The Sacra of LGBT Childhood
Washington and Lee Journal of Civil Rights and Social Justice
The Sacra of LGBT Childhood
Kim Hai Pearson 0 1
Human Rights Law Commons 0 1
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1 Gonzaga University School of Law
Part of the Civil Rights and Discrimination Commons; Gender and Sexuality Commons; and the
First, I wish to extend my thanks to Professor Joan Shaughnessy and
the students of the Washington and Lee Journal of Civil Rights and Social
Justice for inviting to me to participate in this symposium on child welfare.
I would also like to thank Professor Amy Dillard for moderating our panel
and doing a wonderful job of organizing us so that our topics build on each
I’ve had hearts and minds in my thoughts a lot lately because scholars
like to look back at cause advocacy and think about what makes people
change their behavior. We’re at a point now where we can survey the
change in opinions and attitudes about marriage equality and think about
how change happens. Some believe a key step to achieving greater equality
is reaching people’s hearts (seeing the effects on laws and policies on
family and friends), and not just trying to appeal to an abstract idea of
rights-based justice.1 The same principle applies to LGBT children in foster
care. There is an important body of legal research about LGBT children in
foster care that gives us data about their experiences and insight into why
their outcomes tend to be so negative.2 It is troubling that mainstream
culture does not prioritize mobilizing people to help prevent abuse, sexual
* Assistant Professor of Law, Gonzaga University School of Law. I wish to extend
gratitude to Doug NeJaime, Luke Boso, and Orly Rachmilovitz. For excellent research
assistance, my thanks to Kristine Riley. My thanks to the editors and staff of the
Washington and Lee Journal of Civil Rights and Social Justice for a thought-provoking and
important symposium. Special thanks to Sharon Jeong and Alison Mygas for outstanding
1. See Heads and Hearts: What Victorious Gay-Marriage Campaigners Can Teach
Others, THE ECONOMIST, Feb. 1, 2014, available at
2. See, e.g., Talia Yasmeen Stoessel, Addressing the Harm of Silence and
Assumptions of Mutability: Implementing Effective Non-Discrimination Policies for Lesbian,
Gay, Bisexual, Transgender, and Queer Youth in Foster Care, 17 U. C. DAVIS J. JUV. L. &
POL’Y 79 (2013); see also Larisa Maxwell, Fostering Care for All: Towards Meaningful
Legislation to Protect LGBTQ Youth in Foster Care, 1 TEX. A& M L. REV. 209 (2013);
Miriam Aviva Friedland, Too Close to the Edge: Lesbian, Gay, Bisexual, and Transgender
Youth in the Child Welfare System, 3 GEO. J. GENDER & L. 777 (2002).
assault, reparative therapy, and other similar experiences these children
experience. I argue that LGBT children are not conceptually considered
children in a way that would create a moral imperative for society to
prevent the harms visited on them. What does it mean to be conceptualized
as a child? How do we know if some children are not conceptualized as
children in a meaningful sense according to the law?
To find answers to those questions, I interrogate parenting norms,
specifically as they relate to children’s sexuality and gender development.
Parenting norms that are socially and legally enforced3 tell us which parents
are good and what kind of childhood needs to be protected and nurtured. If
we think about parenting as a project where people aim for certain
outcomes in their children, shaping their behavior and by extension their
children’s behavior,4 we can see that there is an implicit belief that parents
have the power to shape children and reach desired outcomes. The
common belief that parents shape children’s personalities comfortably
coexists with the studies that show children’s personalities are innate.5
Earlier in the symposium, when Dr. Megan Fulcher presented her
research about how childhood outcomes are measured, I found myself
jotting down the list of behaviors that parents engage in to produce good
outcomes. Like many parents, I wonder if I’m doing everything I can to
help my kids. Better yet, if a scientist can tell me how they measure good
childhood outcomes, then I can modify my behavior and try to improve my
kids’ chances of turning out well. More than just producing good outcomes,
such as “I want my child to be happy” or “I want a healthy child,” the
increasing pressure on parents to modify their behavior to produce certain
kinds of children, tells society which children are favored and disfavored.
3. See generally Kary Moss, Substance Abuse During Pregnancy, 13 HARV.
WOMEN’S L.J. 278 (1990) (showing that social enforcement of parenting behaviors are
encouraging women who are pregnant to limit alcohol intake and smoking, moving away
from corporal punishment for children, and heightened surveillance of children to protect
them from predators).
4. See, e.g., KRISTEN RACE, MINDFUL PARENTING: SIMPLE AND POWERFUL SOLUTIONS
FOR RAISING CREATIVE, ENGAGED, HAPPY KIDS, IN TODAY’S HECTIC WORLD 6–7 (2014); see
also PO BRONSON & ASHLEY MERRIMAN, NURTURESHOCK: NEW THINKING ABOUT CHILDREN
6–7 (2011) (reviewing recent developments in parenting studies to posit that parenting
behaviors are backfiring).
