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What do lesbians do?: motherhood ideology, lesbian mothers and family law Millbank, Jenni 1994

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WHAT DO LESBIANS DO?MOTHERHOOD IDEOLOGY, LESBIAN MOTHERS AND FAMILY LAWbyJENNI MILLBANXB.A, The University of Sydney, 1989L.L.B (Hons), The University of Sydney, 1991A THESIS SUBMITTED IN PARTIAL FULFILMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTERS IN LAWinTHE FACULTY OF GRADUATE STUDIESDepartment of LawWe accept this thesis as conforming to the required standardTHE UNIVERSITY OF BRITISH COLUMBIAAugust 1994© Jenni Milibank, 1994In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(SignDepartment of______________________The University of British ColumbiaVancouver, CanadaDate /‘‘ M’ /77DE-6 (2)88)AbstractThis thesis explores the application of ideologies of motherhood in the context of family law.The approach taken is to work from the ‘margins’ of motherhood, using the experience oflesbian mothers as a focal point, in order to explore the ‘centre’ of dominant discourse andideologies of motherhood.Case law from Australia, Canada, the UK and the USA over the past 20 years is examined.These cases are used to explore the ways in which lesbian mothers are characterised as ‘badmothers’, in order to ask what these configurations illuminate about the requirements of ‘good’mothering. The cases used were primarily child custody decisions involving divorcing parents,but are supplemented with some welfare and adoption cases. The picture, or story, of lesbianmothers which emerges from the judgments is one of fear and horror - a mixture of claimingthe foreignness of lesbians at the same time that ‘common sense’ assumptions about lesbianmothers abound. This ‘story’ is contextualised in the thesis with a discussion of thecharacterisation of lesbians in popular culture in the past 70 years, along with formulaic‘types’ and narratives, and their presence in and parallels with the legal judgments are thenexplored.In part, this thesis asserts that rights based discourse has been unsuccessful in engaging thejudiciary to any positive end for lesbian mothers in family law. A framework of motherarchetypes is used in order to delve beneath the surface level of the judgments to deeperlinking themes. These include such themes as requirements of maternal altruism and lack ofagency, fear of maternal animality and fear of male dispensability in child rearing. All of thesethemes find links in feminist work on motherhood ideology in other contexts, and thesecommonalities are discussed in the conclusion.11TABLE OF CONTENTSAbstract UTable of Contents iiiAcknowledgments ViIntroduction 1Aims 1Methodology 3The Countries 3The Cases 6Theory 10Structure 18Chapter One Existing theoretical accounts of lesbian motherhood 20Lesbianandgay commentaries 21Homosexual parents 22The right answer: liberalism and positivism 25Gender as a legal trick, men as downtrodden& Fathers’ rights 30Gender as a piggy-back to protection 31Disadvantaged Dads 32Feminist theoretical accounts 34Exclusion 36Invisible lesbians 36Not quite invisible 38Inclusion: Ideologies of motherhood andthe bad mother bundle 41Lesbians and and and... 43Lesbians as a central, detailed example 46Chapter Two Not seeing is disbelieving 51Standard legal materials: Matters most queer 52Omission 53No comment 54Lesbianism as fault or flaw 55Case law: expressions of oddity 57Case law: we know who you are 61Lesbian relationships are unstable 62Lesbians are unstable 65Power imbalances, abuse and role playing 68Chapter Three Lesbianism versus Motherhood 71Just one factor among many 72And the other factors are? 74111Competing fathers: who cares? a Dad is a Dad is a Dad 76Competing (ideal) families: stable is stable is stable 78Dr Discourse: the irrelevance of science 83A nexus test? the irrelevance of evidence 86Equality and freedom: the offensiveness of rights 87Chapter Four The creation and representation of lesbians 91We know your type 98The masculine, male identified or ?butch?lesbian, and by extension butch/femme pairs 98Manhating dykes, rejected and fearful femmes 102Immature or childish lesbianism,lesbianism as a schoolgirl phase 105Mother/daughter mimicry 107Narcissism 109An unequal/sadistic/vampiric relation 111What and why is lesbian chic 114What do all of these types have in common? 125Anti-mother 126Un-mother 127Chapter Five Goddess, Virgin, Witch: archetype and theunconscious in judgements 129Goddess? 131Witch 135Masculine and Butch/femme 135Manhating 137Sadistic 138Mother/daughter 140Sexual, sick and troubled 142Sex and altruism 142Every little thing you do is sexual 146Pathological lesbian mothers 151Warrior 153Virgin 155Not real sex or not much of it 156Not really sexual 157Not really to blame 158Virgin deadlock 160Chapter Six The ideological necessity of lesbians in family law 164A note on narrative and abjection 165Perversity 165Love triangle 166Abjection 168ivThe natural family 171The originality and naturalness of‘the (heterosexual) family’ 173The superiority and goodness of‘the (heterosexual) family’ 176The family facing extinction 179Natural mothers 182Motherhood as asexuality 184Motherhood as a denial of agency 185Motherhood as private 186Motherhood as instinct 187Motherhood needs fatherhood? 189All is not as it seems 190The fear factor 191Conclusion 193Methods, meanings and theoretical insights 193The other mothers 195Selfishness 196The family 198Of nature, bestial 199The other 200Sexual 201Table of Cases 206Bibliography 209VAcknowledgmentsDuring 1994 sections of this thesis were presented as papers at the Canadian Law and SocietyConference in Calgary (June 12-14) and the Feminist Legal Theory Workshop in New York(March 25-26). I would like to thank Susan Boyd and Martha Fineman respectively for givingme the opportunity to present this work, and the Canadian Law and Society Association,Columbia University, the Graduate Travel Fund of UBC, and Margaret Millbank forgenerously providing funding.For encouragement, support, input and advice many thanks to Hilary Astor, Susan Boyd,Regina Graycar, Marlee Kline, Ronnit Lifschitz, Claire Young and Catherine Zimdahl.Thanks to the lesbian mothers whose lives became ?cases? because they didn’t give up.viIntroduction‘Lesbian is the word, the label, the condition that holds women in line. When a woman hearsthis word tossed her way, she knows. . . she has crossed that terrible boundary of her sex role.She recoils, she protests, she reshapes her actions to gain approval.’Radicalesbians, 1972‘[motherhood] establish[es] women ‘s credentials as women.’Ann Phoenix and Anne Woollett, 1991‘Lesbians are not women’Monique Wittig, 1991AimsThe central question I wish to ask in this thesis is what does lesbian motherhood, in the way itis constructed by law and culture, reveal about ideologies of motherhood in family law, aswell as about familial ideologies more generally. Lesbian perspectives on and experience ofmotherhood are routinely silenced and excluded from dominant discourse and moreover maybe marginalised even within critical discourses, such as feminist and lesbian and gay legaltheory.My argument is that the outsider position, or ‘other’ of lesbian mother may be capable ofilluminating far more than its own partially constructed account of Motherhood as ideology.The premise of this argument is that theory from a position which is marginal has the potentialto illuminate that which is dominant and thus creates and perpetuates marginality•’ Patricia1 M. Matsuda “Looking to the bottom: Critical legal studies and reparations” (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 323 arguing for the distinctiveness of perspectives from subordinated minorities.1Cain argues that a marginalised position allows a view of both marginality and dominance.Cain writes that a marginal position,‘enables me to see two versions of reality. The dominant reality, which Iexperience as ‘theirs’, includes the following: lesbians are not mothers, all womenare dominated by men, male relationships are valuable and female relationships arenot, lesbian is a dirty word, lesbians are sick, women who live alone desire men,women who live together desire men, no one knows a lesbian, lesbians don’t havefamilies. . . lesbians are sex. . . By contrast, the reality that I live, the reality that I call‘mine’, includes the following: some mothers are lesbian, many women arelesbian. . .lesbians are born in families, lesbians are family. . .lesbians are brave.’2In my argument, the marginalised experience of lesbian mothers in the family law system canspeak not only for itself, but for what placed it where it is - the process of marginalisation -whereas what is central very rarely recognises its own dominance.Further, the ways in which lesbian motherhood has been treated as virulently threatening butsimultaneously silenced by legal discourse offers the potential to theorise the non-articulatedthreat and punishment of other oppressed groups/categories of mother. In my analysis of thecase law concerning lesbian mothers in Chapters 2, 3 and 5, judicial attitudes were oftenrevealed more fully by judicial slips of the tongue than by reasoned argument.3 For instance,2P. Cain, “Feminist jurisprudence: grounding the theories” (1989) 4(2) Berkeley Women’s Law Journal 191 at415. This is not to suggest that I agree with Cain in her adoption of ‘standpoint theory’, whereby the identity ofthe theorist authorises the theory as an authentic expression of a group or class perspective (eg. ‘lesbian theory’ isa distinct brand of theory, done by lesbians). There are numerous problems, both with standpoint theory in itselfand in any claims to lesbianism as a distinctive and holistic identity class. See respectively, M. Kline ‘Women’sOppression and Racism: Critique of the “Feminist Standpoint” (1989) 5 Socialist Studies 39 and M. Eaton, “Atthe Intersection of Gender and Sexual Orientation: Towards Lesbian Jurisprudence” unpublished draft. Rather,this thesis advocates an exploration of dominant ideologies of motherhood from the focal point of the experienceof a marginalised class (lesbians). This theory works on the understanding that this is a neglected perspectivewhich has much to contribute, but is not necessarily the only or authoritative marginal perspective, and need notbe engaged in solely by lesbians. The necessity of such a ‘bottom up’ approach to theorising is explored morefully in the latter half of Chapter 1.3See eg Chapter 2 ‘We know who you are’ section.2the scrutiny of maternal sexuality often became apparent through subtext, the choice of certainwords, or the absence of others. Moreover, under close examination, sexuality was itself oftenemblematic of other issues - such as maternal selfishness and maternal animality. These issueswere not addressed directly in the judgments, they existed as a silent presence and arosethrough an examination of the symbolic. In the conclusion of this thesis I argue that similarthemes exist in work on mothers from other marginalised groups, such as Native Canadian andAfrican American mothers.MethodologyThe countriesI chose to study child custody cases involving a lesbian mother from Australia, Canada, theUnited Kingdom and the United States. This selection was in part due to a belief that, despitedifferences between the counties in legal and cultural terms, the similarities in such areasoutweighed the differences, and partly because the small number of cases available in anygiven country made them unsatisfactory as a site from which to generalise about ‘lesbianmothers and family law’.The legal basis upon which I lay my claim of similarity is that all of the countries in the studyevolved from an Anglo-European legal model4 and in the area of child custody in family lawall underwent the transition from paternal right to a limited maternal preference to the ‘child’s4For this reason cases from Quebec in Canada were excluded as, although the welfare principle is present, thesystem itself is based upon the French civil law tradition and so arguably not able to fall within the comfortableumbrella of many other generalisations about the legal and cultural bases of English speaking common lawcountries.3best interests’ or ‘welfare principle’ in current use.5 Each country in the study has enshrined instatute that the best interests, or welfare of the child is to be the ‘paramount’ or determiningconsideration in deciding custody of the child.6 The United States is the one country in whichjurisdiction over child custody is exclusively state based rather than federal, and this country istherefore arguably the most ‘different’ from others in the study. Some US states have factorsenshrined in their legislation which temper or alter the application of the welfare principle in amanner contrary to the discretionary application of the principle in other jurisdictions. Forinstance, some US states have a ‘primary caregiver’ presumption, meaning that in assessingthe child’s best interests more weight is to be given to the parent who was primarilyresponsible for day to day care of the child prior to separation (although arguably not enforcedas it was intended) . Some states, such as Missouri, alter the test to one of parental unfitnessrather than child’s best interest if the applicant for custody is a third party (such as agrandparent) •8 A reading of the available case law also reveals that courts in various US states5See C. Smart, and I. Brophy, (eds) Women in Law: Explorations in Law, Family and Sexuality (London:Routledge and Kegan Paul, 1985) and C. Smart and S. Sevenhuijsen, (eds) Child Custody and the Politics ofGender (London: Routledge, 1989) for an overview of these changes in all of the countries mentioned (andothers).6fri Australia The Family Law Act 1975 (Cth) contains this principle in s 64(1)(a). Prior to 1986 this federalstatute covered only children born into a marriage and the custody of ex-nuptial children was dealt with by statelegislation using the same principle (but somewhat different procedures). Since 1990 the Family Court deals withthe custody of all children, except those born out of marriage in one state (Western Australia). In Canada theDivorce Act, R. S.C 1985 (2nd Supp.), embodies this principle in C. 3. This federal statute covers only children ofparents who are pending or post divorce. The custody of the children of unmarried parents is dealt with byprovincial statutes which differ in wording but all utilise the same statutory criteria of the best interests of thechild (with the exception of the Northwest territories where the welfare of the child in conjunction with theconduct and wishes of the parents is the standard). In the UK the Guardianship ofMinors Act 1971 contains thewelfare principle in s 1, and is administered in conjunction with the Matrimonial Causes Act 1973 in a federalsystem that covers both nuptial and cx nuptial children. In the USA the custody of all children is decidedaccording to state legislation, all of which contain the child’s best interests principle, although some are temperedby other considerations which will be discussed in the text to follow.7See L. Sack, “Women and Children First: a Feminist Analysis of the Primary Caregiver Standard in ChildCustody Cases” (1992) 4 Yale Journal ofLaw and Feminism 291.8Although a good case could be made that this test is still applied as though it were a child’s best interests testwith a presumption against the lesbian mother: see USA: White v Thompson 569 So. 2d 1181 (Miss. 1990)(dissent).4have adopted common law presumptions, such as a custodial parent’s ‘illicit’ sexual conductbeing prima facie against the child’s best interests without any need of proof (Arkansas) andthat a ‘non homosexual’ custodial parent is always in the child’s best interests (Missouri).Initially such a system appears widely different to that used in Australia, Canada and the UK.In fact, I contend that the differences are not so great as they first appear. In the UK there hasalso been enshrined as a matter of law, a preference for a heterosexual parent over ahomosexual parent, although it was done in a Court of Appeal decision which obfuscated itsratio decedendi with a variety of other considerations.9Although Australia and Canada havesteadfastly refuted presumptions or findings in law regarding homosexual mothers or fathers asa class and continually reiterated a rhetoric of neutrality’0 they have also tended to fall backupon handy check lists and generalisations about homosexual parents’1 and inquiries haverevolved very much around the premise of a homosexual parent disproving harm. In short, theAmerican courts do more bluntly, and to a larger degree, what the courts in the other countriesstudied do likewise. Analysis of case law in Chapters 2, 3 and 5 will make clear thesesimilarities.My original sense that American case law would differ from the other countries in the studydue to a heavy reliance upon the US Constitution and the prevalence of ‘rights talk’ in theUSA was soon disproved. As I show in Chapter 3, constitutional arguments were universally9See UK: C v C (Custody: Appeal) [1991] 1 Fam LR 223 (C.A).10See Chapter 3 Just one factor among many’ section.11See Australia: L. and L (1983) FLC 91-353, an 8 point check list, (applied in the gay father case In themarriage of Doyle (1992) 15 Fam LR 274) and a discussion of presumptions of harm and inherent homophobia inthe first four of those points’: J. Millbanlc, “Lesbian Mothers, Gay Fathers: Sameness and difference” (1992) 2Australian Gay and Lesbian Law Journal 21. In Canada see a five point check list from a prior gay father caseapplied to the lesbian mother in Re Barkely and Barkely (1980) 108 D.L.R (3d) 613 (Ont.).5excluded from the ‘private’ arena of family law and rights claims were overwhelmingly metwith disfavour as doing violence to the welfare principle.’2In terms of cultural similarities, I argue in Chapter 4 that all of the countries in the study arepart of an increasingly homogenised ‘Western culture’, with a strong flow of cultural productsacross national borders. This is particularly so in the sense that American popular culture isconsumed in vast quantities by the other three countries in the study. Hence, although I utilisecultural products from all of the four counties to illustrate my arguments about representation,American popular culture is the focus.The casesThe pool of cases under discussion cover a 20 year period from 1975 to 1994. Both reportedand unreported cases were included (from published case reports and from electronic retrievalservices, such as Quicklaw and Lexis respectively)’3 and number 82 in total. Differences injurisdiction and in era did exist, but were not significant in my opinion. The range of decisionsand/or discourse favourable to lesbian mothers, for instance, was not ‘better’ as a whole in thel990s compared to the 1970s, as case analysis in Chapter 5 will make plain. A commonperception oftprogress’ over time leads to the suggestion that things must be better now forlesbian mothers.14 I have aimed to undermine this notion by always noting the date of casesmentioned; the most virulently anti-lesbian of which are often uncomfortably recent. Where12See Chapter 3 ‘Equality and freedom: the offensiveness of rights section.13Although electronic databases can be considered a form of ‘reporting in themselves in that they present theinformation to a public and selectively choose which cases to include in the database. All unreported Canadiancases were retrieved from Quicklaw, while unreported English, American and Australian decisions were retrievedfrom Lexis.14See eg Australian Law Reform Commission, Equality Before the Law Discussion Paper 54 (Sydney: ALRC,1993) at page 96.6differences in cases across jurisdictions appeared, these have been usually noted in the text.Example of such differences include: the fact that available US cases are all appellate decisions(whereas they are mixed between trial and appellate decisions everywhere else), the lesser useof court appointed assessors such as psychologists and social workers in the US system, and acontinuing acceptability in some US jurisdictions of placing restrictive conditions on custodyawards to lesbian mothers.The focus of the study was traditional child custody cases, meaning those in which a biologicalmother and father were in contest for the custody of a child.’5 Thus lesbian biological mother15These cases are as follows: Canada: Re Barkely and Barkely (1980) 108 D.L.R (3d) 613 (Out.). Bezaire vBezaire (1980) 20 R.F.L (2d) 358 (Ont.C.A), Bernhardt v Bernhardt (1979) 10 R.F.L (2d) 32 (Man. Q.B.), Casev Case (1974) 18 R.F.L 132 (Sask. Q.B.), Daller v Daller (1988) 18 R.F.L (3d) 53 (Ont. H.C), Elliott v Elliott[1987] B.C.J No 43 (Unreported judgment), K v K (1975) 23 R.F.L 58 (Alta.), N v N [1992] B.C.J No 1507(Unreported judgment), Robertson v Geisinger (1991) 36 R.F.L (3d) 261 (Sask. Q.B.), S v S [1992] B.C.J No1579 (Unreported judgment), Steers v Monk [1992] O.J No 2701 (Unreported judgment); Australia: Brook andBrook (1977) FLC 90-325, Cartwright and Cartwright (1977) FLC 90-302, G and G (1988) FLC 91-939,Kitchener and Kitchener (1978) FLC 90-436, L. and L (1983) FLC 91-353, N. and N. (1977) FLC 90-208,O’Reilly and O’Reilly (1977) FLC 90-300, P.C and P.R (1979) FLC 90-676, Schmidt and Schmidt (1979) FLC90-685, Spry and Spry (1977) FLC 90-271; UK: B v B (Custody, care and control) [1991] 1 FLR 402, C v C(Custody: Appeal) [1991] 1 Fam LR 223 (C.A), Re D and D (1983) C.A (Unreported judgment), Eveson vEveson (1980) C.A (Unreported judgment), Holder v Holder (1985) C.A (Unreported judgment), ReP(1983) 4FLR 401 (C.A), S v S (1978) 1 FLR 143 (C.A), Walker v Walker (1980) C.A No 79 D 519 (Unreportedjudgment); USA: Ashling v Ashling 599 P. 2d 475 (Or. App. 1979), Anonymous v Anonymous 503 N.Y.S 466(A.D 4 Dept. 1986), Barron v Barron 594 A. 2d 682 (Pa. Super. 1991), Bennett v O’Rourke (1985) (Unreported,Tenn. C.A), Black v Black 1988 Tenn. App. LEXIS 167, Blew v Verta 617 A. 2d 31 (Pa. Super. 1992),Chicoine v Chicoine 479 N.W 2d 891 (S.D 1992), Collins v Collins No. 87-238-lI, 1988 Tenn. App. LEXIS123, Constant A. v Paul C.A 496 A. 2d 1 (Pa. Super. 