from immutability do so at their option."{103} Francisco Valdes states, "[A]dvocates for sexual minority equality claimants should resist all efforts to pull the case into the "choice" and "immutability" issue. As the law currently stands, the etiology of sexual orientation is not dispositive, or even relevant, to the disposition of the case."{104}

However, as has already been shown, immutability and the etiology of homosexuality is a separate issue from essentialism arguments. Many people still wish to associate homosexuality with a separate identity apart from conduct, chiefly to avoid the problem created by Bowers v. Hardwick,{105} that homosexual behaviour can be criminalized. Francisco Valdes argues that pro-gay litigants should use a status/conduct distinction in sexual orientation cases.{106} He posits that the eighth amendment of the Constitution supports arguments based on such a distinction. Under the 8th Amendment as interpreted in Robinson v. California,{107} a state cannot punish a person for their status alone; punishment must be for acts committed, or conduct. In Robinson, the Court held that the defendant could not be punished for being a drug addict, even though possession, use and sale of drugs was illegal. The status/conduct distinction was upheld in Powell v. Texas, because even though in that case the Court found that the defendant could be punished for public drunkenness, the Court also found that public drunkenness was not a status, but conduct, namely the act of appearing drunk in public.{108} Unfortunately, the courts have not applied this legal principal to sexual orientation cases, as evidenced by the military cases such as Steffan v. Perry, in which Joseph Steffan was forced to resign from the Naval Academy for the status of being a homosexual in spite of the lack of evidence of homosexual conduct.{109} In Perry, the court inferred homosexual conduct from his status. Valdes himself cites two similar cases in which a lesbian{110} and a bisexual{111} were discharged for mere status, lamenting that "the punishment of Lesbians, Gays, and Bisexuals on the basis of pure status or identity is undertaken openly."{112} Given this treatment by the courts, a status/conduct distinction becomes much less promising as a legal strategy.

As a strategy to unite lesbians, gays, and bisexuals it is dangerous and appalling. To liken the status of homosexuality to alcoholism and drug addiction is self-defeating. It is to make lesbians, gays, and bisexuals into a group of persons with a medical disease, a battle to end that classification has already

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been won. While much of the middle class is sympathetic to alcoholics, they believe that they are sick and need to be cured.

This is the point of Halley's differential of "anti-gay essentialism" from its "pro-gay" articulation. The average person does not want an alcoholic baby-sitter or teacher for his or her children, nor do they want them in positions of responsibility, afterall, they are sick. And being sick will conjure up to some minds the notion of cure, a most unappealing prospect that conjures up visions of A Clockwork Orange in my mind. This sort of reduction is not a step to assimilation, but a dead-end.

Mohr, after having refuted the radical social constructionism of Foucault, invents a more moderate one of his own in the next chapter of his book. He does so by defining gays as a minority in the normative sense, namely "a group treated unjustly because of some status that the group is socially perceived to possess independently of the behaviour of the group's members."{113} He adds to this the property of being considered and having been treated as somehow sub-human, as a lesser moral being. Mohr argues that gays are often considered in this way and so have attained minority status and they should receive the rights, benefits, and protection of this status. From this, Mohr concludes, "[G]ay studies, as the study of a minority, should be viewed chiefly as a normative inquiry rather than as either an empirical study of the world or a nonempirical study of discourses."{114} Although Mohr is careful to mention that his thesis is only that "society treats gays as though they constitute an ethnic minority,"{115} as opposed to the social constructionist position that society constructs the category homosexuality (he still holds onto his same-sex desire definition), by advocating the study of gays along these lines, he is advocating a social constructionist gay studies. Again I do not believe that it follows from the fact that society has reduced a group of people to the status of an object, that they should likewise reduce themselves. This is not to advocate quietism in the face of oppression as I shall explain after considering Halley and Cain.

As I stated earlier, Janet Halley advocates litigating from a position that she calls behavioural constructivism because it does not utilize the unnecessary and divisive immutability claims and is a middle ground between essentialism and social constructivism, that (almost) all homosexuals can embrace. She cites as one of its advantages that it does not misrepresent gay men, lesbians and bisexuals who do not accept either of the more extreme positions, so is therefore more ethical. But as has been shown, any position that labels people threatens individuality and risks inauthenticity.

Patricia Cain also cites legal/political reasons for endorsing an essentialist position regarding lesbians, even though she rejects this move in feminism. She claims that the category lesbian is too young to be destabilized, that lesbians have had very little time to construct positive identities,{116} that lesbians must emphasize their commonalties. This is a pragmatic reason, given her earlier statement, "I can see a potential practical problem with anti-essentialism. To put the matter quite simply, if 'woman' is not a stable category, how is

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it possible to build a political movement around the goal of improving the material conditions of women's lives?"{117} She wishes to protect the lesbian political movement. This is not metaphysical essentialism, but a social construction based on the present political situation. Her second reason for endorsing lesbian essentialism is that there is a core lesbian experience that creates lesbian identity and makes it an essential category.

That core experience is the emotional and erotic attraction to another women and the recognition that this attraction has occurred. Virtually everyone, however, experiences a sexual awakening, that it is so unique for lesbians (and presumably gay men) is the contingent social conditions that make it a taboo. She could maintain it is essential for homosexuals, but not heterosexuals if she claimed that the former was unnatural and confounded the normal expectations and intuitions of all people in all cultures, but this seems an unattractive option.

As I said in my critique of Mohr's pragmatic case for group identity for political purposes, I do not advocate quietism in the face of oppression. On the contrary I should urge that all people who are victimized by the ruling class and religious right fight back together, not as "gays," "blacks," "civil libertarians," "environmentalists," "welfare recipients," "illegal immigrants," and "feminists," but in one united front. Education of the masses so that they will not fear what is unknown and Other is necessary, so is political opposition to the demagogues that exploit this fear of the Other. Many persons in one of the aforementioned groups belong to other groups on the list as well, and all have in common a struggle against the forces of repression. Hitler{118} had his list which included Jews, Jehovah's Witnesses, leftists, emigrants, homosexuals, and gypsies. The New Right has their enemy list. A united opposition{119} would have the pragmatic result of making the resistance more effective because larger, better financed, and less easily typed. More middle class people will rally in the name of tolerance and the Bill of Rights than will take a stand for same sex marriage or abortion rights. The single issues are more divisive, and the opponents of all groups are often the same people.{120} The fight should and could be taken to the opposition, rather than restricting itself to defensive counter measures. Pastors who lead abortion clinic blockades should have their church services blockaded, the IRS should be encouraged to target "religious" groups who meddle in politics, businesses who contribute to hate groups, pollute the environment, or discriminate against minorities could be boycotted by a significant segment of the populace. Through education, political action, and economic pressure, the support-even anything less than active opposition to the far right-by businesses and the ruling class, could be made no longer viable. The 1992 election results have already caused a rift to develop between eastern establishment Republicans who are interested only in money, and the yahoos who commandeered their convention. On the ethical and psychological side, a massive resistance would not reduce an individual to a homosexual or an environmentalist either in her or his own mind or the minds of others. It is no doubt preferable to brandish a pink triangle in solidarity and defiance of hateful oppressors than it is to wear one in a

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concentration camp, but a world without pink triangles is better still.


{1}University of Oregon Law School, 19 April 1995. I should like to thank Professor Dom Vetri for whose seminar on Gay & Lesbian Legal Issues this paper was prepared and my colleague and writing partner in that seminar, Anne Fujita; both of whom provided me with cogent criticisms and persistent calls for clarification. I should also like to acknowledge Professors Keith Aoki and Frank Valdes for their assistance in placing this paper. {2}Views from a Window Conversations With Gore Vidal 239 (Robert J. Stanton and Gore Vidal eds., 1980).

{3}Newt Gingrich's "politics of anger" as Time Magazine calls it is in fact an exploitation of all that is dark and malignant in people, most notably resentment.

{4}I shall employ the following conventions concerning quotation marks and words double quotations as above will indicate a technical or questionable use of a word, single quotes will indicate that I am referring to the actual word in the quotes rather than its referent. 'Homosexual' then would refer to the word homosexual itself, as opposed to a person, group, or act. In logic this is referred to as the use/mention distinction. {5}Harold Bloom, The Western Canon 31 (Harcourt, Brace 1994). {6}The middle initial is an Archie Bunker misnomer that I appropriated. {7}Such categories can couple two writers of such differing aesthetic power as the brilliant Toni Morrison and the woefully inadequate Alice Walker denying the individuality of both women. This is a problem endemic to minorities, nowhere will one find Norman Mailer and Stephen King joined as "macho white male novelists of violence" for instance.

{8}The equal protection question for instance, as will be shown, by raising homosexuals to a discrete class could have a concomitant negative affect of reducing some twenty-five million diverse individuals to a group defined by one trait (homoeroticism), thus reducing them to one dimensional quasi-citizens in the eyes of many other Americans.

{9}In general most essentialists take themselves to be defining the concept or even Idea of homosexuality, while most social constructionist are answering the question of how a group of speakers define a word. Others (on both sides) lack the sophistication to make the distinction. I shall remain agnostic, at least for the nonce, for the sake of exploring the arguments critically and without an assumption that determines their outcome.

{10}See Michel Foucault's The History of Sexuality, Vol. I, An Introduction 42-49 (Robert Hurley trans., 1978) (1976) and David M. Halperin, One Hundred Years of Homosexuality and Other Essays on Greek Love 41-53 (1990). This theory is applied to gender as

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well in Judith P. Butler, Gender Trouble (1990).

{11}Daniel R. Ortiz, Creating Controversy Essentialism and Constructivism and the Politics of Gay Identity, 79 Va. L. Rev. 1833, 1838 (1993). {12}It is of course not true that one who becomes pregnant always has consciously chosen to do so, Ortiz qualifies his category by excluding cases of coercion, ignorance, and contraceptive failure. This is still an incomplete list and a sloppy category.

{13}What about Myra Breckinridge? Biological sex is determined at birth, psychological sex is another matter that may be more important, a transsexual is presumably a person who found their biological sex less essential than their psychological sex.

{14}Ortiz, supra note 11, at 1839.

{15}The history per se is not important, the point is that race is not essential because we can imagine a society where it does not matter, i.e. one where all persons have the same skin colour.

{16}One could try to achieve the early Africa analogy by heeding certain radical feminists and exterminating all men, gendercide, but males would still be aborted, so difference (by absence) would be striking. {17}Ortiz uses 'gay' most of the time, I am using the genderless 'homosexual', which I take to be an adjective, but employ also as noun for the sake of readability. 'Gay' originally meant a woman of easy virtue in the 17th century according to Gore Vidal. "Is she gay?" meant is she available. Ruthann Robson complains in Lesbian [Out]Law (Firebrand 1992) that what she calls Queer Legal Theory, and Mohr refers to as Gay Studies, ignores lesbians in favour of gays (p.22), she praises Francisco Valdes as an exception (p.26).

{18}There is plenty of evidence of bisexuality in other societies as well, see Eva Cantarella, Bisexuality in the Ancient World (Cormac Cuilleanin, trans. Yale 1992).

{19}Ortiz, supra note 11, at 1849.

{20}Richard D. Mohr, Gay Ideas 222 (Beacon Press 1992).


{22}Names, whether they refer to individuals or groups, affect the light in which their referents are seen. 'Gay', 'queer', and 'homosexual' may all have the same denotation for a community of speakers, but they hardly share a connotation. Nabokov illustrates this point beautifully at the opening of his masterpiece, "She was Lo, plain Lo, in the morning, standing four feet ten in one sock. She was Lola in slacks. She was Dolly at school. She was Dolores on the dotted line. But in my arms she was always Lolita." Vladimir Nabokov, The Annotated Lolita 9 (Alfred Appel, Jr. ed., Vintage Books 1991). The mode of presentation affects how what is named is perceived, by others, and sometimes by the individual named. This is one of the things

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at stake in the metaphysics debate.

{23}Ian Hacking, Making Up People, in Reconstructing Individualism 222, 222-36 (Thomas C. Heller et al. eds., 1986).

{24}Mohr, supra note 20, at 228.

{25}Id. at 236.

{26}Id. at 237.

{27}Id. at 238.

{28}Id. at 240-41.

{29}Janet E. Halley, Sexual Orientation and the Politics of Biology A Critique of the Argument From Immutability, 46 Stan. L. Rev. 503 (1994). {30}Id. at 517.

{31}Id. at 548.

{32}Carole S. Vance, Social Construction Theory Problems in the History of Sexuality, in Homosexuality, Which Homosexuality? 13, 21 (Dennis Altman, Carole Vance, Martha Vicinus & Jeffrey Weeks eds., 1989).

{33}Halperin, supra note 10.

{34}Halley, supra note 29, at 559.

{35}Patricia A. Cain, Lesbian Perspective, Lesbian Experience, and the Risk of Essentialism, 2 Va. J. Soc. Pol'y & L. 43 (1994).

{36}This theory is also criticized in Maia Ettinger, Color Me Queer An Aesthetic Challenge to Feminist Essentialism, 8 Berkeley Women's L. J. 106 (1993).

{37}Ortiz, supra note 11, at 1847-49.

{38}Simon Blackburn, The Oxford Dictionary of Philosophy 125 (Oxford 1994). {39}Saul Kripke, Naming and Necessity (Harvard, 1980).

{40}Names (proper and natural kind terms) are inextricably linked to the objects they name in current philosophical logic. It is important to keep them straight. For those inclined to a technical explanation of Kripke's theory concerning naming and its place in the history of ideas, here is a brief overview Historically, Frege, Russell, and Searle thought they were giving different theories of naming. Frege said proper names had both a sense (meaning) and a referent (the object named); Russell wrote that what we call proper names are not, strictly speaking, proper names at all, but just abbreviations for some definite description. In "Proper Names" Searle suggested that while no one definite description was synonymous with a given proper name, a cluster of them were associated with each name, and the name

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picked out the object that a weighted majority of them designated. John R. Searle, Proper Names, 67 Mind 166 (1958).

For Kripke these are just three heads of the same Hydra that claim sense determines reference. Kripke, siding with Mill, suggests that proper names refer directly and have no connotation whatsoever. Kripke's first argument is just to show that names do not work the way the descriptivists insist. We do not start with descriptive concepts and sort through the world until we have the object uniquely designated. Now in rare cases we do, but these just serve to illustrate the oddity of the claim. We can say (stipulate) that the name 'Midnight Rambler' picks out the mastermind of a deadly ambush of British troops in Northern Ireland last month; and when that IRA soldier is identified say, "this is the Midnight Rambler of whom we have been speaking." But this is not a picture of how we know who Garrett Epps is, or how we recognize Jerry Brown, or even to whom we refer when we use 'Karl Marx'. These three different cases, in which we refer by proper names--personal acquaintance, famous contemporaries and historical figures--are all captured by Kripke's picture A rough statement of a theory might be the following An initial 'baptism' takes place. Here the object may be named by ostension, or the reference of the name may be fixed by a description. When the name is 'passed from link to link', the receiver of the name must, I think, intend when he learns to use it with the same reference as the man from who he heard it. (Naming and Necessity, p. 96)

The other pillar of this direct reference theory is that names are rigid designators. For example, 'Secretariat' names the same object in all possible worlds (except, of course, worlds in which there is no Secretariat since he does not necessarily exist, as some people believe god does, if she exists at all). This allows Kripke to avoid a problem that confounds descriptivist theory. Look at the following argument (Joan Jett was named Joan Larkin at birth on 22 September 1960, the indicates modal necessity) (1) (Joan Jett = Joan Jett) (2) Joan Jett = Joan Larkin

(Joan Jett = Joan Larkin) This is a valid inference leading to an a posteriori necessary identity statement, a valid inference the opponents of rigid designation sheepishly deny, while Kripke embraces it with open arms as another piece of evidence for his theory.

There is another consideration concerning necessity that militates heavily in Kripke's favour. On any of the descriptivist accounts it will turn out that objects named have necessary properties. This is especially a problem for Frege and Russell but even Searle concedes the point in "Proper Names" Suppose we agree to drop 'Aristotle' and use, say, 'the teacher of Alexander', then it is a necessary truth that the man referred to is Alexander's teacher--but it is a contingent fact that Aristotle ever went into pedagogy, though I am suggesting that it is a necessary fact that Aristotle has the logical sum, inclusive disjunction, of properties commonly attributed to him . . . .

So, to claim that Aristotle was born in Athens and died a year later would not just be false, but a contradiction. That can't be right unless we accept some very hard determinism, which descriptivist theory clearly does not. Many contemporary

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philosophers take this to have refuted Frege, others merely see Frege as damaged.

{41}Strictly speaking, I should ask could it be an essential property of any person, but for our purposes is it a superfluous distinction. {42}Halley, supra note 29.

{43}Simon LeVay, A Difference in Hypothalamic Structure Between Heterosexual and Homosexual Men, 253 Science 1034 (1991).

{44}J. Michael Bailey & Richard C. Pillard, A Genetic Study of Male Sexual Orientation, 48 Archives Gen. Psychiatry 1089 (1991).

{45}Dean H. Hamer, Stella Hu, Victoria L. Magnuson, Nan Hu & Angela M.L. Pattatucci, A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation, 261 Science 321 (1993).

{46}Halley, supra note 29, at 535.

{47}Id. at 539.

{48}Tim Radford, Your Mother Should Know, The Guardian, July 17, 1993, at 23 (quoting Hamer's comments broadcast on BBC radio) (emphasis added). {49}For a critique of scientific procedure in general, see Paul K. Feyerabend's Against Method (3d ed. 1993).

{50}Lionel H. Blackman, Homosexuality A Disorder, a Disruptive Force, or an Orientation?, 16 Trial Dip. J. 275, 278 (1993).

{51}Some believe that all bisexual persons have a preference for one sex or the other at bottom, I need not refute this line. My claim is only that there is a spectrum, as to whether anyone is situated in the precise middle, I need not worry.

{52}Halley, supra note 29, at 549-50.

{53}Metaphysics is beyond the physical, beyond what we have epistemological access to, ergo our senses cannot determine the answer. Many people, especially those under the sway of empirical science and ignorant of its actual procedures, hold metaphysics in low esteem for this reason. {54}Also known as fool's gold.

{55}By which I mean merely possible, not probable or even likely.

If just one person in history actually changed their orientation that would be enough empirical evidence.

{56}One could be mistaken as to their biological parents identity, but if it is ever true of an individual that her or his biological parents are A & B, then it is always true. An individual whose biological parents are C & D is necessarily a different individual from one whose biological parents are A & B.

{57}Views from a Window Conversations With Gore Vidal, supra note

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2, at 23. {58}The same occurs in the case of race. In the film The President's Analyst (1967), a black patient (Godfrey Cambridge) relates to his psychiatrist (James Coburn) how he "found out about niggers." On his way to a predominantly white kindergarten class he noticed a group of white children running and screaming, "Run, here comes the nigger! Here comes the nigger!" Not wanting to be left out he began emulating them, running and screaming, "Run, here comes the nigger! Here comes the nigger!" He ran up to his older (third grade) brother yelling this, and his brother hit him. He then says that his brother did something that hurt him even more, he told him what a "nigger" was. "I was the nigger," he said. This shows how race is a social construction, he did not even know that he fell into this oppressed group until he was told. It also shows the pain such reductive stereotypes produce.

{59}As in self abuse, held to be a leading cause of blindness and several heinous diseases by the religious right.

{60}See Bowers v. Hardwick, 478 U. S. 186 (1986), currently the Law of the Land. {61}One thing to keep in mind throughout this paper, and I will address it specifically later, is the open persecution of persons perceived as different can cause the behaviour of those persons to be affected. No doubt Jewish persons were nervous in Nazi Germany, this however, can hardly be evidence of an essential predilection of Jewish persons to be nervous. Everyone likely to be taken for being a member of any group on Hitler's hate list was likely to be nervous.

{62}Interestingly, having more than one partner of the opposite sex at one time, either at the same instant, or on different nights of the week is not like homosexuality in the mores of the mob. A man who does so is a Lothario, a swinger, or a Don Juan, a woman a tramp or a slut. {63}Martin Heidegger, Being and Time (John Macquarrie & Edward Robinson trans., Harper & Row 1962) (1927).

{64}Jean-Paul Sartre, Being and Nothingness (Hazel E. Barnes trans., Philosophical Library 1956) (1943).

{65}At the end of Being and Nothingness Sartre writes of the ethical implications of his ontology, "We shall devote to them a future work."(628). He did not do so, so the theory that I shall outline below is necessarily an interpretation, but then current theory admonishes us that this is always the case with any text. Two of Sartre's friends, Simone de Beauvoir, The Ethics of Ambiguity (B. Frechtman trans., Citadel Press, 1967) and Francis Jeanson, Sartre and the Problem of Morality (R. Stone trans., Indiana University Press, 1980) (1947) took up the task and their works were later endorsed by Sartre. In his next major work Critique of Dialetical Reason, Vol. I (A. Sheridan-Smith trans., New Left Board, 1976) (1960) however, Sartre wrote that an individual ethics is impossible in a society with such unequal power relations and produced an heterodox Marxist critique of Western capitalism. The matter was further complicated by the

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posthumous publication of the notebooks, Notebooks for an Ethics (D. Pellauer trans., University of Chicago Press, 1992) (1983) in which he had begun the aforementioned promised work on the ethical implications of his ontology that appear to be somewhat at odds with the works his friends wrote. I shall avoid this morass to a great extent by extrapolating from only Being and Nothingness. The purpose of this paper is not to make a scholarly interpretation of Sartre, but to critique essentialism as applied to those who are homoerotic by themselves and their critics. {66}This will be a bit obscure, because so compact, it is also more extreme and less intuitive than Sartre, who is often read first in courses on existentialism. It is necessary for the structure of the paper and for scholarly and historical reasons to present it here and in compressed from. It will become less unclear in light of my treatment of Sartre, and is in any case not crucial to the central thesis of this paper.

{67}Blackburn, supra note 38, at 30.

{68}Heidegger, supra note 63, at 311.

{69}Friedrich Wilhelm Nietzsche, Thus Spoke Zarathustra in The Portable Nietzsche 184 (Walter Kaufmann trans., Viking Press 1954). {70}Quoted in Bloom, supra note 5, at 386. Sartre, for reasons that will become clear, was a savage critic of Freud, particularly the notion of unconscious drives.

{71}At least he does not appear to be, since when we read Sartre in light of Heidegger, trying to impose the latter's approach on the former, we will encounter difficulties because he addressed the problem from a different perspective. The main ingredients of Heidegger-death, choice, the crowd, the distinction between human being and the being of objects, angst and facing reality-are all there but with differing emphasis. Also Sartre, who concludes "Man is a useless passion" and promises a further work on ethics, is very rich in illustrations of what he calls "bad faith," but has little to say that is positive except to hint at the need for a "radical conversion" in a footnote.

{72}Sartre, supra note 64, at 629.



{75}Id. at 628.

{76}Id. at 33.

{77}Id. at 63-64.

{78}This is what existentialism is in a nutshell. For Plato and other essentialists, essence precedes existence, that is the form or Idea of something determines what its instantiation will be. For Sartre, existence precedes essence, so a person exists, then

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acts and his or her "essence" is merely the sum total of his or her actions. A person chooses to be who they are because they are free to do so, and therefore responsible as well. {79}Sartre, supra note 64, at 65.

{80}Playboy Magazine 222 (March 1980). "Popular right-wing radio evangelist and founder of the American Christian College in Tulsa, Oklahoma, spoke out against showing sex on TV, claimed that the Communists had invented rock 'n' roll and sermonized against pornography. But in 1976, Time magazine disclosed that he had been having sex with both male and female students from his college. His secret came to light when, on their wedding night, a couple divulged to each other that they both had had sexual relations with Hargis. When confronted by his accusers, the fundamentalist attributed his bisexual activities to 'genes and chromosomes.' Hargis continues to conduct his Christian Crusade." In addition to corroborating the above point and providing wry amusement, this also serves to illustrate the inauthenticity of flight from responsibility. {81}That Whitman may actually have been better characterized as autoerotic rather than homosexual is not relevant here, the point is that he is taken to be homosexual, but still accorded the status of our National Poet. Proust, who was half-Jewish and homosexual, made his narrator neither, and has been castigated by many pro-gay critics as a result. His switch, however, was not for prudential reasons, but for aesthetic ones. He needed his Narrator detached from the Cities of the Plain mythology. Nonetheless, at least twenty other characters in A la recherche du temps perdu are associated with what Proust terms sexual inversion Albertine, Andree, Gilberte, Charlus, Odette, Saint-Loup, Argencourt, Nissim Bernard, Leonor Cambremer, Chatellerault, Foix, Prince de Guermantes, Jupien, Lea, Legrandin, Esther Levy, Morel, Theodore, Vaugoubert, and Mlle. Vinteuil. {82}Ian Fleming, Goldfinger 162-63 (Signet 1960) (1959).

{83}Warren Beatty, at least in the popular imagination.

{84}Television evangelists for example, of course history has proven that appearances can be deceiving in this area.

{85}Marshall Kirk and Hunter Madsen, After the Ball (1989). {86}Id. at 289.

{87}Id. at 289-290. 'Pronunciamientos' is the correct spelling. {88}Bloom, supra note 5, at 16.

{89}Kirk and Madsen, supra note 85, at 280-356.

{90}Id. at 356-360, including "A Self-Policing Social Code" where the authors (unintentionally) rival Wilde.

{91}Sartre, supra note 64 at 557-575.

{92} This is important also because it implies Heidegger's thesis that the authentic being must be a being-towards-death. Thus, once again the two men seem to have a shared tenet anent

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existential authenticity when examined in such a light.

{93}The existentially authentic individual was not born that way; ergo, had to come to be so of her or his own volition. This is produced by an awareness of reality, the reality of human being. Dread and angst build into an ontological avalanche that the candidates for authenticity must dig their own selves out of. They emerge with the awareness that everything is gratuitous, that they are their possibilities, that they have free wills and must choose their lives and values and thus create themselves in full realization that their own death awaits as a definite possibility that could occur at any time. They must not retreat to the safety of the canaille nor attempt to objectify themselves albeit some attempt at the latter may be virtually inevitable. Now that they know reality they must seek themselves through existential analysis, that is to say determine what their individual life project is and execute it (knowing it is absurd).

If reality is not painted in pretty pastels (and it is not) that is no argument for seeking a mob-proven palliative such as narcotics, religion or stultifying bourgeois heat-death. It is inauthentic not only to retreat from reality but to fail to embrace it. The existentially authentic individual must choose that things be as they are, not only is the resoluteness to view the world authentically necessary, but because a person has to be what he or she is they must also choose it to be so as if a Nietzschean eternal return obtained. This is so because only by choosing does one become responsible and authenticity demands responsibility consciously taken in the face of the absurd. {94}But for me legal pragmatics are an overriding consideration when people's rights are threatened.

{95}Able v. United States, 863 F.Supp. 112 (E.D.N.Y. 1994). {96}Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994).

{97}deParrie v. Oregon, 133 Or.App. 613 (1995).

{98}See Bowers v. Hardwick, 478 U.S. 186 (1986).

{99}City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). {100}Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976). {101}San Antonio School District v. Rodriguez, 411 U.S. 1 (1973).

{102}Cleburne, 473 U.S. at 445-46.

{103}Halley, supra note 29, at 516.

{104}Francisco Valdes, The Status/Conduct Distinction and Sexual Orientation Exploring a Constitutional Conundrum, 50 Nat'l Law. Guild Practitioner 65 (1993).

{105}Bowers v. Hardwick, 478 U.S. 186 (1986).

{106}Valdes, supra note 104.

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{107}Robinson v. California, 370 U.S. 660 (1962).

{108}Powell v. Texas, 392 U.S. 514 (1968).

{109}Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994).

{110}Pruitt v. Cheney, 943 F.2d 989 (9th Cir. 1991).

{111}Schowengerdt v. United States, 944 F.2d 483 (9th Cir. 1991).

{112}Valdes, supra note 104 at 69.

{113}Id. at 248.

{114}Id. at 252-53.

{115}Id. at 251.

{116}This is not great history, given Sappho and her followers on Lesbos circa 600 B.C., 'young' seems to be a dubious adjective.

{117}Cain, supra note 35, at 53.

{118}I believe it is worthy of note that while everyone in our society this side of the Church of the Aryan Nation agrees that the policies of Hitler and Nazism are quintessential examples of evil, the OCA and other opponents of homosexuality come close to adopting their exact position on the issue, if not all of their tactics.

{119}This could be seen as a larger version of Jesse Jackson's Rainbow Coalition, better organized, better financed, larger, and not associated with one personality no matter how well intentioned.

{120}This is not to preclude acts of individual retaliation against those prominent homophobic hate mongers who have dedicated themselves to destroying the lives of their chosen scapegoats. Crypto-fascist political terrorism invites an in kind response from both those pursuing personal vendettas, and politically engaged resistance groups. SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE:



I. Sexual Stereotyping

A. The Use of Sexual Stereotypes B. Sexual Stereotyping and Sexual Orientation II. Domestic Partnership Benefits

A. Legal Recognition of Domestic Partnerships B. Developments in the Law Regarding Domestic Partner

Benefits C. Creating A Domestic Partner Benefits Plan III. Employment Discrimination Based on Sexual Orientation

A. Introduction ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 33---------------------------------------

B. Federal Law C. State, County and Municipal Laws D. Remedies Under Other Legal Theories E. Public Employees: Constitutional Standards F. Public Employees: Government Interests IV. Sexual Orientation Harassment

A. Overview B. Harassment of Men and Women is Prohibited C. Same-Sex Harassment D. Same-Sex Harassment: Quid Pro Quo Cases E. Same-Sex Harassment: Hostile Work Environment F. Same Sex Harassment: Hostility Based on Sexual

Orientation Does not Create Environmental Harassment Claim

G. Harassment of Both Sexes H. Local Laws Prohibiting Sexual Orientation

Harassment V. Domestic Partnership Benefits: Samples Policies and

Related Information

*Robert B. Mison (San Francisco), Steefel, Levitt & Weiss and Walter Cochran-Bond (Los Angeles), Bettina B. Plevan (New York) and Paul Salvatore (New York), Proskauer Rose Goetz & Mendelsohn.

This Outline contains updated excerpts from Avoiding and Defending Against Claims of Gender and Sexual Orientation Discrimination in the Workplace originally presented by Proskauer Rose Goetz & Mendelsohn on October 6, 1993 at its annual Law and the Workplace seminar and is reprinted here with permission.

I. Sexual Stereotyping

The use of stereotypical assumptions about men and/or women in employment decisions is a form of gender discrimination prohibited by law. Recent case law has addressed the issue in the context of professional organizations, frequently regarding promotion decisions.

A. The Use of Sexual Stereotypes

1. In 1989, the Supreme Court ruled that dis-

crimination on the basis of sex stereotyping violates Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Hopkins, a senior manager at an accounting firm, was denied consideration for partnership because she was not deemed "feminine" enough by the partners who were evaluating her. The evaluation committee solicited evaluations from the entire partnership. Among the subjective evaluations were comments describing Hopkins as "macho," and "overcompensating for being a woman," and suggesting that she take "a course in charm school" and "walk more femininely, talk more femininely, dress more femininely, wear make-up,

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have her hair styled and wear jewelry." Id. at 235. The U.S. Supreme Court held that the consideration of these comments in the evaluation process was impermissible sex discrimination:

An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.

Id. at 251.

The district court on remand awarded Hopkins admission to partnership, backpay in the amount of

$371,000.00 and attorney's fees. Hopkins v. Price Waterhouse, 737 F. Supp. 1202 (D.D.C.), aff'd, 920 F.2d 967 (D.C. Cir. 1990).

1. Ezold v. Wolf, Block, Schorr and Solis-Cohen,

751 F. Supp. 1175 (E.D. Pa. 1990), rev'd, 983 F.2d 509 (3d Cir. 1992): At the District Court level, the court held that a law firm denied a female associate partnership while it granted partnership to a number of less qualified male associates. In reaching the conclusion that the firm had discrim- inated, the district court considered that the firm had criticized the female associate for being: "too involved with women's issues in the Firm," 751 F. Supp. at 1192; and "'very demanding'" and insufficiently "nonassertive and acquiescent to the predominantly male partnership." Id. at 1189.

The Court of Appeals, however, disagreed and held that the District Court had erred by substituting its judgment for that of the firm's evaluation committee. The proper analysis should not have been whether in the court's view the lack of legal analytical ability was crucial to success as a partner. Rather, the court should have analyzed whether male associates who were granted partnership had been similarly criticized.

1. Bruno v. City of Crown Point, 950 F.2d 355

(7th. Cir. 1991), cert. denied, 120 S. Ct. 2992 (1992): During a job interview for the position of paramedic on an ambulance, the employer asked the sole female applicant questions relating to child care, her spouse's feelings about her seeking the job and her spouses's job, which the employer did not ask male applicants. The Court of Appeals stated: "While family questions are

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important, an interviewer should not single out women and focus on them as if they were the only sex concerned about how family responsibilities may affect the demands of the job." 950 F.2d at 362.

2. Drinkwater v. Union Carbide Corp., 904 F.2d

853 (3d Cir. 1990): In attempting to establish a sexual harassment claim based on a hostile environment, a female market research employee alleged that her employer made impermissible demands upon her concerning her makeup, eyeshadow and clothing. Although finding that there was insufficient evidence to sustain the claim, the Court of Appeals stated that:

Undue preoccupation with what female employees look like is not permissible under anti-discrimination laws if the same kind of attention is not paid to male employees. Traditional ideas about what a woman should look like are not legitimate criteria for evaluating women in the workplace.

Id. at 862-63.

1. Vincenti v. Hilliard-Lyons, Inc., 1991 U.S.

App. LEXIS 29376 (6th Cir. 1991): An employer terminated a female trader after she became engaged to the son of one of its competitors because the employer was concerned that the female employee would divulge proprietary information. The female employee alleged that although a number of male traders were married to women who worked at competitors none of them were terminated because the employer believed that women were more likely than men to engage in "pillow-talk."

In upholding the decision in favor of the employer, the Court of Appeals acknowledged that existence of the stereotype, but held that the employee had presented no directed evidence that the employer had relied on the stereotype in reaching its decision to terminate her. See id. at *10.

A. Sexual Stereotyping and Sexual Orientation

1. Although sexual orientation was not an issue

in Price Waterhouse, gay plaintiffs who can show similar gender stereotyping may also have a cause of action. Note, Sex(ual Orientation) and Title VII, 91 Colum. L. Rev. 1158, 1180 (1991) (hereinafter Sexual Orientation)).

2. A few courts have rejected arguments that

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discrimination against homosexual male employees because they are "effeminate" violates Title VII. See, e.g., Smith v. Liberty Mutual Ins. Co., 569 F.2d 325 (5th Cir. 1978); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979).

3. Employers can claim in their defense that the

employee was treated differently because of sexual orientation (which is currently permissible under Title VII) and not on the basis of gender stereotyping. (But protection is available under some state discrimination laws. See infra Part III(c)).

a. The Sixth Circuit rejected on two

grounds a Price Waterhouse claim by a homosexual employee whose co-workers harassed him by describing the sexual acts they presumed that he performed. Dillon v. Frank, 1992 U.S. App. LEXIS 766, 58 Empl. Prac. Dec. (CCH)  41332 (6th Cir. 1992).

First, the court held that the co-workers would have objected to the sex acts regardless of whether a woman or man had performed them, so no gender discrimination was involved.

Second, the court said that whereas in Price Waterhouse the plaintiff was placed in a "Catch-22" situation because the "male" traits such as aggressiveness for which she was penalized were also traits she needed to be promoted, Dillon's supposed activities or characteristics were irrelevant in the workplace and thus did not place him in such a Catch-22. Dillon, 1992 U.S. App. LEXIS 766, at *28-29.

1. A claim of gender stereotyping may be the

only potential claim available to gay men and lesbians under Title VII. In fact, some commentators have suggested that gay people are discriminated against because they do not conform to an expectation of gender roles, and thus all discrimination on the basis of sexual orientation is actually impermissible gender stereotyping. See, e.g., Sexual Orientation, supra, at 1183; Developments -- Sexual Orientation and the Law, 102 Harv. L. Rev. 1508, 1580-1581 (1989) (hereinafter Sexual Orientation and the Law).

Although this argument has not been adopted in the Title VII context, courts and legislatures have considered it in other contexts. For example, the Minnesota sexual orientation anti-discrimination law includes in its protected class definition

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anyone "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness." 1993 Minn. Ch. Law 22 (1993).

I.Domestic Partnership Benefits

Most benefits available to the legal spouses of employees are not available to unmarried domestic partners of employees. Unmarried workers in long-term relationships, both opposite-sex and same sex relationships, are increasingly asserting that they are not being compensated equally to similarly situated married co-workers. Domestic partnership benefits raise many legal issues relating to discrimination based on marital status and sexual orientation, tax law treatment, and COBRA rights.

Federal, state and local laws do not expressly require an employer to provide domestic partnership benefits. Nevertheless, an increasing number of employers and law firms are offering domestic partnership benefits to their employees.

Advocates of domestic partnership rights focus on two arenas of change: (1) legal recognition of or registration for non-traditional relationships, and (2) the extension of employer-provided benefits to non-married domestic partners.

Generally, a "domestic partnership" refers to "two persons who reside together and who rely on each other for financial and emotional support." Robert L. Eblin, Domestic Partnership Recognition in the Workplace: Equitable Employee Benefits for Gay Couples (and Others), 51 Ohio St. L.J. 1067, 1069 n.11 (1990). Though often included in the definition, a sexual relationship is not necessarily a requirement of a domestic partnership. Id.

A. Legal Recognition of Domestic Partnerships

1. State Law Provisions

Currently, no state recognizes marriages between two persons of the same sex. Attempts have been made to enact statewide registration of domestic partnership registration, but to date they have been unsuccessful.

Recently, the Hawaii Supreme Court ruled that denying same-sex couples the right to marry may violate the Equal Protection Clause of Hawaii's Constitution. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). A plurality of Hawaii's Supreme Court found the state's marriage statute to be a prima facie violation of Hawaii's equal protection guarantee. Since "sex" (or gender) is a protected class in the Hawaii Constitution, and marriage is a civil right protected by Hawaii's Equal

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Protection Clause, the plurality required the state on remand to show that its policies limiting marriage to opposite-sex couples serve a compelling state interest and are narrowly drawn to serve those interests without unnecessarily abridging constitutional rights. The presumptively unconstitutional discrimination was viewed as being based on the plaintiffs' sex, not on their sexual orientation. Although this opinion raises the prospect that Hawaii might become the first state to recognize same-sex marriages, the outcome is by no means certain. But see, Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995) (D.C.'s Human Rights Act did not require D.C.'s marriage statute to include same-sex marriages).