5. See generally ANN HULBERT, RAISING AMERICA: EXPERTS, PARENTS, AND A
CENTURY OF ADVICE ABOUT CHILDREN 3–15 (2004) (reviewing experts’ contradictory and
confusing parenting advice); see also Kim Pearson, Mimetic Reproduction of Sexuality in
Child Custody Decisions, 22 YALE J.L. & FEMINISM 66 (2010) (discussing the persistent
belief that parents model behaviors for children).
Professor Elizabeth Emens considers this implicit valuation of childhood
outcomes when she looks closely at how children with disabilities are
framed as negative outcomes.6 She provides poignant examples of
discomfort with disability, such as the statement: “If I had to live like you
[referring to a disabled person], I think I’d kill myself.”7
As pressure to parent well mounts, there’s greater emphasis on
children’s human capital8 rather than their participation as workers in
society. Sociologist Viviana Zelizer described the shift in childhood from
being “useful to priceless” in the nineteenth century as “sacralized
childhood.”9 This term refers to the point in time when a child’s value
changed from economic to sentimental. Protection of sacralized childhood
continues to ratchet up, as evidenced by the intense pressure to produce
good outcomes seen in parenting norms.10 If parenting norms are part of a
system that promises to produce certain types of children, it is valuable to
critique the system.11 A critique helps reveal how the system necessarily
produces less desirable outcomes12 and what interventions can be designed
for those who are treated as poor outcomes.
6. See Elizabeth Emens, Framing Disability, 2012 U. ILL. L. REV. 1383, 1389–90
7. Id. at 1389.
8. See Jerry Z. Muller, Capitalism and Inequality: What the Right and the Left Get
Wrong, FOREIGN AFFAIRS, March/April 2013, available at http://www.
foreignaffairs.com/articles/138844/jerry-z-muller/capitalism-and-inequality (discussing how
the family is the workshop for producing human capital as formal equality changes the
9. See VIVIANA A. ZELIZER, PRICING THE PRICELESS CHILD: THE CHANGING SOCIAL
VALUE OF CHILDREN 1–5 (1994).
10. See JENNIFER SENIOR, ALL JOY AND NO FUN: THE PARADOX OF MODERN
PARENTHOOD 9–10 (2014) (suggesting that sacralized childhood, the focus on children as
future assets, and the growing emphasis on protecting the psychological well-being of
children as reasons for increased pressures on parents).
11. See, e.g., MADELINE LEVINE, TEACH YOUR CHILDREN WELL xvii-xviii (2012)
(providing concrete suggestions to parents about developing children's growth and real
wellbeing based on research that shows the negative impact that pressure to attain high
achievements has on children's lives.); BRIGID SCHULTE, OVERWHELMED: WORK, LOVE, AND
PLAY WHEN NO ONE HAS THE TIME 32-
) (critiquing American parenting pressures,
especially experienced by women who spend more time with their children than “mothers
did in the 1960s” and who do more carework and housework than men); Sarah Kendzior,
How Baby Boomers Ruined Parenting Forever, QUARTZ (Nov. 12, 2014),
http://qz.com/293849/how-baby-boomers-ruined-parenting-forever/) (critiquing parenting
norms based on privilege so that “[h]elicopter parenting is opportunity hoarding repackaged
as parental devotion”).
12. See KATHRYN BOND STOCKTON, THE QUEER CHILD, OR GROWING SIDEWAYS IN THE
Parenting norms tend to reflect gender norms.13 Mainstream parenting
norms about childhood sexual and gender development affect how society
perceives sacralized childhood. This, in turn, determines which children are
pushed outside of sacralized childhood or fall through the cracks—helping
us understand why LGBT foster children are treated as though they are less
worthy of parental, state, and legal protections.14 LGBT foster children
could be seen as a paradigmatic example of “despoiled” or “failed”
outcomes when looking at parenting norms writ large as the means of
producing “successful” children. If we reframe the problem of improving
LGBT children’s experience in foster care to improving mainstream
parenting norms, we might have a better understanding about how
TWENTIETH CENTURY 3 (2009) (positing that conservatives “juxtapose their children with
‘homosexuals’ to oppose LGBT advocacy, making homosexuality necessary to defining
good outcomes for their children”); see also SCHULTE, supra note 11, at 33 (describing how
“panic-inducing headlines on studies linking mothers’ employment to childhood obesity,
slower learning, lower test scores, and risky behavior” may explain why parents never feel
like parenting efforts are sufficient.)
