The Legally Queer Child

The Legally Queer Child

Bruce MacDougall*

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 devicesin the context of family
and custody; religion; education; and harassment and
verbal abuseare 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.

comme

demandant

protection.

Cet article explore les divers arguments et
prsuppositions proposs par les tribunaux canadiens
pour refuser dans lensemble une prsence juridique
aux enfants homosexuels. Lauteur propose une analyse
du croisement entre enfance et homosexualit et
soutient que les enfants homosexuels devraient avoir
une voix juridique. Lauteur amorce son analyse en
donnant un aperu de la conceptualisation juridique de
la notion denfant. Cette conceptualisation a men,
selon lui, considrer lenfant comme innocent, et
partant
Par
comparaison, les homosexuels ont t caractriss
comme des dviants et des prdateurs. La conclusion
quil fallait protger les enfants des homosexuels
devenait donc une vidence, laquelle menait elle-mme
la construction de la notion juridique de lenfant
htrosexuel de naissance.

Cette prsomption est la base de nombre de
dcisions judiciaires qui, selon lauteur, ont souvent
conduit les tribunaux chouer compltement dans
leur reconnaissance et leur apprciation des enjeux
complexes et dlicats auxquels est confront lenfant
homosexuel. La normalisation htrosexuelle et
lanormalisation homosexuelle se retrouve partout
dans le paysage juridique de telle sorte quil est
prsum demble quun enfant manifestant des
tendance non htrosexuelles a subi linfluence dun
homosexuel adulte dviant et prdateur. Les
institutions juridiques rpondent en protgeant ces
enfants des influences homosexuelles, les privant ainsi
dun accs aux normes et aux contextes gais. Lauteur
passe en revue la manire dont les institutions et
instruments importants dans les domaines de la famille
et de la garde, la religion, lducation, de mme que le
harclement et labus verbal, sont employs pour
rendre invisible lenfant homosexuel.
En conclusion, lauteur note que si certains

tribunaux ont commenc
lenfant
homosexuel, il reste beaucoup de chemin parcourir
avant que celui-ci ne se voit confrer une visibilit
juridique entire.

reconnatre

* Professor of Law, UBC. I wish to thank two anonymous reviewers for their helpful suggestions

with respect to an earlier version of this article.

McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 1057
Mode de rfrence : (2004) 49 R.D. McGill 1057

MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL

[Vol. 49

1058

Introduction

1059

1059

1063
1063
1065
1066
1070

1074
1075
1078
1082
1087

1090

I. The Invisible Queer Child

II. Meaning and Content of Normal in the Legal
Context of a Childs Sexuality/Sexual Orientation

A. What Is a Child?
B. Keeping the Child Innocent
C. The Homosexual as Aberrant and Predatory
D. The Nascently Heterosexual Child

III. State Authorized Devices for Normalizing the Child

A. Conceptions of Family and Custody
B. Religion
C. Education
D. Harassment and Verbal Abuse

Conclusion

2004]

B. MACDOUGALL THE LEGALLY QUEER CHILD

1059

Introduction

This paper examines legal and, in particular, judicial involvement in erasing or
diminishing the existence of gay, lesbian, and other queer children.1 In a few recent
but rare cases, Canadian courts have been forced to acknowledge the possibility that
the gay or lesbian child exists; and even then, the courts have applied standards and
condoned treatment that simply would not be applied if the issue before the courts
concerned other (heterosexual) children. Non-heterosexual children are indeed legally
queer. This paper examines first, in Parts I and II, some of the attributes and
assumptions that have circumscribed legal considerations of homosexuality and, in
particular, homosexuality as it intersects with children. Finally, in Part III, an
examination is carried out of specific institutions and contexts that have been
particularly significant in contributing to the legal disinclination in associating
homosexuality with children.

I. The Invisible Queer Child

The inadequate legal treatment of children and homosexuality is evidence of a far
greater social refusal to associate children with homosexuality: an intense and
pervading message of hetersexual normalization is thoroughly reinforced in young
people, even within homosocial contexts like clubs and sports teams. Children are
exposed to television shows and movies that almost always portray boys and girls in
specific rolesroles with expectations of heterosexuality on maturity. Social and
athletic groups (scouts, sports teams, big sisters, etc.) are organized along gender lines
with messages of heterosexuality offsetting the homosocial context of the
organization itself.2 Other instances of heterosexual normalization include events such
as Family Day (i.e., heterosexual Family Day), performances by a king and
queen in community or school events, and Valentines Day ceremonies and
expectations. Such social events are remarkably symboliceven intentionally
symbolic. Their message of heterosexual normalization and homosexual
abnormalization cannot be lost on any personyoung or old; these events are

1 While the intent of this paper is to deal with queer children generally, including gay, lesbian,
bisexual, transgendered, intersexed, and, perhaps most importantly, questioning children, the
available decisions and existing law deal only with gay and lesbian childrenespecially the former.
Gay and lesbian children do have at least some legal visibility, whereas bisexual, transgender, and
other queer children are likely to be even less legally understood or recognizedthough in medical
and scientific learning they may already have a real presence. Furthermore, adult support movements
for gays and lesbians have made significant inroads, whereas those for bisexual and transgender
people have made fewer advances, at least in Canada. See Andrew N. Sharpe, Transgender
Jurisprudence: Dysphoric Bodies of Law (London: Cavendish, 2002).

2 See Pat Griffin, Homophobia in Sport: Addressing the Needs of Lesbian and Gay High School
Athletes in Gerald Unks, ed., The Gay Teen: Educational Practice and Theory for Lesbian, Gay, and
Bisexual Adolescents (London: Routledge, 1995) 53.

MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL

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powerful devices of social inclusion or exclusion.3 While society may not purport to
conceive of a child as sexual, it certainly conceives of him or her as nascently
heterosexual.

[Vol. 49

As in traditional society, with few exceptions, the law, in the form of legislation,
case law, or administrative practice, has great difficulty conceptualizing a child who
does not conform to the nascently heterosexual ideal. A child exhibiting homosexual
sexuality is presumed to be (or to have been) influenced by an adult. The law
responds to such a presumption by sheltering (protecting) the child from
homosexual people or homosexual influences. Children (including gay children) are
thus denied ready access to gay norms and contexts: they are protected. At the same
time, however, children are exposed to numerous statements or policies designed to
convey the message that children who consider themselves homosexual are not
normal. In Hall (Litigation guardian of) v. Powers,4 a child, who specifically self-
identified as gay, was successful in bringing an action against the principal and the
school board to allow him to take his same-sex date to the high school prom. While
the court allowed the application, it nevertheless condoned the general anti-
homosexual sentiment present in the Catholic school, even in the face of the obvious
presence of at least one gay student in its classroom. Clearly, there was no judicial
concern for protecting this childs homosexuality.

The law presumes that children cannot be gay, or lesbian, or anything other than
heterosexual. If children are bullied, or if they commit suicide, the courts and legal
institutions give excessive weight to even the slightest evidence suggesting that the
child was not gay.5 It is never assumed that the child might in fact be gay and that he,
or others like him, might be in need of positive reinforcement with respect to their
sexuality. One consequence of this failure to recognize potentially gay children is that
there are, in fact, very few cases in Canada involving the rights of queer children.6
Those cases that have reached the Supreme Court of Canada, and which are of crucial
importance for homosexual youth,7 were argued at the adult level. That is, the
primary focus throughout these trials was on adults and adult rights rather than on
children.

3 See Bruce MacDougall, Queer Judgments: Homosexuality, Expression, and the Courts in Canada

(Toronto: University of Toronto Press, 2000) at 157 [MacDougall, Queer Judgments].

4 (2002), 59 O.R. (3d) 423, 213 D.L.R. (4th) 308 (Sup. Ct.) [Hall cited to O.R.].
5 See e.g. School District No. 44 (North Vancouver) v. Jubran, [2003] 3 W.W.R. 288, 9 B.C.L.R.
(4th) 338 (S.C.) [Jubran cited to W.W.R.] (the child was not, in fact, gay despite being tormented by
other school children for that reason).

6 See Jubran, ibid.; MacDougall, Queer Judgments, supra note 3 at 110-11; Andi OConor, Who
Gets Called Queer in School? Lesbian, Gay, and Bisexual Teenagers, Homophobia, and High School
in Unks, supra note 2, 95.

7 See especially Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 221 D.L.R.
(4th) 156 [Chamberlain (S.C.C.) cited to S.C.R.]; Trinity Western University v. British Columbia
College of Teachers, [2001] 1 S.C.R. 772, 199 D.L.R. (4th) 1 [Trinity Western cited to S.C.R.].

1061

B. MACDOUGALL THE LEGALLY QUEER CHILD

2004]

In Chamberlain v. Surrey School District No. 36, the argument centred around
childrens access in schools to educational materials on same-sex parents.8
MacKenzie J.A., after reviewing the authorities on human dignity and Charter
principles in prohibiting adult discrimination on the grounds of sexual orientation,
stated that [d]iscrimination against children because of the sexual orientation of their
parents would be even more invidious.9 Most invidious, however, and apparently not
considered as a possibility by the courts, is discrimination against children because of
their own sexual orientation. It did not cross the many judicial minds of both the
Court of Appeal and the Supreme Court of Canada that some of the children in the
school might be gay or lesbian. Similarly, in Trinity Western, where students training
to be teachers were required to (and did) sign anti-gay pledges, the judges were
apparently ignorant of the interests of non-heterosexual studentscertainly such
interests were not considered.10 We might speculate whether cases such as
Chamberlain and Trinity Western would have been treated differently had a gay
student challenged the impugned actions. As I have said of the Trinity Western case:

The judges did not ask how a homosexual teacher or student would likely feel
if they knew that the colleague or teacher had voluntarily signed a document to
become a teacher saying that their actions, and therefore they, are biblically
condemned and to be lumped in with cheaters, drunks, thieves and so on.11

Legal academics and queer activists have also, at times, overlooked the existence and
interests of queer children.12 The interests of queer children are thus largely ignored.

Children often have little or no voice in situations in which they are so directly
affected; therefore, adults speak for them. Very often, these adults (frequently
government workers, sometimes child-welfare advocates, and occasionally
academics) do not understand the complexities inherent in being a gay, lesbian, or

8 Chamberlain v. Surrey School District No. 36 (2000), 191 D.L.R. (4th) 128, [2000] 10 W.W.R.

393 [Chamberlain (C.A.) cited to D.L.R.].

9 Ibid. at para. 36.
10 The notable exception was dissenting Justice LHeureux-Dub. See text accompanying notes

136-37.

11 Bruce MacDougall, A Respectful Distance: Appellate Courts Consider Religious Motivation of
Public Figures in Homosexual Equality Discoursethe Cases of Chamberlain and Trinity Western
University (2002) 35 U.B.C. L. Rev. 511 at 524-25 [MacDougall, A Respectful Distance].

12 For example, Kathleen A. Lahey discusses the difficulties of counting how many children are in
gay and lesbian-parented families, but she does not addess the more difficult question of how to count
gay and lesbian children (Law and Sexuality in Canada (Toronto: University of Toronto Press, 1999)
at 187-90). In their article on Chamberlain at the superior court level, Shaheen Shariff, Roland Case
and Michael Manley-Casimir identify three general groups of children whose rights and interests
were affected by the decision: Children of parents who personally endorse homosexuality; [c]hildren
of tolerant heterosexual parents; [and] [c]hildren of non-tolerant heterosexual parents (Balancing
Competing Rights in Education: Surrey School Boards Book Ban (2000) 10 Educ. & L.J. 47 at 77).
Homosexual children themselves are not identified. See also Shaheen Shariff, Roland Case & Linda
LaRocque, Begging the Questions: The Court of Appeal Decision in the Surrey School Board Book
Controversy (2000) 11 Educ. & L.J. 85.