1. Municipal Ordinances

Several municipalities have passed measures allowing unmarried couples to register as domestic partners. See, e.g., Ann Arbor, Mich., Code  9:85 - 9:95 (1991); Atlanta, Ga., Ordinance 93- 0-0776 (1993); Berkeley, Cal., Admin. Proc. No. 2- 37 (1988); Ithaca, N.Y., Ordinance No. 91-5 (Jan. 28, 1991); Madison, Wis., Code  7.1 - 7.8 (1991); Minneapolis, Minn., Code ch. 142 (1991); New York City, N.Y., Executive Order No. 48; (Jan. 7, 1993); San Francisco, Cal., Code ch. 62 (1990); West Hollywood, Cal., Code  4220 - 4228 (1985).

a. New York City, New York: A domestic

partnership is defined as two people, both of whom are 18 years of age or older, neither of whom is married or related by blood in a manner that would bar their marriage in New York State, of a close and committed personal relationship, who live together and have been living together on a continuous basis, and have executed a registration certificate as domestic partners with the City Clerk.

b. San Francisco, California: Domestic

partners are defined as two adults who have chosen to share one another's lives in an intimate and committed relationship with mutual caring, who live together, and have agreed to be jointly responsible for basic living expenses incurred during the domestic partnership. A declaration of domestic partnership form must be registered with the County Clerk.

Although some municipalities provide for the extension of benefits (some including healthcare packages) to the domestic partners of municipal employees (see, e.g., Los Angeles, New York City,

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San Francisco and Seattle), none of the registration ordinances require that private employers provide such benefits.

A. Developments in the Law Regarding Domestic Partner


Domestic partner advocates have attempted to obtain benefits from public and private employers through the collective bargaining process, by invoking statues prohibiting marital status discrimination and sexual orientation discrimination, and/or by reliance on employer policies against discrimination. Although employees have been unsuccessful to date, litigation continues, and in the future anti-discrimination laws might be extended by amendment or incorporation to cover domestic partner benefits.

1. Marital Status Discrimination Claims

Gay men and lesbians have argued that the granting of employment benefits to only an employee's legally recognized spouse is unlawful marital status discrimination. Because gay men and lesbians cannot marry, as no state currently recognizes same-sex marriages, domestic partnership advocates argue that treating non-married people differently is discrimination.

a. Federal Law does not prohibit marital

status discrimination.

The Equal Employment Opportunity Commission ("EEOC"), however, has stated in its guidelines that employer rules that forbid or restrict the employment of married women unlawfully discriminate against women if those rules do not also apply to married men. (29 C.F.R.  1604.4(a) (1992)).

a. State law:

i. Many states include marital status dis- crimination among the enumerated categories upon which an employer may not discriminate. See, e.g., Alaska Stat.  18.80.220 (1986); Cal. Gov't Code  12940(a) (West 1980); Conn. Gen. Stat. Ann.  46a-60 (West 1986); Del. Code Ann. tit. 19,  711 (1979); D.C. Code Ann.  1-2512 (1987); Fla. Stat. Ann.  760.10(2) (West 1986); Haw. Rev. Stat.  378-2 (1985); Ill. Ann. Stat. ch. 68, para. 2-102 (Smith-Hurd 1989); Md. Ann. Code art. 49B,  16 (1979); Mich. Comp. Laws Ann.  37.2202(1) (West 1985); Minn. Stat. Ann.  363.03 Subdiv. 1 (West Supp. 1991); Mont.

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Code Ann.  49-2-303 (1989); Neb. Rev. Stat.  48-1104 (1988); N.H. Rev. Stat. Ann.  354- A: 8 I-III. (1984); N.J. Stat. Ann.  10:5- 12 (West 1976); N.Y. Exec. Law  296 U (McKinney 1982); Or. Rev. Stat  659.030 (1989); Wash. Rev. Code Ann.  49.60.180 (West 1990); Wis. Stat. Ann.  111-321-322 (West 1988).

ii. State and local prohibitions against marital status discrimination are designed primarily to ensure that an individual's status as a married person or as a single person is not the basis for providing employee benefits or making other employment decisions. To date, courts have not generally held that these state and local laws require employers to offer benefits to unmarried partners.

1. A few courts have recognized that the

granting of domestic partnership benefits to only the legally recognized spouses of employees violates local marital status and sexual orientation discrimination laws.

a. Gay Teachers Ass'n v. Board of Educ. of

the City of New York, N.Y.L.J., Aug. 23, 1991, at 21 (Moskowitz, J.): The New York Supreme Court held that the Gay Teachers Association had alleged a cause of action under Executive Order No. 28 which prohibits discrimination based on sexual orientation and under the New York Human Rights Law based on marital status discrimination. The case has thus far survived a motion to dismiss and is still pending.

b. Anglin v. Minneapolis, Minneapolis

Commission on Civil Rights, No. 88180-EM-12 (Nov. 17, 1992): The Minneapolis Commission ruled that the denial of benefits to the same-sex partners of three librarians violated the City's ordinance which prohibits discrimination based on affectional preference. The commission also held that the refusal to grant benefits to the domestic partners of the librarians had a disparate impact upon lesbians. But see, Lilly v. City of Minneapolis, 527 N.W.2d 107 (Minn. App. 1995) (city ordinance granting health benefits to domestic partners of municipal employees is ultra vires and without legal force).

2. A number of courts have recently

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extending to unmarried cohabitants rights that have historically been reserved for "traditional families." Although not addressing domestic partnership benefits directly, a new definition of terms such as "family" and "spouse" may affect the manner in which marital status statutes are applied.

a. Braschi v. Stahl, 74 N.Y.2d 201, 543

N.E.2d 49, 544 N.Y.S.2d 784 (1989). The New York Court of Appeals extended the definition of "family" under New York City's rent control law to include same-sex couples living together in a committed relationship. The court held that determining what constituted a family under the statute required "an objective examination of the relationship of the parties . . . including the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services." 74 N.Y.2d at 212-13, 542 N.E.2d at 55, 544 N.Y.S.2d at 790.

It is possible that the court could redefine "spouse" in a similar fashion and thus require that domestic partners be accorded the same benefits as traditional spouses.

a. Reep v. French, Civil No. 89-4229 (Mass.

Dist. Ct., Northampton Div. July 9, 1990), appeal filed, No. A.C. 91-P-392 (Mass. App. Ct. July 25, 1990). The court held that a woman who left a job to follow her unmarried partner left for "good cause," and was consequently entitled to unemployment insurance benefits.

b. In re Michael D., SF 24774, Cal. Unempl.

Ins. App. Bd. (Sept. 13, 1985). A state appeals board held that a gay man who left work to care for his lover who was dying of AIDS had left for "good cause" and was entitled to benefits. Though the men were not related by blood or marriage, they were "family members" within the meaning of the statute. Similarly, unmarried partners have been found to be "good faith" family members for workers' compensation purposes.

c. But see, Ross v. Denver Department of

Health and Hospitals, 1994 Colo. App. LEXIS 97 (April 7, 1994). A Colorado appeals court denied family sick leave benefits to a

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lesbian employee for the time she took off to care for her domestic partner. The statute covering public employees contains an exhaustive list defining who is a family member for purposes of sick leave benefits, including husbands and wives, but not domestic partners. Id. at *3. The court strictly adhered to the letter of the statute, emphasizing that domestic partners are not covered.

1. Employer Policies

Many employers have voluntarily adopted non-dis- crimination policies that prohibit, among other things, discrimination in compensation on the basis of sexual orientation and/or marital status.

In those situations when employers have a such an internal policy, an employee may contend that the denial of domestic partnership benefits is a violation of that policy. See, e.g., Gay Teachers Assoc. v. Board of Ed. of the City of New York, N.Y.L.J., Aug. 23, 1991, at 21 (Moskowitz, J.).

Employees bringing such a claim would have to prove that: the employers' internal employment policies are applicable and binding, and benefits are a form of compensation to which the employee is entitled.

a. In Newport News Shipbuilding & Dry Dock

Co. v. EEOC, 462 U.S. 669, 682 (1983), the Supreme Court held that health insurance and other fringe benefits are "compensation, terms, conditions, or privileges of employment." The Court in that case found that a health plan that provided more generous pregnancy benefits to female employees then to wives of male employees, was unlawfully discriminatory.

1. Collective Bargaining

Unions have begun to pressure employers to provide domestic partner benefits, particularly if their collective bargaining agreements contain non-dis- crimination clauses covering marital status and sexual orientation.

a. In 1981, District 65 UAW Writers,

Editorial and Clerical Workers Union negotiated a compromise agreement with the Village Voice, under which the newspaper's unofficial policy of extending benefits to unmarried straight couples was extended to all employees. Martha McDonald, Domestic

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Partner Benefits Changes, Business & Health 11, 11-12 (Oct. 1990).

b. In 1986 employees of the city of Santa

Cruz, represented by the Service Employee International Union, brought the issue of domestic partner benefits to the bargaining table, and negotiated it into their contracts. Santa Cruz Action Network, Volume IX, No. 1 (1990).

1. Tax Law

Unlike health benefits provided to married partners, which are not taxable, health benefits provided to domestic partners are in most instances taxable to the employee. Although the IRS has not issued formal guidance on this issue, it has issued four private letter rulings reciting this principle. See Priv. Ltr. Rulings 90-34-048, 91-11-018, 91-09-060, 92-31-062. Because domestic partner benefits are taxed, qualified employees might be reluctant to take advantage of the benefits when they are available. One city found that the number of domestic partners choosing coverage under its health care plan dropped fifty percent when the city began withholding taxes on the imputed income attributable to the benefit.

a. Coverage:

Generally, benefits available to an individual in connection with someone else's employment are taxable to the employee. A significant exception to this rule is health care coverage for spouses or dependents. Under current tax rules, domestic partners generally would not qualify for this exclusion. Consequently, the employee will be taxed on the fair market value of the benefit.

An employee with a domestic partner might qualify for the exclusion if he or she can demonstrate that his or her domestic partner is either a common law spouse under state law or a dependent for tax purposes.

a. Other tax issues might arise if an

employer provides domestic partnership benefits in the following contexts: medical expense reimbursements, alternative health plans such as cafeteria plans or flexible spending accounts and COBRA.

A. Creating A Domestic Partner Benefits Plan

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Because lesbians and gay men may not marry their partners, some employers have concluded that it is unfair to deny benefits to lesbians and gay employees who are involved in long-term, "marriage-like" relationships.

Employers considering offering domestic partner benefits to their employees must determine: who will be eligible, what benefits will be offered, and how the benefits will be administered.

1. Who will be eligible

a. Opposite-Sex Partners

Most domestic partnership benefits plans offer coverage to same-sex and opposite-sex partners. See, e.g., Plan for Ben & Jerry's Homemade Inc., Levi Strauss & Co., City of San Francisco, Ziff-Davis Publishing, International Data Group, and Xerox Corp..

a. Same-sex partners

Some employers such as Home Box Office, Milbank, Tweed, Hadley & McCloy, Lotus Development Corp., Montefiore Medical Center, The Walt Disney Company and Stanford University, limit their plans to same-sex partners only.

The most common reason given for this policy is that opposite-sex partners have the option to marry and receive spousal benefits, while lesbians and gay men do not.

Another reason for limiting benefits to same- sex partners is cost. For example, while Stanford University's task force recommended extending benefits to opposite sex couples, it acknowledged that if resources allowed for an extension of benefits to only one of the two groups, a stronger case existed for benefits for same-sex than for opposite-sex couples.

i. The New York State Insurance

Department recently concluded that extension of domestic partner benefits to only same-sex couples would be lawful. In a letter date June 9, 1994, the Department cited as a rational basis for its conclusion of the fact that heterosexual partners are not prevented from receiving insurance benefits through the normal channels of marriage.

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Additionally, the Department recognized the cost of extending benefits to opposite sex partners. (Letter from Donna Freireich, Deputy Superintendent and General Counsel, State of New York Insurance Department, to Joseph Bress, Director, New York State Governor's Office of Employee Relations of 6/9/94, at 2-3.)

Nonetheless, heterosexual employees who are in stable and committed relationships arguably should receive benefits for their partners for the same reasons that lesbian and gay employees do.

In addition, unmarried opposite-sex couples in benefit plans along with same-sex couples avert charges of discrimination, and often make the proposal more palatable to unions, fellow employees and the public.

a. Children of partners

Many employers provide the same benefits to children of the domestic partners of employees as to children of spouses of employees.

1. What benefits to offer

The most significant benefit that can be offered to domestic partners is health insurance. However, many employers also extend other, less costly benefits, in addition to -- or in lieu of -- health insurance.

a. Health Insurance:

i. Large Employers

Because many insurance companies will not provide coverage for domestic partners, large employers that are self-insured often find it easier to offer domestic partner benefits than do small employers relying on outside insurance.

Nevertheless, larger employers might have trouble procuring stop-loss, minimum premiums or other excess coverage, or coverage through HMOs. HMOs have taken a wait-and-see attitude, to see if other carriers are willing to provide coverage. Linda M. Laarman, Employer Health Coverage for Domestic Partners--Identifying the Issues, 18 Employee Relations L.J. 567, 570 (1993)

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(hereinafter "Laarman").

i. Small employers

Small employers, which are typically not self-insured, might have a more difficult time obtaining coverage for domestic partners, especially if their carrier engages in individual underwriting (assessing the health of each potentially insurable individual).

Some small employers might opt to subsidize the cost of individual policies purchased by domestic partners--rather than adding them to the existing plan. Laarman, supra, at 570-71.

Buying pools might allow small employers to band together to purchase insurance thereby decreasing risk and reducing cost. Moreover, if "community rating" becomes mandatory, insurers will not be able to raise costs based on the risk associated with one individual. Laarman, supra, at 571.

Over time the experience of most companies has been that domestic partner coverage does not add significantly to the cost of providing benefits. Hence, insurers may become more willing to insure domestic partners.

a. COBRA Benefits:

Even though no employer is required by law to extend domestic partner benefits under COBRA, some employers voluntarily choose to offer COBRA-like benefits. Several entertainment companies, such as MCA, Inc., Viacom, Inc., Home Box Office and Warner Bros., have constructed plans that provide continuation of coverage to "spousal equivalents" and their dependents upon the termination or death of the employee.

a. Death/Bereavement Leave Policies:

In accordance with the policy behind recognizing the family like nature of non- married couples, extensions of death and/or bereavement leave to employees in the event of the death of a domestic partner, a parent or child of a domestic partner, is a fairly inexpensive method of acknowledging those relationships.

Apple Computer, Inc., for example, provides

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medical and dental benefits to same-sex partners only, but grants family leave and bereavement benefits for both same- and opposite-sex partners.

a. Family and Medical Leave:

Although the Family & Medical Leave Act of 1993, does not require that employers extend leave to employees to care for their unmarried domestic partners, (Interim Final Regulations reprinted in Daily Lab. Rpt. (BNA) Special Supplement at S-37 (June 4, 1993)), some employers grant family leave to employees to care for their domestic partners as well as the children of their partners.

1. How to Administer the Plan

a. Clearly Define Who is Covered

For example:

Two adults of the same sex [or two adults who are not legally married] who have chosen to share their lives in an intimate and committed relationship, reside together and share a mutual obligation of support for basic necessities of life.

a. Establish a Process for Verifying the


i. An employer may require that employees provide proof that (s)he lives with and is financially interdependent with the person for who domestic partnership benefits are being claimed.

ii. An employee may be asked to sign an affirmation which states that the employee and the domestic partner are:

(1) not related by blood to a degree of closeness that would prohibit legal marriage;

(2) mutually responsible for costs of basic living expenses;

(3) both at least the age of consent in the state in which they reside;

(4) in a committed relationship which has been in existence for at least one year,

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(5) residing together and intend to do so permanently; and,

(6) not married to anyone else.

iii. Documentation and Waiting Periods:

(1) Registration

An employer may require that an employee register as domestic partners with the county or city clerk if applicable.

(1) Waiting Period

An employer may require that benefits for a domestic partner do not become effective for 90 days or six months following the application for benefits.

A waiting period is a very practical, easily verifiable requirement, offering no difficult problems of proof or administrative inconvenience to either employers or insurance companies. It is one of the most effective ways to combat adverse selection--an employee will usually not try to obtain benefits for a sick friend or relative when he or she would be forced to wait a significant time before receiving coverage. Of course, a waiting period also means that significant health needs of a bona fide partner may go unmet.

a. Consider Tax Consequences

Employers should plan to withhold the fair market value of the cost of the benefit to the employee and comply with the tax code as outline above. See Section II(B)(6) supra.

iv. Employers should consider whether any

process they establish for verification is anymore burdensome for same-sex couples than for marries couples.

1. Other Legal Considerations:

a. Homosexual sodomy is still illegal in

half the states. Although there is no known case, theoretically an employer could be held liable for "aiding and abetting" illegal cohabitation. Linda M. Laarman, Employer Health Coverage for Domestic Partners-- Identifying the Issues, 18 Employee Relations L.J. 567, 578 (1993).

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b. Coverage of domestic partners might create unintended consequences for the employee in states such as California, where palimony is a possibility.

c. Employers should carefully consider

whether it is wise to offer domestic partnership benefits to only same-sex partners. It is possible that employees with opposite-sex domestic partners could maintain an action for marital status or sexual orientation discrimination under state and local ordinances.

I. Employment Discrimination Based on Sexual Orientation

A. Introduction

Sexual orientation discrimination law is one of the most rapidly growing and changing areas affecting employers. A national gay rights bill is currently pending in Congress. On the local level, the number of states, counties and cities with laws prohibiting such discrimination has multiplied rapidly in the last decade.

The effects of these laws can be significant for employers and employees alike. Employees have won substantial awards in sexual orientation discrimination cases, and employers have been forced to make substantial changes in their recruitment, hiring, education, and workplace conduct and policies.

A. Federal Law

No federal law prohibits discrimination on the basis of sexual orientation. Every circuit that has considered such cases under Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq., has held that the Title VII does not prohibit such discrimination.

1. "Sex" Does Not Include Sexual Orientation

The Civil Rights Act of 1964 was enacted primarily to bar discrimination on the basis of race. There is little legislative history regarding the prohibition on discrimination on the basis of sex.

Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977). In the absence of legislative history courts have relied on the 1972 Amendments to Title VII and the fact that all attempts to amend the Act to include sexual orientation have failed, concluding that the "because" language in the Act was intended to benefit women and to refer only to gender. Id. at 662-3

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(construing 42 U.S.C.  2000e-2(a)(1), (2)(19)). Consequently, courts have not interpreted "sex" as including sexual orientation.

a. DeSantis v. Pacific Tel. and Tel. Co.,

608 F.2d 327, 329-30 (9th Cir. 1979) ("[W]e conclude that Title VII's prohibition of `sex' discrimination applies only to discrim- ination on the basis of gender and should not be judicially extended to include sexual preference such as homosexuality") (footnotes omitted).

b. Dillon v. Frank, 1992 U.S. App. LEXIS

766, *11-12, 58 Empl. Prac. Dec. (CCH)  41332 (6th Cir. 1992) ("The circuits are unanimous in holding that Title VII does not proscribe discrimination based on sexual activities or orientation," because only dis- crimination "based on being male or female is prohibited by Title VII").

c. Williamson v. A.G. Edwards & Sons, Inc.,

876 F.2d 69, 70 (8th Cir. 1989) ("Title VII does not prohibit discrimination against homosexuals"), cert. denied, 493 U.S. 1089 (1990).

d. Blum v. Gulf Oil Corp., 597 F.2d 936,

938 (5th Cir. 1979) ("Discharge for homosexuality is not prohibited by Title VII or Section 1981").

e. Kelley v. Vaughn, 760 F. Supp. 161, 163

(W.D. Mo. 1991) ("However, the term 'sex' as it is used in the Act refers to gender, not to sexual orientation. Because homosexuality pertains to sexual preference, and not to gender, 'Title VII does not prohibit discrim- ination against homosexuals'") (citations omitted).

1. Other Arguments Under Title VII Rejected By

the Courts

A number of plaintiffs have attempted to borrow reasoning and arguments that have been successful in discrimination suits based on sex and race and apply those arguments to sexual orientation dis- crimination. Plaintiffs have claimed that gay men are more numerous than lesbians, that they are more likely to be discovered, and therefore, that discrimination on the basis of sexual orientation has a disparate impact on men. Plaintiffs also argued that by hiring women who prefer men as sexual partners while discriminating against men who prefer men as sexual partners, employers use

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different criteria for men and women. At least one plaintiff has argued that just as discrim- ination against employees because of the race of their friends may violate Title VII's proscription of race discrimination (see EEOC Dec. No. 71- 1902 (1971), 1971 EEOC LEXIS 73), discriminating against employees because of the gender of their friends constitutes impermissible sex discrim- ination. These arguments have so far been unsuccessful. See, e.g., DeSantis v. Pacific Tel. and Tel. Co., 608 F.2d 327 (9th Cir. 1979).

1. Gay and Lesbian Civil Rights Bills

There are currently two bills before Congress proposing to extend Title VII coverage to gay men and lesbians. These identical bills were simultaneously introduced in the Senate and the House of Representatives. See S. 2238, 103rd Cong., 2d Sess. (1994); H.R. 4636, 103rd Cong., 2d Sess (1994).

a. The proposed Employment Non-

Discrimination Act of 1994 ("the ENDA") would extend most of the protections of Title VII to individuals on the basis of sexual orientation. S. 2238 and H.R. 4636. The ENDA is modeled on Title VII with similar definitions, enforcement procedures, and posting requirements. The ENDA would be administered by the Equal Employment Opportunity Commission.

The ENDA prohibits discrimination in employment or employment opportunities based on lesbian, gay, bisexual, or heterosexual orientation, real or perceived.

While the ENDA would apply to private employers and state and federal employees, it would not apply to the military or religious organizations.

Unlike Title VII, there is no "disparate impact" claim available to a plaintiff under the ENDA. S. 2238  5.

The ENDA does not apply to the provision of employee benefits to an individual for the benefit of his or her partner, thus precluding mandatory benefits to same-sex couples.

The ENDA prohibits employers from adopting or implementing quotas on the basis of sexual orientation. S. 2238  6.

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a. Over the past two decades gay rights

advocates have repeatedly attempted to amend Title VII of the Civil Rights Act of 1964 to cover sexual orientation. See, e.g., H.R. 5452, 94th Cong., 1st Sess. (1975); H.R. 1454, 97th Cong., 1st Sess. (1982). None of these attempts has succeeded, but the current attempts seem likely to generate more attention due to large support already amassed in Congress in favor of the ENDA (29 Senators and 108 Representatives sponsored the ENDA).

In October 1995, President Clinton endorsed the ENDA and became the first sitting president to endorse a piece of major legislation to secure equal rights for gay men and lesbians. See Steven A. Holmes, Clinton Backs Bill to Protect Homosexuals from Job Bias, N.Y. Times, Oct. 20, 1995, at A1.

A. State, County and Municipal Laws

1. State and Local Laws Prohibiting Sexual

Orientation Discrimination

a. Eight states and the District of Columbia currently prohibit sexual orientation discrimination in private and public employment: California, Cal. Lab. Code  1101, 1102, 1102.1 (West 1993); Connecticut, Conn. Gen. Stat.  46a-60, 46a- 81a (1992); Hawaii, Haw. Rev. Stat.  378 et seq. (1992); Massachusetts, Mass. Gen. L. ch. 151b,  3(6), 4 (1989); Minnesota, Minn. Stat.  363.01; New Jersey, N.J. Rev. Stat.  10:5-4, 10:5-5, 10:5-12 (1992); Vermont, Vt. Stat. Ann. tit. 21,  495(a) (1992); Wisconsin, Wis. Stat. Ann.  111.31-.395 (West 1988); and District of Columbia, D.C. Code Ann.  1-2501, 1-2503, 1-2512 (1981).

b. In at least ten other states sexual

orientation employment discrimination bills are currently pending: Illinois, Maine, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Texas, Washington, and West Virginia.

c. Additionally, eleven states prohibit

discrimination based on sexual orientation in public employment only: Illinois, Louisiana, Maryland, Michigan, New Mexico, New York, Ohio, Pennsylvania, Rhode Island, and Washington.

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d. Over the past decade, numerous cities

and counties also have passed laws prohibiting discrimination by private employers on the basis of sexual orientation.

As of April 1993, there were at least 115 such laws including Atlanta, Ga., Ordinances 86-0-0190 & 86-0-0308; Boston, Mass., Code Tit. 12, Ch. 40; Chicago, Ill., Mun. Code, Ch. 199 et seq.; Philadelphia, Pa., Fair Prac. Ordinance, Ch. 9-1100 (1982); New York City, N.Y., N.Y.C. Admin. Code  8-102(20) (1991); Los Angeles, Cal., Code, Ch. IV, Mun. Code (1979); and San Francisco, Cal., Code, Art. 33  3301 (1992).

e. In October 1995, the United States Supreme

Court heard oral arguments in Romer v. Evans.

At issue in Romer is a Colorado constitutional provision adopted by popular referendum that bars all state and local government entities from providing legal protection against discrimination based on gay, lesbian or bisexual identity. Similar referendums have been offered in other states and localities, usually under the rubric of denying "special rights" to gays and lesbians. The Supreme Court's decision in Romer will have an effect on several pending cases and referendums. See, e.g., Equality Found. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995) petition for cert. filed (Aug. 10, 1995).

1. Coverage

a. In General

State statutes barring sexual orientation discrimination in private employment generally prohibit the consideration of sexual orientation in any employment decision including hiring, barring or discharging from employment, compensation, and terms, conditions, or privileges of employment. See, e.g., Conn. Gen. Stat.  46a-81c.

Most state statutes also prohibit employers from advertising for employees on the basis of sexual orientation and from asking job applicants questions regarding their sexual orientation. See, e.g., N.J. Rev. Stat.  10:5-12.

a. Definitions of Protected Class

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Definitions of the protected class vary, but they are generally broad. Most states define the prohibited discrimination as encompassing both actual and perceived homosexuality.

Therefore, it is no defense to an allegation of sexual orientation discrimination to show that the plaintiff is not actually gay. See, e.g., Cal. Lab. Code  1102.1.

Several states explicitly include heterosexuality and bisexuality in the protected class, making it illegal to prefer homosexuals. See, e.g., D.C. Code  1- 2502(28).

Minnesota, for example, has expanded the protected class to include anyone "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness." Minn. Stat.  363.01.

a. Religious Groups

Most states exempt religious groups from sexual orientation employment discrimination laws. See, e.g., Wis. Stat. Ann.  111.337(2). (Note that in some states the exemption applies to all kinds of discrim- ination, not only sexual orientation. See, e.g., Mass. Gen. L. ch. 151B,  3(6) and 4.

i. Definitions

The standard definition includes any "religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised, or controlled by or in connection with a religious organization." Vt. Stat. Ann. tit. 21,  495(a)(7); see also Haw. Rev. Stat.  378-3(5). The groups exempted vary slightly from state to state, however, and the definitions tend to be vague and open to interpretation.

i. Effect of Exemption

Generally, employers meeting the criteria for the religious exemption may limit employment both to members of their own religion and to people whose employment is in accord with the tenets of the religion. For example, the Massachusetts Fair Employment Practice Act allows religious employers to give preference to employees of the same religion and to take

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employment actions "which are calculated by such organization to promote the religious principles for which it is established or maintained." Mass. Gen. L. ch. 151B,  1.

These statutes could be construed to allow religious employers whose religion disallows homosexuality to refuse to hire people on the basis of sexual orientation.

i. First Amendment Concerns

The First Amendment may require that religious organizations be exempted from sexual orientation discrimination laws even where they are not specifically exempted by state statute.

Courts analyzing such claims must first assess the extent to which the law imposes a burden upon the group's practice of religion by determining whether the group's objection to the law is truly religious, whether it is central to the religion, and whether the beliefs are sincere. Shelley Wessels, The Collision of Religious Exercise and Governmental Nondiscrimination Policies, 41 Stan. L. Rev. 1201, 1204-1205 (May 1989). The court must then decide whether the government's interest in antidiscrimination is a compelling interest that overrides the group's interest and, if so, whether the law is the least restrictive means to accomplish the state's interest. Id. at 1205.

Since sexual orientation discrimination laws are relatively new, there is little case law specifically concerning the conflict between the First Amendment and sexual orientation discrimination laws. In several old cases, the right of a religious organization to freedom of religion was found to outweigh any interests of the state or of gay male and lesbian plaintiffs.

1) In an early case, a California court found that forcing a church to violate its beliefs by hiring a gay organist would be a substantial burden on its right to free exercise of religion. Walker v. First Orthodox Presbyterian Church of San Francisco, 22 Fair Empl. Prac. Cas. (BNA) 762 (Cal. Super. Ct. 1980). The court held that the state's interest in protecting gay men and lesbians against discrimination did not outweigh the church's First

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Amendment interest and thus the San Francisco Police Code which prohibited discrimination in employment on the basis of sexual orientation did not apply to the church. Id.

2)3) Several years before Massachusetts enacted its statute prohibiting discrim- ination on the basis of sexual orientation, a state court found that the right of the Christian Science Church to free exercise of religion outweighed any rights that a lesbian employee might have. Madsen v. Erwin, 395 Mass. 715, 481 N.E.2d 1160 (1985).

In light of recent judicial and legislative support for civil rights on the basis of sexual orientation, however, courts may find that the state has a more compelling interest in protecting the rights of gay men and lesbians. Several recent cases support this prediction.

(1) In 1987 the D.C. Court of Appeals found that the government's compelling interest in eradicating sexual orientation discrimination includes "the fostering of individual dignity, the creation of a climate and environment in which each individual can utilize his or her potential to contribute to and benefit from society, and equal protection of the life, liberty and property that the Founding Fathers guaranteed to us all." Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 37 (D.C. App. 1987).

The court noted that the D.C. Council clearly regarded its interest in the matter as compelling and that sexual orientation has "most or all of the characteristics that have persuaded the Supreme Court to apply strict or heightened constitutional scrutiny to legislative classifications under the Equal Protection Clause." Id. at 36.

The court held that this compelling interest outweighed any slight burden Georgetown University would suffer in giving a group of gay law students equal access to benefits that it provided to all student groups.

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(1) In 1992 a federal court in New Jersey weighed the interests of a group of churches who claimed that New Jersey's Law Against Discrimination infringed on their First Amendment rights against the interests of New Jersey in protecting gay men and lesbians from discrimination. Presbytery v. Florio, 60 Fair Empl. Prac. Cas. (BNA) 805 (D.N.J.), aff'd without op., 983 F.2d 1052 (3d Cir. 1992).

In denying plaintiffs preliminary injunction, the court found that it should be deferential "to the legislature's efforts to establish the public's interest in protecting persons of a minority sexual orientation," and it warned of the harm which might be created if the state's exercise of its police power was impeded. 60 Fair Empl. Prac. Cas. at 808.

In recent developments in this case, the District Court dismissed plaintiffs' case finding it was not ripe, based on the state's affidavit that it would not enforce the Act against the institutional plaintiffs as churches or the pastor plaintiff in his capacity as a clergyman. The Third Circuit affirmed the dismissal against the institutional plaintiffs as not ripe, but reversed as to the individual pastor since the state has expressly refused to offer any assurances it will not prosecute the pastor if he violates the Act outside his church. Presbytery of N.J. of Orthodox Church v. Florio, 40 F.3d 1454 (3rd Cir. 1994).

(1) A California appellate court, however, recently upheld a Boy Scout troop's denial of a homosexual applicant to become a scoutmaster based on the organization's belief that homosexuality is unclean and immoral. Curran v. Mount Diablo Council of the Boy Scouts, 23 Cal. App. 4th 1307, 29 Cal. Rptr. 2d 58 (1994), review granted, 1994 Cal. LEXIS 3108 (June 2, 1994). The appellate court reversed the trial court's determination that the Boy Scouts were a business organization for purposes of the operative Unruh Act on civil rights.

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23 Cal. App. 4th at 1341-1345.

The court acknowledged the organization's firm stand against homosexuality and recognized the organization's First Amendment right to associate based on that stand. Id. at 1324-1329. Forcing the Boy Scouts to accept an applicant whose homosexual status is openly contrary to a basic tenet of the organization would violate the organization's constitutional right to choose the members of its association. Id. at 1326-1329. The California Supreme Court has granted review of this case.

1. Analysis of Selected State and Local Statutes

a. New York

The New York State Human Rights Law does not prohibit sexual orientation discrimination. Under 21 v. New York City, 65 N.Y.2d 344, 492 N.Y.S.2d 522 (1985); see also Petri v. Bank of New York Inc., 153 Misc. 2d 426, 582 N.Y.S.2d 608, 610 (Sup. Ct. N.Y. County 1992).

However a bill prohibiting sexual orientation discrimination in private employment in New York is pending in the state legislature. New York Assembly Passes Sexual Orientation Bill, Daily Lab. Rep. (BNA) No. 21, February 3, 1993, A-20.

Moreover, because many cities and counties in New York have such laws, approximately seventy percent of New York State residents live in jurisdictions where sexual orientation discrimination is outlawed. Lesbian/Gay Law Notes, January 1993.

i. New York City's Antidiscrimination Law

New York City has a sexual orientation antidiscrimination law resembling many state antidiscrimination laws. N.Y. City Admin. Code  8-107 (1986). It contains an exemption for religious employers and employers with fewer than four employees. N.Y. City Admin. Code  8-107.12, 8-107.16 (Supp. 1993). It also states that it does not permit or require employers to establish quotas or inquire into the sexual orientation

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of employees or job applicants. N.Y. City Admin. Code  8-107.16 (Supp. 1993).

(1) Discrimination Based on

Transsexuality Prohibited

While New York City's antidiscrimination law does not include "transsexuality" in its definition of "sexual orientation," the creation of a hostile work environment as a result of derogatory comments relating to the fact that, as a result of an operation an employee changed his or her sexual status, creates discrimination based on "sex" in violation of N.Y. City Admin. Code  8- 107. Maffei v. Kolaeton Industry, Inc., 626 N.Y.S.2d 391 (1995).

a. California

Although gay men and lesbians were not formally protected by legislation in California, beginning in 1979 the courts held that gay men and lesbians were entitled to certain protection under California law.

i. The first California case holding that gay men and lesbians are protected from dis- crimination was Gay Law Students Ass'n v. Pacific Tel. & Tel. Co., 24 Cal. 3d 458, 595 P.2d 592, 156 Cal. Rptr. 14 (1979). The court held that Sections 1101 and 1102 of the Labor Code, which bans employers from controlling or limiting the political activities or affiliations of their employees, extended to gay men and lesbians. Cal. Lab. Code  1101, 1102.

The court reasoned that "the struggle of the homosexual community for equal rights, particularly in the field of employment, must be recognized as political activity," and that any policy that penalizes people who are openly gay violates the Labor Code. Gay Law Students Ass'n, 24 Cal. 3d at 488, 595 P.2d at 610, 156 Cal. Rptr. at 32-33. The defendants' policy of discriminating "in particular against persons who identify themselves as homosexual, who defend homosexuality, or who are identified with activist homosexual organizations," the court found, was such a policy. 24 Cal. 3d at 488.

The California Attorney General later extended this holding and found that Sections 1101 and 1102 of the Labor Code prohibit dis-

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crimination in employment against employees on the basis of their sexual orientation. 69 Op. Att'y Gen. 80 (1986). The analysis utilized in Gay Law Students Ass'n has been followed in a number of cases.

(1) Shell Oil Company fired Jeffrey Collins after discovering a memo that he had printed on a company computer pres- cribing safe sex procedures for gay men to follow at a private party. Collins v. Shell Oil Co., 1991 Cal. App. LEXIS 783, 56 Fair Empl. Prac. Cas. (BNA) 440 (Cal. Super. Ct., App. Dep't 1991). The court found that in the context of the AIDS crisis in the San Francisco area at the time Collins' memo was printed, his action was a political activity protected under Sections 1101 and 1102 of the Labor Code and, therefore, Shell Oil could not dismiss him for writing the memo, even if it were entitled to do so under his employment contract.

The court awarded Collins $2,000,000 in punitive damages for his intentional infliction of emotional distress claim, $2,523,229 in economic damages on his contract causes of action, and $800,000 in compensatory damages under his tort causes of action.

(1) In Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227 (N.D. Cal. 1993), the law firm of Capps, Staples, Ward, Hastings and Dodson fired plaintiff after she was quoted in a newspaper article as saying that "being out" at the office would help other lesbian attorneys fight discrimination. Smedley claimed that her supervisor had previously instructed her not to discuss her sexual orientation at the firm's social events.

Applying Sections 1101 and 1102 of the California Labor Code, a federal district judge refused to grant summary judgment to the plaintiff, ruling that issues of fact remained regarding the defendant's policy, the reasons for its termination of plaintiff, and whether its actions violated the Labor Code.

Although not ruling definitively on the issues in this case, the court preliminarily explored the merits of the

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claims. It stated that preventing the plaintiff from discussing gay rights with other employees or ordering her to limit her activities in the gay community outside of the office might well constitute violations of Labor Code Sections 1101 and 1102. Id. at 1229- 1230. The court was skeptical, however, whether conversations regarding lesbianism with clients at the firm's social events were protected political activities.

i. State Legislative Developments

In 1992, the California legislature enacted a bill prohibiting sexual orientation discrim- ination in private employment. Cal. Lab. Code  1102.1 (effective Jan. 1, 1993).

The law exempts religious employers and employers with fewer than five employees from its prohibitions. It explicitly states that it does not invalidate any marital status classifications that are otherwise valid, does not supersede any existing rights that employers have to base their decisions on illegal conduct by employees, and does not require or allow the use of quotas. Id.

Although this law is too recent to have been interpreted widely by the courts, but there have already been at least five cases filed under it. See, Five Lawsuits Filed to Test New California Gay Rights Law, Daily Lab. Rep. (BNA) No. 4, Jan. 7, 1993, A-6:

(1) William Ballou has claimed that he was called "faggot bitch," instructed to harass apparently gay customers, and told to fire a gay employee. He was subsequently fired himself. Ballou v. Callendar, No. 710477-2 (Cal. Super. Ct., filed Jan. 4, 1993).

(2) Joe Magnano has claimed he was fired after one manager told him to leave the company because if he caught AIDS, it would be very expensive for the company and another manager said he could not work with homosexuals. Magnano v. Brown & Haley Co., No. 948424 (Cal. Super. Ct., filed Jan. 4, 1993).

Although not binding, the California Labor Commissioner has stated in a clarifying letter that the law is not limited to

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protecting individuals who are in fact gay. It also protects those gay men and lesbians who are perceived as straight and those straight individuals who are perceived as being gay.

A plaintiff must first exhaust all available administrative remedies before bringing an action for discrimination based on sexual orientation under Lab. Code  1101, 1102 and 1102.1. Liebert v. Transworld Systems, Inc., 32 Cal.App.4th 1693, 1699 (1995).

i. Local Legislative Developments

Many cities and counties in California have enacted local laws prohibiting sexual orientation discrimination in private employment. A state court recently found that these laws are preempted by the Fair Employment and Housing Act, (FEHA), Cal. Gov't Code  12900 et seq., which regulates discrimination in private employment. Delaney v. Superior Fast Freight, 14 Cal. App. 4th 590, 18 Cal. Rptr. 2d 33 (1993).

Although the FEHA does not bar sexual orientation discrimination, plaintiffs who would previously have sought a remedy under city and county laws can now turn to Section 1102.1 of the Labor Code. The Delaney court stressed that it was important to have a uniform system of antidiscrimination law throughout the state.

