Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [45]
Historically, homosexuality automatically disqualified an individual from getting custody or visitation rights in many states. This was a conversion regime, in which one technically had to be straight to parent. Over time, most states have moved toward rules granting gays custody and visitation rights, so long as they cover. In 1994, the Indiana Court of Appeals awarded custody to a lesbian mother after applying a common standard:
Had the evidence revealed that Mother flagrantly engaged in untoward sexual behavior in the boys’ presence, the trial court may have been justified in finding her to be unfit and, accordingly, awarded custody to Stepmother. However, without evidence of behavior having an adverse effect upon the children, we find the trial court had no basis upon which to condition Mother’s custody of her sons.
As the court’s references to the “flagrant” or the “untoward” suggest, courts have not hesitated to punish parents they view to be flaunters. In affirming the denial of custody to a lesbian mother in 1975, a California appellate court observed: “Appellant does not merely say she is homosexual. She also lives with the woman with whom she has engaged in homosexual conduct, and she intends to bring up her daughters in that environment.” In reaching a similar result in 1988, the Connecticut Supreme Court noted that the trial court had been concerned not “with her sexual orientation per se but with its effect upon the children, who had observed in the home inappropriate displays of physical affection between their mother and M while M had resided with them.”
I believe, of course, that parents should not expose their children to most forms of sexual behavior. So I tried to find out whether courts that objected to “inappropriate sexual behavior” were referring to sexual acts that would have been problematic even if they had occurred between individuals of different sexes, or whether they were referring to hugging, kissing, or other acts that would be expected of heterosexual couples. Although courts are sometimes too vague for anyone to tell what sort of behavior they had in mind, it is generally clear that what counts as sexually appropriate behavior for straights is out of bounds for gays. While courts require gays simply to cover to the courts, they often require gays to pass to their children. A Missouri court of appeals granted custody in 1998 to a lesbian mother after finding that “the children were unaware of Mother’s sexual preference, and Mother never engaged in any sexual or affectionate behavior in the presence of the children.” Applying the same standard to deny custody to a lesbian mother in 1990, a Louisiana appellate court cited “open, indiscreet displays of affection beyond mere friendship … where the child is of an age where gender identity is being formed.” If acceptable sexuality for same-sex couples is limited to the appearance of friendship, then the expectations for parents are clearly not orientation-neutral.
Notice as well why such covering is required—parental flaunting is dangerous because it could convert a child whose “gender identity is being formed.” All three demands for assimilation are simultaneously in play—because children must not be converted, parents must pass to their children and cover to the courts. The shifts from conversion to passing to covering I have described are never categorical ones in which one demand supplants another. They are shifts in emphasis.
Courts can demand covering even more baldly through visitation restrictions. In 1974, a New Jersey court noted various ways in which a divorced gay father flaunted his homosexuality, observing that he was the director of the National Gay Task Force and took the children