[Vol. 49

MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL

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bisexual child; many do not even consider the possibility that a child of such sexual
orientation could exist. In reference to the context of child protection generally,
Nicholas Bala has said that [w]hile child protection workers are typically white,
well-educated and from middle-class backgrounds, their clients most often are poorly
educated, living in or near poverty, and not infrequently members of a racial minority
group and living in a family led by a single parent.13 To this list, one can add that
child protection workers themselves are often heterosexual, or they have a
heterosexual view of children even though the children they confront are, at least
some of the time, not heterosexual.

Even gay or lesbian adults cannot always speak authentically for a gay or lesbian
child. Circumstances change; and voices in different generations speak differently.
Some gay and lesbian adults have perhaps forgotten the multitude and complexity of
issues that arise with respect to being young and queer. Eric Rofes has noted, for
example, that at least two large barriers prevent professionals and gay activists from
confronting the phenomenon of the school sissy. Rofes writes:

To say sissies = gay male youth is considered offensive to many in the gay
community. Instead we insist that gay youth are fully integrated throughout our
schools: they are on the football team as well as the drama club, student council
as well as art class, the computer club and the swim team. We tell the world
that childhood sissies grow up to be men of all sexual orientations.

The second reason that little attention has focused on the plight of the sissy
is that gay male activists and educators alike carry unresolved feelings about
their own sissy pasts. When we left home and fled to a safer location, we did
our best to leave our sissy identities behind.14

Debbie Epstein and Richard Johnson have a somewhat different perspective on this
generational situation. They write that different generational trends in lesbianism have
aided in creating a disparity between different generations:

[P]art of the early 1990s apparent explosion of lesbian chic has focussed on
young, attractive, women supposedly less politicized through an engagement
with feminism than their older (and unattractive) sisters, confident, visible
on the scene, and apparently invested chiefly in having a good time. Many
young lesbians may play with, perform, or invest themselves in, such images,
without this constituting the whole of their lives; and their experiences at
school may not bear much similarity to the media images or to their own
leisure time pursuits.15

A final obstacle to the creation of an environment where adults can speak confidently
or strongly for queer youth is the dread experienced by many gay and lesbian adults

13 Nicholas Bala, An Introduction to Child Protection Problems in Nicholas Bala, Joseph P.
Hornick & Robin Vogl, eds., Canadian Child Welfare Law: Children, Families and the State
(Toronto: Thomson Educational, 1991) 1 at 15.

14 Eric Rofes, Making Our Schools Safe for Sissies in Unks, supra note 2, 79 at 81.
15 Debbie Epstein & Richard Johnson, Schooling Sexualities (Buckingham: Open University Press,

1998) at 154.

B. MACDOUGALL THE LEGALLY QUEER CHILD

2004]

who fear being accused of trying to convert young people into homosexuals.
Below, I will discuss how the idea of the proselytizing homosexual has tenaciously
gripped the social landscape. Simply put, gay and lesbian adults working with
children, whether as teachers, social workers, or scout leaders, treat the queer child as
a highly controversial and potentially volatile issue.

1063

II. Meaning and Content of Normal in the Legal Context of a

Childs Sexuality/Sexual Orientation

A. What Is a Child?

A preliminary issue, of course, is to determine what we mean by child
whether queer or not. The law is surprisingly black and white, though distinctly
inconsistent, on this issue. Julia Fionda observes the arbitrary state of the law in the
British context:

[L]aws which state that a young person can legally have sex at sixteen, vote at
eighteen, drink alcohol at home at five but not purchase it until eighteen, marry
(with parental consent) at sixteen but not have a homosexual relationship until
eighteen, apply arbitrarily and take little account of the extent to which that
person is actually adult enough to indulge in such activities.16

In Canada, the age of majority is nineteen in British Columbia17 and eighteen in
Alberta.18 According to the Marriage Act of Ontario,19 a person can only marry (with
parental consent) at the age of sixteen. In Legebokoff v. Legebokoff, however, it was
held that at common law, the marriage of a child of less than seven years was void.20
The marriage of a male older than seven years but younger than fourteen years, or a
female older than seven years but younger than twelve years, was only voidable at the
instance when the child attained the required minimum age. The age of consent for
most sexual acts is fourteen,21 but the child pornography provisions of the Criminal
Code apply if the person depicted looks to be under the age of eighteen.22

Part of the problem in legally conceptualizing the child is the fairly recent

development of the child qua child as a special concern of the law. The child has also
arisen as a new social concern. Fionda notes that the construction of children as a
social group is a modern phenomenon and that childhood in this sense was non-

16 Julia Fionda, Legal Concepts of Childhood: An Introduction in Julia Fionda, ed., Legal

Concepts of Childhood (Oxford: Hart, 2001) at 13.
17 Age of Majority Act, R.S.B.C. 1996, c. 7, s. 1.
18 Age of Majority Act, R.S.A. 2000, c. A-6, s. 1.
19 R.S.O. 1990, c. M.3, s. 5(2).
20 (1982), 28 R.F.L. (2d) 212 at 215 (B.C. S.C.), relying on Kerr v. Kerr, [1934] S.C.R. 72 at 77, 2

D.L.R. 369.

21 Criminal Code, R.S.C. 1985, c. C-46, s. 150.1.
22 Ibid., s. 163.1.

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existent until at least the seventeenth century in (largely middle class) Europe.23 To
the extent that the law was concerned with children, historically, the child was treated
more or less as the property of the father (in much the same manner in which women
were treated). In the grammar of the law, the child was accusative, not nominative;
therefore, a child was not capable of entering into agreements or fully owning
property independently. Blackstone wrote:

[Vol. 49

The legal power of a father (for a mother, as such, is entitled to no power, but
only to reverence and respect) the power of the father, I say, over the persons of
his children ceases at the age of twenty one: for they are then enfranchised by
arriving at years of discretion, or that point which the law has established (as
some must necessarily be established) when the empire of the father, or other
guardian, gives place to the empire of reason. Yet, till that age arrives, this
empire of the father continues even after his death; for he may by his will
appoint a guardian to his children.24

The law also approached womens sexuality from a male perspective. Similarly, a
childs sexuality was approached from a male (adult) perspective. As such, the child,
as a proprietary object over which adults fought, was not legally conceptualized as
distinct from a parent or parent substitute. Michael Freeman notes that remnants of the
ideology of the child as property have remained even beyond the period in which
modern child law developed.25 Writing in 1975, Mia Kellmer-Pringle was able to
recognize the attitude that a baby completes a family, rather like a TV set or fridge …
a child belongs to his parents like their other possessions over which they may
exercise exclusive rights.26

The idea, then, of a child having rights of his or her ownespecially as against
the rights of adults (and most especially as against the rights of his or her parents)
was not really considered until very recently. Even today, Canadian courts are
reluctant to detach childrens rights from those of their parents. In B. (R.) v. Childrens
Aid Society of Metropolitan Toronto, Iacobucci and Major JJ. stated that a parents
freedom of religion does not include the imposition upon the child of religious
practices which threaten the safety, health or life of the child.27 The judges apparent
recognition of the childs distinct rights is problematic, however, as they seem more
concerned with the physical integrity of the child than with the childs mental well-
being. Furthermore, though there was much acclaim for Canadas accession to the

23 Fionda, supra note 16 at 3-4.
24 William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of

1765-1769, vol. 1 (Chicago: University of Chicago Press, 1979) c. 16 at 441.

25 Michael Freeman, The Child in Family Law in Fionda, supra note 16, 183 at 187.
26 Mia Kellmer-Pringle, The Needs of Children, 3d ed. (London: Hutchinson, 1975) at 69-70 cited

in Freeman, The Child, ibid. at 187.

27 B. (R.) v. Childrens Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at para. 225, 122

D.L.R. (4th) 1.

B. MACDOUGALL THE LEGALLY QUEER CHILD

2004]

Convention on the Rights of the Child,28 it does not appear to have had much impact
in terms of according children real rights as distinct from (and sometimes opposed to)
those of their parents.29

1065

B. Keeping the Child Innocent

The present-day legal construction of children, in terms of sexuality, is not

particularly ancient; though it is, it would seem, deeply entrenched. The legal change
in attitude toward children first began in the late Victorian era and it continued into
the twentieth centuryan era of reform generally. Interestingly, the twentieth century
was also the period in which women emerged (legally) as equals to men. However, as
women began to be accorded full adult rights, children began to be insulated from
access to rights. In essence, children were pushed further and further away from the
rights and status associated with adulthood. This theoretical movement encompassed
the sheltering of children from adult experiences. Sheltering now informs the
modern construction of children as innocentthe very antithesis of homosexuals and
homosexuality. On this characterization of innocence, Chris Jenks writes that [s]uch
a conception has set the public standards for our demeanour towards the child, and for
our expectations of policy and provision in relation to the child. Such infants are
essentially pure in heart, angelic and uncorrupted by the world that they have
entered.30 Lise Gotell states, The child as a symbol of innocence, asexuality and
moral boundaries comes to represent sexual order. The visible sexuality of the child
symbolizes, in turn, the violation of sexual order.31 The child has thus emerged,
primarily, as an asexual legal construction (with heterosexual potential, as will be
argued below).

In fostering the idea of the child as innocent, though nascently heterosexual,
courts have gone to great lengths to protect children from potential sexual harm.
Examples of this arise most frequently in cases where any issue surrounding a childs
sexual expression exists. Therefore, in R. v. Sharpe,32 even though there was no

28 20 November 1989, Can. T.S. 1992 No. 3, (entered into force 2 September 1990, accession by

Canada 12 January 1992).

29 See R. Brian Howe & Katherine Covell, Schools and the Participation Rights of the Child
(2000) 10 Educ. & L.J. 107. See generally Shauna Van Praagh, Faith, Belonging, and the Protection
of Our Children (1999) 17 Windsor Y.B. Access Just. 154. On childrens rights generally, see the
articles in the special issue of Childrens Rights: A Re-appraisal in the light of the United Nations
Convention on the Rights of the Child (1992) 6 Intl J. L. & Fam.

30 Chris Jenks, Sociological Perspectives and Media Representations of Childhood in Fionda,

supra note 16, 19 at 26.

31 Lise Gotell, Inverting Image and Reality: R v. Sharpe and the Moral Panic around Child
Pornography (2001/2002) 12 Const. Forum Const. 9 at 13. See also Bruce Ryder, The Harms of
Child Pornography Law (2003) 36 U.B.C. L. Rev. 101.

32 [2001] 1 S.C.R. 45, 194 D.L.R. (4th) 1 [Sharpe cited to S.C.R.] (upholding the constitutionality
of Canadas law banning the possession of child pornography, subject to the reading in of two
exceptions).

MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL

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evidence of actual harm to children, the Court went to great pains to consider the
potential sexual harm child pornography could cause. The minority judgment in
Sharpe reveals this type of overt judicial protectionism:

[Vol. 49

The derivation of sexual pleasure from the possession of child pornography
undermines childrens rights and does violence to the values which are
essential to a free and democratic society. In our view, Parliament had a
reasonable basis for believing that the prohibition of the possession of child
pornography would foster and protect childrens Charter rights.33

Also, in Sharpe, the Court faced the most difficult of questions in that it was a
child himself who had generated the pornographic material;34 and no other child
was involved. Both the majority and the minority devoted much attention to
considering and evaluating these issues. The minority was palpably uncomfortable
with the association of children and sexual experience. For the minority, LHeureux-
Dub, Gonthier, and Bastarache JJ. stated:

Parliament has recognized that children are the most vulnerable members of
our society and that they are especially vulnerable to sexual abuse. Any
provision which protects both children and society by attempting to eradicate
the sexual exploitation of children clearly has a pressing and substantial
purpose.35

As for childrens own writings, the minority thought that that issue was best left to
lenient sentencing, such that any concern that the law might interfere unduly with the
freedom of expression of teenagers should be addressed in light of the Young
Offenders Act.36 [A]ny teenager convicted for possession of child pornography
would have the benefit of a more lenient sentence and measures aimed at
rehabilitation and social reintegration.37 It is an astonishing situation that children
would be confronted by the criminal justice system simply for possessing sexually
explicit depictions of people just like themselves.

