Our children: kids of queer parents and kids who are queer: looking at sexual minority rights from a different perspective.

AuthorRobson, Ruthann
  1. INTRODUCTION

    Much of the conservative right's rhetoric in the realm of minority sexualities has focused on children.(1) Drawing on themes of disease and seduction, Christian fundamentalists have portrayed gay men and lesbians as predators who target children, hoping to "seduce them into a life of depravity and disease."(2) As Jeffrey Weeks noted many years ago, it was no accident that Anita Bryant called her anti-homosexual campaign "Save Our Children, Inc."(3) The United States Supreme Court implicitly considered the issue of whether gay men should have contact with children with its recent decision in a case involving the Boy Scouts of America.(4) In the family law arena, adoption and custody of children remain concerns of conservative legal writers, and one conservative law professor has recently argued that "homosexual parenting" is dangerous to children.(5)

    In composing their anti-gay rhetoric in terms of child protection, conservatives have inaccurately grouped children into a monolithic category, often excluding the real interests of two specific classes of children: children of sexual minority parents and minors who are themselves lesbian, gay, transgendered, or bisexual.(6) First, the conservative right's rhetoric has monolithically constructed the children of sexual minority parents as victims in need of rescue.(7) These children are presumably akin to abused children who will suffer more from contact with their parents than from a deprivation of their parents; any love such children have for their parents is presumptively overwhelmed by the assumed disapproval such children would have of their parents' sexuality.(8)

    Second, the conservative right's rhetoric has excluded minors who are themselves sexual minorities, even while conservatives fear that children will become sexual minorities by exposure to gay, lesbian, bisexual, or transgendered adults.(9) Regardless of what causes people to become sexual minorities, the conservatives' tactic of hostility towards such people harms children and adolescents who are--or who may become--sexual minorities.

    At its most basic level, my argument is that we--those of us who are members of a sexual minority--must continue to take responsibility for our children. Part II of this article considers the children to whom we are biologically related, the children we would adopt, and the children with whom we live.(10) Part III of this article addresses the minors who are presently sexual minorities or who may be in the future.(11) In both cases, we must ensure that our children are not damaged by the law.

  2. THE BEST INTEREST OF OUR CHILDREN

    Depriving a child of the continued care of his or her sexual minority parent, based on parental sexuality, harms children, despite any court's findings that such a deprivation is in the "best interest of the child." The established standard in custody disputes between parents, the "best interest of the child" test,(12) has devolved into several different approaches regarding parental sexuality.(13) Spanning the continuum, a court may decide that a parent's sexual minority status is a per se disqualification of custody or that parental sexuality is irrelevant.(14) Between these two poles is the nexus approach, which requires the court to find a relationship between parental sexuality and harm to the child.(15) Under the "true" nexus approach, the burden of persuasion is allocated so that there must be proof that parental sexuality will have an adverse impact on the child.(16) Nonetheless, some courts presume adverse impact, demanding that the sexual minority parent prove an absence of harm to the children.(17)

    In all of these approaches, except for the irrelevance approach, the courts construe the sexual minority parent as a potential cause of harm to the child.(18) In fact, much greater harm is caused by judicial decisions that deprive a child of the care and companionship of his or her parent. In the notorious situation of Sharon Bottoms and her son Tyler, the Virginia Supreme Court deprived Sharon Bottoms of custody because of her lesbianism.(19) In doing so, the court had to overcome the constitutional doctrine of parental autonomy recognized by the Supreme Court for almost a century, because the person seeking custody was not Tyler's father--a man who had abdicated any responsibility for the child--but Tyler's grandmother.(20) As a grandparent, Sharon Bottoms' mother, Pamela Kay Bottoms, was a classic third party without any recognized claim to custody absent unusual circumstances.(21) In a third party custody challenge the court would not even reach the best interest of the child test without first overcoming an initial hurdle, such as parental unfitness or abandonment.(22) The trial judge predicated the finding of unfitness on Sharon Bottom's lesbianism, stating that,

