A Childs Right To Be Gay - Addressing The Emotional Maltreatment

Hastings Law Journal
Volume 48 | Issue 1 Article 6
1-1996
A Child's Right to Be Gay: Addressing the

Emotional Maltreatment of Queer Youth
Sonia Renee Martin
Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal

Part of the Law Commons
Recommended Citation
Sonia Renee Martin, A Child's Right to Be Gay: Addressing the Emotional Maltreatment of Queer Youth, 48 Hastings L.J. 167 (1996).
Available at: https://repository.uchastings.edu/hastings_law_journal/vol48/iss1/6
This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in
Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact
[email protected].
A Child's Right to be Gay: Addressing
the Emotional Maltreatment of
Queer Youth
by
SONIA RENEE MARTIN*
I was given the conditions of my return: 1. Give up my lifestyle. 2.

Like Girls. 3. Give up all past friends.... Dad escorted me to the
garage where I was harassed. "You fucking queer, you goddamn
faggot... Sissy... Do you actually have sex with your lover??" "I
don't think it's any of your business." Grabbing my throat, Dad
shouted, "It is my fucking business."'
The rights of parents to oversee the development of children is a
long established principle. Who is to dictate that parents may not
try to raise their children in 2a manner that maximizes the possibility
of a heterosexual outcome?
Introduction
Queer 3 youth comprise the most invisible segment of the popula-
tion.4 "They inhabit a sociological no man's land. They live in hetero-
sexual families and school settings where they are either rejected or
unrecognized. They have little access to the adult lesbian and gay
* J.D. Candidate 1997, University of California, Hastings College of the Law; B.A.
1994, University of California, San Diego. The author wishes to thank her parents for their
love, understanding, and insight.
1. ONE TEENAGER IN TEN, 43 (A. Heron ed., 1983).
2. RICHARD GREEN, THE "Sissy Boy" SYNDROME AND THE DEVELOPMENT OF Ho-
MOSEXUALrrY 260 (1987), cited in Shanon Minter, How Psychiatry Pathologizes Lesbian,
Gay, Bisexual and Transgender Youth, in GENDER IDENTrY DIsoRDER: AN ATTACK ON
LESBIAN, GAY, BISEXUAL AND TRANSGENDER YOUTH 1, 4 (1995), on File at National
Center for Lesbian Rights, San Francisco, CA).
3. The term "queer" is used as an umbrella expression for gay, lesbian, bisexual,
transgender, transsexual, and questioning individuals.
4. Census data estimates that as many as 7.2 million Americans below the age of 20
are lesbian or gay. BEiNNETr L. SINGER & DAVID DESCHAMPS, GAY & LESBIAN STATS: A
PocKET GUIDE OF FACTS AND FIGURES 76 (1994) (citing U.S. BUREAU OF THE CENSUS,
STATISTiCAL ABSTRACr OF THE UNTrED STATES (1992)).
[167]
HASTINGS LAW JOURNAL [Vol. 48
community, and rarely do they know other lesbian and gay youth."5
In high school, the harassment of queer students and teenagers goes
unchecked by teachers and administrators. 6 The media and popular
culture bombard young adults with negative images of homosexuality
on a daily basis. Finally, the gay and lesbian community has tragically
failed to address the needs of queer youth, due largely to the commu-
nity's fear of7 the stereotype that it "recruits" teenagers to
homosexuality.
In this type of political and legal climate, 8 queer youth are under
enormous stress from the outside world, making it imperative that
they receive support from their families. Unfortunately, their families
are shaped by the same societal forces, and often fail to provide the
necessary comfort to queer children. In contrast, "[m]any families
that are members of racial or ethnic minorities prepare their children
for the harassment they may face in the world and provide support
when their children encounter oppressive treatment." 9 Queer teens
may not only endure painful harassment from their parents, but are
also denied the familial support that is essential to coping in a society
that refuses to accept them. "If parenting means to nurture and pre-
pare a child to function in the world with a positive identity, most
5. Nancy Taylor, Gay and Lesbian Youth.. Challengingthe Policy of Denial,in HELP-
ING GAY AND LESBIAN YOUTH: NEW POLICIES, NEW PROGRAMS, NEW PRAC'ICE 39, 43
(Teresa DeCrescenzo ed., 1994).
6. See generally Kelli Kristine Armstrong, Note, The Silent Minority Within a Minor-
ity: Focusing on the Needs of Gay Youth in Our Public Schools, 24 GOLDEN GATE U. L.
REv. 67, 72-78 (1994) (discussing the failure of the American education system to deal
effectively with issues of sexuality and sexual orientation that gay and lesbian teens face).
A study by the Hetrick-Martin Institute found that 45% of gay males and 20% of lesbians
experience verbal or physical assault in high school. SINGER & DESCHAMPS, supra note 4,
at 78 (citing FACrFILE: LESBIAN, GAY AND BIsEXUAL YOUTH, HITRicK-MARrTN INSTI-
rUm (1992)). In addition, 28% of abused queer youth feel forced to drop out due to such
harassment. Id.
7. Taylor, supra note 5, at 46.
8. Gay teens are aware of the legal consequences of being gay. Gays and lesbians
currently live under a hostile legal system. Gay marriage is recognized in only one state.
See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). Homosexual sodomy is illegal in 19 states.
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., "SODoMY" LAWS: STATE-BY-
STATE UPDATE (On File at Lambda Legal Defense and Education Fund Headquarters,
New York, 1996). Gay parents are considered presumptively unfit in 2 states. See FLA.
STAT. ANN. § 63.042(3) (1991); N.H. REV. STAT. ANN. § 170-B:4 (1991). Only 8 states
posess anti-discrimination laws that explicitly protect gays and lesbians from harassment
and discrimination. SINGER & DESCHAPS, supra note 4, at 29 (citing National Gay and
Lesbian Task Force, Washington, D.C., 1993). See Emery S. Hetrick & A. Damien Martin,
Developmental Issues and Their Resolution for Gay and Lesbian Adolescents, 14 J. HOMo-
SExUALrrY 25, 28 (1987) (citing some examples of discrimination faced by homosexuals).
9. Nancy Tenney, Note, The ConstitutionalImperative of Reality in Public Schools
Curricula: Untruths About Homosexuality as a Violation of the First Amendment, 60
BROOKLYN L. REv. 1599, 1611 (1995). See also, Hetrick & Martin, supra note 8, at 29-30
(discussing the challenges that queer youth within minority groups may face).
November 1996] A CHILD'S RIGHT TO BE GAY
parents of lesbians and gays are either incompetent or unwilling to

perform their parental tasks."10 The law which should step in when
parents fail to care for their children has turned away from the issue of
emotional abuse.
Psychological abuse from family members affects queer youth
more than any other group of adolescents." "[D]uring the period of
adolescence, the difficulties involved in completing developmental
tasks are compounded by the young person's attention to concealing
her or his sexual feelings and identity, to the conflicts around the ex-
pression of those feelings, and to coping with issues of self-image and
self-esteem. 1 2 Consequently, the vast majority of queer youth expe-
rience severe feelings of isolation.13 In a study conducted by the Na-
tional Gay Task Force, thirty-three percent of gay and lesbian teens
reported verbal abuse from their families because of their sexual ori-
entation.1 4 Another study by the Hetrick-Martin Institute found that
half of all queer youths reported that their parents rejected them be-
cause of their sexual orientation.15 Although empirical studies have
failed to provide an accurate estimate of the rate of abuse of queer
teens,16 studies clearly demonstrate that the rate of psychological
abuse among queer teens is higher than that among heterosexual
teens.' 7 Because parental rejection and abuse are generally coupled
10. Brad Sears, Recent Developments, Winning Arguments/Losing Themselves: The

(Dys)FunctionalApproach in Thomas S. v. Robin Y., 29 HARV. C.R.-C.L. L. REv. 559,578
(1993).
11. Paul Gibson, Gay Male and Lesbian Youth Suicide, in U.S. DEPARTMENT OF
HEALTH AND HUMAN SERVICES REPORT OF THE SEcRETARY's TASK FORCE ON YOUTH
SuIcmE 110, 127 (1989).
12. Dennis D. Durby, Gay, Lesbian, and Bisexual Youth, in HELPING GAY AND Lns-
BLAN YOUm: NEw PoLIcms, NEw PROGRAMS, NEW PRAcnCE 1, 2 (Teresa DeCrescenzo
ed., 1994).
13. SINGER & DESCHAMPS, supra note 4, at 77 (citing FACiLE: LESBIAN, GAY AND
BISEXUAL YoUTH, HETICK-MARTiN IS'TITUTE (1992)) (finding that 80% of lesbian and
gay youth surveyed in 1987 experienced severe isolation). See also Hetrick & Martin, supra
note 8, at 31 (finding that emotional isolation among queer adolescents is especially high
with regard to their families).
14. Gibson, supra note 11, at 127.
15. SINGER & DESCHAMPS, supra note 4, at 77 (citing FACTFILE: LESBIAN, GAY AND
BISEXUAL YoUTH, HEICK-MARTIN INSTrrUTE (1992)).
16. "Antigay victimization in families is probably even less visible than are other
forms of antigay hate crimes because crimes that occur in a family or home setting are
generally less likely to be reported." Patricia J. Falk, Lesbian Mothers: PsychologicalAs-
sumptions in Family Law, 44 AMERICAN PSYCHOLOGIST 941, 952 (1989) (quoting R.M.
O'BRIEN, CRIME AND VICIIMIZA7ION DATA (1985)).
17. Gibson, supra note 11, at 127. Studies also suggest that the rate of physical abuse
among queer teens may be higher than the heterosexual population. See Hetrick & Mar-
tin, supra note 8, at 33 (finding that one third of their clients had suffered violence because
of their sexual orientation and in 49% of these cases, the violence came from within the
family).
with the discovery of a teen's sexual orientation,' 8 the rate appears to

be highest for teens that are openly queer. The high visibility of these
teens and the way they are treated warns closeted teens of the risks
involved in coming out.
Familial abuse may be most severe for queer adolescents from
minority racial groups.' 9 These youths are most at risk for abuse be-
cause they encounter additional challenges not facing white queer
youth: "(a) developing and identifying both a strong gay identity and
a strong ethnic identity; (b) potential conflicts in allegiance, such a
preference group identity within one's gay and ethnic community; and
(c) experiencing both homophobia and racism. '20
This paper argues that it is imperative for the legal system to help
queer youth by recognizing the severity of emotional abuse directed at
a child's sexual orientation. Part II explores the causes and effects of
such maltreatment on queer youth. Part III addresses the legal sys-
tem's denial of the abuse of queer youth. Part IV argues that the legal
system's denial of the abuse of queer youth is a result of several fac-
tors: (1) a general disregard in the legal system for psychological child
abuse; (2) the dominance of heterosexuality; (3) the belief that a
child's sexual orientation is changeable; and (4) the parental rights
doctrine. These factors work together to deny abused teens legal pro-
tection. Finally, Part V suggests statutory recognition of the psycho-
logical abuse of queer teens in order to help represent the interests of
these youths generally and in the contexts of custody litigation, guard-
ianship and adoption proceedings, and emancipation.
I. Causes of Parental Rejection of Queer Youth