C. The Homosexual as Aberrant and Predatory

The late Victorian period and early twentieth century saw the development of the

foundations of our modern construction of children as distinct from adults (both
socially and in the law). So, too, did the concepts of homosexual and heterosexual
become
(particularly
buggery/sodomy) carried criminal consequences; however, neither the law nor society
had any real conception of a person as either homosexual or heterosexual until the

established. Historically,

acts

certain

homosexual

33 Ibid. at para. 203.
34 See Gotell, supra note 31 at 21; June Ross, R v. Sharpe and the Defence of Artistic Merit
(2001/2002) 12 Const. Forum Const. 23 at 24; Shannon Bell, Sharpes Perverse Aesthetic
(2001/2002) 12 Const. Forum Const. 30 at 30.

35 Supra note 32 at para. 194.
36 R.S.C. 1985, c. Y-1, as rep. by Youth Criminal Justice Act, S.C. 2002, c. 1, s. 199.
37 Supra note 32 at para. 231.

B. MACDOUGALL THE LEGALLY QUEER CHILD

2004]

twentieth century.38 Only over time did the law and society begin to characterize certain
men, and then certain women, as homosexual. However, as I shall argue, such a
characterization for a child was unimaginable.

1067

judicial presumption

While it is true today that men and women may be classified as homosexual for
certain legal purposes, the prevalent attitude nevertheless remains that adult
homosexuality is an aberrationit entails a state of heightened sexualization. Thus,
homosexuality is directly equated with sexual acts in a way that heterosexuality is
not.39 Judges have made this assumption even in cases where they have taken a
positive approach to the actual resolution of a legal situation involving
homosexuality. The
that homosexuals are abnormally
preoccupied with sex is reflected in numerous cases. In Little Sisters Book and Art
Emporium v. Minister of Justice, the court considered the treatment by Canada
Customs and Revenue Agency of imported literature with homosexual content.40
Smith J. stated, without any consciousness of a double standard, that [s]ince
homosexuals are defined by their homosexuality and their art and literature is
permeated with representations of their sexual practices, it is inevitable that they will
be disproportionately affected by a law proscribing the proliferation of obscene sexual
representations.41 Less sympathetic courts have had no difficulty jumping to
conclusions about the sexual propensities of homosexuals. In Vriend v. Alberta,42
McClung J.A., for the majority at the Court of Appeal, knew nothing about the
specific sexual practices of Mr. Vriend, who had lost his job because he was gay.
Nevertheless, he felt comfortable concluding that Mr. Vriend was engaged in
sodomyan act he thought the Alberta legislature should not validate.43 Furthermore,
McClung J.A. clearly associated homosexuality with criminally abnormal sexual
practices as this is the only possible explanation as to why the judge thought it was
relevant to the case to mention the Dahmer, Bernardo and Clifford Robert Olsen
prosecutions as recently raising heightened public concern about violently aberrant
sexual configurations and how they find expression against their victims.44

Besides the presumption that homosexuals are excessively sexual, a further
justification for the perception that homosexuals are abnormal appears to be, at least

38 See Wayne R. Dynes, ed., Encyclopedia of Homosexuality, vol. 1 (New York: Garland, 1990) at
555-56, s.v. homosexual (term). See generally David F. Greenberg, The Construction of
Homosexuality (Chicago: University of Chicago Press, 1988).

39 See generally MacDougall, Queer Judgments, supra note 3; but see especially MacDougall,

Queer Judgments, supra note 3, c. 2 at 63 (Censorship and Censoriousness).

40 Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (1996), 131 D.L.R. (4th),
18 B.C.L.R. (3d) 241 (Sup. Ct.); affd (1998), 160 D.L.R. (4th) 385, 54 B.C.L.R. (3d) 306 (C.A.);
revd [2000] 2 S.C.R. 1120, 193 D.L.R. (4th) 193.

41 Ibid. at para. 135.
42 (1996), 181 A.R. 16, 132 D.L.R. (4th) 595 (C.A.) [Vriend (C.A.) cited to D.L.R.], revd [1998] 1

S.C.R. 493, 156 D.L.R. (4th) 385.
43 Vriend (C.A.), ibid. at para. 32.
44 Ibid. at para. 36.

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to some judges, the propensity of homosexuals (both men and women) to force their
sexual practices on othersincluding, or perhaps especially, on children. This
presumption is wholly unfounded since it is almost always heterosexuals who prey
sexually on children. Lise Gotell writes, in commenting on Sharpe, that child sexual
abuse is overwhelmingly a heterosexual crime. This is erased in the dominant
construction of the pedophilic child pornographer as homosexual. Representations of
Sharpe have focussed obsessively on his homosexuality.45 Nevertheless, this view of
homosexuals as predators of the young finds abundant expression and support in
judicial decisions. For example, violence in institutions is identified as homosexual. In
one case involving the sentencing of a young offender46 the court was concerned that
if the youth was put into an adult facility, there would be a risk that he would be
forced into homosexual activity. As a psychological report referred to by the court
noted, [H]e would easily be the target of regular and frequent, sometimes forced
homosexual activity that occurs in these [adult] institutions. This includes gang rape
and a great deal more.47 The court explained that [a]ggressive homosexual inmates
are not automatically placed in segregation.48 In another young offender case,49 in
setting out why there were problems in moving the accused to an adult facility,
Murray J. noted:

A young offender who is not sufficiently tough will be abused physically,
sexually and used to carry out the wishes of other inmates, such as being a drug
courier. If he refuses the protection and homosexual advances from a tougher,
older inmate, then he will be raped and abused until he accepts that
protection.50

Note that the advances are not simply sexual; they are homosexual.

Other instances where judges make the wrong presumptions about homosexuals
include cases where an adult sexually assaults a child of the same sex. In such cases,
some judges appear to think it is logical to turn the case into a paradigm that serves to
illustrate the nature of homosexuals and homosexuality generally. It is unimaginable
that a court would follow this kind of reasoning in an equivalent heterosexual
situation. For example, in R. v. Paquette,51 where a man was convicted of sexual
assault and gross indecency on a boy, the court considered the threat of the boy

45 Gotell, supra note 31 at 15.
46 R. v. T.D.E. (1991), 116 A.R. 382 (Prov. Ct. (Youth Div.)).
47 Ibid. at para. 30.
48 Ibid. at para. 40.
49 R. v. G.J.M. (1992), 130 A.R. 33 (Q.B.), revd (1993), 135 A.R. 204 (C.A.), leave to appeal to

S.C.C. refused, [1993] 2 S.C.R. vii.

50 Ibid. at para. 47. See also Collin v. Kaplan (1982), [1983] 1 F.C. 496, 143 D.L.R. (3d) 121 (T.D.);
R. v. H (R.A.), [1989] O.J. No. 604 (Youth Ct.) (QL); R. v. S. (W.) (1989), 31 O.A.C. 372, 69 C.R. (3d)
168; R. v. M.(A.J.) (1986), 46 Alta. L. R. (2d) 306, 29 C.C.C. (3d) 418 (Q.B.); Piche v. Canada
(Solicitor General), [1984] F.C.J. No. 1008 (T.D.) (QL); R v. E.S., [1991] A.J. No. 873 (Prov. Ct.
(Youth Div.)) (QL).

51 [1988] B.C.J. No. 1624 (Co. Ct.) (QL).

B. MACDOUGALL THE LEGALLY QUEER CHILD

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becoming homosexual. In addressing the accused adult, the judges underlying belief
that the boy could be converted (obviously from heterosexual to homosexual) was
central to the analysis. Selbie Co. Ct. J. said:

1069

This fatherless boy was vulnerable and you took full advantage of that. You
deliberately and carefully gained the trust of the boy and his mother with the
intention of abusing it and if you believe that leading a youth into
homosexuality is not an abuse, then this Court disagrees with you. …

We have here then the sordid scenario of an aging homosexual on the hunt
for a young vulnerable youth with little or no concern for the long term effect
on the youth himself.52

The language used by the judge conveys the underlying assumptions of the court:
the aging homosexual, the fatherless boy, the young vulnerable youth, and his
mother are all part of a hunt that is a sordid scenario. It is difficult to conceive of
the use of judicial language such as an aging heterosexual or leading a girl into
heterosexuality in circumstances where the victim of a male perpetrator is a girl.

Associating homosexuals and homosexuality with a desire to have sex with
children is sometimes not entirely a consciously made connection on the part of the
court. Rather, it is more of an automatic association. In a Nova Scotia case, a
provincial court judge ordered a man to stay away from boys unless accompanied by
a heterosexual adult.53 The underlying assumption was that the company of a
homosexual adult would not adequately protect boys from being preyed upon.
Further, when the courts are more accepting of homosexuals and homosexuality in
deciding cases involving children and homosexuality, concern and fear seem to creep
into the analysis to the extent that wrong presumptions about homosexuality are
drawn. Fear of sexual conversion of the child, exposure of the child to promiscuity,
and the threat of homosexual advances are concerns that simply would not arise in the
equivalent heterosexual context. In Templeman v. Templeman, for example, there was
a custody and access dispute between a divorced mother and father over their two
children.54 The father had realized, during the marriage, that he was gay;
subsequently, the marriage had broken down. The court acknowledged that
homosexuality in a parent would not, in and of itself, prevent custody or access for
that parent. Nevertheless, in granting access to the father, the court added, In the
event that the respondent [father] exposes his children to a promiscuous lifestyle or to
harmful influences, the petitioner of course, has the right to vary these access
provisions.55 There was no evidentiary basis of any kind whatsoever to give rise to
the concern for the fathers tendency towards promiscuity. He was, however,
homosexualthus, the judicial concern arose naturally.

52 Ibid. at paras. 5-6.
53 See Rick Conrad, Apology Not Enough, Says Gay Rights Group [Halifax] Mail-Star (16

December 1995) A9.

54 [1986] B.C.J. No. 1426 (S.C.) (QL).
55 Ibid. at para. 12.

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D. The Nascently Heterosexual Child

Inherent in the notion that homosexual adults prey on children and that children
need to be protected from homosexuality, is, of course, the related idea that
homosexuality is not natural to, or native in, children. Rather, children are conceived
of as pure and innocent. This notion of innocence gives meaning to the idea of
protectionwithout it, protection would be meaningless. Note, however, that
children are not protected from heterosexuality. Thus, while children are not thought
to be sexual, or to have an active sexual orientation, they are nevertheless treated as
nascently heterosexual. That is, they are thought of as beings who naturally will
develop into heterosexuals. They may not have a present sexual orientation; however,
they should be exposed only to heterosexual situations so as to ensure that they reach
their heterosexual potential. The various hetero-erotic messages children receive are
either not considered sexual or not considered relevant. Sometimes, such messages
are not considered at all. Since homosexuality is, on the one hand, associated with
sex, and on the other hand, associated with images of deviant sex acts, the inevitable
conclusion is that homosexuality cannot be associated with children: to allow such an
association creates the potential for children to be seduced into adopting the
homosexual lifestyle. Also, if children can be taught to be homosexual, then in what
other deviant sexualities might children be implicated?