1985), D.H v J.H 418 N.E 2d 286 (md. App. 1981),Dailey v Dailey 635 S.W 2d 391 (Tenn. App. 1981), In re Marriage of Diehl 582 N.E 2d 281 (Ill. App. 2 Dist.1991), DiStefano v DiStefano 401 N.Y.S 2d 636 (N.Y. App. 1978), Doe v Doe 452 N.E 2d 293 (Mass. App.1983), G.A v D.A 745 S.W 2d 726 (Mo. App. 1987), Jacobson v Jacobson 314 N.W 2d 78 (N.D 1981), In ReJane B. an infant 380 N.Y.S 2d 848 (N.Y 1976), Kallas v Kallas 614 P. 2d 641 (Utah 1980), L v D 630 S.W 2d240 (Mo. App. 1982), Large v Large No. 93AP-735, 1993 Ohio App. LEXIS 5810, Lundm v Lundin 563 So. 2d1273 (La. App. 1 Cir. 1990), M.J.P v J.G.P 640 P. 2d 966 (Okl, 1982), M.P v S.P 404 A. 2d 1256 (N.J App.1979), Mohrman v Mohrman 565 N.E 2d 1283 (Ohio App. 1989), N.K.M v L.E.M 606 S.W 2d. 179 (Mo. App.1980), Peyton v Peyton 457 So. 2d 321 (La. App. 2 Cir. 1984), In re Marriage of Pleasant No. 1-91-3835, 1993Ill. App. LEXIS 1810, S v 5 608 S.W 2d 64 (Ky. App. 1980), S.E.G v R.A.G 735 S.W 2d 164 (Mo. App.1987), S.L.H v D.B.H 745 S.W 2d 848 (Mo. App 1988), S.N.E v R.L.B 699 P. 2d 875 (Alaska 1985), Schusterv Schuster (Joined with Isaacson v Isaacson) 585 P. 2d 130 (Wash. 1978), Thigpen v Carpenter 730 S.W 2d 510(Ark. App. 1987), Wemeburg v Werneburg 6 FLR (BNA) 2280 (NY 1980), In Re Marriage of Williams 563N.E 2d 1195 (Ill. App. 3 Dist. 1990). Hereinafter all cases mentioned for a second or subsequent time will bereferred to by name, year and country only.7versus lesbian co-mother cases were excluded from consideration, as were lesbianbiological/co-mother versus sperm donor cases. This decision rested on the basis thatheterosexual mothers who ‘became’ lesbian and left the husband/traditional family form wouldprovoke the most intense anxiety about motherhood and the family, and would thus be mostrevealing of the ways in which motherhood and familial ideologies permeate Western legalthought.However, I have also included in the discussion cases involving a lesbian mother and a thirdparty16 (such as grandparents), where a lesbian mother has been contesting a welfare seizure ofher child,17 or an adoption of her child. 18 In addition I have noted more tangential cases, suchas those where a lesbian had applied to adopt a child from a third party19 or from the State,2°and a case in which a girl who was a minor approached the court for a sex change.2’ I havealso discussed cases where a mother has denied being lesbian and been believed22 or where themother is an ‘ex lesbian’ in that she is not in a lesbian relationship and claims that hert6These cases are as follows: Australia: Jarman v Lloyd and Ors (1982) 8 Fam LR 878 (this case is unique in thatthe lesbian mother joined her own mother’s application for custody against the father, and desired custody herselfonly if the grandmother was unsuccessful); USA: Bezio v Patenaude 410 N.E 2d 1207 (Mass. 1980), Townend vTownend 1 FLR (BNA) 2830 (Ohio 1975), White v Thompson 569 So. 2d 1181 (Miss. 1990).17These cases are: Canada: Re (L.A) B. [1989] B.C.J No 2431 (Unreported judgment, December 14, 1989),Children’s Aid Society of Halifax v A.(M.) [1986] N.S.J No 423 (Unreported judgment, November 25 1986);UK: Re A (Wardship: Children in care) (1979) 1 FLR 100; USA: In re Breisch 434 A. 2d 815 (Pa. Super 1981).18Canada: Adams v Woodbury [1986] B.C.J No 2725 (Unreported judgment, June 26 1986), (by third parties)USA: Doe v Doe 284 S.E 2d 799 (Va. 1981) (by father and new wife).19Canada: Monk v Doan and Aitken (1991) 94 Sask. R. 315 (Sask. Q.B.).20UK: (1993) C.A (Unreported judgment, July 1, 1983).21Australia: Re A (1993) FLC 92-402.22Canada: Seselia v Seselja [19941 O.J No 639 (Unreported judgment), Tomanek v Tomanek [19931 O.J No 1371(Unreported judgment); UK: Re M (Judicial continuity) [1993] 1 FLR 903 (C. A), . (1993) C. A (Unreportedjudgment); USA: S.L.H v D.B.H 745 S.W 2d 848 (Mo. App 1988).8orientation has changed and is believed by the court.23 These less standard cases have all beenuseful in tracing discourse regarding lesbian mothers (as selfish or savage, for instance), andmany commonalities have run through these cases and the more ‘traditional’ child custodydisputes.24 For this reason such cases have been fully incorporated into the discussion, withusually only a note that they are different in source. They were not, however, included incalculating lesbian mothers’ chances of ‘success’ in Chapter 5.Although I rely heavily upon case law in this work, I wish to stress that the case law as Iexamine it is a story, not a truth, legal or otherwise. I agree with Annamay Sheppard whowrote in her study of child custody cases involving lesbian mothers in the USA,• . the texture of evidence as a whole is frequently obscured by the trial court’sselective recitation and will almost certainly be lost in the truncated recitation of areviewing court. Analysis through the milk glass of a written decision must,therefore, by definition, be less than fully revelatory.’25The judgments in my opinion do not in any way reflect the ‘truth’ of the lives they purport torepresent (for instance that many lesbian mothers are selfish nymphomaniacs with sloppyhouses) but neither can they be proven ‘false’ by reference to some external source (wehaven’t see these houses or dated these women, so how would we know?) The judgments arewritten by people, mostly men, in positions where they form views of the ‘other’ of lesbianmothers, to whom they (generally) are ‘foreign’ and yet have authority over (both culturally23Australia: Harvey and Creswell (1988) (Unreported judgment, Federal Court, December 23, 1988); Shepherdand Shepherd (1979) FLC 90-729.24Beggmg the conclusion that lesbian versus lesbian cases would also be very useful, of course, but for reasons ofeconomy I still choose at this stage to exclude them. Moreover such cases have only emerged in recent years andare available only from the USA.25A. Sheppard, Lesbian mothers II: Long nights journey into day” (1992) 14 Women’s Rights Law Reporter 185at 196.9and legally speaking). Interpretation and representation in such a context must be read as evenmore thoroughly suspect than usual. Tzvetan Todorov illustrates ‘the discovery self makes ofthe other’ in his book on the conquest and colonisation of the Americas.26 In one example,Columbus, confronted with the foreignness of the native ‘other’/s continually interpreted thespeech and actions of all whom he encountered as adhering to his own belief systems, to theextent that he convinced himself that they must understand and speak Spanish in the face of allmisunderstanding.27The records of Columbus’ travels are to Todorov fascinating for whatthey reveal, not about Native Americans, but about the Spanish conquistadors - the question oftruth is entirely incidental, and largely unprovable in any case. Likewise, I believe that thisstudy reveals much about the process of judgment and those judging, but little if anythingabout the objects of their attention, lesbians and their experiences of mothering.TheoryThis thesis proposes that the example of lesbian mothers can be used to illuminate ideologiesof motherhood in law and culture. In essence, legal judgments reflect (and contribute to)popular mythology about lesbians - for instance as castrating, sadistic, sterile and unstableindividuals. My argument is that lesbians are fundamentally viewed as UN-mother, and anexamination of judgments regarding lesbian mothers, by exposing what UN-mother is, holdsthe potential to shed much light on what Real Mothers are meant to be in ideological terms.26T. Todorov, The Conquest ofAmerica: The Question of the Other (New York: Harper and Row, 1984) at 3.27Although lesbians are arguably less foreign and more internal to culture than in this example, the extent of their‘other’ness should not be underestimated as Chapter 4 will make clear. For example, a continued conflation oflesbians and monsters such as vampires in film is prevalent. Moreover the apparent farfetchedness of the foreignlanguage analogy is undercut by recent articles on lesbians in the popular press which actually do contain‘translations’ of lesbian words and types’ for the common reader: see note 363.10The best example of how pervasive and total the opposition of ‘lesbian’ and ‘mother’ is inWestern culture is the Canadian adoption case of Adams v Woodbury (1986). In that case,Annette Adams had given birth to a daughter at the age of 17, as a result of a relationship withthe child’s father, which had already ended. Annette’s parents had urged her to have anabortion, or failing that, adopt the child out, but she refused and raised the child for threeyears alone, facing considerable financial and emotional obstacles. In the judges’ words,‘The turmoil and difficulties faced by Miss Adams were compounded by the factthat she discovered that she was homosexual.. . and her discovery that she was alesbian caused her to seriously consider whether to raise the child or whether it wasin the child’s best interest to be put up for adoption’ (Lamperson, L.J.S.C at 4-5).At this point, the mother’s family put considerable pressure on her to relinquish the child, tothe extent of hiring a lawyer and seeking placements for the child. The child was placed withMrs and Mr Woodbury by the mother, although formal consents were never executed. Afterone year, Annette Adams had sought out therapy, decided there was nothing wrong in lesbiansraising children, and tried to regain custody. She was refused access and applied to the courtfor custody (Mrs and Mr Woodbury in turn applied for a formal adoption order dispensingwith the mother’s consent). The court found that the mother’s turbulence, ‘problems with hersexuality’ and the unlikelihood of her current relationship being permanent did not comparewell with the ‘normal and stable’ home offered by the Woodbury’ s, and granted an adoptionorder in their favour (at 17). What is most striking upon reading this case, is the way in whichevery party concerned, including the mother, proceeded from the assumption that lesbianismand motherhood were antithetical. Only the mother ever seriously questioned or wavered fromthis view.11This is not to say that lesbian mothers lose every case to which they are party. In fact, chancesof success for lesbian mothers vary considerably across jurisdictions.28As Carol Smart argues,‘It is not that women can never ‘win’ individual cases, that is not the point. Rather,it is the ways in which law seeks to regulate women’s bodies - whether liberally orputatively - and to reproduce specific, negative iconographies of female bodieswhich need to be challenged.’29This thesis will treat the process by which decisions come to be made as equally or moreimportant than the decisions themselves. It is the discourse used in the cases and the ways inwhich lesbians are configured as dangerous or bad mothers which will be the focus ofexamination. In some cases the mother may be held to be an exception and granted custody,and in such cases the process by which exceptionality is created is also illuminating of the‘rule’ to which exception is found.The fact that only a small number of any family law disputes are actually litigated,30 does not,in my view, diminish the importance of the material and the usefulness of making the reportsof litigation a focus of inquiry. Shelley Gavigan argues that courts are of paramount concernbecause they restate rules and legitimate relations, supporting and shaping ideas in variousways, such that ‘courts are primarily ideological rather than instrumental or coerciveinstitutions’ and have enormous impact upon social relations.31 Even in a strictly legal realm,28 note 373.29C. Smart, Feminism and the Power ofLaw (London: Routledge, 1989) at 103.30Usually estimated at between 5% and 10%: see P. MacDonald, Settling Up: Property Income and Distributionon Divorce in Australia (Melbourne: AIFS, 1986) at 45. However the number of lesbian mothers who go throughlitigation may be higher than that of heterosexual mothers. Ellen Lewm notes in her comparative study of singlelesbian and heterosexual mothers that while 24 % of heterosexual mothers had experienced or been threatened witha custody action, 41 % of lesbian had. See E. Lewin, Lesbian Mothers. Accounts of gender in American Culture(Ithaca: Cornell University Press, 1993) at 163.31S. Gavigan, ‘Law, gender and Ideology in Bayefsky, A (ed) Legal thought meets Legal practice (Edmonton:Academic Printing, 1988) at 284.12one reported case unfavourable to the lesbian mother and/or to lesbian mothering generally canmean that dozens or hundreds of lesbian mothers seeking advice will be counselled to settle.In discussing lesbian mother cases, I will use an archetypal framework to examine theelements of myth, fear and fantasy present in each story and the way in which it is told.Family law cases, particularly those involving a mother who is a lesbian, are ripe for anarchetypal analysis for a number of reasons. Mother is a powerful (albeit ambiguous) symbol,perhaps one of the most universal and primal.32 The continuing invisibility of lesbians inpublic life, and the dearth of imagery representing lesbians from a lesbian-centred or positiveviewpoint33 means that lesbians continue to exist most powerfully in the common mind asfantasy figures, symbolic of fear or desire.34 Family law judgments themselves are rich witharchetype - they contain a stylised story - often told only with the initials of those involved,and at an appeal level retold by a judge who has not even seen the people who are the subjectof the tale, so that each person is further reduced to symbol, such as “J.A”, “the Wife” or“Mother” and “B.A”, “Husband” or “Father”, with children “S”, “K’ and “L”.It is my contention that the judgments in question can be readily analysed in terms of aformulaic narrative, and I draw parallels in later chapters between the ideological effects ofrepresentations of lesbians in popular cultural and in family law judgments. Representations oflesbians in popular culture fall into a few ‘types’ and the plot structure across various mediaand genre are remarkably consistent. The legal judgments studied, despite differences in32For an article about motherhood and the symbolic see M. Fineman, “The Neutered Mother” (1992) 46(3)University ofMiami Law Review 653.33The recent primarily North American trend known as ‘lesbian chic’ will be discussed in detail in Chapter 4.In Julia Brophy’s words, ‘beliefs and attitudes towards lesbians are determined by elements of fantasy andanxiety’: J. Brophy, “New families, judicial decision making and children’s welfare” (1992) 5 Canadian Journalof Women and the Law 484 at 489 n 11.13jurisdiction, country and time, also follow a stylised pattern. That is, they open with when(though usually not where) the Mother and Father were born, where and when the Mother andFather met, when married, when the children were born and what gender they are, when andwhy the Mother and Father separated and applied for a final divorce. The story then turns towhere the children have been living since the separation and the nature of the order sought byeach party. An equally stylised description follows of Mother and Father, accommodations(No. of rooms, cleanliness) and parenting abilities (‘affectionate’, ‘authoritarian’), mention ofevidence brought by other witnesses, counsellors etc, discussion of which evidence is to bepreferred when it is in conflict, a brief summary of who is the preferable custodial parent andthen an order. The attention given to each of these factors varies, but the structure of thejudgments remains constant - which, when judgments are read en masse appear as aconsequence to exhibit an almost folkioric adherence to symbol and style.A related point is the ways in which the judges themselves use language which reflects theirown sense of these events being a ‘story’, somewhat removed from reality, although this ismost common in welfare rather than family law cases. For example, cases I examinedcontained references to the mother’s life being a ‘great soap opera’ , the mother ‘lurch[ing]from one crisis to another’36 and the ‘sad story’ of the mother’s life including ‘episodes’ ofviolence with various men ‘on the scene.’37 Anne Goldstein argues that, ‘Litigation is a storytelling contest.’38 I take this argument one step further, positing both the process and the result35Canada: Monk v Doan and Aitken, 1991, 2.36Canada: Children’s Aid Society, 1986, 6.37UK: Re A, 1979, 4, 4, 10, 5, 10.38A. Goldstein, Representing lesbians” (1992) 1 Texas Journal ofWomen and the Law 301 at 301.14as stories. The question can then be asked, when one looks at the homogenity of what is beingsaid: why this story? What does it mean?There are several theoretical bases for this work. I use a concept of ideology,39 which wasdeveloped as a Marxist analytical tool, in conjunction with concepts of archetype and theunconscious, which originated in psychoanalytic theory. In addition I discuss narrative from alargely feminist and occasionally post-modem perspective.While diverse, these approaches are not necessarily disjunctive. Theories of the unconscious,narrative and ideology are integrated in some feminist perspectives on motherhood.4°Ideologyas a conceptual tool in conjunction with notions of the unconscious has much to offer.Ideology provides a framework from which it is possible to examine the functions of variousrepresentations of lesbians, discourse and decisions about lesbian mothers. Ideological analysisprovides a way to inquire into the systemic meaning of the case law - to look for a ‘bigpicture’ by asking what it is that lesbian mothers mean to dominant conceptions of motherhoodand ‘the family’. Chapter 5 explores how conceptions of lesbian mothers threaten dominantideas about motherhood. Chapter 6 explores how the very same conceptions of lesbian mothersactually contribute to and support dominant ideas about motherhood and family.Psychoanalytic notions of the ‘unconscious’ are very useful in this endeavour. Various aspectsof an ideological system may often be in opposition, as Chapters 5 and 6 will show.39Roger Cotterell provides a list of the elements of ideology. These are:1. It appears to be ‘common sense’, obvious and natural and hence not requiring specific justification. It providesa basic structure of perceptions and beliefs in relation to which experience is interpreted.2. The structure of beliefs and perceptions tends to assert its own completeness and timeliness.3. This claim to completeness and self sufficiency is maintained by emotional commitments which may justifyselective consideration of empirical evidence (cited by Gavigan in Bayefsky, supra n 31).40See eg E. A. Kaplan, Motherhood and Representation: The Mother in Popular Culture and Melodrama (NewYork: Routledge, 1992).15Moreover, discourse about lesbian mothers and decisions in case law may in fact becontradictory. Psychoanalytic theory allows one to examine the ‘big picture’ of motherhoodand familial ideology without losing sight of some of the very personal fears that may liewithin them. Much legal decision making, and child custody decisions in particular, involve ahighly discretionary system necessitating personal judgment as to which parent will best fulfila child’s interests. The fears and fantasises of the judiciary as individuals must, therefore, betaken into account in addition to the ideological effects their decision eventually have. Theblending of ideological and psychoanalytic theoretical approaches allows the exploration of thepersonal and the political elements of judicial decision making. Chapter 2, for example,highlights the extent to which judges may be engaged in the process known as ‘projection’ -whereby onets own concerns are seen as a problem manifested by someone else.Chapter 4 illustrates the extent to which lesbians and lesbian relationships have beenpathologised through medical discourse and popular cultural representations. Many culturalrepresentations of lesbians, also found in legal judgments explored in Chapters 2 and 5 (forexample, lesbians as manhating) originate loosely from a Freudian psychoanalytic framework.Directing feminist psychoanalytic theory at judges provides a way of ‘returning the gaze’ andactively problematising the grounds upon which judges judge.Archetype is useful as a way of structuring such an inquiry to hold in mind both the individualmother in the case at hand and the symbolic ‘Mother’, and to examine the process by whichthey are continually (consciously and unconsciously) compared.Ideology as a theoretical basis can be used in such a manner as to actively incorporate notionsof archetype and the unconscious. Slavoj Zizek writes,16• . . ideology is not a dreamlike illusion that we build to escape the insupportablereality; in its basic dimension it is a fantasy-construction which serves as a supportfor our ‘reality’ itself: an ‘illusion’ which structures our effective, real socialrelations and thereby masks some insupportable, real, impossible kernel(conceptualised by Ernesto Laclau and Chantal Mouffe as ‘antagonism’: atraumatic social division which cannot be symboliseci). The function of ideology isnot to offer us a point of escape from our reality but to offer us the social realityitself as an escape from some real traumatic kernel.’41The ‘traumatic kernels’ which this thesis posits are the dispensability of men from childrearing and ‘family’ life, the fragility of the heterosexual nuclear family, the fluidity of sexualcategories and therefore of belief systems in themselves - themes which will be explored inChapter 6. This is not to suggest that ‘false consciousness’ is alive and well and that under the‘illusions’ I explore there exist ‘truths’ to be excavated. What I draw from the quote above andillustrate in Chapter 6 is that the less an ideological system can believe its claims to truth (as,for example, when familial ideology is faced with the fact that more people are living outsideof heterosexual nuclear families), the more vociferous it becomes in malcing its claims to truth(eg ‘family values’) and the more it buttresses itself with weaponry to ensure its truth (egrevoking anti-discrimination laws to protect lesbians and gays).Another point which must be raised as a matter of methodology is the erasure of bisexuality.Nowhere does this thesis address bisexuality directly in that the subjects of discussion andinquiry are ‘lesbian mothers’ - a category which appears to posit a unitary and unproblematiclesbian identity. Yet there are endless variations in lesbian identity and boundless discussionsabout it in lesbian, bisexual and ‘queer’ literature. I use ‘lesbian’ as a conscious choice, awareof its perils. The reason is that it exists as a unitary category to someone, to those outside of it,the judiciary, and it is they who are the focus of this work.41Quoted in T. Murray, Like a Film: Ideological Fantasy on Screen, Camera and Canvass (London: Routledge,1993) at 5.17In every so-called lesbian mother case at issue in this thesis, the mother is arguably bisexual -in that she was in a sexual relationship with a man, to a greater or lesser degree of satisfaction,for some years before ‘becoming’ lesbian (beginning lesbian relationship/s or admitting lesbianattractions) 42 Yet in all of the cases I studied lesbianism as an identity was seen to subsumethe mother’s heterosexual or bisexual identity. Sometimes this was due to the motheridentifying herself as lesbian, but more often the existence of a lesbian relationship was heldsufficient to ‘make’ her a lesbian, even if she identified herself to the court as bisexual. Ininstances where judges did pay heed to the fact that the mother had heterosexual relationshipsin the past (something I would have thought hard to ignore under the circumstances, butremarkably rare), or the possibility of relationships with men in the future, this was always byway of saying that the mother could ‘return’ to heterosexuality, not that she was bisexual allalong. Thus it was the mother’s lesbianism or lack of it that was vital, defined in the binaryterms of presence or absence, and bisexuality as a meaningful category of identity wastherefore erased completely. However fear of bisexuality, or of a fluid sexual identity(‘becoming lesbian’, ‘returning’ to heterosexuality) underlay a great deal of the horror in thesecases and contributed largely to a sense of the lesbian mother as abject - to be explored inChapter 6. In this way, bisexuality is an unspoken premise and presence in much of what willfollow.StructureIn Chapter One I examine both feminist and lesbian and gay critical discourses on lesbianmotherhood and argue that neither have adequately accounted for the experience of lesbian421 do not enter into the ‘Did god give us this gift, or is it of our own making?’ debate in this thesis, proceedingpersonally from the assumption that one should not look gift horses in the mouth, and theoretically from the basisthat whether or not judges believe sexual orientation to be innate, the mothers in question are viewed very muchas making choices to act upon it. See later arguments about maternal agency based upon the case law in Chapter 3‘Equality and freedom: the offensiveness of rights’ section and in Chapter 6 ‘Motherhood as a denial of agency’section.18mothers in law within their own theoretical frameworks. However, I contend that there is thepotential for feminist theory to do so, through recent work on motherhood and familialideology which centres lesbians and integrates insights achieved through this. In Chapter TwoI illustrate how lesbian mothers are perceived as odd and ‘other’ in traditional legal discourse,including text books and cases (commonly referred to as ‘secondary’ and ‘primary’ sources oflaw). In my argument, these sources simultaneously make claims that lesbian mothers do not‘exist’ in the world known to them, and yet to ‘know’ who and what exactly lesbian mothersare without needing to ever credit what lesbians themselves say in these instances.Chapter 3 aims to illustrate through the case law the centrality of lesbianism to child custodycases involving lesbian mothers, and the inability of reasoned, rational or rights-basedaccounts to make sense of lesbian mother cases - which are riddled with incoherence andcontradiction. Chapter 4 explores the representation of lesbians in popular culture in somedepth, outlining the existence of pervasive ‘types’ and themes concerning lesbians, thepresence of which are then traced through the judgments in Chapter 5. Chapter 5 argues thatthe use of Mother archetypes as a way of structuring inquiry is perhaps capable of capturingsome of the more hidden elements of motherhood ideology in family law judgments. Detailedcase analysis in that chapter therefore follows a framework of archetypes. Chapter 6 draws onthe parallel between the configuration of lesbians in the two preceding chapters to argue forthe ideological ‘necessity’ of lesbian mothers to the family law system. In conclusion, I outlinesome of the similarities which this work finds with other feminist work on motherhoodideology, particularly with those on the margins.19CHAPTER 1: Existing theoretical accounts of lesbian motherhoodExisting theoretical approaches to lesbian motherhood can be divided into roughly two camps -lesbianandgay43 theory and feminist theory. Although there are some overlaps in theseapproaches and a small number of lesbian/feminist writers straddle both camps,44 there aredistinct and identifiable strands of thought in each. Moreover, the self-referential quality ofwork in both areas means that each group merits separate categorisation.Both of these theoretical approaches to lesbian motherhood tend to construct lesbianism as‘partial’ - both in the sense of being limited and in the sense of being biased - and ‘other’while purporting to cover it under a generic, such as ‘non-ideal mothers’, ‘non traditionalfamilies’ or ‘homosexual parents’. An example of partiality is when the category of “lesbianmother” is presumed to say much about “lesbian” but little or nothing about “mother”.In essence, lesbianandgay theories centre the category of ‘homosexual’, a non-genderedsubject in the highly gendered field of family law, who as a ‘homosexual parent’ experiencesunjustified ‘discrimination’ from the homophobic and/or heterosexist legal system. Feministtheories centre the category of ‘mother’, a presumably heterosexual subject in the heterosexedfield of family law (as all of the participants are present due to a prior heterosexualrelationship) who is constructed through gendered structures and ideologies. Needless to say,there is much talking at cross purposes, and lesbian mothers, lesbian concerns and thespecificity of lesbian experience are often lost or overlooked entirely. These existing43j use the collapsed word structure to signify where lesbians and gay men are regarded as a homogenous groupwith identical characteristics and interests. In such cases it is false to use the term ‘lesbians and gay men’ as ifreflecting diversity where the author is more likely simply replacing the old fashioned word ‘homosexual’ withmore current and acceptable jargon. The authors referred to are all supportive of lesbian and gay parenting, to agreater or lesser extent. Theoretical treatment of lesbian motherhood from traditional legal perspectives isconsidered in Chapter 2.44j refer in particular to the work of Katherine Arnup, Susan Boyd, Nancy Polikoff and Ruthann Robson.20theoretical approaches to lesbian motherhood frequently de-centre lesbians, sometimessilencing lesbian issues, marginalising the connection of lesbian-as-mother or severing lesbianmothers from theories of ‘motherhood’ and thus obscure possible insights into motherhoodideology.At the conclusion of this review, I will argue that feminist theory nevertheless has the potentialto account for lesbian motherhood within ideologies of motherhood and that a number ofrecent feminist writings have done so. To do this, analysis of lesbian mothers must bethorough and central. If lesbian mothers are centred within a feminist framework, and theirexperience and concerns are examined in a detailed manner, it may be possible to findparallels with the treatment of other marginalised mothers within the family law system.45Effectively, I propose an ‘outside in’ or ‘bottom up’ approach to motherhood ideology,starting from the margins and moving from there to connect with other margins and illuminatethe centre - dominant ideologies of motherhood.I: Lesbianandgay commentaries‘Gender neutrality is the paradigmatic expression of the values and norms of thedominant legal concept of equality which.. .precludes the consideration of Motheras something dfferent or distinct from father. In legal texts, statutes and cases,Mother is collapsed into the legal category of ‘Parent’ and is suppressed. However,Mother has only disappeared rhetorically. In social and extra-legal institutions thatembody cultural expectations - idealized and practical - Mother continues to existandfunction. ‘ 4645Presuming that, likewise, such groups are also centred and the focus of detailed analysis from whichcomparisons can be drawn.46Fineman, supra n 32, at 660.21Homosexual parentsVirtually all writing on gays and lesbians in family law utilises a category of the ‘homosexualparent’ - either implicitly or explicitly treating the issues facing mothers and fathers asidentical. This discourse creates a gender neutral subject; the parent who is homosexual. Thus,while purporting to theorise sexuality, an un-sexed subject is centred, making ‘homosexuality’,‘a kind of male-and-female sexuality - often severing [lesbians] from an analysis of ideologiessurrounding female sexuality and motherhood.’47Gender neutral discourse undermines gender issues such as the role of (lesbian) mothers as theprimary caregivers of children and papers over the fact that lesbians and gays may be makingclaims to custody upon very different grounds (eg caregiver versus paternal right).I have argued elsewhere that:‘The use of the generic is in itself a gender issue, as more often than not thegeneric also signifies the male, and so literature claiming to discuss generalexperience in fact masks female experience or presents the male as the general. Ageneric allows for a discourse of homogeneity at once confusing andexclusionary... ‘48This confusion arises in numerous ways. The male form may be used as a generic (as in “gayparent”, “gays”),49 or as both the male form and the generic within a single work.5°The47Millbank, supra n 11, at 27.48Ibid49eg M. Fajer, “Can two real men eat quiche together? Storytelling, gender-role stereotypes, and legal protectionfor lesbians and gay men” (1992) 46(3) University of Miami Law Review 511, at 535; D. Dooley, “Immoralbecause they’re bad, bad because they’re wrong: sexual orientation and presumptions of unfitness in custodydisputes” (1990) 26 Calfornia Western Law Review 395, at 395; P. Brantner, “When Mommy or Daddy is gay:Developing Constitutional Standards for Custody Decisions” (1992) 3(1) Hastings Women’s Law Journal 97, at98.22generic form may be used as the male (as in “homosexual or lesbian”)5’ and a purportedgeneric may implicitly refer to male experience (as in “homosexuals as a class” being at highrisk of HIV infection or perceived as promiscuous).52 Who is being discussed and whatinterests are at stake are smudged over by a language which is over-inclusive and obfuscatory.Most particularly, it creates a surface from which it is impossible to identify that lesbian andgay interests may not only be different but actually be in conflict.I have argued in earlier work that the implicit masculinism in purportedly gender neutralaccounts of lesbian and gay custody disputes was highlighted when the parents in dispute wereboth homosexual.53 I now believe that such situations provide the context for perhaps the mostexplicit examples of male-centredness in the current lesbianandgay discourse.Three such examples exist, two being family law cases with divorced parties and one being asperm donor suit.54 In discussing the Australian family law case of Shepherd55 Margaret50See eg C. Costello, “Legitimate bonds and unnatural unions: Race, sexual orientation, and control of theAmerican family” (1992) Harvard Women’s Law Journal 79 where she uses ‘bisexual, lesbian and gay’frequently, and then reverts to ‘gay families’ as an inclusive term, eg at 151, 165.51See eg S. Boyd, “What is a normal family? C v C (A minor)(Custody: appeal) (1992) 55 Modern Law Review269, at 273, 276 (although I consider this work to fit more fully within a feminist framework); R. Beargie,“Custody determinations involving the homosexual parent” (1988) 22 Family Law Quarterly 71, at 79.52See eg Fajer, supra n 49, at 559; D. Bradley, “Homosexuality and Child Custody in English law” (1987)International Journal ofLaw and the Family 155, at 157, 166. Robert Beargie, after discussing numerous lesbianmothers and a few gay fathers under the generic “the homosexual parent” then refers to the client as “he” and to“his” child: Beargie, supra n 51, at 78, 79, 85.53Millbank supra n 11, at 28.54There is a further lesbian mother and gay father family law case, being the Canadian matter Robertson vGeisinger (1991) R.F . L (3d) 261 (Sask. Q.B) but as there is no commentary available on it, I have omitted itfrom this part of the discussion. Interestingly, in that case, the judge fairly much ignored the issue of sexualorientation, as neither party raised it and both were homosexual, so he effectively regarded it as ‘neutral’.(1979) FLC 90-729.23Bateman classifies the dispute as a gay father case, despite the fact that the mother hadpreviously been in a lesbian relationship.56 When reporting on a US contest between a gaysperm donor and a lesbian co-mother couple Arthur Leonard titled his article “Judge deniesparental standing to gay sperm donor” and discussed the case largely from the perspective ofthe donor.57Particularly striking is David Bradley’s discussion of the UK family law case of Walker.58 Inthat case, the father had previously been in a gay relationship but he was no longer in one atthe time of trial and he did not identify as gay, whereas the mother identified as lesbian andlived with her lover. Despite this, Bradley classified this as a gay rather than a lesbian caseand centred his discussion upon the situation of the father. Bradley stated that the case was‘difficult to evaluate.. .because of the minimal attention given to male homosexuality’ andadded that, ‘The case is also complicated by the fact that the mother of the child whosecustody was in dispute was living with a lesbian partner.’59 The woman is characterised as themother of the child here, with lesbianism only a secondary attribute, a complication no less. Inthis case, it is as though the field of ‘homosexual’ has been covered by the father and so themother cannot be characterised likewise, she must be something else: a mother. This constructis all the more remarkable when contrasted with the absence of recognition of lesbians as56M. Bateman, ‘Lesbians, Gays and Child Custody: an Australian legal history’ (1992) 1 Australian Gay andLesbian Law Journal 46. This was in issue at the time of trial, but the mother had left the relationship and took ahomophobic stance against the father, so it is reasonable to see her as ‘non-lesbian’ in this instance - although thecourt may have had lingering doubts.57Leonard suggests that although some may see the judgment as a victory for lesbian families the decision ‘mayactually appear conservative’ by denying ‘different kind of parental relationships.’: A. Leonard, “Judge deniesParental standing to gay sperm donor” May 1993 Lesbian/Gay Law Notes 33.58Unreported, English Ct Appeal 17 June 1980 before Ormrod and Brandon UJ.59Bradley, supra n 52, at 176.24mothers in most other lesbianandgay work.6° Implicit in such characterisation of the issues isthat lesbians are ‘homosexual’ when their interests reflect those of gay men, but they are‘mothers’ when identified with heterosexual women or a maternal preference6’and/or are atodds with gay men.The right answer: liberalism andpositivismMany works by lesbianandgay writers tend to follow a very similar pattern. Articles beginwith a close examination of (usually American) cases and identification of legal trends in thecases - such as the per Se, intermediate and nexus approaches62 used by judges in determiningwhether a mother’ s lesbianism is anathema to the child’s best interests. Writers frequentlyidentify factors in the case law which have been used against lesbian mothers - such aspresumptions that the children will grow up lesbian or gay, the children will be traumatised orabused by the presence of a female lover in the house, the children will be subjected to peertrauma etc - and argue strenuously that such assumptions and stereotypes are untrue.Discussing stereotypes in the media, Richard Dyer remarks,60Rutham-i Robson, although recogrnsmg gender through her focus upon lesbians in her work, has also assumedthat lesbian motherhood has little to contribute to a discourse on ideologies of motherhood in the sense that shesevers her analysis from a feminist framework. Arguably, this has been in an attempt to centre lesbian concernsand speak to a lesbian audience, but this contributes in a sense to the notion that lesbian motherhood speaks onlyto lesbians - and has no relevance to a critique of motherhood.61See discussion of Darryl Wishard in the later section Disadvantaged Dads’.62The per se approach being that lesbians are in and of themselves harmful to children, the intermediate approachpresumes a harm which the lesbian mother may rebut with evidence and the nexus approach requires that evidencebe brought to show that the mother’s lesbianism has harmed or will harm the child before it is held to be anegative factor. These may also be described as irrebuttable presumption, rebuttable presumption and nexus test.In practice the much favoured nexus test may easily be transformed into a presumption of harm test, for exampleif the father simply raises the possibility of the children being stigmatised as a result of the mother’s lesbianism(known as the ‘peer trauma’ argument).25‘Righteous dismissal does not make the stereotypes go away and tends to preventus from understanding just what stereotypes are, how they function, ideologicallyand aesthetically, and why they are so resilient in the face of our rejection of them.In addition, there is the real problem as to just what we would put in their place.’63The ‘solution’ offered in many lesbianandgay legal arguments is that the ‘truth’ about lesbianand gay parents (whatever this may be) should be shown to the courts, and judges be impelledto apply ‘correct’ or ‘unbiased’ standards in custody determinations. Much analysis of theproblems facing lesbian and gay parents is deeply entrenched in a liberal human rightsframework, and rests on the implicit assumption that if only discriminatory attitudes are shownto be unjust and the ‘right’ standard were applied, equality would be assured for lesbians andgay men.The great faith in legal institutions and the persuasiveness of liberal arguments is evidenced bya plethora of legal articles which laboriously outline assumptions and factors which have beenused against lesbians and gay men and bring forth evidence to show each and every one ofthese to be untrue.64 For example, Wendy Gross writes that judges ‘fears’ about lesbianmothers are ‘based on a combination of lack of facts and inherent prejudice’ so that it is‘absolutely crucial’ to ‘educate’ them with the ‘truth. ‘65 Katherine Arnup argues that withinsuch a framework,63R. Dyer, (ed) Gays andfilm Rev. ed. (New York: Zoetrope, 1984) at 27.64See eg M. Clemens, ‘In the best interests of the child and the lesbian mother: a proposal for legislative changein New York” (1984) 48 Alberta Law Review 1021; D. Rosenbium, “Custody Rights of Gay and Lesbian Parents”(1991) 36 Villanova Law Review 1665; Dooley, supra n 49; Milibank, supra n 11; Sheppard, supra n 25; W.Gross, “Judging the Best Interests of the Child: Child Custody and the Homosexual Parent” (1986) CanadianJournal of Women and the Law 505; Notes, “Custody Denials to Parents in Same Sex Relationships: An EqualProtection Analysis” (1989) Harvard Law Review 617 (hereinafter referred to as ‘Notes’); Beargie, supra n 51;Bradley, supra n 52, Fajer, supra n 49. Marc Fajer actually contends that advocates should emphasise to thecourts that lesbians and gays are very similar to, if not identical with, heterosexual partnerships and families sothat judges will empathise and be less discriminatory.65 Gross, supra n 64, at 520, 529.26‘judges are perceived to be reasonable arbiters, willing to change their attitudes andrulings when they are shown to be discriminatory.’66When it is noted that many of the myths have been consistently exploded for the past fifteenyears or more, and cited continually in law journals and case briefs since that time, yet stillappear regularly as issues and are often weighed against lesbians and gays in recent custodycases, such faith in the powers of persuasion appears somewhat naive.67Likewise, there is a strong thread of liberal positivism in lesbianandgay analysis whichfocuses upon the ‘correct’ standard or application of the welfare principle to achieve equalityor non-discriminatory decisions for lesbian mothers and gay fathers. Some theorists argue for‘equal protection’ through avenues such as constitutional challenges and legislation.68 Manytheorists also rely upon the notion that the welfare principle is being applied ‘incorrectly’ andargue that it should be refined or altered to reflect the ‘nexus test’ to diminish or eradicatediscriminatory judgments.69 Rosenblum provides the paradigmatic example of this analysiswhen he says:66K. Arnup, ‘Mothers just like others’: Lesbians, Divorce and Child Custody in Canada” (1989) 3 CanadianJournal of Women and the Law 19 at 29.67See eg the search for common knowledge’ about lesbians discussed in Chapter 2 ‘Case law: We know who youare’ section, and the repeated disregard of evidence (eg that children won’t grow up homosexual) discussed inChapter 3 ‘A nexus test? the irrelevance of evidence’ section.68See eg Dooley, supra n 49; Notes, supra n 64; Fajer, supra n 49; Sheppard, supra n 25, Gross, supra n 64, M.Leopold and K. King, “Compulsory Heterosexuality, Lesbians, and the Law: The Case for ConstitutionalProtection” (1985) Canadian Journal of Women and the Law 163; Bateman supra n 56. Although coming from alegal framework in which human rights are not constitutionally guaranteed, Bateman nonetheless posits that a Billof Rights for Australia outlawing sexual orientation discrimination would lead to the ‘proper’ interpretation of thewelfare principle by excluding unfounded fear and prejudices from consideration.69See eg Bateman, supra n 56; Gross, supra n 64; Clemens, supra n 64; Brantner, supra n 49; Rosenblum, supran 64; Dooley, supra n 49; Beargie, supra n 51.27‘The most logical standard adopted by the courts is the ‘nexus’ test whereby aparent’s homosexuality is not a consideration in granting or denying custody unlessthere is a proven connection between the parent’s homosexuality and a detrimentaleffect on the children. This approach is the most direct application of thetraditional ‘best interest of the child’ standard, because it does not create aninference that a parent’s homosexuality itself has a detrimental impact on thechild’s upbringing. As a result, the parental fitness of each person can be properlyexamined to determine which home environment is best, and the determination canbe free from unfounded fears, misconceptions and prejudices about homosexualparenting.’7°This complete faith in tinkering about with the mechanics of the test to ensure the ‘proper’interpretation of the child welfare principle is positivist in the extreme as it presumes at afundamental level that the rule alone is capable of determining the result. The role ofarchetype and ideology are disregarded entirely, and the possibility that the unconscious orcultural hegemony might still influence value judgments is left unexamined.This theoretical framework is also strongly liberal in that there is presumed to be a neutral andvalue free manner of making fair decisions. There is such thing as a ‘best’ home and a rightresult. The possibility of a flawed principle (best interests of the child) or that a system whichattempts to judge the interests of children or the capabilities of parents under any principle isimpossible to operate “fairly” to gain a “correct” result is never canvassed.In the above quote from Rosenbium, law is central and its inherent justice is unquestioned asall faith for change is placed in this avenue. Legal positivism is revealed by such a ‘rulefocused’ analysis, and moreover, law itself is valorised by proposals that a rule change willbring about a fair result.70Rosenblum, supra n 64, at 1687.28Although the methods by which this reliance upon a liberal-positivist framework and utilisationof rights discourse marginalises mothers and the interests of women is not immediatelyapparent, such an analysis is antithetical to feminist approaches to law for a number ofreasons. It is through an examination of the non-reference to feminist works and scholarship ofconcern to women in lesbianandgay work that this becomes clearer.Notably, feminist legal theorists have strenuously contested law’s own account of itself asneutral and value free, or even as capable of those things.7’ Feminist theorists have alsoexplored at length the place of ideology in constructing the legal subject and informing legalrules and standards in arenas such as family law.72 Yet, as has been shown, both of theseinsights are omitted entirely in lesbianandgay work in the area of family law. Moreover,feminist initiatives generated or contributed to most of the modern day elements of family law- such as the best interest principle and no fault divorce, and feminists are now evaluatingthese ‘rule changes’ with some ambivalence as to their success.73 Surely, if lesbianandgaytheorists wish for change, there are lessons to be learned by examining the changes which havealready taken place. Yet the frame of reference for much lesbianandgay work is ‘human rights’and ‘anti-discrimination’ theory. The inability of a rights-based framework to grapple withwelfare principles inherent in family law disputes has been noted by feminist writers,74 and is71See generally N. Naffine, Law and the Sexes: Explorations in Feminist Jurisprudence (Sydney: Allen & Unwin,1990); Smart, 1989 supra n 29, C. