Academic journal article Albany Law Review

Our Children: Kids of Queer Parents and Kids Who Are Queer: Looking at Sexual Minority Rights from a Different Perspective

Academic journal article Albany Law Review

Our Children: Kids of Queer Parents and Kids Who Are Queer: Looking at Sexual Minority Rights from a Different Perspective

Article excerpt

I. 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.

II. 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. …

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