Parents of queer youth who abuse their children do so as a result
of a myriad of forces. This section discusses the reasons that some
parents psychologically abuse their children upon discovering that
they are not heterosexual. Beginning with the traditional approach to
understanding parental psychological behavior, this section explains
why traditional theories regarding emotional abuse are incapable of
encompassing the facets of the abuse experienced by queer teens. It
then explores the way that homophobia and the belief in mutability
interact and cause some parents to verbally abuse queer youth.
18. Ritch C. Savin-Williams, Verbal and Physical Abuse as Stressors in the Lives of
Lesbian, Gay Male, and Bisexual Youths: Associations with School Problems, Running
Away, Substance Abuse, Prostitution,and Suicide, 62(2) J.CONSULTING AND CLINICAL
PSYCH. 261, 263 (1994).
19. Id. at 267.
20. Ritch C. Savin-Williams & R.G. Roderiguez, A Developmental, ClinicalPerspec-
tive on Lesbian, Gay Male, and Bisexual Youths in Adolescent Sexuality, in ADVANCES IN
ADoLE-ScENT DEVELOPMENT 77, 94 (T.P. Gullotta, G.R. Adams, & R. Montemayor eds.,
1993).
Even though psychological abuse leaves no physical marks on a

child, it may result in the most enduring harm.21 "Rather than casting
psychological maltreatment as an ancillary issue, subordinate to other
forms of abuse and neglect, we should place it as the centerpiece of
efforts to understand family functioning and to protect children."22 A
psychologically abused child "has not only the burden of his distress to
bear, but that of being left with extremely inadequate mental re-
sources to cope with a degree of pain which would overwhelm the
most favorably brought up child."2 3
Psychological theories that attempt to explain general parental
abuse of adolescents are inadequate in explaining the abuse of queer
adolescents. Psychological theorists have tended to focus their atten-
tion on uncovering the reasons why adolescents experience psycholog-
ical abuse in a different context than younger children. One reason
for this unique position
24
is the sexuallemotional/physical maturing pro-
cess of the child.
One psychological theorist in the area of child neglect and emo-
tional maltreatment, James Garbarino, identifies several patterns of
adolescent psychological abuse which illuminate how an adolescent's
developmental state impacts the likelihood that verbal abuse will oc-
cur in a parent-child relationship. First, the parents of a teenager
might reject their child by failing to acknowledge the child's changing
social role towards autonomy.25 A parent may also terrorize the ado-
lescent by publicly humiliating him/her.26 Alternatively, a youth may
be ignored by his/her parent or be kept isolated from the rest of soci-
ety.27 Often, abuse of teens results from increased feelings of frustra-
tion and impotency on the part of parents in trying to influence and
control adolescent children." 28
The second factor that psychologists have identified as contribut-
ing to the unusual experience of adolescents with parental abuse is
parents' mid-life crises. 29 Psychologists Garbarino and Gilliam argue
that, contrary to the abuse of younger children, adolescent abuse may
be linked more heavily to intra-familial relationships than to socio-
21. Marcia A. Kincanon, Note, The Child Abuse that Doesn't Count: General and
EmotionalNeglect, 22 U.C. DAVIS L. REv. 1039, 1050-51 (1989).
22. JAMES GARARuNo, TiH PSYCHOLOGICALLY BATTERED CHILD 7 (1986).
23. Rolene Szur, Emotional Abuse and Neglect, in CHILD ABusE: THE EDUCA-
TIONAL PERSPECrIVE 111, 121 (Peter Maher ed., 1987).
24. GARBARINO, supra note 22, at 25.
25. Id.
26. Id. at 26.
27. Id. at 25-27.
28. JAMES GARBARINO & GWEN GILLIAM, UNDERSTANDING ABusIVE FAMILIES 141,
147 (1980).
29. Id. at 143-45.
economic factors.3 0 The physical, intellectual and social development

of adolescents coincides with equally disruptive mid-life changes tak-
ing place in parents' lives. 31 These changes often strain the relation-
ship between youths and their parents, resulting in subsequent
32
abuse.
Strictly applying Garbarino's theory of adolescent psychological
abuse, queer youth are abused largely as a result of (1) parental feel-
ings of impotency in controlling their child's development, combined
with (2) parents' mid-life crises. Of these two factors, the former ap-
plies exceptionally well to the experience of queer youth. Like heter-
osexual adolescents, queer adolescents must endure the mid-life crises
of their parents. Compounding this dilemma for queer youth, how-
ever, is the high likelihood that upon learning of their children's sex-
ual orientation parents will feel out of control of the sexual
development of their queer adolescents. But this explanation alone is
inadequate for revealing all the dimensions of homophobic abuse. An
analysis of parental rejection of queer teens must include a discussion
of how the combination of homophobia and the belief that sexual ori-
entation in adolescents is changeable results in the feelings of frustra-
tion and anger that lead to abuse.
A. Homophobia
One of the primary causes of parental rejection of queer children

is homophobia, as indicated by the overwhelmingly negative response
of parents to the discovery of their children's sexual orientation. Em-
pirical data demonstrates that upon learning of their children's homo-
sexuality, parents overwhelmingly respond in a negative way. 33 One
study found that when first learning of their child's homosexuality,
64% were sad, 49% were depressed, 44% were guilty, 37% were
30. Id. at 119. Several scholars have linked child abuse and neglect generally to job-
lessness, inadequate housing, and other "chronic social ills" related to poor socio-economic
backgrounds. Barbara Nelson, Making an Issue of ChildAbuse, in FaMLY MA Rs 232,
241 (Martha Minow ed., 1993). See also, Judith G. McMullen, Privacy, Family Autnomy,
and the Maltreated Child,75 MARQ. L. REv. 569, 595 (1992) (arguing that current adverse
conditions can consume parents' energies more for survival than for emotional nourish-
ment of the child); Judith Areen, Intervention Between Parentand Child. A Reappraisalof
the State's Role in Child Neglect and Abuse Cases, 75 GEo. L.J. 887, 889 n.7 (1975).
31. GARBARINO & GELLIAM, supra note 28, at 143-145.
32. Id.
33. Erik F. Strommen, Ph.D., "You're a What?": Family Member Reactions to the
Disclosure of Homosexuality, 1 J. HoMosExuALrrv 37, 39-40 (1989). See also, Deborah
Zera, Coming of Age in a Heterosexist World: The Development of Gay and Lesbian Ado-
lescents, 27 (108) ADOLESCENcE 849, 851 (1992) (arguing that adolescents' fear of disclos-
ing their sexual preference to their parents is a result of the anticipated negative reaction).
shocked, 22% were angry, 14% were sick, and 9% were disgusted: 4
Extreme emotions such as anger, disgust, and sickness occurred in
nearly a quarter of those parents surveyed.
Similarly, a study conducted by Dr. Gary Remafedi found that
43% of male teenagers encountered strong negative attitudes from
their parents when they disclosed their sexual orientation, placing the
teenagers at high risk for psychological dysfunction.35 Strong feelings
regarding children's behavior such as anger
36
and disgust are often pre-
cursors for parental emotional abuse.
A survey conducted by Dennis Anderson, found that parents of
queer youth tend to go through a multi-stage process of a variety of
emotions upon learning of their children's sexual orientation. 37 A
stage of shock and denial precedes one of anger and guilt.38 Finally,
those families that learn to cope successfully with their child's homo-
sexuality may reach a stage of acknowledgment.3 9 Anderson's study
also found a direct link between parents' reaction to their children's
sexual orientation and parents' preconceived notions regarding homo-
sexuality. 40 "Parents who view homosexuality as totally repugnant
may suddenly see their child as a completely different person and feel
the complete loss of the child they had known."'41 In such circum-
stances, verbal abuse of queer youth is not an unusual response on the
part of parents to their feelings of anger and frustration. 42
Parental anger and frustration result from the institutionalized
dominance of heterosexuality. Parents often perceive their children's
deviant sexual orientation as caused by their own failure in raising
their children in conformity with the heterosexual norm. "For many
years, parents have been misinformed that it was their role modeling
and behavior, including parenting style, that determined whether or
34. Bryan E. Robinson et al., Response of Parents to Learning That Their Child is
Homosexual and Concern Over AIDS: A National Survey, 1 J. HOMOSEXUALrrY 59, 67
(1989).
35. Gary Remafedi, Male Homosexuality: The Adolescent's Perspective, 79(3) PEDI-
ATuCS 326, 328 (1987) (finding that the process of coming out "was typically painful for all
parties involved").
36. NATIONAL RESEARCH COUNCIL, UNDERSTANDING CHILD ABUSE AND NEGLECr
115 (1993).
37. Dennis Anderson, The Family and Peer Relations of Gay Adolescents, in GAY
ADOLESCENTS 162, 166 (1987); see also, Strommen, supra note 33, at 40-41 (describing
studies where patterns of family reaction to a child's disclosure of homosexuality were
analyzed).
38. Anderson, supra note 37, at 167-9.
39. 111 at 170.
40. Id. at 166.
41. ld.
42. See Zera, supra note 33, at 851.
not their child would grow up to be gay or lesbian. '43 Internalizing

