Stripped rights

This article is excerpted from the book Out of the Neon Closet: Queer Community in the Silver State, now available at Sundance Books and other retailers.

Tim Daly and Nan Toews were married in 1969, and their daughter, Mary, was born four years later. When the couple divorced in 1981, Nan took custody of Mary while Tim, who had moved to Berkeley to work at the Lawrence Berkeley National Laboratory, kept visitation rights and paid both child support and alimony. Nan Daly and Mary lived in Reno.

Daly had long realized he was transgender and began attending support groups at the Pacific Center for Human Growth Awareness in Berkeley. In August 1981, while daughter Mary was visiting him in California, Tim, who had adopted the name Suzanne Lindley Daly, told her he was transgender and planning surgery and urged Mary not to tell her mother.

But Mary did tell her mother, and on May 12, 1982, Nan Daly filed a Petition for Order Terminating Parental Rights of Natural Father under Nevada Revised Statute 128.105. Nan did not want simply to end Suzanne’s visitation privileges but to sunder her legal identity as Mary’s natural parent. When Suzanne began living as a woman, legally changed her name, and underwent surgery, Nan Daly obtained a restraining order to keep her from contacting their daughter while the termination proceedings were underway.

Suzanne asked the Reno firm Bowen, Swafford and Hoffman, who had handled her divorce, to represent her in her parental rights case, but they refused when they found she was transgender. Suzanne instead hired Susan J. Haveson of Reno’s Hall and Haveson, as well as California attorneys Ellen LaCroix and Ann Casamajor, who was herself transgender.

Nan’s lawyer was Nada Novakovich, one of Nevada’s most honored attorneys and a prominent member of Reno society. The judge was John Gabrielli.

The hearings took several days, during which Suzanne Daly and her legal team presented a strong defense not only of her fitness as a parent, but of the nature of transgender people. Among their witnesses were Lynn Frazier, facilitator for the transgender group at the Pacific Center Suzanne had been attending; Andrea Canaan, executive director of the Pacific Center; and Dr. Ira Pauly, chairman of the Department of Behavioral Sciences at the University of Nevada School of Medicine.

Pauly’s supportive testimony was particularly important. Pauly, who often collaborated with Dr. Harry Benjamin, is one of the great pioneers in the identification and treatment of what then was called “gender dysphoria.” Pauly wrote the two most respected reports on genital surgery—“Male Psychosexual Inversion: Transsexualism,” on male-to-female transition, and “Adult Manifestations of Female Transsexualism,” on female-to-male transition.

Pauly was among the physicians who created the program of treatment and transition that Suzanne Daly followed. What Pauly brought to her case was reason, compassion and semantic accuracy. He described the Real Life Test where those in transition are required to live full-time in the gender into which they are transitioning, and he detailed the psychophysiological background of gender dysphoria, explaining the difference between transsexuality and homosexuality, noting that transsexuality was a medical condition. While Pauly admitted there was almost nothing in the literature that dealt with an issue like Daly v. Daly, he said, “If the child has felt himself to be loved by this person I think he can accept the rather traumatic transformation, as long as he feels that he will continue to get love and support from his biological parent. … The concern and caring of a parent isn’t totally tied up with the individual gender identity.”

Witnesses Frazier and Canaan described Suzanne’s love for Mary and Mary’s obvious love for Suzanne. By everyone’s account—including her own mother’s—Mary was mature beyond her nine years. In fact, it was Mary who explained to her mother calmly and lucidly the difference between a transvestite and a transgender person. Further, Mary had spent several happy weekends with Suzanne attending meetings at the Pacific Center after Suzanne told her of the impending surgery. Kitty Wright, a friend of Suzanne’s before and after the surgery, recalls that Mary accepted the facts “without question.”

Nan Daly and her lawyer, Nada Novakovich, however, turned the hearings into a seething circus of hatred, racism, AIDS panic, homophobic bigotry, and personal harassment of those involved in Suzanne’s defense. Novakovich, a former Democratic U.S. House candidate, persistently referred to Suzanne Daly in the masculine, suggested sexual impropriety between her and Mary, and claimed that merely taking Mary to meetings at the Pacific Center constituted physical endangerment “because of a disease that is prevalent in this type of community.” Mary, Novakovich said, was “a gifted child with a brilliant future ahead of her. Shall we keep her that way or shall we take a risk and put her in an environment of lesbians, gays, homosexuals, transsexuals, and perverts?”