Plaintiff's attorneys have argued, however, that local laws provide remedies such as attorneys' fees and punitive damages not available under the Labor Code and, therefore, pre-emption is disadvantageous. California Gay Rights Ordinances Pre-empted by State Law, Court Rules, Daily Lab. Rep. (BNA) No. 61, Apr. 1, 1993, C-1.

i. Privacy Cause of Action

Employers who ask employees questions regarding sexual orientation may risk being sued on the basis of the employee's for their right to privacy under California law. Soroka v. Dayton Hudson Corp., 18 Cal. App. 4th 1200, 1 Cal. Rptr. 2d 77 (1991), review granted, 4 Cal. Rptr. 2d 180 (Cal. 1992), review dismissed, 24 Cal. Rptr. 2d 587 (Cal. 1993). In Soroka, the plaintiffs challenged the use of the Psychscreen employment application test which included questions

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designed to reveal the applicant's sexual orientation.

Questions included: "I am very strongly attracted by members of my own sex....I have often wished I were a girl. (Or if you are a girl) I have never been sorry that I am a girl....I have never indulged in any unusual sex practices....I am worried about sex matters." 13 Cal.App.4th at 197, 1 Cal.Rptr.2d at 82.

The employer asserted that the test measured emotional fitness and that employee quality improved after it began using the test.

The Court of Appeals held that this assertion was inadequate to show either a compelling interest or the necessary nexus between the employee's duties and the invasion of privacy and ruled that the practice of asking the questions of this sort violated Labor Code Sections 1101 and 1102. Id.

In July 1993, the employer agreed to pay over two million dollars to settle the case.

i. Wrongful Discharge in Violation of Public Policy

In addition to the protections under Lab. Code  1101, 1102 and 1102.1, a California court of appeals has found a non-statutory, common law claim sounding in tort for a violation of a fundamental public policy for discrimination based on sexual orientation. Liebert v. Transworld Systems, Inc., 32 Cal.App.4th 1693, 1703-04 (1995).

a. District of Columbia

The District of Columbia banned sexual orientation discrimination in private employment in 1977. D.C. Code Ann.  1-2501 et seq. The D.C. Human Rights Act is a fairly standard act with the customary exemption for religious employers. (See D.C. Code Ann.  1-2503(b). There are, however, several distinct features in the D.C. law.

i. Outlaws Preference for Homosexuals

The D.C. Human Rights Act defines sexual orientation as "male or female homosexuality, heterosexuality and bisexuality, by preference or practice." D.C. Code Ann.  1- 2502(28). Consequently, it bars both dis-

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crimination against and preferential treatment for homosexuals.

(1) In a recent case interpreting this provision, a nurse at Howard University Hospital claimed that she was fired because she complained of a hostile work environment fostered by lesbian co- workers and supervisors. Green v. Howard University, No. 91-CA04194 (D.C. Super. Ct. Dec. 4, 1992).

While a jury accepted her contention and awarded her $140,000, the Court of Appeals reversed. In Howard University v. Green, 652 A.2d 41 (1994), the District of Columbia Court of Appeals found there was nothing in the record to suggest that the University was alerted that plaintiff actually complained of sexual orientation discrimination. In addition, the court noted in a footnote that "although heterosexuals are and should be covered [by D.C.'s Human Rights Act], the main purpose of the sexual orientation provision was to ensure that homosexuals enjoy equal rights previously denied to them." Id. at 49 n. 12.

The jury, accepting her contention, awarded her $140,000 and ordered Howard University either to reinstate her or to offer her an equivalent position. Court Sustains Jury Award for Alleged Lesbian Conspiracy to Fire Heterosexual, 1993 Daily Lab. Rep. (BNA) No. 3, Jan. 6, 1993, A-6.

i. Prohibits Unintentional Discrimination

The D.C. statute provides that "[a]ny practice which has the effect or consequence of violating any of the provisions of this chapter shall be deemed to be an unlawful discriminatory practice." D.C. Code Ann.  1-2532.

The D.C. Court of Appeals has interpreted this provision as prohibiting unintentional discrimination that has a disproportionate impact on a protected class and cannot be justified for a nondiscriminatory reason. Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 29 (D.C.App. 1987). The statute thus incorporates the disparate impact analysis

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established by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971).

i. Transsexuality Not Protected

D.C.'s Human Rights Act does not prohibit discrimination based on an individual's status as a transsexual, because "transsexuality" is not included in the Act's definition of "sex." Underwood v. Archer Management Services, Inc., 857 F.Supp. 96, 98 (D.D.C. 1994).

a. Miscellaneous State Cases

i. Pennsylvania

In an usual case in Pennsylvania, DeMuth v. Miller, 652 A.2d 891 (Pa. Super. Ct. 1995), an employer filed suit against a former employee for violating a covenant not to compete clause in the employee's contract. The covenant was triggered when the employee was fired for cause: being a homosexual. There was no dispute that the employee was fired because he was gay. The superior court of Pennsylvania affirmed the jury verdict in favor of the employer. The court avoided the question whether it was enforcing contractual "private" discrimination, by holding that the money damages awarded the employer were for violation of the non-compete clause, and not because the defendant was gay. The court also held that the non-compete clause did not violate policy because discrimination based on sexual orientation is "legal" in Pennsylvania.

Demuth raises the question whether court enforcement of private contracts that facially discriminate against gay men and lesbians constitutes state action for constitutional analysis. See Shelly v. Kraemer, 334 U.S. 1 (1948) (judicial enforcement of private contracts, where such enforcement furthers private discrimination, constitutes state action and may result in a denial of equal protection).

i. Minnesota

In Hanke v. Safari Hair Adventure, 512 N.W.2d 614 (Minn. App. 1994), the court held that harassment based on an employee's sexual orientation provides an employee with good cause to quit if the harassment creates an offensive working environment and the

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employer knows or should know of the harassment, but fails to take timely and appropriate action. Plaintiff, therefore, was not disqualified from receiving unemployment compensation benefits.

A. Remedies Under Other Legal Theories

In addition to Title VII and state and local antidis- crimination laws, there are potential remedies available to gay men and lesbians dismissed by private employers in jurisdictions recognizing theories of dismissals which contravene public policy and implied contractual obligations.

1. Public Policy Violation

Courts have found that certain dismissals are against public policy and thus subject employers to potential liability. Sexual Orientation and the Law, supra, at 1577. They are most likely to do so where the public policy is contained in a specific statute. Id. It is possible that courts too will find that dismissals of gay men and lesbians violate a public policy favoring privacy, particularly where the right to privacy is contained in the state constitution. Id.

1. Implied Contractual Provisions

Courts have found that nondiscrimination statements in employee handbooks create implied contractual provisions with which employers must comply.

As more employers develop and disseminate nondis- crimination policies, this is an increasingly important area. A recent study of members of the Society for Human Resource Management found that sixty-three percent of employers had policies regarding nondiscrimination on the basis of sexual orientation, half of which were written. Lesbian/Gay Law Notes at 26 (April 1993).

In one reported case involving an employee who was dismissed for his homosexuality, an individual contract claim was rejected by the Fifth Circuit based on Texas law. Joachim v. AT&T Info. Sys., 793 F.2d 113 (5th Cir. 1986). However, Texas law has subsequently changed so it is possible that the Fifth Circuit would decide the same claim differently today. Sexual Orientation and the Law, supra, at 1578 n.156.

A. Public Employees: Constitutional Standards

Because their employer is the government, public

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employees have constitutional protections unavailable to private employees, including the rights to due process and equal protection under the Fifth and Fourteenth Amendments and the right to freedom of expression under the First Amendment. These protections may be overcome, however, by other governmental interests.

1. Due Process

a. Procedural Due Process

When government employees have a property interest in their jobs or when the dismissal violates a protected liberty interest, government employees cannot be dismissed from their jobs without due process. Perry v. Sindermann, 408 U.S. 593, 599 (1972); see also Sexual Orientation and the Law, supra, at 1574.

i. Property Interest

A property interest exists when "rules and understandings [officially] promulgated and fostered [might create a] legitimate claim of entitlement to continued employment." Perry v. Sindermann, 408 U.S. at 602. In jobs where government regulations state that homosexuality is a ground for dismissal, gay male or lesbian employees are often unable to show an expectation of continued employment, and thus a property interest. See, e.g., Beller v. Middendorf, 632 F.2d 788, 805 (9th Cir. 1980) (citing Berg v. Claytor, 436 F. Supp. 76, 81 (D.D.C. 1977), vacated, 591 F.2d 849 (D.C. Cir. 1978)) ("Plaintiff has admitted to having performed homosexual acts while in the Service. Having admitted there was cause for dismissal, plaintiff's expectation of continued employment has been extinguished. Thus he had no property interest...."), cert. denied, 454 U.S. 855 (1981); Rich v. Secretary of the Army, 735 F.2d 1220, 1226 (10th Cir. 1984); Doe v. Gates, 981 F.2d 1316, 1320 (D.C. Cir. 1993).

When a governmental employer cannot establish a clear policy against employing homosexuals, however, plaintiffs who can point to evidence creating an expectation of continued employment may prevail. For example, a gay mailroom employee of the FBI was able to show that he had a reasonable expectation of continuing his employment as long as his work remained satisfactory. Ashton v. Civiletti, 613 F.2d 923, 928 (D.C. Cir. 1979).

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i. Liberty Interest

A liberty interest is implicated if a dismissal seriously damages an individual's standing or associations in his/her community or impose a stigma that would foreclose his/her ability to take advantage of other employment opportunities.

The issue arises in cases where gay men and lesbians are "outed" by their former employers or where they are fired on the basis of their sexual orientation in such a way that they are unattractive to future employers. See, e.g., Beller, 632 F.2d at 806 (plaintiffs discharged from the Army on account of their sexual orientation asserted that they received the stigma of "unfitness" for retention, and that permanent Navy files contained the reason for their discharge); Rich, 735 F.2d at 1226 (plaintiff who was honorably discharged from the Army on the basis of his sexual orientation and fraudulent entry, claimed that the Army's dissemination of information precluded him from obtaining unemployment benefits and civilian employment).

Courts have rejected plaintiffs' assertions that their liberty interests have been violated in the course of dismissals for homosexuality on several grounds. First, they have rejected the contention that the government actually made the employee's sexual orientation public, finding that the plaintiffs admitted their homosexuality themselves or consented to the employer's release of the information. Beller, 632 F.2d at 807 (stressing that plaintiffs admitted to performing homosexual acts); Rich, 735 F.2d at 1227 (emphasizing that plaintiff publicized his sexual orientation and consented to the Army's release of information); Childers v. Dallas Police Dep't, 513 F. Supp. 134, 145 (N.D. Tex. 1981) (any harm that plaintiff suffered came from his own admission of his sexual orientation).

Secondly, when plaintiffs are discharged honorably or the reasons for the discharge were kept secret, courts conclude that the plaintiffs were not actually damaged. Rich, 735 F.2d at 1226, n.5 (liberty interest not violated by an honorable discharge from the Army); Beller, 632 F.2d at 806-07 (liberty interest not violated where reasons for

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honorable discharge were not indicated on papers likely to be examined by future employers).

a. Substantive Due Process

i. Arbitrary and Capricious

Some courts have ruled that employees may not be dismissed from public employment on the grounds of homosexuality where there is no "nexus" between homosexuality and suitability for employment. See, e.g., Norton v. Macy, 417 F.2d 1161, 1164 (D.C. Cir. 1969); benShalom v. Secretary of Army, 489 F. Supp. 964, 976-77 (E.D. Wis. 1980). Such dismissals, the courts find, are arbitrary and capricious and thus violate substantive due process.

i. Privacy

Plaintiffs have also invoked the protections of substantive due process by charging that the homosexual conduct prohibited by military or other government regulations is protected as an aspect of the fundamental right of privacy. See, e.g., Beller, 632 F.2d at 807.

Courts have often rejected these arguments, concluding that even if homosexual conduct is protected, important governmental interests outweigh the protections. See also Beller, 632 F.2d at 811 (citing government interests in protecting culture of the military, maintaining discipline, protecting integrity of the recruiting process, ensuring the acceptance of military personnel by people in other countries); Childers, 513 F. Supp. at 142 (stressing police department's interest in maintaining discipline and protecting the integrity of the police department).

In 1986 the Supreme Court ruled that homosexual sexual activity is not protected under the fundamental right of privacy. Bowers v. Hardwick, 478 U.S. 186 (1986). Relying on this decision, a number of courts have rejected substantive due process challenges to dismissals on the basis of sexual orientation on the grounds that there simply is no protection for homosexual sexual activity. See, e.g., Woodward v. United States, 871 F.2d 1068, 1074-75 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990).

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1. Equal Protection

a. Suspect Class

The issue whether gay men and lesbians are a protected class has divided the judiciary. Although a number of lower courts have ruled that gay men and lesbians are protected and that discrimination against them must be subjected to heightened scrutiny, most of these rulings have been overturned on appeal.

See, e.g., Ben-Shalom v. Marsh, 703 F. Supp. 1372, (E.D. Wis. 1989), rev'd, 881 F.2d 454, 463 (7th Cir. 1989); High-Tech Gays v. Defense Indus. Sec. Clearance Office, 668 F. Supp. 1361 (N.D. Cal. 1987), rev'd in part, vacated in part, 895 F.2d 563, 571 (9th Cir. 1990); Jantz v. Muci, 759 F. Supp. 1543, 1551 (D. Kan. 1991), rev'd and remanded on other grounds, 976 F.2d 623 (10th Cir. 1992); Watkins v. U.S. Army, 847 F.2d 1329, 1352-53 (9th Cir. 1988), aff'd on other grounds, 875 F.2d 699, 705 (9th Cir. 1989) (en banc). No Circuit Court of Appeals has ruled that gay men and lesbians are entitled to heightened equal protection scrutiny.

As in the substantive due process area, many courts read Bowers as precluding the possibility that gay men and lesbians are entitled to heightened scrutiny under equal protection analysis. See, e.g., Woodward v. U.S., 871 F.2d at 1068, 1075-76 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 102-03 (D.C. Cir. 1987).

a. Rational Basis Review

Even if sexual orientation discrimination is not subject to heightened scrutiny, courts must still apply the rational basis standard in reviewing the government's action. Swift v. United States, 649 F. Supp. 596, 602 (D.D.C. 1986) ("the government may not dis- criminate against homosexuals for the sake of discrimination, or for no reason at all"). Many courts have allowed discrimination by the military, by agencies granting security clearances, and by public schools to survive rational basis review because they believe the government has special interests.

Several courts have recently applied "active rational relationship scrutiny" to sexual orientation discrimination, forcing the

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government, especially the military, to show a rational relationship between the discrim- ination and the government's interest, instead of merely assuming its existence. See, e.g., Pruitt v. Cheney, 963 F.2d 1160, 1165-1166 (9th Cir. 1991), cert. denied, 113 S. Ct. 655 (1992); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 575 (9th Cir. 1990); Dubbs v. CIA, 769 F. Supp. 1113 (N.D. Cal. 1990); Buttino v. FBI, 1992 U.S. Dist. LEXIS 4659 (N.D. Cal. 1992).

Applying this standard of review, one district court has invalidated sexual orientation discrimination by the military under rational basis scrutiny. Cammermeyer v. Aspin, 1994 U.S. Dist. LEXIS 7289, *47-*48 (W.D. Wash. June 1, 1994) ("[t]he Government, for its part, has failed to offer any evidence showing that its justifications are based on anything but prejudice."). The Ninth Circuit allowed an Army Reserve officer's challenge to sexual orientation discrimination to survive a defense motion for summary judgment. Pruitt, supra (denying summary judgment to defendant Secretary of Defense on the grounds that he must establish that his policy of discrimination on the basis of sexual orientation has a rational basis).

1. First Amendment Right to Freedom of Speech

Dismissals of gay and lesbian employees often stem from statements that the employees have made. If such statements touch on a matter of "public concern," it will be protected speech for which employees cannot be dismissed. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). If the speech does touch on public concerns, the courts must balance the employee's interest in free speech against the state's interest in regulating its employees. Id. The issue arises often with military employees and public school teachers.

Courts have generally ruled that where employees merely stated that they are homosexual, they are making an admission of personal, not public, interest, and their speech is not protected. See, e.g., Johnson v. Orr, 617 F. Supp. 170, 175 (E.D. Cal. 1985) (calling plaintiff's First Amendment claim specious because her assertion of her homosexuality was a mere statement of fact), aff'd without op., 787 F.2d 597 (9th Cir. 1986); Pruitt v. Cheney, 963 F.2d 1160, 1164 (9th Cir. 1991) (plaintiff was dismissed not for the content of

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her newspaper statement that she was gay but rather for being a lesbian); Rowland v. Mad River Local Sch. Dist., 730 F.2d 444, 449 (6th Cir. 1984)(plaintiff's statements regarding her sexual preference were not protected speech, however, because she was speaking only in her own interest), cert. denied, 470 U.S. 100 (1985). Justice Brennan criticized this approach, concluding that a debate is raging regarding the rights of gay men and lesbians and that once a person asserts his or her homosexuality he or she is "necessarily and ineluctably that debate" and his or her statements are thus a matter of public concern. Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 1012 (1986) (Brennan, J. dissenting).

When employees advocate gay rights instead of asserting their sexual orientation, their speech is generally protected. Examples include:

a. A state statute prohibiting teachers

from "advocating, soliciting, imposing, encouraging or promoting public or private homosexual activities" was found constitutionally overbroad and violative of the First Amendment. National Gay Task Force v. Board of Educ., 729 F.2d 1270, 1272 (10th Cir. 1984), aff'd, 470 U.S. 903 (1985).

b. A university lecturer's statements

regarding homosexuality that were publicized in a series of newspaper articles, was protected speech. Aumiller v. University of Del., 434 F. Supp. 1273, 1302 (D. Del. 1977).

c. An assistant county treasurer was fired

after he sought to leave work to address the local Commissioners Court regarding homosexuality. The court found that his desire to speak constituted protected activity. Van Ooteghem v. Gray, 654 F.2d 304 (5th Cir. 1981), cert. denied, 455 U.S. 909 (1982).

Some courts, however, have viewed activism in pursuit of gay rights not as protected speech under the First Amendment but as conduct which government employers are free to prohibit if it reflects badly on them. McConnell v. Anderson, 451 F.2d 193, 196 (8th Cir. 1971), cert. denied, 405 U.S. 1046 (1972).

A. Public Employees: Government Interests

1. Teachers

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In the realm of public schools, the government asserts a wide range of interests to overcome rational basis review and teachers' free speech protections. Some courts have held that when schools employ openly gay men and lesbians, they are tacitly forced to approve of their behavior. McConnell v. Anderson, 451 F.2d 193, 196 (8th Cir. 1971), cert. denied, 405 U.S. 1046 (1972). Courts have held that the school's interests in avoiding such tacit approval overcomes plaintiff's First Amendment rights. Id. at 196. Other courts have ruled that teachers have an obligation to go out of their way to hide their private lives and that openly gay men and women violate this obligation. Acanfora v. Board of Educ. of Montgomery County, 359 F. Supp. 843 (D. Md. 1973), aff'd on other grounds, 491 F.2d 498 (4th Cir. 1974).

Some courts uphold dismissals under school immorality provisions. Gaylord v. Tacoma Sch. Dist., 88 Wash. 2d 286, 559 P.2d 1340, cert. denied, 434 U.S. 879 (1977) (en banc) (holding homosexuality immoral despite repeal of sodomy statute). The difficulty of defining morality makes this approach particularly troublesome. For example, the Oregon Supreme Court twice remanded a case to an administrative court with instructions on how to interpret "immorality." Ross v. Springfield Sch. Dist., 294 Or. 357, 657 P.2d 188 (1982); Ross v. Springfield Sch. Dist., 300 Or. 507, 716 P.2d 724, 728 (1986).

Some courts have rejected the classification of immorality as broad and vague and have instead looked at "fitness to teach." Board of Educ. of Long Beach v. Jack M., 19 Cal. 3d 691, 696, 566 P.2d 602, 604, 139 Cal. Rptr. 700, 702 (1977). These courts adopt for state employment the due process rational relationship test that the D.C. Circuit developed for federal civil service employment. Norton v. Macy, 417 F.2d 1161, 1164 (D.C. Cir. 1969). Under this standard the California court prevented the dismissal of a gay male teacher who participated in public, criminal homosexual behavior when the school was unable to show that he was unfit to teach. Id.; see also Morrison v. State Bd. of Educ., 1 Cal. 3d 214, 461 P.2d 375, 82 Cal. Rptr. 175 (1969) (disallowing dismissal of gay male teacher who participated in nonpublic homosexual behavior).

1. The Military and Local Police Departments

Many courts have found that discrimination by the military survives rational basis review because of the special needs of the military. See, e.g., Dronenburg v. Zech, 741 F.2d 1388, 1398 (D.C. Cir.

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1984); Woodward v. U.S., 871 F.2d 1068, 1077 (Fed. Cir. 1989). Enumerated needs include maintaining discipline, order, morale, and trust among service members, aiding in recruiting and retention of personnel, shoring up the rank and command system, and preventing security breaches. Dronenburg, 741 F.2d at 1398.

Many of the arguments supporting government interests that have been used for the military have also been used by local police departments. See, e.g., Childers v. Dallas Police Dept., 513 F. Supp. 134 (N.D. Tex. 1981). Recently, however, several police departments have settled cases brought under local laws.

a. In February 1993 three police officers

who charged that they had been forced to leave the Los Angeles Police Department because of harassment by other officers settled their case for $700,000. Bettina Boxall, L.A. Settles Officers' Suit, L.A. Times, February 11, 1993, at A1. As part of the settlement the defendants agreed to engage in active recruitment of gay officers, to eliminate recruitment questions that would reveal sexual orientation, to prohibit harassment of gay and lesbian officers, to train officers in how to deal with the gay and lesbian community and gay and lesbian co- workers, and to screen out homophobic job applicants. Id.

b. In late 1992 the San Diego County

Sheriff's Department settled a lawsuit brought by a lesbian employee. As part of the settlement the department agreed to ban sexual orientation discrimination and to conduct sensitivity training. Lesbian/Gay Law Notes, January 1993.

1. Security Clearance

The CIA and the FBI contend that they have important interests in denying security clearances to gay men and lesbians who, they assert, are especially susceptible to blackmail. For example, in 1990 the Department of Defense convinced the Ninth Circuit that homosexuals are vulnerable because they are targeted for blackmail by the KGB. High Tech Gays v. United States, 895 F.2d 563, 575-77 (9th Cir. 1990). Courts have even held that it is constitutional to deny security clearances to openly gay men and women because they are subject to blackmail to protect their partners. Padula v. Webster, 822 F.2d 97, 104 (D.C. Cir. 1987). Recently, however, a district

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judge questioned the continuing validity of such discrimination "in light of the post-High Tech Gays demise of the Soviet Union and the uncertain future, if any, of the Soviet Secret Police." Buttino v. F.B.I., 1992 U.S. Dist. LEXIS 4659, at *25 (N.D. Cal. 1992).

I. Sexual Orientation Harassment

A. Overview

Conditioning job benefits or continued employment on the granting of sexual favors is discrimination on the basis of sex and is prohibited by Title VII. An employee will be able to sustain a claim for quid pro quo harassment if the employee suffers a tangible job detriment as a result of refusing to submit to the sexual demands of a supervisor. See Koster v. Chase Manhattan Bank, 687 F. Supp. 848, 861 (S.D.N.Y. 1988).

Hostile environment harassment, however, does not require a showing of tangible job detriment. Instead, an employee who claims a hostile work environment may demonstrate that requests for unwelcome sexual favors, and/or other unwelcome verbal or physical conduct of a sexual nature was sufficiently severe and pervasive that it interfered with the employee's ability to fully perform his or her job. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986); Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 63 (2d Cir. 1992).

A. Harassment of Men and

Women is Prohibited

The quid pro quo sexual harassment analysis has been applied primarily to women who are harassed by male supervisors. A number of courts, however, have held that a male employee also has a cause of action if he is harassed by a female supervisor. Showalter v. Allison Reed Group, Inc., 767 F. Supp. 1205 (D.R.I. 1991), aff'd on other grounds, 984 F.2d 4 (1st Cir. 1993); Parrish v. Washington Nat'l Ins. Co., 1990 U.S. Dist. LEXIS 13934 (N.D. Ill. 1990); E.E.O.C. Compliance Manual  615.2(b)(1) ("A man as well as a woman may be the victim of sexual harassment, and a woman as well as a man may be the harasser."). Because the purpose of Title VII is to prohibit gender based discrimination, both men and women are considered a "protected class" under Title VII.

At least one court has found that it is not a defense to sexual harassment between members of the opposite sex that the harasser is homosexual. See, e.g., Alphonse v. Omni Hotels Management Corp., 634 So.2d 836 (La. App. 1994).

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A. Same-Sex Harassment

Recently, the Equal Employment Opportunity Commission ("E.E.O.C.") and Federal courts have begun to recognize that employees who are harassed by supervisors and co- workers of the same sex are also protected by Title VII. If the harassment by a same-sex supervisor is based on treatment due to the employee's gender, the courts have held that that is discrimination based on sex. If, however, the harassment is due to the individual employee's actual or perceived sexual orientation, that harassment is not considered actionable under Title VII.

The E.E.O.C., while recognizing that sexual harassment can occur between individuals of the same sex, distinguishes between harassment based on gender and harassment based on sexual orientation:

The victim does not have to be of the opposite sex from the harasser. Since sexual harassment is a form of sex discrimination, the crucial inquiry is whether the harasser treats a member or members of one sex differently from members of the other sex. The victim and the harasser may be of the same sex where, for instance, the sexual harassment is based on the victims's sex (not on the victim's sexual preference) and the harasser does not treat employees of the opposite sex the same way.

EEOC Comp. Man. (BNA)  615.2(b)(3) (June 1987) (emphasis in original).

A. Same-Sex Harassment:

Quid Pro Quo Cases

If a gay or lesbian supervisor demands sexual favors from an employee of the same sex, the courts more likely than not will extend Title VII protection to the individual. If, for example, a male supervisor demanded sexual favors from a male employee, the employee would have a claim under Title VII. In that situation, the employee would have been "selected" or singled out for special treatment, because he was male.

Therefore, he would have been discriminated against because of his gender. A number of federal courts have held that same-sex quid pro quo harassment is proscribed by Title VII.

1. Joyner v. AAA Cooper Transp., 597 F. Supp.

537 (M.D. Ala. 1983), aff'd, 749 F.2d 732 (11th Cir. 1984): A male employee alleged that a male manager made a sexual advance toward him, rejected the advance and reported the incident. The

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employee alleged that due to his rejection of the manager's advance he was denied recall rights following a lay-off. The court held that same-sex harassment violates Title VII and the employee had established that he was subjected to quid pro quo harassment due to his sex.

2. Wright v. Methodist Youth Servs., 511

F. Supp. 307 (N.D. Ill. 1981): A male employee of a social services organization alleged that he was terminated after he refused the advances made by his male supervisor. The court held that the employee had stated a claim under Title VII because the supervisor made a demand upon a male employee which would not have been made on a female employee. The harassment, therefore, was gender based.

3. See also Barbour v. Department of Social

Servs., 198 Mich. App. 183, 497 N.W.2d 216 (1993) (finding that a male employee who had alleged that his male supervisor had made advances towards him had stated a claim for sexual harassment under Michigan State discrimination law).

4. See also Parrish v. Washington Nat'l Ins.

Co., 1990 U.S. Dist. LEXIS 13934 (N.D. Ill. 1990) ("If a plaintiff complains of unwelcome homosexual advances, the offending conduct is based on the employer's sexual preference and necessarily involved the plaintiff's gender, for an employee of the non-preferred gender would not inspire the same treatment. Thus unwelcome homosexual advances, like unwelcome heterosexual advances, are actionable under Title VII.").

5. Prescott v. Independent Life and Acc. Ins.

Co., 878 F.Supp. 1545, 1550-51 (M.D. Ala. 1995): Congress chose to use the unmodified word "sex" when referring to the prohibited discrimination in Title VII. Had Congress intended to prevent only heterosexual sexual harassment, it could have used the term "member of the opposite sex" in Title VII. The gender of the person who requests sexual favors from a subordinate employee, therefore, is irrelevant under Title VII.

6. Boyd v. Vonnahmen, 1995 U.S. Dist. LEXIS 7542

(S.D. Ill. March 29, 1995) (declining to "read Title VII as applicable only to heterosexual sexual harassment" in a quid pro quo case).

A. Same-Sex Harassment:

Hostile Work Environment

While Federal courts remain unified in rejecting claims of harassment based on sexual orientation, there is an

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emerging split among Federal courts whether to recognize same-sex harassment.

1. Courts Holding Same-Sex Harassment Not


a. Hopkins v. Baltimore Gas & Elec. Co., 871 F.Supp. 822 (D.Md. 1994): Allegations by a male employee that his male supervisor sexually harassed him over a period of seven years by creating a hostile work environment were rejected by a federal district court in Maryland. The court held that Title VII does not protect the victim of sexual harassment by a supervisor or co-worker of the same gender. The fundamental concept of Title VII, the court opined, is to make certain that persons of one gender are not treated as being inferior to persons of the other gender. The male supervisor, therefore, could not have treated the male employee as inferior because of his gender, since they are both men.

b. Garcia v. Elf Atochem North America, 28

F.3d 446 (5th Cir. 1994): "Harassment by a male supervisor against a male subordinate does not state a claim under Title VII even though the harassment has sexual overtones. Title VII addresses gender discrimination." See also, Oncale v. Sundowner Offshore Services, Inc., 1995 U.S. Dist. LEXIS 4119 (E.D. La. March 24, 1995); Myers v. City of El Paso, 874 F.Supp. 1546 (W.D. Tex. 1995).

c. Benekritis v. Johnson, 882 F.Supp. 521

(D.S.C. 1995) (same-sex harassment "is not a viable claim under Title VII").

d. Goluszek v. Smith, 697 F.Supp. 1452

(N.D. Ill. 1988): Sexual harassment against male in male-dominated environment not actionable under Title VII because action would be inconsistent with Title VII's goal of remedying discrimination and correcting imbalance of power.

e. NOTE: Even in courts that have found

same-sex harassment claims outside of the scope of Title VII, a plaintiff may still have a claim for retaliatory discharge. This conclusion draws support from the statutory mandate 42 U.S.C.  2000e-3(a), which extends a retaliatory discharge claim to anyone participating in proceedings under Title VII -- even if the court later concludes that the plaintiff's claim is not cognizable as a

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matter of law. See, e.g., Benekritis v. Johnson, 882 F.Supp. 521 (D.S.C. 1995); Hopkins v. Baltimore Gas & Elec. Co., 871 F.Supp. 822 (D.Md. 1994).

2. Courts Holding Same-Sex Harassment Actionable

a. Nogueras v. University of Puerto Rico,

1995 U.S. Dist. LEXIS 8958 (D. P.R. June 13, 1995): Allegations by a female employee that her female supervisor and a female consultant sexually harassed he by touching her, making sexually-charged remarks, inviting plaintiff to engage in sexual activity and other similar incidents. Court rejected defendants argument that Title VII does not same-sex harassment. "It is clear . . . from the plain language of Title VII, that same-sex harassment is an unlawful employment practice. . . . Defendants' gender is irrelevant."

b. EEOC v. Walden Book Co, 885 F.Supp. 1100

(M.D. Tenn. 1995): Same-sex sexual harassment is actionable under Title VII because it would be "untenable to allow reverse discrimination cases but not same-sex sexual harassment cases to proceed under Title VII." "Sexual harassment of a subordinate by a homosexual supervisor of the same sex is an adverse employment action that the subordinate would not have faced but for his or her sex."

c. Lamar v. NYNEX Service Co., 1995 WL

421726 (July 11, 1995 S.D.N.Y.): Analyzing merits of same-sex hostile work environment case under the assumption that such conduct would be actionable under Title VII if "sufficiently sever or pervasive to alter the conditions of [the victim's] employment."

d. Pritchett v. Sizeler Real Estate

Management Co., 1995 U.S. Dist. LEXIS 5565 (E.D. La. April 25, 1995): Notwithstanding the Fifth Circuit's dicta in Garcia, the District Court held that "[t]o deny a claim of same gender sexual harassment allows a homosexual supervisor to sexually harass his or her subordinates either on a quid pro quo basis or by creating a hostile work environment, when a heterosexual supervisor may be sued under Title VII for similar conduct."

e. McCoy v. Johnson Controls World

Services, 878 F.Supp. 229 (S.D. Ga. 1995) ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 80---------------------------------------

(harassment that would not have occurred but for the victimized employee's sex was harassment "based upon sex" regardless of the harasser's gender).

A. Same Sex Harassment:

Hostility Based on Sexual Orientation Does not Create Environmental Harassment Claim

The creation of an environment that is hostile to gay or lesbian employees, i.e., harassment that affects an employee because the employee is a gay man or lesbian, is not considered gender-based discrimination under Title VII and is not prohibited.

1. Dillon v. Frank, 1992 U.S. App. LEXIS 766, at

*2-3, 58 Empl. Prac. Dec. (CCH)  41332 (6th Cir. 1992): A male postal worker filed a Title VII claim based on sex, alleging that he was verbally and physically harassed by co-workers due to the co-workers' belief that he was gay. The harassment which persisted over a period of three years consisted of verbal comments directed toward the employee such as "fag," "Dillon sucks dicks," "Dillon gives head" and escalated to a physical assault on the employee. Although finding that the harassment was "sexual" in nature, the Sixth Circuit held that harassment based on the sexual orientation or perceived sexual orientation of an employee is not actionable under Title VII. The court noted, however, that if the employee could show that he had been treated differently than a lesbian employee, he might have an actionable claim as he would then be singled out for unique treatment not because he was gay but because he was a gay man. 1992 U.S. App. LEXIS 766, at *27 n.5

2. Carreno v. IBEW, Local No. 226, 54 Fair Empl.

Prac. Cas. (BNA) 81 (D.C. Kan. 1990): A male employee divorced his wife and began living with another man. As a result, his co-workers and supervisors verbally and physically harassed the employee over the course of a year. The employee eventually refused to report to work and alleged that he had been constructively discharged as a result of the harassment. The Kansas District Court held that the employee had not established a prima facie case under either Title VII or state discrimination laws as the discrimination complained of was based on the employee's sexual orientation rather than on his gender.

3. Similarly, in Barbour v. Department of Social

Servs., 198 Mich. App. 183, 497 N.W.2d 216 (1993), the Michigan Court of Appeals held that under Michigan state law, an employee who was harassed

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by co-workers who believed that a male employee was gay failed to state a claim for sex based dis- crimination.

4. In Fox v. Sierra Development Co., 876 F.Supp.

1169 (D. Nev. 1995), heterosexual male employees alleged hostile work environment saturated with homosexual references. Court held they did not allege any discriminatory hostility and thus failed to state a cause of action under Title VII.

The alleged hostility was not against men or masculinity and was not hostile on the basis of sex or gender but only hostile to a person's notions of sexuality and its proper role or place.

This is not actionable under Title VII.

5. Vandeventer v. Wabash Nat'l Corp., 867

F.Supp. 790 (N.D. Ind. 1994): Harassment by males against male homosexual not actionable under Title VII because Title VII aimed at gender-biased atmosphere and no evidence that male harassed because he was male.

A. Harassment of Both Sexes

A few courts have considered the question of whether a supervisor who harasses members of both genders equally violates Title VII.

1. Barnes v. Costle, 561 F.2d 983, 990 (D.C.

Cir. 1977): In considering an allegation of sexual harassment of a female employee by her male supervisor, the court stated that if a gay supervisor of either gender had harassed an employee of either gender, the employee would receive Title VII protection. In either case, the court reasoned, the employee would have been treated differently because of his/her gender. The court added that "[i]n the case of a bisexual superior, the insistence upon sexual favors would not constitute gender discrimination because it would apply to male and female employees alike." Id. at 990 n.55.

2. Chiapuzio v. BLT Operating Corp., 62 Fair

Empl. Prac. Cas. (BNA) 707 (D.C. Wyo. 1993): In denying a motion for summary judgment the court described a supervisor who harassed both male and female as an "'equal opportunity' harasser whose remarks were gender-driven." Id. at 710. The court distinguished between same-sex and bi-sexual harassment in that the supervisor was not suggesting that he wanted to perform sexual acts with the male employees, but rather his harassment took the form of impugning the male employees'

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sexual prowess.

3. But see, Ryczek v. Guest Services, Inc., 877

F.Supp. 754 (D.D.C. 1995): Criticizing Barnes in dicta. The court recognized the anomaly of the "particularly unspeakable cad" who would escape Title VII liability simply because he or she harasses both men and women. Court also questioned the "troubling possibility" of having the litigants "debate and juries determine the sexual orientation of Title VII defendants.

A. Local Laws Prohibiting Sexual

Orientation Harassment

Currently, eight states and many cities have municipal ordinances explicitly proscribing discrimination based on sexual orientation. In those jurisdictions, employees may have a cause of action for hostile environment sexual harassment based on sexual orientation.

1. In Mogilefsky v. Superior Court, 20 Cal. App.

4th 1409 (1993), the male plaintiff alleged that his male employer sexually harassed him by repeatedly inviting him to his hotel room, making sexually explicit comments after watching pornographic films with him, and referring to plaintiff in a profane and degrading way. Id. at 1412. The court held that a cause of action can be stated for same-sex harassment, whether based on quid-pro-quo or hostile environment theories. Id. at 1418.

2. The Supreme Court, New York County noted, in

the context of a hostile environment sexual harassment suit, that because discrimination by New York City agencies or representatives against gay men and lesbians is explicitly prohibited by New York Executive Order No. 4 (1978), "anti-gay or homophobic remarks or actions . . . may also constitute prohibited discrimination." Rudow v. New York City Comm'n on Human Rights, 123 Misc. 2d 709, 474 N.Y.S.2d 1005, 1014 n.11 (Sup. Ct. N.Y. County 1984), aff'd, 109 A.D. 2d 1111, 487 N.Y.S.2d 453 (1st Dep't 1985).

3. In Fry's Food Stores of AZ, Inc., 99 Lab.

Arb. Rep. (BNA) 1161 (1992), the arbitrator upheld the company's discharge of an employee who verbally harassed a gay co-worker. The arbitrator reasoned that because Tucson, Arizona had an ordinance prohibiting discrimination on "sexual or affectional preference," the company was justified in its severe punishment of the employee.

4. A recent opinion letter from the California

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Labor Commission indicates that it interprets the California state statute prohibiting employment discrimination on the basis of sexual orientation (Cal. Lab. Code  1102.1) to prohibit hostile environment harassment based on an employee's sexual orientation. (Op. Let. dated March 8, 1993).

5. In Matthews v. Superior Court, 34 Cal.App.4th

598, 603 (1995), the court held that a heterosexual employee could state a claim for hostile work environment created by homosexual supervisors based on California's Fair Employment and Housing Act. Citing Mogilefsky, the court held that sexual harassment by a member of the same sex constitutes gender harassment under the FEHA.

