The 40 Most Important American Lawsuits Affecting the Rights of Lesbian, Gay, Bisexual, Transgender and HIV-positive People Over the Past 40 Years
Case Summaries, continued
1995
Brown v. Hot, Sexy and Safer Productions
68 F.3d 525 (Federal Court of Appeals for the First Circuit).
Two minor students and their parents claimed that requiring the students to attend an AIDS and sex education program violated their rights to privacy, parental autonomy, religious freedom and an educational environment free from sexual harassment. The rejection of these claims was important to schools’ efforts effectively to teach students about HIV.
1995
In re Custody of H.S. H-K
533 N.W.2d 419 (Wisconsin Supreme Court).
A woman who became pregnant by assisted insemination raised the child for more than four years jointly with her long-time same-sex partner. After the couple separated, however, the birth mother refused to allow her former partner to visit the child. The partner sued and the court ruled that visitation should be ordered if a parent-like relationship had been created with the child that the biological parent substantially was interfering with, and visitation would be in the child’s best interest. This was the first time a state high court ruled that visitation by a non-biological same-sex parent could be ordered.
1995
Bottoms v. Bottoms
457 S.E.2d 102 (Virginia Supreme Court).º
A lesbian mother lost custody of her child when her own mother (the child’s grandmother) was allowed to take the child away. Although rejecting the view that lesbian mothers are always unfit, the court nonetheless considered her sexual orientation a negative factor, based on the reasoning that the “conduct inherent in lesbianism” was a felony in the state.
1993
In re Adoption of B.L.V.B.
628 A.2d 1271 (Vermont Supreme Court).
After a woman who had lived with her same-sex partner for several years became pregnant by assisted insemination and gave birth to two children, the two women filed an adoption proceeding so that they both could be recognized as legal parents of the children. Reversing the lower court’s ruling that the non-biological mother could only adopt if the biological mother’s rights were terminated, the state high court became the first in the nation to permit “second parent” adoptions.
1993
Baehr v. Lewin
852 P.2d 44 (Hawaii Supreme Court).º
Three same-sex couples challenged the state’s refusal to allow them to marry. The court ruled that the marriage law discriminated on the basis of sex and would violate Hawaii’s constitution unless shown necessary to further a compelling state interest. Lambda Legal thereafter became co-counsel and won a trial ruling that the state had no legitimate justification for excluding same-sex couples from marriage. The voters thereafter amended the state constitution to allow the legislature to restrict marriage to different-sex couples, ending the case, which nonetheless invigorated the modern fight for the freedom to marry.
1991
In re Guardianship of Kowalski
478 N.W.2d 790 (Minnesota Court of Appeals).º
After a many-years-long dispute, the same-sex partner of a woman severely injured in a car accident won the right to be named her guardian, as the disabled woman desired, over the objections of the woman’s parents. This case brought wide attention to the vulnerability same-sex couples face in times of crisis.
1990
High Tech Gays v. Defense Industry Security Clearance Office
895 F.2d 563 (Federal Court of Appeals for the Ninth Circuit).
Three defense industry workers challenged the federal government’s policy of denying security clearances to gay people based on their sexual orientation, sexual conduct with other consenting adults or involvement in gay social and political activities. The court ruled against them based on testimony that Russian counterintelligence had targeted gay people as potential targets for recruitment. As a result, the policy remained in effect until 1995, when President Clinton signed Executive Order 12968, removing sexual orientation as a factor in granting security clearances.
1989
Braschi v. Stahl Associates
543 N.E.2d 49 (New York Court of Appeals).º
The landlord of a rent-controlled apartment was prohibited from evicting the same-sex partner of a deceased tenant under a statute that allowed members of a tenant’s “family” who had been living with the tenant to remain in an apartment after the tenant’s death.
1989
Glover v. Eastern Nebraska Community Office of Retardation
867 F.2d 461 (Federal Court of Appeals for the Eighth Circuit).
Employees of a state human services agency challenged its requirement that they submit to blood testing for HIV and hepatitis B. The court found that the testing violated the employees’ rights against unreasonable search and seizure. Because the chances that clients could contract these diseases from employees was extraordinarily low, the state was ordered to cease the testing.
1988
Watkins v. United States Army
847 F.2d 1329 (Federal Court of Appeals for the Ninth Circuit).
A gay man who had served in the military for 19 years challenged his discharge and the refusal to allow him to reenlist based on the military’s policy that barred service by lesbians, gay men, and bisexuals. The appellate court originally ruled in his favor that the policy unconstitutionally discriminated on the basis of sexual orientation. While that decision later was withdrawn when a majority of the appellate court reheard the case and instead ruled that the man could not be precluded from completing his military service because the Army had known he was gay when it previously encouraged him to reenlist (875 F.2d 699 (1989)), the original decision’s analysis proved important in later equal protection cases and the lawsuit drew national attention to the military’s antigay policy.