and conforming to societal homophobia, parents may treat their chil-
dren with the animosity that society promotes.
B. Belief in Mutability
Compounding homophobia is the belief that children's sexual ori-
entation is changeable-if parents had raised their children differently
then their queer children would have turned out heterosexual.
"Where there is choice, there is reason and responsibility, and there-
fore this belief rationalizes limited conceptions of homosexuality as
sin. Whereas an immutable condition is something the individual can-
not be held responsible for, a chosen course of action does not escape
judgment." 44 That parents believe in mutability is manifest in the
large number seeking psychiatric therapy or institutionalization for
their queer children, as if therapy could 'fix' their sexuality.45 The
legal system passively enforces the belief that sexual orientation is
mutable when it refuses to acknowledge homophobic and hateful ver-
bal abuse from parents as a form of psychological abuse. This concept
will be explored further in Parts IV and V.
H. The Effects of Parental Abuse of Queer Youth

The clearest indications of psychological abuse within the home
are the outward behavioral patterns of queer teens. It is difficult to
know precisely whether such behavior is the direct result of parental
maltreatment, peer harassment, or wider societal rejection. Most
likely, it is a combination of all three forces that causes queer adoles-
cent behavioral problems. Nevertheless, if parents provide an ac-
cepting and loving environment, it is less likely that queer adolescents'
interactions with peers and society at large would be as
dysfunctional. 46
This section explores the situation of queer youth compared to
heterosexual youth with regards to suicide, homelessness, substance
43. Gerald P. Mallon, CounselingStrategies with Gay and Lesbian Youth, in HELPING
GAY & LESBIAN YOUTH: NEW POLICIES, NEw PROGRAMS, NEW PRACnCES 75, 83 (Teresa
DeCrescenzo ed., 1994).
44. Darryl Jackson & Richard Sullivan, Developmental Implications of Homophobia
for Lesbian and Gay Adolescents: Issues in Policy and Practice, in HELPING GAY & LES-
BIAN YOUTH: NEw POLIcIES, NEw PROGRAMS, NEW PRACrnCES 93, 107 (Teresa
DeCrescenzo ed., 1994).
45. See generally Shannon Minter, How Psychiatry Pathologizes Lesbian, Gay, Bisex-
ual and Transgender Youth, in GENDER IDENTITY DISORDER: AN ATrACK ON LESBIAN,
GAY, BISEXUAL AND TRANSGENDER YOUTH 1 (1995), on File at National Center for Les-
bian Rights, San Francisco, CA (stating that Gender Identity Disorder is used by psychiat-
ric professionals to enforce socially proscibed gender roles).
46. See Tenney, supra note 9, at 1611.
abuse, prostitution, and HIV status. It links domestic verbal abuse of

queer teens with their disproportionate representation in each of
these categories. In doing so, this section lays a foundation for a pol-
icy of legal intervention in domestic situations where queer youth are
abused.
A. Suicide
Suicide is one of the most dramatic signs of the pain experienced
by queer youth.47 Family problems contribute heavily to the dispro-
portionate number of gay and lesbian teen suicide attempts and
deaths. 48 These youths are 2 to 3 times more likely to attempt suicide
than other kids their age and constitute 30 percent of the country's
completed suicides. 49 A study by the Department of Health and
Human Services found that in 1981, 53% of transsexual youths had
attempted suicide at least once.50
Verbal abuse directed at a child's sexual orientation is a strong
precursor for suicide attempts among queer youth. A study con-
ducted by T.L. Hammelman found that rejection from family mem-
bers constitutes one of the four main criteria for predicting which gay
and lesbian are at risk for attempted suicide. 51 A survey conducted by
Dr. Gary Remafedi, et al., found that family troubles were the most
often reported cause for suicide attempts in queer youth.52 "When
you have been told that you are sick, bad, and wrong for being who
you are, you begin to believe it. Gay youth have frequently internal-
ized a negative image of themselves. '53 Queer youth suicide is a well-
documented phenomenon that must be addressed on various levels,
including through the prevention of psychological abuse by parents.
47. See generally, Durby, supra note 12, at 26-32 (reviewing numerous studies on the
suicide rates among lesbian and gay youths).
48. See Gibson, supra note 11, at 127.
49. IL at 110; Gary Remafedi et al., Risk Factorsfor Attempted Suicide in Gay and
Bisexual Youth, 87(b) PEDIATRICS 869, 873 (1991). See also, Hetrick & Martin, supra note
8, at 33 (finding that 20% of the clients presently at Institute for the Protection of Lesbian
and Gay Youth had either attempted suicide or had strong inclinations toward suicide).
50. SINGER & DEscAHnws, supranote 4, at 77 (citing U.S. DEPARTMENT OF HEALTH
AND HuMAN SERVICES, REPORT OF THE SECRETARY'S TASK FORCE ON YOUTH SUICIDE
(1989)).
51. T.L. Hammelman, Gay and Lesbian Youth: Contributing Factors to Serious At-
tempts or Considerationsof Suicide, 2(1) J. GAY & LESBIAN PSYCHOTHERAPY 78, 84-85
(1993) (cited in Durby, supra note 12, at 31). The other three factors Hammelman identi-
fies as placing queer youth at risk for suicide were (1) the discovery of their sexual orienta-
tion early in adolescence; (2) the experience of violence associated with their sexual
orientation; and (3) the use of drugs or alcohols in order to cope with their sexual orienta-
tion. Id.
52. Remafedi et al., supra note 49, at 874.
B. Homelessness
Many abused queer youth escape abuse by running away from
home. Another portion of them are kicked out of home because of
their sexual orientation.5 4 As one teenager explained, "We've only
talked about it once-and he told me to get out of the house. I left,
but I came back 'cause I couldn't make it on my own." 55
Studies suggest that approximately one out of every four queer
youth are forced out of their homes because of conflicts with families
over their sexual orientation or gender identity.56 Consequently,
queer youth comprise a drastically disproportionate number of the
homeless youth in this country. Gary Remafedi found that nearly one
half of bisexual and gay young men in one study had run away from
home at least once.5 7 Yates, et al., conducted a survey that deter-
mined that about 13% of the 620 homeless youth that they inter-
viewed were gay, lesbian, bisexual or undecided.5 8 Gibson found that
as many as 25% of all youth living on the streets in this country are
gay or lesbian.59 However, this figure varies, and is especially higher
in urban settings. 60 Abby Abinati, in an interview with the Larkin
Street Youth Center in San Francisco, found that of 2,000 homeless
teenagers who had contact with the Center, approximately half were
gay or lesbian.61 In Seattle, it is estimated that 40% of street youths
are gay, lesbian or bisexual, and in Los Angeles the estimate is 30%.62
54. See Hetrick & Martin, supra note 8, at 35 ("We have seen several instances where
a young person, confident of the love of his or her parents, reveals his or her homosexual-
ity and then ends up on the street."); Gerald P. Mallon, Counseling Strategies with Gay
and Lesbian Youth, in HELPING GAY AND LESBIAN YOUTH: NEW POLICIES, NEw PRO-
GRAMS, NEW PRACTICE 75, 83 (Teresa De Crescenzo ed., 1994).
55. Remafedi, supra note 35, at 328.
56. HUMAN RIGHTS COMMISSION, FACT SHEET. LESBIAN, GAY, BIsEXUAL, TRANS-
GENDER, QUEER & QUESTIONING YOUTH (San Francisco, 1996) (citing NATIONAL GAY
AND LESBIAN TASK FORCE, ANrTI-GAYLESBIAN VICTIMIZATION (New York, 1984). See
also Falk, supra note 16, at 952 (stating that family violence often forces gay and lesbian
youth on to the streets, leading to further victimization).
57. Gary Remafedi, Adolescent Homosexuality: Psychosocial and Medical Implica-
tions, 79(3) PEDIATRICS 332 (1987), cited in Savin-Williams, supra note 18, at 264.
58. Gary L. Yates et al., A Risk Profile Comparison of Homeless Youth Involved in
Prostitutionand Homeless Youth Not Involved, 12 J.ADOLnESCENT HEALTH 545 (1991),
cited in Durby, supra note 12, at 21.
60. See Savin-Williams, supra note 18, at 264 (citing studies that found larger percent-
ages of lesbian, gay, and bisexual runaways in Seattle and Los Angeles).
61. Abby Abinati, Legal Challenges FacingLesbian and Gay Youth, in HELPING GAY
AND LESBIAN YoUm: NEw POLICIES, NEW PROGRAMS, NEW PRACTICE 149, 168 n. 22
(Teresa DeCrescenzo ed., 1994).
62. Savin-Williams, supra note 18, at 264 (citing ORION CENTER, SURVEY OF STREET
YOUTH (1986); J.W. Peterson, In Harm's Way: Gay Runaways are in More Danger Than
Ever and Gay Adults Won't Help, THE ADVOCATE, April 11, 1989, at 8-10.
Life on the streets often leads directly to other types of harmful