13. See LISE ELIOT, PINK BRAIN BLUE BRAIN: HOW SMALL DIFFERENCES GROW INTO
TROUBLESOME GAPS—AND WHAT WE CAN DO ABOUT IT 64–67, 70–72 (2009) (describing a
study where female infants’ physical abilities were underestimated by their parents based on
gender, and a study that suggests parents of male infants excuse slow language development
because of gender); Judith H. Langlois and A. Chris Downs, Mothers, Fathers, and Peers as
Socialization Agents of Sex-typed Play Behaviors in Young Children, CHILD DEVELOPMENT,
Dec. 1980, at 1217 (observing parents’ use of negative language, withdrawing, or punishing
boys for playing with a cooking sets and a dollhouse instead of with trucks and soldiers). For
examples of popular parenting books about gender and parenting, see, e.g., PEGGY
ORENSTEIN, CINDERELLA ATE MY DAUGHTER: DISPATCHES FROM THE FRONT LINES OF THE
NEW GIRLIE-GIRL CULTURE 9 (2012); LEONARD SAX, GIRLS ON THE EDGE: THE FOUR
FACTORS DRIVING THE NEW CRISIS FOR GIRLS—SEXUAL IDENTITY, THE CYBERBUBBLE,
OBSESSIONS, ENVIRONMENTAL TOXINS 8–9 (2011) (critiquing cultural forces that negatively
impact girls’ development, such as early sexualization, hyper-connectedness to online
media, obsessive behavior, and environmental toxins); LEONARD SAX, BOYS ADRIFT: THE
FIVE FACTORS DRIVING THE GROWING EPIDEMIC OF UNMOTIVATED BOYS AND
UNDERACHIEVING YOUNG MEN 9–12 (2009) (critiquing cultural forces that may be
contributing to boys increasingly being “adrift, flowing wherever the currents in the sear of
his life may carry him—which may be no place at all”); NIOBE WAY, DEEP SECRETS: BOYS’
FRIENDSHIPS AND THE CRISIS OF CONNECTION 11–12 (2013) (studying and critiquing a culture
that “refuses to see boys (and men, girls, and women) as more than a set of gender, and in
the case of boys of color, racial stereotypes”); Emma Mustich, ‘The Mask You Live In’:
Jennifer Siebel Newsom Documentary Will Examine Masculinity, HUFFINGTON POST (July
http://www.huffingtonpost.com/2013/07/16/the-mask-you-live-in-jennifer-siebelnewsom-masculinity_n_3599812.html (discussing the relationship between gender norms
surrounding masculinity and the upbringing of boys).
14. See Stoessel, supra note 2, at 85–89 (citing a study wherein 78% of youth reported
it was unsafe to openly self-identify as gay or lesbian in group homes).
sexualized abuse15 and reparative efforts16 against LGBT foster children
both operate to conceptually push children outside of sacralized childhood.
If we can then change the boundary of sacralized childhood so that
childhood itself is the qualifying factor that leads to protection, we could
create the circumstances for widespread moral outrage. That moral outrage
would lead to actions and practices that prevent childhood harms against all
children rather than maintaining a system that offers safety for the select
few who remain within the narrowly defined circle of protection.
I’ll briefly give a little more detail about sacralized childhood and
mainstream parenting norms. Then, I’ll tie both together to show how they
exert pressure on each other to determine which children may safely enjoy
social and legal protections. Finally, I’ll talk about the two main strains of
negative outcomes experienced by LGBT foster children to consider how
they are outgrowths of being pushed outside of sacralized childhood.
At the turn of the nineteenth century, the value of children changed
from economic to sentimental.17 A child was no longer expected to
contribute to the family’s finances, but “provide love, smiles, and emotional
satisfaction.”18 With this shift came laws and policies that were geared
towards the protection of childhood, like child labor laws and a separate
juvenile criminal system.19 Some track this shift in value with the creation
and sentimentalizing of childhood sexual innocence because children were
defined against adults, as developing into adults, and as being relatively less
formed.20 Sacralized childhood now means something more than just
loving your child instead of expecting your child to contribute to household
finances. Parenting norms tell us that there is a persistent valuation of the
15. See Friedland, supra note 2, at 802–03. Interviews with LGBT youth in foster care
reveal that LGBT youth in out-of-home care face sexual assault, pressure to provide sexual
favors, intimidation, and harassment from other residents, foster parents, and group home
16. See Stoessel, supra note 2, at 89–90. Reparative therapy is based on the belief that
sexual orientation can and should change so all children can be heterosexual. See id.
Qualitative data shows that many LGBT youth have been “subjected to conversion or
religious therapy by foster parents.” Id.