1995 Steefel, Levitt & Weiss and Proskauer Rose Goetz & Mendelsohn

Proceedings of the panel on


at the 1995 Women in the Law Conference

Monterey, California

May 5, 1995

Introduction by Francisco Valdes:

Welcome to the program on Gender, Sexual Orientation & HIV of the 1995 Conference on Women in the Law, which is organzed every year by the State Bar of California Women in the Law Committee. This particular program is sponsored by the State Bar of California Committee on Sexual Orientation Discrimination (CSOD), which the State Bar Board of Governors commissioned in 1993 to study and address sexual orientation legal issues. As the title of our program indicates, the focus today is on how HIV affects the social and legal interests of women, both due to and regardless of sexual orientation.

Since 1981, when the pandemic dawned, public attention and policy has focused primarily on gay male populations, and this primacy continues today on the whole. Yet the most recent data tells us that women and children--and especially those of color-- tend to be acutely and increasingly at risk. To consider how current social realities and legal rules and policies regarding

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HIV may be better understood and aligned, we have with us today four panelists to offer a rich variety of perspectives on this subject. After their presentations, we'll have a question-and- answer discussion period.

We'll begin with Rhonda Hase, a legal worker who has lived with HIV for several years now. She opens our program with a concrete view of the way(s) in which HIV affects the social and professional lives of women. Next will be Gina Facen, a case worker at the Lyon-Martin Women's Health Services in San Francisco, to provide a perspective on the subject that is essential to bridging the gap between theory and practice. Eileen Hanson, the policy director at the San Francisco AIDS Referral Legal Panel, then will focus on current developments and issues in the law, policy, and politics and woman-to-woman HIV transmission. Finally, Linda Allen, who has practiced in the area for years and formerly was the legal director at the AIDS Foundation of San Diego, will close the program with a practitioner's view of these issues.

Presentation by Rhonda Hase:

As Frank told you, my name is Rhonda and I am a HIV positive. I have been HIV positive for a little over twelve years now. I have known I've been HIV positive since June 1st of 1990, so I have known for almost five years.

It's been a real interesting road ever since I found out. When I first found out I working in a law office in Hayward, and it was a very small law office, very family oriented, and a lot of the women there that I was working with, the support staff, etc., one woman was had just had a baby and most of the women there had children. So my issues about disclosure were staring at me in the face because I didn't want these women to be afraid of me. Yet, I didn't know a lot about this disease, as I had just found out myself. So I talked with my office manager, and basically we (the office staff and I) had a conference in our conference room, and I told everybody there that I was positive. And I was very happily surprised with the result. Everybody was very..., were very good and very supportive. Everybody asked questions, had a lot of questions for me and I was able to answer a lot of them and I was able to get a lot of information for everyone. Basically our office policy regarding people with HIV kind of formed as we went along, on a day-by-day basis.

The treatment for me, I was lucky, I had been working there already for about four years, and so I knew everybody and we were all pretty much a big family within the firm. So it was very open, I wasn't afraid to tell them. Unfortunately, because of the recession, I was laid off from that law firm and had to look for a job elsewhere.

The next law firm that I went to wasn't, it was more like... very much factory kind of work and I chose not to tell people there and it didn't present a problem because my health has been

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pretty good so I haven't had a lot of medical issues, I go to the doctor about every three or four months for regular checkups and blood tests and that kind of stuff. I have to see my eye doctor about twice a year because there is a higher risk for glaucoma and different kinds of issues for women as far as Hiv and Aids. I see a gynecologist three times a year because women are more prone to yeast infections, cancer of cervix, that kind of gynecological problems. So I have to go to a doctor a few more times a year than most people do, which is kind of a pain, but other than that I'm basically pretty healthy, knock on wood.

I chose to leave that firm because their type of work, it was just, I am a paralegal and I wanted to do paralegal work. I didn't really want to do word processing. So I looked around and found a very wonderful firm that I am at now and my boss is here with me.

I worked there for oh, I guess it was about a year and a half before I finally disclosed to my boss that I was Hiv+, and the reason I did that was mainly because I started having a lot of doctors' appointments during the month of December. What had happened was I went in for my regular check-up and my t-cell count was down to 120. Which, the t-cells they use, your T4 cells, they use as an indicator on when they want to start you on preventive medications such as AZT, DDI, DDC, and other medications to prevent pneumonias and other infections.

Most normal people, or I guess people who aren't infected with the virus have anywhere from 800 to 1200 t-cells. So 120 is pretty low and they wanted to start me on septra as a preventive against PCP pneumonia, and I started taking the septra, and about a week later I developed hives all over. So I was allergic to the septra, so I had to go back to the doctor, and then she gave me another medication called dapsung, which if you are allergic to septra, they go to this medication. Well, in about a week or so later, I had hives again. So I had to go back to the doctor again. It was pretty apparent at the time that I needed to tell my employer something. And a lot of times, people in my position, and I know a lot of women who do this, just tell their employer that they have cancer because that's a more acceptable illness than Hiv. I didn't think I would have...I never thought that I'd have a problem telling my boss that I was Hiv+ from a personal aspect because I never thought that they would have problems with it or anything. The problems come in when I go to work at a place, I want people to take me based on my capabilities. I don't want people to worry about, well, is she going to get sick later, that kind of stuff. I want them to know that I can do the job and that if I'm not able to do the job, then I wouldn't be here. That was a lot of the reason for me not disclosing fairly early.

So then when I did disclose, it was sort of a big relief, actually, because it was okay now I've got this out in the open, and basically now our office policy is day by day. The only thing that we did have that is probably a little bit different, but everybody probably should have, is in our earthquake kit we have gloves, the regular surgical gloves, so that in case

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something should happen to where people might have to treat me for any kind of medical emergency where I am bleeding, that they aren't exposed to my blood. That's basically the only addition, universal precaution, that we have really taken. I let my employer know that I have a doctor's appointment for this or that, and I try to schedule them either early in the morning or late in the afternoon kind of thing, so I don't miss too much work. I am not at that point yet here I have to miss a lot of work because I haven't been sick or anything. I get tired, and that kind of shows every so often. I get probably a little bit more tired than usual, which is kind of hard to explain. Because when you say tired, you just think, oh yeah, well everybody gets tired. But it's hard to explain.

I used to take AZT and I had taken AZT for about a year and half until I became sick from the medication. I would go to bed at six o'clock at night and wake up about six or six-thirty in the morning to go to work and feel like I hadn't gotten any rest at all. I would have to call in sick to work because I couldn't make it because I was just too tired. I had to stop taking AZT. After I stopped, I regained alot of my strength and bounced back a little bit. My t-cells were able to go up and everything.

Now, with my t-cells being so low, since I am allergic to septra and dapsung, I am going to have to start taking or doing another type of treatment - aresaol pentamimine - once a month. Hopefully I won't be allergic to that, as well.

Basically life for me, in general is good. I go on, I work, I have a 14-month-old daughter. My husband and I are doing quite well, I mean I still have the average, run-of-the-mill stuff everybody else does. For me, I don't dwell a lot on this. I do a lot of volunteer work surrounding Hiv and Aids, but that's more for me, to help me cope and also to take away the stigma of this disease for women, for everybody with this, because it is not just a gay white man's disease. It affects and infects anybody. It's an equal opportunity disease. One of the fastest growing groups that is contracting the Hiv virus is women, especially women of color. Another big growing group are teens, kids can get this also. So it's very important to me to speak out to groups like this and other groups. I do a lot of speaking to high schools, to junior highs, church groups, etc. I have spoken to several doctors' and nurses' groups because I want everybody to know that while yes, I am Hiv+, but I don't let this disease rule everything in my life, it's my thing to deal with. For me, everyone has got something to deal with and this one thing is just mine.

I want everybody to know that it's very important that people are educated about this, that they do learn about it, and that they need to learn about it. Thank you.

Presentation by Gina Facen:

Hi, I'm Gina Facen and I'm here representing Lyon-Martin Women's

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Health Services in San Francisco. Lyon-Martin is a great place for women. We see lesbian, bi-sexual and transgendered women as well as giving special outreach to older women, low income women, and women of color. Because we actually give services to all these women I have had the experience of working with a largely diverse group of HIV+ women. Let me give you a few facts. Aids is the fourth leading cause of death for U.S. Women. It's the first leading cause of death for black and hispanic women. These are women between the ages of 13 and 44 this includes a large number of teenage girls and young women of childbearing age. It's important to remember when newspapers and media reports a decline in HIV infection amongst certain groups of people they are not being clear that these groups do not include women. Our numbers are growing at an obscene rate. I realize that this not easy for some of us to hear but it's this same kind of denial that keeps women from getting the information that's available and could save their lives. We won't see a decline in the numbers of women with HIV until we are willing to talk about sex and what that means, and drug use and what that means, and educate our daughters, and our lovers and our sisters.

As a case manager at Lyon-Martin I assist HIV positive women in continuing to live with HIV. A lot of these women were infected through sexual contact and drug use. I assist them with everyday worries such as food, shelter, and clothing first. And of course there is a need for education in regards to medical care, safe sex practices, or help with substance abuse issues and/or mental health issues. These women are sometimes homeless or borderline homeless. They all need a lot of love and understanding. The majority of these women do have a need for legal services and it's usually upon intake that I refer them to the A.L.R.P. in San Francisco.

The A.L.R.P. has been one of the agencies that has made my job easier. Arrangements for legal services have included, wills, power of attorneys, divorce, entitlement cases for SSI, housing issues. The services given by volunteers is wonderful. Lawyers have been willing to come to client to get there need met and this is important for some who feel intimidated by fancy office buildings and executive atmospheres. The manner in which they have dealt with clients has been warm and attentive. On behalf of the clients Lyon-Martin has referred to A.L.R.P. Thank you. The issue of power of attorney is a difficult one to deal with, clients are reluctant to initiate this kind of thing because of the emotional stress of living with a fatal disease is once again reaffirmed, it is also how some have chosen to disclose to family members, which is very difficult. Lyon-Martin has worked with an outreach worker, Marina s., At ALRP who comes to our clinic once a month so it is very convenient for clients to access the services at a familiar place.

My knowledge of law is very limited and the need for legal services for HIV positive women is much needed. Clients have asked that present a few suggestions as to what they would like in addition to the already available services. The first would be a broadening on legal services to include criminal law. There

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is a need here as much of the women I see who have this kind of legal need if they disclose to court appointed lawyers they have been ignored, shunned and shown indifference in regards to health considerations. So services are also needed in this area.

They've asked also for panels to consider a corporation of some sort to include assisting HIV positive women with preparing for court dates and jail releases. I don't know what that would look like, but this is what they asked I relay. Something else that would be helpful in reaching women so that they could access services more easily could possibly be client orientations and inservices given at the agencies that women frequent for other services. This would give clients a chance to ask questions directly to a lawyer, or assistant so that they get answers and are in a familiar environment and a place they can feel safe to ask these questions. I thought this was an excellent idea and would also give service providers a chance to get more information also. The last was to donate any amount of time to HIV positive women's organizations so the continuing education of women would go on.

Thanks to those of you who donate time, money and understanding, and, thank you to "women in law" for inviting me to participate in your conference.

Presentation by Eileen Hanson:

Thank you to the State Bar Committee on Women in the Law and to the State Bar Committee on Sexual Orientation Discrimination for allowing and sponsoring this program, and thanks to all of you for being here today.

I am always appreciative when people make HIV issues for women a priority within discussions related to health. As women, we don't do that often enough and that is a serious problem given that AIDS is the fourth leading cause of death for U.S. women aged 25 - 44 and is growing at an alarming rate in women. The rate of AIDS in women increased by 9.1% between 1991 and 1992, compared to a 3.4% increase overall, and continues to increase at a higher rate for women than men. In 1992, it became the second highest cause of death for African American women between the ages of 25 and 44. It is the primary cause of death of women in this age group in nine cities. Over 50,000 women have been diagnosed with AIDS in the United States and over 100,000 are estimated to be HIV-infected. The 14,081 women reported with AIDS in the U.S. just in 1994 represented nearly one-fourth (24 percent) of the total number of AIDS cases ever reported among women. I am also appreciative with regard to the decision that HIV was considered an important enough issue for us to talk about in the context of the intersection between sexual orientation, gender and HIV. I believe that you can't talk about HIV that we shouldn't talk about HIV without talking about the intersection not only of sexual orientation and gender, but also of race and class. In particular, when talking about women these

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issues become ever more important as we look at the growing numbers, and as we look at the women who are most affected by HIV. Yes, it can be any of us but it is women who are of color, who are using drugs, who are on the street, who are poor, who are homeless, who are incarcerated, who are those most affected by and infected with HIV.

What does that say to us about the resources that we can count on to take care of women in the future? In the beginning of the epidemic, when the epidemic was supposedly affecting mostly gay white men, and we were dealing with tremendous issues of homophobia, it was tremendously difficult to access the resources both financial and voluntary resources. If we thought it was difficult to find those resources, what is it going to be like to try to find the resources to take care of women, of poor people, of people of color, of people using drugs, of people who are incarcerated, of people who are homeless?

I'll tell you we're trying to access those resources and we're not succeeding. We are fourteen years into this epidemic, and people are saying, "I'm tired. I can't give more time. I can't give more money. And those populations being hardest hit...well, I don't really know how to help them." Granting sources are interested in funding other projects and individuals are interested in seeing their dollars go somewhere else after all these years. It's an understandable reaction. However, when have women's issues or issues related to homelessness or drug use ever been heard and understood and taken seriously, let alone been popular to fund? So it's critically important for us to commit to continuing the fight against AIDS as we see resources dry up. We must find new resources to supplement what we can hang on to and to supplant what we are losing.

I came to AIDS work about nine years ago specifically because of the intersection of race and class and sexual orientation and gender. I know that many lesbians came to AIDS work in the beginning of the epidemic for that same reason. We have continued to be in the fight against the pandemic specifically because of that intersection. Lesbians brought to the fight our history of political activism, our organizing skills and our ability to understand the different ways different communities are affected by HIV, based on their relationship to the discrimination of race, class, sexual orientation and gender.

Often what that means for women is that HIV is just one more problem on the list of many women face in today's society. And, in fact, it's not even the top problem on the list. But it is one more thing to grapple with in addition to facing racism or homelessness or poverty or lack of access to healthcare in general, or the struggles inherent in raising kids, or whatever else it might be.

It's important to bring those issues to bear when we analyze the effect of HIV on women who have sex with women. However, one of the things that gets left out when we talk about the intersection of all these issues for women is the issue of sex. You would think that we couldn't talk about HIV without talking about sex, but somehow we manage to do it over and over again.

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And when it comes to women who are with women, we really can't deal with talking about sex.

For starters, woman-to-woman HIV transmission is a great expanse of silence. Women are absolutely frightened to talk about it and men are generally unable to take it seriously. We do not talk about it. That is the truth of where we are in 1995 fourteen years into the epidemic. Just now we are beginning to see a crack in that silence. But that crack can't be broadened to split open the subject until we talk about sex the sex that women have with women. But that's extremely difficult because we all know that lesbians don't have sex. First of all, women don't have sex. Women are only sexualized when they're in relationship to men and often, then, it's in the context of the virgin mother/ whore analogy. Other than that, women aren't sexual, so women who are with women are certainly not being sexual.

In addition, lesbians certainly don't sleep with men; certainly don't shoot up; certainly don't exchange drugs for sex; certainly are not homeless; certainly are not of color. So, therefore, why would we talk about lesbians in the context of HIV? Society doesn't really acknowledge that we exist except in the context of Newsweek's coming out for us in 1990 and then again in 1995. (And who we are, in all our diversity, was of course mirrored on the cover of Newsweek.) Other than that kind of singular approach to lesbianism as a phenomenon, albeit a media mainstreamed one we aren't acknowledged as individuals and communities to be taken seriously.

One of the real dangers of that approach is that our relationship to HIV hasn't been taken seriously, in part because we're not real people. While it is accurate to say that discussions related to the risk of HIV for lesbians occurred from the beginning of the epidemic, it is also necessary to acknowledge another reaction to the issue. While lesbians argued with lesbians over woman-to-woman transmission and were simultaneously accused by gay men of attempting to divert the "real" epidemic to a "peripheral and wholly potential" problem, the right-wing had its own unique approach to HIV. When the right wing was saying (as they sometimes still continue to say) that AIDS is visited upon gay men because of their "promiscuity" and their "outrageous sexual practices" and that they therefore "deserve" AIDS, some lesbians and some gay men were able to say, "well, gee, lesbians don't seem to be getting HIV, so we must be God's chosen people, right?"

We were able to take that hit, that terribly painful, horrible attack on gay men and turn it around in defense of the combined gay/lesbian community and say, this is obviously disgustingly ignorant, ridiculous, mean-spirited propaganda that can be refuted. And the right had no response.

Unfortunately, that approach has come back to haunt us. Society apparently believed that we weren't at risk for HIV and some of us started to believe that as well. So now what we are trying to do is undo some of the mess that was created out of that thinking and correct some of the things that we've come to

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believe in our own communities.

As lesbians in this culture we suffer, of course, from the same lack of power and resources that all women do, but we also have to grapple with how to navigate our health and our social and sexual experience in an environment that is ferociously heterosexual and heterosexist. Therefore, because we have no voice and no visible presence, we have no power, really. And no cover of Newsweek gives us that power. Because we don't have that voice and that access to power and visibility, our issues and our relationship to HIV have been submerged. That is a very serious situation because it's kept all of us ignorant. It's kept us uninformed and thus, we have not been able to do the educational work in our communities that we desperately need to do to keep the numbers of women who partner with women low.

Now, at least, there is beginning to be more general acknowledgement that the behavior of women who identify as lesbians is an issue to at least be seriously explored by those who are concerned about the steady onslaught of HIV. One of the indications of that acknowledgement is the recently convened meeting by the Centers for Disease Control and Prevention (CDC) on woman-to-woman transmission. It took many years of tremendous efforts on the part of activists to get to the point of this meeting the world's first discussion at a policy-making level - some fourteen years into the epidemic.

As exciting as it was that this meeting was called, it was also exciting for a second reason, which is that the meeting was not held in the context of "let's talk about whether there is an issue of transmission between women," but rather, "let's talk about what to do about the issue of women-to-women transmission."

So, there was acknowledgement going into the meeting that we have a problem and collectively, we need to figure out what to do about it. Women who brought a community-based perspective joined together with the CDC perspective and, with respect for one another's expertise, created what became a powerful meeting.

The people in the April 1995 meeting were CDC staffmembers who are researchers, who track numbers and do surveillance, who are policy planners and are people who know HIV issues in general. They were not people who necessarily related to woman- to-woman transmission, but people who have worked on HIV issues historically and currently. They were very open to hearing from experienced women who know woman-to-woman transmission issues through our own personal lives, with our friends, lovers and clients, and within our jobs dealing with women who identify or behave as lesbian or bisexual. Eighteen women many of us community-based were invited to attend, based on our expertise regarding the issue. As President of the Women's AIDS Network in San Francisco, I facilitated the meeting. Unfortunately, women living with HIV were sorely underrepresented, with only one self- identified lesbian with HIV included, despite efforts of activists to include their perspective only the most important, in my mind.

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A crucial part of the meeting was that Dr. James Curran, Associate Director of HIV/AIDS for the CDC (the highest position within the CDC with regard to HIV), met for two hours with us to review the agenda that we had developed to present to the CDC. He made a number of public commitments as to what the CDC is willing to do regarding woman-to-woman transmission. The fact that Dr. Curran spent two very public hours on this topic certainly suggested that the CDC was willing to begin taking the issue of woman-to-woman HIV transmission seriously. In addition, following the meeting, I received a call from the White House Director of AIDS Policy who was following up on the meeting and wanted to know what their office could do because they were interested in the issue and wanted to help. So I think we're now in a place where at least the dialogue has started. We still have a long way to go, but at least it has begun.

There was general acknowledgement at the meeting in Atlanta that this work cannot be accomplished without framing the issue within the context of an analysis that includes class, race and economics and without addressing the complexity of the lives of women who partner with women. The different ways we partner and the diversity of our risk must be recognized, as must the fact that lesbians exist within and identify with many different communities. Thus, prevention efforts must be specifically targeted. Addressing woman-to-woman transmission will take creative energy that brings together the best of our scientific efforts, our research skills, the approach of community-based organizations and our grassroots experience.

With regard to women who partner with women, we have, in some cases, not very good data and in most cases, very little data. So it's very easy for people to say woman-to-woman transmission doesn't exist. Since we base funding on numbers of those infected and thus potentially infected, a community must produce numbers in order to receive funding from government or private sources. Of course, lesbians are constantly in the position of saying that while we don't have the proof of numbers to show that HIV is a problem in our communities, the fact is that it's because no one's taken woman-to-woman transmission seriously enough to track the numbers.

I believe that the numbers of women who had no other risk factors for HIV transmission than being with another woman are low. However, I also believe that the numbers of women who partner with women and have, or have had, other risk factors, are much higher. So, while we have a great deal of very frightening anecdotal research with regard to lesbians infected with HIV, up to this point, we've been quite unsuccessful in getting dollars into the lesbian and bisexual communities to keep the numbers from going up. And if we're talking about preventing HIV in lesbians, we need the dollars to reach both women who are potentially infected and women who are potentially at risk. The education must be provided to keep the numbers down.

We must also explore how it is that we partner with women and the diversity of risks that we engage in. That really means that we have to look at behavior, in addition to identity. So we

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need to look as much at what women are calling themselves maybe more so as what behaviors they are engaging in. There are women today who still say "I'm a lesbian. So I sleep with men, so I do drugs, I'm still a lesbian. Therefore, I can't get HIV, right?" We need to strip away what people call themselves and say, if you sleep with men, if you're using drugs, if you're engaging in particular kinds of sex with women, there is a potential for risk. Let's talk about behaviors and let's do research on behavior so that we can understand what kinds of risks we're engaging in, what kinds of sex we're having.

And, we need to always keep the complexity of our lives in focus. We need to look in particular at the communities of lesbians and bisexual women who are most marginalized, women in prison, women in recovery, women on the street, women who are young, women who are transgendered, women who are the working poor.

Specifically, Dr. Curran agreed to take our agenda to CDC staff and assign items as appropriate. He also agreed to consult with other agencies, in particular the National Institutes of Health (NIH) on the research requests. In addition, he agreed to the following: 1) that a report on the meeting would be published; 2) that guidelines should be developed for healthcare providers on how to conduct sexual histories and how to fill out surveillance forms so that lesbians are counted (because generally women don't get asked if they partner with women or if they have ever had sex with women); 3) that CDC guidelines should be reviewed for heterosexist bias; 4) that a presentation would be made to the CDC's HIV Prevention Advisory Committee and that they should take up the issue of woman-to-woman HIV transmission; 5) that a woman-to-woman HIV transmission resource packet would be developed; 6) that future meetings with more community involvement (in particular, that of HIV-positive women) would occur; and, perhaps most importantly, 7) that more research on woman-to-woman transmission was needed.

Because there is such a lack of data and research and such a lack of surveillance related to women who partner with women, we spent a great deal of time on these two issues and I want to expand on them here:

With regard to research, we talked specifically about behavioral research and assessing the risk factors that women engage in. We also noted that we need to look at the intersection between HIV and STDs, sexually transmitted diseases, along with developing a discordant couple study in order to educate couples where one partner is HIV-negative and one partner is HIV-positive. Women who are in those situations don't have a clue about what kind of sex to engage in since that kind of information has not been provided to them so they can feel comfortable being sexual in their relationships. Further, there must be case studies of woman-to-woman HIV transmission.

With regard to surveillance, we need to both increase our surveillance and understand how to do better surveillance of women who partner with women. We need to get at all the

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anecdotal evidence that we have from working with women that has not been formalized and documented.

The CDC employs what they call a risk hierarchy, and there is a great need to revise the risk hierarchy. What that means is that when a woman is tested and is asked a battery of questions about her behavior, if she says that she has had sex even once with a man since 1977, even if all her other sexual encounters have been with women, if she slept once with a man since 1977, she will be categorized as heterosexual.

So what happens then is that we have no way of tracking how many women who identify as lesbians because they are lost in that kind of a hierarchy. We also have no way of tracking the behaviors of those women who are then slotted into those various categories. So of the women who are in the heterosexual categories, or in the injecting drug using category, we don't know how many may or may not identify as lesbians but spend most of their time with women, including most of their sexual time, and most of their time in lesbian communities. If we had those numbers which we could get, in part, by revising the risk hierarchy we could target the critical preventive education appropriately. Prevention education needs to be specifically targeted with regard to behavior, it needs to be culturally sensitive, and it needs to go to communities where women who partner with women spend their time to lesbian and bisexual communities.

Minutes of the meeting have not yet been distributed and thus, we do not have confirmation that the CDC is moving forward on this agenda. But you can be sure that those of us in attendance will actively follow up with the CDC.

The final word I would leave with those of you who work within the legal system is this:

There are many ways that you can support the work I've just described because the issue is still so closeted. Educating yourselves on the issue of woman-to-woman transmission; educating others; working with community-based organizations that do HIV work that is specifically focused on women; making your community-based HIV organizations accountable when they say they provide service and education to women (make sure their efforts really are appropriately tailored toward women and make sure they're not leaving out outreach to the lesbian and bisexual women's communities).

Additionally, working with women's health organizations and making sure they don't drop out HIV issues in their work with women, including a focus on woman-to-woman transmission; and critically important, using your expertise and whatever access to channels of power that you have to move this issue onto the front burner. Another very valuable way that you can use your analytical and research skills is to become involved in legislative efforts and work in the public policy arena.

As an example of the importance of public policy work, there

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is a strong move in this country at both the federal level and with various states to target childbearing women for mandatory HIV testing. While this issue is not germane to the information I've provided to you here regarding woman-to-woman HIV transmision, it is another issue where the intersection of gender and race and class is paramount. We're talking mostly about women who are HIV-positive and who are poor and of color who will be the focus of any attempt at mandatory HIV testing. Such an effort must be vigorously fought. And those who must take the lead are the women, as unfortunately, far too many even within the HIV communities see this as a women's issue and are not taking it on as "their" issue or as an issue that could ultimately become their issue. Again, we know the power or lack thereof of an issue that mostly affects women and women who are disenfranchised because of race and class and HIV status.

We'll need all the support you can muster to win this one.

I thank you again for your commitment to women, to fighting HIV, to keeping conscious about the intersection of sexual orientation, gender, race and class as that critical intersection relates to the healthcare and very survival not only of individuals in this country, but to the health and well-being of our society.

Presentation by Linda Allen:

What we have heard already is really a strong statement about HIV in women and what the barriers and issues are. What I'd like to talk a little bit about - following up on Gina and Rhonda and Eileen are some of the legal issues that come up in the context of running a legal clinic for people with HIV and AIDS. And I want to challenge you: if you're not already involved this is a wonderful, wonderful way to do some true lawyering, some counseling and advocacy for people who really, really need it.

As you've heard from our other speakers, there are certainly a number of issues surrounding HIV that point up the neglect and almost avoidance of women's issues; I want to just run through some of the most critical legal areas for women with HIV, and then talk a little bit about one particular model of delivery of legal services. Several legal issues are of special concern to HIV-positive women.

One of those areas is one that's important, I think, for everyone; and certainly for anyone with HIV, especially women, and that is doing advance planning. Just as Gina was referring to, when she related that in her initial conversations with clients she mentions advance directives, durable power for health care, and so forth; then in later conversations, she ll talk about these issues a little more seriously. In the AIDS legal clinic setting where 25 to 30 HIV-positive people are seen in one evening for legal services, all provided by volunteer attorneys, probably 80% the clients need and receive basic planning

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documents. We want be sure that they have a Will in place, to be sure that they understood about advance directives, and to prepare those documents, and talk about them with our clients. As difficult as that is, we found almost without exception that when clients came back to sign their documents, they would comment, Well, you know, I really put this off or I really was put off when you brought it up, but I feel good that I got this taken care of. So we found that for many of our clients it was

empowering to take care of this piece of business that can be quite simply done but that brings up a lot of issues. Certainly, anyone can purchase an adequate printed form document, so it's not necessarily a magical thing that requires an attorney's expertise by any means. However, some of the counseling that an attorney can do around these documents (particularly if you have an interest in helping people with social issues), counseling is often done in the clinic setting. You may find as a lawyer who interviewing a client, that you are first person, or one of the first people outside that person's partner or family, who learns of your client s HIV status. We find ourselves as lawyers not only hearing about someone's legal issue but about their lives and about the most intimate aspects of their lives; we have the ability to both take that information and to be able to give something back in terms of, Well, you know I can't solve all of this for you and I won't pretend to think that I can, but here's a piece of business that we can take care of for you and you'll act on it and it's something you can do and some things I can do and it's done and taken care of. Pretty satisfying work to do that, and to feel that there are practical things that are helpful for clients. From the perspective of many of our volunteer lawyers, they would comment that their Monday night at the clinic was the most rewarding part of the week. And we do a lot of things in our practice that are frustrating and hard and sometimes challenging and sometimes not, but not always personally satisfying. So it's an opportunity for that kind of satisfaction as well.

To get back to which legal issues are of particular concern: First, preparing a Will for women, and especially for many of them, establishing a guardianship; we've been talking about guardianships for a woman with children, you know how to do that.

We might want to talk a bit about pending legislation, regarding joint guardianship that's particularly important in California; secondly, preparing a durable power for health care, explaining what it means and why it's important; third, talking about a declaration to physicians. All are fairly simple, standard documents that we consider as basic needs for all of our clients and something that can be pretty readily done.

Another legal area of concern for people with HIV is confidentiality: confidentiality in medical records, confidentiality in the employment setting, (and certainly Rhonda had a couple of what I would call success stories in the employment context). As we all know, there's some pretty awful stories out there, too, about people who have either voluntarily disclosed their HIV status or for whom it's been involuntarily disclosed, who have lost their jobs, who have been shunned at

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their jobs, who have had really unfortunate situations, and I've heard other good stories like Rhonda's. I have one of my own favorites about a young man who was a paralegal in a fairly good- sized firm in San Diego who didn't share his status for a while and when he did, much to his surprise, had a great deal of support in the firm and continued to work for quite some time. When he became too ill to go into the office and stay, he was set up with a computer at home, the ability to work at home on the days he needed to, or to come in later if he needed to. And in his final months it was his employee-colleagues who formed a support circle of friends who came and brought him food and spent time with him in those last several weeks. And I've always liked that story - but it shouldn't be the exception. That's what we would all hope to have, but unfortunately I think it still is exceptional. So if one is HIV-positive, issues surrounding confidentiality and what can be disclosed and when to disclose it are very real and important for all of our clients; it s critical to be able to talk with our clients about what the California law is on HIV antibody test-confidentiality.

The general rule is that you can't disclose HIV antibody test results without written authorization. There are a multitude of exceptions to that, and many different interpretations about how narrowly that could be construed. Does the prohibition apply only to test results on a piece of paper, or does it mean if I tell you that I'm HIV-positive you can't share it with the person at the other end of the table. There are a lot of issues around that. A lot of difficult stories still about what happens to people because of the stigma still attached to HIV. So we want our clients to be educated about how to make that decision, when is it appropriate to disclose, when it might not be, in what context do you want to disclose, what kinds of things do you want to be careful about, not only in the employment setting. In the health care setting, we want our clients to ask their physicians how do you keep your charting ;

where are you going to keep my test results ; who has access to my medical records? Is everybody throughout the office including the front receptionist going to know my history?

Will the receptionist say something when I'm called in to the doctor s office? Oh, well, you know, he's got AIDs, don't get too close to him and there are still these kinds of things happening.

We want our clients to be more educated about what the legal issues are, what their protections are, and where and when to be careful so that they can make the appropriate decisions depending on their personal situation. Certainly as I have alluded to there's a lot of discrimination still. I think it's improving. I think the more people listen and talk and share information about HIV (and I think all of us here this morning talk about it openly) the more people understand and really know that it's not them , it's us, and we need to talk about it and we need to know that and to share that information. Those of us who work or have worked in the HIV setting find that when we re away from that setting, we may still be surprised. When we are talking with a colleague or a friend and making some assumptions that the public knows a lot about HIV or talk about it and then we hear people

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say, Well, isn't that really awful work, or aren't you worried doing that kind of work, or gee, I don't know anyone who has HIV. I'm still shocked by that but it happens. I'm sure it happens to others besides me.

Again, it's the education that s critical. I think you have a special opportunity to do that sort of education. As lawyers we have special training that helps us understand what the policy issues are, understand about writing legislation and being really strong advocates of good legislation. We feel strongly about it and believe in advising people about their rights and helping them protect those rights. In terms of access to legal services, there are a number of ways in which lawyers can help people with HIV.

When we talk about helping women with HIV, as Gina pointed out, many women who are HIV-positive are facing so many issues in their lives, gender issues, race issues, class issues. So the idea of seeing or needing a lawyer for something that's going in their lives is a pretty boring one or even if it's there, it's pretty far down the list. And often people think of lawyers only in the context of litigation, so if I don't have a lawsuit, I haven't been in an accident, I don't have a criminal matter, what do I need a lawyer for? One of the things that we as volunteer lawyers in the clinic would often talk about when we go out to speak to groups whether community based organization or health department or a school or whatever it might be, is to help people understand that there are things that lawyers can help with that don't all take place in the courtroom. And that gets back to that idea of counseling and advocacy and educating people about their rights.

The model that we use in doing so, a really successful one, is the clinic. A very small handful of lawyers now, 8 1/2 years ago I guess, came together and decided that they wanted, as volunteers, to provide legal services to people with AIDS. And they talked to the people running the local AIDS project, and began one night a week, to see a few clients on a walk-in basis in a small room. It started with two or three or four clients. Some weeks there wouldn't be a client. It's grown to the point where there are 25 or 30 or more once a week who show up, no appointments, no eligibility requirements in terms of financial eligibility or immigration status or anything else, simply that the person be HIV-positive and no requirement that you bring your test results or a doctor's letter or anything else. You come in if you are HIV-positive and we ask what are your issues? It has grown since then, the panel of volunteer lawyers now includes over 200. Some of those lawyers are a small group who come every week and have come every week for years. Others say I can't come to your clinic Monday night but I'll take family law cases and I'll do whatever number of them I can depending on my practice and my time constraints. Others say I'll do home and hospital visits. I don't want to come to the clinic Monday night but call me when someone needs to have a Will done in the hospital or a Health Care Durable Power or someone needs a hospital visit and I'll do that.

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We were able to form a group of lawyers and a clinic which for a long time, for many years, operated without any paid staff at all. It was just four years ago that we had the first paid legal services coordinator and then only half-time, paid for 18 hours a week to run the Monday night clinic, to take cases, to keep the volunteer staff organized. Now we have a full-time legal services coordinator, a paid paralegal, and provide services to a lot of people, about 1300 each year, covering a wide range of cases. We don't do a lot of litigation, there isn't really the money to do it, nor the need. We ve found that litigation for most of our clients is not the most helpful or productive sort of result to legal problems, particularly for someone who is facing a disabling, life-threatening illness. We handled not only the basic estate planning, some family law issues, guardianships of course, landlord - tenant issues (which come up a lot), public benefits, SSDI/SSI or MediCal benefits for our clients; housing discrimination, a pretty broad range of issues, also including insurance issues. Our procedure is to connect client with an attorney who specializes in that particular area. We used a simple intake form which directed the client to check off boxes in terms of what kinds of issues would you like to talk to a lawyer about tonight? And a client would come in and perhaps check off a number of issues. They probably wouldn't all get resolved that night but they might see more than one attorney that evening, at least briefly to do an initial interview or be asked to come back next week so you can talk to someone about some of these other issues.

From the perspective of the attorney, it's a wonderful training ground. For new lawyers it s a way to get some interviewing experience which you don't always get, certainly not in a large law firm. You may be in a back room still doing a lot of research or working on one big case or sitting in on an interview that the senior partner or a junior partner is doing. So we had a wonderful training ground for young lawyers, and law students as well, who would get the opportunity to do the interviewing, to really assess the issues and to do that work. In the context of dealing with a client who is facing numerous social issues as well as their illness, to try to draw out of that what the legal issues are and which are the ones that we can actually handle and do something about. That s a challenge to any of us and certainly a challenge for a young lawyer. So I think that our students and young lawyers really appreciated that opportunity.

We also, as volunteer lawyers, spend a lot of time talking together. We talk after clinics, now I saw someone with this situation. There's a lot of that sort of networking that some of us had the opportunity to do in our practices and others don't get enough of that opportunity and really enjoy that, just talking about our cases, what do you think about this, who should we call about this, what's the best way to handle this without a number of problems, and we really should share our expertise in that way. For many of the lawyers it was an opportunity to see some of the problems that people face that they didn't see in their practices. Certainly if you have a business practice or work for a corporation, you don't see a lot of those real

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individual personal issues. I like that opportunity to see that and to deal with those problems.

The model in San Diego is to have a weekly clinic where clients can walk in. We never needed to advertise it. It was definitely a word-of-mouth advertising. It's pretty well known now the everyone who comes in that particular night will be seen no matter how long it takes. We could draw in enough volunteer staff, not only lawyers, but also paralegals, law students, a notary public, who think I can do something to help. I'll sit at the front table and go see the in-take applications and assign client to lawyer. I'll be sure that there are enough chairs in the room. As you can imagine, there is plenty of work to be done.

We had a few areas in which we really didn't advise clients, we didn't take on personal injury lawsuits, we didn't take on issues where there are plenty of lawyers available on a contingency basis, we didn't try to get into those. It was more a matter of handling practical issues in a practical and usually pretty effective way. It certainly is a real opportunity for lawyers to do satisfying work and also to share ourselves with our community in a larger way. It also gives lawyers an opportunity to do community advocacy and education. Once you start doing some of this work, you'll find that there are numerous places in your community where you are needed and asked to come in because you've become very quickly the expert on HIV. This role helps us connect with the rest of the community with people who are teachers, social workers, psychologists, counselors, or case workers/ case managers .

In my view the case managers are the people who really are the main assistants and helpers to our clients. They are the people on the front lines who listen to the stories, who say, okay, for your housing problem we'll call here, and this is the person who can help, and this is what they can do, etc. What we can do is help someone to sort out this terrible laundry list of problems and deal with it and get some very practical effective results.

I know that Eileen wants to talk a little about a legislative update so I'd like her to have time to do that and time for questions and I think we are beginning to run over. I want to just mention a couple of references. One is that there is a Women and HIV Conference in San Diego in the fall. This is a conference that is especially for HIV-positive women, although there are other people who make up the audience. It is the third time the conference has been done. There are four tracks over three days - September 22-24. The tracks are (1) direct services, (2) prevention, (3) life management, and (4) biomedical. If you have an interest in having a brochure sent to you, or you have clients who might like to know about it, and we do try to help HIV-positive women be able to attend, please sign up and I'll see that you get a brochure.