1988
Chalk v. United States District Court
840 F.2d 701 (Federal Court of Appeals for the Ninth Circuit).
When a school in Orange County, California learned that one of its teachers had been diagnosed with AIDS, school officials barred him from teaching in the classroom and reassigned him to administrative duties. He sued and won an order that he be reinstated, securing a critical federal appellate decision that people with AIDS are protected against discrimination under the Rehabilitation Act of 1973. The court also rejected the argument that a theoretical risk of transmission of HIV could make someone unqualified for a job.
1987
Conkel v. Conkel
509 N.E.2d 983 (Ohio Court of Appeals).
After a gay man and his former wife divorced, he was allowed visitation with his children only if he did not have any unrelated male visitors stay overnight. In this leading gay family law case, the appellate court overturned the restriction, ruling that a parent’s sexual activity is relevant only if it is shown to harm the children. The court also rejected the argument that the children might suffer stigma by being with their father, holding that the prejudice of others is not permissible grounds for restricting parental rights.
1986
Bowers v. Hardwick
478 U.S. 186 (United States Supreme Court).º
A man who was arrested for engaging in consensual oral sex in his home with another man challenged Georgia’s sodomy law. The Supreme Court characterized his case as one asserting a fundamental right to engage in homosexual sodomy, which the Court rejected because prohibitions against such conduct had ancient roots. The ruling was relied on for years to justify unequal treatment of gay people, until Lambda Legal secured its reversal in its victory in Lawrence v. Texas in 2003.
1985
National Gay Task Force v. Board of Education of Oklahoma City
729 F.2d 1270 (Federal Court of Appeals for the Tenth Circuit), affirmed by an equally divided court, 470 U.S. 903 (United States Supreme Court).º
An Oklahoma law that allowed school boards to fire teachers for “public homosexual conduct” was found to violate teachers’ First Amendment rights to advocate for gay rights. The court ruled that advocacy in favor of matters such as the repeal of sodomy laws was at the core of free speech rights and could not be barred.
1984
Ulane v. Eastern Airlines
742 F.2d 1081 (Federal Court of Appeals for the Seventh Circuit).
An airline pilot who was fired after undergoing sex reassignment surgery sued under Title VII, the federal law against employment discrimination. The court ruled that she was not fired based on her sex but on the basis of being transgender, which the court held was not prohibited by Title VII. This ruling set back progress on transgender rights for years
1979
Gay Law Students Association v. Pacific Telephone & Telegraph Co.
595 P.2d 592 (California Supreme Court).
In a class action against the phone company for sexual orientation job discrimination, the court held that, under the California Constitution, government bodies and state-protected public utilities could not exclude gay people from employment without showing that their sexual orientation rendered them unfit for their jobs. The court also ruled that discriminating against lesbians and gay men violated a state law prohibiting interference with employees’ political activity, because it deterred gay people from coming out, which the court recognized as important to changing attitudes about gay rights.
1978
Chicago v. Wilson
389 N.E.2d 522 (Illinois Supreme Court).
When two transgender people who were arrested for violating a law that prohibited wearing clothing of the “opposite” sex with the intent of concealing one’s sex challenged their convictions, the court agreed that they had a constitutional right to choose their appearance without unjustified governmental intrusion. The court ruled that such a law could not be applied to individuals who were under treatment in preparation for sex reassignment surgery and who, aside from the claims about their dress, were not engaging in fraudulent or unlawful acts.
1977
Richards v. U.S. Tennis Association
400 N.Y.S.2d 267 (New York County Supreme (trial) Court).
Renee Richards, a professional tennis player who had undergone sex reassignment surgery, sued the U.S. Tennis Association after it forced her to take a sex-chromatin test as the sole determinant of whether she was female. The court ruled that Richards’ rights under New York’s state antidiscrimination law were violated. Such a test could only be considered one factor among many, including external genital appearance, internal sex characteristics, psychological profile, physical appearance, hormonal balance, and social identity. This case brought national public attention to the rights of transgender individuals.
1974
Gay Students Organization of the University of New Hampshire v. Bonner
509 F.2d 652 (Federal Court of Appeals for the First Circuit).º
After a gay student group sponsored a dance on campus, the university president forbid the group from conducting further social activities at the school. The group sued and won what became the leading decision holding that the First Amendment requires state universities to recognize gay student groups and provide them equal access to campus facilities.
1967
Boutilier v. Immigration and Naturalization Service
387 U.S. 118 (United States Supreme Court).
A gay foreign citizen who had lived in the United States for 12 years and who had a long-term partner, parents and siblings here, challenged an order that he be deported solely because he was gay. The Supreme Court ruled against him, concluding that homosexuality was proof of being “afflicted with a psychopathic personality,” which was among the immigration law’s statutory grounds for exclusion from the United States. As a result, America’s immigration ban on lesbians, gay men, and bisexuals remained in effect until 1990, when Congress amended the law.
* Cases in which Lambda Legal was of counsel.
º Cases in which Lambda Legal participated as a friend-of-the-court.
