➤ POZ SERVICE, from p.14 impairments, their careers have been sidelined and their hopes for promotions and overseas deployments stymied. Despite strongly positive recommendations from their commanders and colleagues, the Pentagon’s internal review process has rejected their attempts to remain in the service and both were scheduled for discharge. Brinkema’s preliminary injunction will keep them in the service while this case plays out and they should be treated as available for overseas deployment. The Defense Department’s motion to dismiss the case focused on three arguments. First, they claimed that the plaintiffs had failed to exhaust internal Air Force administrative remedies, an argument the judge rejected. Brinkema also rejected the Pentagon’s argument that the two men lacked standing to bring their suits be-
➤ CONVERSION THERAPY, from p.14 like these, Rosenberg found that the legislative records back up the city and county’s claims that important governmental interests in protecting minors are advanced by the conversion therapy bans. In turning to the most demanding level of review, “strict scrutiny,” Rosenberg noted that the burden was on the government defendants to show they had a compelling interest at stake and had employed a narrowly tailored approach without unnecessarily abridging free speech. Here, Rosenberg acknowledged that the question of narrow tailoring was the challenging part of the analysis. The plaintiffs had suggested that a ban on aversion therapy or other forms of non-talk, coercive therapy would suffice. But Rosenberg cited evidence that talk therapy itself may have harmful effects and that, as to it pertains to minors, it is not really consensual. In the end, Rosenberg concluded that the plaintiffs did not definitively show that strict scrutiny was the appropriate standard for review nor did they have a substantial likelihood of proving at trial that the ordinances were insufficiently narrowly-tailored. As a result, Rosenberg did not issue a preliminary injunction. GayCityNews.nyc | February 28 - March 13, 2019
cause they had not actually been discharged. The Defense Department argued, as well, that its personnel decisions based on medical concerns are “altogether immune from judicial scrutiny,” effectively the same argument the government has been making in defense of Trump’s ban on transgender military service. But Brinkema pointed out that military personnel decisions are not wholly free from judicial scrutiny, and, pointing to Fourth Circuit Court of Appeals precedents binding on her, she found that the balance of factors in the case favored allowing it to continue, particularly since “at this preliminary stage, [the plaintiffs] have made a strong showing that defendants’ policies are irrational, based on a flawed understanding of HIV epidemiology, and inconsistently applied.”
➤ POZ SERVICE, continued on p.21 Most significantly, Rosenberg distinguished this case from the NIFLA clinics case in California, which, she pointed out, did not involve regulating speech that was part of treatment, while in this case, the speech is a tool in the process of providing treatment, and state and local governments have traditionally regulated treatments offered by licensed professionals. In the California case, she wrote, “the doctors were compelled to speak, despite the fact that the required notice ‘is not an informedconsent requirement or tied to a procedure at all.’” Rosenberg’s action leaves to a later stage in the litigation a more definite ruling on the appropriate level of review and the ultimate merits of the case. In the meanwhile, conversion therapy practiced on minors in Palm Beach County and the city of Boca Raton will continue to be illegal for licensed health care practitioners. The plaintiffs are represented by Liberty Counsel, the anti-LGBTQ legal organization that also represents the psychologists attacking the Tampa ordinance, as well as psychologists in New Jersey who have petitioned the Supreme Court to revive their First Amendment challenge to that state’s ban on conversion therapy for minors.
Gif[lZkC`XY`c`kp When you buy a product, the expectation is that it should perform in the way it was intended to but that is not always the case. When damage or injury is caused as the result of the use of a defective product, the law in New York recognizes that those who manufacture and/or distribute the defective product, as well as those who sell it, may be held responsible for damages for the injuries which result. Consider the case of the young teenager who while using a hair dryer in her home, sustained severe third degree burns to her hands when the product burst into ﬂames. Her parents had the foresight to consult our ofﬁce shortly thereafter. Upon consulting an expert who inspected the hair dryer, he advised that the product’s wiring and/or loose electrical connections allowed it to overheat and catch on ﬁre. We sued the manufacturer, as well as the neighborhood store where the hair dryer had been purchased, claiming that this product was defective as it was improperly or poorly designed, that there was a mistake in its manufacture or assembly, and/or the manufacturer or distributor placed the product into the marketplace without adequate warnings. Based upon our expert’s opinion, we were successful in achieving a favorable outcome for our client. If you ﬁnd yourself in
JXe]fi[IlY\ejk\`e a similar situation, the ﬁrst thing to do is secure and safeguard the defective product. In situations where the injury occurs outside your home, for example, in the workplace, it is particularly important to be vigilant and contact an attorney promptly. A separate court proceeding may need to be commenced, as soon as possible, to compel preservation of the product and to direct the person, or entity, in possession or control of the product, to grant access so it can be inspected and tested before it is destroyed, altered or disposed of. If you believe that you or a loved one have been injured by any defective product, whether a piece of heavy machinery or a seemingly harmless household item, you should consult an attorney. A timely phone call could be very important to protect your rights.
!!8kkfie\pJXe]fi[IlY\ejk\`e ZXeY\i\XZ_\[Xk.(/$,))$(')' fi($/''$++.$?LIK ]fiX]i\\ZfejlckXk`fe% 15
February 28, 2019