Novakovich hammered the point that any therapy for Mary to help her understand and deal with Suzanne would be something dangerous and risky forced upon the child against her wishes merely to make Suzanne herself happy, and that in considering her own emotional well-being over Mary’s, Suzanne was an unfit parent. Helping Mary to understand the transition her father had made would be useless, Novakovich said, because Mary “is normal,” and that “Homosexuals and transsexuals and all the perverts are more accepted in San Francisco than they are in a small town like Reno.”

When cross-examining Andrea Canaan, Novakovich accused her of having an affair with Suzanne and tried to discredit and objectify Canaan because she was African-American, lesbian, and an unwed mother. When Suzanne’s lawyer Ann Casamajor pointed out that bigotry and racism—not Suzanne’s parental suitability—had become an issue in Daly v. Daly, Novakovich shouted, “I am not a bigot. … I love blacks. I have a black housekeeper.”

Nevertheless, Judge Gabrielli let Novakovich’s questions and accusations continue, though they wandered far from the case. Nan Daly was just as disrespectful and contemptuous of Suzanne, declaring, “I can’t accept that individual sitting there as my ex-husband. [C]an [Mary’s] father take her to Father’s Day at Girl Scouts? Can she say daddy to her father? Does she have to address him as mother? And, if so, what does that make me? … I don’t move in circles where people are anything other than what they prove to be in their appearance.”

Mary Daly herself was never called to testify. Instead, at one point in the hearings, Judge Gabrielli ordered Mary brought into his chambers with attorneys Novakovich and Casamajor, the Court Clerk, and Court Reporter. This portion of the hearing was sealed, so there is no available record of what Mary said in that closed hearing, although Ann Casamajor, during closing arguments, accused Novakovich of having coached, manipulated, and otherwise intimidated the child.

Arguments in Daly v. Daly closed on Feb. 24, 1983. On April 11, Judge Gabrielli issued his decision terminating Suzanne’s parental rights. Gabrielli agreed with Novakovich that in trying to preserve her relationship with Mary, Suzanne was “a selfish person to his own needs, his own desires, his own wishes, and is not thinking in a realistic way about Mary.” Gabrielli issued his judgment and decree on May 2, and, on that day, Suzanne Lindley Daly ceased being the legal parent of her daughter, Mary.

Suzanne, however, won a hearing before the Nevada Supreme Court in 1985. Present at Suzanne’s appeal were her lawyer, Ann Casamajor, Nada Novakovich, and Justices Al Gunderson, John Mowbray, Charles Springer, Thomas Steffen, and Cliff Young. Justices hostile to the case that the transgender Casamajor was trying to make referred to her with male pronouns unless corrected by the justices who were supportive of her and broadminded on the issue. The direction the hearing would take was clear in the first half hour, and which judges were supportive and which were not was plain from the outset. Justices Gunderson and Springer, for example, felt the Second Judicial Court erred in that the case Novakovich made spoke to matters of custody and visitation, not parental rights, and they tried steering Casamajor’s remarks in that direction to gain support from the other justices.

Justice Mowbray, however, was direct and tactless in expressing his distaste. “What’s Mary gonna call Tim?” Mowbray asked. “Daddy? Mama the Second? I have five children, [and] it’s just very, very difficult for me to understand how a father could do that with a child.” Justice Steffen, a Mormon bishop, agreed with Novakovich and had no problem sundering Suzanne’s parental rights.

Of the five justices, it was Charles Springer who seemed most sympathetic and understanding of transgender issues. “It isn’t only a choice, is it?” Springer said. “I can see where somebody medically might have to undergo this sort of operation. But does that necessarily mean that you’re ipso facto immoral or depraved?”

The Court took more than a year to decide what to do about Suzanne Daly. On March 6, 1986 the court issued its decision upholding Judge Gabrielli’s termination of Suzanne’s parental rights. It was a three-two majority: Justices Steffen, Mowbray, and Young agreed with Gabrielli; Springer and Gunderson dissented.

Steffan’s majority opinion emphasized testimony by an expert witness for Nan Daly that Mary could suffer “emotional or mental injury to the child if she were allowed to be in her father’s presence. In addition, the doctor testified that Mary would not be injured if she did not see her father again. The doctor also considered alternatives, such as consultation with psychologists and psychiatrists and testified there was no guarantee it would work and that there would be a serious risk of emotional injury. It is precisely this risk that the lower court was asked to eliminate. It must be remembered that in termination proceedings, the interests of the child are paramount, and a child should not be forced to undergo psychological adjustments, especially in view of the risk involved, solely to avoid termination of a parent’s rights. Certainly a parent’s rights should be preserved if at all possible, but not at the expense of the child.”