17. See ZELIZER, supra note 9, at 1.
19. STOCKTON, supra note 12, at 16, 38.
20. See, e.g, GERALD P. MALLON, LET’S GET THIS STRAIGHT: A GAY AND LESBIAN
AFFIRMING APPROACH TO CHILD WELFARE, 8 (2000) (observing that professionals who treat
children believe that children are too young to have a sexual orientation at the same time
they believe they are heterosexual).
Sacralized Childhood, It’s Not for Everyone
Parenting norms aimed at protecting childhood22 have been ratcheting
up, resulting in helicopter,23 tiger,24 free range,25 and high intensity
parents.26 In addition to increasing protection for childhood, these parenting
norms are increasingly concerned with producing certain outcomes in
children, simultaneously promising and threatening that parental behaviors
will support positive outcomes.27 In ratcheting up the pressure to conform
to social norms, the line between desired and disfavored outcomes becomes
stronger.28 Many of these norms are not just socially enforced, but are
23. See Katie Roiphe, The Seven Myths of Helicopter Parenting, SLATE (July 31,
_children_well_we_are_all_helicopter_parents.html (responding to the Madeline Levine
parenting book and arguing that helicopter parenting is a natural response to the heightened
anxiety that surrounds parenting now).
24. See AMY CHUA, BATTLE HYMN OF THE TIGER MOTHER 3–5 (2011). In her
humorous memoir, Chua coined the term “Tiger” parent to describe strict, success-driven
parenting that runs counter to less strict “Western” parenting.
27. See Pearson, supra note 21, at 22–23 (using the example of rhetoric about
pregnant women’s health choices to explain how parenting norms promise and threaten
childhood outcomes). Warnings to women include promises that if women do not smoke,
their children will be healthier. Id. This promise simultaneously threatens those who smoke
while pregnant with social stigma, possible criminalization, and negative health effects for
28. See David Rosenberg, In Kids’ Rooms, Pink Is for Girls, Blue Is for Boys, SLATE
(Apr. 9, 2013), http://www.slate.com/blogs/behold/2013/04/09/jeongmee_yoon_the_
pink_and_blue_project_examines_the_gender_specific_marketing.html (highlighting artist
JeongMee Yoon’s “The Pink and Blue Project” which critiques the gender-specific
marketing color schemes for boys and girls by photographing children with their things in
their homes); Dr. Phil, ‘My 5-Year-Old Son Prefers Girls’ Clothing and Toys’, DR. PHIL.COM
beginning to be legally enforced, as well. Consider how we treat women
who smoke, drink or use drugs during pregnancy; they are criminalized and
may have their children removed from their custody.29 There have been
cases where children who are overweight have been removed from their
homes,30 mothers have been arrested for allowing children to walk to
parks31 or play outside,32 and a mother arrested for neglect related to
veganism.33 The legal enforcement of parenting norms based on desired
childhood outcomes illustrates which childhood qualities are worthy of
protection. In the examples I gave, there is a health, or safety basis for
encouraging parents to modify behaviors.34 Society at large considers it is
better for children not to be exposed to chemicals while in utero and that a
healthy weight is better for a child’s development. The medicalization of
gender identity and sexual orientation continues as it has for generations.35
There are many theories for variant human sexuality. Implicit in parenting
(Dec. 13, 2002), http://www.drphil.com/articles/article/258 (describing a parent’s concern
about her young son’s preference for playing with Barbie and wearing girl’s clothes);
Mustich, supra note 13.
29. See, e.g., Dorothy Roberts, Punishing Drug Addicts Who Have Babies, 104 HARV.
L. REV. 1419, 1425 (1991) (arguing that the increasing attempts to criminalize women who
use controlled substances during pregnancy targets women, especially African American
women, reinforces racist hierarchies and infringes on constitutionally protected reproductive
30. See Gaia Bernstein & Zvi Triger, Over-Parenting, 44 U.C. DAVIS L. REV. 1252,
1261 n. 179 (2011).
31. See Jessica Grose, Parents Aare Now Getting Arrested for Letting Their Kids Go
to the Park Alone, SLATE (July 15, 2014), http://www.slate.com/blogs/xx_factor/2014/07/15/
that arresting a parent for allowing her child to walk to the park based on fear of abduction is
overreaching by the state.)