There are numerous examples of this presumption that homosexuality is not
native to children (and the corresponding idea that children will develop naturally into
heterosexuals). In Saunders v. Saunders,56 where a father in a homosexual relationship
wanted access to his child, Wetmore Co. Ct. J. stated, Surely it cannot be argued the
exposure of a child to unnatural relations is in the best interests of that child of tender
years.57 In another case, where a school principal was convicted of sexually
assaulting boys, Marshall J., in a lengthy discussion of pedophilia and its effects on
children, said, Serious problems of sexual adjustment and sexual orientation in life
often also follow. All show a sharp loss in self-esteem and confusion in their own
sexual orientation. Some go on to develop frank homosexuality and paedophilia
itself.58 In R. v. Noyes,59 despite witness evidence suggesting it was doubtful that the
sexual assault of a male child by a male adult might lead to future paedophilia or
homosexuality in the victim himself, Paris J. thought it not unreasonable … that a
process of patterning of the childs sexual personality may take place, just as such
patterning takes place in other areas of a childs personality, attitudes and beliefs
during the crucially formative years of pre-pubescence and early adolescence.60

56 (1989), 20 R.F.L. (3d) 368 (B.C. Co. Ct.).
57 Ibid. at 370-71.
58 R. v. H. (E.), [1987] N.W.T.R. 168 at 174 (Sup. Ct.).
59 (1986), 6 B.C.L.R. (2d) 306 (S.C.), affd (1987), 22 B.C.L.R. (2d) 45 (C.A.), leave to appeal to

S.C.C. refused, 27 B.C.L.R. (2d) xxxv.

60 Ibid. at 316. In R. v. Roestad (1971), [1972] 1 O.R. 814, 19 C.R. (N.S.) 190 (Co. Ct.), leave to
appeal refused (1971), 19 C.R. (N.S.) 235 (Ont. C.A.), the court faced the issue of whether to

B. MACDOUGALL THE LEGALLY QUEER CHILD

2004]

While it is true that many children may be ambivalent about their sexual orientation,
the unspoken assumption in these cases is that children should be steered toward
heterosexuality. A child naturally developing as a homosexual is believed to have
been contaminated. Nowhere is the possibility considered by the courts that a child is
decidedly homosexual.

1071

The aversion to associating children with homosexuality is not only prevalent in
judicial decisions. Some laws, with respect to homosexual practices, were grounded
in a fear of homosexual contagion. Reed J., in Halm v. Canada, said of the section on
anal intercourse (section 159) of the Criminal Code:61

A reading of the debates of the legislative history, including the Wolfenden
Report, makes it clear that a distinction was made between the age of consent
under what is now section 159 and the age of consent for other types of
consensual sexual activity because (1) homosexual practices were considered
immoral and (2) there was a concern that homosexuality was a learned
behaviour or a disease such that de-criminalizing the activity in question could
lead to youth being corrupted.62

Thus, the language of disease permeates the laws treatment of homosexuality and
children. Implicit in these statements about the abnormality of homosexuality, is the
assumption that homosexuality is alluring to those with weak minds (including
children): it is both seductive and unnatural or aberrant. This perceived seductive
quality leads courts, the legal system, and society to conclude that homosexuality
infects societymuch like a contagious disease. The courts act as the guardians of
social good in this respect, inhibiting the undue spread of homosexuality. This
perception of homosexuality as infectious is blatant, for example, in the 1953 case of
R. v. National News Co. Ltd.63 In this case, a company was charged with possession of
obscene matter, including the novel, Womens Barracks,64 which dealt with
lesbianism. Pickup C.J. noted:

Counsel contends that the tendency to corrupt and deprave should be related to
normal persons only. If this means persons who are immune to immoral
influence from obscenity, the legislation under consideration would not be

designate a man faced with charges involving sex with boys as a dangerous sexual offender. The court
heard evidence on the subject of whether the boys could become homosexual as a result of the
attacks. Graburn J. summarized the evidence of one of several experts as follows:

Synthesizing Dr. Coopers evidence, he is of the view that out of the large number of
boys who would be involved, it could be assumed that at least two would be adversely
affected either by becoming a homosexual or by suffering psychological disturbances
(at 229).

In reference to another situation, the judge called becoming homosexual a potential harm (at 230).
See also R. v. W.B.S. (1992), 127 A.R. 65, (sub nom. R. v. P.(M.)), 73 C.C.C. (3d) 530 (C.A.).

61 Supra note 21, s. 159.
62 Halm v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 331 at 358-59 (T.D.).

See R. v. M. (C.) (1995), 23 O.R. (3d) 629, 41 C.R. (4th) 134 (C.A.), Abella J.A.

63 [1953] O.R. 533 (C.A.) [National News].
64 Tereska Torres, Womens Barracks (New York: Fawcett, 1950).

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necessary at all. On the other hand, I am not holding that matter is obscene
which tends to corrupt and deprave only persons who are corrupted and
depraved. Between these extremes there must be a large section of the public,
young and old, whose minds are not corrupt and depraved but are open to
immoral influences.65

Legally, homosexuals are conceived of as sexual and predatory by nature;
however, there is also a legal expectation that homosexuals must alter their sexual
practices. For example, this expectation of ready change is implicit in both attitudes
toward children and also toward adults. Such an expectation is reflected in the Roman
Catholic Churchs condemnation of homosexual actsthe hope being that
homosexuals will change their ways. To the extent that the law does recognize a child,
or an adult, as gay or lesbian, too frequently there is an expectation that that person
will control actions flowing from their homosexual condition. The pinnacle of this
judicial and legal attempt at the desexualization of homosexuality is most clearly
reflected in Re Layland and Minister of Consumer and Commercial Relations, where
Southey J. noted:

The law does not prohibit marriage by homosexuals provided it takes place
between persons of the opposite sex. Some homosexuals do marry. The fact
that many homosexuals do not choose to marry, because they do not want
unions with persons of the opposite sex, is the result of their own preferences,
not a requirement of the law.66

One variation on this judicial attempt at desexualization is where the courts
analogize same-sex relationships to one of just friends. In Egan v. Canada, for
example, the court compared the living arrangements of a homosexual couple with
that of a bachelor and a spinster who live together as a means of reaching the
conclusion that neither type of couple fall[s] within the traditional meaning of the
conjugal unit or spouses.67 Likewise, in the same case, La Forest J. noted that gays
and lesbians are like all sorts of other couples living together such as brothers and
sisters or other relatives, regardless of sex, and others who are not related, whatever

65 National News, supra note 63 at 542. It has been argued that more recent cases on pornography
are just more up-to-date versions of this attempt to protect weak people from moral corruption. See
Brenda Cossman, Feminist Fashion or Morality in Drag? The Sexual Subtext of the Butler Decision
in Brenda Cossman et al., eds., Bad Attitude/s on Trial: Pornography, Feminism and the Butler
Decision (Toronto: University of Toronto Press, 1997) 107; Brenda Cossman, Disciplining the
Unruly: Sexual Outlaws, Little Sisters and the Legacy of Butler (2003) 36 U.B.C. L. Rev. 77;
Richard Moon, R. v. Butler: The Limits of the Supreme Courts Feminist Re-Interpretation of Section
163 (1993) 25 Ottawa L. Rev. 361; Ryder, supra note 31.

66 (1993), 14 O.R. (3d) 658 at 666-67, 104 D.L.R. (4th) 214 (Gen. Div.).
67 (1991), [1992] 1 F.C. 687 at 704, 87 D.L.R. (4th) 320 (T.D.), appeal dismissed [1993] 3 F.C. 401,
103 D.L.R. (4th) 336 (C.A.), appeal dismissed [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609 [Egan
(S.C.C.) cited to S.C.R.].

B. MACDOUGALL THE LEGALLY QUEER CHILD

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reasons these other couples may have for doing so and whatever their sexual
orientation.68

1073

The judicial expectation of suppression or desexualization is even stronger when
sexual expression originates in a homosexual child. In Hall, MacKinnon J. rightly
rejected such a characterization by stating that [t]hough dancing can be sexually
expressive, it is not necessarily so. It cannot fairly be equated with having sex.69
Nevertheless, the implication of this statement is that homosexual sex could,
appropriately, be controlled or suppressed by a Catholic school. Similarly, in Trinity
Western, even homosexual students were expected to abjure from any homosexual
activity while attending Trinity Western University.70

While there are numerous instances where courts seek to protect children from
adult homosexuality, there is very little evidence of legal effort to protect them from
adult homophobia. Substantial effort is made, in cases like Sharpe, to consider the
potential harm to a child that may arise in cases involving anything of a sexual nature.
Courts have, however, failed to consider that this child might be gay or lesbianthat
this child may be in need of protection from homophobic situations or statements. In
situations of homophobic expression, or even homosexual expression, the interests of
homosexual children are not canvassed. In the cases discussed in the following pages,
the issue of homosexuality is almost always considered with respect to the adult:
whether a homosexual adult can get custody; whether books about same-sex parents
can be in the curriculum; whether a person, who has signed a document stating that
homosexuality is biblically condemned, is a fit teacher. The potential harm of
homophobia to a homosexual child is simply not addressed, even where, as in
Chamberlain (S.C.C.) or Trinity Western, the facts and the legal holding would have a
direct impact on children. Potential harm to children was the whole point of much of
the argument in Sharpe, despite no evidence of such harm. In Chamberlain and
Trinity Western, by contrast, the notion that there may be potential harm to a
homosexual childwhich would almost certainly result if the child were at all aware
of the circumstances of the casewas not raised for consideration. The reason for this
lack of consideration is the complete obliteration of the queer child from the
legal/judicial mind. Only in cases like Hall, where the court was forced to confront

68 Egan (S.C.C.), ibid. at para 19. This was stated despite strong judicial authority to the contrary.

As Cory and Iacobucci JJ. said:

Sexual orientation is more than simply a status that an individual possesses. It is
something that is demonstrated in an individuals conduct by the choice of a partner.
The Charter protects religious beliefs and religious practice as aspects of religious
freedom. So, too, should it be recognized that sexual orientation encompasses aspects
of status and conduct and that both should receive protection. Sexual orientation is
demonstrated in a persons choice of a life partner, whether heterosexual or
homosexual. It follows that a lawful relationship which flows from sexual orientation
should also be protected (ibid. at para. 175).

69 Hall, supra note 4 at para. 49.
70 Trinity Western, supra note 7.

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the queer child, are the interests of the gay or lesbian child considered. Even then,
when the courts do address the queer child, they do not fully engage in the issue.
Instead, they focus on protecting other interested adults and institutions (e.g., the
Catholic Church), thereby undermining any attention given to the issue of the queer
child.

[Vol. 49

III. State Authorized Devices for Normalizing the Child

The remaining part of this paper explores a handful of important devices and
institutions used by the law, particularly in the context of judicial decisions, to
perpetuate the invisibility of gay and lesbian youth and ensure the separation of
children from homosexuality. These devices and institutions are still remarkably well-
entrenched, despite the manner in which the principle of non-discrimination on the
basis of sexual orientation has taken hold in Canada. The legal devices of
normalization to be examined include: conceptions of family and custody, religion,
education, and homophobic and verbal abuse. It should be noted, too, that there are
other devices. Historically, one of the most important devices was the criminal law. A
remnant of its normalizing attempts can still to be found in section 159 of the
Criminal Code, which prohibits anal intercourse with those under eighteen years of
age (except in a husband-wife situation).71 This provision has only been struck down
in two jurisdictions in Canada. In her reasons for striking down this provision as
unconstitutional, Abella J.A., for the Ontario Court of Appeal, noted that this section
has an adverse impact on gay youth given that [a]nal intercourse is a basic form of
sexual expression for gay men and that [u]nmarried, heterosexual adolescents 14 or
over can participate in consensual intercourse without criminal penalties; gay
adolescents cannot.72 Section 159
in other
jurisdictionsthis must surely be seen by gay youth as an indictment of their
sexuality.

is still potentially applicable

The four devices that I have chosen to examine in more detail show both the
extent of legal attempts at normalization and the extent to which the gay or lesbian
child is accorded a lesser legal significance than a homosexual adult. In many cases,
the interests of the queer child are simply overlookeda result that would be very
difficult to imagine with respect to an adults interests, or even the interests of a
heterosexual child. The queer adult once had a similar invisibility (except in criminal
cases), but this has since been partially remedied. One wonders whether the queer
child will eventually emerge legally, not just as an object of the law, but as a subject
with independent depth and character. As this section will show, however, the devices
and institutions used to suppress the homosexual child are very deeply rooted; the
task is great.