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge:Harvard University Press, 1987), Towards a Feminist Theory of the State (Cambridge: Harvard University Press,1989).72See eg S. Boyd “Child Custody, Ideologies and Employment” (1989) 3 Canadian Journal of Women and theLaw 111; “Some Postmodern Challenges to Feminist Analysis of Law, Family and the State Ideology andDiscourses ‘(1991)10 Canadian Journal of Family Law 79; Fineman, supra n 32; M. Kline “Complicating theIdeology of Motherhood: Child Welfare Law and First Nation Women” (1993) Queen’s Law Journal 306;Gavigan supra n 31.73See generally the collection of work in Smart and Sevenhuijsen, supra n 5.74Brophy, supra n 34, at 496, Smart, supra n 29, at 153-157, Smart in Smart and Sevenhuijsen, supra n 5, arguesthat in the UK rights claims have ‘become synonymous with selfishness’ at 23.29illustrated with devastating clarity in American cases where constitutional arguments forlesbian mothers based on equal protection, privacy and freedom of association have beenuniversally rejected.75Other issues of concern to women are also conspicuous by their absence. For examplenumerous feminists have explored the ‘potentialities and perils’76 of a primary caregiverpresumption as a tool to improve the situation of mothers - including lesbian mothers - incustody disputes, yet there is no mention of this concept anywhere in the lesbianandgayliterature. Lesbian mothers are gay inasmuch as they are part of a lesbianandgay framework,with interests which are conflated with those of gay fathers. Lesbians are rarely women ormothers within a gayandlesbian theoretical frame of reference - an astonishing reflection of‘the dominant heterosexual culture’77 which also constructs lesbians and mothers asantithetical, for very different reasons.Gender as a legal trick, men as downtrodden & Father’s rightsWhen gender is acknowledged as an issue by lesbianandgay commentators, it is usually for oneof two purposes: either so that an argument can be made that sexual orientation discriminationis a form of sex discrimination in an attempt to garner legal protection, or to argue that gayfathers face more disadvantage than lesbian mothers. Gender is thus invoked as a piggy-backride to equality or as a way of making men the subjects of sexism. In either case, the interestsand perspectives of lesbians are excluded or re-written to serve masculinist interests.75See Chapter 3, ‘Equality and freedom: the offensiveness of rights section.76See S. Boyd, “Potentialities and Perils of the Primary Caregiver Presumption” (1991) 7 Canadian Family LawQuarterly 1.77Bateman, supra n 56, at 92.30Gender as a piggy-back to protectionSome commentators, notably Americans reasoning through US Constitutional law principles,argue that family law decisions (among others) continue to disadvantage lesbians and gay menbecause there are insufficient grounds to challenge them under equal protection laws. Sexualorientation as a classification is subject to ‘ordinary scrutiny’, and so many anti-lesbian andgay measures are upheld by the Constitution. As gender is subject to ‘intermediate scrutiny’,the argument is that if sexual orientation discrimination were classified as a gender-baseddisadvantage, it would have a greater chance of being struck down.78This position is masculinist because sexual orientation discrimination is theorised as a gender-based classification, with little or no regard to the different situations of lesbians and gay menas mothers and fathers, women and men. Gender becomes an abstract method, not a concretemeaning - as female and male interests are still conflated and assumed to match: we are all inthis thing together and this gender trick will get us all out of it together. What is needed is“equal treatment” for homosexuals and heterosexuals. Women have no commonality in thisframework. Mothers, whether heterosexual or lesbian, are not considered as a category or aspossessing any commonalities.Furthermore, the woeful record of formal legal tools such as ‘intermediate scrutiny’ underConstitutional law in achieving change for women is generally ignored, or only briefly touchedupon, giving the impression that “Women” as a class are relatively well off (or ‘equal’ to Men78See eg Fajer, supra n 49; Dooley, supra n 49; Notes, supra n 64.31as a class) and creating space for masculinist gay-rights claims such as will be discussed in thenext section.79Disadvantaged DadsOn occasion, gender is recognised insofar as it is used to argue the greater disadvantage of gayfathers in relation to lesbian mothers.8°American commentator, Darryl Wishard is unique inthat he openly focuses upon gay fathers as the subject of inquiry, rather than lesbian mothersor homosexual parents. He argues that gay fathers must face the “double disadvantage” of apreference for mothers in the courts, as well as judicial homophobia. In Wishard’s analysis,sexism and homophobia are the burden of gay men, not lesbians - who as mothers and noncriminalised subjects of the law8’ are at a ‘sexist’ advantage.The problem with such analysis is that it masks a myriad of issues facing lesbians - such aspoverty82 and violence at the hands of ex-husbands.83 Not least of all, Wishard’s analysis79See eg MacKinnon, 1989, supra n 71 Clip 12; “Reflections on Sex Equality under Law” (1991) 100 (5) YaleLaw Journal 1281; Regina Graycar and Jenny Morgan’s discussion of the 1986 Sears case: R. Graycar, and J.Morgan, The Hidden Gender ofLaw (Sydney: Federation Press, 1990) at 103.80See eg D. Wishard, “Out of the Closet and into the Courts: Homosexual Fathers and Child Custody” (1989) 93Dickinson Law Review 401; Bradley, supra n 52, at 196.81Such a claim is subject to dispute also: see R. Robson, Lesbian (Out)law: Survival under the Rule ofLaw (NewYork: Firebrand Books, 1992), Chp 2 and 3 for discussion of criminalisation of lesbianism in Anglo-Europeanhistory and in the USA to date.82For recent figures of custodial mothers and poverty see M. Bailey and N. Bala, “Canada: Abortion, Divorceand Poverty and Recognition of non-traditional Families” (1991) 32 Journal of Family Law 279; MacDonaldsupra n 30.83Current research suggests that lesbians are far more likely to experience violence from male ex-partners andfamily members than from a stranger: Fajer, supra n 49, 629. Two English commentators have noted the highlevels of violence and animosity in family law matters due to the father’s reactions to the mother’s lesbianism: M.Steel, Lesbian Mothers, Custody Disputes and Court Welfare Reports (Norwich: Social Work Monographs, No94, 1990) at 36; A. Bradney, “Children Need Fathers?” (1986) 16 Family Law 351. For a discussion ofAustralian and Canadian cases where lesbian mothers were subjected to violence see Millbanlc, supra a 11, at 36-38.32annihilates lesbians by presuming that a maternal preference exists and advantages lesbiansdespite all evidence to the contrary.84This approach reflects a profoundly phallocentric bias, which is particularly evident in some ofthe ‘father’s rights’ discourse used. For instance, ‘The process of challenging history is adifficult one, yet every time a father gains custody of his child, he has successfully challengedthe century-old preference for awarding custody to the mother’ •85 Wishard’s analysis reliesupon an assertion of right based upon biological paternity rather than any caregiving whenasserting paternal right over the child: a father simply IS, whereas a mother DOES,86 and yet84There is a great weight of opinion that the majority of custodial parents are women due to consensualagreements between parents rather than ‘maternal preference’ see R. Graycar “Equal Rights Versus FathersRights: The Child Custody Debate in Australia” in Smart and Sevenhuijsen, 1989; Boyd, 1991 supra n 76.Notably, lesbians were frequently disbarred from the ambit of the preference while it was briefly in existence, dueto their ‘unfitness’ see Robson, supra n 81, at 130; Graycar and Morgan, supra n 79, at 251.85Wishard, supra n 85, at 407. This sounds alarmingly similar to the rhetoric employed by antifeminist “men’srights” groups such as “Families need fathers” in the UK and “Fathers without rights” in Australia. See J. Brophy“Child Care and the Growth of Power: The Status of Mothers in Child Custody Disputes” in Smart and Brophy,1985, Graycar, supra n 84, at 158; and Section II of S. Crean, In the Name of the Fathers: The Stoiy BehindChild Custody (Toronto: Amanita, 1988), for greater discussion of the agenda and rhetoric of such groups in theUK, Australia and Canada respectively. Interestingly, the anacronym for one of the major Canadian Groups,FACTS, highlights the masculinist claim to objectivity, while the full name (Fathers and Children, Their Society)is unabashed about placing fathers as the central social subject, with children a proprietorial add-on.860r, in Carol Smart’s recent formulation, mothers care for whereas fathers care about - and caring about isvalued equally or more than caring for: see C. Smart, “The Legal and Moral Ordering of Child Custody” (1991)18(4) Journal ofLaw and Society 485.33both should be treated equally.87This position is antithetical to feminist discourse and mother-centred interests.88Australian commentator Margaret Bateman uses gender neutral discourse throughout her work,but differentiates on the basis of gender when discussing a case where a gay father was alsoHIV positive.89 Bateman posits that the father’s HIV status and his homosexuality were acombined burden which caused him to be unjustly denied access to the child. Interestingly,Bateman does not note a number of factors which distinguish the case from the somewhatmore ‘successful’ lesbian cases she examined prior to it: notably that the father had ceased toexercise consensually arranged access for some time and was now seeking to reinstate it, andthat the child did not even remember his father. Of further interest is the fact that in contrast tothe lesbian cases, where Bateman referred to “the child” or the children and “their mother”, inthis case she refers to the judge denying access to “his child” (as does Wishard in hisdiscussion of fathers in the USA) - thus using language expressive of paternal right.II: Feminist theoretical accounts‘If feminist legal theory is derived from a feminist method uniformed by critical lesbianexperience, the theory will be incomplete. Lesbian experience is essential to the formation of871n an article on fatherhood in The New York Times June 19 1994 one fathers’ advocate claimed that fatherswere ‘oppressed’ as ‘just because we don’t change the diapers half of the time, we’re not treated as good fathersand equal parents’. This ‘paternal right’ position is also reflected in cases where gay sperm donors assert claimsover children born to a lesbian mother or couple. For example, Arthur Leonard in commenting upon the US caseThomas S v Robin Y stated “The biological father of a child is normally entitled to assert parental rights unlessshown to be unfit” and claimed that the denial of parental rights to a gay sperm donor who had limited contactwith the child in question “might be seen as analogous to recent appellate decisions denying the standing oflesbian co-parents to seek visitation rights with children they helped raise but to whom they were not legallyrelated’: Leonard, supra n 57.88See generally the collection of articles in Smart and Sevenhuijsen supra n 5.89See Bateman, supra n 56, at 54. The case is reported at (1989) FLC 92-043.34feminist theory because it stands in opposition to the institution of heterosexuality, which is acore element ofmale-centred reality.’Patricia CainThis section discusses both legal and non-legal feminist theoretical work on motherhood and isdivided into those which exclude lesbians and those which include but may still marginaliselesbians.In marked contrast to lesbianandgay legal writing which is very much structured aroundcommentaries of litigation and reported judgments, very few feminist legal theorists discussany case law, or if they do it is usually only one or two cases at a time.Some feminist work on motherhood fails to address lesbians at all, even in passing. Otherwork notes lesbians only as a passing footnote, often as an exception to a more general rule.These approaches will be discussed together as the invisible and not quite invisible approaches- as they marginalise lesbians by either complete exclusion or an implied exclusion. Impliedexclusion occurs where lesbian mothers are noted in such a way as to suggest that they havelittle or nothing in common with other/real/most mothers.Specific attention to lesbian motherhood by feminist writers tends to fall into the categorisationof lesbians as ‘non-ideal’ or ‘different’ mothers within motherhood ideology. Lesbians arenoted as a challenge to traditional ideologies of motherhood - often along with other ‘nonideal’ or marginal groups such as working mothers and Black mothers - but are not integratedinto an analysis of how exactly lesbian mothers challenge these ideals, and what commonalitiesthey have with other ‘different’ mothers. When lesbian mothers are noted as presenting anyone issue, it is most frequently framed in terms of a challenge to the ideological prescript ofasexual motherhood. In this area there is often more of an attempt to integrate issues of lesbian35sexuality into a continuum of analysis including heterosexual mothers and to make a ‘point’about motherhood generally. However, in doing this, the specificity of lesbian experience cansometimes be overlooked by writers who are eager to find similarity.In this way I will critique feminist approaches in the following section on motherhoodideology both for failing to connect lesbians to analysis of motherhood and also, paradoxically,for connecting lesbians to the fringes of work on motherhood with a haste which deniesexamination of difference.I will then note a small number of feminist, primarily lesbian feminist writers who havefocused upon lesbian mothers in such a way as to centre lesbians without severing them froman analysis of motherhood ideology. Such an approach forms the basis for my own work,which utilises mother archetypes to examine family law cases concerning lesbian mother in anattempt to find thematic links between what constitutes a ‘bad mother’ in law and culture.(i) ExclusionInvisible lesbiansMuch feminist work on motherhood and families or family law overlooks lesbians altogether.In a recent edition of a collection of feminist writing on motherhood ideology, Ann Phoenixand Anne Woollett preface the book with the statement, ‘Analysis of the situations in whichmotherhood is not considered appropriate throws light on ideas which, because they are seenas normal and natural, are rarely articulated.’ 90 They then go on to introduce chapters on90A. Phoenix, A. Wollett, E. and Lloyd, (eds) Motherhood: Meanings, Practices and Ideologies (London: Sage,1991) at 6.36young mothers, old mothers, working mothers and infertile mothers - all implicitlyheterosexual.9’Likewise, a collection of works on motherhood ideologies and practices editedby Arnup, Levesque and Pearson contained no indexation of ‘lesbian’ and only a passingmention to non-recognition of lesbian couples seeking access to sperm in a chapter onreproductive technologies.92In feminist cultural studies texts, often largely concerned with representations of motherhoodand fatherhood, there has also been a resounding silence. Anne Friedberg does not indexlesbians or mention them anywhere in the text of her book on cinema93 nor does ElizabethTraube’s work on gender and identity94 or Constance Penley’s on film and feminism.95 Thisomission is particularly glaring in Traube’s discussion of ‘Family in conservative politics’,where lesbianism has arguably always been targeted as a terrible evil causing or arising fromactivities such as feminism and abortion.9691Fleeting references are made in opening and closing chapters to ‘different mothers’, such as black mothers andlesbians - a genuflection which reinforces rather than alters the sense that the substantive chapters are about whiteheterosexuals. These references will be discussed later in this chapter.92K. Arnup, A. Levesque, and R. Roach Pearson, (eds) Delivering Motherhood: Maternal Ideologies andPractices in the 19th and 20th Centuries (London: Routledge, 1990), see p 299.93A. Friedberg, Window Shopping: Cinema and the Postmodern (Berkeley: University of California Press, 1993).94E. Traube, Dreaming Identities: Class, Gender and Generation in 1980’s Hollywood Movies (Colorado:Westview Press, 1992). Moreover, Traube’s work contains nine indexed references to ‘homosexual’ or‘homophobia’ - all of which refer exclusively to men.95C. Penley, The Future of an Illusion: Film, Feminism and Psychoanalysis (Minneapolis: University ofMinnesota Press, 1989). Penley’s work contained one indexed reference to ‘homosexuality’, which referredexclusively to men.96See Costello, supra n 50, esp. at 130.37In the legal arena, Kristine Roszack’ s article on ‘single motherhood by choice’ proceedswithout ever mentioning lesbians97 as does Alison Diduck in ‘Legislating ideologies ofmotherhood’ 98 In her book on feminist jurisprudence, Ngaire Naffine gives no indexation for‘lesbian’ and consideration of lesbian mothers is entirely absent from a section of the chapter“Keeping Women in their place” entitled “Enshrining motherhood”.99 Carol Smart, in herbook of feminist jurisprudence, does refer to lesbians twice, but not in the context ofmotherhood and family law issues)°° Such silences reflects dominant cultural attitudes thatlesbians do not exist, or when they do exist, do not do so as mothers.Not quite invisibleThere are numerous instances where lesbians are not completely overlooked, but neither arethey discussed in a detailed or intricate way, or integrated into the main body of analysis. Incultural studies texts on gender, Tania Modleski makes only a single passing reference tolesbians,101 as does Janet Thurmin)°2 It is also interesting to note context, as in Thurmin’ sbook the sole reference to lesbians is placed not in ‘Love and marriage’ or ‘Sexuality’, whichare thus characterised as implicitly heterosexual, but in a section on ‘The Women’smovement’. Likewise, in E. Ann Kaplan’s book on motherhood and representation, lesbian97K. Roszack, “Mother Knows Best: a Constitutional Perspective on Single Motherhood by Choice” (1984)Southern Illinios University Law Journal 329.98A. Diduck, “Legislating Ideologies of Motherhood” (1993) 2 (4) Social and Legal Studies 461.99Naffine, supra n 71.1000nce as a contrast to phallic sexuality and once to highlight that “different” women such as lesbians and blackwomen might not find consciousness raising a helpful framework: Smart, supra n 29, at 28, 75.argue against a notion of heterosexual privilege and suggest that lesbians have greater freedom from maleoppression than do straight women, although added peril. T. Modleski, Feminism Without Women: Culture andCriticism in a ‘Postfeminist’Age (New York: Routledge, 1991) at 13.102J Thurmin, Celluloid Sisters (London: Macmillan, 1992).38mothers are a two paragraph addition at the very end of her work, with no integration of herearlier points. A certain lack of attention to lesbian issues and the continuing experience ofhomophobia is also indicated by the opening remark that feminism in the 1970s ‘legitimizedlesbianism’ 103Feminist legal writing on motherhood frequently does acknowledge that lesbians were notadvantaged under the maternal preference doctrine, which excluded lesbians (and other‘sexual’ women) under the ‘unfitness’ exception.104 This is usually made as a general pointabout ‘sexual mothers’, including adulterous heterosexual mothers - a point which will betaken up in the following section.Occasionally lesbian mothers are referred to in feminist legal work under the ambit of ‘nontraditional families’ or ‘unorthodox households’; meaning lesbian and gay and/or unmarriedcouples.’