    The mother, Sharon Bottoms, has openly admitted in this court that she is living in an active homosexual relationship. She admitted she is sharing a bedroom and her bed with another, her female lover, whom she identified by name as April Wade. Sharon Bottoms in this courtroom admitted a commitment to April Wade, which as she contemplates will be permanent, and as I understand her testimony, long lasting if not forever. She readily admits her behavior in open affection shown to April Wade in front of the child. Examples given were kissing, patting, all of this in the presence of the child. She further admits consenting that the child referred to April Wade, her lover, as to quote the words "Da Da."(23) The trial judge found that the "mother's conduct [was] illegal," rendering her "an unfit parent," and that, while he was cognizant of the "presumption in the law in favor of the custody being with the natural parent," "Sharon Bottoms' circumstances of unfitness" were "of such an extraordinary nature" as to rebut the presumption of parental custody.(24) The trial court granted visitation to Sharon Bottoms on Mondays and Tuesdays, provided that it not "be in the home shared with April Wade or in April Wade's presence."(25) Although this decision was reversed by the intermediate court of appeals,(26) the trial court's decision was affirmed by the Virginia Supreme Court, which stated it would "not overlook" Sharon Bottoms' lesbian relationship: "living daily under conditions stemming from active lesbianism practiced in the home may impose a burden upon a child by reason of the `social condemnation' attached to such an arrangement, which will inevitably afflict the child's relationships with its `peers and with the community at large.'"(27)

    The harm of social condemnation in the context of race has been declared an unconstitutional consideration in custody determinations. In Palmore v. Sidoti,(28) the United States Supreme Court declared that, although "[p]rivate biases may be outside the reach of the law, ... the law cannot, directly or indirectly, give them effect."(29) Furthermore, judicial concern with social condemnation of homosexuality is questionable, since it does not attach any societal or peer disapproval to being raised by one's grandmother rather than one's mother.(30) Presumably, an argument that the child might be teased for living with his grandmother would not be taken seriously. The real basis of the decision is not societal disapproval of lesbianism, but judicial disapproval of lesbianism, which is buttressed by the court's reference to the illegality of lesbian sexual practices under Virginia's sodomy law.(31)

    The emphasis that both the trial court and the Virginia Supreme Court placed on the family's private interactions, including the displays of affection between Sharon Bottoms and her lover, the integration of the lover into the household, and Sharon Bottoms' lack of shame about her relationship,(32) suggests that the real harm the courts envisioned for the toddler was not social condemnation, but exposure to homosexuality, with the increased chance that the child "will develop homosexual interests and behaviors."(33) While any link would be the result of the normalization of homosexuality in the child's perspective and, thus, the removal of some of the socially imposed terrors, some legal thinkers argue that the increase in homosexuality is the consequence of a lack of "cross-gender parenting."(34) In Tyler's case, however, this lack of dual-gender parenting is equally applicable to the household of Tyler's grandmother. The senior Ms. Bottoms had excluded her current boyfriend from her household on the advice of her attorney, given Sharon Bottoms' history of complaints concerning sexual abuse perpetrated by him.(35)

    The belief that exposure to homosexuality breeds homosexuality provokes several responses. The first, and, I believe, the correct response, is a resounding "so what?" As a lesbian myself, I am unwilling to engage in an argument that assumes that my sexual desires are pathological. Others have argued, however, that social science research does not support a correlation between being raised by a lesbian or gay parent and becoming a sexual minority.(36) Furthermore, a correlation would not prove causation; other factors could explain any discrepancy.(37)

    In the context of the Bottoms litigation, any underlying belief that the harm to the toddler in being raised by his mother would be his eventual homosexuality is especially ironic: he is now in the custody of the one person in the litigation with the proven track record of raising a sexual minority, Sharon Bottoms' mother, Kay Bottoms.

    Bottoms is illustrative rather than unique. Countless children have been removed from their sexual minority parents.(38) In many cases, sexual minority adults fought such removal in court, and the reporters are filled with our defeats, as well as our more recent successes.(39) In many other situations, lesbians and gay men did not bring their cases to court, believing that to do so would be a fruitless endeavor that would injure their...

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