32. See Matt Harrigan, Texas Mom Arrested for Letting Kids Play Outside, SYRACUSE
(Sept. 20, 2012), http://www.syracuse.com/news/index.ssf/2012/09/texas_mom_
arrested_for_letting.html (reporting a mother arrested for child endangerment when her
children were allegedly unsupervised while playing with motorized scooters).
norms is the belief that the parent’s behavior to some degree is related for
the child’s outcome.36
If we consider how children’s lives in the mainstream imagination
have changed from rambling about in the neighborhood to being under
constant supervision, some of this change could be laid at the feet of one of
the greatest parental fears—the kidnapping and death of a child.37 Even
cultural nostalgia about time periods with less intensive parenting, as seen
in films like The Lovely Bones38 or Mystic River,39 are characterized as
fraught with rape and death as though violence has always been perpetrated
against children, but parents did not always try to protect children like they
do now. Professor Kathryn Stockton comments that laws are better aimed
at preventing childhood sexual assault than at preventing childhood
poverty.40 If we look at law and society, there is a strong investment in
defining childhood as being devoid of sexuality—and that sexuality
develops gradually with age;41 therefore, disrupting the process is criminal.
36. See Michael C. LaSala, Gay Men and Their Mothers: Is There a Special
Closeness?, PSYCHOLOGY TODAY (Aug. 23, 2011), http://www.psychologytoday.com/
(discussing guilt that mothers feel about their children’s outcomes); Neil Swidey, What
Makes People Gay?, UCLA BRAIN RESEARCH INSTITUTE (Aug. 12, 2005),
http://www.bri.ucla.edu/bri_weekly/ news_050812.asp (overviewing various theories and
evidence about the etiology of homosexuality, including the Freudian theory that
overprotective mothers and distant fathers were responsible for homosexuality).
37. The tragic story of Jessica Ridgeway’s abduction and death is an example of the
consistent media coverage about kidnapping as it pertains to parental fears. See Amanda
Paulson, Jessica Ridgeway abduction: Getting a grip on the parenting overreaction,
CHRISTIAN SCIENCE MONITOR (Oct. 15, 2012),
THE LOVELY BONES (Paramount Pictures 2009).
MYSTIC RIVER (Warner Brothers 2003).
40. See Stockton, supra note 12, at 62.
41. See CAITLIN RYAN, FAMILY ACCEPTANCE PROJECT, SUPPORTIVE FAMILIES,
HEALTHY CHILDREN: HELPING FAMILIES WITH LESBIAN, GAY, BISEXUAL & TRANSGENDER
CHILDREN 16 (2009) (describing the confusion some parents have in understanding sexual
orientation in childhood sexual orientation). "Many parents assume that children know they
are heterosexual from early childhood. But parents assume - wrongly - that their children
have to be adults before they know they are gay." Id.; see also Stockton, supra note 12, at
30–31 (discussing childhood innocence supported by the American legal system, “the child
who, on its path to normativity, seems safe to us and whom we therefore seek to safeguard at
all cost”). There are a number of books that express anxiety about young girls’ premature
manifestations of sexuality and early sexualization. See generally SAX, supra note 13; M.
GIGI DURHAM, THE LOLITA EFFECT: THE MEDIA SEXUALIZATION OF YOUNG GIRLS AND WHAT
WE CAN DO ABOUT IT (2008); DIANE E. LEVIN & JEAN KILBOURNE, SO SEXY SO SOON: THE
By the same token we see overly determined narratives about gender
development. A popular narrative about gender development is that parents
who give boys blue clothes and action figure toys and girls pink clothes and
dolls will be more likely to have children who develop into gender
normative boys and girls. Even though parents have been taught to see a
connection between gender norms and gender development, some parents
raise concerns that girls are princess-ized42 and boys are warrior-ized.43
Children’s toys, clothing, school supplies, bedding, and utensils are all
helpfully color-coded. Implicit in gender narratives is the expectation and
hope that the children following the prescribed gender path will assume
their natural heterosexual gender identity.44 Obviously, there is resistance
to gender stereotypes, with some variation at the margins for boys who like
to cook in pink Easy-Bake Ovens45 and girls who like to build life size
Rube Goldberg machines.46 But for the most part, it seems as though
NEW SEXUALIZED CHILDHOOD AND WHAT PARENTS CAN DO TO PROTECT THEIR KIDS, 2009).
42. See ORENSTEIN, supra note 13, at 13–15 (providing a history of the Disney
promotional scheme rebranding animated female characters under the Princess umbrella).
Disney’s marketing strategy was then followed by Mattel and Nickelodeon. Id.; SHARON
LAMB & LYN MIKEL BROWN, PACKAGING GIRLHOOD: RESCUING OUR DAUGHTERS FROM
MARKETERS’ SCHEMES (2007).
