Cardozo Law Review
Abstract
This Article argues that the state has no legitimate interest in promoting heterosexuality or gender conformity during childhood. Although opponents of LGBT rights have longed cited this goal as one of the primary justifications for discrimination against LGBT people, it has no constitutional foundation upon which to stand.
Building upon a schema familiar to legal scholarship on LGBT rights, this Article challenges the state's interest in promoting heterosexuality in childhood by articulating a tripartite defense of children's homosexual speech, status, and conduct. It argues that these three aspects of children's homosexuality are connected to and protected by the Constitution's free speech, equal protection, and due process guarantees.
When the state attempts to justify policy by claiming that promoting heterosexuality in childhood is a legitimate state interest, it violates at least one if not all of these guarantees. When the policy targets children's homosexual speech, it is a form of viewpoint discrimination that violates the free speech protections of the First and Fourteenth Amendments. When the policy targets children's homosexual status, it is a form of animus against lesbian, gay, and bisexual people that violates the equal protection guarantees of the Fifth and Fourteenth Amendments. When the policy targets children's homosexual relationships, it is a form of moral disapproval of homosexual conduct that violates the due process protections of the Fifth and Fourteenth Amendments. Taken together, these constitutional guarantees require the state to maintain a neutral stance with respect to the sexual orientation of children's speech, status, and conduct. In doing so, they guarantee every child's equal liberty to be straight or queer.
After developing a similar critique of the state's interest in promoting gender conformity during childhood, this Article concludes by exploring the theoretical advantages, limitations, and implications of this constitutional framework. Drawing on one of queer theory's foundational texts, it argues that the paradigm of No Promo Hetero is more universal than traditional identity claims, yet more liberal than traditional diversity claims. By proceeding from premises that are both liberal and queer, this Article makes a case for the liberation of all children's queerness - as viewpoint, identity, and behavior - within existing paradigms of constitutional law.
Disciplines
Fourteenth Amendment | Law | Law and Gender | Sexuality and the Law
Recommended Citation
Clifford J. Rosky,
No Promo Hetero: Children's Right to Be Queer,
35
Cardozo L. Rev.
425
(2013).
Available at:
https://larc.cardozo.yu.edu/clr/vol35/iss2/2