But Springer’s and Gunderson’s dissenting opinion was remarkably supportive and direct in noting the bigotry that lay at the heart of Daly v. Daly:

“The key issue underlying [Nan Daly’s] petition appears to be [Suzanne’s] transsexuality. … In psychological distress, the father has consulted legitimate and respected medical authorities. The advice given by those medical authorities may offend the religious precepts of many. … Still, I respectfully submit that a court of law should not stigmatize an emotionally distressed person for following the advice of highly trained and licensed physicians … who possess the most exalted credentials their profession can bestow. Nor should a parent be stigmatized for attempting to forewarn a child concerning medical procedures the parent is about to undergo pursuant to such advice. … As I assess the record, the fact that the appellant father has suffered emotional problems which are foreign to the experience of this court’s members, and has followed the possibly poor advice of eminent medical authorities in his attempt to relieve them, does not justify a total and irrevocable severance of appellant’s formal legal tie to a child he obviously cares about and desires to help nurture. By holding that such a severance is justified in these facts, it seems to me, we are being unnecessarily and impermissibly punitive to the exercise of a medical option we personally find offensive, thereby depriving a child of a legal relationship which might well be to the child’s advantage in the future.”

Springer and Gunderson also turned some of the testimony by the same expert witness cited by Steffan back on the majority, showing how that testimony had been equivocal.

Suzanne appealed the Nevada Supreme Court decision to the U. S. Supreme Court—which let stand Nevada’s ruling. Suzanne also filed suit in federal court claiming her civil rights had been violated. This case kept Suzanne wandering through the wilderness of the U. S. legal system for more than five years. She lost at every turn and in 1989 dropped all her claims. Suzanne had fought termination of her parental rights as far as she could, but in the end was left with nothing. She would never see Mary again, and in addition to losing her daughter, Suzanne was driven from her job at Lawrence Berkeley National Laboratory by her co-workers’ bigotry. Suzanne’s alcoholism and agoraphobia grew more acute and debilitating. While Suzanne was astute with her money during the 1990s and accumulated a million-dollar fortune, she lived like a pauper alone with her dog in a tiny, squalid house on an Oakland, California, hillside where she died on Easter Sunday 2002.

Suzanne had had no contact with her daughter even after Mary had become an adult. When Suzanne’s friend, Kitty Wright, spoke to Mary after Suzanne’s death, Mary admitted her mother had raised her to hate Suzanne, and that when Mary turned 18 and could legally reconnect with Suzanne, both of them were too afraid. Suzanne noted in her will that she had no children, leaving the bulk of her estate to the National Rifle Association. Mary’s mother, Nan, died in October 2001 in nearly the same circumstances as Suzanne six months later—“in squalor with a large dog, drunk,” Wright remembers. “She’d withdrawn from the world.”

Nan’s lawyer, Nada Novakovich, also came to a bitter end. She illegally borrowed more than $3 million from 62 people, including several of her own clients who were ruined when she failed to repay them. Novakovich also embezzled more than $11,000 from a children’s trust fund she’d set up for another of her clients. She declared bankruptcy in 1987, and when her crimes were discovered she pleaded no contest to embezzlement, received a suspended sentence and was disbarred. She died disgraced and alcoholic in 1998, her part in Daly v. Daly noted in her obituary.

But the saddest irony of Daly v. Daly is that the case for years afterward was consistently cited in legal literature as bad case law, and in 2000, 14 years after ending Suzanne Daly’s parental rights, the Nevada Supreme Court reversed its 1986 opinion, claiming that lower courts had based their decisions on a flawed interpretation of the termination statute. When the Nevada Legislature amended NRS 128.105 in 1995, Washoe Sen. Sue Wagner said that the purpose of the bill as amended was “to provide that parental rights and children’s rights [are] of equal importance … and must be considered together.”

In its 2000 decision the court admitted that “The purpose of Nevada’s termination statute is not to punish parents.” Nine other dubious Nevada decisions were overturned at the same time as Daly v. Daly. It’s doubtful Suzanne Daly knew about the decision and impossible to know how she might have responded. “I don’t think she was [aware of it],” Kitty Wright says. “She never mentioned it to me, and she would have. I think it would would’ve made her angry, that all of this was for nothing.”