activity for queer youth. "For many street youth, their struggle for
survival becomes the fulfillment of a 'suicidal script' which sees them
engaging in increasingly self-destructive behaviors including unsafe
sexual activity and intravenous drug use. '63 One study estimates the
percentage of homeless youth with HIV to range from 20-25% of the
homeless youth population. 64 Homelessness is one of the clearest
manifestations that the home environment is the source of pain in run-
aways' lives.
C. Prostitution
Queer youth that leave or are pushed from home by parental
abuse are often forced into prostitution because of a lack of other
alternatives. 65 "Many youths report that they became prostitutes to
survive and to escape physical, sexual, and emotional abuse in their
homes and schools. ' 66 The Hetrick-Martin Institute found that up to
half of the gay or bisexual young men that are forced out of their
homes because of their sexual orientation engage in prostitution to
support themselves. 67
A study by Coleman found that approximately two-thirds of ado-
lescent male prostitutes are gay. 68 A study by Freiberg found that
75% of male "street hustler" youths in Minneapolis are gay.69 Finally,
Yates, et al., found that prostitutes under age 18 were five times as
likely to be gay, lesbian or bisexual. 70 "Among their fellow prosti-
tutes, they found camaraderie and kinship that substituted for the ne-
glect or rejection they received from their biological families and
peers. 71 Prostitution and running away from home are both ways
that queer youth replace the lack of emotional support at home with
surrogate sources from the streets.
63. Gibson, supra note 11, at 114. See also, Durby, supra note 12, at 22 (noting the
high rates of prostitution, survival sex and substance abuse among homeless youth).
64. Savin-Wliams, supra note 18, at 264.
65. Durby, supra note 12, at 22; Ritch C. Savin-Williams, TheoreticalPerspectivesAc-
countingforAdolescent Homosexuality, 9(2) J. ADOLESCENT HEALTH CARE 95,102 (1988)
(finding that up to half of gay and bisexual youth that are kicked out of their homes engage
in prostitution to support themselves).
66. Savin-Williams, supra note 18, at 265.
67. SINGER & DEScHAMs, supra note 4, at 77 (citing FACrFmE: LESBIAN, GAY, AND
BisExuAL YouTH, HETC-MARTIN INsmrtnr (1992)).
68. Eli Coleman, The Development of Male ProstitutionActivity Among Gay and Bi-
sexual Adolescents, 17 . HomosxuALrrY 137 (1989), cited in Savin-Williams, supra note
18, at 265.
69. Peter Freiberg, Minneapolis: Help for Hustlers, THm ADVOCArE, November 12,
1985, at 13, cited in Savin-Williams, supra note 18, at 265.
70. Yates et al., supra note 58, at 547, quoted in Durby, supra note 12, at 22.
D. Substance Abuse
Self-destructive feelings that result from parental verbal abuse
have also led to a higher level of substance abuse among queer
youth.72 Some researchers estimate that as many as 60% of gay and
lesbian youth are substance abusers.73 Alcohol and drug abuse among
these teens results from "attempts to fog an increasing awareness that
they are not heterosexual, to defend against the painful realization
that being lesbian or gay means a difficult life lies ahead, and to take
revenge against parents and society for rejecting them." 74 For many
young people, substance abuse is linked directly to the depression that
comes from living with constant verbal abuse from their parents be-
cause of their sexual orientation. Alcoholism and drug abuse are es-
pecially hazardous problems for queer teens75 because of their
connection with suicide and AIDS transmission.
E. IV
Recently, researchers have discovered a correlation between the
psychological abuse of queer teens and HIV status. In general, the
rate of HV among queer adolescents is doubling each year.76 A re-
port released from the Department of Public Health's 1995 San Fran-
cisco IV Prevention Plan, also found that 45% of the homeless gay
and lesbian youths in San Francisco are HIV positive. 77 The report
indicated that several of the risk factors associated with HIV, such as
drug use, behavioral problems, and self-destructiveness, are prevalent
among emotionally abused children. 78 "[B]ecause of social rejection
and denial of opportunity in the environment for developing a posi-
tive, affirming gay or lesbian identity, gay
'79
and lesbian adolescents are
at even greater risk for HIV infection.
72. Id. at 267.

73. Id. at 265 (citing Gary Remafedi, Adolescent Homosexuality: Psychosocial and
Medical Implications, 79 PEDIATRiCS 331, 334 (1987)).
74. Id. at 265 (citing N. Hammond, Chemical Abuse in Lesbian and Gay Adolescents,
Paper Presented at the Symposium on Gay and Lesbian Adolecents, Minneapolis, MN
(May 1986)).
75. See infra discussion of HIV, and supra discussion of suicide, at p. 175.
76. SINGER & DEScIAmpS, supra note 4, at 19 (citing NEWSDAY, February 15, 1991).
77. Ellen McGarrahan, City of the Night, S.F. WEEKLY, February 21, 1996, at 10-11
(discussing the high risk of acquiring HIV among homeless S.F. gay youth). See also, Re-
nee M. Cunningham et al., The Association of Physical and Sexual Abuse with HIV Risk
Behaviors in Adolesence and Young Adulthood: Implications for Public Health, 18(3)
CHILD ABUSE & NEGLECr 233, 244 (1994).
79. William B. Pederson, HIV Risk in Gay and Lesbian Adolescents, in HELPING GAY
AND LESBIAN YOUTH, NEW PoLIcIES, NEw PROGRAMS, NEw PRAcrcE 131, 134 (Teresa
De Crescenzo ed., 1994).
HI. Judicial Treatment of the Emotional Abuse of

Queer Youth
The greatest indication that courts deny the existence of the emo-
tional maltreatment of queer youth is the noticeable lack of reported
cases that discuss the issue.80 However, when faced with homophobic
harassment of queer youth, the most common response of courts is to
ignore the abuse. In Catherine W. v. Robert F.,81 Robbie's father
called him "faggot" and told him more than once that he "act[ed] like
a queer."' 2 The father brought a motion to be relieved of child sup-
port obligations because his children refused to visit with him. The
court in Catherine W. held that if a parent's conduct toward his/her
child is found to be "inimical to [the child's] physical or emotional
well-being" then the parent no longer
83
must make support payments if
the child refuses to see him/her.
Although the court stated that the homophobic statements made
by Robert F. to his son "should never have been made, particularly to
a boy of Robbie's sensitivity," it nonetheless concluded that the har-
assment did not constitute "conduct inimical to [the child's] physical
or emotional well-being." 85 In so doing, the court implied that a par-
ent's hostile rejection of a child's sexual orientation is not abusive.
Indeed, the decision suggests that a queer child should be forced to
endure the maltreatment, or survive without his/her parents' financial
support.
In contrast to CatherineW. v. Robert F., the court in In the Matter
of Shane T86 openly discussed the detrimental impact of parental psy-
chological abuse on queer teens. In this case, the father constantly
taunted his gay son, abusively using words such as "faggot" and
"queer." 7 The court found that the father's behavior constituted
88
emotional abuse and terminated the father's parental rights.
The Shane T. court, however, hinged much of its decision on
Shane T.'s report of physical manifestations that resulted from the
abuse, such as stomach pains.8 9 While the presence of such physical
side effects worked in favor of the child in In the Matter of Shane T.,
such physical manifestations are often not present. Courts must.not
80. My research revealed only two cases in which the emotional abuse of a queer
youth was addressed by a court.
81. 455 N.Y.S.2d 519 (1982).
82. Id. at 521.
83. Id. at 520.
84. Id. at 521.
85. Id.
86. 453 N.Y.S.2d 590 (1982).
87. Id. at 591.
88. Id. at 594.
89. Id. at 592-93.
insist on physical signs of abuse and must focus instead on the repeti-
tion or severity of emotional harm. The insistence on physical mani-
festations indicates the court's uncertainty as to what type of
emotional maltreatment is severe enough to warrant court action.
However, if courts acknowledge the pain and anguish that necessarily
result from homophobic harassment of queer youth, physical manifes-
tations should no longer be necessary.
As noted, sociological and psychological research clearly indi-
cates that many queer youth are emotionally abused by their parents.
Furthermore, this abuse has severely detrimental impacts on children.
There is an enormous gap, however, between what the research
reveals and how the law interprets the issue. The disproportionate
number of queer teens who are substance abusers, runaways, suicide
victims, and prostitutes should send a red flag to the legal system that
these young people are experiencing severe emotional trauma. While
much of this trauma results from widespread societal homophobia, it's
also clear from the research that these behavior patterns are directly
linked to parental abuse. Why isn't the legal system intervening in
cases of abuse severe enough to force gay and lesbian youths to en-
gage in self-destructive behavior?
IV. Reasons Behind the Law's Denial of the Abuse of

Queer Youth
Similar to the reasons behind parental rejection of queer youth,
the legal system's denial of this abuse is the result of a coalescence of
forces. Understanding the way that these forces interact is central to
dismantling the law's denial of the abuse and formulating legal reme-
dies. This section asserts that the factors which are particularly in-
volved in cases of abused queer adolescents include: (1) the general
hesitancy of the law to recognize the psychological abuse of children;
(2) homophobia; (3) the belief that an adolescent's sexual orientation
is changeable; and (4) parents' rights doctrine.
A. General Judicial Treatment of Emotional Abuse

