By contesting his child’s choice of apparel and the legitimacy of this contestation as a legal grounds for custody appeal, the father and the court effectively “others” the child for their non-conforming gender expression and gender identification. This process of othering is part of a larger neo-colonial discourse of the erasure of difference and dominance vs. submission perpetuated by the law.
One of the many paradoxes of the law lies within its aim to account and adjust for difference while its very identification and emphasis of such difference makes it all the more stark. While one of the law’s very foundations may be individualism, its overreliance on an agreed-upon set of universal norms, often dictated by the majority and constructed through a colonial lens only aiming to represent the best interests of colonizers, seeks to homogenize and erase difference. In the instance of this court case, all three decisions made by judges sought to bring the child’s gender expression to a socially-constructed, cis-gendered, and colonial norm. For example, the first decision made by Judge Derek Redmond stated that the child could only wear female clothing in private, while the second judge took custody away from the mother entirely. These decisions reproduces discourses of dominance and submission in that one who is cis-gendered, exercising his legal authority, is able to assert control over the gender expression over someone who is queer. Furthermore, the male judge assumes the patriarchal ‘head of household’ role—again, through his legal authority—over a mother who is separated from the father of her child as well as her child. Through these decisions, the law (1) legitimates the father’s claim that non-conforming gender expression is “wrong” (at least in public) and is detrimental to the child, and as a result of this, imposes a cis-sexist binary embroiled in power that gender conformity is legally, and therefore morally, right and gender non-conformity and the allowance of such behaviour is legally/morally wrong.
Furthermore, by legitimating this claim (i.e., the father’s challenge of the mother as an incompetent guardian for allowing their child to wear gender non-conformative clothing) as a legal grounds for contestation, the way the law seeks to regulate (and potentially criminalize) both the parenting decisions of the mother, as challenged by the father, as well as the gender expression of a gender non-conforming child reproduces discourses of colonial domination. These legal decisions are presumably made by those who belong the cis-gendered majority, under the intentions of ruling in the best interests of the child. This justification echoes a colonial rhetoric of “civilizing the savages” out of their best interest, claims which were also legitimated by the law. In reality, colonizers sought to exploit Indigenous communities and lands for their own capitalist gain. While the contemporary context is more subversive, the suppression of gender non-conformity by judiciary authorities who are cis-gendered works to maintain oppressive gender roles, a vehicle essential to the function of colonialism that requires socially-constructed cis-ascribed genders to function.
The repercussions of such processes of domination result in a culture of erasure and conformity, reinforced by the law. Through this case, the law both reinforces difference as well as seeks to homogenize it into the dominant discourse. Executed through its actors (i.e., judiciary authorities), the law in this particular case perpetuates discourses of cis-sexist domination imposed through the power of cis-gendered actors dictating the behaviour of a gender non-conforming child.
References
Hua, Julietta. (2011). “I. Universalism and the conceptual limits to human rights”. In Trafficking women’s human rights, pp. 1-26.
Lugones, Maria. (2007). Heterosexualism and the colonial/modern gender system. Hypatia, 22(1): 186-209
Underwood, Colleen. (2016). “Medicine Hat judges 4-year-old not to wear girls’ clothes in public,” CBC News, October 24. http://www.cbc.ca/news/canada/calgary/medicine-hat-judges-ordered-4-year-old-not-to-wear-girls-clothes-in-public-1.3816829