Finally, if you are interested in doing some AIDS legal work there are a couple of legal treatises and manuals that are

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particularly helpful. One is the National Lawyers Guild AIDS manual, it's a binder that's fabulous. I ve relied on it for years; it's practical, it gives you an overview of areas that you might not have practiced in and highlights what the issues are, what the statutes are, where you need to go, how you can help your client. Another book that I found particularly interesting is Women, AIDS and Activism, by the Act Up New York Women and AIDS Book Group. Thank you. SUPREME COURT OF FLORIDA


NO. 82,674


The initiative proposed by the American Family Political Committee of Florida (hereinafter AFPC), the component of the American Family Association which is coordinating the petition drive, seeks to amend the Florida Constitution by striking laws protecting lesbians and gay men against discrimination. The proposal's title and summary do not indicate this purpose; rather, those sections, as well as the initiative itself, would prohibit any level of Florida's government from protecting a variety of classes of citizens from discrimination, even where the need for such protections is well-documented and agreed to by members of government. The respondents argue that this initiative must be struck from the ballot because 1) its title and summary are inaccurate; 2) it addresses multiple subject matters; and 3) it violates the fundamental constitutional rights of Florida's citizens. (b) Procedural Background

This matter is before the Court pursuant to a request from the Attorney General for an advisory opinion concerning the validity of an initiative petition to amend the Florida Constitution in accordance with article IV, 10 of the Florida Constitution and 16.061(1), Florida Statutes (1991). The full title and text of the proposed amendment submitted by the AFPC of Florida is as follows:

"Laws Related to Discrimination are Restricted to Certain Classifications"


Therefore, to the extent permitted by the Constitution of the United States, the people of Florida, exercising

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their reserved powers, hereby declare that: 1) Article I, Section 10 of the Constitution of the State of Florida is hereby amended by:

a) inserting "(a)" before the first word thereof and, b) adding a new sub-section "(b)" at the end thereof to

read: "(b)" The state, political subdivisions of the state, municipalities or any other governmental entity shall not enact or adopt any law regarding discrimination against persons which creates, establishes, or recognizes any right, privilege or protection for any person based upon any characteristic, trait, status or condition other than race, color, religion, sex, national origin, age, handicap, ethnic background, marital status or familial status. As used herein the term "sex" shall mean the biological state of being either a male person or a female person; "marital status" shall mean the state of being lawfully married to a

person of the opposite sex, separated, divorced, widowed or single; and "familial status" shall mean the state of being a person domiciled with a minor, as defined by law, who is the parent or person with legal custody of such minor or who is a person with written permission from such parent or person with legal custody of such minor."

2) All laws previously enacted which are inconsistent with this provision are hereby repealed to the extent of such inconsistency. 3) This amendment shall take effect on the date it is approved by the electorate.

On November 4, 1993, the Attorney General for the State of Florida submitted a letter to the Court requesting an advisory opinion concerning the proposed amendment. On November 16, 1993, this Court issued an Interlocutory Order authorizing interested parties to file briefs on or before December 6, 1993, and setting oral argument for January 7, 1994. Pursuant to that order this brief is submitted on behalf of the interested parties described below in opposition to the proposed initiative. (c) Facts

(1) The AFPC Petition Drive Because this is an original proceeding without a trial record, the respondents have attached an appendix with relevant materials to assist the Court in understanding the factual scenario in which this petition arises. On March 15, 1993, AFPC president David Caton unveiled the AFPC's petition drive to amend Florida's Constitution with the statement, "Homosexuality is not a civil right." "Group Measures to Block Rights for Gays," The Gainesville Sun, Mar. 16, 1993, at 6B. (App., Ex. G).

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Florida at 1-800-GAY-LAWS, interested people may request a copy of the AFPC petition accompanied by a cover letter and a brochure entitled "Are Homosexual Rights Traditional Civil Rights?" See Cover Letter and Brochure (App., Exs. B & C). Describing the petition's purpose, the letter says: "This petition is designed to stop homosexual activists and other special interest groups from improper inclusion in discrimination laws." Id. The letter, which is signed by Mr. Caton, also explains that the amendment "would prevent homosexuality and other lifestyles from gaining special protection from inclusion in discrimination laws." Id.

The accompanying brochure, which includes a section entitled "Let's Stop the Homosexual Agenda Now," asks readers to support the petition drive by circulating and signing the petition and contributing funds to the petition drive. See "Are Homosexual Rights Traditional Civil Rights?" (App., Ex. C). Like Mr. Caton's letter, the brochure explains that the amendment "would repeal existing homosexual rights laws and prevent the adoption of future homosexual rights laws" as well as "prevent other special interest groups from misusing discrimination laws." Id.

(2) The Targeted Class: Lesbians and Gay Men in Florida As the AFPC's promotional literature makes clear, the amendment's primary goal is to cut back the civil rights protections available to lesbians and gay men in Florida. Currently, ordinances prohibiting sexual orientation discrimination, which protect heterosexuals as well as lesbians, gay men, and bisexual persons from arbitrary discrimination based upon their sexual orientation, are in place in the following cities and counties in Florida: Key West, Miami Beach, Tampa, West Palm Beach, Alachua County, Hillsborough County, and Palm Beach County.

In addition, the violence perpetrated against lesbians and gay men has led legislators to include sexual orientation as a protected classification in bias crime laws. A study by the National Institute of Justice indicates that gay men and lesbians are probably victimized more than any other minority groups and another has found that one in five gay men and almost one in ten lesbians report that they have been physically assaulted because of sexual orientation. Note, Sexual Orientation and the Law, 102 Harv.L.Rev. 1508, 1541 (1989). See also Herek, Myths About Sexual Orientation: A Lawyer's Guide to Social Science Research, 1 Law & Sexuality 133, 167 (1991) (A copy of the latter article is attached in the Appendix as Exhibit H)

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(d) Interests of the Respondents

Florida AIDS Legal Defense and Education Fund (FALDEF) is a not-for-profit corporation formed to provide legal services and community education to persons with HIV infection. It has joined this challenge to protect the individuals, including gay men, whom it assists who will be impacted by this initiative.

The Florida Public Interest Lawyer Section (PILS) is a section of the Florida Bar which advocates for the legal needs of people who are generally disenfranchised, underrepresented, or lack meaningful access to traditional public forums. The Section joins this challenge to assert the interests of lesbians, gay men, bisexuals, and others who will be denied protection from discrimination as a result of this measure.

The Florida Association of Women Lawyers (FAWL) is a large voluntary statewide association of attorneys of both genders whose purposes include improvement of the administration of justice and the promotion of women's legal rights and the integrity of the individual and the family. It has joined this challenge to promote equality and protection for individuals and families in Florida.

Florida Legal Services, Inc., is the state organization formed to provide support and assistance to the legal aid and legal services organizations throughout Florida, which provide representation to indigent Floridians. Its interest in this action is to protect indigent Floridians whose programs and legal rights are threatened by the AFPC initiative.

Floridians Respect Everyone's Equality (FREE) is an organization formed under section 501(c)(4) of the Internal Revenue Code to educate the public concerning the consequences of ballot initiatives which seek to restrict the civil rights of Floridians, including gay men and lesbians. Its interest in this challenge is to protect Florida citizens from the restrictions upon civil rights caused by the AFPC initiative.

Floridians United Against Discrimination (FUAD) is an organization formed under section 501(c)(4) of the Internal Revenue Code dedicated to fighting discrimination in Florida. Its interest in this legal action is to fight the discrimination which is encouraged by this initiative against Florida residents.

The Miami Area Legal Services Union (MALSU), an affiliate of the National Organization of Legal Services Workers, Local 2320 of the United Automobile Workers (UAW), AFL-CIO, represents the attorneys and support staff of Legal Services of Greater Miami. Its purposes include attempting to obtain civil rights protections for many groups, including some of those targeted by the AFPC

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initiative, and it is for that reason that the Union joins this legal action.

The National Lesbian and Gay Lawyers Association (NLGLA) is a national bar association formed to provide support and advocacy on behalf of lesbian and gay attorneys. It joins this action because of its interest in promoting the civil rights of gay men, lesbians, and bisexuals who are targeted by the AFPC initiative.

The National Organization of Women, Florida Chapter, is a national organization formed to seek equal rights for women in our society. Its interest in this challenge is to protect the equal rights of all of the Florida citizens threatened by this initiative.

People for the American Way is a 300,000-member national organization formed to protect constitutional liberties. Its interest in this action is to protect the constitutional liberties of its Florida members.

The Southern Poverty Law Center is a non-profit organization dedicated to protecting victims of injustice. Its Legal Division represents victims of intolerance in state and federal courts. Its interest in this action is to assist all of the victims of intolerance targeted by this initiative.

The United Teachers of Dade's Gay and Lesbian Caucus, an officially recognized caucus of United Teachers of Dade, is a non- profit organization formed in order to educate, elucidate, and organize around those issues of concern to the Gay and Lesbian community. It participates in this response because of its deep belief that this proposed amendment challenges its members' civil rights, inherent human dignity, and very livelihood.

SUMMARY OF THE ARGUMENT The initiative submitted by the AFPC proposes to amend the Florida Constitution without explaining the proposal's central purpose as described in the organization's literature promoting the amendment (supra, p. 2): to repeal existing city and county civil rights laws which prohibit sexual orientation discrimination and to prevent future passage of such laws at any level of Florida government. The amendment's vague language puts at risk numerous Florida statutory and constitutional provisions that protect a wide range of citizens in addition to the targeted class of lesbians and gay men. Apparently the result of a dangerous attempt to mislead the public, the title, summary and measure itself fail to explain the amendment's pernicious effect upon a variety of unrelated laws as well as its violation of Floridians' fundamental constitutional

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This Court should strike the AFPC's proposed initiative from the ballot because: (1) it violates Florida statutory requirements that its language be clear and unambiguous; (2) it violates the Florida Constitution by encompassing more than a single subject; and (3) its title violates Florida statutory requirements requiring clarity. Further, because the proposed initiative palpably violates the fundamental constitutional rights of identifiable classes of Florida citizens, this Court should strike the measure now before the citizens of Florida are subjected to a long, divisive, and most significantly, harmful election campaign on a constitutionally infirm measure.

The proposed initiative would disable all levels of government from passing civil rights legislation to protect persons outside of the measure's narrow set of classifications. As a result, it would preclude those citizens from participating meaningfully in the political process on an equal footing with those of their fellow citizens who are included in the initiative's special categories.

By creating separate classes of citizens--some with more access to government, others with less-- the measure violates the fundamental constitutional right of identifiable classes of Floridians to equal participation in the political process.

Moreover, cutting off the right of selected citizens to seek legislation with its resulting termination of the right to petition the government seriously impedes freedom of expression, including the freedom to engage in political speech. The AFPC's initiative raises the risk of speaking out against the proposed measure already faced by those who support civil rights protections for lesbians and gay men. Because it would legally immunize many forms of discrimination from government action, the measure greatly increases the danger that those who oppose it--especially if they support lesbian and gay civil rights--will face discrimination and yet be unable to obtain protection from government. Even recognizing this Court's reluctance to consider pre-election constitutional arguments, this measure presents one of those rare instances when such examination is necessary to protect citizens from irreparable harm.


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A. The Ballot Summary Violates the Requirements of Florida Statutes, 101.161 Because It Fails to Provide Voters Fair Notice of the Proposed Amendment's Chief Purpose. The ballot summary for this initiative fails to clearly inform voters of its intent and effect. When a constitutional amendment "[i]s submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot."  101.161, Fla. Stat. (1991)

The ballot summary requirement was "designed to assure that the elector have fair notice of the proposed amendment's chief purpose." (citations omitted). Advisory Opinion to the Attorney General-Limited Marine Net Fishing, 620 So.2d 997, 999 (Fla. 1993); In re Advisory Opinion to the Attorney General-Homestead Valuation Limitation, 581 So.2d 586, 588 (Fla. 1991). In providing clear and unambiguous notice, this Court stated in Grose v. Firestone, 422 So.2d 303 (Fla. 1982), that the summary must contain:

no hidden meanings and no deceptive phrases. The summary says just what the amendment purports to do. It gives the public fair notice of the meaning and effect of the proposed amendment.

In addition to ensuring that the language presented is understandable, courts will review the summary to see if it omits material facts, Florida League of Cities v. Smith, 607 So.2d 397, 399 (Fla. 1992); Advisory Opinion to the Attorney General: Limited Political Terms in Certain Elective Offices, 592 So.2d 225, 228 (Fla. 1991), or is misleading, Limited Political Terms, 592 So.2d at 228; Evans v. Firestone, 457 So.2d 1351, 1354-55 (Fla. 1984). In Smith v. American Airlines, 606 So. 2d 618 (Fla. 1992), the Florida Supreme Court found the summary addressing taxation of leaseholds of government-owned property to be defective because the summary failed to explain that the new taxation rate would be based on the real property method and the rate could be increased fifteen times.

The AFPC initiative's summary falls far short of meeting the standard set by this Court. In its entirety, the summary reads:

Restricts laws related to discrimination to classifications based upon race, color, religion, sex, national origin, age, handicap, ethnic background, marital status, or familial status. Repeals all laws inconsistent with this amendment.

This summary fails to comply with any of the factors required by this Court in determining if fair notice is given. It is unclear, ambiguous, and misleading because it does not reveal to the

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electorate the main purpose of the initiative--to deny gay men and lesbians the right to seek, and state and local governments the right to pass and maintain, anti-discrimination legislation. The main targets of the initiative are mentioned nowhere in the summary nor in the amendment itself. This type of deception is common amongst the proponents of these "anti-gay" amendments as has been noted by one legal commentator: "These groups frequently distort the true nature of their organizations, rely upon discredited experts and facts, and conceal from voters the true purpose of their legislation." (citations omitted) Note, Constitutional Limits on Anti-Gay Rights Initiatives, 106 Harv.L.Rev. 1905, 1907 (1993). This type of subterfuge is precisely the evil against which this Court has consistently guarded.

The fact that gay men and lesbians are the primary, and thus far, the only publicly-named targets of the AFPC is abundantly clear from their printed materials. As noted in the Facts Section of this brief (supra, p. 2) the AFPC literature criticizes gay men and lesbians and makes clear that the initiative's purpose is to stop sexual orientation civil rights legislation. Not only is the toll free number for the petition drive 1-800-Gay-Laws, but also the second paragraph of the cover letter, which accompanies the petitions sent to callers, states, "This petition is designed to stop homosexual activists and other special interest groups from improper inclusion in discrimination laws." (App. Ex.). Nowhere does the AFPC define the "other special interest groups."

If the summary stated this purpose, there might be an argument that this summary was not misleading, but that is not the case: the only place where it is not made abundantly clear that this initiative is about the rights of lesbians and gay men is in the amendment itself and its ballot title and summary. This sort of disguised purpose--where the campaign materials state an intent different from the initiative language itself--has been rejected by this Court:

[t]he availability of public information about a proposed amendment cannot be a substitute for an accurate and informative ballot summary. As this Court stated in Askew, 'the burden of informing the public should not fall only on the press and opponents of the measure--the ballot title and summary must do this.' (citation omitted).

Smith v. American Airlines 606 So.2d at 621.

In addition to requiring that the amendment state its primary purpose, the Court must look to see if the measure would have additional hidden effects. The initiative, in the portion pertinent to this discussion, states that the state and its

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political subdivisions:

[s]hall not enact or adopt any law regarding discrimination against persons which creates, establishes, or recognizes any right, privilege, or protection for any person based upon any characteristic, trait, status, or condition . . . .

However, the measure fails to define its central terms-- discrimination, right, privilege, protection, characteristic, trait, status, or condition--thus making the scope of this extremely broad proposal unclear. The ambiguity is particularly pernicious because the initiative's language voids any law which provides a "right, privilege, or protection" for any characteristic, trait, status, or condition not included among its list of special classes. Neither the amendment nor its summary reveal the laws which would be repealed.

A startling array of laws may fall prey to this amendment. No Florida case has provided a specific definition for the term "discrimination," but a number of cases discuss discrimination in a wide variety of contexts. When a statute provides no definition of a term, the courts will look to the term's plain and ordinary meaning. Doe v. Thompson, 620 So.2d 1004, 1005 (Fla. 1993) (using dictionary meaning of "personally"); Florida League of Cities, 607 So.2d at 399; Smith v. American Airlines, 606 So.2d at 620; In re Advisory Opinion to the Attorney General: English--The Official Language, 520 So.2d 11, 13 (Fla. 1988). Dictionary definitions of the term "discrimination" equate it with any difference in treatment. Roget's College Thesaurus 138 (rev. ed. 1978); American Heritage Dictionary of the English Language 376 (New College ed. 1976) ("to make a clear distinction; distinguish; differentiate; to act on the basis of prejudice").

This definition of "discriminate" and the restrictions on laws providing benefits thus place a broad variety of statutes in jeopardy, a result to which the amendment fails to alert or warn voters. A lengthy list of statutes which "discriminate" (i.e., make distinctions) and provide "rights, privileges, or protections" to persons based upon characteristics, traits, statuses, or conditions not mentioned in the amendment is included in the appendix to this brief. (App., Ex. D) Some of the statutes which are endangered include those providing benefits based upon the status of being a veteran (Fl. Stat. 11.2135 (1) (1991), exempting disabled veterans from entrance exams and specific hiring procedures for state employment; Fl. Stat. 295.07(1) (1991), hiring and retention preferences for disabled veterans and their spouses), or a state resident (Fl. Stat. 196.031 (1991), homestead

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property tax exemptions for residents; Fl. Stat. 240.1201 (1991), tuition preferences for state residents attending state universities and colleges). Further, the initiative would limit the powers of local governments, thus amending the Municipal Home Rule Powers Act, Fla. Stat., 166.021 (1991). By its own terms, this measure might be the basis for striking all of the protections and rights extended to corporations, their shareholders, directors, and officers, all of which are rights, privileges, or protections extended because of the legal status of these persons. This amendment could void all consumer protection statutes which provide protections based upon a person's status or condition of being a consumer. It may impact the broad number of statutes which prohibit "discrimination" in the determination of rates or provision of insurance protection outside of those conditions listed in the amendment. It may also affect all of the statutes which provide blanket prohibitions against discrimination in setting rates or providing other protections as applied to persons not in the initiative's enumerated groups. In addition, this Court's recent anti-discrimination rule for attorneys as it covers economic status, sexual orientation, and physical characteristic also could be endangered. The Florida Bar Re: Amendments to Rules Regulating the Florida Bar, 18 FLW S393 (June 23, 1993). The statutes which provide benefits to indigent persons (Medicaid-Fla. Stat., 409.211; Optional State Supplementation Benefits-Fla. Stat., 409.212; Aid to Families with Dependent Children--Fla. Stat., 409.235) could be repealed because they provide privileges based upon economic status. The initiative gives no guidance on how these provisions will be affected.

The initiative may also amend the Florida Constitution as well as Florida statutes. Three separate Florida Circuit Courts have ruled that the Florida Constitutional Privacy Amendment, Art. I, 23, provides protection to gay men and lesbians from governmental interference. Seebol v. Farie, 16 FLW C52 (Fla. 16th Cir. Ct. 1991); Woodard v. Gallagher, 1 FLW Supp 17 (Fla. 9th Cir. Ct. 1992); Cox v. Dry, 1 FLW Supp. 352 (Fla. 12th Cir. Ct. 1993). This initiative may remove such protection.

Furthermore, the initiative could affect the Florida Equal Protection Clause, Art. I, 2. In addition, it will impact sections concerning home rule powers, Art. VIII, and the homestead provisions, Art. VII, 6. Section II. B. of this brief (infra, p. 24) describes how this provision violates the Equal Protection Clause of the United States Constitution. For the same reasons, this initiative would also amend the Florida Equal Protection

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Clause. In fact, it would seem that this initiative more accurately amends that clause, as opposed to the Bill of Attainder Section to which it is attached. Further, this initiative limits the powers of local governments. Article VIII, 1, which sets out the Home Rule Powers of the counties and municipalities, removes the power of counties and municipalities to protect their citizens against unfair discrimination. The amount of power to be delegated to local governments is a complex area which has been developed over time in Florida and should not be upset because of a poorly drafted initiative which does not consider the importance of this balance of power. See generally, Vaubel, Toward Principles of State Restraint Upon the Exercise of Municipal Power in Home Rule, 23 Stetson L. Rev. 643 (1993), Broward County v. City of Fort Lauderdale, 480 So.2d 631, 634 (Fla. 1985) (discussing history of the changes to the Florida Constitution concerning the powers of counties and municipalities). The Constitution's provision for homestead exemptions confers a privilege based upon residency status and could thus be altered by this initiative.

The initiative's summary clearly falls short of statutory requirements. It misleads the public and omits critical information, thereby completely failing to inform voters of its primary purpose. The measure is also ambiguous and unclear; it fails to define key terms and explain the breadth of its impact. The voters are entitled, pursuant to Fla. Stat., 101.161, to an explanation of what they are asked to approve. This initiative summary fails to meet this statutory requirement. In an apparent effort to mislead voters, the proponents of the amendment reveal neither the initiative's true intent, nor its actual effect. The Court must not allow the initiative's placement upon the ballot because it is impossible for a reasonable voter to ascertain the amendment's chief purpose or ultimate impact from reading the ballot summary.

Article XI, 3 of the Florida Constitution Because it Embraces More Than One Subject.

Article XI, 3, Florida Constitution, requires that a proposal to amend the Constitution "shall embrace but one subject and matter directly connected therewith." In its most recent advisory opinion, this Court stated that in determining if an initiative embraces more than one subject, the Court must consider if the various segments of the amendment have a "natural relation and connection as component parts or aspects of a single dominant plan or scheme." (citations omitted). Limited Marine Net Fishing, 620 So.2d at 999. This Court has viewed the standard as necessary "to prevent the proposal of an amendment which contains two unrelated provisions, one which electors might wish to support and one which they might disfavor." Id. at 999 (citing Limited Political Terms

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in Certain Elective Offices, 592 So.2d at 225). This problem, referred to as "logrolling," caused the Court to strike proposed measures in both Evans v. Firestone, 457 So.2d at 1354, and Fine v. Firestone, 448 So.2d 984, 995-96 (Fla. 1984)(Ehrlich, J., concurring). The Constitutional single-subject requirement is meant to "protect against multiple precipitous changes in our state constitution." (citations omitted) Limited Political Terms, 592 So.2d at 227, and to promote clarity. Addressing clarity, Justice Shaw stated that the single-subject requirement helped ensure "that the initiatives are sufficiently clear so that the reader, whether layman or judge, can understand what it purports to do and perceive its limits." Fine, 448 So.2d at 998 (Shaw, J., concurring).

In addition to examining a provision's facial validity, this Court has consistently applied a functional analysis to initiatives. Even after abandoning its earlier "locational" test which voided initiatives because they impacted different statutes or portions of the Constitution, this Court has continued to consider it significant when an initiative would affect different sections of the Constitution: "how an initiative proposal affects other articles or sections of the constitution is an appropriate factor to be considered in determining whether there is more than one subject included in an initiative proposal." Fine, 448 So.2d at 990. Thus, the Court has rejected proposals which change multiple statutes. In Fine, the Court disapproved an initiative which addressed the generation and expenditure of revenues. because it affected the government's ability to tax, government user-fee operations, and funding of capital improvements through revenue bonds. Fine 448 So.2d at 990. The Court rejected the proponents' attempts to characterize the provisions as simply affecting the single subject of revenues.

The Court has also disapproved expansive provisions covering different subjects encompassed within a "cloak of broad generality." In Evans, the Court voided a provision which attempted to modify the concept of joint and several liability, to limit certain types of damages, and to make the summary judgment rule a part of the Florida Constitution. Rejecting the attempt to characterize the proposal as simply an effort to bring about tort reform, the Court found the breadth of coverage "so broad as to fail to delineate the subject or subjects of this amendment in any meaningful way." Id. at 1353-54. Applying the functional limitation test, the Court disapproved of the amendment's multi- faceted effect on legislative and judicial functions. Justice McDonald also addressed the cloak of generality principle in Fine. Finding that the subject of "revenues" actually encompassed a multitude of subjects, Justice McDonald criticized the proponents

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who revealed "only the tip of the iceberg . . . . The very broadness of the proposal makes it impossible to state who it will affect." Fine, 448 So.2d at 995 (McDonald, J., concurring).

The AFPC initiative violates all of the single-subject requirement standards. The initiative would affect a number of governmental functions and has an impact upon a broad number of subjects. First, the initiative limits the ability of the state legislature to pass legislation. Second, it limits the ability of city and county governments to pass legislation. Third, it limits the executive branch's ability to make policies which may fall within the initiative's broad coverage of "laws." Therefore, the amendment affects different levels and branches of government.

Further, the initiative addresses multiple subjects in that it prohibits government protections for many diverse groups and would strike laws passed to effectuate a variety of policies. As discussed in the ballot summary section of this brief, this provision would place numerous statutes in jeopardy of repeal. (supra, pp. 11-12). The groups affected and the policies underlying the laws are diverse. The general reference to "laws covering discrimination" cannot be used to cloak the multitude of subjects encompassed by this broad proposal.

The initiative also engages in precisely the sort of "logrolling" that this Court and Florida's Constitution rejects. Although aimed at lesbians and gay men, it would also affect all other persons who are currently protected by anti-discrimination legislation or might ever seek such protection based upon a characteristic not enumerated in the initiative. Because of the diversity of the groups excluded by this initiative, many voters might approve of limiting protection to some of the groups, notwithstanding the constitutional defects of such a position, but groups whom they favored would also be "logrolled" into this proposal.

In summary, the initiative fails to contain a single dominant plan or scheme. It combines numerous unrelated groups and classes of persons. It brings multiple precipitous changes to the Florida Constitution as well as limiting the powers of all branches of state government and all levels of local governments. Moreover, as outlined in the ballot summary analysis above, there are severe problems in clarifying the amendment's ultimate impact; thus, the clarity purpose of the single subject requirement is violated as well. The initiative, therefore, fails to meet the single subject requirement because it repeals statutes which have no natural mutual relationship; it cuts too broad a swath to satisfy the Florida Constitution, affecting persons and subjects far beyond its stated scope.

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C. The Initiative Limiting Anti-Discrimination Laws Violates

Florida Statute, 101.161 Because It Has a Defective Ballot Title

The language of a ballot title must be "clear and unambiguous", Limited Political Terms, 592 So.2d at 228, so that it can fairly "advise the voter sufficiently to enable him to intelligently to cast his ballot." (citations omitted) Homestead Valuation Limitation, 581 So.2d at 588. The AFPC ballot title of the proposed initiative, "Laws Related to Discrimination are Restricted to Certain Classifications" fails dismally to meet this test. Although all of the possible ramifications of an initiative need not appear in the ballot title, the title must at least convey an initiative's central purpose.

This initiative's central purpose is to restrict the rights of gay men and lesbians. Its title, "Laws Related to Discrimination are Restricted to Certain Classifications", fails even to hint at this purpose. Voters should not have to glean the purported purpose of amendments to the Florida Constitution from campaign advertisements or brochures. See Smith v. American Airlines, 606 So.2d at 621. Further, the title fails to warn voters of the impact upon existing laws benefiting other groups which would be repealed because of the ill-defined wording of the initiative. This title is misleading and defective on its face.


While this Court has wisely expressed reluctance to address Constitutional violations in pre-election ballot initiative challenges, the AFPC initiative presents the extreme case of palpable and patent unconstitutionality which merits review. Every single court that has considered proposals similar to the AFPC initiative, including courts in California, Oregon, Colorado, and Ohio, has found that the proposals violated constitutional rights. This Court should join those in the other states who have rejected these measures.

A. The Court Should Consider the Constitutional Invalidity of

the Initiative Prior to Its Placement on the Ballot.

1. The Court Has Stated That It Would Consider "Palpable" Constitutional Violations in Conducting Pre- Election Reviews.

This Court has held that where a proposed initiative is sufficiently and "palpably" unconstitutional, it will consider such constitutional infirmities and invalidate the measure at the pre- election stage. Such measures may be struck "'when the amendment,

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if adopted, would palpably violate the paramount law and would inevitably be futile and nugatory and incapable of being made operative under any conditions or circumstances,'" Limited Political Terms, 592 So.2d at 229 (Overton, J., concurring in part and dissenting in part, quoting Gray v. Winthrop, 115 Fla. 721, 726-27, 156 So. 270, 272 (1934)). See also Dulaney v. City of Miami Beach, 96 So.2d 550, 551 (Fla. 3rd DCA 1957)("An election should not be held if the ordinance proposed was clearly invalid on its face.").

Courts in other states similarly recognize that pre-election review of constitutional violations is appropriate in "the truly extreme case." Hessey v. Burden, 615 A.2d 562, (D.C. App. 1992).

Circumstances of patent unconstitutionality often trigger review "on the ground that the electorate has no right to enact an unconstitutional law." Id. See, e.g., Whitson v. Anchorage, 608 P.2d 759, 762 (Alaska 1980)(initiative right, while closely guarded, does not extend to legislation which violates United States or Alaska Constitution). The AFPC initiative presents this extreme case.

Considerations of efficiency and fiscal responsibility may also mandate pre-election review. Justice Overton, concurring in part and dissenting in part from this Court's recent review of the proposed term limitations initiative, identified the value of pre- election review of constitutional challenges:

A review at this time, should this legal issue be resolved adverse to the proponents of the amendment, would save both proponents and opponents of the amendment considerable expense and the considerable expense to the state of a futile election. To allow the people to vote and then, if adopted, hold the provision unconstitutional on its face perpetuates a fraud on the voting public. Limited Political Terms, 592 So.2d at 229-30 (Overton, J., concurring in part and dissenting in part). See also Hessey, 615 A.2d at 573; State ex rel. Voss v. Davis, 418 S.W.2d 163, 168 n.4 (Mo. 1967)("Usually courts will not inquire into the validity of an act of legislation until it has become fait accompli, but here we will rule on the constitutional question because, if unconstitutional, we should not put Kansas City to the burden and expense of submitting the amendments to a vote.")(citations omitted); Utz v. City of Newport, 252 S.W.2d 434, 437 (Ky. 1952).

2. The Proposed Initiative Requires Pre-Election Constitutional Review Because It Is Patently Unconstitutional.

Because the AFPC's proposed initiative "crosses the threshold of patent unconstitutionality," Hessey, 615 A.2d at 573, it presents this Court with such an extreme case that merits immediate constitutional review. This measure is extreme because it

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restructures the entire political process, and in doing so, creates a new two-tiered citizenship status under which some citizens have meaningful access to government and others do not. This initiative is not simply a legislative referendum on whether the State of Florida should pass sexual orientation anti-discrimination legislation as the AFPC literature suggests; rather, it is an amendment to the Florida Constitution limiting elected officials' ability to pass civil rights legislation and prohibiting groups of Florida citizens from obtaining such legislation. It would repeal or amend the ordinances prohibiting sexual orientation discrimination passed by the duly elected officials of the cities of Key West, Tampa, West Palm Beach, and Miami Beach as well as the Counties of Alachua, Hillsborough, and Palm Beach. Thus, elected officials are prohibited from providing protection to their constituents even if unfair discrimination is occurring in their communities. In addition, other citizens of Florida would be prevented from seeking civil rights legislation from their duly elected officials except for those individuals who need protection against discrimination based upon the statuses approved by the AFPC.

By submitting fundamental equal protection and first amendment rights to popular vote, the proposed measure diminishes the ability of the targeted citizens to exercise their fundamental constitutional rights. West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed.2d 1628, 1638 (1943). In Gordon v. Lance, 403 U.S. 1, 6, 91 S.Ct. 1889, 29 L.Ed.2d 273, 276-77 (1971), the United States Supreme Court reiterated that "the Bill of Rights removes entire areas of legislation from the concept of majoritarian supremacy." See also Hall v. St. Helena Parish School Bd., 197 F. Supp. 649, 659 (E.D. La. 1961),("No plebescite can legalize an unjust discrimination."), aff'd, 368 U.S. 515 (1962); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448, 105 S.Ct. 3249, 3259, 87 L.Ed.2d 313, 326 (1985)("[i]t is plain that the electorate as a whole, whether by referendum or otherwise, could not order city action violative of the Equal Protection Clause"). The rights of groups seeking protection from discrimination, who are not enumerated in the proposed measure, cannot depend upon the groups' ability to mount a political campaign to fend off misleading proposals such as the one offered by the AFPC.

The AFPC initiative's discriminatory restriction on political participation and virtual authorization of a selected set of bases

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for discrimination certainly lies among the few subjects which are fundamentally inappropriate subjects for the initiative process. As former Oregon Supreme Court Justice Hans Linde explains, "[a] statewide initiative may be a legitimate process for enacting a gross receipts tax and not for raising social barriers between groups of citizens." Linde, When Initiative Lawmaking Is Not "Republican Government": The Campaign Against Homosexuality, 72 Or. L. Rev. 19, 32 (1993).

The Court should not wait to void an invalid initiative until an acrimonious, divisive campaign has shattered the political equipoise of Florida. To quote a California Court which struck a proposed initiative seeking to limit the rights of lesbians and gay men: "If an ordinance proposed by initiative is invalid, routine deference to the process will often require the charade of a pointless election." Citizens for Resp. Behavior v. Super. Court, 1 Cal.App.4th 1013, 2 Cal.Rptr.2d 648 (Cal.App. 4 Dist. 1991). The Florida electorate should not be subjected to a campaign for a pointless election; this Court should take the present opportunity to declare the initiative unconstitutional.

B. The Initiative is Palpably Unconstitutional Because It Infringes the Fundamental Right of Lesbians, Gay Men, and Other Minority Group Members to Participate Equally in the Political Process

1. The Right to Participate Equally in the Political Process Is a Fundamental Constitutional Right Which Is Subject to Strict Scrutiny

The Equal Protection Clause of the United States Constitution, Amendment XIV, U.S. Const., applies to all citizens, not just members of suspect classes, and forms the basic foundation of our nation's democracy. Whether or not citizens are classified in ways traditionally considered suspect by the United States Supreme Court, see, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 369; 6 S.Ct. 1064, 1070; 30 L.Ed. 220, 226 (1886), they may rely on this guarantee which embodies the Framers' intent "not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part." Madison, Federalist No. 51 (Mentor ed. 1961) at 323. The fundamental rights endangered by the AFPC's proposal are core to our nation's democratic process as well as to the integrity of every Floridian:

One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights . . . depend on the outcome of no elections.

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West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 638 (1943). This Court must not tolerate such dangerous misuse of the initiative process.

The levels of judicial scrutiny utilized in equal protection analysis--strict, intermediate, and minimal-- are well established. See City of Cleburne v. Cleburne Living Center, 473 U.S. at 440-41. Generally, states have wide latitude to legislate and their actions are presumed to be constitutional so long as the statutory or constitutional classification rationally relates to a legitimate state interest. Id. However, laws or constitutional amendments that discriminate on the basis of a "suspect" classification, see, e.g., Graham v. Richardson, 403 U.S. 365, 372; 91 S.Ct. 1848, 1852; 29 L.Ed.2d 534, 541-42 (1971) (alienage); Loving v. Virginia, 388 U.S. 1, 11; 87 S.Ct. 1817, 1823; 18 L.Ed.2d 1010, 1017 (1967) (race); Korematsu v. United States, 323 U.S. 214; 65 S.Ct. 193, 89 L.Ed. 194, reh'g denied, 324 U.S. 885, 65 S.Ct. 674, 89 L.Ed. 1435 (1944) (national ancestry and ethnic origin), or that infringe on fundamental constitutional rights, Cleburne 473 U.S. at 440, Graham v. Richardson, 403 U.S. at 365, face the most exacting standard of review -- strict scrutiny. To justify such a measure, the state must demonstrate that it seeks to achieve a compelling interest, that its proposed action is necessary to achieve its goals, and that it has no less intrusive alternatives that it can undertake.

Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786, reh'g denied 458 U.S. 1131 (1982).

Because the proposed Initiative would restructure Florida's political process and cut off the political participation of various classes of citizens, it merits the strictest standard of review. This Court should prevent this attempt by one segment of society to vote away the fundamental rights of others, a proposition which would turn the Constitution's promise of equal protection on its head.

The right of citizens to participate in the political process has been celebrated as a core democratic value from the inception of the United States as a democratic republic to the present day.

See Evans v. Romer, 854 P.2d 1270, 1276 (citing John Hart Ely, Democracy and Distrust 87 (1980)), cert. denied, 114 S.Ct. 419 (1993). The right to vote, the right to representation in a republican form of government, and the right to petition the government for redress of grievances all form part of this

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fundamental constitutional guarantee. See, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), reh'g denied, 379 U.S. 870. (one person, one vote); Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) ("In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction."); Milton v. Smathers, 389 So.2d 978, 982 (Fla. 1980).

Indeed, equal participation in the process of government lies at the heart of the United States Supreme Court's political participation jurisprudence of the last three decades. In contexts ranging from reapportionment, see, e.g., Reynolds v. Sims, Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964), to minority party rights, see, e.g., Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 72 (1968) to wealth or property restrictions, see, e.g., Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Kramer v. Union Free School Dist., 395 U.S. 621 (1969) and other similar roadblocks to effective political participation, see, e.g., Dunn v. Blumstein, 405 U.S 330, 92 S.Ct. 995, 31 L.Ed.2d 22 (1972); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), the Court has underscored the importance of participation in the political process to our constitutional democracy. Without fail, it has emphasized that the right of meaningful political participation is the fountainhead of all other rights and, as such, merits the strongest possible constitutional protection. Reynolds v. Sims, 377 U.S. at 562; Wesberry v. Sanders, 376 U.S. 1, 17 (30). The Court, therefore, has subjected laws infringing this fundamental right to its strict scrutiny review. Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988). The Court locates its rationale at the heart of the Constitution: "The concept of 'we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications." Gray v. Sanders, 372 U.S. 368, 379-80, 83 S.Ct. 801, 808, 9 L.Ed. 821 (1963).

Participation in the political process is critical to our constitutional democracy; thus, state-imposed burdens on the participation of identifiable groups must satisfy the highest scrutiny. See Evans v. Romer, 854 P.2d at 1279, ("The common thread [among these cases] is the principle that laws may not

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create unequal burdens on identifiable groups with respect to the right to participate in the political process absent a compelling state interest"). See also Equality Foundation of Greater Cincinnati v. Cincinnati, F.Supp. (So.D.Ct. Ohio, Nov. 19, 1993) (Slip Opinion, App., Ex. H).

2. The Initiative Would Restructure Florida's Government According to Non-neutral Principles Previously Struck by the United States Supreme Court Measures such as the proposed initiative, intended to cut back the civil rights of an identifiable minority group and stem the normal functioning of the democratic process, are not new in American history. Indeed, shortly after the African-American civil rights movement won some legislative victories in the form of anti- discrimination laws, a counter-movement arose to overturn those laws and prevent future passage of similar measures. See, e.g., Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967)(invalidating initiated constitutional amendment aimed to overturn California laws prohibiting race discrimination in housing and prevent future passage of such laws); Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969)(invalidating initiated charter amendment intended to overturn Akron's anti- discrimination ordinance and prevent future passage of similar ordinances). In striking down these initiated amendments, the United States Supreme Court evaluated the facially neutral language of the measures in their contemporary context to understand their true intent and effect, and it affirmed that such measures infringe and endanger the fundamental right of equal participation in the political process.

In Hunter v. Erikson, an Akron charter amendment passed by voters required that anti-discrimination measures related to race, religion, or ancestry receive majority voter approval prior to enactment, while other ordinances remained subject to the original rule which required only City Council approval. Although the classification involved in Hunter was based upon race, the Court invalidated the amendment not simply because of its racial classification, but rather because it interfered with the right of persons to participate on an equal footing in the political process. Hunter, 393 U.S. at 391. While Akron could decide to require all of its municipal legislation to be approved by plebiscite, the Court held that it could not selectively burden legislation that might benefit a particular group.