°5Ruthann Robson argues that lesbians are categorised as ‘lesbians and their men’ byfeminist writers and thus theorised as not-women . She remarks,‘Astonishing in a discipline that dissects gender in every other aspect of life is theabsence of a gendered perspective regarding sexual orientation.’106103 Kaplan, supra n 40, 193. Also this section contains errors of fact, as she claims that the issue of thelesbian mother’ has been avoided by cinema and names two films - one of which portrays a lesbian mother.104See eg Graycar and Morgan, supra n 79, at 251; Sack, supra n 7, at 321; Graycar in Smart and Sevenhuijsen,supra n 84, at 164. Although some feminist legal theorists do not mention lesbians in this context: see Naffine,supra n 71, Sandberg in Smart and Sevenhuijsen, supra n 5.1055ee Deborah Rhode’s work cited by R. Robson, “Gender and other Disadvantages” (1991) 18(3) Florida StateUniversity Law Review 883, at 893; Bailey and Bala, supra n 82, at 287; K. O’Donovan, Family Law Matters(London, Pluto, 1993), at 87.106Robson, supra n 81, at 22.39Cultural studies writers have followed this path also, for example referring to the need for‘gay/lesbian discourses on In this way, lesbians are severed effectively frommotherhood and placed in the ungendered basket of ‘different families.’ This could be due toan uncritical reflection of lesbianandgay work which de-genders the ‘homosexual parent.O5 Ifso, it suggests a dutiful copy book approach rather than serious theoretical consideration oflesbian issues. Moreover, uncritical acceptance of lesbianandgay discourse, because of themasculinist claims inherent in some of it,109 can lead to the paradoxical outcome that feministwriters end up championing a male position.h10 For example, Katherine O’Donovan ironicallyreflects the masculinist gay dad ‘double oppressio& position of Darryl Wishard discussedearlier, when she writes,‘Law has not criminalised lesbian sexual activity as such; nor has the lesbianemerged as a stigmatised identity in a manner similar to the male homosexual.”O’Donovan’s use of terms such as ‘the lesbian’ and ‘the male homosexual’ also suggest aunitary identity in a manner unsettlingly similar to mainstream legal work and mass culture,which regard lesbians as an homogenous class.”2‘07See eg Kaplan, supra n 40, at xiii.‘08See ‘Homosexual parent’ section, earlier in this chapter. For an early example of this see C. Boyle, “Custody,Adoption and the Homosexual Parent” (1976) 23 Reports ofFamily Law 129.OO5 ‘Disadvantaged Dads’ section, earlier in this chapter.0In cultural studies this is also notable, for example where feminist writers focus upon exclusively male issuesin discussions on homosexuality. See Traube, supra n 94 and Penley, supra n 95.mO’Doflovan, supra n 105, at 84.112Sec Chapters 2 and 4 for detailed analysis of such homogemsation.40(ii) Inclusion: Ideologies ofmotherhood and the bad mother bundleFeminist work on ideologies of motherhood frequently notes lesbian mothers as one group ofmothers who are placed as ‘different’ and disadvantaged by the ideals which dominantideologies of motherhood propagate. Ironically, feminist work on such dominant ideologiescan actually serve to reinforce them, by marginalising the ‘different mothers’ in the samemanner. This can be effected, for example, by placing the dominant ideology constantly at thecentre of discussion as something which ‘affects us all’, and then discussing those who aremost marginalised by it in the margins (footnotes) of the work. For example, E. Ann Kaplanwrites in the introduction to her work on ideologies of motherhood in film,.1 decided deliberately to limit this study to what I call the ‘Master’Motherhood Discourse as it has worked to position white, middle class women assubjects in specific ways... Understanding this prevalent or ‘dominant’ discourseis crucial even for groups that the dominant marginalize (eg. Black, Jewish,Hispanic and other American ethnic groups, the various working classes, the poorand the homeless, the non-traditional family where the stepmother, the adoptivemother, or surrogate may be central; or where homosexual couples are raisingchildren and so on.) A study could be made of mother images in the subcultures ofeach of these groups. . .but such a study could benefit from knowledge of how thedominant paradigm, oppressive for the minority group, came into being, how itsvery presence constructs (as part of its ideology) other groups as‘marginalized. “113This is all well and good and very true, until one asks who is speaking to whom and on whosebehalf? Within this paradigm, the dominant speaks to the margins, but the margins speak onlyto themselves (‘subcultures’), thereby actually reflecting by its ‘top down’ approach, thedominance it seeks to critique.”4It also means that the specificity of the viewpoint of those at113Kaplan, supra n 40, at 8-9.114Judith Butler argues in her elegant but wordy fashion, ‘The theories of feminist identity that elaboratepredicates of color, sexuality, ethnicity, class and able-bodiedness invariably close with an embarrassed ‘etc. atthe end of the list. Through this horizontal trajectory of adjectives, these positions strive to encompass a situated41the margins remains absent from the critique of dominance - surely a wasted resource. In herwork on motherhood ideology, Susan Boyd writes,‘For those of us whose experience seems further away from the [dominant]ideology it may, then, be easier to develop discourses which counter thatideology. ‘115This suggests a ‘bottom up’ approach to examining motherhood ideology, beginning from themargins and moving inwards, a point which will be explored towards the end of this chapter.There are numerous other problems with a focus upon dominant ideologies and utilising acatch-all of ‘different’ families which exists in much feminist work on motherhood. Such anapproach offers little or no analysis of how these ‘differences’ impact, either upon those withinmarginal groups themselves or upon dominant ideologies of motherhood.116Commonalities between those in the margins are continually assumed or implied as all those inthe margins are mentioned together, for example in comments that ‘lesbians, Black women,and adulterous women’ are further disadvantaged by motherhood ideology. Commonality canalso be implied by contextualisation, for example, by placing cases or analysis of lesbianmothers and adulterous or working mothers side by side in a text book section regardingmothers’ conduct and child custody determinations. Such suggestions of commonality, whethersubject, but invariably fail to be complete. This failure, however, is instructive: what political impetus is to bederived from the exasperated ‘etc. that so often occurs at the end of such lines? This is a sign of exhaustion aswell as the illimitable process of signification itself. It is the supplement, the excess that necessarily accompaniesany effort to posit identity once and for all.’ See J. Butler, Gender Trouble: Feminism and the Subversion ofidentity (London: Routledge, 1990) at 143.“5Boyd 1991, supra n 72 at 95.6See eg Phoenix and Wollett, supra n 90, at 22, 227.42they be express or implicit are rarely explored, and it is this issue which I will discuss in somedetail in this section.Lesbians and, and and.... The ‘top down’ bedfellowsLesbian mothers may be mentioned along with black mothers - as in ‘lesbians and blackwomen’117 but there is often no examination of exactly what lesbians and black women wouldhave as commonalities or the ways in which they challenge the ‘norm’. Likewise lesbians canbe linked with working mothers, in the sense that both groups traverse traditional expectationsof motherhood, and may be characterised by the judiciary as selfish.118 The specificity oflesbian experience can be lost here, for instance the ways in which lesbian mothers areconstrued as fundamentally sexual creatures (with concomitant punishments, such as a partnerbeing barred from the house or from the children’s presence by judges). This is not to suggestthat no similarities exist, merely that they need further exploration.”9Lesbians may also be grouped with ‘single mothers’ as a challenge to the ‘norm’ - with theassumed commonality that the children will be fatherless.12°Yet lesbian mothers in thissituation may be perceived quite differently. Single (heterosexual) mothers and lesbian motherspose a quite different threat to the traditional ideal of father-as-head-of-the-family, not least ofall because single heterosexual mothers may later partner with a man, or be presumed to be1175ee eg Smart, supra n 29, at 75.1185ee eg Boyd in Smart and Sevenhuijsen, supra n 5, Graycar and Morgan, supra n 79, Chp 10.119Jj1 fact, Carrie Costello argues that there are many parallels between the perception and treatment of lesbiansand gays and African Americans in the USA in a lengthy article, to be discussed later in this chapter.12O5 eg J. Zipper “What Else is New? Reproductive Technologies and Custody Politics in Smart andSevenhuijsen, 1989, 243 at 255.43willing to do so. Moreover, heterosexual re-partnering may be seen as ‘rebuilding thefamily’ ,121 whereas a lesbian partnership is construed as anti-family.’22Lesbian mothers are often categorised as mothers who are ‘bad’ because of a specificallysexual transgression, and are discussed or contextualised along with ‘adulterous’, or‘promiscuous’ mothers.’23 Although recognising commonalities in challenges to ideologies ofmothers as asexual and (paradoxically) engaged in the monogamous nurturance/sexual serviceof fathers, these threads, as in the earlier groupings, are generally unexplored in any depth.Equating lesbian and (heterosexual) adulterous mothers in a theoretical stance also poses anumber of problems, as the specificity of lesbian experience and archetypes of lesbians areoverlooked. Within this structure, lesbians are theorised as an absence of conformity; they,like adulterous wives, are outside the bounds of monogamous marriage. But while anadulterous wife may have been a ‘bad’ wife to her husband, she may be a ‘better’ wife to thenext one; whereas a lesbian mother has embraced something entirely new - lesbianism. Shemay be perceived as a different ‘type’ of person now,’24 no longer capable of being good wife-and-mother material, or even no longer truly a woman at all. 125121See I. Thery, “The Interests of the Child and the Regulation of the Post-divorce Family’ in Smart andSevenhuijsen, 1989, 78.122See Costello, supra n 50, at 138.123See eg M.J Frug, (ed) Women and the Law (New York: Foundation Press, 1992), at 339; Fineman, supra n32, at 658.124Julia Brophy argues that ‘attitudes towards lesbians are determined by elements of fantasy and anxiety. Thusonce a mother is identified in terms of sexual preference that label becomes the central core of her identity..’.Brophy, supra n 34, at 489.125See Chapter 4 for a discussion of depictions of lesbians in medical discourse and in popular culture, most ofwhich incorporate the idea that lesbianism is a form of masculinity.44Lesbian sex is adulterous sex and more. Lesbian sex is sex but not sex,126 as lesbians areconstructed paradoxically as both all and un-sexual beings. 127 Lesbian sexuality is also closelyassociated with deviance and disease. For instance, as a matrimonial offence in Canada,lesbianism was originally omitted entirely and later categorised not as adultery but as a deviantact, along with bestiality.’28 In the context of rape law, Carol Smart has argued that thephallus is constructed as universally pleasurable and women who contest this account, or gainpleasure in ways outside of men’s understanding, render themselves irrational and arepathologised.129 Applying this argument to family law, lesbian mothers are rendered unstableand sick in a manner which does not apply to (heterosexual) adulterous mothers. 130In characterising lesbians solely as sexual beings or as non conforming in some way whichmatches with analysis of another group, the constellation of multiple dimensions of the lesbianthreat/lesbian archetype are overlooked. For example the commonly posed fear of judges thatthe children will grow up lesbian or gay, despite all evidence to the contrary, and frequentuses of military and Christian metaphors to describe lesbian lifestyles (“militant”,“proselytising”, “evangelical”) indicate a terror of female power to mould children, and thepossibility of a female-led rebellion against the rule of the father. In essence, lesbian mothers1265 Marilyn Frye, Lesbian ‘sex” in Jeffner Allen (ed) Lesbian Philosophies and Cultures (New York: StateUniversity of NY Press, 1990).127For elaborations on this strand of thought see eg: Fajer, supra n 49, at 514; Goldstein, supra n 38, at 302;Brophy, supra n 34, at 489. Also see my argument on this point in Chapter 5 ‘Not real sex section.128See Arnup, supra n 66, at 21.1295ee Smart, supra n 29, at 27, 28.1305ee Chapter 5, ‘Sexual, sick and troubled’ section.45raise and make real the spectre of male dispensability in child raising/family life’3’ in a waythat ‘working mothers’ and other ‘non-conforming’ or ‘unfeminine’ women simply do not.Lesbians as a central, detailed example, and by extension...Top-down analysis and hasty connections are not universally the case in feminist work onmotherhood ideology. Some feminist legal theorists have endeavoured to focus upon lesbianmothers in detail, and then to draw some of their insights back into a discussion of motherhoodideology.Katherine Arnup, while focussing primarily upon lesbians, rather than motherhood ideology,does not sever lesbian mothers from an analysis either of lesbians or of motherhood. Arnupplaces a discussion of a number of reported Canadian cases involving lesbian mothers withinan historical context of legal treatment of lesbians (in criminal law and in divorce law) andwithin the shifting terrain of family law’s treatment of mothers (paternal right to maternalpreference to child’s best interests).’32 Thus, Arnup lays important groundwork in connectinglesbian mothers to both discourses, as female ‘homosexual’ subjects and as mothers.Interestingly, towards the conclusion of her piece, Arnup argues that there is ‘a sharpdistinction. . .between women whose lesbianism presents no fundamental challenge to thesystem’ and those whose lesbianism ‘represents a fundamental and ongoing challenge to thestructures of heterosexuality and the nuclear family’ .33 She predicts that family law cases131Such fears are exhibited by far-right and fathers’ rights discourse which frequently exhort not only thatchildren need fathers, but that families (ie wives and children) need them. The name of the UK father’s rightsgroup ‘Families Need Fathers’ crystallises this fear beautifully.‘32Arnup, supra n 66.133Ibidat l, 32.46involving lesbian mothers will increasingly focus upon the mother’s political views andactivities rather than sexual orientation. I believe that such compartmentalisation, whilecertainly a reflection of the way many lesbians see themselves (for example as just ‘normalmothers’ or ‘non political’), and an attempt to provide a nuanced, non-monolithic account oflesbian mothers, disallows the possibility that to the outsider we are all ‘tarred by the samebrush’ to some extent and seen to threaten both the hetero-nuclear family form and the healthydevelopment of children. However compliantly lesbian mothers may be able to socialisechildren to serve the needs of ‘patriarchal capitalism’, they have created an alternative to thehetero-nuclear family and rigid gender roles by their very existence, whether or not they puton a good show of femininity for the courts.Julia Brophy is one of few theorists to integrate an analysis of lesbian sexuality in family lawdisputes into a discussion of sexuality in motherhood ideology.’34Brophy is remarkable in thatshe begins with lesbians as a paradigmatic example of active female sexuality, not anexception, and thereby uses the margins to illuminate that which is dominant. While notingthat some issues facing lesbians are lesbian-specific, Brophy argues that the treatment oflesbian mothers has ‘clear implications for all mothers involved in disputes over the custody ofchildren’ because they ‘exemplify the way in which motherhood is perceived as an asexualrole’ ‘ In her work, Julia Brophy argues that judicial scrutiny and punishment of anytransgressive female sexuality has enforced an ideal of motherhood by using the welfareprinciple in such a way as to simultaneously effect and obscure this end.134Brophy in Smart and Brophy, supra n 85.135bid, at 99.47Brophy also touches upon familial ideology, noting early English cases which stated that a‘good mother’ must also be a ‘good wife”36 and arguing that while such remarks may havedisappeared from written judgments, the attitude that good mothering must take place within atraditional family form, has not.Susan Boyd, and Didi Herman and Davina Cooper have all engaged in work about familialideology which has centred lesbians, and used lesbian experience as paradigmatic. Susan Boydhas utilised an English Court of Appeal case regarding a lesbian mother as a focus from whichto discuss both familial ideology (what makes a normal family normal?) as well as the role ofideology in law.’37More recently, Susan Boyd and Katherine Arnup have focussed upon a US case in whichlesbian mothers and a gay sperm donor were in contest over access and paternal rights.’38 Thiscontest provided a framework from which to discuss strategic issues for lesbian and gays inclaims of ‘family’ (including what exactly provides an ‘alternative’, two mothers in a homonuclear family, or a gay father-by-virtue-of biology) in addition to questions of paternal rightand caregiving in familial ideology more generally. Lesbian experience in such work is thus acase in point which can be used to illuminate wider discourses, proving that it is possible tocentre lesbian concerns without severing them from others.36lbid, at 102.37Boyd, supra n 51.l38. Boyd and K. Arnup, Familial Disputes? Sperm Donors, Lesbian Mothers and Legal Parenthood”forthcoming in D. Herman and C. Strychin Legal Inversions (Temple University Press).48Herman and Cooper discuss familial ideology in terms of social and political action in the UKwith a conservative government ‘legislating heterosexuality’ within a five year period.’39 Theyfocus upon three areas, lesbian access to insemination services, lesbian and gay access tofostering children, and a ban restricting local councils from producing materials positive tolesbian and gay ‘pretended family life’. Herman and Cooper examine both the genesis andeffects of the legislation in question, contextualising it in terms of media and political reportswhich frame a discussion of conservative and liberal ideologies of the family.Familial ideology is also a focus of an article by Carrie Costello. 140 Costello is unique (as faras my reading reveals) in that she engages in a detailed examination and comparison of raceand sexual orientation in the construction of family. Costello uses both historical andcontemporary parallels between legal and social attacks upon lesbians and gays and AfricanAmericans to argue that maintenance of a particular family form is integral to culturaldominance in the USA. For example, she notes that both black people and lesbians and gayshave been defined as sexually debased, and are thus sexually suspect (black men as rapists ofwhite women, gays and lesbians as child abusers) - allowing justification for a denial of rights,violence and denigration of family forms.’4’What links all of the above works is the way in which not only are lesbians centred in thediscussion, but the experience and perspective of lesbians is regarded as relevant to other,broader theoretical concerns. Lesbians are not assumed to be of relevance only to lesbians.Nor is lesbian experience generalised without explanation or exploration.139D. Herman, and D. Cooper, ‘Getting ‘The Family Right’: Legislating Heterosexuality in Britain, 1986-1991(199 1) 10 (1) Canadian Journal ofFamily Law 31.140Costello, supra n 50.141bid at 85, 134-5.49This chapter has aimed to illustrate how lesbians as mothers are marginalised from bothlesbianandgay and feminist discourses on family law. Lesbianandgay approaches often tend tolose sight of gender considerations and overlook feminist insights. Feminist approaches haveoften lost sight of sexuality, overlooking lesbian experience or severing it from an analysis ofmotherhood ideology. Questions such as in what ways and for what reasons lesbian, workingand adulterous mothers are constructed by law and society as being bad-mother or un-motherare generally left unasked and unanswered.This is not to say that theories and experiences of each group cannot speak to each other, orthat all of the issues are separate and severable. Rather, my critique of feminist theories in thisarea rests upon the argument that the genuineness of commonalities cannot be built upon untildifferences are recognised and explored fully. The work of exploring difference and buildingupon commonalities by focusing upon those at the margins has begun, and is detailed in thefinal portion of this chapter. This thesis aims to build upon that work within such a ‘bottomup’ framework. This thesis aims to centre the experience of lesbian mothers in family law andexamine it in detail in an attempt to illuminate the boundaries of motherhood ideology.50CHAPTER 2: Not seeing is disbelievingThe previous chapter discussed the theoretical placement and treatment of lesbian mothers intwo strands of legal literature, feminist and lesbianandgay. These strands of thought are,however, comparatively recent in legal theory,142 and it is fair to say that despite theirproliferation, they are still regarded as marginal by the mainstream legal establishment - ofwhich the judiciary is the pinnacle. By way of example, of the hundreds of legal and non-legal(eg psychiatric/sociological)143materials available on lesbian and gay parenting, there are onlysix cases (which cite a total of five articles) in the pool of more than 80 cases underinvestigation where a judge cited such material.’44This chapter will examine the representation of lesbian mothers in mainstream or ‘traditional’legal materials, a portrayal which is marked either by complete absence or ‘otherness’;emphasising a sense of lesbian mothers as non-existent or great oddities. Case law reflects thisconfiguration, as judgments affirm either explicitly or implicitly the rarity and aberrance of142Regina Graycar and Jenny Morgan note that the topic ‘Feminist jurisprudence’ was not added to the Index tolegal periodicals list of subject headings until 1988: Graycar and Morgan, supra, 2. Likewise most gayandlesbianliterature has arisen in the 1980’s - for example Sexual Orientation and the Law, a US looseleaf publication editedby Roberta Achtenberg, had its genesis in 1985.143See eg F. Tasker and S. Glomobok, “Children Raised by Lesbian Mothers: the Empirical Evidence” [1991]May Family Law 183; F. Bozett (ed) Gay and Lesbian Parents (New York: Praeger, 1987); J. Schulenburg GayParenting (New York: Doubleday, 1985).144Aust: L and L, 1983, Baker J cites Richard Green’s 1978 article regarding the sexual orientation of children ofhomosexuals published in a psychiatry journal, and a 1982 journalistic article on homosexual parents published ina psychology magazine (although not in the pooi of cases under consideration, it should also be noted that theAustralian gay father case, Doyle, 1993 cited a 1988 US legal article by Robert Beargie); USA: Blew v Verta,1992, Beck, J cites Nancy Polikoff’s 1990 legal article “This Child does have Two Mothers” in addition tofootnoting a range of psychological literature affirming that lesbians and gay men have ‘normal’ children, D.H vJ.H, 1981, cites a 1979 article by R. Rivera, ‘The legal position of homosexuals’, in the case of Black, 1988Crawford, J cites Dailey, 1981, citing SvS, 1980, which cites a 1980 article from the Journal of the NationalAssociation of Social Workers entitled ‘Children of Lesbians: their Point of View.’ It should further be noted thatthree of these five cases cite the same article as proof that the children of lesbians are ostracised, therebyjustifying a decision against custody for the mother: USA: Black, 1988 , Dailey, 1981, SvS, 1980. Of the fourAmerican cases, only Blew decided in the mother’s favour, and this was only with regards to access.51lesbian motherhood. This is illustrated explicitly by cases which state that lesbianism is veryunusual/abnormal, in addition to those cases where it is implicit, such as where judges expressa great reluctance to believe that the mother in question actually is a lesbian.Once the hegemonic notion of lesbianism as a great rarity in legal circles is established, I willthen note a number of cases where judges nonetheless feel able to draw upon ‘common sense’knowledge about lesbians and lesbian relationships (eg as unstable or consumed by role plays)in coming to their decisions. By illustrating this paradox - lesbians are terribly rare and yettheir traits are common knowledge - I hope to establish the utility, indeed, the requirement ofstudying popular culture to understand the ways in which lesbian mothers are ‘seen’ in familylaw matters.I: Standard legal materials: Matters most queerStandard legal materials encompass textbooks, casebooks and commentaries published bycompanies such as CCH, the Law Book Co and Butterworths, for use by students andpractitioners in the field of family law, in addition to publicly available law reform papers onthe topic of child custody. To enable the profession to do itself most credit, and because mostpublished cases have been available for approximately the past 15 years, I have selected onlytexts published in the past decade. There is a considerable range of treatment of lesbians andlesbian mothers, the one common thread being that gender is never regarded as a variable. Inthis way, standard legal materials are similar to lesbianandgay theoretical accounts in that theun-sexed ‘homosexual parent’ is the subject of inquiry.’45145See eg: USA: H. Clark, The Law of Domestic Relations in the United States 2nd ed. Vol 2 (St Paul: WestPublishing Co, 1987); Australia: N. Katter, Conduct, Fault and Family Law (Sydney: Law Book Co, 1987);Canada: J. MeLeod, Child Custody Law and Practice (Ontario: Carswell, 1992).52OmissionSome texts simply omit any reference to lesbian mothers at all, in the body, footnotes orindexation of the work. In more recent years, this approach appears to have been mostcommonly the province of works from the United Kingdom.’46 A startling recent example is atext entitled Families Outside Marriage, which contains no indexation of lesbians (or gay men)and proceeds in the text with the unshakeable assumption that all of the ‘unmarried partners’are of necessity heterosexual. 147 The relative scarcity of reported cases regarding lesbianmothers in the UK may go some way towards explaining this tendency to completely overlookthem; there are, however, detailed commentaries of unreported and reported English casesavailable.’48Some English texts have one case or footnote a case which involves a lesbian mother by wayof discussing something else, such as choosing between ‘undesirable’ parents, or the benefitsof court ordered supervision when a parent is of dubious character.’49 In this way theyperpetuate implicit assumptions about lesbian mothers (they are bad and undesirable custodiansof children) while not actually commenting upon the situation of lesbian mothers or case lawin relation to lesbian mothers.146For example, J. Priest and J. Whybrow, Custody Law and Practice in the Divorce and Domestic Courts(London: The Law Commission, 1986) contains no mention of lesbian mothers at all, nor does P. Reekie and R.Tuddenham, Family Law and Practice (London: Sweet and Maxwell, 1988).147J Priest, Families Outside Marriage (Bristol: Family Law, 1990).148See eg Bradley, supra n 52; Rights of Women, Lesbian Mother’s Legal Handbook (London: Women’s Press,1986).149See eg J. Dewer, Law and the Family (London: Butterworths, 1989) at 26; S. Cretney, Principles of FamilyLaw 4th ed. (London: Sweet and Maxwell, 1984) at 331; P. Bromley and N. Lowe, Family Law 7th ed (London:Butterworths, 1987) at 317, 323.53No commentNumerous materials mention ‘sexual orientation’ or ‘homosexuality’ of a parent as a factorthat must be taken into account and may weigh against a parent, perhaps noting a single case,but offer no discussion or analysis. This ‘dutiful footnote’ approach appears to be one of themost common.150 Likewise, perhaps reflecting the ‘objective commentary’ style of standardlegal materials, other works simply list available reported cases in the jurisdiction in question,or extract a single case with no analysis surrounding it. The implications of such a style aretwofold. If the case or cases at hand contain pathologising or derogatory characterisations oflesbian mothers, or suggest that lesbians as a whole are to be viewed as dangerous to children,the lack of comment to the contrary effectively implies that such mothers deserve what theyget. If the case or cases are positive to the lesbian mother, or relatively unproblematic in theircharacterisation of lesbian motherhood (at least in extracted form) an implication then arisesthat all is well and lesbian mothers no longer face any problems in the family law system.Where comment exists it is often brief, and may be either a simple statement that the parent’ssexuality continues to influence decision makers, or to the contrary that such an approach hasdeclined in recent years. 151 For example, a Canadian text by Kronby in 1986 contains but one150See eg Canada: B. Hovius, Family Law: Cases, Notes and Materials 3rd ed. (Toronto: Carswell, 1992);Department of Justice, Canada Custody and Access: Public Discussion Paper (Ottawa: Dept of Justice, 1993) at20, 58; UK: S. Maidment, Child Custody and Divorce (London: Croom Helm, 1984) at 185; Australia: A.Dickey, Family Law 2nd ed (Sydney: Law Book Co, 1990) at 364.151See eg Canada: McLeod, supra n 145; N. Bala and S. Mikias, Rethinking Decisions about Children: is the‘Best Interest of the Child’ Approach Really in the Best Interests of Children (Toronto: Policy Research Centre onChildren, Youth and Families, 1993) at 28; CCH Canadian Family Law Guide Vol 1 (Ontario: CCH, 1991);Australia: H. Finlay and R. Bailey-Harris, Family Law in Australia 4th ed. (Sydney: Butterworths, 1989) at 231;F. Bates, An Introduction to Family Law (Sydney: Law Book Co, 1987) at 242; Katter, supra n 145, at 97.54throwaway reference to lesbians, under the heading “Effects of Adultery” where he claimswithout substantiation that,‘The courts no longer assume that an unfaithful wife is an unfit mother. For thatmatter, homosexuality, as such, is not a reason to refuse custody.’152A small number of commentators take a liberal position that discrimination does exist and isunjust, usually adding that a ‘nexus approach’ should be followed. This stance mirrors, butdoes not refer to, the work of lesbianandgay theorists discussed in Chapter 1.153Lesbianism as fault orflawThe most pervasive sense of lesbianism as aberrant or dangerous is created by context ratherthan comment in standard legal works. The placement of the cases is instructive; they arevirtually always in or directly following a section on ‘martial misconduct’, such as adulteryand, more alarmingly, abusive/aberrant ‘conduct’ such as alcoholism, violence and childabuse. 154 Lesbianism may also be discussed either with or in direct proximity to, transexualityor mental illness.155Anthony Dickey provides a useful illustration of this phenomenon, where he claims that thecourts no longer make ‘presumptions’ about parental fitness, listing examples, ‘a person who152M. Kronby, Canadian Family Law 4th ed. (Toronto: Stoddard, 1986) at 58.153See eg USA: Clark, supra n 151, at 505; NZ: M. Henaghan, and B. Atkm, Family Law Policy in NewZealand (Auckland: Oxford University Press, 1992).154See eg Canada: Bala and Mikias, supra n 151, Martial misconduct and homosexuality, at 28.155See eg UK: ODonovan, supra n 105, at 84; Australia: Finlay and Bailey-Harris, supra n 151, at 231; Katter,supra n 145, heading Homosexuality and transexuality, at 19.55is mentally ill, or is a male or female homosexual or is a transexual’ •156 Later in the samework within the section “Misconduct by a party” Dickey writes,‘In considering the relevance of sexual immorality, and also sexual and socialdeviance, to guardianship and custody proceedings, courts attempt to betolerant.... ‘157These are the only indexed references to homosexual parents in his weighty book, and they arethen directly followed by a discussion of child abduction and child sexual abuse.Another example of contextualisation is in Bates’ 1987 text, where he twice refers at somelength to the little known Australian case of Kitchener, 1977, a case only reported in thatcountry in summary. The case involved a mother whose lesbian partner was violent, and isdiscussed by Bates both in the custody section and also in a section of the book on violence,where it is preceded by the statement, ‘It should not be forgotten that problems which attach torelationships and custody disputes generally, are not absent from homosexual relationships’ •158Considering the proportion of cases involving lesbian mothers where the mother was subjectedto violence at the hands of the father, it is interesting that it is the element of intra-lesbianviolence that Bates should choose to emphasise.’59Cases involving a lesbian mother do not appear in the texts as examples of child supportissues, or of the difficulties of negotiating access when the custodial and non-custodial parent’s156Dickey, supra n 150, at 353.157bid at 364.158Bates, supra n 151, at 264.159For a discussion of violence against lesbian mothers and the way it is recorded in cases, see Milibank, supra n11.56lifestyles are widely different, or as examples of the likelihood of women being subjected toviolence when leaving a male partner, or as examples of anything else at all really. In a fewinstances, lesbians appear in family law texts in the section of the text on ‘opposite sex’requirements for marriage. In these cases, lesbian appear as cross dressers who are notpermitted to marry as a matter of statutory construction.’6°Such a characterisation againemphasises freakishness, in the sense that there is no explanation for the women’s behaviour(such as the difficulty of women obtaining employment historically, or of living together astwo women in a rural area). Lesbians are just there in the text, presented au natural (caseonly, no commentary), as women who wanted to be men, or rather as women who wanted tobe together in a masculine-feminine role play with one of them ‘as’ the man.Lesbians are discussed in standard legal materials in such a context that they are eitherinvisible or more commonly, marginalised as at fault, ill, freakish or abusive. Lesbians are‘like’ heterosexual mothers, or fathers, only insomuch as they do damaging things to eachother or their children, usually simply by virtue of being lesbian, which is, implicitly, their‘misconduct’ or ‘immorality’.II: Case law: expressions of oddityJudges do not generally say that this is the first lesbian they have ever seen, although in theUK case of Re P, 1983, Sir John Arnold P states twice that he has ‘no evidence or experience’regarding the children of lesbian mothers (at 4). There are, however, a number of cases wherethe judge explicitly characterises lesbian mothers/households as ‘unusual’, ‘irregular’,‘abnormal’ or ‘strange’ •161 Usually the judge will go to some length to distance her/himself160See eg Hovius, supra n 150, Chp 2.161See eg: UK: Eveson, 1980, Walker, 1980, ReD, 1983, C v C, 1991; USA: Black, 1988; Canada: Case, 1974,Barkely, 1980.57from the value judgment inherent in such statements by claiming that this is what the child‘must’ or ‘willt feel, or this is how the ‘community’ views lesbianism.162 Cases that assume,absent any evidence, that there will be community disapprobation and teasing of the child byher/his peers, likewise reflect a view of lesbianism as not only stigmatised (which is somewhatjustified) but also as very rare. For instance the possibility of one or more of the child’sfriends having a lesbian mother is completely excluded by such logic.Perhaps the most striking affirmation of the unlikelihood/extreme rarity of lesbianism andmotherhood co-existing is in cases where the judge refused to believe that the mother waslesbian, sometimes in the face of overwhelming evidence. In the UK case of Re S, 1993, thetrial judge held that a letter from the mother to the father indicating that she was having alesbian relationship was to ‘taunt’ him and characterised it as a ‘cry for help’ to the father (at3). In the UK case Re M, 1993 and the Australian case, Harvey and Creswell, 1988, the fatheralleged that the mother had been involved in lesbian relationships prior to her relationship withhim. In Re M, the trial judge emphasised the mother’s calmness, sensitivity and devotion toher children and believed the mother’s denial, adding that even were it true it was in the past,so ‘Lesbianism is irrelevant as an issue in this case and in fact the mother presents as a firmbut very feminine person’ (at 3, 4).163 Femininity apparently ruling out lesbianism. Likewisein Harvey, the Federal Court emphasised the maturity and devotion of the mother beforenoting the allegations towards the very end of the judgment, adding that the trial judge did notdiscuss them as they were of little importance, being well in the past and not reflective of themother’s present character (at 12, 13).162See eg UK: Eveson, 1980.163For this decision, including a remark about the husband’s extreme homophobia, the judge was subject to anappeal on the grounds of bias, possibly including allusions to her own sexuality. See Re M (Judicial continuity)[19931 1 FLR 903 (C.A).58In two Canadian cases where the father alleged that the mother was lesbian, the judge decidedto conditionally believe the mother or to make no finding on the matter at all, leaving the issuecuriously vague and undecided. This equivocation is so pointed as to bear repeating. InTomanec, 1993, Noble, J writes,‘The mother’s ultimate departure from the home was preceded by the fathercoming upon the mother in circumstances which he perceived to be proof of alesbian relationship between the mother and her friend, Gayle Shelleau. Thecircumstances are equivocal and I accept the evidence of the mother and thewitness Shelleau that at the time no such relationship existed’ [Noble, J then saysthis is only relevant to explain the father’s later aggression and continues] ‘There isno evidence that the sexual preference of the mother has in any way itself beensuch to detrimentally impact upon the emotional or psychological fabric of eitherchild’ (at 13 - 14).What the ‘circumstances’ were, or what indeed the mother’s sexual preference was or is, areleft unstated. Likewise, in Seselja, 1994, the father and the Official Guardian were concernedabout the mother’s relationship with a ‘friend’ who she met in a bar and who more or lesslived with her and slept in her bed. The judge quoted the report of the Official Guardian whichread,‘It should be noted, that it is not the nature of Mrs Seselja’ s relationship with MsMohammed that is of concern, but rather the confusion that the children areexperiencing as a result of this issue. Ryan, in particular is feeling angry andrejected by his mother, as well as uncomfortable with the present arrangements’ (at11).The mother answered by saying that the children were only asking questions because the fatherhad told the children that she was a lesbian. The truth or falsity of the claim was repeatedlysidestepped, as the Guardian claimed it was the ‘role’ of the other woman rather than the‘nature’ of the relationship which was at issue, and the judge made no direct mention orfinding on the matter at all.59A dazzling episode of disbelief occurred in the 1988 US case of S.L.H v D.B.H, where thefather claimed that the mother was having a lesbian relationship, which she and her allegedlover denied. The father then testified that he had seen the women engage in sexual acts, andthat the mother had admitted a relationship to him. In addition an ex-boyfriend of the mother’stestified that she had admitted being a lesbian to him, and produced a letter by the motherwhich stated that her relationship with him had ended due to her relationship with the womanin question. Nevertheless, the trial judge believed the mother, holding that although a lesbianrelationship ‘may be inferred from the letter’, it was not conclusive or unequivocal, and thisdecision was upheld on appeal.’64 Interestingly, one of the main, if not the only, reason givenby the trial judge for believing the mother over the father was statements by both the fatherand ex-boyfriend that they had been having ‘normal sexual relations’ (by which I presume ismeant heterosexual intercourse) with the mother at the time of the alleged lesbian acts andadmissions. Such a judgement was commended as credible by the appeal court. Likewise inthe 1991 UK case, B v B, the trial judge believed that the mother had not begun her lesbianrelationship until after leaving the husband, despite considerable testimony and circumstantialevidence to the contrary, because,‘I have the father’s evidence that there was sexual intercourse between himself andhis wife until 2 or 3 days before the wife left him, and on that evidence I amprepared to hold that this lesbian relationship only commenced after the mother leftthe father’ (Callum, J at 6-7).Thus, lesbianism is equated with a clear, visible and unequivocal rejection of men and mostparticularly heterosexual intercourse. There is no possibility of bisexuality, or of a continuum164745 S .W 2d 850 (Mo. App, 1988). It is possible is that the judge did not believe the mother but wanted to giveher custody nonetheless and knew that if he had held she was lesbian, would have been fairly much obliged, undercommon law in higher courts of that state (eg N.K.M v L.E.M, 1980), to decide against custody to the mother.60of change in the mother’s sexuality. Rather, one must be one or the other, and that differencemust be visibly marked, an issue I will address in the following chapter on culturalrepresentation. On this point, B v B and S.L.H v D.B.H contain elements of judicial notice, astheir reasons for disbelieving a lesbian relationship are premised upon an unstatedunderstanding of lesbian sexuality as exclusive.In other cases the judge originally believed the mother’s denials of lesbianism, until the fatherbrought new evidence, or appealed.’65 The cumulative effect of all of these cases is to suggestthat lesbianism is a grave and uncommon situation, only to be believed of mothers, especiallygood, caring, feminine mothers, if there is no other option.ifi: Case law: we know who you areAlthough judges may claim or imply the rarity of lesbianism, they nevertheless findthemselves able to take judicial notice of aspects of lesbian life, more often phrased as‘common sense’ knowledge rather than observation. The UK case of Re P, 1983, isilluminating in this area, as it contains both such aspects on the face of the record. As notedabove, Arnold, J claims to have ‘no evidence or experience’ of lesbians at page 4 but by page5 is confidently making predictions as to peer trauma,‘One does not have to be a psychiatrist to appreciate that a lesbian household wouldquite likely be the subject of embarrassing conduct and comment, particularlyamong the child’s friends, and this is a disadvantage...’165 eg USA: Re Jane B, 1976, possibly N.K.M v L.E.M, 1980.61‘Common sense’ assumptions about the likelihood of children being subjected to peer traumaor growing up lesbian/gay are littered throughout judgments.’66 Judicial assumptions moreparticularly about the ‘nature’ or lesbians and lesbian relationships are also present in a lessexplicit manner. Such assumptions include: lesbian relationships are unstable, lesbians areemotionally unstable, or immature, or confused, lesbian relationships necessitate powerimbalances or role playing and lesbians sexually abuse, or are attracted to, children. Each ofthese matters will be discussed in turn to illustrate the process of ‘projection’ on the part of thejudges, whereby characteristics are attributed to the parties without any seeming reason to doso - a process which reveals much about the unconscious beliefs and fears of the judges whoare attributing them.Lesbian relationships are unstableJudgments frequently make the claim that lesbian relationships are inherently unstable. At theextreme this assumption may even be explicitly stated as a finding of fact about which judicialnotice can be taken. For example in the UK 1983 case, Re D, Sir Roger Ormrod stated,‘Experience shows, just as in the case that took place, that homosexualrelationships do tend to be even more unstable than heterosexual relations...’ (at3).Likewise the trial judge in S.N.E v R.L.B, (USA, 1985, 879) made a finding of fact that themother’s lesbian relationship would most likely be less stable than the father’s recent marriagebased on the assumption that homosexual relationships are of short duration. This finding was,however, overturned by the appeal court.166See Chapter 3 ‘A nexus test? the irrelevance of evidence’ section.62The assumption of instability is generally less explicit, and less likely to be expressed in theabstract. It may be implied, for instance, in orders that the mother’s partner, ‘or any otherhomosexual’ or ‘any other lover’ with whom she may have a relationship be barred from thepresence of the children.’67 More usually it is expressed through a laborious examination ofhow many female sexual partners the mother has had, a common thread of inquiry and even amajor focus of numerous cases.’68 The number of the mother’s lovers was sometimes contestedby the father, leading to cross-examination and necessitating a finding of fact on the matter,for example in Cartwright, (Aust, 1977, 76,596). Even when not contested, the mother wassometimes subjected to cross examination about her relationships, which was then recorded atlength in the judgment, for example in Collins (USA, 1988, 11-12) where one appeal judgequoted testimony as to lovers named by the questioner as ‘number two’ and ‘number three’and so on (of a possible four), to illustrate instability.There was also frequent inquiry into how many female sexual partners the mother’s currentpartner had been involved with,’69 particularly when the mother had only one relationship witha woman, and so could not be accused of instability on that ground.’7°This focus betrays anactive search for a ‘factor’ such as instability, rather than it merely existing on the face of theevidence.167 eg USA: Dailey, 1981, 396; L v D, 1982, 245.168See eg Canada: Bezaire, 1980, 360; Case, 1975, 136; USA: L v D, 1982, 241; G. A v D. A, 1987, 728;Chicoine, 1992, 893; Collins, 2, 7, 11-12, 28; White v Thompson, 1990; Australia: Cartwright, 1977, 76,596;Schmidt, 1979, 78,658; G and G, 1988, 76,785, 76,788; UK: C v C, 1991.169See eg. Canada: N v N, 1992, 8; Case, 1975, 135; Australia: 76,446, 76,447; P.C and P.R, 1979,78,608; UK: B v B, 1991, 6.7O5 especially, Aust: P.C and P.R, 1979.63The combination of the mother’s and her partner’s relationships was then frequently used todetermine that the current relationship between the mother and her partner could not possiblybe stable. Such a finding was sometimes in the face of evidence that the relationship betweenthe women was indeed of longstanding, and regarded by the parties and expert witnesses asstable, for instance in P.C and P.R (Aust, 1979) where McCall, J flatly refused to believe theevidence and ignored the fact that the relationship had already lasted two years: ‘I am by nomeans convinced that this relationship is as stable and has the degree of permanence that wasalleged’ (at 78, 608). He further stated that,‘I do not believe, in view of her past history, that the relationship with the wifewill even be a lasting one’ (at 78, 609).The ‘past history’ was two other lesbian relationships - which lasted four and five yearsrespectively. Notably, the mother’s marriage in that case had lasted only four years. Even ifthe mother had not yet been engaged in a lesbian relationship, the court expressed fear that afuture relationship would not be stable or long lasting.’71The marked attention to the in/stability of lesbian relationships is highlighted by the fact thatmothers’ relationships with men prior to, or even following, the marriage are never in issue.Moreover, the number of relationships in which the father has engaged is very rarely noted,and his current partner’s sexual history is completely absent from consideration.’72Having shown that judges (and quite possibly counsel for the fathers) actively look forevidence of instability of the lesbian relationship, and indeed see evidence where others might171See Canada: SvS, 1992, 43, 44, 47.more detailed discussion of these issues in the cases see Chapter 3.64not, one must then ask the question: Why? A possible explanation is that the individual lesbianrelationship in this instance has done what homosexual relationships are said and feared to doin general: destabilise the traditional family.’73 Nowhere could this be more explicit thanwhere the mother has left the father for the present lesbian relationship. That relationship,then, is seen as an agent of destabilisation, it is the visible cause of the rupture of the normalfamily, now in pieces and at war in the courtroom. Within this setting, the narrative of thefamily breakdown, the function of a lesbian relationship is rupture. It destroys, it does notcreate, it tears asunder rather than bringing together (in the way, for example, thegrandparents are seen as gelling families together, regardless of their roles in the actualproceedings).174 Once the lesbian relationship is seen in this way, as causing or evensymbolising destabilisation, it is very easy to presume it must therefore be unstable in itself.Lesbians are unstableLesbians, in and of themselves, were also found to be unstable in the judgments. Instabilitywas extrapolated from many external factors, such as changing employment or moving house,and then connected to the mother’s inherent instability. Take for example, the unsupportedfinding of the trial judge quoted by the appeal court in Bezaire (Canada, 1980):‘...1 am now satisfied that the instability in the ‘s past existence is rooted inthe psychological instability of Mrs Bezaire herself; that the continued need ofmovement from one spot to another, the changing of schools, the changing ofrelationships, even the changing of lesbian partners, indicate to this court a verydeep-rooted instability in Mrs Bezaire herself’ (at 362-3).173See eg Chapter 3, n 208.174See eg Canada: Steers v Monk, 1992; USA: White v Thompson, 1990.65If the mother actually had been depressed, or sought therapy to deal with any matter, such aschild sexual abuse, these things were usually noted in the same breath with her sexuality.’75 InChicoine, 1992 (USA), for example:‘Lisa has experienced a myriad of psychological problems including an eatingdisorder, depression, suicidal threats, sexual abuse as a child and activehomosexual relationships with several female art’ 893).Messy houses and bad language were also frequently cited in the judgments as evidence thatthe mother was an unstable individual.’76In the 1980 US case of Werneburg, the fact that both the mother and her partner hadpreviously been engaged in heterosexual relationships and were now lesbian was sufficient forthe court to conclude that they were ‘confused’ about their identities and relationship. On closereading, there is no suggestion that either woman was the slightest bit equivocal about herchoices, and rather it was the judge who found it all so very confusing. As with the caseswhere judges refused to believe that the mother was lesbian because of her sexual activity withmen, the judgments here are premised upon an implicit understanding of female sexuality asstatic, which was then projected onto the mother, regardless of other information andevidence.Again, the question arises, why is instability of character such a focus here, when, frequently,the father’s many defects go virtually untouched, sometimes noted but rarely explored orregarded as decisive. 177 Perhaps the fact that the mother could change and had indeed changed175See eg USA: Chicoine, 1992; Williams, 1990.176S eg Canada: Elliott, 1987, 18, 18, 20; Bernhardt, 1979, 40, 41; USA: D.H v J.H, 1981, 289, 296.177See Chapter 3, Competing fathers: who cares? a Dad is a Dad is a Dad’ section.66in what is regarded as such a fundamental manner meant that she was viewed as volatile,unpredictable. If she could change from a housewife to a dyke, what else is she capable of?Evidence of her inherent instability of character was therefore sought out, and found.Immaturity was another quality specifically sought out in the mother. Moving from aheterosexual to a lesbian relationship was implicitly viewed as evidence of such immaturity,symbolising a regression from full adult womanhood (wife/mother) to childishness (schoolgirlphase/incomplete non-phallic sexuality).’78 In the Australian cases of Spy, 1977,179 Schmidt,1979,180 and P.C and P.R, 1979, the mother was explicitly characterised as immature, easilyinfluenced by and dependent on her lover, the ‘real’ (experienced) lesbian who had drawn herinto this thing. In P.C and P.R. this characterisation is at its most detailed:‘The wife, however, I find is an emotional and I believe still immature person.Prior to [her current relationship] she was largely ignorant about homosexuality.Miss Argue was not; she had been a committed lesbian for a number of years. Ibelieve the wife did not then and does not now fully perceive exactly what tookplace.. .1 believe that Miss Argue from the time of that weekend onwards’ [a periodof two years] ‘has deliberately educated the wife about homosexuality. . .Arguedeliberately took the wife to see at least one lesbian couple bringing up children. Ibelieve that the wife, then or now, has no real appreciation of what Argue wasdoing’ (at 78,608).Several cases from other jurisdictions characterise the wife as immature in a less directmanner. Sometimes this presumption of immaturity was suggested by the choice of language,for example in S v S, (Canada, 1992) the judge repeatedly refers to the mother’s wanting tomove to the city and begin relationships as an ‘adventure’ (at 44), and in Bezaire (Canada,1980) the mother ‘went out and broke’ the conditions attached to her custody, like a naughty178The origins and pervasiveness of this view of lesbian sexuality will be explored in greater detail in Chapter 4.‘79see pp 76,444-5.180See pp 78,608, 78,612.67child. In the US case M.P v S.P (1979) the judge suggested that the wife was not to be blamedfor her lesbian relationship as the husband’s abusiveness ‘stifled forever her initial attempts toenjoy heterosexual love’ (at 1263). Lesbianism in that case was thus a retreat, perhaps aregression, from heterosexuality.Power imbalances, abuse and role playingIt is sometimes suggested in the judgments, either by overt questioning or by implication fromthe choice of language, that children are at risk of sexual abuse from lesbian mothers, or morecommonly, their partners. The presence of such concerns occasionally arises at the behest ofthe father,’81 but more usually appears as a ‘common sense’ concern of the judges.’82 Evidencethat sexual abuse by women generally, or lesbians generally, and the mother/partner inparticular is not probable is generally accepted on the face of the record, but does persist as acurrent at a subliminal level.’83 This issue will be discussed in depth in Chapter 5, in the‘Witch’ section.Role playing between the partners in a lesbian relationship is another ‘factor’ which is activelysought out by the judges. Presumption of role playing is shown in the judgments in a myriadof ways. Frequently the judge will suggest that the partner is ‘dominant’ and/or the mother is‘submissive’, with these traits implying ‘male’ and ‘female’ roles respectively. For instancethe partner paying for entertainment, driving or appearing protective of the mother was181S eg USA; Peyton, 1984; Aust: G and G, 1988.1825ee eg USA: eg Re Jane B, 1976, N.K.M v L.E.M, 1980, Collins, 1988, Williams, 1990; UK: Eveson,1980, B v B, 1991.1835ee eg UK: B v B, 1991.68gleaned as evidence that the partner was ‘dominant’ 184 On occasion, the mother wascharacterised as the ‘dominant’ one, particularly if her partner was younger than herself.’85 Inthe Australian case of P.C v P.R, 1979, the judge flatly refused to believe the testimony of theparties and expert witnesses that there was ‘no role definition’ between the women (at 78,608). In L and L (Aust, 1983) Baker, J looked for role definitions between the women, andseemed surprised that there were none, adding, ‘Neither the wife nor Miss Y. are obvioushomosexuals. Both dress in a pleasant and appropriate fashion...’ (at 78,363).Masculinity was also implied by suggestions that one of the women wore ‘men’s clothes’ ,186had a ‘masculine oriented mental status’,’87 or had been a tomboy when young.188 Judges alsosometimes referred to the mother’s partner by her surname alone, a form of address usuallyreserved in the judgments for men (such as the father and male experts). Although themother’s partner could also be referred to with a title, it was only lesbians and men who werereferred to by their surnames alone; other women, such as relatives, experts, and the motherherself, were always referred to by initials, first name or a title.’89The belief that lesbian relationships mimic the role definition in heterosexual relationships, orthat lesbians are male-identified involves a clear projection of the centrality of a heterosexualgender role structure. Two people in a relationship must be a man and a woman, or pretending184See eg Canada: Case, 1974,; USA: N.K.M v L.E.M, 1980, Dailey, 1981; Aust: P.C and P.R, 1979, G andG, 1988.l85 eg USA: Williams, 1990, Diehl, 1991.186 UK: ReA, 1979, 10; USA: Breisch, 1981, 817.187See: USA: Breisch, 1981, 817.188 UK: B v B, 1991, 5.1895ee eg Canada: Case, 1974, Robertson and Geismger, 1991 (lesbian witness rather than partner), Aust: P.CandP.R, 1979, USA: Diehl, 1991.69to be them. A person who has sex with a woman must be a man or be pretending to be one.Such ideas are in fact common in psychoanalytic and popular cultural representations oflesbians, and will be taken up in the Chapter 4.This chapter has aimed to illustrate by way of examples drawn from standard legal literatureon family law and from family law judgments themselves, the idea that lesbians are ‘Other’,the unknown (and thus terrible, frightening, dangerous etc), at precisely the same time thatlesbians are assumed to be known (common sense dictating that lesbians are unstable and theirrelationships are butch/femme etc). Therefore lesbian mothers need not necessarily be ‘sn’inthe individual sense as parties to the case, but as emblematic of ‘lesbianism’ in the general.This knowing entails that proof of various common sense notions need not be produced, andmoreover if evidence is brought to contest such notions it can easily be dismissed as nonsense.The following chapter will illustrate through case analysis firstly that lesbianism is a central,definitional feature in family law matters where the mother is lesbian, and secondly the waysin which ‘common sense’ comes into play in overlooking evidence.70CHAPTER 3: Lesbianism versus motherhoodOne of the foundations upon which this thesis rests is that child custody cases concerninglesbian mothers are primarily, if not exclusively, about lesbianism. Lesbianism may notalways be the deciding factor in the cases, but it is the pivotal issue around which the inquiryrevolves. ‘Lesbian’ is regarded as an inherently suspect category of identity, an un-womanlycategory, and thus the cases are, in my thesis, about lesbianism versus motherhood.The central importance of lesbianism in child custody judgments regarding lesbian mothers isnot usually explicitly stated on the face of the judgment, which more often contains rhetoric tothe effect that lesbianism is not per se a bar to custody. In direct contrast to this veneer ofevenly balanced factors or claims are the patterns revealed by a reading of available cases.Willingness to allow appeal where trial judges have not considered the mother’s lesbianism atgreat enough length or as an onerous disadvantage for example, indicates that while lesbianismmay be just one factor, it is a factor which must be treated with some weight and always as adisadvantage.Also, in a significant number of cases, the father was not subjected to even the most routineinquiry - his lifestyle was most notable in the judgments by its absence, as questions regardinghis parenting skills and partner were frequently left unanswered, or even unasked. Likewisethe detail given to sexuality was not given to other categories of identity, such as race andethnicity. Expert evidence stressing that the children of lesbians were likely to grow upheterosexual and developmentally ‘normal’ was overwhelmingly disregarded.Recommendations of court appointed, as well as partisan, psychologists and social workers, infavour of custody for the mother were dismissed as often as they were followed.71Evidentiary arguments that there must be a ‘nexus’ or causation shown between the mother’slesbianism and harm to the child/ren were also disregarded, or paid minimal lip service. Asthe future focused ‘best interests’ test encompasses speculative and possible harm, evidentiaryrequirements simply fell outside of its ambit. Likewise, rights-based arguments wereuniformly dismissed, often with considerable outrage, as they were viewed not so muchoutside of, but in direct conflict with, the child’s best interests principle.Each of these issues will be dealt with in turn to illustrate that in cases involving a lesbianmother, lesbianism is regarded as of overriding importance, generally as an ill.Just one factor among manyJudges frequently claim that the mother’s lesbianism is ‘just one factor to be considered amongmany.’ This claim is most common in Australia, for example in P.C v P.R, (a case notable forit’s homophobic discourse):‘Lesbianism therefore is not a determining factor. It is a factor, however, to betaken into account. Its importance will vary depending upon the totality of theevidence and all the other factors that must be taken into account in the particularcase’ (McCall J, (1979) FLC 90-676 at 78,606).Such statements of principle also appear regularly in Canada and the UK as well as in somestates of the US.’9°However, numerous judgments have suggested that lesbianism is the ‘main’ or ‘major’ issuewithout apparently sensing a contradiction, such as the UK case of Re D, 1983, where the190For an Australian judgment positive to the mother with a similar statement see Schmidt (1979) FLC 90-685,Fogarty J at 78,659. See also Canada: Case, 1975, Barkely, 1980; UK: Eveson, 1980; USA: M.P v S.P, 1979.72mother’s lesbianism was designated the ‘dominant problem’ in the judgment.’9’When aremark at trial level that the mother’s lesbianism was the ‘main’ issue was appealed in a recentUS case, it was held insufficient to reverse as a matter of law.’92 Moreover the US case ofConstant A v Paul C.A, 1984 held as a matter of law that the lesbian mother must disproveharm, and the UK Court of Appeal case of C v C, 1991 held as a matter of law that if alesbian mother and heterosexual father’s claims were evenly balanced, decisions must sway infavour of the heterosexual parent. The discourse of lesbianism as ‘just one issue’ is somewhatundercut by such decisions.The central importance of the mother’s lesbianism was most notable when momentarilydisplaced - such as when a trial judge regarded it as of little importance or implicitlycharacterised it as unharmful. In two cases in the UK and one in the USA such judgmentswere immediately overturned on appeal as it was held as a matter of law that the mother’slesbianism must be considered carefully and this consideration must weigh it as adisadvantage.’93In the words of the appeal judge in Holder, (UK, 1985),it was hopelessly wrong to say that it was not a consideration, but it was ofprime importance. It was what the whole case was about’ (at 3).In this way, only when lesbianism has not been considered vital to the case must it then bereaffirmed as central in a subsequent written judgment. More commonly, an implicit191See also Australia: Doyle, 1992 (gay father) ‘central issue’ at 275, L and L, 1983 ‘real issue of the case’ at78,363; USA: Jacobson, 1981 overriding factor’ at 80.‘92USA White v Thompson, 1990.193UK: Holder, 1985, C v C, 1991; USA: Bennett. But contra Australia: Creswell and Harvey, 1988, where thetrial judge had even omitted mention of the mother’s former lesbianism from the face of the judgment, and thiswas held by the appeal court to be justified as it was no longer relevant.73assumption of the centrality of the mother’s lesbianism to the case can co-exist with statementsof principle that it is not really determinative at all.And the otherfactors are?Another matter which suggests that lesbianism is the central, definitional, feature of the cases,is the absence of other societally marking ‘factors’, most notably race and ethnicity from thejudgments. In the pooi of cases under examination, only four of them made any reference tothe race, ethnicity or cultural background of the parties.In one Canadian and one US case the father’s status as a foreign national was noted because hehad threatened to kidnap the children at some stage in the proceedings and the judge respondedby ordering surrender of his passport/s.’94 In the two remaining cases, reference to race wasfar more spurious. In the 1980 US case of N.K.M v L.E.M, the judge repeatedly andemphatically referred to two witnesses (who appeared in order to attest to the mother’srelationship with another woman) as ‘the Filipino nurses’, without any apparent purpose fordoing so. In the 1979 UK welfare case of Re A, the judge noted that the children’s father was‘Black’ and that the children were ‘mixed’ and ‘black’ - thereby implying rather than statingthat the mother was White. The mixed race of the children was noted as something that wouldcause them additional difficulty in life, and was arguably an implicit criticism of the motherfor bringing about such a state of affairs. It is also notable that the father’s race was stated inclose proximity to findings of his violence towards the mother - thereby reinforcing a raciststereotype of men of colour as violent/uncontrolled.There are a number of possible explanations for the apparent ‘colourlessness’ of the cases. It ispossible that this omission is common practice in all family law matters, and not a particular194Canada: Tomanec, 1993, father was Czech; USA: Anon, 1986, father was Algerian.74feature of cases where the mother is lesbian. I have not attempted to do a quantitativecomparison of cases where the mother is lesbian with cases where the mother is ostensiblyheterosexual, not least of all because I am loathe to call the latter a ‘control’ group.’95 A lessplausible explanation is that the parties were all White Anglo-Saxon. Although the commonpractice of reporting cases with only the initials of the party’s (particularly lesbian ones), to‘protect’ the children conceals a majority of the party’s names from the public record,nevertheless there remain some cases where parties names are present and are, for example, ofJewish or Hispanic origin.A more likely explanation is that in most cases the parties were of the same racial or culturalgroup, and so race or culture was not perceived by the judge as an ‘issue’ which needed to beaddressed and decided upon in the way it would if there had to be a ‘choice’ between them(eg. in placing the child either in an Aboriginal or an Anglo-Australian home.) Anotherpossible explanation is that whatever the race or ethnicity of the parties, the judge nonethelessfocused upon the lesbian ‘factor’ as being of overriding importance. Nitya Duclos suggeststhat in the context of Canadian Human Rights law, judges and legislators are capable ofthinking only in terms of race or gender, never both at the same time, so the specificities ofdiscrimination against women of colour are lost in the process.’96 It is possible that sucheither/or vision occurs in family law matters also. Explanations can only be speculated upon,but the effect remains that race and ethnicity as ‘factors’ remain largely absent fromjudgments, whereas the ‘factor’ of lesbianism continues to shine, centre stage.195Case analysis regarding heterosexual mothers tends to be divided by such factors as whether the mother wasworking and who had care of the children after separation and prior to the hearing - the mother’s heterosexualityis not even a feature. To the contrary, I will argue that in cases where the mother is lesbian, all other factors fallaway into the background, as the focus of the case is upon motherhood versus lesbianism.196N. Duclos, “Disappearing Women: Racial Minority Women in Human Rights Cases’ (1992) 6(1) CanadianJournal of Women and the Law 25.75Competing fathers: who cares? a Dad is a Dad is a DadNumerous commentators have claimed that lesbian mothers are generally successful, or have agreater chance of success when the father is manifestly ‘unfit’ in some way. 197 Although thisclaim may well be true, it is somewhat circumscribed by the rarity with which the father’sbehaviour and fitness are examined, detailed or taken into account. Most cases at least makemention of the father’s employment and accommodations. Some, however, do not even dothis, for example in the US cases giving or affirming custody to the father M.J.P v J.G.P,1982, L v D, 1982, and Jacobson, 1981, judges mention neither; Dailey, 1981 notes only thefather’s occupation.’98Matters pertaining to paternal fitness include allegations of the father’s alcoholism, physicaland/or threatened violence against the mother, and sexual abuse of the children. Frequentlyjudges note such a serious allegation but flatly refuse to detail its substance, whether or not theallegation was held to be proven. For example in the Canadian case of Bezaire, 1980, thejudge noted but did not detail allegations of sexual abuse of the children (at 360). In two UKcases, faults of the fathers were suggested but never made explicit. For example in S v S,1978 the father’s ‘abnormal sexual practices’ were not named (at 3) and in Eveson, 1980, thefather’s ‘defects of character’ (at 3, 5) remained un-named. In the 1991 US case of Diehl,the appeal court managed to pass over the mother’s allegation of the father’s violence towardher by simply making no finding on the matter at all (at 284). 