How the legal system chooses to address the emotional maltreat-
ment of queer youth is largely dictated by its overarching conception
of the broad category of emotional abuse. This section generally ex-
plores the law's perception of the emotional abuse of children. It be-
gins by examining the current state of research into the causes and
effects of psychological maltreatment. It then discusses the historical
development of emotional abuse as a legally recognized category of
child abuse, with emphasis on the mental health profession's influence
on the law in this area. Finally, this section reviews the statutory
schemes that have been implemented to address emotional maltreat-

ment and the deficiencies inherent in such approaches.
Current child emotional abuse statistics are difficult to assess. 90
In 1992, the U.S. Department of Commerce found that there were
48,928 reported cases of emotional maltreatment in the United States,
constituting 5.3% of the total reported incidents of child abuse.91 The
National Committee for the Prevention of Child Abuse reported that
of the verified cases of child abuse in 1993, 4% were emotional abuse
cases. 92 It also found that child abuse reporting in general has in-
creased more than four-fold since 1976. 93 Emotional abuse, however,
is hard to detect because it leaves no physical signs, often resulting in
under reporting.
Psychological research has uncovered that the failure to provide
adequate nurturing to a child through emotional support can cause
serious problems in adolescent children, including: depression, low
self-esteem, suicidal tendencies, and substance abuse. 94 These effects
of emotional abuse vary according to an individual child's personality,
vulnerability, and defense mechanisms.95
Studies have also demonstrated that emotional abuse does not
occur in isolated incidents, but rather is a pattern of interactions be-
tween a child and adult.96 In addition, emotional abuse may occur
alone or in conjunction with sexual and/or physical abuse. 97 Further-
more, the psychological, as opposed to physical, damage that results 98
from any sort of child abuse is the most enduring sort of harm.
While bodily injuries will normally heal, emotional scarring will not.
The State clearly has a strong interest in eliminating and preventing
emotional harm to children. 99 Difficulty lies, however, in detecting
abuse and creating concrete and understandable statutory definitions
of psychological abuse.
90. This is partly due to the low rate of reporting of child abuse as well as the low rate
of investigation. See Murray A. Straus & Carrie L. Yodanis, CorporalPunishment by Par-
ents: Implicationsfor Primary Prevention of Assaults on Spouses and Children,2 U. C. L.
SCHI. ROUNDTABLE 35, 35 n.4 (1993).
91. U.S. DEPARTMENT OF COMMERCE, STAISTIAL ABSTRACT OF THE UNrrED
STATES 213 (114th ed. 1994).
92. Stephen Conley, Child Abuse: Growing Problem in the USA, USA TODAY, Apr.
17, 1994, at 8A.
93. Id.
94. Judith G. McMullen, The Inherent Limitations of After-the Fact Statutes Dealing
With the Emotional and Sexual Maltreatment of Children, 41 DRAxE L. Rnv. 483, 521
(1992).
95. Id. at 496.
96. Id. at 495-96.
97. Id. at 495.
98. Id.
99. Kincanon, supra note 21, at 1056-57.
HASTINGS LAW JOURNAL [Vol. 4S
The psychological abuse of children went unrecognized by the

medical and legal communities for many decades after the "discovery"
of physical child abuse. It took until the mid-twentieth century for an
emotional form of child abuse to be recognized by the mental health
profession. 100 Initially, psychological maltreatment was not recog-
nized as a justiciable form of child abuse. 101 When scholars and law-
makers first attempted to define the problem in the 1960s, their defini-
tions were limited to physical abuse. 0 2 This resulted both from the
medical community's slow process of recognition as well as a general
hesitancy among the legal community to interfere in the family
sphere. 03 However, once emotional abuse gained respect in the
mental health profession, the legal system followed by establishing10a4
"plethora of laws" specifically attacking the new category of abuse.
Current legal definitions of emotional abuse draw heavily on the
psychological profession's views. Dr. Garbarino, describes psycholog-
ical maltreatment as taking five forms: rejecting, isolating, terrorizing,
ignoring and corrupting. 0 5 Relying upon distinctions drawn by Gar-
barino, legal scholars Karp and Karp have broken the broad category
of emotional abuse into three subgroups: emotional abuse, emotional
neglect and psychological maltreatment. 0 6 Emotional abuse is de-
fined as "verbal or emotional assault, close confinement and
threatened harm.' °7 Emotional neglect is defined as "inadequate
nurturing/affection, knowingly permitting maladaptive behavior, and
refusal to provide essential care."'10 Finally, psychological maltreat-
ment is defined as "a concerted attack by an adult on a child's devel-
opment of self and social competence, a pattern of psychologically
destructive behavior."' 0 9
There is a widely held belief among lawmakers that "psychologi-
cal injuries are "nebulous and insignificant."" 0 Judith McMullen
identifies three types of statutes designed to address emotional child
100. BARBARA NELSON, MAKINr AN IssuE OF CHILD ABUSE 11-13 (1984).

101. Id.; Kincanon, supra note 21, at 1045-47.
102. NELSON, supra note 100, at 11-12; Kincanon, supra note 21, at 1045-46.
104. McMullen, supra note 94, at 488. See also NELSON, supra note 100, at 11-12 (not-
ing that the issue of child abuse gained greater attention as a result of the civil rights
movement and the ensuing legislative actions).
105. Garbarino, supra note 22, at 8.
106. McMullen, supra note 94, at 494.
107. LEONARD KARP & CHERYL L. KARP, DoMEsTIc TORTS: FAMILY VIOLENCE,
CONFLIC" AND SEXUAL ABUSE § 3.07 (quoted in id. at 494).
109. 1d.
110. Kincanon, supra note 21, at 1043. See also, Patricia L. Howard, Note, Emotionally
Neglected Children-The Need for an Integrationof Law and Child Psychology, 29 S.D.L.
REV. 539, 539-543 (1984).
abuse."' The first type of emotional abuse statute addresses psycho-

logical child abuse, but does not refer specifically to emotional child
abuse." 2 For example, McMullen includes under this category the
New York statute, which prohibits the "impairment of [a child's] emo-
tional health."" 3 McMullen explains that although the statute ap-
pears to recognize emotional harm to a child, its language "seems to
limit intervention for emotional impairment to those cases where the4
impairment is a direct result of inflicted physical injury or neglect.""1
The inherent problem with such a statute is that judges are free to
disregard the emotional abuse of children if they choose."15 The con-
trary outcomes of In the Matter of Shane T. and Catherine W. v. Rob-
ert F., both New York cases, exemplify the fact that judges are given
wide latitude in their decisionmaking under such a statute. Moreover,
judges who wish to hold parents liable for emotional abuse are not
provided with a firm statutory basis for such a finding.
The second type of emotional abuse statute specifically refer-
ences emotional abuse, but provides no guidance to courts on how to
ascertain when a child has been emotionally abused." 6 For example,
the California statute arguably falls under this category. It includes
under its definition of child abuse both "wilful mental injury"" 7 to a
child and "[a]ny condition which results in the violation of the...
mental ... welfare of a child or jeopardizes the child's present or
future health, opportunity for normal development or capacity for
independence."""
The deficiency with this approach is also that judges are given too
much discretion. Influences such as homophobia, the belief in the mu-
tability of a child's sexual orientation, and parents' rights, can sway
judges away from concluding that the verbal abuse of queer youth
constitutes emotional abuse.
Finally, the third type of emotional abuse statute prohibits emo-
tional abuse and provides "a standard for ascertaining when such mal-
l11. McMullen, supranote 94, at 486-93. McMullen also notes that states usually have
two broad statutory approaches to addressing child abuse: criminal abuse statutes and
child protective services statutes. Id. at 487. This paper's analysis will focus only on the
latter.
112. Id at 488-89 (citing ILL. ANN.STAT. ch. 23, para. 2354 (Smith-Hurd 1988)).
113. N.Y. FAm. CT. Act § 1012(e) (McKinney 1984) (cited in McMullen, supra note
94, at 488-89).
114. McMullen, supra note 94, at 488-89.
115. McMullen explains that statutes of this type are usually construed "quite liter-
ally." AL Cf.People v. Vandiver, 283 N.E.2d 681 (Ill.
1971) (concluding that the use of the
word "health" is not unconstitutionally vague) (cited in id. at n. 35).
116. McMullen, supra note 94, at 489-90 (citing MrNN. STAT. ANN.§ 609.378(1)(a)(1)
(West Supp. 1993)).
117. CAL. WELF. & INST. § 18951(e)(4) (West 1995).
118. CAL.WELF. & INST. § 18951(e)(5) (West 1995).
treatment is likely to have occurred."'119 Because it specifically

identifies emotional maltreatment as a form of child abuse, this third
type of statute legitimates emotional abuse, and is thus more capable
of protecting the health of psychologically abused children. One of
the main problems inherent in this type of statutory scheme is that
many such statutes require an element of demonstrable harm in abuse
cases. For example, according to the Wisconsin child abuse statute:
"'Mental harm' means substantial harm to a child's psychological or
intellectual functioning which may be evidenced by a substantial de-
gree of certain characteristics of the child including, but not limited to,
anxiety, depression, withdrawal or outward aggressive behavior.' 120
Such a showing of harm, as required by the Wisconsin statute, is often
not possible because the effects of emotional maltreatment are usually
not perceptible until long after the actual verbal abuse occurs. 121
A general difficulty facing courts under all three types of emo-
tional abuse statutes is establishing causation. "[A]cts of emotional
... maltreatment may be covert; the origins of the depression, aggres-
sion, and other behaviors that may result are difficult to identify in
some settings because they could be the result of other causes."'2
Simply put, it is often hard for courts to assume that a certain type of
parental behavior will have detrimental effects on every child.2 3 The
general difficulty courts encounter in determining whether to affirm
emotional abuse allegations is a primary factor for judicial abstinence
in cases involving the emotional abuse of queer youth because of their
sexual orientation. Furthermore, even the most child-protective stat-
ute requires a showing of demonstrable harm.
B. Homophobia
The legal system's view of teenage homosexuality is shaped by
many of the same beliefs that lead parents to feel guilt or anger to-
ward their children's sexual orientation. Homophobia is central to the
legal system's failure to adequately protect gay teenagers in their
homes.' 24 Sympathizing with the frustration of the parents of gay
teens, the law permits wide discretion in dealing with the "problem."
An analysis of how and why the law is homophobic is beyond the
scope of this paper.125 However, bias is clearly manifest in nearly
119. McMullen, supra note 94, at 491 (citing Wis. STAT. § 948.04(2) (1991)).
120. Wis. STAT. § 948.01 (2) (1991) (cited in McMullen, supra note 94, at 485 n.12).
121. McMullen, supra note 94, at 485-86.
122. Id. at 486.
123. Id. at 508.
124. See Jackson & Sullivan, supra note 44, at 103 (explaining that "homophobia has
assumed the proportions of a social pathology in our culture").
125. For a detailed examination of how the law conflates gender and sex in order to
subordinate gays and lesbians, see generally Francisco Valdes, Queers, Sissies, Dykes, and
every aspect of the law that encounters the issue of homosexuality

including employment discrimination cases, 12 6 criminal sodomy prose-
cutions, 2 7 and child custody decisions. 128 Several broad theories have
been advanced explaining the factors contributing to this discrimina-
tion. 2One
9
of the most cohesive theories comes from Professor Sylvia
Law.1
Professor Law argues that the legal system reinforces the social
condemnation of homosexuality by punishing gays and lesbians more
harshly than heterosexuals, as evidenced by sodomy statutes.130 This
punishment, Law asserts, is driven by the threat that homosexuals 32
pose to traditional gender roles. 13 ' Alongside the "deep and cruel"'
punitive measures directed at gays and lesbians, the law also denies
the existence of homosexuality by refusing gays and lesbians legal pro-
tection from discrimination. 33 Applying Law's theory, the legal sys-
tem's refusal to intervene in situations of emotionil maltreatment of
gay and lesbian youth serves to both punish and deny the existence of
homosexuality. Allowing the parents of some queer youth to psycho-
logically abuse their children reinforces the legal and social domi-
nance of heterosexuality.
C. Belief that a Child's Sexual Orientation is Mutable