71 Supra note 21.
72 R. v. M. (C.) (1995), 23 O.R. (3d) 629 at 636, 98 C.C.C. (3d) 481 (C.A.). See also R. v. Roy

(1998), 161 D.L.R. (4th) 148, 125 C.C.C. (3d) 442 (Q.C.A.).

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A. Conceptions of Family and Custody

One device that has been used to normalize the childs sexuality is legal control of
the behaviour of the parents. The idea appears to be that maintaining a heterosexual
environment for children is the best assurance that their nascent heterosexuality will
develop normally. This issue arises most obviously and frequently in the context of
custody cases.73 Until very recently, when issues of child custody arose, it was
automatically thought best for the child to be placed in an environment that would
foster his (nascent) heterosexuality. Ideally, this meant placing the child in a
heterosexual environment with no exposure to deviant sexualities. Such an
environment consisted of one (heterosexual) father and one (heterosexual) mother
living together.74 If the child was unfortunate enough to have a homosexual parent,
that parentif allowed to have any contact with the childwould be expected to
closet his or her homosexuality. While more recent cases do not exhibit the same level
of overt hostility to the idea of a homosexual parent having custody, there is still
evidence of unease. At the very least, questions that would not arise in a comparable
heterosexual situation are asked.75

In one custody case, the mother regained custody of her daughter when she
ceased cohabiting with her female lover. When she later resumed cohabitation with
that partner, MacKinnon J. said:

It is, in my view, relevant and significant that the mother would risk losing
custody of the girls rather than terminate her cohabitation with Mrs. Whittle.
She knew the basis of the order of Macdonell J. It was she who sought the
variation on the grounds of terminating the cohabitation. In resuming it, she left
no doubt as to the priority of her relationship with her companion. It was the
paramount consideration. She wanted custody. It was, however, not at the
sacrifice of the homosexual relationship.76

As reflected in that case, a court sometimes bribes a gay parent by implying that
if the parent gives up his or her homosexuality, he or she may have a chance in taking
custody of the child. Where the homosexual parent is not expected to give up
homosexuality altogether, he or she is, at least, expected to hide it from the children.
As discussed earlier, homosexuality is not perceived by the courts as an essential part
of the person, but rather as something of an acquired vice that can easily be secreted
away from children. Self-censorship appears to be construed as a positive activity for

73 A thorough examination of the case law on this point can be found in Donald G. Casswell,
Lesbians, Gay Men, and Canadian Law (Toronto: Emond Montgomery Publications, 1996) at 252-
87. See also Natasha Kim, Much To Do About Something: Destabilizing Laws Support of
Dominant Ideologies in the Context of Lesbian Mother Custody Claims in Canada (2000) 9 Dal. J.
Leg. Stud. 73.

74 See generally Susan B. Boyd, Child Custody, Law, and Womens Work (Oxford: Oxford

University Press, 2003) at 99-100.

75 See Susan B. Boyd, Lesbian (and Gay) Custody Claims: What Difference Does Difference

Make? (1998) 14 Can. J. Fam. L. 131.

76 Elliott v. Elliott, [1987] B.C.J. No. 43 at para. 24 (S.C.) (QL).

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homosexuals. For example, in K v. K,77 an action for divorce and custody of the
children was brought. The mother in the case was a homosexual. The court awarded
custody to the mother, but thought it was important that the womans relationship be
discreet and … not flaunted to the children or to the community at large.78 In another
case, a homosexual father who wanted access to his child, lived with his same-sex
lover (which is all we are told about the father and his partner).79 The mother, it
appears, did not outright oppose access, but she was very concerned that the children
[two girls] be exposed to a lifestyle that [was] highly confusing, disruptive and
contrary to their moral upbringing.80 The mother was particularly concerned about
overnight access. These concerns were echoed by the court, when McIntyre J. noted
that he could readily understand and … share Mrs. Ws concern about overnight
access because it could be harmful to the children while [the fathers] present lifestyle
continues.81 The resulting court order was that the father was not to be awarded
overnight visits with his children while engaging in his present lifestyle.82 The
underlying judicial message seems to be that the court would rather have a father lie
about his sexual orientation than be honest. Essentially, the expectation of the court
was that the father would give up his homosexuality.83 Where parents are not upfront
about their sexuality, however, a different issue seems to arise. In another case, where
the mother was in the closet, the court stated that what [was] relevant to the issue
of care and control [was] the mothers lying. Diamond J. went on to say, I am
satisfied that dishonesty is an integral part of her life. This mother is a stranger to the
truth!84 The homosexual parent can thus be (legally) damned either wayfor being
forthright; or for not revealing his or her true sexual orientation.

In the custody context, another instance of this bias against homosexuality is the
relative frequency with which one parent will allege the homosexuality of the other, in
order to reduce the others chance of obtaining custody. For example, in J.E.B. v.
R.G.B., a husband forced his wife to sign a separation agreement by threatening
that if she did not sign the agreement, she would never see her kids again. He
threatened to drag her through the court system, and to expose, publicly, her lesbian
relationship.85 Courts have been unusually receptive to investigating the truth of such
claims even though homosexuality is not supposed to matter in custody disputes.

77 [1976] 2 W.W.R. 462, (1975) 23 R.F.L. 58 (Alta. Prov. Ct.) [cited to W.W.R.].
78 Ibid. at 469.
79 Worby v. Worby (1985), 43 Sask. R. 135, 48 R.F.L. (2d) 369 (Q.B.) [cited to Sask. R.].
80 Ibid. at para. 7.
81 Ibid. at para. 8.
82 Ibid. at para. 9.
83 See also Bernhardt v. Bernhardt (1979), 10 R.F.L. (2d) 32 (Man. Q.B.); D. v. D. (1978), 20 O.R.

(2d) 722, 88 D.L.R. (3d) 578 (Co. Ct.).

84 Ewankiw v. Ewankiw (1994), 99 Man. R. (2d) 302 at para. 23 (Q.B. (Fam. Div.)) [Ewankiw]. See

also S. v. S., [1992] B.C.J. No. 1579 (S.C.) (QL); S v. S, [1996] B.C.J. No. 1923 (S.C.) (QL).

85 J. E. B. v. R. G. B., [1996] B.C.J. No. 2717 at para. 10 (S.C.), Beames J. (QL).

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B. MACDOUGALL THE LEGALLY QUEER CHILD

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The issue of parental homosexuality and the seriousness with which courts treat it,
conveys the message to children, aware of the conflict, that homosexuality is
abnormal, deviant, and generally negative. In one custody case, it was alleged that a
vindictive mother attempted to discredit the father.86 In reference to the mother,
Hamilton L.J. noted, The most damaging reference is that by her to her own son, in
which she described his father as a faggot.87 This retort was apparently incited in
response to a facetious remark from the husband.88 Nevertheless, the wife had built
into her mind a characterization of her former husband as a homosexual. Most
crucially, as the judge noted, she was able to discredit the father in the eyes of his
son.89 Although custody was awarded to the father, according to the court, the
mothers attempt to discredit the father in the eyes of the boy was successful: the child
came to perceive homosexuality in a negative light.

Allegations of homosexuality by one parent against another may also lead to
judicial scrutiny of the personal life of the homosexual parent. In Re O and O,90 a
mother told her son that it was wrong to sleep in his fathers bed because the son
would become homosexual.91 The judge rightly found this to be unusual behaviour on
the part of the mother. However, because the mother raised the possibility of the father
being homosexual, the court proceeded to examine all of the evidence to determine
whether there was any truth to the allegations. Such allegations, easily made, can have
very damaging consequences on family members.92

In yet another case, a husband petitioned for a divorce from his wife on the basis
of mental cruelty.93 Among the many instances alleged by the husband was the one
that his wife [had] an obsession about lesbians and in correcting the children, she
[told] them they dont want to grow up to be lesbians … She has carried on a one-
sided hate against the husbands parents because they drink beer and because the

86 Martini v. Martini, [1987] B.C.J. No. 2757 (S.C.) (QL).
87 Ibid. at para. 12.
88 Ibid.
89 Ibid.
90 (1980), 30 O.R. (2d) 588, 117 D.L.R. (3d) 159 (H.C.J.) [cited to O.R.].
91 Ibid. at 591.
92 See also Whyte v. Whyte (1991), 101 N.S.R. (2d) 249 (S.C. (T.D.)); Hahn v. Stafford, [1985] O.J.
No. 595 (H.C.J.) (QL); Guerard v. Parent, [1986] B.C.J. No. 1836 (S.C.) (QL) was a custody case
where the mother alleged homosexuality on the part of Mr. Guerard, who was not the father, but who
played a major role in raising the boy. Drost L.J. said:

During the course of the trial it became apparent that Cynthia Parent was the source of
several allegations concerning Mr. Guerard, namely: that he is a homosexual and had at
one time a homosexual relationship with the childs father, Georges Parent; that he had
unsavoury and dangerous contacts in the underworld who were a threat to Mrs.
Parents safety; and that he might have sexually abused the child. When Mrs. Parent
gave evidence concerning these and other matters, I concluded that her testimony was
untrue. There was no evidence to support her claim that Mr. Guerard is homosexual (at
para. 27).

93 Austin v. Austin (1986), 77 N.B.R. (2d) 79 (Q.B. (Fam. Div.)).

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grandmother is a lesbian.94 According to Guerette J, [t]here [was] not one iota of
evidence to support these terrible accusations and the husband … satisfied [the judge]
that all these manifestations of the wifes personality arise out of a disoriented and
distraught mind.95 Clearly, the wifes accusation of lesbianism was used to hurt
somebody. However, did not the judge himself, do the same thing? It was the judge
who said that calling somebody a lesbian is terrible. Also, it was the judge who
thought it appropriate to look for evidence as to whether the statement was true.96

[Vol. 49

In all of these cases, it is striking that while the homosexuality of one parent may
not outright preclude that parent from gaining custody, the actions of the accusing
parent in raising such an issue are not thought of as a relevant factor in determining
that parents fitness to gain custody. That one parent may deliberately instill extremely
negative views of homosexuality into a child is not thought of as a valid justification
for precluding custody. The possibility that a potentially gay or lesbian child may be
forced to live in such a hostile, homophobic environment is not considered either.

The general assumption, then, is that it is in the best interests of the child to be
raised in a heterosexual environment. The sexual orientation of the home environment
is always perceived of in terms of the sexual orientation of the parents. Courts are
grossly inept in asking whether, in fact, a homosexual environment would be
preferable for certain childrenthe child is always assumed to be heterosexual; and
the preferable household is always heterosexual. However, based on this rationale,
might it not be argued that a homosexual household is better for a homosexual
child?97 Again, because the child is assumed not to have a sexual orientation, and most
definitely not to be homosexual, the question of the appropriate sexual environment
is not even asked. The queer child simply does not exist.

