Legal Briefs

Legal Briefs

Appellate Denial of Florida Lesbian Co-Parent Claim

The Florida 5th District Court of Appeal rejected an attempt by a lesbian co-parent to maintain contact with her former partner’s child through a dependency proceeding. Ruling on June 2, the court said that there was “no legal basis” for finding that the psychological harm a child might suffer by being deprived of contact with a person “to whom the child has no legal connection” would constitute “the level of abuse needed to support a finding of a dependency.”

D.E., as the ruling identified the plaintiff in the case, is the former partner of R.D.B., who had a child through donor insemination during their relationship. D.E. was active in raising the child until the couple broke up in 2003 when the child was four. R.D.B. denied D.E. further contact with the child. 

Florida courts have ruled that co-parents lack “standing” to seek a visitation order under such circumstances, so D.E. tried an alternative route, presenting testimony from an expert psychologist about the detrimental effect to the child of being abruptly cut off from a parental figure, but the court did not buy this theory. D.E.’s attempt to use the Florida statute that is the basis of such a claim did not find favor with either Judge Charles Prather of the Orange County Circuit Court, or the appellate panel, in an opinion by Judge C. Alan Lawson.

“A parent’s decision to deprive a child of contact with someone who has no legal custody or visitation rights vis-à-vis the child is an inadequate ground upon which to base an adjudication of dependency,” concluded Lawson.


6th Circuit Appeals Court Nixes Trans Bias Suit

Susan Myers, whose transition to her female gender identity long pre-dated her hiring as a social worker for Cuyahoga County, Ohio, in 1982, worked for the county for more than 16 years “without any disciplinary problems or incidents,” according to a May 31 opinion by Judge Karen Nelson Moore of the Cincinnati-based U.S. 6th Circuit Court of Appeals.

But in 1998, she competed unsuccessfully for promotion to a supervisory position, and then reported to the Hispanic woman who won the appointment. The relationship between the two women deteriorated, and when Myers was fired she claimed bias based on the fact that she was transsexual and not Hispanic. The court, however, granted summary judgment to the employer, finding that her civil rights claim lacked sufficient merit.

Though Moore reaffirmed recent path-breaking decisions by 6th Circuit panels finding that gender identity bias is covered by the legal ban on discrimination on account of sex, she pointed out that in this case the employer was able to justify its discharge decision, while Myers failed to show that her gender identity factored into her discharge. Myers provided only a single incident in which she overheard a supervisory employee refer to her as “a he/she” during a private conversation.

Myers made the elementary mistake of relying solely on generalized assertions of discrimination, without taking her opportunity to conduct discovery to back up her case.


Gay Prisoner’s Constitutional Claim Advances

A gay Jewish California state inmate’s civil rights complaint against prison officers will be allowed to proceed to trial under an order issued May 25 by U.S. Magistrate Judge Lawrence J. O’Neill. Most civil rights suits brought by prisoners on their own behalf are dismissed, so they are first assigned to magistrates for screening. O’Neill found that some of Donald C. Bachman’s allegations provided grounds to proceed.

The plaintiff in another civil rights case, Bachman v. Kuhn, the inmate claims that corrections officers threatened, harassed, and assaulted him to force him to drop the Kuhn case. Bachman alleges that in April 2005, one of the defendants physically assaulted him and called him a “Christ-killing Jewish fag.” He also claims more serious physical assaults—including a bloodied nose, a bruised eye, and confinement to a cage where he was pepper-sprayed—by other prison officials. One of his attackers warned him that “she was now going to have to kill his ‘faggot Jewish ass and make it look like a suicide,” Bachman says.

O’Neill found that Bachman had credibly alleged excessive force used against him that amounted cruel and unusual punishment, and that he had also shown the basis for an equal protection claim. O’Neill, however, rejected the claims about the anti-Semitic slurs, finding that Bachman was not prevented from praying!


2nd Circuit Upholds Gay Porn Parole Violation

Who knew? “Scum: True Homosexual Experiences,” an anthology compiled by the late Boyd McDonald, is unquestionably pornography, according to U.S. Circuit Appeals Judge Sonia Sotomayor, in her May 31 opinion rejecting Christopher Farrell’s challenge to the terms of his parole on child molestation charges.

Farrell was imprisoned on three sodomy convictions for paying four teenage boys to have anal and oral sex with him in 1988 and 1990. After serving four years, he was released on parole in 1994, and agreed to restrictions including one forbidding him to “own or possess any pornographic material.”

In 1996, parole officers checking up on Farrell’s failure to go to work that day visited his home and found “Scum: True Homosexual Experiences,” an issue of the gay magazine “My Comrade,” and “Best Gay Erotica 1996.” After leafing through the publications, the officers arrested Farrell for violating parole.

The proceedings focused entirely on “Scum,” even though all of the publications contained sexually explicit pictures. As with other books by McDonald, “Scum” contains purported first-hand accounts of sexual experiences, some of them recounting sex between men and boys.

After being returned to prison, Farrell brought the federal lawsuit claiming that the special parole condition about pornography was too vague and ambiguous to be enforceable. The 2nd Circuit Court of Appeals has at times agreed that the term “pornography” is unduly vague, but the court did not do so this time, given the nature of the material involved and the conditions of Farrell’s parole.

District Judge Deborah Batts, the only openly-gay member of the federal judiciary, rejected Farrell’s challenge in the district court, and Judge Sotomayor affirmed that ruling, noting that Farrell’s own deposition showed he understood that his probation rules forbid his possession of “Scum.”

Sotomayor found that the terms of Farrell’s parole adequately put him on notice and that “Whether or not the term ‘pornography’ is inherently vague, ‘Scum’ fits within any reasonable understanding of the term.”