Another belief fueling the legal system's ambivalence toward the
psychological abuse of queer youth is that a child's sexual orientation
can be changed by the way he/she is reared. The law sees a child's
sexual orientation as something that parents can shape. The law un-
derstands why a parent would want to maximize the potential that
their child turns out heterosexual, indeed the law encourages it by ab-
staining from intervening in the homes where hostile rejection of
queer youth occurs.
Tomboys: Deconstructing the Conflation of 'Sex,' 'Gender,' and 'Sexual Orientation' in

Euro-American Law and Society, 83 CAL.. L. REv. 3 (1995).
126. See e.g., Juachim v. American Tel. & Tel. Info. Sys., 793 F.2d 113 (5th Cir. 1986)
(without a specific contractual provision to the contrary, an employer may terminate a gay
employee based solely on his sexual orientation).
127. See Bowers v. Hardwick, 478 U.S. 186 (1986) (finding no constitutional right of
privacy to engage in homosexual sodomy).
128. See, eg., id.; N.K.M. v. L.E.M., 606 S.W.2d 179 (1980) (upholding trial court's
custody order, awarding child to her mother on the condition that mother no longer associ-
ate with her lesbian lover).
129. Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L.
RFv. 187, 188-94 (1988) (citing Bowers v. Hardwick, 106 S. Ct. 2841 (1986)).
130. Id.at 188-94.
131. Id
132. Id.at 192.
133. Id.at 194-95.
For example, if a parent were to make racist comments to a child

of a different racial background, a court would most likely not con-
done it. This is due largely to society's higher tolerance for
homophobia than for racism. In addition, the legal system has recog-
nized race as an immutable characteristic but has not done the same
for sexual orientation. 34
Because of the lack of cases addressing the abuse of queer teens,
one must look to other indicia for courts' belief in the mutability of
adolescent sexual identity. Two such indicia are: (1) custody and
adoption decisions involving gay and lesbian parents and (2) the
American Psychiatric Association's (APA) view of teenage sexuality.
(1) Child Custody & Adoption Cases
Child custody decisions provide the most vivid illustrations of the
view that homosexuality is mutable as well as the belief that it is mor-
ally wrong. The dominant belief advanced in many decisions is that
granting custody to gay or lesbian parents risks the inculcation of chil-
dren into a homosexual lifestyle. 135
For example, in In Re Opinion of the Justices,the New Hampshire
Supreme Court upheld a statute prohibiting gay or lesbian foster
parenting, explaining that due to "the reasonable possibility of envi-
ronmental influences, we believe that the legislature can rationally act
on the theory that a role model can influence the child's developing
sexual identity.' 36 Thus, because parents are usually the founda-
tional role models for children, they are the individuals most capable
of shaping a child's sexual orientation.
In N.K.M.v. L.E.M., 37 a child custody modification case, the
court upheld provisions in the custody decree that required appellant
mother to terminate her relationship with her lesbian lover, Betty, and
forbade the custodial mother from allowing the child to have contact
with Betty. In its opinion, the court stated:
Allowing that homosexuality is a permissible lifestyle-an "alter-
nate life style," as it is termed these days-if voluntarily chosen, yet
who would place a child in a milieu where she may be inclined to-
ward it? She may thereby be condemned, in one degree or another,
to sexual disorientation, to social ostracism, contempt and
unhappiness. 138
Thus, it seems clear that the court feared that the lesbian parents'
sexual orientation would shape the child's sexual orientation.
134. See e.g., Weber v. Aetna Casuality & Sur. Co., 406 U.S. 164 (1972).
135. Patricia J. Falk, Lesbian Mothers: PsychologicalAssumptions in Family Law, 44
AM. PSYCHOL. 941, 945 (1989).
136. 530 A.2d 21 at 25 (N.H. 1987).
137. 606 S.W.2d 179 (Mo. 1980).
138. at 186.
Id.
In State Department of Health and Rehabilitative Services v.

Cox, 1 39 the Florida Supreme Court upheld a statutory prohibition on
adoptions by gay parents. In justifying its conclusion that homosexu-
als are unfit to be adoptive parents, the court stated:
Statistically the state does know that a very high percentage of chil-
dren available for adoption will develop heterosexual preferences
... [T]hose children will need education and guidance after puberty
concerning relationships with the opposite sex .... It is in the best
interests of a child if his or her parents can personally relate to the
child's problems and 140assist the child in the difficult transition to het-
erosexual adulthood.
Several assumptions are implicit in the court's reasoning. First is
the obvious belief that a parent has the ability to affect an adolescent's
sexual orientation. More importantly, the court assumes, without any
empirical data in support of its conclusion, that children are better off
with parents of their own sexual orientation. 41 The court's holding
means that it will only protect the interests of heterosexual children to
be raised by heterosexual adults. Under this reasoning, the court
completely ignores the population of queer youth that would be af-
fected by the Florida statute.
Implicit in the belief that gay parents will transmit homosexuality
to their children is the belief that parents can shape their children's'
sexual orientation-that children's sexual orientation is changeable.
Assuming that it is possible to force queer children to conform to the
legally acceptable sexual orientation, it is less likely that abusive ef-
forts by parents to do so will be perceived as abhorrent conduct rather
than socially encouraged conduct.
(2) Attitude of the Medical Community
A second method of examining the law's view that a child's sex-

ual orientation is mutable is through the medical community's atti-
tude. The medical community has a powerful influence on the legal
system's interpretation and understanding of psychological abuse.
Courts, wary of their ability to create rules in the realm of psychologi-
42
cal abuse, often rely on the psychiatric profession for guidance.
139. 627 So. 2d 1210, 1220 (Fla. 1993).

140. Id.
141. This paper in no way supports the conclusion of the Florida Supreme Court that a
child should be raised by parents of the same sexual orientation. The author's discussion of
the court's reasoning is meant to point out the inconsistencies of the protected interests of
heterosexual children verses queer children.
142. Areen, supra note 30, at 912, 928.
Prior to 1973, the APA viewed homosexuality as a pathological

disease. 143 In 1973, the APA retracted this view. 144 However, "the
focus of mainstream psychiatric intervention has moved from 'curing'
homosexuality in adults to 'preventing' homosexuality in children and
adolescents." 145 Thus, the APA created a new disorder, Gender Iden-
tity Disorder (GID), which is defined as: (1) "a strong and persistent
cross-gender identification"1 46 and (2) "a persistent discomfort about
one's assigned sex or a sense of inappropriateness in the gender role
of that sex."' 147
The psychologists that specialize in treating gender identity disor-
der openly advance the view that early treatment in young adults can
prevent homosexuality as an adult. 148 For example, one GID special-
ist stated:
For many adolescents and their families, the key issue is whether
one can or should change what appears to be a developing homo-
sexual orientation... efforts to promote heterosexual functioning
should focus on those individuals who have not yet had extensive
homosexual experiences.' 49
This statement manifests the view that although homosexuality
may not be changeable in adults, adolescents constitute a population
in which the development of homosexuality can be stunted. Eve
Sedgewick asserts that psychologists specializing in GID emphasize
the parental role in shaping children's sexual orientation. 50 She ar-
gues that the profession believes that "the first imperative develop-
mental task of a male child or his parents and caretakers is to get a
properly male Core Gender Identity in place, as a basis for further
and perhaps more flexible explorations of what it may be to be mascu-
line-i.e., for a male person, to be human."' 51 Beliefs of the mental
health profession correspond closely with the law's interpretation of
psychological abuse because such professionals are often relied upon
143. Ronald Bayer, Homosexuality and American Psychiatry: The Politics of Diagno-
sis, in LESBIANS, GAY MEN, AND THE LAW 62, 68(William B. Rubenstein ed., 1993).
144. Id.
145. Minter, supra note 45, at 1.
146. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSIS AND STATISTICAL MANUAL
OF MENTAL DISORDERS 532 (4th ed. 1994) (hereinafter DSM IV).
147. Id. at 533.
148. DSM IV, supra note 146, at 536. "In boys, the cross-gender identification is mani-
fested by a marked preoccupation with traditionally feminine activities. Girls with Gender
Identity Disorder display intense negative reactions to parental expectations or attempts to
have them wear dresses or other feminine attire." Id. at 533.
149. Susan Bradley, Gender Disorders in Childhood A Formulation, in GENDER
DYSPHORIA (Betty Steiner ed., 1985) (cited in Minter, supra note 45, at 4).
150. Eve K. Sedgewick, How to Bring Your Kids Up Gay, 29 SocIAL TExT 18 (1991).
151. Id. at 23.
by courts to help understand what causes and what constitutes emo-

