The legally queer child.

AuthorMacDougall, Bruce

Introduction I. The Invisible Queer Child II. Meaning and Content of "Normal" in the Legal Context of a Child's Sexuality/Sexual Orientation A. What Is a Child? B. Keeping the Child Innocent C. The Homosexual as Aberrant and Predatory D. The Nascently Heterosexual Child III. State Authorized Devices for Normalizing the Child A. Conceptions of Family and Custody B. Religion C. Education D. Harassment and Verbal Abuse Conclusion Introduction

This paper examines legal and, in particular, judicial involvement in erasing or diminishing the existence of gay, lesbian, and other queer children. (1) In a few recent but rare cases, Canadian courts have been forced to acknowledge the possibility that the gay or lesbian child exists; and even then, the courts have applied standards and condoned treatment that simply would not be applied if the issue before the courts concerned other (heterosexual) children. Non-heterosexual children are indeed legally queer. This paper examines first, in Parts I and II, some of the attributes and assumptions that have circumscribed legal considerations of homosexuality and, in particular, homosexuality as it intersects with "children". Finally, in Part III, an examination is carried out of specific institutions and contexts that have been particularly significant in contributing to the legal disinclination in associating homosexuality with children.

  1. The Invisible Queer Child

    The inadequate legal treatment of children and homosexuality is evidence of a far greater social refusal to associate children with homosexuality: an intense and pervading message of hetersexual normalization is thoroughly reinforced in young people, even within "homosocial contexts" like clubs and sports teams. Children are exposed to television shows and movies that almost always portray boys and girls in specific roles--roles with expectations of heterosexuality on maturity. Social and athletic groups (scouts, sports teams, big sisters, etc.) are organized along gender lines with messages of heterosexuality offsetting the homosocial context of the organization itself. (2) Other instances of heterosexual normalization include events such as "Family Day" (i.e., heterosexual "Family Day"), performances by a "king" and "queen" in community or school events, and Valentine's Day ceremonies and expectations. Such social events are remarkably symbolic--even intentionally symbolic. Their message of heterosexual normalization and homosexual "abnormalization" cannot be lost on any person--young or old; these events are powerful devices of social inclusion or exclusion. (3) While society may not purport to conceive of a child as sexual, it certainly conceives of him or her as nascently heterosexual.

    As in traditional society, with few exceptions, the law, in the form of legislation, case law, or administrative practice, has great difficulty conceptualizing a child who does not conform to the nascently heterosexual ideal. A child exhibiting homosexual sexuality is presumed to be (or to have been) influenced by an adult. The law responds to such a presumption by sheltering ("protecting") the child from homosexual people or homosexual influences. Children (including gay children) are thus denied ready access to gay norms and contexts: they are "protected". At the same time, however, children are exposed to numerous statements or policies designed to convey the message that children who consider themselves homosexual are not normal. In Hall (Litigation guardian of) v Powers, (4) a child, who specifically self-identified as gay, was successful in bringing an action against the principal and the school board to allow him to take his same-sex date to the high school prom. While the court allowed the application, it nevertheless condoned the general antihomosexual sentiment present in the Catholic school, even in the face of the obvious presence of at least one gay student in its classroom. Clearly, there was no judicial concern for protecting this child's homosexuality.

    The law presumes that children cannot be gay, or lesbian, or anything other than heterosexual. If children are bullied, or if they commit suicide, the courts and legal institutions give excessive weight to even the slightest evidence suggesting that the child was not gay. (5) It is never assumed that the child might in fact be gay and that he, or others like him, might be in need of positive reinforcement with respect to their sexuality. One consequence of this failure to recognize potentially gay children is that there are, in fact, very few cases in Canada involving the rights of queer children. (6) Those cases that have reached the Supreme Court of Canada, and which are of crucial importance for homosexual youth, (7) were argued at the "adult level". That is, the primary focus throughout these trials was on adults and adult rights rather than on children.

    In Chamberlain v. Surrey School District No. 36, the argument centred around children's access in schools to educational materials on same-sex parents. (8) MacKenzie J.A., after reviewing the authorities on human dignity and Charter principles in prohibiting adult discrimination on the grounds of sexual orientation, stated that "[discrimination against children because of the sexual orientation of their parents would be even more invidious." (9) Most invidious, however, and apparently not considered as a possibility by the courts, is discrimination against children because of their own sexual orientation. It did not cross the many judicial minds of both the Court of Appeal and the Supreme Court of Canada that some of the children in the school might be gay or lesbian. Similarly, in Trinity Western, where students training to be teachers were required to (and did) sign anti-gay pledges, the judges were apparently ignorant of the interests of non-heterosexual students--certainly such interests were not considered. (10) We might speculate whether cases such as Chamberlain and Trinity Western would have been treated differently had a gay student challenged the impugned actions. As I have said of the Trinity Western case:

    The judges did not ask how a homosexual teacher or student would likely feel if they knew that the colleague or teacher had voluntarily signed a document to become a teacher saying that their actions, and therefore they, are biblically condemned and to be lumped in with cheaters, drunks, thieves and so on. (11) Legal academics and queer activists have also, at times, overlooked the existence and interests of queer children. (12) The interests of queer children are thus largely ignored.

    Children often have little or no voice in situations in which they are so directly affected; therefore, adults speak for them. Very often, these adults (frequently government workers, sometimes child-welfare advocates, and occasionally academics) do not understand the complexities inherent in being a gay, lesbian, or bisexual child; many do not even consider the possibility that a child of such sexual orientation could exist. In reference to the context of child protection generally, Nicholas Bala has said that "[w]hile child protection workers are typically white, well-educated and from middle-class backgrounds, their clients most often are poorly educated, living in or near poverty, and not infrequently members of a racial minority group and living in a family led by a single parent." (13) To this list, one can add that child protection workers themselves are often heterosexual, or they have a heterosexual view of children even though the children they confront are, at least some of the time, not heterosexual.

    Even gay or lesbian adults cannot always speak authentically for a gay or lesbian child. Circumstances change; and voices in different generations speak differently. Some gay and lesbian adults have perhaps forgotten the multitude and complexity of issues that arise with respect to being young and queer. Eric Rofes has noted, for example, that at least two large barriers prevent professionals and gay activists from confronting the phenomenon of the school "sissy". Rofes writes:

    To say sissies = gay male youth is considered offensive to many in the gay community. Instead we insist that gay youth are fully integrated throughout our schools: they are on the football team as well as the drama club, student council as well as art class, the computer club and the swim team. We tell the world that childhood sissies grow up to be men of all sexual orientations. The second reason that little attention has focused on the plight of the sissy is that gay male activists and educators alike carry unresolved feelings about their own sissy pasts. When we left home and fled to a safer location, we did our best to leave our sissy identities behind. (14) Debbie Epstein and Richard Johnson have a somewhat different perspective on this generational situation. They write that different generational trends in lesbianism have aided in creating a disparity between different generations:

    [P]art of the early 1990s apparent explosion of "lesbian chic" has focussed on young, "attractive", women supposedly less politicized through an engagement with feminism than their older (and "unattractive") "sisters", confident, visible on the scene, and apparently invested chiefly in having a good time. Many young lesbians may play with, perform, or invest themselves in, such images, without this constituting the whole of their lives; and their experiences at school may not bear much similarity to the media images or to their own leisure time pursuits. (15) A final obstacle to the creation of an environment where adults can speak confidently or strongly for queer youth is the dread experienced by many gay and lesbian adults 13 14 15 who fear being accused of trying to "convert" young people into homosexuals. Below, I will discuss how the idea of the "proselytizing homosexual" has tenaciously gripped the social landscape. Simply put...

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