The Legally Queer Child

McGill Law Journal, Vol. 49, pp. 1057-1091, 2004

36 Pages Posted: 11 Mar 2011 Last revised: 15 Sep 2015

See all articles by Bruce MacDougall

Bruce MacDougall

University of British Columbia (UBC), Faculty of Law

Date Written: 2004

Abstract

This article explores the various presumptions and arguments of Canadian courts in largely denying queer children a legal presence. An analysis of the intersection of homosexuality and children is explored with a view to arguing that legally, queer children deserve a voice. The author begins by outlining the development of the legal conceptualization of the "child". This conceptualization led to the notion of the child as innocent, and thus in need of protection. In comparison, homosexuals came to be characterized as "aberrant" and "predatory". Protecting children from homosexuals then became a simple step of logic, which ultimately led to the larger legal construction of the "nascently heterosexual" child.

This presumption underlies many of the court decisions reached in this area, often leading to a complete failure on the part of the law to acknowledge and confront the complex and sensitive issues facing queer children. Heterosexual normalization and homosexual "abnormalization" pervades the legal landscape, such that any child exhibiting non-heterosexual tendencies is presumed to have been influenced by an "aberrant" and "predatory" homosexual adult. Legal institutions respond by "protecting" children from homosexual influences, thus denying these children access to gay norms and contexts. The author canvasses the manner in which major institutions and devices -- in the context of family and custody; religion; education; and harassment and verbal abuse -- are used to ensure the invisibility of the queer child. In conclusion, it is noted that while some courts are beginning to recognize the queer child, much progress is needed before the queer child is accorded full legal visibility.

Keywords: Children, Homosexuality, Lesbianism, Infants

Suggested Citation

MacDougall, Bruce, The Legally Queer Child (2004). McGill Law Journal, Vol. 49, pp. 1057-1091, 2004. Available at SSRN: https://ssrn.com/abstract=1782168

Bruce MacDougall (Contact Author)

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

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