[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size. Id. at 393 (citations omitted). To support its conclusion, the Court relied on two voting rights cases. Id. (citing Reynolds v.

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Sims, 377 U.S. 533 (1964) (unconstitutional apportionment favoring rural counties) and Avery v. Midland County, 390 U.S. 474 (1968)(unconstitutional apportionment among single-member districts of substantially equal populations violated right to vote).

Thirteen years later, in Washington v. Seattle School District No. 1, 458 U.S. 457, 102 S.Ct. 318, 73 L.Ed.2d 896 (1982), the Court invalidated an initiative adopted by Washington voters which denied local school districts the right to use mandatory busing to achieve racial integration. The measure at issue barred minority groups from seeking favorable remedial programs from district school boards which otherwise continued to administer virtually all aspects of the school system. Relying on Hunter, the Court held that the voters had interfered impermissibly with the political process by burdening minority groups efforts' to secure beneficial programs. See id. at 467-70. The Washington Court adopted Justice Harlan's view articulated in Hunter that the restructuring of government processes may take place only according to "neutral principles." Id. at 469. Thus, the Court concluded that the imposition of uniform requirements on the political process is not unconstitutional "[b]ecause such laws make it more difficult for every group in the community to enact comparable laws.'" Id. at 470 (quoting Hunter v. Erickson, 393 U.S. at 393 (emphasis in original).

The Hunter and Washington initiatives did "not attemp[t] to allocate governmental power on the basis of any general principle," but rather used "the racial nature of an issue to define the governmental decisionmaking structure, and thus impose substantial and unique burdens on racial minorities." Id. However, while both cases involve racial classifications, the Court's analysis centers on the burden on "any particular group," Hunter, 393 U.S. at 392.

After extensively analyzing these two cases, the Colorado Supreme Court concluded, "it would be erroneous to conclude that the 'neutral principle' precept is applicable only in the context of race discrimination." Evans v. Romer, 854 P.2d at 1281. See also Equality Foundation of Greater Cincinnati v. Cincinnati, F.Supp. , slip op. at 14-15.

Similarly, in Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29 L.Ed.2d 273 (1971), the United States Supreme Court again applied the Hunter analysis to the issue of political participation. In resolving the challenge to a statutory-required supermajority requirement for increasing West Virginia's bond indebtedness or state tax rates, the Court asked whether "any sector of the

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population may be said to be 'fenced out' from the franchise because of the way they will vote." Id. at 5. In contrast to Hunter, the Gordon court could "discern no independently identifiable group or category that favors bonded indebtedness over other forms of financing." Id. The Court then restated the governing constitutional standard: "[S]o long as such provisions do not discriminate against or authorize discrimination against any identifiable class, they do not violate the Equal Protection Clause." Id. at 7.

In sum, therefore, the right of citizens to participate on equal footing in the political process is a fundamental constitutional right. Any measures which impede exercise of that right by an identifiable class are subject to strict judicial scrutiny. Because participation is an independently protectible constitutional value, courts must be suspicious of any effort to burden that value by singling out and interfering with meaningful political participation by identifiable groups. Whether the proposed inhibition relates to wealth, military service, property ownership, tax status, sexual orientation, or, as here, all of the above, the constitutional right to political participation must prevail.

3. The Initiative's Facially Neutral Language Cannot Overcome

Its Violation of Equal Protection Guarantees. The Court must review the AFPC initiative in the context of Florida's state and local civil rights laws to ascertain its immediate objective, ultimate effect, historical context and the conditions existing prior to its enactment. Reitman, 387 U.S. at 373. As discussed above, despite its purported objective, the proposed initiative would repeal not only laws which prohibit sexual orientation discrimination but also those which prohibit discrimination or provide rights, benefits, or privileges to numerous other groups. Further, it would prohibit the state, municipalities and any other government entities from adopting any law based upon classifications which may currently or in the future form the basis for discriminatory treatment.

Rather than remove all anti-discrimination laws from state and local control, the proposed initiative isolates certain classifications which it deems worthy of protection, repeals all other existing protective laws, and revises the political process so that people seeking protection based on other non-enumerated classifications must overcome enormous and possibly insurmountable political hurdles. In its effect, therefore, the initiative is similar to Colorado's Amendment 2, which prohibited all state governmental entities from recognizing claims of discrimination against lesbians, gay men and bisexuals. See Evans v. Romer, 854 P.2d 1270, (Col. 1993). Upholding a preliminary injunction against Amendment Two's enforcement, the Colorado Supreme Court clearly identified the measure's constitutional flaw:

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In short, gay men, lesbians, and bisexuals are left out of the political process through the denial of having an "effective voice in the governmental affairs which substantially affect their lives." Kramer, 395 U.S. at 627. Strict scrutiny is thus required because the normal political processes no longer operate to protect these persons. Rather, they, and they alone, must amend the state constitution in order to seek legislation which is beneficial to them. ...Amendment 2 singles out and prohibits this class of persons from seeking governmental action favorable to it and thus, from participating equally in the political process. Evans v. Romer, 854 P.2d at 1285.

The Evans court explained that prior to Amendment 2's passage, lesbian, gay and bisexual Colorado citizens could avail themselves of the political process on the same basis as all other citizens seeking legislation beneficial to them. If the amendment had taken effect, however, "the sole political avenue by which this class could seek such protection would be through the constitutional amendment process." Id. at 37.

The Idaho Attorney General, pursuant to a statutorily-required review process, has also found that a proposed initiative which sought to restrict the rights of lesbians and gay men would violate equal protection guarantees for reasons similar to those given by the Colorado Supreme Court. Like the AFPC initiative, the Idaho provision attempts to prevent gay men and lesbians from obtaining anti-discrimination protections; it differs from the AFPC initiative mainly in that it does not hide its antipathy toward the targeted class as does the Florida provision. (A copy of the Idaho Attorney General opinion is attached in the Appendix).

Because it would remove all anti-discrimination laws from state and local control by isolating certain classifications for protection, repealing all other existing protective laws, and placing virtually insurmountable political hurdles in front of all others seeking protection, the AFPC's initiative goes even further than the initiatives in Colorado and Idaho. It is, of course, impossible to predict what characteristics will require protective legislation in the future. Indeed, legislation against race and gender discrimination was not adopted until many years after the phenomenon of such discrimination was widely-acknowledged. Similarly, fifteen years ago, there was no need for HIV/AIDS discrimination legislation because the disease had not yet been identified in this country. Although people with HIV faced discrimination as soon as the disease became known, the courts did not recognize until much later that this was discrimination on the basis of a disability. The AFPC's proposal's wide reach will

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only increase the harm Floridians will suffer.

Courts have consistently inquired beyond the facial meaning of statutes to discover invalidating purposes. This was true in both Reitman and Hunter where the initiatives' facially neutral language did not rectify their constitutional flaws. In Reitman, for example, the proposed constitutional amendment did not specifically name the groups which were being targeted. Rather, the initiative barred the State and any of its agencies or subdivisions from interfering with "the right of any person ... to decline to sell, lease or rent ... [his] property to such person or persons as he, in his absolute discretion, chooses." 387 U.S. at 371. Despite this facially neutral language, the United States Supreme Court held that the initiative violated equal protection guarantees by affirmatively authorizing and encouraging racial discrimination in the housing market and by establishing the right to discriminate as "one of the basic policies of the State." Id. at 381. The United States Supreme Court specifically noted that the California Supreme Court "quite properly undertook to examine the constitutionality of [the amendment] in terms of its 'immediate objective,' its 'ultimate effect' and its 'historical context and the conditions existing prior to its enactment.'" Id. at 373.

In Hunter as well, the Supreme Court recognized that the Akron charter amendment, which appeared to be neutral on its face, was a subterfuge for an attempt to condone discrimination. Id. at 390.

While acknowledging "the section draws no distinctions among racial and religious groups," and that "Negroes and whites, Jews and Catholics are all subject to the same requirements if there is housing discrimination against them which they wish to end," id. at 390, the Court nonetheless found it had a discriminatory impact.

[A]lthough the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law's impact falls on the minority. The majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that. Id. at 391.

4. The Initiative Does Not Survive Minimal, Much Less Strict,

Scrutiny; the State Has No Legitimate Interest in Permitting

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or Promoting Discrimination or Cutting Any Group of Citizens out of the Political Process.

As recognized by the Colorado and California state courts and the Federal District Court in Ohio, the right to equal opportunity to participate in the political process is a fundamental constitutional right. See Evans v. Romer, Citizens for Responsible Behavior, Equality Foundation v. Cincinnati. Because the initiative infringes upon that right by attempting to tie the hands of Florida's government even when circumstances clearly warrant government action, the sole remaining issue is whether the initiative can survive strict scrutiny. It cannot. A law which infringes the fundamental right to participate in the political process withstands strict scrutiny only if it is narrowly tailored to achieve a compelling state interest. Evans, Plyler v. Doe, 457 at 216. The AFPC's initiative does not satisfy either prong of this test.

Several local governments in Florida plainly believe that circumstances warranted passage of anti-discrimination legislation to protect against sexual orientation discrimination, yet this legislation would be nullified by the AFPC's proposed measure. Likewise, protective legislation and programs for other classifications of citizens might also be invalidated or changed because of this measure. (See Appendix, Ex. D). Government has no compelling interest in depriving anyone of the ability to obtain protection against discrimination. Put another way, there is no legitimate state interest in preventing elected officials from responding to the legitimate concerns of an identifiable group of citizens. Nor, in particular, is there a compelling interest in preventing lesbians and gay men from being protected by anti- discrimination laws. Lesbians and gay men have long been targets of unfair discrimination, bigotry, and violence. Supra, Note, Constitutional Limits on Anti-Gay Rights Initiatives, 106 Harv.L.Rev. at 1906 n. 12. Cf. Citizens for Responsible Behavior (no rational basis for government to burden passage of laws prohibiting sexual orientation or HIV-related discrimination).

Moreover, the AFPC's promotional materials do not articulate a legitimate, let alone a compelling, state interest. A review of its literature demonstrates that the American Family Association seeks to pass the proposed initiative for an illegitimate purpose. The equal protection clause does not permit states to treat groups differently solely for the sake of different treatment. Further, the mere "desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." United States Department of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2826, 37 L.Ed.2d 782 (1973)(emphasis in original). This Court cannot permit prejudice and fear to justify discrimination.

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See Cleburne, 473 U.S. at 447 ("mere negative attitudes ... are not permissible bases" for discriminating against the mentally retarded.) Moreover, discrimination motivated by antipathy does not become legitimate simply because religious beliefs form the basis for the social disapproval.

Like the thinly veiled objective of the city ordinance invalidated in Citizens for Responsible Behavior, the hostile and discriminatory purpose of the proposed initiative leaps from the face of its proponents' campaign literature. See supra, Facts Section (a). By presenting an amendment that fails to mention homosexuality, the AFPC cannot overcome the measure's discriminatory purpose and effect or otherwise mask its campaign of hostility and prejudice.

C. The Initiative is Palpably Unconstitutional Because It Violates the First Amendment to the United States Constitution.

1. The Initiative Violates The First Amendment's Protection of Expressive Conduct.

The AFPC initiative violates the First Amendment to the United States Constitution because it substantially increases the risk of engaging in expressive conduct and inhibits the core political speech of lesbians, gay men and others in classifications not deemed eligible for anti-discrimination protection. Because it would disable every branch of state and local government from providing any protection from discrimination to such individuals, the proposed initiative would increase the risk of retaliation in employment, housing and public accommodations for lesbians, gay men and others in non-enumerated groups who engage in expressive activity. The state may not so amplify the perils of engaging in protected expression without compelling justification.

Ordinarily, the First Amendment does not require that the government protect individuals from retaliation by private persons because of expressive conduct. But see Edwards v. South Carolina, 372 U.S. 229, 236-37, 83 S.Ct. 680, 684, 9 L.Ed.2d 697 (1963)(state must act to protect demonstrators threatened with violence by those who abhor their views). Any individual who advocates social changes runs the risk that before the change occurs, he or she will suffer retaliation. See, e.g., Dorr v. First Kentucky National Corp., 796 F.2d 179 (6th Cir. 1986)(bank employee fired for being president of gay Christian organization); McConnell v. Anderson, 451 F.2d 193 (8th Cir. 1971) cert. denied, 405 U.S. 1046 (1972) (gay man not hired as librarian because of his activities in support of lesbian and gay civil rights).

However, if the government substantially increases an individual's risk of private retaliation for protected

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expression, the First Amendment requires the government to demonstrate a compelling justification for exposing those who engage in expressive conduct to increased risk. N.A.A.C.P. v. Alabama ex rel Patterson, 357 U.S. 449, 458-464; 78 S.Ct. 1163, 1169-75; 2 L.Ed.2d 1488, 1497-1501 (1958). In N.A.A.C.P., the state of Alabama sought to discover the N.A.A.C.P. Alabama branch's membership list in an action brought against the N.A.A.C.P. for failure to register as a foreign corporation doing business in the state. Refusing to produce the lists, the N.A.A.C.P. claimed that its members would be exposed to "economic reprisal, loss of employment, threat of physical coercion and other manifestations of public hostility" and that such exposure was bound to discourage people from joining and participating in its activities. 357 U.S. at 452-54, 462-63.

Similarly, in Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed. 480 (1960), the N.A.A.C.P. refused to turn over membership lists to two Arkansas cities who required the lists as part of the cities' business tax. Again, the N.A.A.C.P. argued that providing the lists would subject its members to harassment, threats of bodily harm and economic reprisals, offering proof that public identification of members had previously led to harassment and threats.

In both cases, the United States Supreme Court rejected the states' arguments that any repressive effect resulting from exposure of the lists had no First Amendment significance because the retaliation and threats would result from private, not governmental, action. N.A.A.C.P., 357 U.S. at 463; Bates, 361 U.S. at 524. Although it was true that the state was not itself discouraging N.A.A.C.P. membership in either case, it was the state which would make new retaliation and threats possible by demanding the lists.

Likewise, under the proposed initiative, the government would substantially increase the risk of retaliation against those in non-enumerated classes who engage in expressive conduct. Currently, lesbians, gay men and others who work for protection against discrimination balance for themselves the risk of retaliation with the potential that government might provide protection or redress. The need for protection has been recognized by the 139 jurisdictions in this country which include sexual orientation in their anti-discrimination laws. Note, Constitutional Limits on Anti-Gay Rights Initiatives. By sweeping aside every potential means of redress for private retaliation -- making government protection from discrimination a virtual

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impossibility -- the initiative would increase dramatically the risk of expression. The First Amendment demands a compelling justification for this endangering of protected speech -- which neither the State nor the initiative's proponents can provide.

Furthermore, the proposed initiative will taint the political process now, prior to the election. Because it would bar government from protecting non-enumerated classes against discrimination, lesbians, gay men and others who enter the public

debate against the initiative may expose themselves to retaliation

election, dismiss the possibility. There can be no question that many will refrain from engaging in political speech against the initiative out of fear of the consequences of its passage.

Prior to an election, this Court can and should address this initiative's taint on the political process by its present, chilling effect on the protected expression of lesbians, gay men and others. The equitable powers of this Court compel it to act before individuals have suffered harm from their fear of retaliation caused by an unconstitutional measure -- for an alleged constitutional infringement alone will often constitute irreparable injury. Goldie's Bookstore v. Superior Court of the State of California, 739 F.2d 466, 472 (9th Cir. 1984) (citing Wright & Miller, 11 Federal Practice and Procedure, sec. 2948 at 440 (1973)). The loss of First Amendment freedoms, even for minimal periods of time, constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373; (1976). See also Dombrowski v. Pfister, 380 U.S. 479, 486-87; 85 S.Ct. 1116, 1121-22; 14 L.Ed.2d 22 (1965)("Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights....The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.") This Court should not permit such an injurious campaign to take place where its ultimate result will be an invalid Constitutional amendment.

2. The Initiative Violates the Right of Citizens to Petition Their Government for a Redress of Grievances

The proposed constitutional amendment should not appear on the ballot for the additional reason that on its face it violates the Petition Clause of the First Amendment to the United States Constitution. The Petition Clause provides the following:

Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances.

Amend. 1, U.S. Const.

This Court has noted that the right to petition is a core constitutional right which originated in English law. Cate v. Oldham, 450 So. 2d 224, 25-26 (Fla. 1984). It stemmed from the

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right to petition local assemblies in colonial America, a right that required governmental hearing and response. Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L.J. 142 (1986). The United States Supreme Court has stated the function of the right to petition: "In a representative democracy such as this, these branches of government act on behalf of the people and to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives." Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 137; 81 S.Ct. 523, 5 L.Ed.2d 464, reh'g denied, 365 U.S. 875 (1961). Persons may not be deprived "of their right to petition in the very instances in which that right may be of the most importance to them." Id. at 472. The government does not guarantee success to any group seeking legislation, but it must guarantee access to those bodies which might enact protective legislation. The Supreme Court has also stated that, "[I]t is obviously peculiar in a democracy, and perhaps in derogation of the constitutional right 'to petition the Government for a redress of grievances' to establish a category of lawful state action that citizens are not permitted to urge." City of Columbia v. Omni Outdoor Advertising, 499 U.S. 365 (1991) (citation omitted) (holding that antitrust laws may not be extended to inhibit right to petition). The opinion by the Idaho attorney general attached in the Appendix found a proposed provision would violate the Petition Clause because it restricted the ability of lesbians and gay men to petition state and local governments for protective and corrective legislation. (App., Ex. E).

Florida courts have also recognized that the right to effectively petition for redress of grievances on which other cherished rights ultimately depend. Cross Key Waterways v. Askew, 351 So. 2d 1062, 1065 (Fla. 1st DCA 1977), aff'd, 372 So.2d 913 (1978). It is a form of democratic expression at its purest. Krivanek v. Take Back Tampa Political Committee, 603 So. 2d 528, 531 (Fla. 2d DCA 1992).

Similarly, the United States Supreme Court has zealously guarded the right to petition and participate in the political process. The initiative in this case raises impermissible barriers to any persons seeking legislative protection from their governments. Such restrictions may be justified only for the most compelling of reasons. There are no compelling state interests which would justify the implementation of this Initiative.

III. Conclusion

The AFPC proposal plainly violates the First and Fourteenth Amendments to the United States Constitution. Now is the proper time for this Court to address these palpable violations. In any event, the measure's violations of Florida's ballot title, ballot

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summary, and single subject requirements mandate the striking of the measure.

Respectfully submitted,

Attorneys for Respondents

William E. Adams, Jr. Chesterfield H. Smith Fla. Bar No. 304093 Holland and Knight Cooperating Attorney for Lambda 701 Brickell Ave., 30th Fl. Legal Defense and Education Fund P.O. Box 15441 3305 College Avenue Miami, Fl 33101-5441 Fort Lauderdale, FL 33314 (305) 452-6133

Suzanne Goldberg Lambda Legal Defense and Education Fund 666 Broadway New York, NY 10012-2317 (212) 995-8585

Rosemary Wilder Gay and Lesbian Lawyers Association of Florida (305) 940-7557 Barbara J. Cox Professor of Law California Western School of Law

In re H.S.H-K, 193 Wis. 2d 649, 533 N.W.2d 419 (1995)

The brief which follows this introduction was submitted to the Wisconsin Supreme Court on behalf of the National Center for Lesbian Rights. They asked me to draft it for them, which I did.

I cannot take much credit for the initial section of the brief; this is "boiler-plate" language which NCLR includes in many of their family law briefs, in an attempt to educate judges about the existence of and issues facing lesbian and gay families.

The facts of the case are indicated in the brief. This is a custody and visitation claim filed by Sandra Lynne Holtzman, the non-biological parent of H.S.H-K, the child she had with Elsbeth Knott, the child's biological parent. The Wisconsin Supreme Court issued its decision on June 13, 1995 and, in doing so, became the first state supreme court to recognize the visitation rights of a non-biological lesbian parent.

The court essentially, although not expressly, reversed its earlier decision in In re Interest of Z.J.H., 162 Wis. 2d 1002, 471 N.W.2d 202 (1991) where it denied custody and visitation to

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the non-adoptive lesbian mother. Two similar cases, where visitation was also denied, include In the Matter of Alison D. v. Virginia M, 77 N.Y.2d 651, 572 N.E.2d 27, 569 N.Y.S.2d 586 (1991) and Nancy S. v. Michelle G., 228 Cal. App. 3d 831, 279 Cal. Rptr. 212 (1st Dist. 1991). For a discussion of those cases and the legal theories used in them, see Barbara J. Cox, Love Makes a Family--Nothing More, Nothing Less: How the Judicial System Has Refused to Protect Nonlegal Parents in Alternative Families, VIII J. L. & Pol. 5 (1991).

In this case, the Wisconsin Supreme Court rejected Holtzman's request for custody of her son. The court held that Holtzman had not "raised a triable issue regarding Knott's fitness or ability to parent her child and has not shown compelling circumstances requiring a change of custody." Thus, it affirmed the trial court's dismissal of the custody action.

It also concluded, perhaps to avoid overruling Z.J.H., that the visitation statute, sec. 767.245, Stats. 1991-1992, does not apply to "Holtzman's petition for visitation rights to Knott's biological child." However, the court determined that the legislature did not intend that the statute be the exclusive method for obtaining visitation. Refusing to read the statute as supplanting or preempting "the courts' long recognized equitable power to protect the best interest of a child by ordering visitation under circumstances not included in the statute," the court concluded that a trial court may determine whether visitation is in the best interest of the child "if the petitioner first proves that he or she has a parent-like relationship with the child and that a significant triggering event justifies state intervention in the child's relationship with a biological or adoptive parent."

The court explained that in order to demonstrate a parent- like relationship between the non-biological or non-adoptive parent and the child, the petitioner must prove four elements:

"(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child;

(2) that the petitioner and the child lived together in the same household;

(3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's case, education and development, including contributing towards the child support, without expectation of financial compensation; and

(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature." (footnotes omitted)

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If the trial court determines that these four factors are established, it must then find that a "significant triggering event" justifies state intervention. In order to do this, "the petitioner must prove that this parent has interfered substantially with the petitioner's parent-like relationship with the child, and the petitioner sought court ordered visitation within a reasonable time after the parent's interference.

Once the trial court finds both the existence of a parent- child relationship between the petitioner and the child and a significant triggering event justifying state intervention, then the trial court must determine whether court-ordered visitation is in the best interest of the child. For these findings, the Wisconsin court remanded to the trial court. Knott's appeal to the United States Supreme Court was denied.

The court's test resembles the theories set forth in two excellent articles: Nancy D. Polikoff's This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 Geo. L.J. 459 (1990), as well as Kathleen Bartlett's, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 Va. L. Rev. 879 (1984). Unfortunately, the Wisconsin Supreme Court refused to go as far as either commentator in refusing to recognizing that this parent-child relationship rises to a level to support granting custody to the non-legal parent. While this case can be heralded as a significant contribution toward recognizing non-legal parents, until those parents are able to establish standing in custody suits, the courts will continue to show their misunderstanding of the parental bond between these parents and their children.





v. Case No. 93-2911



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HUME LAW OFFICES Kathleen E. Hume Wisconsin State Bar # 01014488 5665 S. 108th Street Hales Corners, WI 53130 (414) 529-4149

Abby Abinanti, Legal Director Barbara J. Cox National Center for Lesbian Rights 1663 Mission Street, Suite 550 San Francisco, CA 94103 (415) 621-0674

Attorneys for Amicus Curiae

National Center for Lesbian Rights





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AND STATUTORY MANDATE . . . . . . . . . . . . . . . 15

A. The Rule Delineated in Z.J.H. Unnecessarily Treats Lesbians Worse Than Heterosexuals Without Promoting The Policy Of Mitigating Trauma From Dissolving Family Relationships . . . . . . . . . . . . . . . . . . . 16

B. Allowing Co-Parents In Dissolving Lesbian Families To Obtain Visitation Is Consistent With The Clear Expression Of Legislative Policy To Prevent Discrimination

Due To Sexual Orientation . . . . . . . . . . . . . 19

TABLE OF AUTHORITIES In re Interest of Angel Lace M.,

Case Nos. 92-1369 and 92-1370. . . . . . . . . . 18 In re Interest of Z.J.H.,

162 Wis.2d 1002, 471 N.W.2d 202 (1991) . . . . . . . . . . . . . 12, 13, 14, 17, 18

WISCONSIN STATUTES 944.17, stats. . . . . . . . . . . . . . . . . . . 20 944.15, stats. . . . . . . . . . . . . . . . . . . 20 944.01, stats. . . . . . . . . . . . . . . . . . . 20 943.012, stats . . . . . . . . . . . . . . . . . . 20 939.645(1)(b), stats . . . . . . . . . . . . . . . 20 767.245(1), stats. . . . . . . . . . . . . . . 12, 15 767.24(3), stats . . . . . . . . . . . . . . . . . 18 234.29, stats . . . . . . . . . . . . . . . . . . 20 230.18, stats. . . . . . . . . . . . . . . . . . . 20 230.01(2), stats . . . . . . . . . . . . . . . . . 20 227.110(3)(a), stats . . . . . . . . . . . . . . . 21

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 135---------------------------------------

146.025(7)(c)1, stats. . . . . . . . . . . . . . . 21 Wisconsin Statutes Continued 111.85(2)(b), stats. . . . . . . . . . . . . . . . 21 111.81(12)(b), stats . . . . . . . . . . . . . . . 21 111.70(2), stats . . . . . . . . . . . . . . . . . 21 111.321, stats . . . . . . . . . . . . . . . . . . 21 111.32(13)(m), stats . . . . . . . . . . . . . . . 21 111.31(1), stats . . . . . . . . . . . . . . . . . 21 101.22(1), stats . . . . . . . . . . . . . . . . . 21 66.433(3), stats . . . . . . . . . . . . . . . . . 21 66.432(1), stats . . . . . . . . . . . . . . . . . 21 66.431(3)(e)2, stats . . . . . . . . . . . . . . . 21 66.43(2m), stats . . . . . . . . . . . . . . . . . 21 66.405(2m), stats. . . . . . . . . . . . . . . . . 21 66.40(2m), stats . . . . . . . . . . . . . . . . . 21 66.395(2m), stats. . . . . . . . . . . . . . . . . 22 66.39(13), stats . . . . . . . . . . . . . . . . . 22 38.23(1), stats. . . . . . . . . . . . . . . . . . 22 36.12(1), stats. . . . . . . . . . . . . . . . . . 22 21.35, stats . . . . . . . . . . . . . . . . . . . 22 16.765(1), stats . . . . . . . . . . . . . . . . . 22 15.04(1)(g), stats . . . . . . . . . . . . . . . . 22


Agenda, Business News Bulletin of GLPCI, Sept. 1993 . 10 Chira, Susan, Gay and Lesbian Parents Grow More Visible, The

New York Times, Sept. 30, 1993, p. 1. . . . . . 10

Griffin, Jean Latz, The Gay Baby Boom: Homosexual Couples Challenge Traditions as They Create New Families, Chicago Tribune, Sept. 3, 1992, at C1,

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 136---------------------------------------

col. 18

Griffin, Jean Latz, Law Begins to Address Rise in Gay

Families, Chicago Tribune, Sept. 4, 1992, at C1, col. 411

Harris, Scott, For This Family Call It Mothers' Day, Los

Angeles Times, May 9, 1993, at B1 . . . . 11

Nan Hunter & Nancy Polikoff, Custody Rights of Lesbian Mothers: Legal Theory and Litigation Strategy, 25

Buff. L. Rev. 691 (1976). . . . . . . . . .8

Kinsey, Pomeroy, Martin, & Gebhard, Sexual Behavior in the Human Family (W.B. Saunders Co. 1953) . . .8

Kolata, Gina, Lesbian Partners Find the Means to Become

Parents, N.Y. Times, Jan. 30, 1989, at A13, col. 111

Lan, Angela, Lesbian Couples Opt for Babies, San Diego

Union Tribune, 3 Nov. 18, 1993, at H3 . . 11

Lewin, Ellen, Lesbian Mothers (1993). . . . . . . . . .9

Mandell, Jonathan, The Lesbian Baby Boom, Newsday, July 13, 1989, at 8, col. 1. . . . . . . . . . 11

Martin, April, The Lesbian and Gay Parenting Handbook,

(1993) . . . . . . . . . . . . . . . . . . . . . 10 Other Publications Continued

Martin, April, The Planned Lesbian and Gay Family:

Parenthood and Children, (Paper delivered to the

1989 Annual Meeting of the American Psychological

Association, New Orleans) . . . . . . . . .9

Minkowitz, Donna, No Book Can Change a Child's Sexuality, News Day, Nov. 30, 1992, at 55 .9

Newman, Leslie, Heather Has Two Mommies (1989). . . . .9

Note, Same-Sex Marriage, X N.Y.L.S. J. Hum. Rts. 555

(1993) . . . . . . . . . . . . . . . . . . . . . 17

O'Connor, Lesbian Urges Therapists to Find New Voices, Washington Blade, August 19, 1988, at 9, col. 2. 10

Perez, Julia, To Beverly, in Harriet Alpert, ed., We Are

Everywhere (1987) . . . . . . . . . . . . .9

Pies, Cheri, Considering Parenthood (1985). . . . . . .9 Rubenstein, William, ed., Lesbians, Gay Men and the Law,

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 137---------------------------------------

(1993) . . . . . . . . . . . . . . . . . . . . . 19

Tuller, David, Gays and Lesbians Try Co-Parenting, San Francisco

Chronicle, Sept. 4, 1993, at A1 . . . . . . . . . . 11

Tuller, David, Gay Co-Parenting Challenges Law on U.S. Family, The (New Orleans) Times-Picayne, Feb. 10,

1993, at F10. . . . . . . . . . . . . . . 11

Two Moms, San Francisco Examiner, June 12, 1989, at A1811

Seligman, Variations on a Theme, Newsweek, Special Section at 39, Winter/Spring 1990 . . . . .8

Shapiro, E. Donald & Schultz, Lisa, Single Sex Families:

The Impact of Birth Innovations Upon Traditional Notions, 24 J. Fam. L. 271 (1985-86). . . 10 Other Publications Continued

Sherman, All In A Day's Work, Gay Community News, Feb.

14-20, 1988, at 7, col. 1 . . . . . . . . 10

Sullivan, Joseph, Court Backs Lesbian's Right to Adopt Partner's Child, New York Times, Aug. 11, 1993, at

B5. . . . . . . . . . . . . . . . . . . . 11

Weston, Kath, Families We Choose: Lesbians, Gays, and Kinship, (1991) . . . . . . . . . . . . . 10


Oprah Winfrey Show, "Gay and Lesbian Adoption," ABC Television Broadcast, Sept. 19, 1989. . . 11

Phil Donohue Show, CBS Television Broadcast, Sept. 19,

1989. . . . . . . . . . . . . . . . . . . 11

20/20, "I Have Two Moms," ABC Television Broadcast, May 6, 1989 . . . . . . . . . . . . . . . . . 11

20/20, "Women Who Love Women," ABC Television

Broadcast, Oct. 23, 1992. . . . . . . . . 10



Sandra Lynne Holtzman and Elsbeth Knott represent two ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 138---------------------------------------


the estimated twenty-five million lesbians and gay men who live in

the United States. They are also among the one to five million

lesbians in this country who are mothers. While lesbian invisibility in our society makes it nearly impossible to provide an

accurate figure, it is estimated that more than ten thousand lesbians

have conceived via donor insemination and have given birth to

children within the context of a lesbian family relationship. Many

more have adopted children.

This case concerns the future of H.H.K., a child born into the

Holtzman-Knott "planned lesbian family." A planned lesbian family

is one in which a lesbian deliberately chooses to raise a child

without being married or heterosexually involved. Planned lesbian

families are a relatively recent phenomenon. [T]he 1980's have witnessed the emergence of an entirely new

family structure, unparalleled in human history. For the first

time ever in any society we know about, gay people in large

numbers are setting out consciously, deliberately, proudly,

openly, to bear and adopt children. The existence of planned lesbian and gay families has been amply

documented recently. In 1989, the first children's book whose

central character is a child born of donor insemination to a lesbian

couple sold out of its initial printing of 4000 copies before

publication. The first book designed exclusively to assist lesbians

in deciding whether and how to become parents is now in its fourth

printing. A study of nearly 2000 lesbians reported that approximately one-third wanted to "become mothers either through

adoption or artificial insemination."

The planned lesbian or gay family does not have one fixed

structure, and may be formed in many ways, including adoption,

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 139---------------------------------------

birth to a lesbian through insemination, or birth to a surrogate who

relinquishes the child to the gay biological father. This case

concerns the most common planned lesbian family -- a couple in a

long-term committed relationship, choosing to co-parent a child

born as a result of insemination. The day-to-day lives of lesbian

families and the difficulties presented when the child's relationship

with one of the two parents is not legally recognized has been

addressed in numerous public conferences, support groups, publications, and by the national and local print and television


Amicus urges this court to protect the integrity of planned

lesbian families and the best interests of children within such

families. To do this, the court must consider the context within

which the particular family was created and understand what the

family looks like from the inside, including specifically the child's

perspective. Several overriding principles should be applied in

cases involving planned lesbian families. Three of the relevant

principles amicus advocates are: 1) a biological connection is not

necessary for establishing parenthood; 2) agreements, particularly

when coupled with an ongoing course of conduct, establish the

intent of a biological parent to share parenting with another person

and should be upheld; and 3) a child's experience of his or her

family is critical to any analysis. Given the prevalence of planned

lesbian families, the courts can expect legal questions to recur as

these families form, grow, and sometimes dissolve. This court

cannot turn from this problem, hoping that it is rare, hoping it will

disappear. Lesbians will seek judicial assistance in resolving

visitation disputes, just as heterosexual couples (married or not)

seek assistance. Two such cases reaching the Wisconsin appellate

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 140---------------------------------------

courts since 1990 establishes this truth. This court should not turn

a blind eye to this problem.


The Wisconsin Supreme Court, in In re Interest of Z.J.H.,

162 Wis. 2d. 1002, 1020, 471 N.W.2d 202, 209 (1991), reached the

"inescapable conclusion that there must be an underlying action

affecting the family unit, before the provisions of sec. 767.245(1)

are implicated." The public policy underlying that decision was to

"protect the children's best interests by ordering visitation with

appropriate adults to mitigate the trauma and impact of a dissolving

family relationship." Z.J.H., at 1022, 471 N.W.2d at 210. But, "the

legislature did not intend that the state intervene in the parents'

decision regarding their children's best interests when the family

unit is intact." Id. Here, the family unit has dissolved and an

underlying action affecting the family has been filed.

Sandra Holtzman and Elsbeth Knott shared "a close, committed relationship" for over 10 years. (Trial court decision

[dec] at 1) "Given the societal and legal standards to which they

are subject, the couple did everything they could to create and

formalize a normal family relationship." (Dec. 1) From the

beginning, they discussed adding a child to their family. (Dec. 2)

They decided that Elsbeth would be inseminated and she became

pregnant in March 1988. (Dec. 2) Sandra joined Elsbeth for

obstetrical visits, and they attended childbirth classes, prepared the

baby's room, decided on a name, and participated in decisions

regarding their child jointly. (Dec. 2) H.H.K. was born on

December 15, 1988 and they lived with him as a family, ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 141---------------------------------------

sharing all

parental responsibilities, until May 26, 1993 when Elsbeth took

H.H.K. from their family home because the adults had become

estranged. (Dec. 2).

This planned lesbian family is vastly different from the one

in Z.J.H. There, the adults had a long-term relationship and decided

to adopt a child together, but the adoptive relationship was not

legally established until after the adults' relationship had ended.

Z.J.H. at 1007, 471 N.W.2d at 204. The child was placed in their

home in March 1988, the parties separated in October 1988, and the

child was adopted in November 1988. Id. In contrast, the Holtzman-Knott family lived together with their child for over four


While the Z.J.H. court could determine that the adoptive

mother and child were an intact family, without the co-parent, such

a determination here is impossible. Elsbeth did not create a family

unit with H.H.K. separate from Sandra. When the family relationship began to dissolve in January 1993, it was the relationship between all three members of the family that dissolved,

not simply the relationship between the adult partners. That family

unit included Sandra, Elsbeth, and H.H.K. and it has dissolved.

Furthermore, an underlying action affecting the family unit

was filed before Sandra's petitions for custody and visitation.

Elsbeth began that action on August 26, 1993, when she petitioned

the court for an injunction claiming that Sandra had threatened and

intimidated her and asking that she be restrained from having any

contact with Elsbeth or H.H.K. (Dec. at 4). At the hearing, Elsbeth

agreed to dismiss her petition, Sandra agreed not to contact Elsbeth,

and they agreed jointly to refer the visitation issue to family court.

(Dec. at 4).

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 142---------------------------------------

Elsbeth's petition for an injunction was an underlying action

affecting the family unit. She sought judicial assistance in

restraining Sandra from continuing her relationship with H.H.K.,

one that Sandra had maintained despite ending her relationship with

Elsbeth. Clearly, that petition would have significantly affected the

family unit.


Visitation actions under sec. 767.245(1), Stats., are permitted

for any "person who has maintained a relationship similar to a

parent-child relationship with the child." The statutory language

concentrates on the relationship between the third party and the

child and focuses on promoting the best interest of the child.

Visitation is contingent on the relationship between the biological

parent and the third party only to the extent that the parent has

allowed or created a parent-child relationship between the third

party and the child. The language of the statute coupled with Wisconsin's

leadership in preventing discrimination against lesbians and gay

men signifies legislative support for modifying the expression of the

Z.J.H. rule, though not the underlying policy, to avoid treating

lesbians differently than heterosexual couples needing to resolve

visitation disputes.

A. The Rule Delineated in Z.J.H. Unnecessarily Treats Lesbians Worse Than Heterosexuals Without Promoting The Policy Of Mitigating Trauma From Dissolving Family Relationships.

In Z.J.H., the Supreme Court indicated that underlying actions affecting the family, which it seemed to define as

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 143---------------------------------------


custody, or CHIPS actions, must be filed before visitation actions

are appropriate. Z.J.H. at 1020, 471 N.W.2d at 209. There, the

court concluded that the lesbian co-parent's visitation petition should

not be allowed because either (a) the adoptive mother and child

were an "intact family unit," or (b) no underlying action affecting

the family unit had been previously filed. Z.J.H. at 1022, 471

N.W.2d at 211.

Unfortunately, the Supreme Court did not recognize that its

rule, as delineated, could preclude lesbian couples from access to

the courts when visitation disputes arise. While protecting most

heterosexual couples, none of the options listed readily permit

access to the courts for lesbians in dissolving families.

First, lesbians cannot marry in any state. Therefore, they

cannot use an underlying divorce action to seek visitation because

they are not permitted to create a marriage, an obvious prerequisite.

They also cannot file "other actions affecting the marriage."

