Lawsuit Over Gay Inmate’s Visit Rights Is Reinstated

A federal appeals court reinstated a lawsuit brought by a gay inmate’s domestic partner who contended the couple were wrongly prohibited from embracing and kissing in a prison visiting area.

The 9th Circuit Court of Appeals decision centered on an Arizona Department of Corrections regulation banning prisoners from hugging and kissing unrelated visitors of the same sex.

Karl Whitmire, whose partner is in an Arizona prison, sued the department after prison staff told the couple they were not allowed to hug during visits. According to the court opinion, Whitmire’s partner was told if they hugged again “it would be a long time before you see him again.”

The appellate court decision said the District Court was wrong in dismissing Whitmire’s claim. The department maintained its rule was to ensure homosexual inmates would not be marked as gay by the prison community, and was a safety precaution.

But the opinion said that because the couple are openly gay, the rule has no relevance.

Martha Matthews, an ACLU staff attorney who represented Whitmire, called the ruling “encouraging because prisons tend to be given a huge amount of discretion by the courts.”

“It sends a message that you can’t arbitrarily treat people differently because of their sexual orientation,” she said.

Terry Stewart, director of the Arizona Department of Corrections, refused to comment on the ruling. The opinion was written by Judge A. Wallace Tashima.