B. Religion

The law affords religion an enormous role in shaping the mind of a child. It
accomplishes this in two ways: by giving parents unfettered control over the religious
views inculcated into a child; and by allowing religion to have a strong influence on
the education of a child. Furthermore, in both contexts, the forced exposure of
children to religious messages can be (and very often are) relentlessly homophobic.

In the previous sections discussion, I addressed the moral issue raised by some
parents who allege the homosexuality of the other parent: that is, from a moral
perspective, should the child not be protected from the homosexuality of a parent?
The courts condone a characterization of homosexuality in this manner, thus making

94 Ibid. at para. 15.
95 Ibid.
96 The divorce was granted and custody of the two girls awarded to the father.
97 Analogies could be made to other situations of best interests, where decisions are made
ignoring vital factors such as the race of the child. See e.g. Marlee Kline, Child Welfare Law, Best
Interests of the Child Ideology, and First Nations (1992) 30 Osgoode Hall L.J. 375.

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sexual orientation an issue of morality in a way that other prohibited grounds of
discrimination are not. In fact, the courts rarely take issue with the characterization of
homosexuality as a moral issue.98 Thus, the identity of homosexual children is
branded as a moral issuea phenomenon that does not occur with respect to
heterosexual children. Moral arguments about homosexuality are invariably made
according to the moral precepts of a particular religion. Thus, queer equality rights
issues, including those of queer children, are often argued in the context of (and
sometimes judged against) a particular religious moralitya situation that has no
parallel in Canadian cases dealing with equality rights as they pertain to race, sex,
ethnicity, and so forth (and even religious equality itself).

In the context of parental custody suits, where homosexuality is involved, the
religious views of one party to the litigation are accorded a great deal of judicial
respecteven where such religious views diminish the value of the party who is
homosexual, rendering him or her nothing more than a homosexual. In P-B. (D.) v.
P-B. (T.),99 for example, where a gay father sought access to his children, the mother
asserted that homosexual behavior was against her religion.100 The judge, quite rightly,
responded that the mothers religious beliefs could not be used to bar either the father
or his same-sex partner from access rights where those rights [were] in the best
interests of the children.101 However, the judge also thought it was relevant that there
was no evidence of the father doing anything deliberately for the purpose of
undermining the childrens religious training.102 Thus, doing anything deliberately
to undermine the childs religious training was unacceptable; but it was apparently
acceptable for straight parents to teach their children hateful ideas about gay parents
life-styles. Likewise, it is acceptable for gay parents to be forbidden from
undermining religious teaching. The court did not consider the possibility that the
children were, themselves, homosexual. Furthermore, would the court be so accepting
of one parents religious views if that parent claimed that he or she considered the
race, or national origin, of the other parents new partner to be immoral according to
his or her religion?

Religion can also be used as a device for instilling ideas of sexual normalcy in
children. Those with strong religious views are able to use public institutions as a
means of disseminating their (religious) views and attitudes about homosexuality. The
most important recent case addressing this issue is Chamberlain (S.C.C.), where
elected members of a school board denied an application to have books describing

98 See MacDougall, Queer Judgments, supra note 3 at 124; Bruce MacDougall, The Separation of
Church and Date: Destabilizing Traditional Religion-Based Legal Norms on Sexuality (2003) 36
U.B.C. L. Rev. 1 at 11-15 [MacDougall, The Separation of Church and Date]. See generally Robert
Wintemute, Religion vs. Sexual Orientation: A Clash of Human Rights? (2002) 1 J. L. & Equality
125.

99 [1988] O.J. No. 2398 (Prov. Ct. (Fam. Div.)) (QL).
100 Ibid. at para. 14, Felstiner J.
101 Ibid.
102 Ibid.

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children with same-sex parents made available as school resources.103 Specifically, the
issue arose out of the School Act of British Columbia:

[Vol. 49

76(1) All schools and Provincial schools must be conducted on strictly

secular and non-sectarian principles.

(2) The highest morality must be inculcated, but no religious dogma or

creed is to be taught in a school or Provincial school.104

A resolution, referred to as the Three Books Resolution, was passed by the
Board of Trustees of the Surrey School District (Board) on 24 April 1997,
indicating that the Board did not approve of the use of three books, which depicted
children with same-sex parents, as Recommended Learning Resources.105 The issue
arose against a background of considerable public acrimony in Surrey, as one side
was driven by religious views. For example, the trial judge noted that there was
evidence that at least one trustee who voted for the motion, … [had] campaigned for
several years to promote a greater role for religion in governance of the community,
including on the issue of homosexuality.106 The court concluded that the Board had
acted inappropriately; and the majority of the Supreme Court of Canada upheld the
trial judges finding. Of importance to the judges at the various court levels was the
role of parents in the education process, particularly when those parents have strong
religious views. McLachlin C.J. acknowledged that parents have an important role to
play in school administration; however, she cautioned that although parental
involvement was important, it could not come at the expense of respect for the values
and practices of all members of the school community. She stated:

The requirement of secularism in s. 76 of the School Act, the emphasis on
tolerance in the Preamble, and the insistence of the curriculum on increasing
awareness of a broad array of family types, all show, in my view, that parental
concerns must be accommodated in a way that respects diversity. Parental
views, however important, cannot override the imperative placed upon the
British Columbia public schools to mirror the diversity of the community and
teach tolerance and understanding of difference.107

Unresolved, however, is the issue of whether legislation could withstand
constitutional scrutiny if it were drafted so as to allow parents a far greater role in, say,
the early stages of curriculum development. Or, could the legislature simply defer
important areas of education and its administration to parents groups so as to avoid
Charter requirements? In Chamberlain, Gonthier J. in his dissent at the Supreme

103 Chamberlain (S.C.C.), supra note 7.
104 School Act, R.S.B.C. 1996, c. 412.
105 The Board issued no prohibition on the three books being available as library resources. The
difference between a recommended learning resource and a library resource seemed to be that the
former is relevant to the learning outcomes and content of the course or courses whereas the latter is
intended to be merely appropriate for the curriculum (Chamberlain (C.A.), supra note 8 at para 52).
106 Chamberlain v. Surrey School District No. 36 (1998), 168 D.L.R. (4th) 222 at para. 94, 60

B.C.L.R. (3d) 311, [1998] B.C.J. No. 2923 (S.C.) (QL).

107 Chamberlain (S.C.C.), supra note 7 at para. 33.

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Court level certainly thought it was appropriate for parents to have a determinative
role in childrens educationeven if that meant the imposition of specific views on
the whole academic system. In stressing the decisive role that parents should play in
the education of children, he implied that the interests of minorities could be
overriden where such interests ran contrary to the beliefs of parents. He went on to
say that in educating children, parents play a primary role while the state plays a
secondary role.108 Parents, he said, have the right to bring up and educate [their]
children in line with [their] conscientious belief[s] … 109

In some

jurisdictions,

to homosexuality.110

More obvious instances of religious beliefs dictating heterosexual normalcy can
be seen in the context of denominational schools, where the underlying denomination
these
inculcates views hostile
denominational schools are supported by the state. Recently, in Hall, the conflict
between constitutional guarantees of freedom of religion versus that of non-
discrimination based on sexual orientation have been brought into sharp focus.111 The
case arose out of the desire of Marc Hall, a student attending a Roman Catholic
school in Ontario, to take his boyfriend, as his date, to his high school prom. Hall had
been attending that school, and other publicly-funded Catholic schools, since he first
started school.112 The principal of the school in question denied Hall permission to
attend the prom with his boyfriend. His reasoning was that interaction at a prom
between romantic partners is a form of sexual activity and that, if permission were
granted to Mr. Hall to attend the prom with his boyfriend as a same-sex couple, this
would be seen both as an endorsement and condonation of conduct which is contrary
to Catholic church teachings.113 The court noted that the Roman Catholic Churchs
Catechism declares that homosexuality is contrary to natural law and can under no
circumstances be approved.114 The Catechism states: homosexual acts are
intrinsically disordered.115 The school board refused to reverse the principals
decision. Thereupon, Hall sought an interlocutory injunction restraining the
defendants from preventing his attendance at the prom with his boyfriend. At the
eleventh hour, just before the prom was to begin, MacKinnon J. granted Hall the
injunction.

Despite the favourable result of the granting of the injunction, MacKinnon J.
remarked that [t]he Board could have counselled Marc on his Churchs teachings

108 Ibid. at para. 102.
109 Ibid. at para. 107.
110 See Hilary M.G. Paterson, The Justifiability of Biblically Based Discrimination: Can Private

Christian Schools Legally Refuse to Employ Gay Teachers? (2001) 59 U.T. Fac. L. Rev. 59.

111 MacDougall, Separation of Church and Date, supra note 98 at 1.
112 Catholic schools in Ontario are financed through the public purse because of their special status
under section 93 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985,
App. II, No. 5.

113 Hall, supra note 4 at para. 4.
114 Ibid. at para. 23.
115 Ibid.

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about the sinful nature of all premarital sexual activity (heterosexual or homosexual)
and about the sinful nature of homosexual genital contact.116 Surely, the judge was
acutely aware of the despair many homosexual youth face. Nevertheless, the judicial
sentiment was that Halls school could teach him, unconstrained, about the evils of
acting on his sexual orientation. I have argued elsewhere that in teaching courses such
as literature, biology, physical education, and in student activities where the core
subject matter is not religious, a (religious) school is exercising a governmental
function, and thus, the Charter should be applicable.117 A comparison should be drawn
between the Hall situation and one where the issue was not sexual orientation, but
sex, race, or ethnic background. A particular religion could quite conceivably teach
that women are inferior or that black people should be kept separate from others. But
what if followers of that religion wished to operate a state-accredited educational
institution? It may be true that such followers simply would not receive state
support.118 However, more to the point is the fact that a court would surely be
concerned, at least in part, with the invidious position in which a female or black
student might be put if such views were taught as an ordinary part of the curriculum.
In Hall, however, even though it was clear that Hall was gay, the court was not
compelled to address the potential negative consequences of a school teaching anti-
homosexual sentiment where homosexual students were clearly present. Thus,
religion and religious teachings are often used as a sound justification for ignoring
homosexual children.

C. Education

in education,

the education system

Aside from the specific issue of religious beliefs influencing thoughts on
homosexuality
its
heterocentricity.119 It is difficult to argue with the proposition that over the years, the
education system (along with the mass media) has become ever more important in
shaping the views of youth. At the same time, students in schools have little voice in
how education is provided to them.120 Education and its institutions are permeated
with adult voices and adult perspectives.

is notorious

for

116 Ibid. at para. 49.
117 MacDougall, The Separation of Church and Date, supra note 98 at 21.
118 See LHeureux-Dub J.s (dissenting) US race analogy in Trinity Western, supra note 7 at paras.

70-71.

119 See Gerald Unks, Thinking About the Gay Teen in Unks, supra note 2, 3 at 5; Margot Francis,
On the Myth of Sexual Orientation: Field Notes from the Personal, Pedagogical, and Historical
Discourses of Identity in Janice L. Ristock & Catherine G. Taylor, eds., Inside the Academy and Out:
Lesbian/Gay/Queer Studies and Social Action (Toronto: University of Toronto Press, 1998) 72 at 75;
Epstein & Johnson, supra note 15 at 128; William P. Norris, Liberal Attitudes and Homophobic
Acts: The Paradoxes of Homosexual Experience in a Liberal Institution in Karen M. Harbeck, ed.,
Coming Out of the Classroom Closet: Gay and Lesbian Students, Teachers, and Curricula (New
York: Harrington Park Press, 1992) 81.