43. See Cordelia Fine, Why Are Toys So Gendered?, SLATE (Apr. 5, 2014),
_childhood_preferences_for_gendered_toys_are_not_innate.html ("It's not just that vehicles,
weapons, and construction sets are presented as 'for boys' . . . . Toys for boys facilitate
competition, control, agency, and dominance."); C.J. Pascoe & Tristan Bridges, Stop the
War on Pink—Let's Take a Look at Toys for Boys, GIRL W/PEN (Jan. 1, 2014),
http://thesocietypages.org/girlwpen/2014/01/01/stop-the-war-on-pink-lets-take-a-look-at-toysfor-boys/ (arguing that the "gunnification of boys culture" is not discussed because of
parental fear of "boys' gender transgressive behavior."); Anita Sarkeesian, LEGO & Gender
Part 2: The Boys Club, FEMINIST FREQUENCY (Feb. 6, 2012), http://www.
feministfrequency.com/2012/02/lego-gender-part-2-the-boys-club/ (suggesting that LEGO
toys are exclusively aimed at boys and the focus has shifted from building to fighting and
44. See Stockton, supra note 12, at 3, 30.
45. See Linsey Davis, Boy-Friendly Easy Bake Oven: Teen Girl Goes to Bat for Little
Brother, ABC NEWS (Dec. 18, 2012),
http://abcnews.go.com/US/boy-friendly-easy-bakeoven-teen-girl-bat/story?id=18003828 (recounting a story of a girl’s petition to Hasbro
seeking neutral color schemes to encourage boys to cook in the Easy-Bake Oven).
46. See Laura Hudson, How Goldieblox Made the Amazing Rube Goldberg ‘Princess
Machine’ in Its Viral Video, WIRED (Nov. 23, 2013), http://www.wired.com/2013/11/
goldiblox-video-rube-goldberg/ (discussing a toy company’s ad for “products [that] help
teach young girls about engineering principles” featuring a giant Rube Goldberg machine).
mainstream gender norms for children are narrowing at a time when we see
more acceptance for adult LGBT marriage and anti-discrimination rights.47
Part II—Despoiled and Wayward Children
As we tie together the culture of highly focused parenting with the
promise of producing pre-defined, implicit “successful” outcomes,48 we are
in danger of unintentionally devaluing children who experience alternative
outcomes. If mainstream parenting culture continues to reaffirm that
heterosexual, gender conforming children are the desired outcome, then
variance in children’s outcomes remains negative instead of being neutral.
Relatedly, some parents of LGBT children “grieve for the loss of the
presumed heterosexual child and all that accompanies that dream.”49
Mourning a heterosexual, gender-conforming child who might have been
accounts for some parental rejection, just as religious adherents who oppose
LGBT advocacy account for the rejection of LGBT children from faith
communities. But, large-scale parenting norms may also be undergirding
persistent intuitions that LGBT children are a result of failed parenting.
Parents who drive out or reject their LGBT children could be seen as
parents under the stress of strict gender norms whose parenting efforts have
failed to produce the desired outcome of straight, gender-conforming
In contrast to the level of care mainstream parenting discourse
demands of parents to protect children, LGBT children are conceptually,
and often physically, stripped of parents,50 and displaced from the realm of
47. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) and United States v. Windsor, 133
S. Ct. 2675 (2013) are landmark cases for marriage equality. Currently, a growing
percentage of states recognize same-sex marriage, have enacted anti-discrimination statutes,
or have cases pending to determine the issue. See States, FREEDOM TO MARRY (updated Dec.
4, 2014), http://www.freedomtomarry.org/states/ (providing an interactive map showing
states that have enacted same-sex marriage laws); Non-Discrimination Laws: State by State
Information – Map, ACLU,
https://www.aclu.org/maps/non-discrimination-laws-state-stateinformation-map (last visited Dec. 12, 2014) (showing states that have enacted LGBT
antidiscrimination laws); Marriage Litigation, FREEDOM TO MARRY, http://www.
freedomtomarry.org/litigation (last visited Dec. 12, 2014) (listing jurisdictions in which
same-sex marriage cases are pending).