tional abuse.'5 2
The belief that adolescents' sexual orientation is mutable is un-
supported by scientific evidence. Empirical data has consistently
failed to demonstrate that sexual orientation is mutable. On the
whole, it has revealed that sexual identity is immutable in some indi- 3
viduals, but is affected by social environments in other individuals. 5
Furthermore, the empirical data suggests that "both mutability and
immutability, wherever they appear, are the products not only (if at
all) of congenital or early childhood givens, but also (or predomi-154
nantly) of the social interactions that generate social identity."'
Janet Halley suggests that it is hazardous for gay and lesbian legal
activists to focus on immutability because sexual identity is a fluid
concept and may never attain a blanket status of immutability. 55 Un-
fortunately, the law in the area of adolescent abuse hinges on a notion
of mutability that must be revealed as an overinclusive generalization
in order for the legal system to attack the abuse. Ultimately, mutabil-
ity should not matter where a child is being harmed by his/her parents.
Regardless of whether one's sexual orientation is influenced by paren-
tal behavior, it does not justify hateful abuse aimed at forcing a child
to be heterosexual.
D. Parents' Rights
The legal system's complacency regarding the emotional abuse of
queer youth also results from notions of parents' rights. "The right of
natural parents to raise their children is founded on the long tradition
of history and the culture of Western civilization."'1 56 At common law,
the right to control and direct a minor child's upbringing was consid-
ered to be a "sacred right.' 57 Today, scholars have located this right
in either the constitutional right to privacy
59
in the family 58 or in the
Ninth and Fourteenth Amendments.
152. Areen, supra note 30, at 928.

153. Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay,
Lesbian, and Bisexual Identity, 36 UCLA L. REv. 915, 937 (1989).
154. 1&at 937.
155. Id.
156. Douglas E. Cressler, Requiring Proof Beyond Reasonable Doubt in Parental
Rights Termination Cases, 32 U. LouIsvILLE J. OF FAM. L. 785, 795 (1994).
157. Daniel E. Witte, People v. Bennett Analytic Approaches to Recognizing a Funda-
mental ParentalRight Under the Ninth Amendment, 1996 BYU L. REv. 183,190-191 (quot-
ing In re Appeal Maricopa County, 536 P.2d 197, 206 (Ariz. 1975)).
158. See e.g.,Laure A. Culbertson, Comment, Article 613 of the Louisiana Children's
Code: Child Abuse Investigationsin the Twilight of the Fourth Amendment, 55 LA. L. Rnv.
361, 362 (1994); McMullen, supra note 30, at 584-588.
159. See generally Witte, supra note 157.
Francis McCarthy has explored the Supreme Court's attempt to

balance a parent's fundamental right to direct his/her child's upbring-
ing with the child's constitutional rights and the State's interest in pro-
moting healthy children. 160 "[T]here seems to exist today a clearly
articulated precept declaring that parental interests in the custody,
care, and control of their children are constitutionally protected from
unwarranted state interference to a high degree.' 61 Katharine Bart-
lett traces the emphasis on parental rights to the concept of a natural
law, which influences much of the jurisprudence relating to lesbians
and gay men. 62
[P]arental rights are deemed the very foundation of social order.
Unless parents are left free to raise their own children, the entire
social fabric will be destroyed: 'man' will be 'denaturalized,' the 'in-
stincts of humanity stifled, and one of the strongest incentives163
to the
propagation and continuance of the human race destroyed.
Generally, the Supreme Court has permitted the state to supplant
parental authority only "where an important and clearly relevant gov-
ernmental or societal interest was at stake."' 64 A long line of cases
have upheld parents' interest in directing the lives of their children.
Beginning with Pierce v. Society of Sisters,165 the Court struck down
an Oregon statute that precluded parents from sending their children
to private schools rather than public schools. The Court stated, "The
child is not the mere creature of the state; those who nurture him and
direct his destiny have the 66
right, coupled with the high duty, to recog-
nize and prepare him.'
In Parhamv. J.R.,1 67 the Supreme Court declared that procedural
due process was not violated when a parent commits a child to a
mental institution without a formal hearing. In determining the fate
of J.R., the Court unambiguously deferred to the decision of the par-
ents. It concluded that the "natural bonds of affection lead parents to
act in the best interests of their children."' 168
In Santosky v. Kramer, the Supreme Court held that parents' in-
terest in directing their family life is a fundamental liberty protected
160. Francis B. McCarthy, The Confused ConstitutionalStatus and Meaningof Parental

Rights, 22 GA. L. REv. 975 (1988).
161. Id. at 977.
162. Katharine Bartlett, Rethinking Parenthoodas an Exclusive Status: The Need for
Legal Alternatives When the Premise of the Nuclear Family Has Failed,70 VA. L. Rtv. 879,
888 (1984) (quoting Gregg, Placing Out Children, PROCEEDINGS OF =HE19m NCCC at
415 (1892)).
163. Id.
165. 268 U.S. 510 (1925).
166. Id.at 535.
167. 442 U.S. 584 (1979).
168. Id. at 602.
by the Fourteenth Amendment. 169 The court stated that parents have
a "fundamental liberty interest" in "the care, custody, and manage-
ment of their child."'170 In Stanley v. Kramer, the Court stated that
"[t]he private interest here, that of a man in the children he has sired
and raised, undeniably warrants deference and, absent a powerful
countervailing interest, protection."17 ' Thus, courts are generally un-
willing to intervene in cases of a parent's control of a child's life unless
it can identify a "powerful, countervailing interest."' 72
The underlying presumption in parents' rights doctrine is that
parents will act in the best interests of their children:
The law's concept of the family rests on a presumption that parents
possess what a child lacks in maturity, experience, and capacity for
judgment required for making life's difficult decisions. More impor-
tant, historically it has recognized that natural bonds of 73
affection
lead parents to act in the best interests of their children.
Professor Judith McMullen suggests that when doubt or uncer-
tainty exists as to the harm produced by parental actions, courts will
defer to parental decisionmaking. 174 In general, parental rights have
been a barrier to the disruption of child abuse. Thus, in the current
climate of disbelief surrounding the validity of emotional abuse com-
bined with the hostility toward an adolescent's right not to be hetero-
sexual, it seems unlikely that courts will disregard parental judgment
when a child's sexual orientation is at issue.
Despite deference to parental rights, the potential exists under
current legal standards for curtailing the right of parents to
homophobically harass their children. In cases involving allegations
of child support, the interests of parents in directing their children's
upbringing must be balanced with the state's and the child's interests.
The twentieth-century legal doctrine of parens patriaeholds that the
state has an interest in protecting children's welfare and therefore
may intervene in the family sphere in order to protect children. 175
Under parenspatriae,"[t]he state acts as the primary protector of chil-
dren from abuse or neglect.' 76 The doctrine has generally been in-
yoked by courts to uphold certain procedural devices furthering the
state's ability to intervene in cases of child abuse. 177 Parenspatriae
169. 455 U.S. 745, 753 (1982).
170. IL at 754 n.7.
171. 405 U.S. 645, 651 (1972).
172. IL
173. 442 U.S. at 602.
174. Id. at 584.
175. Jaqueline Y. Parker, Dissolving Family Relations: Terminationof Parent-ChildRe-
lations-An Overview, 11 U. DAYTON L. REV. 555, 566 (1986).
176. Areen, supra note 30, at 893.
177. For example, In re Linda "C," 451 N.Y.S.2d 268 (N.Y. 1982), the court invoked
parens patriae to uphold the use of a preponderance of the evidence standard in child
encompasses the 178state's interest to intervene in cases of emotional

abuse of children.
V. Policy Suggestions for Recognition of Homophobic

Harassment as Emotional Abuse
Parenspatriae should be invoked to protect the health and safety
of queer adolescents through statutory provisions that prohibit the re-
jection of children's sexual orientation. The state does not have an
interest in protecting parents' rights to ensure that their children are
heterosexual, especially when it is clear that a significant proportion of
the children in our society will not grow to be heterosexual adults. In
contrast, the state has a great interest in ensuring the emotional, and
thereby physical, health and safety of children. Influenced by
homophobic bias and prejudice, judges are left without specific statu-
tory guidance in abuse cases and may rely on their discretionary pow-
ers in order to ignore the abuse of queer young youth. Moreover,
attorneys and advocates may not pursue such abuse allegations be-
cause of their slim chance of success in court. Therefore, in addition
to invoking the doctrine of parenspatriae,statutory remedies must be
created in order to bind the judges to recognize psychological mal-
treatment directed at a child's sexual identity as a form of abuse.
A primary step toward helping abused queer youth is the codifi-
cation of emotional abuse as a prohibited form of child abuse. 179
"Although laws against child abuse do not necessarily prevent it, the
same justification for punishing physically abusive caretakers applies
to generally and emotionally abusive caretakers."' 180 As discussed in
Part V, the main problem in this area with current child abuse statutes
is the discretion and lack of guidance given to courts in determining
the existence of emotional abuse. In order to overcome such deficien-
cies, a model statutory provision against emotional abuse would spe-
cifically include endangering the emotional health of children as a
form of abuse as well as provide courts with guidance on how to rec-
ognize abuse without relying upon a showing of demonstrable harm.
The creation of explicit provisions in child abuse statutes recog-
nizing homophobic harassment by parents as a form of psychological
abuse would further protect the interests of queer youth. In order to
guide judges in cases involving psychological maltreatment such a stat-
ute would provide concrete examples of such abuse, including "the
abuse determinations in custody cases. Id. at 271. In Lehman v. Stephens, 148 Ill. App. 3d
538 (Ill. App. Ct. 1992), the court relied upon the doctrine to uphold the Illinois child
abuse reporting statute. Id. at 547.
178. Id. at 911.
180. d. at 1066.
hostile rejection of a child's sexual identity." Such explicit statutory

language qualifying the psychological rejection of a youth's sexual ori-
entation as emotional abuse would curtail judicial discretion in cases
involving abuse and limit the influence of judicial notions about ho-
mosexuality, mutability, and parental rights. In so doing, this type of
statute would send a powerful legislative message that adolescents
have the right to be free from emotional maltreatment because of
their sexuality. Symbolically, this message would be that youth have
the right to be openly queer if they choose. Finally, such a statute
could be applied to help queer youth escape abusive family relation-
ships in the contexts of custody, guardianship, adoption, and emanci-
pation cases.
A. Child Custody
The recognition of the psychological abuse of queer adolescents
would have a large impact on custody and child support disputes. The
majority test for child custody is the "best interests of the child" test.
This consists of a balancing of several factors to determine what out-
come would be in a child's best interests. 181 Included in most of these
statutes is a provision respecting the emotional interests of the
child. 18 If courts consider parental rejection of children's sexual ori-
entation as psychological abuse, it is more likely that these youths will
be placed in the custody of more supportive parents. In child support
proceedings, abused queer youth will not be financially penalized for
refusing to submit to homophobic harassment, as in Catherine W. v.
Robert F.
B. Guardianship & Adoption