Second, lesbian co-parents cannot bring custody actions as

natural or adoptive parents. Lesbians are unable to bear a child

genetically-related to both parents. Thus, lesbians are unlike

unmarried heterosexual couples who have children genetically

related to both parents, and who therefore, although precluded from

using a divorce action, can pursue a custody option to resolve

visitation disputes. The Supreme Court is considering whether a

same-sex co-parent can adopt the biological or adoptive child of her

partner. (In the Interest of Angel Lace M., Case Nos. 92-1369 and

92-1370). Because it is unclear whether adoption is a viable

alternative for lesbian co-parents, Sandra could not have adopted

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 144---------------------------------------

H.H.K., thereby allowing her to seek visitation through an underlying custody action as an adoptive parent.

Third, requiring lesbians to pursue a CHIPS action under sec.

767.24(3), Stats., or otherwise allege unfitness as their only means

to obtain custody is inappropriate public policy. Unlike married or

unmarried heterosexual couples, lesbians must attack the fitness of

their ex-partners, and their children's other parent, as the singular

basis for obtaining custody or visitation of their children. While

these allegations exist in this case (see, Pet.'s brief at 6-7), they will

not exist in most cases. See, Z.J.H., at 1010, 471 N.W.2d at 205.

Additionally, these allegations increase the "trauma" for all

members of the dissolving family and cannot promote the children's

best interests.

It is inconceivable that the Z.J.H. court intended to preclude

lesbians from attaining visitation, absent allegations of unfitness.

Such a decision squarely contradicts the Wisconsin legislature's

leadership in protecting gay men and lesbians from pernicious


B. Allowing Co-Parents In Dissolving Lesbian Families To Obtain Visitation Is Consistent With The Clear Expression

Of Legislative Policy To Prevent Discrimination Due To Sexual


Wisconsin has a proud heritage of leading this nation by

prohibiting discrimination based on sexual orientation. Long before

other states recognized its crippling impact, Wisconsin statutorily

prohibited that discrimination. It would be inconsistent with this

legislative mandate to limit lesbians so much more drastically than

heterosexual couples when seeking visitation.

The legislature, by ending its regulation of private sexual

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 145---------------------------------------

activity between consenting adults, indicated an acceptance of

relationships outside the marital relationship. Sec. 944.01, Stats.

By revising secs. 944.15 and 944.17, the legislature indicated a

willingness to allow individuals to choose the intimate relationships

that best express their personalities, desires, and beliefs.

The legislature, however, has not simply evinced a passive

attitude toward sexual minorities living in Wisconsin. As the

following comprehensive statement shows, it took significant steps

to prevent harmful differences in treatment. Each statute prohibits

some form of differential treatment due to sexual orientation.

Sec. 943.012: Felony to damage community property based

on sexual orientation.

Sec. 939.645(1)(b): Increased penalties for crimes against

victims based on sexual orientation.

Sec. 440.77(1)(o): Prohibits discrimination in loan practices.

Sec. 234.29: Prohibits discrimination in housing projects.

Sec. 230.18: Prohibits discrimination in civil service.

Sec. 230.01(2): Prohibits discrimination in State

employment. Sec. 227.10(3)(a): Prohibits discrimination in State administrative rules.

Sec. 146.025(7)(c)(1): HIV test results may not indicate

sexual orientation.

Sec. 111.85(2)(b): Prohibits discrimination in fair share


Sec. 111.81(12)(b): Prohibits discrimination in State employee labor organizations.

Sec. 111.70(2): Prohibits discrimination in municipal fair

share agreements. ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 146---------------------------------------

Sec. 111.321: Prohibits employment discrimination.

Sec. 111.32(13)(m): "Sexual orientation" defined as having,

having a history of, or being identified with, a preference for

heterosexuality, homosexuality, or bisexuality.

Sec. 111.31(1): Employment discrimination substantially and

adversely affects state's general welfare.

Sec. 101.22(1): Prohibits housing discrimination.

Sec. 66.433(3): Community commissions recommend solutions to sexual orientation discrimination in housing, employment, and public accommodations and facilities.

Sec. 66.432(1): Equal opportunity in housing is local concern.

Sec. 66.431(3)(e)2 and 66.43(2m): Entitlement to slum clearance benefits without regard to sexual orientation.

Sec. 66.405(2m): Equal opportunity in urban redevelopment


Sec. 66.40(2m): Prohibits discrimination by housing authorities.

Sec. 66.395(2m): Prohibits discrimination in elderly housing.

Sec. 66.39(13): Prohibits discrimination in veterans housing.

Sec. 38.23(1): Prohibits discrimination against vocational,

technical, and adult education students.

Sec. 36.12(1): Prohibits discrimination against Wisconsin

System students.

Sec. 21.35: Prohibits discrimination in National guard admission.

Sec. 16.765(1): Prohibits discrimination by State contractors.

Sec. 15.04(1)(g): State agency heads must take remedial

action to end discrimination. These statutes clearly indicate that sexual minorities may

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 147---------------------------------------

not be

treated differently due to their sexual orientation.

To prohibit differential treatment in visitation, the legislature

permitted individuals with a "parent-child relationship" to petition

the court for visitation. This statute applies to members of

dissolving lesbian families. Therefore, this court should acknowledge this legislative intent, while following the policies

underlying Supreme Court precedent, and permit Sandra Holtzman

to request visitation with her son.


Restricting lesbians in dissolving families to pursuing a

divorce, custody or CHIPS action as the only methods for seeking

visitation precludes most lesbians from court assistance in resolving

visitation disputes. Additionally, recognizing other actions as

fulfilling the policies behind the Z.J.H. rule protects intact family

units and is consistent with expressed legislative policies to prevent

differences in treatment by the state due to sexual orientation. This

court should allow Sandra Holtzman to seek visitation with her son.

Dated this ___ day of March, 1994.

Hume Law Offices Kathleen E. Hume

National Center for Lesbian Rights Abby Abinanti Barbara J. Cox

By________________________ Kathleen E. Hume State Bar Number 01014488 Attorneys for Amicus Curiae




------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 148---------------------------------------

In the Matter of a Proceeding for Paternity Under Article 5 of the

Family Court Act and for Visitation of

RY R.-Y., a minor,

Thomas S., Petitioner-Appellant,


Robin Y., Respondent-Appellee.






Bobbi C. Sternheim Nancy D. Polikoff Local Counsel for Amici Professor of Law Rochman, Platzer, Fallick, American University Law School Rosmarin & Sternheim 4400 Massachusetts Ave. N.W. 666 Third Avenue Washington, D.C. 20016 New York, NY 10017 202-885-1510 212-697-4090

Abby Abinanti Legal Director National Center for Lesbian Rights

1663 Mission St. Suite 550 San Francisco, CA 94114 415-621-0674

New York County Family Court Docket No. P3884/91 This brief reproduced on recycled paper

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Biserka B. v. Zdenko R., 133 A.D.2d 728, 520 N.Y.S.2d 17 (2nd Dept. 1987)

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 149---------------------------------------

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Boyles v. Boyles, 95 A.D.2d 95, 466 N.Y.S.2d 762 (3rd Dept. 1983)

C.M. v. C.C., 152 N.J. Super. 160, 377 A.2d 821 (1977)

Crane v. Battle, 62 Misc. 2d 137, 407 N.Y.S.2d 355 (Fam. Ct., New York Cty. 1970)

Ettore I. v. Angela D., 127 A.D.2d 6, 513 N.Y.S.2d 733 (2nd Dept. 1987)

Jhordan C. v. Mary K., 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 (1986)

June B. v. Edward L., 69 A.D.2d 612, 419 N.Y.S.2d 514 (1st Dept 1979)

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Sharon GG v. Duane HH, 95 App. Div 2d, 467 N.Y.S.2d 941 (3rd Dept. 1983), aff'd mem., 63 N.Y.2de 859, 482 N.Y.S.2d 270, 472 N.E.2d 46 (1984)

Steven W. v. Martha Andra N., 3 Civ CO12456 (Cal. Ct. App., 3rd Dist. May 6, 1993)

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 150---------------------------------------

Swann v. Schoenfeld, 163 A.D.2d 850, 559 N.Y.S.2d 408 (4th Dept 1990)

Terrence M. v. Gale C., 193 A.D.2d 437, 597 N.Y.S. 2d 333 (1st Dept. 1993), motion for leave to appeal den'd., 1993 LEXIS 4313 (Nov. 22, 1993)

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Diane Cole, The Forms Families Take, CHICAGO TRIBUNE, Aug. 8, 1993 at C4.

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 151---------------------------------------

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Creating New Families, SAN FRANCISCO EXAMINER, June 12, 1989, at A17.

Cullum, Co-Parent Adoptions: Lesbian and Gay Parenting, TRIAL 28 (June 1993).

Suzane Curley, Mothers Courage, NEWSDAY, June 27, 1993 at 39.

William Davis, Books for Kids of Gay Couples, BOSTON GLOBE, Nov. 17, 1990, at (Living Section) 12.

Georgia Dullea, Gay Couple's Wish to Adopt Grows, Along With Increasing Resistance, NEW YORK TIMES, Feb. 7, 1988, Sect. 1, at 26.

R. A. Dyer, Out of Love and Luck, HOUSTON CHRONICLE, May 31, 1992, at C1.

Editor's Note, NEW YORK TIMES, Feb. 3, 1989 at A3.

Ettlebrick, Who is a Parent? The Need to Develop a Lesbian Conscious Family Law, 10 N.Y.L.S.J. HUM. RTS. 513 (1993)

Lillian Faderman, Two Moms are Better than One, LOS ANGELES TIMES BOOK REVIEW, May 9, 1993 at 2.

Anne Taylor Fleming, New Frontiers in Conception, NEW YORK TIMES MAG., July 20, 1980 at 14.

Forum: Gays as Parents, (NEW-ORLEANS) TIMES-PICAYUNE, July 14, 1993 at B4.

Patrice Gaines-Carter, How Am I Going to Deal With Father's Day, WASHINGTON POST, Dec. 21, 1990, at C1.

Gay Parents: Living in Fear, NEW YORK TIMES, Oct. 4, 1993 at A16.


Renee Graham, A Lesbian Parent's Political Awakening, BOSTON GLOBE, June 4, 1993 at 51.

Jean Latz Griffin, The Gay Baby Boom: Homosexual Couples Challenge Traditions as They Create New Families, CHICAGO TRIBUNE, Sept. 3. 1992, at C1.

Jean Latz Griffin, Law Begins to Address Rise in Gay Families,

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CHICAGO TRIBUNE, Sept. 4, 1992, at C1.

Jane Gross, New Challenge of Youth: Growing Up in Gay Home, THE NEW YORK TIMES, Feb. 11, 1991 at A1.

Hagedorn & Marcus, Case in California Could Expand Legal Definition of Parenthood, WALL STREET JOURNAL, Sept. 8, 1989 at B10.

Scott Harris, For This Family Call It Mothers' Day, LOS ANGELES TIMES, May 9, 1993 at B1.

Scott Harris, Two Moms or Dads -- and a Baby, LOS ANGELES TIMES, Oct. 20, 1991, at A21.

Heather's Two Moms, Three Censors, ATLANTA CONSTITUTION, June 27, 1993 at H4.

William Henry, Gay Parents: Under Fire and on the Rise, TIME, Sept. 20, 1993, at 66.

Patricia Holt, A Lesbian Parent's Legal Odyssey, SAN FRANCISCO CHRONICLE (Sunday Review), May 9, 1993 at 1.

Hunter, Lesbian Parents Prove To Be in No Way Inferior, (Letter to the Editor), NEW YORK TIMES, Feb. 13, 1989, at A20.

Barbara Kantrowitz, The Ages of Innocence, NEWSWEEK, Dec. 28, 1992, at 64.

Barbara Kantrowitz and Danzy Senna, A Town Like No Other, NEWSWEEK, June 21, 1993, at 56.

Gina Kolata, Lesbian Partners Find the Means to be Parents, NEW YORK TIMES, Jan. 30, 1989 at A13;

Angela Lau, Lesbian Couples Opt for Babies, SAN DIEGO UNION- TRIBUNE, Nov. 18, 1993 at B1.

Lesbian's Custody Fight on Coast Raises Novel Issues in Family Law, NEW YORK TIMES, Sept. 9, 1984 at 44.

Ellen Lewin, LESBIAN MOTHERS (1993).

Mandell, The Lesbian Baby Boom, NEWSDAY, July 13, 1989, at 8.

David Margolick, Lesbian Child-Custody Cases Test Frontiers of Family Law, NEW YORK TIMES, July 4, 1990, at A1.


April Martin, Lesbian Parenting: A Personal Odyssey, in GENDER IN TRANSITION 249 (J. Offerman-Zuckerberg, ed. 1989).

April Martin, The Planned Lesbian and Gay Family: Parenthood and Children (1989).

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B. McCandlish, Against All Odds: Lesbian Mother Family Dynamics, in GAY AND LESBIAN PARENTS 23 (Frederick Bozett, ed. (1987).

Donna Minkowitz, No Book Can Change a Child's Sexuality(Interview with author Leslea Newman), NEWSDAY, Nov. 30, 1992 at 55.

Leslie Newman, HEATHER HAS TWO MOMMIES (1989).


Obituary of Mary-Helen Mautner, WASHINGTON POST, Aug. 26, 1989, at B4.

O'Connor, Lesbian Urges Therapists to Find `New Voices', WASHINGTON BLADE, Aug. 19, 1988, at 9.

Oprah Winfrey Show (ABC Television Broadcast, Aug. 9, 1990).

Charlotte Patterson, Children of the Lesbian Baby Boom: Behavioral Adjustment, Self-Concepts, and Sex-Role Identity, in CONTEMPORARY PERSPECTIVES ON GAY AND LESBIAN PSYCHOLOGY: THEORY, RESEARCH AND APPLICATION, (Beverly Greene and Gregory Herek, eds., forthcoming 1994).

Charlotte Patterson, Children of Lesbian and Gay Parents, 63 CHILD DEV. 1025 (1992).

Julia Perez, To Beverly, in WE ARE EVERYWHERE 13 (Harriet Alpert ed. 1987).

PHIL DONAHUE SHOW (CBS Television Broadcast, Sept. 19, 1989)


Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 GEO. L.J. 459 (1990).

POLITICS OF THE HEART (Sandra Pollack and Jean Vaughn, eds. 1987)

The Power and the Pride, NEWSWEEK, June 21, 1993 at 54.

Sue Anne Pressley and Nancy Andrews, For Gay Couples, the Nursery Becomes the New Frontier, WASHINGTON POST, Dec. 20, 1992, at A1.

Deb Price, Girl Would Be Orphan If They'd Lost the Battle, (MINNEAPOLIS) STAR TRIBUNE, Jan. 5, 1994 at 4E.

Anna Quindlen, Evan's Two Moms, NEW YORK TIMES, Feb. 5, 1992, at A23.


Cindy Rizzo, A Family Life Just like Yours, NEW YORK TIMES, Aug. 26, 1992 at A21.

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Richard Roth, Gay Have New Opportunites to Have Children, CABLE NEWS NETWORK NEWS, June 5, 1992, Transcript #44-1.

Kevin Sack, Lesbian Loses a Ruling on Parent's Rights, NEW YORK TIMES, May 3, 1991 at B1.

Same Sex Couples Taking Big Step, USA TODAY, Nov. 10, 1993, at 12A.


Seligman, Variations on a Theme, NEWSWEEK, Special Ed., Winter/Spring 1990, at 39.

Alisa Steckel, Psychosocial Development of Children of Lesbian Mothers in GAY AND LESBIAN PARENTS 75 (Frederick Bozett, ed. 1987).

Sherry Stripling, Lesbian Mother's Book Seeks Acceptance For Gay Families, SEATTLE TIMES, June 2, 1993 at E2.

Joseph Sullivan, Court Backs Lesbian's Right to Adopt Partner's Child, NEW YORK TIMES, Aug. 11, 1993 at B5.

Sutton, The Lesbian Family: Rights in Conflict Under the California Uniform Parentage Act, 10 GOLDEN GATE L. REV. 1007 (1980).

David Tuller, Gays and Lesbians Try Co-Parenting, SAN FRANCISCO CHRONICLE, Sept. 4, 1993, at A1.

David Tuller, Gay Co-Parenting Challenges Law on U.S. Family, THE (NEW-ORLEANS) TIMES-PICAYUNE, Feb.10, 1993 at F10.

20/20: I Have Two Moms (ABC Television Broadcast, May 6, 1989)

20/20: Women Who Love Women (ABC Television Broadcast, Oct. 22, 1992).

Two Adoption Cases Go To Appeals Courts, NEW YORK TIMES, April 18, 1993, at 25.

Two Moms, SAN FRANCISCO EXAMINER, June 12, 1989 at A18.

Abigail Van Buren, Lesbian Moms Leave Co-Worker in a Tizzy, CHICAGO TRIBUNE, May 26, 1992, AT C9.


Johnny Valentine, THE DAY THEY PUT A TAX ON RAINBOWS (1992)


Liz Willen, Gays, Too, Value Family, NEWSDAY, Sept. 9, 1992, at 23.

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Liz Willen, Motherhood Sans Dad, NEWSDAY, Aug. 5, 1993 at 15.

Michael Willhoite, DADDY'S ROOMMATE (1990).

Woman Wins Rights to Visits to Child of Lesbian Ex-Lover, NEW YORK TIMES, Nov. 23, 1984, at A27.

Nancy Zook and Rachel Hallenback, Lesbian Coparenting: Creating Connections 89 in POLITICS OF THE HEART: A LESBIAN PARENTING ANTHOLOGY (Sandra Pollack and Jean Vaughn, eds. 1987)Interest of Amici Curiae

The National Center for Lesbian Rights (NCLR), formerly the Lesbian Rights Project, is a non-profit public interest law firm founded in 1977 and devoted to the legal concerns of women who encounter discrimination on the basis of their sexual orientation. NCLR is particularly well-suited to offer amicus assistance to this court, as NCLR attorneys frequently litigate in the area of family law as it applied to lesbians. Most recently, NCLR has participated as an amicus curiae in In re Angel Lace M., arguing in favor of lesbian second-parent adoption, before the Wisconsin Supreme Court; Prescott v. Blume, arguing in favor of upholding a contract between a biological and a non-biological mother, before the California Court of Appeal; and Leckie v. Voorhies, arguing to uphold a trial court's denial of paternity to a semen donor, before the Oregon Court of Appeal.

NCLR attorneys have also written numerous publications on the rights of lesbians to preserve and protect the integrity of their chosen families free from unwarranted intrusions based on bias and stereotypes. These publications include: Lesbian and Gay Parents: A Legal and Psychological Perspective (1989); Lesbian Mother Litigation Manual (2nd ed. 1990); Lesbians Choosing Motherhood: Legal Implications of Donor Insemination and Co-Parenting (1991); Preserving and Protecting the Families of Lesbians and Gay Men (1986); Recognizing Lesbian and Gay Families: Strategies for Extending Employment Benefit Coverage (2nd ed. 1992); and Sexual Orientation and the Law (Clark Boardman, 1985, 1987, 1989).

The Lambda Legal Defense and Education Fund, Inc. (Lambda) is a not-for-profit corporation based in New York which engages in impact litigation in all substantive areas affecting the rights of lesbians and gay men. Founded in 1973, Lambda is the oldest and largest national legal organization devoted to these concerns and has appeared as counsel or amicus curiae in hundreds of cases in state and federal courts on behalf of lesbians and gay men who have suffered discrimination because of their sexual orientation. Through its litigation and community education in many states, Lambda has challenged limitations to the concept of "family" which work to exclude or fail to protect the families of lesbians and gay men. Lambda is committed to gaining legal recognition for lesbian and gay couples and families, and eradicating the injustices that result from the lack of such recognition.

Gay and Lesbian Advocates and Defenders (GLAD), a

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Massachusetts non-profit, public interest law firm founded in 1978, represents gay men and lesbians, and persons with HIV infection in impact litigation throughout New England. This case raises issues of historic and present interest to GLAD: the rights of both parents and children in fundamental relationships.

GLAD is well suited to assist this court by virtue of its participation as counsel or amicus curiae in similar cases involving adoption: Adoption of Tammy, 416 Mass. 205 (1993); unmarried couples: Reep v. Department of Employment and Training, 412 Mass. 845 (1992); foster care: Babets v. Secretary, Suffolk County Superior Court, 1986; and child custody Bezio v. Patenaude, 381 Mass. 563 (1983).

Center Kids, founded in 1988, is the Family Project of the Lesbian and Gay Community Services Center of New York City, a non-profit, tax-exempt organization. With more than 1,400 member families in the New York metropolitan area, Center Kids is the largest regional lesbian and gay parenting organization in the United States. Approximately 80 percent of the adult members of Center Kids are lesbians and 20 percent are gay men. The majority of families headed by lesbians have either conceived children through alternative insemination or are in the process of attempting to conceive children through that method. The adult male members include men who have become parents through adoption or foster care placements, as well as men who have been insemination donors. Although there are a significant number of single parents in Center Kids, most families are headed by lesbian or gay life partners who are jointly parenting children. Center Kids sponsors ongoing support groups, monthly discussion groups, and two or three all-day workshops a year on topics that include donor insemination.

Center Kids is frequently consulted by New York City and New York State government officials on numerous family issues, including adoption, foster care, education, and domestic partnership registration. Center Kids has also participated as amicus curiae in court cases involving the rights of lesbian and gay parents and their children, including Alison D. v. Virginia M. in the Appellate Division, Second Department and the New York Court of Appeals.

The Gay and Lesbian Parents Coalition International (GLPCI), formerly the Gay Fathers Coalition, was founded in 1979 and is a non-profit tax-exempt advocacy and support group for gay father and lesbian mothers, their partners and children, and prospective parents. GLPCI has over 60 dues-paying member chapters in the United States, Canada, England and Norway, and 2400 individual members, the vast majority of whom live in the United States. GLPCI communicates with more than 235 other lesbian and gay parenting organizations around the world. The membership of GLPCI is equally divided between men and women. Singly and as couples, GLPCI members have become parents through donor insemination, adoption, surrogacy, foster parenting, and through prior heterosexual relationships. GLPCI distributes its newsletter to over 8,000 individuals and organizations, provides a speakers service, helps form local support groups, and holds as

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annual conference on gay and lesbian parenting.

GLPCI is committed to insuring that lesbian and gay parents and their children are fully protected under the law. GLPCI has participated as amicus curiae in court cases, including In re Adoption of Charles B, concerning gay adoption, in the Ohio Supreme Court; and Alison D. v. Virginia M., in New York, and Nancy S. v. Michele G., in California, concerning rights of non- biological mothers.

Statement of Facts

This brief relies upon the findings of fact contained in the trial court's Decision and Order, dated April 13, 1993. An edited version is reported at 599 N.Y.S.2d 377 (Fam. Ct. 1993).

Summary of Argument

For more than a decade, lesbians and gay men have been raising children without first bearing those children within the context of a heterosexual relationship. This case concerns the future of Ry R.-Y., a child born into one of the earliest such planned families. Given the recent prevalence of such families, courts will be increasingly called upon to apply common law doctrine to this new family form. Amici urge that, in applying the relevant common law principles to Ry's family, this court understand and respect both the context within which her family was created and the family's specific structure.

Amici have consistently advocated that courts should apply certain overriding principles to cases involving planned lesbian and gay families. Three such principles are: 1) a biological connection is neither a necessary nor a sufficient basis for establishing parenthood; 2) agreements, particularly when coupled with an ongoing course of conduct, establishing the intent of a biological parent either to share parenting with another person or to relinquish parental rights should be upheld; and 3) a child's experience of his or her family, which may include two, less than two, or more than two parents, is critical to any legal analysis. As discussed below, estoppel doctrine allows this case to be decided in a manner consistent with the above principles.

Robin Y. and Sandra R. constructed a planned family with two children, Ry and Cade, born two years apart following insemination with the semen of two different known donors, each of whom agreed that he would not have the rights and responsibilities of parenthood. In the R.-Y. family, as in most planned lesbian and gay families, biology alone does not determine the family relationships. As the trial court found, Ry has two mothers and a sister, even as she knows that neither Sandra R. nor Cade is biologically related to her.

It is common in planned lesbian families for a child to know the biological facts of her origin without ascribing parental status to the semen donor. Especially in the context of an agreement that the donor will be known to the child but will not have the rights and responsibilities of parenthood, and an ensuing course of conduct consistent with that agreement, a child need not consider her biological father a parent. Indeed, after

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evaluating Thomas S.'s contacts with Ry, her sister, and her mothers within the context of Ry's specific family structure, the court below found that Ry did not ever view Thomas S. as a parent, that "in [Ry's] family, there has been no father." Appellant's brief is fatally flawed because it denies that a child can make such a distinction.

Estoppel doctrine is designed to protect a child from the "lasting trauma" of an order of paternity which would destroy her image of her family. The trial court correctly applied the doctrine when it found that Thomas S. agreed to forego parental rights and engaged in a course of conduct consistent with that agreement, and that Ry thereby developed her identity as a member of a family with two mothers and a sister. Under those circumstances, estoppel appropriately prevents Thomas S. from obtaining an order of paternity that would be contrary to Ry's best interests.

Appellant's brief acknowledges that estoppel is available to defeat a biological father's paternity claim. It attempts to avoid defeat of Thomas S.'s claim, however, by arguing that estoppel could be properly applied only if Ry were the "legitimate" child of her mother and another father. Such a cramped reading of the case law should be rejected, as it would deny all children born into lesbian families, who can never be "legitimate" in the traditional sense of that word, the protection and stability that the estoppel doctrine affords children in heterosexual families.

The presence of "another father" is not a prerequisite for application of estoppel doctrine because estoppel allows a court to preserve a child's experience of her family, and that experience need not include a male parent. The argument that a child must have a father, and that if she does not, no matter what relationships exist, no matter what the child's identity, or the course of conduct of the parties, or the harm to the child, estoppel cannot protect a child from an order of paternity, would render the lives of children intentionally raised outside the two-parent heterosexual model unworthy of legal protection.

The court below found that "a declaration of paternity would be a statement that [Ry's] family is other than what she knows it to be and needs it to be." Although estoppel has not previously been applied when the "family that [the child] knows it to be" is a lesbian family, amici urge this court to uphold the trial court's application of the doctrine to protect children in planned lesbian and gay families.


This case concerns the future of a child born into a "planned lesbian family." A planned lesbian family is one in which a lesbian deliberately chooses to raise a child without being married or heterosexually involved. While lesbians and gay

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men have always raised children born when they were married or in heterosexual relationships, planned lesbian and gay families are a relatively recent, but well-documented, phenomenon. As one psychologist has written:

[T]he 1980's have witnessed the emergence of an entirely new family structure, unparalleled in human history. For the first time ever in any society we know about, gay people in large numbers are setting out consciously, deliberately, proudly, openly, to bear and adopt children.

The planned lesbian or gay family does not have one fixed structure. A lesbian or a gay man may be a single parent; a lesbian or gay couple may decide to raise a child jointly; or a single lesbian or gay man may choose to co-parent with one or more people. A planned lesbian or gay family may be formed in a number of ways, including public, private, or international adoption; birth to a lesbian following donor insemination from a sperm bank, an unknown sperm donor, or a known sperm donor; or birth to a surrogate mother who relinquishes the child to the gay biological father. Lesbians and gay men also serve as foster parents.

This case concerns one common type of planned lesbian family --a lesbian couple in a long-term committed relationship, who choose to be equal parents to children born as a result of insemination with semen from known donors. Contrary to the assertion contained in the brief amicus curiae filed by two San Francisco area gay parenting groups, choosing a known donor must not be equated with choosing an additional parent or a "legal non-custodial father" for the child. An anthropological study of lesbian and gay families in the San Francisco area found that "...a donor's continued involvement in a child's future was never assumed. Whether an individual donor would identify as a parent or participate in childrearing had to be determined on a case-by- case basis." The anthropologist found that

most [lesbians and gay men] did not consider a sperm donor to be intrinsically a parent, much less a partner, in relationship to a child conceived through alternative insemination; unless the donor shared parenting responsibilities, his semen tended to be spoken of simply as a catalyst that facilitates conception.

As amici document below, section I B, infra, many lesbians create families in which a child knows the semen donor who is her genetic father but does not consider that donor to be a parent. This distinction is possible specifically because children in lesbian families are often raised to consider biology neither a necessary nor a sufficient determinant of family relationships. Certainly that was true in this family. Ry has two mothers and a sister, even though she knows that neither Sandra R. nor Cade is biologically related to her.

The fatal flaw in appellant's brief is its failure to acknowledge that a family, including the children, can make such a distinction. Appellant repeatedly characterizes his

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relationship with Ry as that of a "non-custodial parent" without placing his contacts with Ry and Cade and their mothers in the context within which Ry experienced them. Amici urge this court, in deciding this case, to understand Ry's family and to recognize that a known donor is not always a child's parent.

A. The prevalence of planned lesbian and gay families has been extensively documented, and courts must adapt existing legal principles to serve the best interests of children in such families.

To adapt existing legal principles to serve the best interests of children in planned lesbian and gay families, this court, and all courts, must understand the extent and nature of such families. Although few such families existed when Robin Y. and Sandra R. bore their children, the increasing prevalence such families has been amply documented in recent years.

In 1990, the director of the National Center for Lesbian Rights estimated that five to ten thousand lesbians had borne children into lesbian families. In 1989, the first children's book whose central character is a child born of donor insemination to a lesbian couple sold out of its initial printing of 4000 copies before it was even published. The first book designed exclusively to assist lesbians in making the decision whether and how to become parents, published in 1985, is now in its fourth printing. A 1985 study of nearly 2000 lesbians reported that approximately one-third wanted to "become mothers either through adoption or artificial insemination." Pacific Reproductive Services, a San Francisco sperm bank, reported last year that more than 100 lesbians use their services each month. And on March 1, 1993, a pediatric clinic specializing in serving children of lesbian and gay parents opened at the University of California at San Francisco.

Although few resources existed for lesbians wanting to raise children at the time that Sandra R. and Robin Y. conceived Cade and Ry, many resources now advise lesbians in similar situations. Two videos were produced in the mid 1980's. A number of books have been written since 1985, including those addressing the decisions that lesbian parents and prospective parents face and those containing personal narratives by lesbians who have chosen to be parents. Amicus National Center for Lesbian Rights has written a manual of legal information, which it distributes.

Conferences and other programs, either sponsored by ad hoc groups or by ongoing projects of lesbian and gay health centers, have been and regularly continue to be held in many cities. Amicus Center Kids, a project of the New York Lesbian and Gay Community Services Center, has 1400 member families, making it the largest regional gay and lesbian parenting organization in the country. Center Kids holds conferences, workshops, and support groups, and provides information and advocacy for and on behalf of lesbian and gay parents and their children.

In recent years, support groups for lesbian and gay families have developed all over the country, even in isolated areas.

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Amicus Gay and Lesbian Parents Coalition International (GLPCI) has over 60 member chapters and 2400 individual members, and it corresponds with 235 other groups of lesbian and gay parents and their children. GLPCI's annual convention features a children's conference, for children 6 to 12 years old, and a teen conference hosted by Children of Lesbians and Gays Everywhere (COLAGE), a group of teenagers and adults raised by lesbian or gay parents.

The New York Times first mentioned donor insemination of lesbians in 1980. In 1984, it covered one of the first lawsuits ever to raise a question about the parental status of two lesbians raising a child together. In 1988, it addressed adoption by lesbians and gay men. Its first detailed description of planned lesbian families in which children were born through donor insemination appeared in 1989. The next year a front page article detailed the issues that arise when the adults in such a family separate, and the first such case in New York was reported by the Times in 1991. In 1992, the opinions page of The New York Times twice brought two mother lesbian families to the attention of its readers, and in 1993 it featured an editorial condemning the use of a parent's sexual orientation as a factor justifying denial of custody. Also in 1993, the Times reported on cases raising novel questions of law in planned lesbian families, and reviewed, in a front page story, the increased visibility of gay and lesbian parents.

Within the last five years, both television and other mainstream print media have documented life in planned lesbian families. One extensive article included a reference to the R.- Y. family. The reporter wrote that

In the New York City neighborhood of Greenwich village, Sandra Russo and Robin Young are rearing Cade, 13, and Ry, 11, their respective biological daughters via artificial insemination. The children's nurturing home life and studied imperviousness to teasing have turned around their peers. Says Ry: "After a while they get it. Some kids are a little slow."

In addition to lengthy coverage in Time, supra, Newsweek, and The New York Times, supra, articles on planned lesbian and gay families have appeared in USA Today, The Boston Globe, The San Francisco Examiner, The San Francisco Chronicle, The Los Angeles Times, The Atlanta Constitution, The Washington Post, Newsday, The Chicago Tribune, The Arizona Republic, The San Diego Union-Tribune, The (New Orleans) Times-Picayune, The Houston Chronicle and The Wall Street Journal. Television programs featuring planned lesbian and gay families have included 20/20, Phil Donahue Show, Oprah Winfrey Show, and Cable News Network News. And in a "Dear Abby" column in 1992, Abigail Van Buren expressed to a skeptical letter writer her unqualified support for two-mother lesbian families.

In 1993, Random House published Family Values: Two Moms and Their Son, the first full-length book issued by a major publishing company detailing life in a family with two lesbian

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mothers and a child born as a result of donor insemination. Reviews of the book were carried in several major newspapers.

In recent years, a body of children's literature has featured children with lesbian and gay parents. Two such books, Heather Has Two Mommies and Daddy's Roommate were recommended to teachers in the proposed Children of the Rainbow curriculum for the New York City Public Schools. Heather Has Two Mommies was also the subject of contention in some libraries around the country. Children with two mothers or two fathers are prominently featured in two collections of fairy tales, The Duke Who Outlawed Jelly Beans and The Day They Put a Tax on Rainbows, and the imprint Alyson Wonderland plans to introduce "board books" for toddler-age children with lesbian or gay parents during 1994.

Scholarly literature in both law and mental health demonstrates substantial interest in the novel questions raised by the proliferation of planned lesbian and gay families. Dozens of articles have appeared in law journals since 1980 examining such legal issues as access to unknown donor insemination, rights of known donors and nonbiological mothers, availability of joint or second-parent adoptions, and the status of a legally unrecognized parent upon the death of the biological mother. A few studies of the psychological development of children born into planned lesbian families have been published, and a large longitudinal study of such families began in the mid-1980's.

Sandra R. and Robin Y. began their family before much written or documentary material was available to lesbians and gay men about planning families. Indeed, they were among the first wave of women deliberately conceiving children through donor insemination to raise together as equal parents. As the considerable media interest in the last five years substantiates, this family form is increasing, and proper application of common law principles requires that courts understand such families without reference to the assumption that every child has one mother and one father.

B. The family structure resulting when semen donors are known to children but do not function as parents is common among planned lesbian families.

Robin Y. and Sandra R. chose to construct a planned family with two children born following insemination with the semen of two different donors. Those donors agreed that they would not have parental rights and responsibilities towards the children, although they would be known to them. The burgeoning literature and press treatment illustrate that planned lesbian and gay families are frequently structured in such a fashion, with a known donor who is not one of the child's parents.

Dr. April Martin's comprehensive treatment of gay and lesbian parenting demonstrates that lesbians commonly choose known donors without expecting those men to thereby become parents to their children. She distinguishes between "donor" and "father." The term "donor" encompasses a man who is known as the biological father but does not participate in raising the

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child. By contrast, the term "father" refers to a true parent -- someone involved in the child's care and in decision making. As she describes, a lesbian couple may want the donor to be known to the child but still not want him to have "a parental involvement. That is, they intend that he will never be in a position to make decisions for their child, to contribute money to the child's upbringing, or to actually do the work of care- giving."

Dr. Martin further addresses the concerns of men who may be interested in being known donors. She asks such men to consider in advance whether they will be able to follow through on their intentions to be known to the child without having control over the child's life. For those who feel uncomfortable with having no decision making authority over the child, she suggests that they choose to be fathers, not donors, and that they make a coparenting arrangement which would provide a full share in the child's upbringing.

A lesbian couple planning a family often balances their belief that knowledge of and some contact with the donor is in the best interests of their child against the fear that a known donor might try to gain parental rights in court. Thus, the literature describes the careful search that lesbians undertake, as did Robin Y. and Sandra R., for men with common values whom they can trust.

The relationships between children and known donors, as described in personal narratives and newspaper accounts, make clear that the distinction between biological fatherhood and parenthood is common. One man spends every Friday afternoon with his child. "He describes himself as a father, but not a parent." Another plays a "godfather or uncle type of role" towards the child. An Oakland, California mother of a nine- year-old describes a situation similar to the present case; she did not want the donor to be a parent to the child but she did want to preserve the possibility of future contact. Her child occasionally spends time with the biological father. A Chicago Tribune article describes two families with known donors who do not function as parents. In one, the child knows that the man is her biological father, that "he helped make her," and although he visits her he is not involved in raising her. In the other, the donor agreed that he would have no parenting rights or responsibilities, but would have contact with the child. In a family in which a gay male couple is raising two children born following insemination of two different biological mothers with the semen of one of the men, the biological mothers exchange cards and pictures with the family and visit once a year. In a San Diego-area family, the donor agreed to waive his legal rights, but will be, along with other men, a male role model for the child. In an Oregon family, a semen donor waived his parental rights but had limited visits of short duration throughout the five-year-old child's life. His subsequent petition for paternity and court-ordered visitation was denied by a court.

When there are two children in a family, the use of two

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different sperm donors, as was chosen by Robin Y. and Sandra R., supports the family model that differentiates biology and parenthood. One lesbian mother describes the dynamics as follows:

Susan and I felt strongly that we did not want our two children to have the same donor. We were concerned that if our children have the same sperm donor, he might become a great deal more psychologically important in our lives than we intended. The children would be biologically related to each other through the sperm donor, deriving from the donor a link that we could never give them. It felt more comfortable, then, to have different donors, and let our children's primary ties to each other be based on our love for them and their love for each other.

C. This court should apply existing legal principles within the context of this specific planned lesbian family; to do otherwise would invalidate this family and destabilize the lives of children in all similar families.

Amici urge this court to interpret legal principles to protect both the integrity of planned lesbian and gay families and the best interests of children within such families. To do this, the court must appreciate the context within which the particular family was created and must understand what the family looks like from the inside, including specifically from the perspective of the children. In this case, as demonstrated in Section III, infra, established legal doctrine supports amici's position.

Several overriding principles should be applied in cases involving planned lesbian and gay families. Three of the relevant principles amici advocate are: 1) a biological connection is neither a necessary nor a sufficient basis for establishing parenthood; 2) agreements, particularly when coupled with an ongoing course of conduct, establishing the intent of a biological parent either to share parenting with another person or to relinquish parental rights should be upheld; and 3) a child's experience of his or her family, which may include two, less than two, or more than two parents, is critical to any legal analysis. Amici and numerous groups of lesbian and gay parents have consistently argued that biology alone does not determine parenthood and that parenting agreements made in the context of planned lesbian and gay families should be encouraged.