48. See Friedland, supra note 2, at 792–94, (relating LGBT youths’ experiences with
49. Id. at 792.
50. See Laura E. Durso & Gary J. Gates, Serving Our Youth: Findings from a National
Survey of Service Providers Working with Lesbian, Gay, Bisexual, and Transgender Youth
sacralized childhood. The conceptual displacement outside of sacralized
childhood may be connected to the nature of care extended to LGBT
children living out of their homes. The expressions of outright rejection
from stable, adult care51 at one end of the spectrum of care, and attempts by
adults to reform and repair children at the other,52 reflect common parental
attitudes and responses to LGBT children—tough love and reparative
LGBT children’s experiences and outcomes could be said to embody
social anxiety around sexualized children and expectations about parental
abilities to determine children’s outcomes.53 According to researchers with
the Child Welfare League of America, “[m]any parents view their
adolescent or preadolescent child’s expression or exploration of sexuality as
premature and dangerous, and they believe it is their responsibility to
suppress or delay the child’s sexuality—whatever form it takes.”54 LGBT
children subjected to this worldview may become proxies for a disfavored,
spoiled childhood as a “parent’s distress is exacerbated when [his or her]
child explores or claims a sexual identity that the parent views as deviant or
morally repugnant”.55 The treatment of these outcomes, rather than being
treated as positive, desirable outcomes, suggests that non-normative sexual
orientation and gender identity outcomes are deserving of treatment
reserved for despoiled and wayward children. In regards to foster care,
there is concern that children pay the price for societal investment in
rehabilitating parents; perhaps that children are just cycling in and out of
foster care to satisfy parents’ rights advocacy at the expense of children.56
Who are Homeless or At Risk of Becoming Homeless, THE WILLIAMS INST. 1, 3–4 (July
2012), available at
http://williamsinstitute.law.ucla.edu/wp-content/uploads/Durso-GatesLGBT-Homeless-Youth-Survey-July-2012.pdf (finding that between 30% - 40% of youth
served by homeless youth organizations are LGBT).
51. See id. at 4 (finding that family rejection and being forced from their homes was
the reason most LGBT youth cited for their homelessness).
52. See Stoessel, supra note 2, at 85−87; see also Maxwell, supra note 2, at 214–15
(“Moral, often religious, opposition to homosexuality may lead foster parents to put LGBTQ
youth through reparative therapy, also known as conversion therapy . . .[which] involves
procedures thought to cure homosexuality.”).
53. See SHANNAN WILBER ET AL., CWLA BEST PRACTICE GUIDELINES 17 (2006).
55. See id.; see also Stoessel, supra note 2, at 97 (“A common attitude is that it is ‘too
soon’ for youth to identify as lesbian, gay or bisexual.”).
56. See John Sciamanna, Reunification of Foster Children with Their Families: The
First Permanency Outcome, STATE POL’Y ADVOCACY AND REFORM CTR. 3 (Oct. 2013),
available at http://childwelfaresparc.org/wp-content/uploads/2013/11/
Reunification-ofFoster-Children-with-their-Families.pdf (noting that 12% of children reenter foster care
LGBT children may not be viewed with the same compassionate lens,
which suggests that some parents may feel there is a justifiable basis for
rejecting LGBT children or that there is shame when a child’s sexual or
gender identity is non-normative.57 Sadly, the most “frequently cited
factor[s] contributing to LGBT homelessness” are family rejection of a
child’s sexual and gender identity and being forced out of the family
If mistaken beliefs about childhood sexual innocence and sexual
orientation are conflated or confused, then perhaps children who identify as
LGBT are subject to further abuse, often sexual in nature,59 because the
dominant narratives about children who are sexual is that they are no longer
“wholesome,” “innocent,” and deserving of protection.60 Further confusion
about the risks LGBT children pose to other children causes adults to treat
them as perpetrators or recruiters.61 LGBT children, instead of being
viewed as victims of sexualized abuse, are seen as inherently sexualized.
This failure to recognize their status as children first could be related to the
poor treatment they receive. 62
Similarly, mistakenly caring more for the possibility of a child’s
outcome rather than the child itself could be a reflection of efforts to shape
children.63 The Substance Abuse and Mental Health Services
Administration notes that parents’ actions are based on what they know and
learn from sources like friends, religion, and providers.64 When parents
within 12 months of leaving foster care).
57. See WILBER ET AL., supra note 53, at 17.
58. See Durso & Gates, supra note 50, at 4.
59. See Friedland, supra note 2, at 802–03.
60. See Pearson, supra note 21, at n. 233 (discussing the treatment of underage sex
workers who are often charged, convicted, and jailed for sex crimes rather than receiving
treatment consistent with a child victim of sex crimes.)
61. See Friedland, supra note 2, at 801 (describing the homophobic reactions of some
foster families who express concerns that their LGBT foster child may molest their
62. See, e.g., id., at 802 for accounts of LGBT youth in foster care being “targeted for
verbal harassment, physical intimidation, and sexual favors by the other residents.” In other
instances, LGBT youth may be perceived as a sexual threat to other children resulting in
discriminatory placements and fear about a child’s effect on other children. See Maxwell,
supra note 2, at 213–14.