In cases where there is not a divorce, an abused young person
may want to abandon his/her family of origin altogether by seeking
either a guardianship or an adoption. One of the most favorable op-
tions for queer youth seeking to escape their biological parents be-
cause of emotional abuse is through guardianships. 83 Ideally, a queer
teen that has endured homophobic abuse from his/her biological fam-
ily may want to be placed with gay or lesbian guardians because pre-
sumably they would be in the best situation to support the youth in
his/her coping with rejection.
181. Francis J. Catania, Jr., Accounting to Ourselvesfor Ourselves: An Analysis of Ad-
judicationin the Resolution of Child Custody Disputes,71 NEB. L. REv. 1228, 1244 (1992);
Francis Olsen, The Politics ofFamily Law, in FAMILY MATrERs 336, 341 (Martha Minnow
ed., 1993).
182. Se4 e.g., ARiz. REv. STAT. ANN. § 25-403 (1992); IND.CODE ANN.§ 31-1-11.5-21
(West 1995); MIcH.COMP. LAWS ANN.§ 722.23 (West 1995).
183. Abinati, supra note 61, at 151-53.
Another choice for queer youths is adoption. "[A]doption,

although a legal option, would not generally be utilized because, un-
like the guardianship situation, it is necessary to terminate the paren-
tal rights of the parents in the family of origin."' 84 The standard of
proof in adoption cases is high, requiring the party seeking the adop-
tion to show substantial abuse, neglect or abandonment. 85 Conse-
quently, adoption will be a less viable option for most abused teens.
In cases of guardianship and adoption, courts will consider emo-
tional abuse in deciding whether to grant guardianship. 86 If courts
are instructed to weight heavily the detrimental impact of parents' re-
jection of their children's sexual orientation, then it will be easier for
abused youths to find homes with families that will not reject their
sexuality.
Although statutory recognition will help children escape abusive
homes, the shortage of foster families and the difficulty of adoption
procedures may make this end impossible for many youths.' s7 In two
states, there are explicit statutory prohibitions against allowing gay
and lesbian couples to be foster parents. 88 In more states, lesbian and
gay parents are seen by courts as unfit for parenting. 8 9 In addition,
by the time a youth has gotten to the point of requesting complete
removal from his/her biological family, he/she is often inundated with
emotional problems that will be difficult for even the best of foster
families to deal with.' 90
C. Emancipation
Another option available to abused adolescents is emancipation
from their natural parents. 19 ' Recognizing homophobic harassment as
a form of abuse will facilitate the process of minors seeking emancipa-
tion because it will provide persuasive grounds for terminating paren-
tal rights, a stage in the process of emancipation. Nearly all states
have statutory or common law provisions for termination of parental
rights upon a showing that the parent has "failed to provide for the
child's well-being according to law.' 92 Although this usually involves
184. Id. at 153.

185. Id.
186. Id. at 152.
187. Id. at 150-51.
188. FLA. STAT. ANN. § 63.042(1) (West 1991); N.H. Rnv. STAT. ANN. § 170-B:4
(1991).
189. WILLIAM B. RUBENSTEIN, LESBIANS, GAY MEN AND THE LAW 510 (1993).
190. Id.
191. Abinati, supra note 61, at 154.
192. Dana F. Castle, Early EmancipationStatutes: Should They ProtectParents as Well
as Children?,20 FAM. L.Q. 343, 344 n.5 (1986) (citing Sanford N. Katz et al., Child Neglect
Laws in America, 9 FAM. L.Q. 1 (1975)).
a high burden of proof, showing that a parent is no longer deserving of

parental fights will indirectly help in emancipation. Such a showing
could more easily be made by a queer youth if there exists a statutory
basis for the assertion that a parent is unfit because he/she verbally
abused a child because of the child's sexual orientation.
However, emancipation is a problematic alternative for most ado-
lescents. Usually emancipation requires a youth to have an independ-
ent source of income, 193 which is rare. In addition, emancipation as a
remedy generally fails to address the young person's need for parental
emotional support. More importantly, emancipation's underlying
message regarding blame and responsibility is wrong. One commen-
tator has explained, "Why should lesbian and gay youth be deprived
of a supportive adult environment because their declared sexual ori-
entation isolates them from their family of origin? Emancipation
places the burden of meeting survival needs on the youth seeking to
be emancipated." 194 Nevertheless, despite the problems with emanci-
pation as an alternative for queer youth, for the few youths that are
fortunate enough to be financially independent, it may be an appro-
priate remedy.
Conclusion
Emotional abuse by parents directed at a child's sexual orienta-
tion is one of the most traumatic aspects of coming out as a young
person. Parental abuse is particularly painful because queer youth are
in special need of familial support in helping them learn to cope with
widespread societal rejection. For the same reasons that lead parents
to mistreat these children, the legal system refuses to intervene on
their behalf. Statutory recognition of psychological abuse generally,
as well as specific provisions regarding the rejection of a child's sexual
orientation, are legal measures that could help queer teens end up in
homes that are supportive.
The bleak reality facing queer youth is manifested by their behav-
ior. In order to escape the pain that results from familial rejection of
their sexual identities, these gay youth often resort to drugs, alcohol,
street life, or suicide. They could not send a clearer message to the
legal system that they need assistance. Intervening in domestic situa-
tions in which parents hostilely reject their children's sexual identity is
one way to shield youths from harassment and establish that rejecting
these young people is not condoned as a matter of social policy.
Queer youth are a population severely in need of help from all
segments of society. As members of the gay and lesbian legal commu-
193. Id. at 356-63.

194. Abinati, supra note 61, at 154.
196 HASTINGS LAW JOURNAL [Vol. 48
nity, it is our responsibility to create legal structures that facilitate the

process of coming out in today's hostile climate. In addition to easing
the burden on queer youth, recognition of parental emotional abuse is
a powerful way to chip away at socially condoned homophobia.

A Childs Right To Be Gay - Addressing The Emotional Maltreatment

Uploaded by

Copyright:

Available Formats

A Childs Right To Be Gay - Addressing The Emotional Maltreatment

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

A Childs Right To Be Gay - Addressing The Emotional Maltreatment

Uploaded by

Copyright:

Available Formats

Hastings Law Journal

Volume 48 | Issue 1 Article 6

A Child's Right to Be Gay: Addressing the

Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal

I was given the conditions of my return: 1. Give up my lifestyle. 2.

parents of lesbians and gays are either incompetent or unwilling to

10. Brad Sears, Recent Developments, Winning Arguments/Losing Themselves: The

with the discovery of a teen's sexual orientation,' 8 the rate appears to

I. Causes of Parental Rejection of Queer Youth

Even though psychological abuse leaves no physical marks on a

economic factors.3 0 The physical, intellectual and social development

One of the primary causes of parental rejection of queer children

not their child would grow up to be gay or lesbian. '43 Internalizing

H. The Effects of Parental Abuse of Queer Youth

abuse, prostitution, and HIV status. It links domestic verbal abuse of

Life on the streets often leads directly to other types of harmful

72. Id. at 267.

HI. Judicial Treatment of the Emotional Abuse of

IV. Reasons Behind the Law's Denial of the Abuse of

A. General Judicial Treatment of Emotional Abuse

schemes that have been implemented to address emotional maltreat-

The psychological abuse of children went unrecognized by the

100. BARBARA NELSON, MAKINr AN IssuE OF CHILD ABUSE 11-13 (1984).

abuse."' The first type of emotional abuse statute addresses psycho-

treatment is likely to have occurred."'119 Because it specifically

every aspect of the law that encounters the issue of homosexuality

C. Belief that a Child's Sexual Orientation is Mutable

Tomboys: Deconstructing the Conflation of 'Sex,' 'Gender,' and 'Sexual Orientation' in

For example, if a parent were to make racist comments to a child

In State Department of Health and Rehabilitative Services v.

(2) Attitude of the Medical Community

A second method of examining the law's view that a child's sex-

139. 627 So. 2d 1210, 1220 (Fla. 1993).

Prior to 1973, the APA viewed homosexuality as a pathological

by courts to help understand what causes and what constitutes emo-

152. Areen, supra note 30, at 928.

Francis McCarthy has explored the Supreme Court's attempt to

160. Francis B. McCarthy, The Confused ConstitutionalStatus and Meaningof Parental

encompasses the 178state's interest to intervene in cases of emotional

V. Policy Suggestions for Recognition of Homophobic

hostile rejection of a child's sexual identity." Such explicit statutory

B. Guardianship & Adoption

Another choice for queer youths is adoption. "[A]doption,

184. Id. at 153.

a high burden of proof, showing that a parent is no longer deserving of

193. Id. at 356-63.

nity, it is our responsibility to create legal structures that facilitate the

You might also like