120 See Paul Meredith, Childrens Rights and Education in Fionda, supra note 16, 203 at 204.

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The education system has not always been successful at creating a comfortable
space for young people who are, or think they are, queer.121 Education systems have
put up barriers to queer content in schools, and such barriers maintain an atmosphere
of hostility, or at best, indifference to the other-than-heterosexual.122 In recent cases
addressing homosexual issues in the education context, there has been little progress.
In fact, one may well wonder how a gay or lesbian student might respond to the
mostly negative messages conveyed by judges as to the relative value of being gay as
compared to heterosexual.

Until Chamberlain (S.C.C.), very little case law directly addressed the issue of
whether it was appropriate to exclude (positive) material about homosexuality from
school curricula. Mostly, the decision to include such material into the curriculum was
left to parents groups, and even now, after Chamberlain (S.C.C.), parents groups
play a large role.123 In one instance in the late 1980s, a parents group in Prince
George succeeded in ensuring that a book, called Boys and Sex, was banned from the
senior secondary school library in part because it was inappropriate in discussing
homosexuality, among other things.124 The parents feared that the book would
undermine childrens faith in both their parents and in religion.125

In Chamberlain (S.C.C.), where the books were far more mainstream than in the
Prince George case, the ultimate result was more inclusive of homosexuality. As
mentioned above, however, the Supreme Courts decision to include the materials was
based on the wording of the School Act of British Columbia126 and not on any general
constitutional principle that could stand to protect gays and lesbians in other

121 The following policy was in place in Britain from 1987-1994:

There is no place in any school in any circumstances for teaching which advocates
homosexual behaviour, which presents it as the norm, or which encourages
homosexual experimentation by pupils. Indeeed, encouraging or procuring homosexual
acts by pupils who are under the age of consent is a criminal offence. It must also be
recognised that for many people, including members of various religious faiths,
homosexual practice is not morally acceptable, and deep offence may be caused to
them if the subject is not handled with sensitivity by teachers if discussed in the
classroom (Department of Education and Science Circular 11/87, Sex Education at
School, at para. 22, as cited in Meredith, ibid. at 214).

122 The socializing impact of schools on sexuality, especially with reference to racial minorities, is

discussed in Epstein & Johnson, supra note 15 at 108-29.

123 One interesting approach to achieve different results here would be to consider the issue from
the perspective of the child using the Convention on the Rights of the Child, supra note 28. See
Margaret Ann Wilkinson & Lynne (E.F.) McKechnie, Implementing the Information Rights of
Canadian Children (2002/2003) 20 Can. Fam. L. Q. 429.

124 See Serup v. School District No. 57 (1987), 39 D.L.R. (4th) 754, 14 B.C.L.R. (2d) 393 (S.C.).
See also Terri A. Sussel, Controversies in School Law: A Handbook for Educational Administrators
(Vancouver: EduServ, 1990) at 89-90. The book also discussed masturbation, premarital sex, sex
games among pre-pubescent children, and sex with animals (at 89).

125 Sussel, ibid.
126 Supra note 104.

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legislative circumstances. Furthermore, as noted, the judges failed to show any
concern for, or even awareness of, gay and lesbian or other queer youth in the
schools. Rather, the discussion focused on adults: the books in question addressed
homosexual adults; and the rights adjudicated upon were adults rights. Further, adults
brought the legal challenge to the Boards actions.

[Vol. 49

Importantly though, even those adults who brought the challenge forward were
not treated receptively by the court. At the Court of Appeal, the motives of those who
sought to include gay and lesbian material in the curriculum were cast in a dubious
light. The court rendered a thinly-veiled critique of these homosexual rights advocates
for choosing the particular situation in question to raise rights issues. Specifically,
Mackenzie J.A. questioned the motives of those who argued for the inclusion of the
three books as classroom resources. He simply could not accept that the initiative of
the petitioners was aimed only at demonstrating the presence of nurturing values in
alternative families generally.127 Instead, he believed that [t]he three books in issue
were selected for their sexual orientation dimension; and further, that the children
were simply a means of causing the books to come to the attention of parents who
would object to the sexual orientation dimension as morally offensive.128

As I have said elsewhere in the context of this case:

As a result, even today, the public school curriculum is riddled with hetero-
erotic messages for children, a situation that is simply taken for granted.
Furthermore, while the discourse of rights advocates is apparent (and
controversial), the discourse of those who advocate tradition is often in a
code that is so familiar that those (like the judge) do not take notice of it,
though its meaning is clearly exclusionary of homosexuals. So, the vocabulary
of morality, children, parental authority, community, values, discipline and
even education is usually intended, albeit sometimes unconsciously, to convey
a particular heterosexual meaning and context.129

Within the education context, the invisibility of queer children and their concerns
is even more apparent in Trinity Westerna case involving a university that served
the needs of the whole Christian community.130 In this case, the British Columbia
College of Teachers (B.C.C.T.) refused to accredit the teacher education program of
the university because, in the opinion of the B.C.C.T., the proposed program was
discriminatory and contrary to public policy as graduates were likely to be biased
when dealing with homosexual students.131 The B.C.C.T. argued that students at the

127 Chamberlain (C.A.), supra note 8 at para. 59.
128 Ibid.
129 MacDougall, A Respectful Distance, supra note 11 at 535-36.
130 Trinity Western, supra note 7 at para. 3 (according to Trinity Western Universitys January 1995

application to the B.C.C.T. for approval of its revised teacher training program).

131 The B.C.C.T. is empowered under section 4 of the Teaching Profession Act to

[E]stablish, having regard to the public interest, standards for the education,
professional responsibility and competence of its members, persons who hold

B. MACDOUGALL THE LEGALLY QUEER CHILD

2004]

university, including those wanting to be teachers, were required to (and did)
subscribe, on admission, to a code of conduct (a Community Standards document).
Part of the agreement included the obligation to refrain from homosexual behaviour.
This requirement was found in a paragraph that read:

1085

REFRAIN FROM PRACTICES THAT ARE BIBLICALLY CONDEMNED.
These include but are not limited to drunkenness, … all forms of dishonesty
including cheating and stealing, … involvement in the occult … and sexual sins
including viewing of pornography, premarital sex, adultery, and homosexual
behaviour … [biblical references omitted].132 Faculty and staff were required to
sign a similar document. The BCCT refused to accredit graduates from Trinity
Western University unless they had taken another year of studies at Simon
Fraser University.

The decision of the B.C.C.T. was upheld on appeal to the colleges council, but
was overturned by the British Columbia Supreme Court. At the British Columbia
Court of Appeal, the trial judges decision was affirmed on the basis that there was no
reasonable foundation for the B.C.C.T.s finding of discrimination.133 The majority of
the Supreme Court of Canada upheld that decision on appeal, with LHeureux-Dub
J. being the sole dissenter. What is perhaps most striking from these decisions of the
various levels of court is that, with the exception of LHeureux-Dub J., the concerns
and perspectives of gay and lesbian youth were not canvassed. Adult perspectives and
attitudes of adults, including homosexual adults, were addressed; but the queer youth
perspective was invisible.

The majority decision in Trinity Western protected religious freedom, even where

that meant pardoning the discriminatory acts of particular religious individuals
entering the public arena as teachers. The majority accomplished this by taking an

certificates of qualification and applicants for membership and, … to encourage the
professional interest of its members … (R.S.B.C. 1996, c. 449).

This was the reference to the public interest that the B.C.C.T. invoked as justification for considering
the Trinity Western admissions policy in deciding on the certification of its teacher education
programme: The BCCT argue[d] that teaching programs must be offered in an environment that
reflects human rights values and that those values can be used as a guide in the assessment of the
impact of discriminatory practices on pedagogy (Trinity Western, supra note 7 at para. 11). The
B.C.C.T. required graduates of Trinity Western to do a year of study at Simon Fraser University in
order to consider them for qualification as teachers.

132 Trinity Western University v. College of Teachers (British Columbia) (1997), 41 B.C.L.R. (3d)

158 at para. 13, 47 C.R.R. (2d) 155 (S.C.).

133 At the British Columbia Court of Appeal level, Rowles J.A., dissenting, said:

The condemnation of homosexual behaviour in the Community Standards is capable
of discriminating against gays and lesbians in two ways:
1) through the exclusion of gay and lesbian students and faculty;
2) through the declaration that homosexual behaviour is biblically condemned and the
requirement that faculty accept this statement as a fundamental article of faith (Trinity
Western University v. British Columbia College of Teachers (1998), 169 D.L.R. (4th)
234 at para. 220, 59 B.C.L.R. (3d) 241 (C.A.)).

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extremely narrow view of what constitutes an individual acting on belief. Iacobucci
and Bastarache JJ. said:

[Vol. 49

[T]he proper place to draw the line in cases like the one at bar is generally
between belief and conduct. The freedom to hold beliefs is broader than the
freedom to act on them. Absent concrete evidence that training teachers at
TWU [Trinity Western University] fosters discrimination in the public schools
of B.C., the freedom of individuals to adhere to certain religious beliefs while
at TWU should be respected.134

The majority did not accept that the actual act of signing the document was a
homophobic act. Instead, the Court stated, While homosexuals may be discouraged
from attending TWU, a private institution based on particular religious beliefs, they
will not be prevented from becoming teachers. In addition, there is nothing in the
TWU Community Standards that indicates that graduates of TWU will not treat
homosexuals fairly and respectfully.135

The majority judges did not ask how homosexual teachers or students would feel
if they knew that a colleague had voluntarily signed a document attesting to the fact
that their actions, and therefore they, are to be biblically condemned. Anybody signing
such a document was, in effect, agreeing that homosexuals ought to be equated with
cheaters, drunks, and thieves. This concern was raised by LHeureux-Dub J. in
dissent. She said, in a rare example of judicial awareness of gay and lesbian youth:

Evidence shows that there is an acute need for improvement in the

experiences of homosexual and bisexual students in Canadian classrooms. …

The B.C. report also showed that 37 percent of the gay and lesbian youth
questioned feel like outsiders at school. None of the youth gave high ratings to
the quality of his or her family relationships. Almost 40 percent have
dramatically low self-esteem. Two-thirds often hear homophobic remarks made
by other students at school. Nearly one in five had been physically assaulted at
school in the past year.136

LHeureux-Dub J. at least attempted to view the situation from the perspective of a
queer student:

Without the existence of supportive classroom environments, homosexual
and bisexual students will be forced to remain invisible and reluctant to
approach their teachers. They will be victims of identity erasure, forced to
endure what Professor Kathleen Lahey has called a spiral of silence in which
lesbians and gays modify their behaviour to avoid the impact of prejudice.137

Such views are, however, distinctly unusual from the bench. Much more common
is the attitude that disputes about homosexuality in schools are disputes among adults

134 Trinity Western, supra note 7 at para. 36.
135 Trinity Western, ibid. at para. 35 (Iacobucci and Bastarache JJ.).
136 Ibid. at paras. 82, 84.
137 Ibid. at para. 91 (citing Brillinger v. Brockie (2000), 37 C.H.R.R. D/15 at para. 35 (Evidence,

Prof. Kathleen Lahey).

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about adult issues. A further example of this appears in the case of a Manitoba teacher
who wished to, but was denied, permission to reveal her sexual orientation to her
students in grades seven and eight.138 She had apparently observed prejudice against
and intolerance of homosexuals in the clasroom. She therefore thought her disclosure
might force students to confront the truth that homosexuals were not individuals
deserving of discrimination.139 The denial of permission was justified by the assistant
superintendant on the basis it was thought inappropriate for a teacher, in the course
of the objective presentation of any instructional material, to declare their own sexual
orientation, be they heterosexual or homosexual.140 This case is interesting because it
reveals how a school board was uncomfortable with allowing children to confront
homosexuality; but also how the school board was blind to the fact that heterosexual
teachers reveal their heterosexuality to students all the time. These disclosures are
never considered problematic. At the Court of Appeal, Twaddle J.A. stated:

[I]t might be reasonable to prohibit a teacher from discussing intimate details of
his or her sex lifeor even from disclosing the teachers sexual orientation
as a means of encouraging students to choose the teachers lifestyle, but
unreasonable to prohibit a teacher from using the fact of his or her
homosexuality as a means of combatting intolerance of homosexuals.141

Inherent in this view is the idea that adult homosexuality is contagious to children and
that homosexuality is something students may study as an outside phenomenon. That
children might see themselves, personally, as homosexual is largely inconceivable.
Legally, the child is almost always an outsider on matters of sexual orientation.

