Author Archives: CathyHe

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

The case examined has gone through family court three times as part of an ongoing custody battle. The first decision, made by Judge Derek Redman, after the father petitioned for custody shortly after the mother – pseudonymously referred to as ‘Susan Smith’ – allowed her son to begin dressing in female clothes, was to allow the mother to maintain custody of her child. However, he dictated that she was only permitted to allow him to wear feminine clothing in private, and not public. This decision raises important questions of where the boundaries of the power of the law and judges should be drawn; specifically, this case contends with where the boundaries do lie vs. should lie for the law when dealing with personal gender identity. Further, it’s important to note that this decision was made within the context of family law rather than civil rights law, and within this context, was it really within Judge Redmond’s purview to make a decision regarding when and where the child should have been able to exercise their  gender identity?

Caught allowing her child to wear female clothing in public, this custody case was sent to a second judge, Judge Fred Fisher, who awarded custody to the father as well as limited Ms. Smith’s contact with her son. The implication of this decision, underscored by the (questionable) legal legitimacy of non-conforming gender expression as a grounds to contest custody, is the discourse of transcendentalism of the law in its ability to govern all aspects of life. The law is used as a vehicle of the erasure of difference and reinforcement of a conformative standard, that one must conform to and perform the gender identity assigned at birth, and that the mother’s permission for such non-conformity to occur should be penalized.

Judge Gordon Krinke intervened, returning custody to the mother under the caveat that both masculine and feminine clothing must be provided  to the child at every time of dress. This decision could encourage critical engagement with the idea of gender fluidity in opposition to a binary perception of gender and the ways in which the legal framework reinforces a gendered and sexual binary. Julie Greenberg is paraphrased in the Lugones articles as “[telling] us that legal institutions have the power to assign individuals to a particular racial or sexual category” (194). Maintenance of a gender binary is essential, both with the larger as well as legal discourse, to the perpetuation of oppressive gendered colonial discourses, such as “the inferiorization of females” (Lugones, 197). Even the representation of this case in media reinforces a gender binary as the only method of representation, as the reporter refers to the child as “she” and uses pronouns such as “hers,” signifies the hierchicalization and mainstream discourse of identifying with a single gender (i.e., male/female), effectively contributing to the erasure of those who are intersex or gender fluid.

The decisions made by Judge Redmond and Judge Fisher contradicted a recent Alberta Human Rights Act (AHRA) amendment which “added gender identity and gender expression as prohibited grounds of discrimination,” claims Alberta Justice Minister Kathleen Ganley (qtd. in Underwood). Contrary to Judge Redmond’s ruling, which explicitly contributes to the invisiblization of gender minorities, this amendment and discourse surrounding it brings gender minority issues of representation and human rights to the fore. Furthermore, contributing to discourses of erasure, the primary focus during these rulings was the mental state of the mother for allowing her child to wear non-gender-conforming clothing rather than the gender dysphoria / fluidity experienced by the child. In this way, the legal system effectively problematizes and medicalizes condolence of gender fluidity and non-conforming gender expression.

Additionally, the incongruity of these decisions demonstrates its unequal application based on who is making the decision. The “benchmark male” is a concept developed in an article by Regina Greycar titled “Bias.” The views of benchmark males – white, heterosexual, cis-gendered, and middle-class – are inherently built within the framework of the law as well as overwhelmingly overrepresented. Those who do not conform this paradigm must also conform to their view when deciding their rulings, or else they would be challenged for bias (vs. constitutionality). As a result, the benchmark (and inherently biased) perspective assessing these cases are cis-gendered and gender conforming. This discourses uses law as a method of “othering” that reinforces the privileges of the dominant group. In this particular case, this privilege is manifested in the way in which the law does not seek to regulate and even criminalize the way those who conform to the gender identity with which they were born. This rhetoric of bias challenges against those who represent intersectionalities on the bench highlights a paradox of the law in that it seeks to account for difference as well as include (theoretically) yet at the practical level, it homogenize its outcomes for all parties, privileging the already dominant party.

References

Graycar, Regina. (1998) The Gender of Judgments: Some Reflections on “Bias” University of British Columbia Law Review, 32: 1-21

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