Appellant's brief takes a different approach. It asserts that the trial court was "distracted" by the intent of the parties at the time of the insemination and by the non- traditional family structure involved in this case. Brief of Petitioner-Appellant at 28. Amici believe, to the contrary, that it was proper for the court to credit the parties' intent at the time of insemination, in addition to their subsequent, consistent course of conduct, and then to apply the governing legal principles, namely estoppel doctrine, in the context of Ry's specific, non-traditional, family structure. In arguing that these two critical facts -- the intent of the parties and the nature of a planned lesbian family -- are mere "distractions,"

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appellant violates Ry's reality and risks obliterating the reality of the thousands of children being raised in planned lesbian families.

In attempting to persuade this court that Thomas S.'s relationship with Ry was parental in nature, Appellant's brief recites his various contacts with her. It fails, however, to place those contacts in the context of Ry's family structure. This has the effect of aggrandizing Appellant's relationship with Ry and concomitantly obscuring the planned family structure into which Ry, with Thomas S.'s full consent and agreement, was born.

For the first three years of Ry's life, when she was developing her identity as a member of a family with two mothers and a sister, she did not know that Thomas S. existed. In examining the development of Ry's family, those three years cannot be ignored. When Ry and Cade then met Thomas S., a relationship developed among Thomas S., Sandra R., Robin Y., and the girls, together. Sandra R., Robin Y., and the girls, together, also developed a relationship, with Jack Kolb, Cade's biological father. Sandra R. and Robin Y. reiterated to Thomas S. the importance of him treating both girls equally, and he agreed to do so. Thomas S. never had an independent relationship with Ry, yet that is what he seeks in this litigation.

The fact that this litigation is about Ry alone, not Ry and Cade together, does violence to the family structure that Robin Y. and Sandra R. created and that Thomas S. agreed to honor. In this family, Ry and Cade are sisters. They have two parents who are both mothers. They have extended family on both sides who treat them as sisters. They do not consider themselves step- sisters or half-sisters, with certain relatives who are part of the family of one but not the other; they consider themselves full sisters. Thomas S. had a relationship with Ry and Cade together, as sisters, as did all people who came in contact with this family, including Jack Kolb.

Ry was raised from birth in a planned family, a family in which relationships were not determined by biology. As amici have demonstrated, this type of family, in which a semen donor is identified as the child's biological father but never considered a parent, is common. It is within the context of this type of family, and specifically the two-mother, two-child family in which Ry has lived for her entire life, that amici urge this court to decide this case.


While no New York case has considered the rights of known semen donors in contested paternity actions, the cases that have been decided in other jurisdictions support the decision of the trial court below. Those cases stand for the principle that a known semen donor is entitled to a hearing to determine the intent of the parties at the time of the insemination and the course of conduct of the parties after conception. Thomas S.

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received such a hearing. Given the factual findings of the trial court, Thomas S. would not have been entitled to an order of paternity under any of the existing cases.

In the cases in which the donor was successful in obtaining parental rights, two factors were significant. First, the donor asserted parental rights when the child was an infant. It is conceded that did not occur in the instant case. Second, the donor alleged an agreement with the mother to function as a father to the child and/or a course of conduct consistent with such agreement; the mother in each of the cases disputed the existence of such an agreement and disputed the course of conduct. The donor prevailed only when, after a hearing, his version of the facts was accepted. A. A semen donor who is known to the child can be denied an order of paternity.

In an Oregon case with factual similarity to the case at bar, the donor was denied a paternity order. Leckie v. Voorhies, Case No. 60-92-06326 (Cir. Ct., Lane Cty. 1993). The court applied legal doctrine consisting of a statute stating that semen donors have no parental rights and an earlier appellate decision holding that such a statute would be unconstitutional if it barred parental rights in a donor who had an agreement with the recipient to assume the rights and responsibilities of parenthood.

Mr. Leckie had agreed to relinquish all parental rights. The agreement afforded him limited visitation with the child born of the insemination, at the convenience of the mother and her partner, and he agreed to an equal amount of visitation with Ms. Voorhies's four-year-old child who was not biologically related to him. The mother and her partner stated in the agreement that they were happy to have the donor in their lives "not as a father, but as a good male role model for both their children." When the child was three years old, the donor reconfirmed his intentions by signing an amended agreement which again stated that he was relinquishing all parental rights, but which clarified six hours a month of visitation. As a result of the donor's behavior during a visit in March, 1992, the mother discontinued his visitation, and the donor filed a paternity action.

The mother filed a motion for summary judgment based upon the Oregon statute and McIntyre, alleging that the donor was absolutely barred by statute and that such bar was constitutional unless the donor could establish that he and the mother agreed that he would have the rights and responsibilities of parenthood.

The court granted the motion.

The donor was subsequently denied visitation under a separate Oregon statute because he failed to show that court- ordered visitation would be in the best interests of the child. The donor alleged, among other things, that the child knew he was her father, that he had spent much time with both children, that both children called him "dad," that both children thought of his mother as their grandmother, and that he had made substantial

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financial contributions to the children. The court, after finding the mother to be an extremely credible witness, found that

[the donor's] relationship with the children was similar to those the children had with several adults. There was no substantial difference in how the children related to [the donor], as opposed to other adults familiar to the children, except that they had known him longer and so perhaps were slightly more familiar. Decision at 3-4. The court further found that

[The donor's] status in these children's lives, taken in best light, raises him only to the level of a secondary attachment. His own description of his relationship does not rise beyond that of a child care provider, even an excellent child care provider. It is not essential for the best interests of children to maintain contact with his or her biological parent. Decision at 4.

Leckie is instructive in the case at bar because the semen donor was known to the four-year-old child and had had some contact with her. The fact that the donor was known to the child, and that she knew him to be her biological father, was not sufficient to confer upon him the rights and responsibilities of parenthood, in the absence of an agreement that the semen donor would retain parental rights and responsibilities, and in the absence of a relationship which was parental in nature between the donor and the child.

B. Thomas S. received a hearing to determine the intent and subsequent course of conduct of the parties; nothing more is required under the law of any jurisdiction.

All of the cases that have disposed of paternity actions brought by known semen donors, in various jurisdictions and under a variety of statutory and common law schemes, are consistent with two of the principles enunciated by amici, specifically that biology is not a sufficient basis for establishing parenthood and that agreements to forego parental rights should be upheld. See p. 28, supra. Under the case law, a semen donor's biological connection entitles him to a hearing to determine the intent of the parties and, where relevant, the course of conduct. No court has based a finding of paternity on biological connection alone. Each court has considered the intent of the parties. Where there has been a course of conduct, it, too, has been considered. Thomas S. received a hearing at which both intent and course of conduct were considered. Having found that Thomas S. agreed to forego the rights and responsibilities of parenthood and engaged in a ten-year course of conduct consistent with that agreement, the trial court's denial of his paternity petition is consistent with existing case law.

The first case that addressed the parental rights of a known semen donor is also the least pertinent, as it did not involve the deliberate creation of an alternative family structure. C.M. v. C.C., 152 N.J. Super. 160, 377 A.2d 821 (1977). The parties were in a "dating" relationship and were contemplating marriage

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at the time of the insemination, and the court relied in part on this in reaching its decision. The mother testified that she intended the sperm donor to be only a visitor in her home, while the sperm donor testified that he assumed he would act as a father. The court found that the sperm donor fully intended to assume the responsibilities of parenthood and that the evidence did not support the mother's contention that the sperm donor had waived his parental rights.

In the case at bar, the court found that Thomas S. was a semen donor who agreed to forego both the rights and the responsibilities of parenthood and that he acted consistently with that agreement over a ten year period. C.M. v. C.C. does not stand for the proposition that under such circumstances a donor must be awarded an order of paternity.

In Jhordan C. v. Mary K., a semen donor successfully sued for paternity of a child who was nine months old when the action was commenced. 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 (1986). The statute extinguishing parental rights when a semen donation occurs through a licensed physician was not applicable because the parties had conducted the insemination without a doctor. The court then examined the intent and conduct of the parties.

In Jhordan C., the court found "no clear understanding" that the donor would have no parental relationship with the child. Id. at 536. Indeed, the court found that "the parties' conduct indicates otherwise." Id. That conduct consisted of the social relationship that developed between the mother and the donor; the mother's failure to object to the donor's collection of baby equipment or to his creation of a trust fund for the child; and the monthly visits the mother permitted between the donor and the child. Id. The semen donor alleged that the mother agreed he would care for the child as often as two or three times a week, although the mother denied such an agreement. 224 Cal. Rptr. at 532.

The court in Jhordan C. further dismissed the argument that a paternity order would infringe upon the family autonomy of the mother, her co-parent and the child by finding that the donor "was not excluded as a member of [the child's] family, either by anonymity, by agreement, or by the parties' conduct." Id. Affirmance of the trial court's ruling that the donor was the child's legal father was based upon both statutory interpretation and the factual finding that "the parties by all other conduct preserved [the donor's] status as a member of [the child's] family." Id. at 537-8.

In a subsequent California case, Steven W. v. Martha Andra N., 3 Civ CO12456 (Cal. Ct. App., 3rd Dist., May 6, 1993), a semen donor filed for paternity of an infant child, and the court, as in Jhordan C., ruled that the failure to use a licensed physician rendered the statute inapplicable. The court then addressed the other arguments made by the mother and her life partner.

The women specifically argued that the donor should be

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estopped from asserting paternity. They maintained that they had selected him as a donor because he respected their relationship; that they informed him he would have no financial or emotional responsibilities for the child; that he never stated that he wanted involvement or visitation rights with the child; and that they would not have selected him as a donor if they had known he wanted parental rights. The donor testified to a radically different set of facts, indicating his consistent expression of interest in being involved as the child's father. The court found that the mother had not met her burden of proving estoppel, that the women did not clearly communicate that the donor would be relinquishing all parental rights, and that the women had failed to ascertain what the donor meant when he informed them that he wished to be involved in the child's life.

Taken together, these two cases support the proposition that, in the absence of a controlling statute, both estoppel and preservation of family autonomy are arguments that may defeat a semen donor's paternity application in California. Under Jhordan C., in determining who constitutes a child's family, a known semen donor may, by agreement or conduct, be excluded. The arguments opposing a paternity determination failed in the above cases because they were not supported by the facts as found by the trial courts. In the instant case, however, the trial court found both that the elements of estoppel had been proven and that Ry's family consisted of her two mothers, Robin Y. and Sandra R., and her sister, Cade. Given these factual findings, denial of Thomas S.'s petition for an order of paternity is consistent with the two California cases.

In In re R.C., the Colorado Supreme Court ruled that a statute extinguishing the parental rights of semen donors was not applicable to known donors and recipients who agreed that the donor would retain parental rights. 775 P.2d 27 (Colo. 1989). As a result of the court's interpretation of the statute, the case was remanded for a hearing on the intent of the parties at the time of the insemination. In that case the semen donor filed a paternity action when the child was 10 months old, alleging both an agreement that he would function as a father to the child and a course of conduct consistent with that agreement. The mother disputed all of the allegations. Here, Thomas S. received a hearing and the court found both that he agreed at the time of the insemination not to assert parental rights and that the course of conduct for the ensuing decade was consistent with that agreement.

Similarly, under Oregon law, a semen donor is not precluded by statute from asserting parental rights if he and the recipient agree that he will be a parent. McIntyre v. Crouch, supra, note 83. Thus, the intent of the parties governs. The McIntyre action was filed when the child was two months old, and the impact of the appellate decision was to require a hearing on the disputed facts concerning the parties' intent. As previously discussed, see section IIA, supra, in a subsequent Oregon case applying both the statute and the principles established in McIntyre, a semen donor was denied an order of paternity to a four-year-old child. Leckie v. Voorhies, supra. In the instant case, Thomas S.

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received a full hearing, and the court found that he did not intend by his semen donation to have the rights and responsibilities of parenthood.


The biological father of a child born to a woman who is not his wife is not automatically entitled to an order of paternity. "Case law recognizes that the results of blood tests can be rendered irrelevant by the defense of equitable estoppel." Terrence M. v. Gale C., 193 A.D.2d 437, 597 N.Y.S. 2d 333 (1st Dept. 1993), motion for leave to appeal den'd, 1993 N.Y. LEXIS 4313 (Nov. 22, 1993). Courts have liberally applied estoppel doctrine to preserve the child's experience of his or her family, even when that experience is inconsistent with biology. As one court applying estoppel to defeat the claim of a biological father stated, "we would be remiss if we failed to note that the inevitable effect of destroying the child's image of her family would be catastrophic and fraught with lasting trauma." Ettore I. v. Angela D., 127 A.D.2d 6, 513 N.Y.S.2d 733, 739 (2nd Dept. 1987).

In other words, in New York, biology is not destiny. For no one is this a more salient principle that for the growing number of lesbian and gay families, for whom "family planning" necessarily signifies creation of a family by plan and agreement rather than via biology alone.

The case law does not support appellant's interpretation that application of the estoppel doctrine is limited to cases in which a finding of paternity would brand a child "illegitimate." Such a cramped reading of the case law would preclude many children from benefitting from the security the estoppel doctrine affords, and would preclude all lesbian mothers from invoking estoppel to protect the integrity of their families. A child born into a lesbian family, whether consisting of a single lesbian mother or two lesbian mothers, can never be "legitimate" in the traditional sense of that word. If appellant's argument were to prevail, every lesbian mother who conceived through use of semen from a known donor would be vulnerable to a paternity challenge. This would be true regardless of the agreement and course of conduct of the parties or the emotional impact on the child of eradicating her sense of security in her family.

Appellant's brief contains the assertion that the trial court's denial of his paternity petition amounts to a "lesbian exception" to domestic relations law. Brief of Petitioner- Appellant at 70. It is appellant, however, who seeks to create a "lesbian exception." Appellant's brief acknowledges, as it must, that estoppel is available to defeat a paternity claim made by a biological father. By arguing that this doctrine should only be used when a child's "legitimacy" is at stake, appellant would make estoppel unavailable to children raised in lesbian families.

Amici believe that legal doctrine designed to protect the stability of children in conventionally structured families must be made available to protect the stability of children in lesbian

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families, and that no "lesbian exception" to the applicability of estoppel doctrine should be created by this court.

A. Estoppel is properly applied to preserve a child's experience of her family and is not limited to situations in which a child's "legitimacy" is at stake.

Contrary to the interpretation contained in appellant's brief, in the many cases in this state concerning paternity, it is the child's family experience, not the child's "legitimacy," that the courts have sought to protect when applying the estoppel doctrine. When those two factors converge, some opinions have addressed both, but no case supports the proposition that preserving a child's "legitimacy" is an element of equitable estoppel.

Indeed, in the most recent Appellate Division opinion estopping an alleged biological father from asserting paternity, which came from this Department, the court affirmed a trial court decision that explicitly rejected the argument that estoppel can be used only to preserve a child's "legitimacy." Terrence M. v. Gale C., supra, aff'g Board v. Plank, 150 Misc. 2d 743, 570 N.Y.S.2d 270 (Fam. Ct., New York Cty. 1991). The court applied the doctrine to defeat the paternity claim concerning a 17 year old, born out of wedlock, who had known another man (since deceased) as her father. In affirming, the appellate court noted the adverse emotional impact that a paternity determination would have upon the child, and found that the trial court "properly invoked the doctrine of equitable estoppel to preserve existing ties in the face of an outsider's threatened intrusion." 597 N.Y.S.2d at 334.

In cases in which a child's "legitimacy" has been preserved by application of estoppel, the fact of preserving the child's "legitimacy" has not been necessary to the result. When biological fathers have been estopped from obtaining paternity orders for children born to married women, estoppel has turned upon the course of conduct of the parties, especially the man seeking the paternity order, and the resulting relationships established with the child. Specifically, when a man who has reason to know that he is the biological father of a child permits a child to develop family relationships which would be disrupted by an order of paternity, then he can be estopped from obtaining such an order.

Thus, in Purificati v. Paricos, 154 A.D.2d 360, 545 N.Y.S.2d 837 (2nd Dept. 1989), the biological father of a three year old was living at the time of the action with the child's mother. He was equitably estopped from claiming paternity because he had waited more than three years before filing a paternity action. During that time, the child developed a parent-child relationship with the mother's husband, and, even after the mother and her husband divorced, the former husband had regular visitation with the child and paid child support. The child considered the former husband's mother to be his grandmother and had a sibling relationship with a child who was indisputably the child of his mother and her former husband. Although the court made reference to the concept of "branding the child illegitimate," this was

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neither an element of estoppel nor necessary to the court's result. Rather, the estoppel was based upon the biological father's "lengthy acquiescence" in the development of a parent- child relationship between the child and the mother's husband. 545 N.Y.S.2d at 839.

While Ettore I. v. Angela D., 127 App. Div. 6, 513 N.Y.S.2d 733 (2nd Dept. 1987) also referenced the notion of "illegitimacy," the critical facts in that case were the lapse of time before the petitioner filed a paternity action and the existing parent-child relationship between the child and her mother's former husband. From the child's birth, the biological father had wanted to be acknowledged as the child's father, but he had been denied visitation by the mother. He filed a paternity action only when the child was almost three years old, and after the mother and her husband had separated. He was estopped because he did not promptly pursue his legal rights and therefore the child's "image of her family" would be destroyed by a paternity order, an occurrence the court found would be "catastrophic and fraught with lasting trauma." 513 N.Y.S.2d at 739.

In other cases in which a child's "legitimacy" has been preserved by application of estoppel, it has been the conduct of the parties and the existing parent-child relationships, not the status of "legitimacy," that have been determinative. In Boyles v. Boyles, 95 A.D.2d 95, 466 N.Y.S.2d 762 (3rd Dept. 1983), a mother was estopped from denying her former husband's paternity. The couple had lived together, as parents of the child, until the child was two-and-a-half-years old. The child had the husband's last name and the husband was listed as father on the child's birth certificate. The husband's parents were called the child's "Grandma" and "Grandpa." 466 N.Y.S.2d at 765. The court further found that the husband justifiably relied on the mother's conduct as a basis for believing that she would not enforce any superior right to custody of the child by asserting that he was not the child's father. Id. Only after finding estoppel based on the factual circumstances did the court mention that, "moreover," the mother should be precluded from "bastardizing" the child. Id.

In Sharon GG v. Duane HH, 95 App. Div 2d, 467 N.Y.S.2d 941 (3rd Dept. 1983), aff'd mem., 63 N.Y.2d 859, 482 N.Y.S.2d 270, 472 N.E.2d 46 (1984),the mother had also expressed no doubt about her husband's paternity for two and a half years after the child's birth. Throughout that period she held the child out as her husband's son, put his name on the birth and baptismal certificates, accepted support while living together and apart, and permitted a strong parent-child bond to be formed between the husband and child. "These facts are sufficient, under the case law, to establish prima facie a defense for the husband on the basis of equitable estoppel." 467 N.Y.S.2d at 943. Subsequent to establishing the prima facie case for estoppel, the court discussed the benefits of preserving the child's legitimacy, but that factor was not an element of the estoppel itself.

In Michel DeL. v. Martha P., 173 A.D.2d, 570 N.Y.S.2d 279 (1st Dept. 1991), the mother and her current husband, who claimed

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to be the child's biological father, were estopped from challenging the paternity of the mother's former husband, when the child was conceived during the mother's first marriage. The decision makes no reference to, and therefore does not rely upon, preserving the child's "legitimacy." Rather, it relies upon the fact that, for more than two years, the mother and the alleged biological father had encouraged a "paternal, emotional and financial" relationship between the child and the former husband, who had had summer and holiday visitation with the child and paid large amounts of child support. The court found that the traditional elements of estoppel had been proven. Accord, Biserka B. v. Zdenko R., 133 A.D.2d 728, 520 N.Y.S.2d 17 (2nd Dept. 1987) ("[Mother] created an opportunity for the development of a father-son relationship between the respondent and the child. Having concealed for eight years the purported `true' paternity of the child, the appellant is now estopped from contesting the husband's paternity." 520 N.Y.S.2d at 18.); Vito L. v. Filomena L., 172 A.D.2d 648, 568 N.Y.S.2d 449 (2nd Dept. 1991) (Although the court noted that no purpose would be served by "branding the child illegitimate," estoppel of husband was based upon "having accepted his status as the father of the child without objection for nearly eight years.")

When the ability to preserve a child's "legitimacy" and the ability to preserve a child's experience of her family diverge, the courts use estoppel to preserve the child's family experience, not the child's "legitimacy." Thus, in Vilma J. v. William L., 151 A.D.2d 758, 542 N.Y.S.2d 783 (2nd Dept. 1989), the court applied estoppel to preserve a 12-year-old child's understanding that a man who was not her mother's husband was her father, even though this rendered her "illegitimate." In Willy G. v. Debra B., 181 A.D.2d 858, 582 N.Y.S.2d 204 (2nd Dept. 1992), a paternity petition was granted where the child considered the petitioner to be her father and considered her mother's former husband to be her "stepfather." The court did not mention the fact that granting the petition rendered the child "illegitimate."

When children are born out of wedlock, their "legitimacy" cannot be at issue, yet in numerous cases courts have applied estoppel doctrine to preserve a child's real family. Anton W. v. Nadine V., 597 N.Y.S.2d 865, 868 (Fam. Ct., Bronx Cty. 1993)(mother equitably estopped from denying the paternity of a man who was not the out-of-wedlock child's biological father, because "preserving the child's legitimacy [is not] essential to the application of the doctrine of equitable estoppel"); June B. v. Edward L., 69 A.D.2d 612, 419 N.Y.S.2d 514 (1st Dept. 1979)(mother estopped from denying the paternity of her out-of- wedlock child after she had obtained a consent order of paternity against a man who had readily accepted the responsibilities of parenthood); Barbara A.M. v. Gerard J.M., 178 A.D.2d 412, 577 N.Y.S.2d 110 (2nd Dept. 1991) ("father" estopped from contesting his paternity, after he had consented to a paternity order and developed a father-son relationship with the child for almost 10 years).

That the question of a child's "legitimacy" is separate from

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the question of whether the elements of estoppel have been met is supported by the fact that a man claiming paternity of a child born to a married woman will be successful if he asserts his status immediately, even though a finding of paternity will render the child "illegitimate." Swann v. Schoenfeld, 163 A.D.2d 850, 559 N.Y.S.2d 408, 410 (4th Dept. 1990) (equitable estoppel wrongly applied by trial court where, among other things, the petitioning father made "timely attempts to establish paternity.") See also Crane v. Battle, 62 Misc. 2d 137, 407 N.Y.S.2d 355 (Fam. Ct., New York Cty. 1970) (petitioner entitled to order of paternity of a one-and-a-half-year-old child, where mother had not been living with her husband, the presumption of legitimacy having been overcome.)

All of the above cases demonstrate that preserving a child's "legitimacy" is not an element of estoppel in the context of an action concerning a child's paternity. Thomas S.'s attempt to limit the application of estoppel doctrine in such a fashion should be rejected by this court.

B. Estoppel is properly applied when the trial court finds that a child does not consider a semen donor to be a parental figure even though she knows the biological facts of her origin.

The arguments that appellant cannot be estopped from asserting paternity because Ry had no other father and because Ry knew he was her "father" eviscerate the reality of children's lives in lesbian families and should be rejected by this court. A healthy family does not require parents of a particular gender, nor does the absence of another male parent insulate a biological father from estoppel principles.

The first argument, that having "another father" is a prerequisite to the application of estoppel is similar to the assertion that estoppel can only be applied to prevent a child from becoming "illegitimate." It suggests that a child must have a father, and that if she does not, no matter what relationships exist, no matter what the child's identity as a member of a family, or the course of conduct of the parties, or the harm to the child, estoppel cannot be applied to protect a child from an order of paternity. This argument ignores not only Ry's actual life experience but the life experience of all children born into families consciously and intentionally created outside the two- parent heterosexual model. Equitable estoppel has been applied consistently to make determinations that preserve a child's experience of his or her family. The presence of "another father" is not a prerequisite for application of estoppel doctrine because a child's experience of his or her family need not include a male parent.

The second argument, that estoppel is inapplicable because Ry knew Thomas S. to be her biological father, is similarly flawed. It ignores the context of Ry's life and the lives of children in thousands of lesbian and gay families. Perhaps the principal characteristic of such families is that neither biology nor legal sanction determine the authenticity of the relationships created nor the child's understanding of those relationships. The issue here, therefore, is not what Ry knew of

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the biological facts, but how Ry experienced her family and what social and emotional meaning she attached to the biological facts. Especially in the context of an agreement that the semen donor will be known to the child but will not have the rights and responsibilities of parenthood, and an ensuing course of conduct consistent with that agreement, a child can know the biological facts of her origin without considering her biological father a parent.

As amici have demonstrated, section I B, supra, it is a common practice for lesbians to use known semen donors, and to permit some contact between the child and the semen donor. Because of the deliberate construction of family relationships within lesbian families, a child can be raised to know that a man is her biological father without considering him her parent. Whether the child views the semen donor as a parent is a factual determination. Appellant's reasoning that a man who is identified as a child's biological father could never be estopped from asserting paternity would deny children in lesbian families the protection that the estoppel doctrine affords children in heterosexual families -- the ability to estop the claim of a biological father when to issue a paternity order would destroy the child's image of her family. The fact that the child knows the semen donor as her biological father should not preclude application of the estoppel doctrine to defeat a paternity claim that would amount to a "rocking of [the child's] cosmos."

Appellant's argument further implies that a child raised in a home with two mothers cannot consider herself firmly established as the daughter of those two parents. It suggests without foundation that the power of biology is so strong that, even if the daily care and decision making involved in parenting is performed by two mothers, a child will still consider her known semen donor to be her parent, unless she knows another man as her father. Appellant's argument denies that children of lesbians and gay men can truly learn to define their family relationships on the basis of their experience rather than on the basis of the conventional, heterosexual norm.

The resolution of this case must not turn on whether Ry knew that Thomas S. contributed the semen that resulted in her conception or on whether she had a warm relationship with him before he commenced this action. It must turn on how she experienced her family even with full knowledge of the biological reality.

1. Given the factual findings of the trial court, estoppel was appropriately applied.

Three New York Appellate Division cases have estopped a petitioning biological father from obtaining a paternity order. Terrence, supra; Purificati, supra; Ettore, supra. Ettore set forth generally applicable estoppel principles.

The doctrine of equitable estoppel may successfully be invoked, in the interest of fairness, to prevent the enforcement of rights which would ultimately work fraud or injustice upon the person against whom enforcement is sought. (citations omitted). An estoppel defense

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may also be invoked where the failure to promptly assert a right has given rise to circumstances rendering it inequitable to permit the exercise of the right after a lapse of time. 513 N.Y.S.2d at 737-738. In a paternity proceeding, the foregoing of the rights and responsibilities of parenthood is the first criterion. The second criterion, reliance, is established when the child develops family relationships as a consequence of the biological father's actions or inactions. The third criterion, detriment, is established when the child would be traumatized, see, Ettore, supra; Purificati, supra; or otherwise adversely emotionally affected, see, Terrence M., supra, by the requested paternity determination.

The facts as found by the trial court support its determination that the elements of estoppel are present in this case.

a. The trial court found that Thomas S. agreed to and did forego asserting parental rights.

In this case, the court found the first criterion to be established by the agreement Thomas S. made with the two women, coupled with an ensuing, consistent course of conduct. Thomas S. agreed prior to Robin Y.'s insemination with his semen that "a child born of the insemination would be raised by [Sandra R.] and [Robin Y.] as co-parents and as Cade's sister; that [he] would have no parental rights or obligations; and that he would make himself known to the child if the child asked about her biological origins." Thomas S., supra, 599 N.Y.S.2d at 378. He would not have been chosen as a sperm donor if he had not said that he had no interest in exercising parental rights. Id. at 382.

The parties' behavior reaffirmed the family they intended to create by their agreement. The court found that Thomas S. knew about Ry's birth but had virtually no contact with Ry or her family until February, 1985, when Ry was three years old. Id. at 379. When Robin Y. and Sandra R. initiated contact between their family and Thomas S. in 1985, he expressly agreed to honor his agreement to treat the women as co-mothers to both children and to treat Cade as Ry's sister. Id. There were several visits between Thomas S. and Sandra R., Robin Y., and the girls between 1985 and 1991; these were "at the complete discretion of [Robin Y.] and [Sandra R.]." Id. Thomas S.'s conduct for the decade after the insemination "confirmed his earliest representations." Id. at 382.

In each of the reported cases, the court examined the reason for the period between the child's conception or birth and the commencement of the paternity action. In Terrence, the biological father offered no reason. In Purificati, the court found that the reason was the biological father's (and the mother's) desire for the financial benefit provided by the wealth of the mother's former husband. In Ettore, the court found "patently insufficient" the proffered reason that the biological father did not want to disturb existing relationships while the mother was living with her husband. Here the court found that

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Thomas S. "attempt[ed] to change the ground rules" of Ry's life when she was almost ten years old, because of changes in his own life. 599 N.Y.S.2d at 382.

As the court did here, courts must examine the development of the child's family relationships during the elapsed time. Those relationships develop as a result of the biological father's actions or inactions which can include, as in this case, an agreement to forego parental rights and a course of conduct consistent with that agreement.

b. The element of reliance is established by the court's finding that Thomas S. chose to forego parental rights to Ry, which allowed her to develop her identity as a child in a family with two mothers and a sister.

The court below examined the family relationships that Ry developed as a consequence of living in her planned lesbian family structure. The court found that Ry's family definitions had resulted in reliance upon the concept of family to which the parties had initially agreed and which Thomas S. had reaffirmed in words and by his conduct. The court properly credited the deep significance of the "functional family relationships" which had developed between Ry and Sandra R., as a second mother, and between Ry and Cade as full siblings. Id. at 382.

The court found that "Ry, like Cade, was given the last names of R. and Y. to indicate that R. and Y. considered her the equal daughter of each of them. R. and Y. paid all the expenses of Ry's birth, and have jointly supported her all of her life." Id. at 378. Further, the court found that "Ry and Cade regard each other as sisters, and have a very close, warm relationship. Both girls call Robin Y. and Sandra R., "Mommy." Id. at 379. Both girls regard Sandra R.'s mother as their grandmother, and she pays for private school tuition for both of them. Id. The school treats both women as co-mothers of each child. Id. Prior to this litigation, the mothers had believed that Thomas S. "could be trusted not to question their legal status." Id.

The findings of the psychiatrist, Dr. Myles Schneider, who evaluated all the parties and other relevant people, support the court's conclusion that this family had formed its bonds without regard to biology. Dr. Schneider testified that

Ry...considers Sandra R. and Robin Y. to be her parents and Cade to be her full sister. She understands the underlying biological relationships, but they are not the reality of her life. The reality of her life is having two mothers, Robin Y. and Sandra R., working together to raise her and her sister. Ry does not now and has never viewed Thomas S. as a functional third parent....

[Ry] knows that she, Cade and her mothers comprise an unusual and unconventional family. She knows that some outside her family have often shown intolerance and insensitivity toward her family. Notwithstanding this intolerance, Ry's own view of her family is that of a warm, loving, supportive environment. Id. at 380.

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After detailing the psychiatrist's findings, the court concluded that "Ry has been brought up to view Robin Y. and Sandra R. as equal mothers raising two children and to view Thomas S. as an important man in her family's life. In her family, there has been no father." Id.

Appellant's argument that the reliance element has not been established ignores these critical findings made by the trial court. Rather, his argument hinges once again on the proposition that estoppel cannot be applied unless a child considers another man to be her father. Specifically, appellant's brief attempts to cut short the inquiry into the family relationships Ry developed during the first nine and a half years of her life by asserting simply that "nothing that Mr. Steel was alleged to have done (or failed to do) could have suggested to Ry that someone else was her father." Brief of Petitioner-Appellant at 45n.32. Appellant would thereby have this court avoid examination of Ry's experience of her family, even though that experience was shaped in part by appellant's agreement and conduct for ten years, simply because Ry "has always known that Ms. Russo is not her father." Brief of Petitioner-Appellant at 50.

This analysis renders invisible or unworthy of legal protection the lives of children intentionally raised in families without fathers. Lesbians and some single heterosexual women often deliberately raise children in such families. These families are complete, legitimate, and well-functioning. The children in such families can be as healthy and well-adjusted as children in heterosexual families, and, in this case, the trial court specifically found that both Ry and Cade were well-adjusted children. 599 N.Y.S.2d at 379.

The families that lesbians and gay men form have validity and integrity. Children can and do reliably identify their parents and siblings in such families without reference to a traditional heterosexual model. Lesbians who are successful in creating loving and healthy families and in raising well-adjusted children who do not view their biological fathers as non- custodial parents are entitled to the protection that estoppel doctrine affords. Under the reliance element of this doctrine, a court must evaluate a child's parental and sibling relationships, based upon the child's experience, without any preconception of what a family must look like. Amici urge this court to reject appellant's cramped reading of the inquiry required under existing case law; the extent of the trial court's inquiry was appropriate.

c. Ry would suffer detriment if a paternity order were issued.

The final element of estoppel is detriment. See Terrence, supra; Purificati, supra; Ettore, supra. Appellant's brief asserts yet again that a paternity determination would cause Ry no harm because "she never believed herself to be the `legitimate' child of Sandra Russo." Brief of Petitioner- Appellant at 48. Amici urge this court to reject this limited view of when an order of paternity will be harmful to a child. The trial judge's opinion demonstrates respect for and

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appreciation of the experience of a child raised for her entire life in a lesbian family consisting of two mothers and a sister.

The trial court found that Ry would be harmed by an order of paternity. He credited the psychiatrist's testimony that

Ry...views this court proceeding as an attack on and threat to her positive image of herself and her family. Her sense of family security is threatened. She has expressed fear of ongoing court involvement and worries about a confusing and threatening period in her family's life....

Even the prospect of a visit with [Thomas S.] causes Ry much anxiety...Any forced visitation would cause her increased anxiety, and would also do nothing to repair her relationship with Thomas S. 599 N.Y.S.2d at 380. The trial judge found that

This attempt [to change the ground rules of Ry's life] has already caused Ry anxiety, nightmares, and psychological harm. Ry views this proceeding as a threat to her sense of family security. For her, a declaration of paternity would be a statement that her family is other than what she knows it to be and needs it to be.

To Ry, Thomas S. is an outsider attacking her family, refusing to give it respect, and seeking to force her to spend time with him and his biological relatives, who are all complete strangers to her, for his own selfish reasons.

A declaration of paternity naming Thomas S. as Ry's father, under these circumstances, at this late time in her life, would not be in her best interests. Id. at 382.

Appellant's argument that a paternity order cannot be detrimental when there is no other father because it will only add to, rather than take away from, the child's life is misguided. When a child has never viewed her biological father as a parental figure, as the trial court found in this case, his "addition" as a parent is an intrusion into and a destabilization of the child's family. For example, appellant's assertion that an order of paternity will not undermine the existing family relationships is inaccurate. An order of paternity would accord him full parental rights, including custodial rights to Ry superior to those of Sandra R. Court-ordered visitation, and the potential for endless relitigation of the terms of visitation, would undermine the authority that has always been Robin Y. and Sandra R.'s alone -- the authority that all parents have to make the decisions affecting the lives of their children.

Further, in the event that Robin Y. and Sandra R. petition the court to become the legally recognized parents of both children, Thomas S. could have the power to block such adoption with respect to Ry, thereby preventing her from obtaining full legal acknowledgment of her relationship with Sandra R. and

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2. The trial court's consideration of Ry's best interests was proper, as was the court's evaluation of Ry's best interests in the context of her specific family structure.

After reviewing the case law applying estoppel in paternity proceedings, the Ettore I. court concluded that "as a practical matter, if there is anything that the body of law does suggest it is that the paramount concern in this type of case should be the best interests of the child." 513 N.Y.S.2d at 739. The child's best interests were explicitly deemed an appropriate consideration in Purificati v. Paricos, supra; Barbara A.M. v. Gerard J.M., supra; Michel DeL. v. Martha P., supra; Anton W. v. Nadine V., supra; Sandy M. v. Timothy J., 138 Misc. 2d 338, 524 N.Y.S.2d 639 (Fam. Ct., Broome Cty. 1988). Accord, Willy G. v. Debra B., supra (The law guardian asserted that the best interests of the child were immaterial in the paternity proceeding. The court stated that "there is no support for this position." 582 N.Y.S.2d at 205).

a. It is not always in a child's best interests to have a known semen donor declared a father.

In arguing that denial of his paternity petition cannot be in Ry's best interests because it "sever[s] her relationship with the only father she has ever known," appellant raises the specter of harm to Ry based upon theories and research concerning children of divorce, children in foster care, and children who have been adopted into a new family. Brief of Petitioner- Appellant at 59. Ry fits none of these categories. She is a child who, from birth, has lived with the same two parents, one her biological mother and the other her nonbiological mother, and with her sister. She lives with the parents who have always wanted her and have always raised her.

The trial court found that, in spite of Ry's knowledge of her biological connection to Thomas S., she never considered him a non-custodial parent. Thus, appellant's analogy to the multiple parental relationships a child may have in a step-family situation is misplaced, as is the specter he raises that denial of his paternity petition threatens the rights normally accorded to non-custodial parents.

If appellant's argument is accepted, every court would be compelled to find that it is always in the best interests of a child to grant an order of paternity to a known semen donor. Amici urge this court to reject such reasoning. If, within a given family, a child knows the man who is her biological father but does not consider that man a parent, a court must be able to find that it is not in the particular child's best interests to grant an order of paternity.

b. A semen donor's financial assets should not compel a finding that a paternity determination is in the child's best interests.

Appellant also argues that an order of paternity is necessary to Ry's best interests because of the substantial financial resources he could provide her. In making this argument, he relies significantly on the possibility that Sandra

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R. could walk away from Robin Y. and Ry and leave Ry without adequate support.

This argument should also be rejected. There is nothing in the record to suggest either that Sandra R. will not remain a member of this family or that she would ever stop supporting Ry. Furthermore, she could be compelled to provide financial support for Ry. See Karen T. v. Michael T., 127 Misc. 2d 14, 484 N.Y.S.2d 780 (Fam. Ct., Monroe Cty. 1985). Almost any semen donor can claim that a child's best interests would be served by access to his assets. If the court were to accept this reasoning, it would severely undermine the ability of lesbians to deliberately form families without fathers.


A biological father is not automatically entitled to an order of paternity. In this case, concerning the future of a child born following donor insemination into a planned lesbian family, the court below properly credited the parties' intent at the time of insemination that Thomas S. would not have the rights and responsibilities of parenthood, as well as their subsequent, consistent course of conduct. The court evaluated the contacts that Thomas S. had with Ry and Cade and their mothers, Robin Y. and Sandra R., within the context of the specific family structure within which Ry has lived for her entire life. The court found that "in [Ry's] family, there has been no father" and that Ry knew the biological facts of her origin but never considered Thomas S. a parent. The court further found that "a declaration of paternity would be a statement that [Ry's] family is other than what she knows it to be and needs it to be."

Estoppel doctrine is designed to protect a child from the "lasting trauma" of an order of paternity which would destroy her image of her family. As the court below noted, this doctrine "has been utilized by the courts to decide paternity proceedings for families whose reality is more complex than a one mother, one father biological model." 599 N.Y.S.2d at 382. This doctrine is properly available to protect a child's experience in a planned lesbian or gay family. Given the findings of the court below, Thomas S. was properly estopped from obtaining an order of paternity, and amici respectfully requests that the order dismissing the proceeding be affirmed.

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