D. Harassment and Verbal Abuse

A fourth device to consider in the context of normalization is harassment and
verbal abuse. This device is, undoubtedly, the most direct form of marginalization that
a queer child will experience. Undoubtedly, it is the biggest factor in conditioning
people generally, from an early age, to associate non-heterosexuality with negativity.
Hostility and abuse is taught to be an appropriate and justifiable response. This device
can be termed an institution because harassment and abuse has become an almost
accepted part of our society, even within the running of public institutions. Agencies
of law and justice do little to attack really the prevalence of harassment and abuse.

Children are taught from a young age to associate homosexuality with negativity
and denigration. Attempts to humiliate a person by calling him homosexual begin
early in life. R. v. Homma illustrates the fear many children experience of homosexual

138 Assiniboine South Teachers Assn. of the Manitoba Teachers Society v. Assiniboine South School
Division No. 3 (1998), 163 D.L.R. (4th) 343, 128 Man. R. (2d) 231 (Q.B.); appeal allowed 187
D.L.R. (4th) 385, [2000] 8 W.W.R. 1 [Assiniboine (C.A.) cited to D.L.R.].

139 Assiniboine (C.A.), ibid. at para. 2.
140 Ibid. at para. 3.
141 Ibid. at para. 32.

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identification in schools.142 In that case, two boys, who were being sexually abused by
their male teacher, did not report the incidents. As Taggart J.A. noted, The two boys
did not make complaints of the conduct of the appellant because they were
embarrassed. They intimated that they might be considered by their peers to be
homosexuals.143 This fear by children of being ridiculed as homosexual is a response
that children have learned from adults. Often, it is taught in the family context, and
particularly in the context of marital breakdown and custody disputes. Some of these
situations are bizarre. In one case, a mother and father were in a dispute over the
fathers access to the children.144 The father was both abusive and alcoholic and had
previously sexually assaulted a teenage boy. During one of the fathers last overnight
access weekends, he made allegations that the mothers boyfriend had molested their
sons.145 When the mother came to collect her children, in front of her sons and the
accompanying police, [the father said] Go play with your homosexual boyfriend.146
The father did not perceive himself as homosexual. He had little to be proud of; but he
still felt he could elevate himself above the mothers boyfriend by belittling him
as homosexual.147

Adults can use abusive terms for homosexuals around children in a deliberate
attempt to hurt children. Adults play on the humiliation they know the child has been
taught to feel and associate with homosexuality. In R. v. Hawkins, the accused was
convicted of the sexual assault of a fourteen-year-old girl.148 Part of the assault
involved a lesbian fantasy of the accused. As part of the girls harrowing experience,
the accused asked the girl whether her friends were lesbians. When she responded in
the negative, the accused appeared to get angry.149 In this case, the adult, and the
violence he committed, conveyed the message that the lesbian is both a fantasy object
for men and a term of abuse. In another case, the boyfriend of a mother was verbally
abusive, calling the girls sluts, tramps and lazy and calling the boys lazy and queer.150
In exposing children to this type of homophobia, heterosexual normalization is
strengthened. The bullying of queer children at school is probably the first encounter
many children experience with respect to their sexual feelings and society. Eric Rofes
has written:

As I got older, and fully entered the society of children, I met the key
enforcer of social roles among children: the bully. The bully was the boy who
defined me as queer to my peers. If they had not already noticed, he pointed

142 [1989] B.C.J. No. 793 (C.A.) (QL).
143 Ibid. at para. 10.
144 R.R.T. v. G.T., [1994] O.J. No. 2453 (Prov. Div.) (QL). See also Childrens Aid Society of the

Regional Municipality of Waterloo v. R. (T.), [1990] O.J. No. 766 (Prov. Ct. (Fam. Div.)) (QL).

145 Ibid. at para. 18.
146 Ibid. at para. 21.
147 See MacDougall, Queer Judgments, supra note 3 at 141.
148 R. v. Hawkins, [1986] B.C.J. No. 1115 (C.A.) (QL).
149 Ibid. at para. 5, Esson J.A.
150 R. v. N.(R.K.) (1997), 32 O.R. (3d) 537 at 540 (C.A.).

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out my non-conformity. He was ever-present throughout my childhood, like an
evil spirit entering bodies on different occasions. He haunted me at school,
throughout my neighborhood, during synagogue, even at birthday parties. In
any group of three or more boys, the bully was present.151

Jubran v. Board of Trustees provides a stark reminder of the pervasiveness of
harassment and abuse in public institutions. At first instance, the British Columbia
Human Rights Tribunal awarded damages to a high school student who did not
identify as gay despite homophobic epithets by other students.152 The Supreme Court
of British Columbia agreed that the heart of the attack on Jubran drew on terms that
come quickly to the lips of homophobes.153 It was found that Jubran was not a
homosexual and that the students who attacked him did not believe him to be a
homosexual. The court therefore found that Jubran could not been discriminated
againstsimply, he was not gay. In spite of this result, the case demonstrates
complete judicial ignorance of the hostility many gay and lesbian children do face.
Would a child who actually is gay, self-identify as such before a tribunal or court that
is blind to homosexual issues? Is not the creation of a homophobic environment,
whereby any child (whether gay or lesbian) might suffer from oppression, enough to
motivate a court to act? William Black has said:

The fact that Mr. Jubran was a teenager makes it more likely that he would

internalize some of the sting of the homophobic taunts even if he identified
himself as heterosexual. Teenage years are a time of coming to terms with
ones sexuality. Doubts and anxieties are not at all uncommon. Even a teenager
who clearly identifies himself or herself as heterosexual may have sometimes
had feelings inconsistent with that identity and may thus be susceptible to
accusations of being gay or lesbian.154

The courts tolerance in Jubran of an anti-gay environment was similarly present
in the case of Culhane v. Rawlings.155 In this case, a plaintiff alleged that the defendant
had defamed him at work by calling him a son of a bitch and a male person who
performed homosexual acts.156 In response, McCart C.J. said:

If this was all that the defendant said to the plaintiff, I would have no hesitation
in acceding to the defendants request that I strike out the statement of claim as
disclosing no reasonable cause of action. If I had one dollar for everytime I
heard either of those expressions during some three years in the armed forces
and at summer jobs while attending university and law school, I would have
been financially independent by the time I was 25 years old. Their use is so

151 Rofes, supra note 14 at 79-80.
152 Jubran v. Board of Trustees, [2002] C.H.R.D. 10, 2002 BCHRT 10.
153 Jubran, supra note 5 at para. 6.
154 William Black, Grading Human Rights in the Schoolyard: Jubran v. Board of Trustees (2003)

36 U.B.C. L. Rev. 45 at 52 ^×..

155 Ibid. at para. 2.
156 [1987] O.J. No. 1562 (Dist. Ct.) (QL).

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commonplace as to be virtually incapable of constituting defamation. In some
perverse way they seem to be used as expressions of friendship.157

Furthermore, the above-mentioned examples have been limited to verbal abuse in

the context of children. Aggressive and very public homophobic pronouncements by
various religious and political leaders must surely have a deeper impact on children at
a broader level. What of children who know, as might be the case in the Trinity
Western situation, that their very own teachers have signed declarations that are hostile
to homosexuals? When queer children see their heterosexual classmates exploring their
sexuality with the support of their schools, parents, and churches, how are they to feel
when they are told, at best, that they will be treated with sympathy, but that under no
circumstances should they explore their tendencies toward homosexuality? As
LHeureux-Dub J. stated in Trinity Western, the status/conduct or identity/practice
distinction for homosexuals and bisexuals should be soundly rejected:

I am dismayed that at various points in the history of this case the argument has
been made that one can separate condemnation of the sexual sin of
homosexual behaviour from intolerance of those with homosexual or
bisexual orientations. This position alleges that one can love the sinner, but
condemn the sin. But, in the words of the intervener EGALE, [r]equiring
someone not to act in accordance with their identity is harmful and cruel. It
destroys the human spirit. Pressure to change their behaviour and deny their
sexual identity has proved tremendously damaging to young persons seeking to
come to terms with their sexual orientation (factum, at para. 34).158

Conclusion
Growing up as a queer child can be difficult. One writer has said, The world of
children was a cruel place for me.159 It is true that children, including queer children,
are bound to be raised in a predominantly heterosexual environment. It is also true
that it is a fundamental premise of our society that coercive government interference
in family life should be kept to a minimum.160 However, at times, courts do get
actively involved in family situations involving children. Is it too much to expect
courts to be aware of the distinct possibility that the children in these cases are not
(always) heterosexual? As William Black said in the context of Jubran case:

In a school of over 1,300 students, it seems clear that there must have been
a significant number of other students who either identified themselves as gay
or lesbian, at least internally, or who had doubts about their sexuality. There
was evidence in the Jubran case concerning a survey of male students showing

157 Ibid. On the tolerance by teachers of homophobic slurs as opposed to racial slurs, see James T.
Sears, Educators, Homosexuality, and Homosexual Students: Are Personal Feelings Related to
Professional Beliefs? in Harbeck, supra note 119, 29 at 35.

158 Trinity Western, supra note 7 at para. 69.
159 Rofes, supra note 14 at 80.
160 Bala, supra note 13 at 1.

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that seven percent of male students and eight percent of female students did not
think of themselves as heterosexual. ^×.161

Some courts are beginning to see the queer child. This recognition includes an

awareness of some of the damaging consequences that can result from ostracizing
queer children. In Hall, Mackinnon J. noted: I have already observed that the effects
of this sort of exclusion are pervasive, serious and contribute to an atmosphere of self
destructive behaviour among gay youth.162 And, in Trinity Western, LHeureux-Dub
J. remarked: The study found that 46 percent of the gay and lesbian youth had
attempted suicide at least once. Their average age at the first suicide attempt was 13
years.163 While such recognition is important, it is also important for courts to realize
that most gay and lesbian students are not suicidal but still need judicial recognition
and support. A judicial recognition of the devices and institutions that have been used
to perpetuate queer child invisibility would aid in creating a more normal
environment for these young people, whose rights should not be dependent or
constrained by the prejudices and preconceptions of the adults in their world.

Important, too, is to find a way for children themselves to be comfortable
bringing these issues of sexual orientation in front of legal institutions. This process
may involve a reassessment of the way in which such institutions operate, as has
become established in other legal contexts involving children.164 And, most especially,
courts have to accept that queer children may not speak directly about issues relating
to their sexuality in the same open and certain manner that an adult might discuss
such issues. Courts have to improve at anticipating issues that affect queer children;
this includes being sensitive to potential harm, as judges in child pornography cases
exhibit toward children generally. The courts should not make the assumption that
homosexuality, or other queer sexuality, is not an issue merely because the person,
either in front of the court, or implicated in the case, has not reached the age of
majority or consent. In the parlours of the law, queer children should be both seen and
heard.

161 Black, supra note 154 at 54.
162 Hall, supra note 4 at para. 56.
163 Trinity Western, supra note 7 at para. 69.
164 This is particularly true in the criminal procedure context. See Wendy van Tongeren Harvey &
Paulah Edwards Dauns, Sexual Offences Against Children and the Criminal Process, 2d ed. (Toronto:
Butterworths, 2001).