Child Custody: Language, Law, and Gender Identity

Acknowledgement

We would like to acknowledge that this project has been conducted on the ancestral, traditional, unceded, and occupied Indigenous territories of the Coast Salish Peoples, and in particular, the xʷməθkʷəy̓əm (Musqueam), Skwxwú7mesh (Squamish) and sel̓íl̓witulh (Tsleil-waututh) Nations.

As students studying, living, and learning on the Indigenous territories, we strive to establish the ways in which colonization has impacted the organization of sex and gender. Marîa Lugones states that, “intersexed individuals were recognized in many tribal societies prior to colonization without assimilation to the sexual binary”, which can be understood through all bodies (195). By recognizing patriarchal influences of a Eurocentered global heteronormative and cisnormative capitalist society, we work to dismantle this power over difference.

Blog Objective

Influenced by the following legal case, we were inspired by looking at how heteronormativity, cisnormativity, family, and legality intersect with gender expression and gender identity rights. Additionally, we have examined how language and criticisms actively reinforce gender binaries, within law and Western normalizations as represented in Canada. We work to unpack the damaging affect that the law had on the policing of the child’s gender expression. We will examine how this case contributes to various discourses that reiterate hegemonic cisnormativity and heteronormativity, through four categories: Silence, Language, Law, and Representation.

Timeline of the Legal Case

As originally reported by CBC News, – Medicine Hat, Alberta (Underwood)

♦ BEFORE: Custody Battle

• Four year old child was born biologically male, was “severely unhappy” and expresses a female identity
• Susan Smith (pseudonym of mother) holds primary custody, referring to her child as “they” and supports their child’s choice of expression
• Father disagrees with Smith’s support of their child, sharing concern of her mental health

♦ December, 2015 – First Interim Order

• Judge Derek Redman
• The child must wear masculine clothes in public, with the choice of wearing feminine clothes in private

Smith broke the clothing restriction by allowing the child to wear female clothes in public, leading to:

♦ February, 2016 – Second Interim Order

• Judge Fred Fisher
• Smith lost primary custody, with limited access to the child
• Father gained primary custody, requesting a consideration of Smith’s mental health and relationship to allowing the child dress in female clothes
• The child must wear masculine clothes in public, with the choice of wearing feminine clothes in private

♦ September, 2016 – Third Interim Order 

• Judge Gordon Krinke, consulted parenting expert prior to order
• Smith and father given joint custody
• Revision of clothing restriction: the parent must provide both masculine and feminine clothing options at every point of dress, allowing the child to choose.

♦ CURRENT STANDING

• Smith continues to fight for the right of her child to express their gender how they choose with no limitations, encouraging all legal representative to be better trained on gender identity. She said, “If they were properly educated and aware of the severe consequences and the turmoil this has had on my child, they could not ethically say it’s in the best interests of the child.”(Kassam)
• Over the nine-month span of court cases, the orders greatly impacted the child. Smith said, “When my child was removed and placed with Dad, they internalised it and took it like they did something wrong. They were being bad because the judge doesn’t like them to be a girl.”
• Gender expression is not to be dictated by the court system and the law does not require diagnosis of gender dysphoria or medical condition
• October 31, 2016: legal experts reevaluated the case, claiming this is not a human rights issue.
• Anyone can file a complaint of Judge Derek Redman or Judge Fred Fisher through the Office of the Chief Judge (Edmonton, Alberta)

 

Summary

On October 24, 2016, CBC News reported the experience of a Medicine Hat, Alberta woman in court proceedings to retain custody for her 4-year-old child who was biologically born male but expresses a female identity (Underwood, 2016). Judge Derek Redman’s first ruling, enforced the child to wear gendered clothing associated with their biological sex when outside of the home. After allowing the child to dress in female gendered (feminine) clothing in public, the mother lost joint custody. During the second ruling, Judge Fred Fisher kept the clothing order of the child, giving primary custody to the father. When the mother challenged Fisher’s order, the result lead to a third trial where Judge Gordon Krinke consulted a parenting expert. Returning joint custody, Krinke ordered that both caregivers must give the child the option of masculine and feminine clothing at every time of dress.

References

Kassam, Ashifa. “Canada Order barring Child from Wearing Girls’ Clothes Prompts Call for Change.” The Guardian. November 19, 2016. Accessed December 03, 2016. https://www.theguardian.com/world/2016/nov/19/canada-gender-identity-training-lawsuit-clothing-public-alberta.

Lugones, María. “Heterosexualism and the Colonial/Modern Gender System.” Hypatia 22, no. 1 (Winter 2007): 186-219.

Underwood, Colleen. “Medicine Hat Judges Ordered 4-year-old Not to Wear Girls’ Clothes in Public.” CBC News. October 24, 2016. Accessed December 03, 2016. http://www.cbc.ca/news/canada/calgary/medicine-hat-judges-ordered-4-year-old-not-to-wear-girls-clothes-in-public-1.3816829.