63. See generally STEVEN PINKER, THE BLANK SLATE: THE MODERN DENIAL OF
HUMAN NATURE 381–92 (2003), for an argument against parental behaviors determining
64. See CAITLIN RYAN, SUBSTANCE ABUSE AND MENTAL HEALTH SERVS. ADMIN., A
PRACTITIONER’S RESOURCE GUIDE: HELPING FAMILIES TO SUPPORT THEIR LGBT CHILDREN, 8
receive misinformation or believe gender nonconformity and variant
sexuality are negative outcomes, they try to prevent those outcomes.65
Reparative therapy as expressions of love for children who have chosen to
stray—helping them return to the natural, non-disrupted path towards
gender conformity and heterosexuality—has been supported by religious
groups.66 According to this view, LGBT support groups are not
neutral;they are framed as a method for diverting a child from a natural
(heterosexual, gender-conforming) developmental path through
“encouragement” or “support” in becoming LGBT.67
This attitude of redirecting or waiting for children to finish their
development without any disruption manifests in the treatment experienced
by LGBT youth in foster care. It is not surprising that popular beliefs about
parenting extend beyond the point when children are in the care of their
parents and into state care where the state is expected to deliver care in lieu
of parents. Just as the popular cultural idea of parenting as a mechanism or
machinery that promises good outcomes if certain protocols are followed,
the belief that children’s development can be redirected by affecting the
child’s behavior fits within highly focused parenting logic. Whether it is
treating children as despoiled through rejection and sexual assault, or as
wayward through conversion therapy, it would be better for the treatment
from both ends of the care spectrum to be understood as the fallout of
parenting behaviors that purport to affect children’s developmental
outcomes rather than the best or natural response to non-normative
Conclusion—Best Practices for All Children
Professor Clifford Rosky argues that the state should be outcome
neutral when it comes to children’s sexuality.68 I build on that argument by
focusing on parenting norms as part of the cultural and legal background
against which parents and the state, in a parental capacity, make decisions.
Targeting parenting norms more broadly so that we do not have only the
dismaying end result—LGBT children in foster care, runaways, or
65. See id.
66. See Stoessel, supra note 2, at 89–90.
67. See id.
68. See Clifford J. Rosky, Fear of the Queer Child, 61 BUFF. L. REV. 607, 612 (2012).
suicides—could help us think about prevention, but it also reinserts
parenting into the dialogue about children’s developmental paths and forces
us to think about the state in its role as parent. When the state acts as a
parent for children in the child welfare system, the state does not act
without reference to parenting norms. This returns us to Currey Cook’s69
point about the programming in Utah for LGBT youth. He framed it as a
bit surprising that Utah, which has a reputation for being opposed to
samesex marriage, should have better outcomes for LGBT youth in foster care
than other systems. He cited the program’s commitment to best practices
for all children as the reason behind the outcomes. This is an
implementation of a state being outcome neutral and placing the protections
around children rather than picking and choosing which children to protect.
Aiming interventions at parenting norms that seek to produce certain
outcomes in children provides a way to help parents and the state take a
neutral stance on childhood sexual orientation and gender identity
outcomes. Rather than conceptualizing children as sole actors developing in
a vacuum or suffering alone at the hands of the state in the case of child
welfare, intervening at the level of parenting norms writ large can help
move the boundary of sacralized childhood to rest on the line between
childhood and adulthood rather than simply between children we favor or
21. See Kim H. Pearson , Chemical Kids, 24 TEX. J. WOMEN & L. (forthcoming 2014 ) (manuscript at 8-12) (discussing parenting norms that encourage parent-child interactions as a method of improving childhood health and educational outcomes).
25. Lenore Skenazy , Raising a Free-Range Kid , PBS PARENTS http://www.pbs.org/ parents/experts/archive/2010/02/raising -a-free-range-kid.html (last visited Nov . 18 , 2014 ) (advocating that parents allow their children to play and explore ).
26. See Richard V. Reeves, How to Save Marriage in America, THE ATLANTIC, (Feb. 13 , 2014 ), http://www.theatlantic.com/business/archive/2014/02/how-to -save-marriage-inamerica/283732/ (positing that college graduates are “reinventing marriage as a child-rearing machine for a post-feminist society and a knowledge economy”).
33. See Mary Elizabeth Williams , Is Veganism Child Abuse?, SALON (June 26 , 2014 ), http://www.salon.com/ 2014 /06/26/is_veganism_ child_abuse/ (reporting a mother arrested for child neglect because her vegan lifestyle led to her infant's dehydration) .
34. See Tobacco Use and Pregnancy, CTR . FOR DISEASE CONTROL AND PREVENTION (Jan. 28 , 2014 ), http://www.cdc.gov/reproductivehealth/TobaccoUsePregnancy/; Smoking, Alcohol, and Drugs, MARCH OF DIMES ( July 2012 ), http://www.marchofdimes.com/ pregnancy/alcohol-during-pregnancy. aspx#.
35. See AM . PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-5 ) (5th ed. 2013 ) (defining transgender as “gender dysphoria”). Previous editions of the DSM defined homosexuality as a mental disorder and transgender as “gender identity disorder .”
69. Currey Cook is the National Director of Lambda Legal's Youth in Out-of-Home Care Project .