86 Pages Posted: 21 Feb 2013 Last revised: 20 Dec 2013
Date Written: November 25, 2013
This Article argues that the government has no legitimate interest in promoting heterosexuality or gender conformity during childhood. Although opponents of LGBT rights have longed cited this goal as one of the primary justifications for discrimination against LGBT people, it has no constitutional foundation upon which to stand. Building upon a familiar schema of legal scholarship on LGBT rights, this Article challenges the state’s interest in promoting heterosexuality by articulating a tripartite defense of children’s speech, status, and conduct. It argues that these three aspects of homosexuality are connected to and protected by three constitutional clauses — the First Amendment, the Equal Protection Clause, and the Due Process Clause.
When the state claims that promoting heterosexuality in childhood is a legitimate state interest, it violates at least one and perhaps all of these clauses. When this policy targets children’s homosexual speech, it is a form of viewpoint discrimination that violates the First Amendment. When this policy targets children’s homosexual status, it is a form of animus against lesbian, gay, and bisexual people that violates the Equal Protection Clause. When this policy targets children’s homosexual relationships, it is a form of moral disapproval of homosexual conduct that violates the Due Process Clause. Taken together, these clauses require the state to maintain a neutral stance vis-à-vis the orientation of children’s speech, status, and conduct, and they guarantee every’s child equal liberty to be straight or queer.
After developing a similar critique of the state’s interest in promoting gender conformity during childhood, the Article concludes by exploring the theoretical boundaries and implications of this constitutional framework. Drawing on one of queer theory’s foundational texts, it argues that No Promo Hetero challenges are both more universal than traditional identity claims, yet more liberal than many traditional diversity claims. By proceeding from decidedly queer premises, this Article makes the case for the full spectrum of children’s queerness — as a form of expression, behavior, and identity — within familiar frameworks of constitutional law.
Keywords: sexuality, gender, child, constitutional law
Suggested Citation: Suggested Citation
Rosky, Clifford, No Promo Hetero: Children's Right to Be Queer (November 25, 2013). Cardozo Law Review, Forthcoming; University of Utah College of Law Research Paper No. 7. Available at SSRN: https://ssrn.com/abstract=2221404 or http://dx.doi.org/10.2139/ssrn.2221404