Washington Blade - October 24, 2003
Paul Harris

The conference, sponsored by the National Lesbian & Gay Law Association, was the first since the historic Lawrence vs. Texas Supreme Court case that invalidated the nation's sodomy laws. It attracted more than 700 lawyers - a record for the event.

Repeatedly during the weekend, participants referred to Lawrence when discussing the law applied to gays.

Paul M. Smith, the lawyer who successfully argued the case in front of the Supreme Court, told how Justice Antonin Scalia had asked him 23 questions in his allotted 25 minutes. Perhaps the most bizarre question related to the constitutional rights of flagpole sitters if the laws against sodomy were repealed.

Evan Wolfson, a long-time advocate for gay civil marriage, suggested that the ruling had given gay men and lesbians "much more than we expected" and that from now on the impact of the decision "is what we choose to make of it."

Law professor Nan Hunter pointed out, "We have won virtually every equal-protection rights case - apart from the military - since the Rohmer case," involving repeal of gay-rights legislation in Colorado.

Attendees faced a sobering assessment that, in many ways, however, laws have changed little as they pertain to gay rights.

A workshop looking at the way the death penalty is meted out showed that gay defendants were more likely to sentenced to die than heterosexual murderers.

Although statistics are sparse, Joey Mogul of Chicago's People's Law Office attempted to prove that, although women only make up 2 percent of prisoners on death row, 40 percent of them were either lesbian or had been accused of being lesbian during their trials.

Panelists at the workshop examined several cases that showed how prosecutors at the sentencing phase had raised the issue of defendants' sexuality time and again in an attempt to secure the death penalty.

This was especially true in the Bible Belt. One prosecuting counsel was quoted as having said that sentencing a gay man to a life sentence was like "sending a kid to the candy store."

Michael Shortnacy, a lawyer with the firm of Loeb & Loeb, pointed out that no national gay organizations has gotten seriously involved in the rights of condemned death row gay prisoners.

Lawyers claim transgender victories

Transgender issues were also a hot-button item during the conference. At a plenary session, panelist Paisley Currah called Phyllis Frye, a veteran transgender activist lawyer from Houston, "the mother of us all." Frye spoke movingly about how many of her clients lived in poverty and were either unemployed or underemployed. She related how she and her partner could not afford to run the air conditioner during a Texas summer some years ago.

The progress in the rights of the transgendered has, however, by common consent been stunning over the past few years.

The first law offering protection to their rights was passed in Minnesota in 1975. By the end of 2001, states containing 6.5 percent of the U.S. population had such laws on their books.

In the 20 months since the end of 2001, that figure has jumped to nearly one-quarter of the population. That compares favorably to the 45 percent of the country in which laws specifically protect the rights of gay citizens. Many of these victories, it was noted, have been secured in the courts.

One of the most controversial areas concerned laws about the transmission of HIV from infected people to others. Professor Zita Lazzarini (of Harvard's School of Public Health) pointed out that, although 27 states had laws relating to HIV transmission, in the 15 years from 1986 to 2001 only 316 cases had been brought, or 21 a year.

Compare that to 30,000 cases for sexual assault and 90,000 cases for prostitution brought each year, and the impact of such laws can be seen as minimal. Attendees questioned whether such laws, in fact, had had any effect whatsoever.

Most people agreed that such laws were unnecessary, since an HIV-positive person having unsafe sex with an HIV-negative person would be a situation covered either by laws relating to assault or reckless endangerment.

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