199197See eg Bateman, supra n 56, at 54; Rights of Women, supra n 148, at 123; Brophy, supra n 34, at 497.198A1so the dissenting judge in G.A v D .A, 1987, notes that the majority overlooked the father’s inadequateliving conditions when awarding him custody, at 729. Such lack of detail may be partially explained in the UScases by the fact that they are all appellate level judgments which generally contain fewer references to the factsthan do trial judgments. However, I do not regard this as a complete explanation, particularly as detail regardingthe mother does appear.199See also: Canada: Daller, 1988, allegations of threats and harassment of mother and her lover, at 57; N v N1992, physical violence towards mother at 15; Case, 1975, violence against mother and kidnapping the child at76It is also instructive to note the range of cruel and hostile behaviour which was not generallyconsidered to impact upon paternal fitness at all - such as attempting to sabotage the mother’srelationship with her own parents by ‘outing’ her to them,20° verbally abusing the motherand/or her lover,20’ abusing the mother verbally to the child in an attempt to turn the childagainst the mother,202 showing the children some of the mother’s (lesbian) love letters203 andkidnapping the child/ren from the mother prior to initiating a custody action.204Moreover, a father accused of any of the more readily accepted grounds of unfitness, such asviolence, alcoholism or sexual abuse may still win when contesting against a lesbian mother.205For example, in the Canadian matter, Case, 1974, allegations of the father’s abusiveness were134, 135; KvK, 1975 violence against mother at 59; USA: M.P v S.P, 1979, father’s sexual assaults on motherduring marriage, taken into account on appeal but not detailed, at 1262-3; Wemeburg, 1980, allegations of fatherexercising ‘severe’ discipline and denying child food passed over; Australia: Jarman v Lloyd, 1982, father’sviolence to mother passed over at 879, 880; O’Reilly, 1977, father’s violence to mother noted in passing in lastparagraph of judgment.200Canada: SvS, 1992, the father characterised by the judge as ‘thoughtless’ and somewhat ‘selfish’ at 46, 48;Australia: G v G, 1988, the husband was rebuked in this instance as he was a family law solicitor and achievedthis end by sending affidavits to the mother’s mother - a breach of the legislative provisions of which he was wellaware, at 76,788.201USA: Lundin, 1990, Williams, 1990, Barron, 1991 (at trial, remanded for rehearing on other grounds);Australia: piy 1977, P.C v P.R, 1979 (husband’s abuse of lover characterised as entirely her own fault at76,608, 76,609, 76,611).202USA: Lundin, 1990, Blew v Verta, 1992. In addition it is reasonable to assume that verbal abuse and threatsaccompanied those cases where physical violence is noted. However, contra: Canada: N v N, 1992 (verbal abuseof mother in child’s presence) and USA: Large, 1993, (verbal abuse of the mother to child in mother’s absence)father’s behaviour was held against the father because of negative impact upon the child.203USA: L v D, 1982, accepted by the court as being without malice. How they came to be in his hands in thefirst place is predictably left unexplored.204Canada: Case, 1974; USA: Williams, 1990, White v Thompson, 1990, (grandparents accepted child kidnappedby the father and subsequently won custody).205eg Canada: Case, 1975; Bernhardt, 1979, Bezaire, 1980, USA: M.P v S.P at trial, overturned on appeal,1979, S.E.G v R.A.G, 1987, Diehi, 1991, Barron at trial but remitted for rehearing on the grounds that thefather’s alcoholism not sufficiently noted, 1991.77held against the mother, as evidence of her tendency to exaggerate, and in the 1990 Americancase, Williams, the father’s threatened violence against the mother and her lover and hiscontempt of court for kidnapping the child were not considered major issues. In a directcomparison, the judge held that the father was more fit than the mother, who was the realcriminal for breaching that state’s laws against consensual same sex activity (at 1197, 1199).A less dramatic example is that of Black, 1988, where upon gaining custody of the children,the father placed them in the care of his mother in her house (as they did not get along with hisnew wife’s children) where they remained for the next four years. The father’s custody wasaffirmed when the lesbian mother petitioned on the basis of changed circumstances, as thecourt held that the children were still cared for under his ‘direction and control’ and his fitnessremained unquestioned (at 6).Alternatively, the parents of clearly ‘unfit’ fathers joined the father in his application forcustody and won; thus grandparents who had raised violent, suicidal and alcoholic sons weregranted custody of the son’s children over the lesbian mother.206Competing (ideal) families: stable is stable is stableIt is often argued that it is the form, more than the substance of the ideal that matters in thesecases: it is the Traditional Family (heterosexual and frequently re-constituted, with a ‘new’mother) versus the Unnatural (lesbian mother and frequently a live-in lover) 207 Obiter in anumber of judgments regarding the ‘threat’ posed by homosexual parenting to the traditionalfamily form and the continuance of society as we know it certainly provide fuel to this206See eg USA: Townend, 1975, White v Thompson, 1990.207eg Rights of Women, supra n 148, 123.78analysis. A notorious example is provided by Justice Tamillia, writing for the majority in theUS case of Constant A v Paul C.A, 1985:‘The essence of marriage is the coming together of a man and a woman for thepurpose of procreation and the rearing of children, thus creating what we know tobe the traditional family. A goal of society, government and law is to protect andfoster this basic unit of society... Simply put, if the traditional family relationship(lifestyle) were banned, human society would disappear in little more than onegeneration, whereas if the homosexual lifestyle were banned, there would be noperceivable harm to society. . . A primary function of government and law is topreserve and perpetuate society, in this instance, the family’ (at 6, note 6).No prizes for guessing who won custody there. The threat to society is usually articulated inquite different terms in the judgments, however, because the cases are living proof thatlesbians and gays do have children (a remarkable oversight in the above quotation). In the UScase of Schuster, 1978 (dissent) M.J.P v J.G.P, 1982 and Collins, 1988 the judges all quotewith approval a law review article from 1977 which suggests that if lesbians and gays havechildren and live happy, unpenalised lives, the traditional family may crumble as heterosexualseverywhere flock to follow sujt.208It is this implication of the essentially fragile, even endangered, nature, of heterosexualitywhich provides a key clue. In the cases under consideration, the mother was heterosexual (ordoing a damn fine imitation) and had then left the father/family/phallus for lesbianism - thusembodying the potential for other good wives and mothers to do the same.208J. Wilkinson and G. White “Constitutional Protection for Personal lifestyles” (1977) 63 Cornell Law Review563. The section quoted reads in part The most threatening aspect of homosexuality is its potential to become aviable alternative to heterosexual intimacy.. .Young people form their sexual identity partly on the basis of themodels they see in society. If homosexual behaviour is legalized, and thus partly legitimized, an adolescent mayquestion whether he or she should ‘choose’ heterosexuality.. .If society accords more legitimacy to expressions ofhomosexual attraction, attachment to the opposite sex might be postponed or diverted for some time, perhaps untilafter the establishment of sexual patterns that would hamper development of traditional heterosexual familyrelationships. For those persons who eventually choose the heterosexual model, the existence of conflictingmodels might provide further sexual tension destructive to the traditional marital unit.’79It is interesting to contrast cases where the nature of the ideal hetero-nuclear family is extolledin rhetorical terms, rather than described (as it was above) as endangered. The English lesbianmother cases Re D, 1983, C v C, 1991 (at first instance and again upon rehearing), thelesbian mother adoption case Re E, 1993, and the Australian gay father case of Doyle, 1992all contained statements to the effect that it is unquestionable that in the ideal world a childwould be blessed with a mother and father who were married. Yet in every case, custody ofthe child was given to the homosexual parent. It is as though, at the point of rupture of thehetero nuclear family, and affirmation of alternative family forms (by granting custody) theimportance of the lost ideal must be reaffirmed rhetorically to obscure just what is actuallytaking place. Like the earlier matters where the relative unimportance of the mother’slesbianism was stated precisely because it was not so, the importance of the ideal family isstated because it is not being privileged in the instance at hand. Such a disjuncture betweendiscourse and decisions is a continuing thread in the judgments under examination in thisthesis.Generally, the judgments did not deal with the ideal of heterosexual families in quite such anabstract matter. Instead of making blanket statements as to the preferability of heterosexualfamilies, the judges often simply assumed the individual heterosexual family in question to beuntroubled and stable. The father’s reconstituted family, like the father, was itself subject toremarkably little scrutiny in the judgments, as though man+woman+child!ren wereunquestionably a stable, harmonious and fertile equation. When the husband was noted ashaving a new partner, it was often simply assumed that this relationship was permanent andunquestionably beneficial for the children, particularly if it was a marital relationship.In re-partnering, the father was generally characterised as attempting to ‘rebuild’ the familyunit, thus displaying the traits of altruism and stability (whereas the lesbian mother’s re80partnering was characterised as inherently sexual, and therefore selfish).209 In cases where thefather had a new partner, matters such as the children disliking the partner21° (or, for thatmatter, the father) ,21 1 disliking the partner’s children ,212 the partner having not been seen bythe court,213 the partner having psychological problems,214 or prior unstablerelationships/divorces (a favourite ground of inquiry with the mother’s lover), were allroutinely glossed over as the father was granted custody. The father’s numerous previousrelationships, or recent unstable relationships were rarely noted, and where they were notedwere not generally held against the father.215 This was in marked contrast to the level ofinquiry into the duration and number of the mother’s relationships, and the weight with whichthey impacted upon findings as to her stability.216The most frequently used word, unsupported by any evidence or observation, was that thefather’s new relationship and/or ‘home’ were “stable”.217 For instance in Werneburg (USA,209This will be discussed in detail in Chapter 5, Sex and altruism’ section.210eg USA: M.P v S.P ignored at trial level, granting father custody regardless, but overturned on appeal, 1979,noting that the children feared the new wife, who moreover was inappropriately sexual with the children,including leaving pornography featuring herself around the hour and boasting of the father’s sexual prowess.211eg USA: Re Jane B, 1976, N.K.M v L.E.M, 1980; M.P v S.P at trial, overturned on appeal.212eg Canada: , 1992; USA: Black, 1988.213eg USA: Re Jane B, 1976; Werneburg, 1980; Canada: Bemhardt, 1979; SvS, 1992.214eg Canada: Bezaire, 1980 father’s new wife clinically depressed, Case, 1975 father’s sister living in as acaretaker to children lacked ‘domestic stability’.2155ee eg USA: D.H v J.H, 1981 the father having had three failed marriages no reflection on his stability orparenting abilities; Canada: Seselia, 1994, the father’s current relationship ending while legal proceedings were inplace, no reflection on him. The father was successful in both cases.2165ee Chapter 2, ‘Lesbian relationships are unstable’ section.217Other cases which describe the father’s house and/or relationship in this manner are: Canada: Adams vWoodbury, 1986 (heterosexual couple seeking adoption of lesbian mother s child against her wishes), ‘stable’,‘normal’ at 17; Elliott, 1987, ‘guidance, stability and training’ at 25; UK: Eveson, 1980, ‘safety’ of father’shome versus ‘risks’ of the mother, at 5, ReD, 1983, ‘ordinary household’ (versus the mother’s ‘abnormalsituation’) at 1,2, C v C, 1991, ‘normal home’ at 11; USA S v S 1980, ‘stable’ at 66, M.P v S.P ‘stable’811980) the father’s lifestyle was described as ‘settled’ (and preferred to the mother’srelationship of some years standing) despite the fact the he and his partner had ‘occasionalseparations’, the children evinced behavioural problems and child welfare authorities hadinvestigated abuse. Also in that case, the mother’s superior accommodation and financialsituation was regarded as a form of bribery, while the father’s financial hardships and thechildren’s subsequent material deprivation was characterised in such as manner as to valorisethe father as a ‘hard working family man.’Another striking example of stability and permanence projected onto the father’s family occursis the US case of Collins, 1988. In that case the child at nine years of age had lived for thepast eight years with her mother. The father was inconsistent in exercising visitation andapplied for custody only after the mother sought court assistance to enforce his child supportobligations.218 Nevertheless, the court granted the father custody, and the appeal courtaffirmed on the grounds that the father’s home offered more ‘consistency [and] stability.’219It is a virtual truism in commentaries on lesbian mother cases that the father stands asubstantial chance of winning where he can provide a replacement female caretaker.22°Curiously, in the pooi of cases under examination whether or not the father has had sexual(overturned on appeal, 1979, at 1260); Constant A v Paul C.A, 1984, ‘stable’ at 7, White v Thompson , 1990,(grandparents) ‘stable home at 1183. A notable contrast is USA: Large, 1993, where the appeal court refused toaccept the father’s ground of appeal that the trial judge had given insufficient weight to his ‘traditional familyvalues’ and had not held lesbian relationships to be ipso facto unstable.218At pages 1-2.page 8. Irene Thery has argued in the context of family law in France that the use of the term ‘stability’ hasincreasingly become a euphemism for ‘morality’. Thery, supra n 121, at 89.220See eg Boyd, 1991 supra n 72, at 89, Rights of Women, supra n 148, at 123, Brophy, supra n 34, at 486.82relationships since the marriage ended, or had a new partner was often overlooked entirely,22’suggesting that the new female caretaker appears in the judgments at the father’s behest, notdue to judicial inquiry into the father’s lifestyle. Moreover, in the cases I examined, thefathers with female caretakers had only a slightly better than even chance of gaining orretaining custody (13 winning222 and 12 losing223) which was lower than father’s chances ofwinning against a lesbian mother overall.224 I contend that overwhelmingly, the ideal isirrelevant, as is the father. They are viewed as ‘stable’ in as much as they provide safe harbourfrom the threat posed by the lesbian mother - and hence it is the degree to which she inspiredfear which is pivotal.Dr Discourse: the irrelevance of scienceThe major focus of ‘doctor discourse’ in the case law was to combat the long held view thathomosexual parents will produce homosexual children (by modelling,225 encouragement,gender role confusion or molestation). The mother produced expert witnesses almost always inorder to assert that the children of lesbians have been shown time and again to grow up221See eg Canada: Barkely, 1980, Daller, 1988; USA Jacobson, 1981, N.K.M v L.E.M 1980, L v D, 1982,UK: S v S, 1978. A notable exception is the US case Peyton, 1984, which held that the husband’s newheterosexual relationship, as a form of adultery, was on a moral par with the mother’s lesbian relationship.222Canada: Bemhardt, 1979, his mother and adult daughters, UK: C v C, 1991, USA: Re Jane B, 1976, his newwife and Aunt, Werneburg, 1980, live-in girlfriend, SvS, 1980, new wife, L v D, 1982, new wife, Constant Av Paul C.A, new wife, G.A v D.A, 1987, his mother, Blew v Verta, 1992, new wife, Black, 1988, his mother,Collins, 1988, new wife; Australia: pty 1977, housekeeper and his mother, P.C v P.R, 1979,girlfriend/possible fiance.223UK: ReD, 1983, new wife, B v B, fiance; USA: Schuster and Isaacson, 1978 (joined cases), new wives, M.PvS.P, 1979, new wife, Peyton, 1984, girlfriend, S.N.B v R.L.B, 1985, new wife; Australia: Cartwright, 1977,his mother, Brook, 1977, girlfriend and his mother, Jarman v Lloyd, 1982, new wife, L and L, 1983, his motherand sister, G and G, 1988, girlfriend.224See note 373.2255ee Costello, supra n 50, at 135 for a discussion of modelling theory and its ‘scientific’ basis.83heterosexual.226 The unstated premise of the requirement for this refutation is that if the childwere to grow up homosexual s/he (or society as a whole) would be ‘harmed’ by the award ofcustody to the lesbian mother. A vigorous assertion of the heterosexuality of lesbians’ childrenbecomes complicit in this framework, as it is intended as evidence that the children are, ineffect, unharmed227Regardless of the faith placed by lawyers in evidence, and by lesbianandgay commentators inthe value of expert and scientific testimony to dispel myths about lesbian mothers, in the casesunder review, research studies and specialist psychiatrists writing or appearing in support ofthe lesbian mother,228 or lesbian motherhood generally229 were frequently dismissed. In caseswhere either a court appointed or partisan psychologist, psychiatrist or counsellor hadinterviewed the mother and/or child and recommended in the mother’s favour, the mother stillhad a far less than even chance of winning custody.23°226This evidence was accepted and the mother successful in the following cases: Canada: Barkely, 1980, K v K,1975; UK: B v B, 1991 (however, explicit acceptance of the data undermined by later suggestion that if themother were militant the child could be ‘corrupted’); USA: M.P v S.P, 1979, Bezio v Patenaude, 1980(remanded for rehearing), Doe, 1983, S.N.B v R.L.B, 1985; Australia: O’Reilly, 1977, L and L, 1983. For areview of such literature, see F. Tasker and S. Glombock, “Children Raised by Lesbian Mothers: The EmpiricalEvidence” [1991] Family Law 184.227My question, when faced with the ongoing array of experts is: if nobody here is sick, why are we all callingthe doctor? Nancy Polikoff is one of few commentators to express reservations about these tactics: see N.Polilcoff, “Lesbian mothers, Lesbian Families: Legal Obstacles, Legal Challenges” (1986) 14 New York UniversityReview ofLaw and Social Change 907 at 908-9.228Psychiatric testimony as to the father’s unsuitability was also discounted: see eg Canada: Case, 1974,Bemhardt, 1979; UK: Eveson, 1980.229Although the major focus was on the sexual identity of the children of lesbians, there was some evidence as tochildren’s self esteem and popularity also.230 In these cases there were 7 winners - Canada: Daller, 1988, K v K , 1975, Robertson v Geisiner, 1991(father also gay); UK: ReD, 1983; USA: M.P v S.P, 1979, Bezio v Patenaude, 1980, Peyton, 1984; and 11losers - Canada: Adams v Woodbury, 1986 (adoption without lesbian mother’s consent), Elliott, 1987, Bernhardt,1979; UK: S v S, 1978, Eveson, 1980, Holder, 1985, C v C, 1991; USA: N.K.M v L.E.M, 1980, M.J.P vJ.G.P, 1982, Collins, 1988, Pleasant, 1993 (re: access).84In a small number of cases, the judge refused to consider the evidence as persuasive in favourof the mother but did not expressly reject it either. Such disregard of the evidence was justifiedby the unavailablity of experts to cross-examination, a claim that it was unnecessary toconsider secondary sources when case law from that jurisdiction was available to follow, orbecause the empirical research was from another country.23’When judges found to the contrary, that children of lesbians would be influenced to behomosexual, the reasons for actually rejecting the evidence were manifold. Not uncommonly,the father would bring his own psychiatrist or psychologist to say that the children would be‘influenced’ or ‘harmed’, and whatever the comparative levels of experience and expertise, thejudge chose to accept the doctor advocating contagion.232In numerous cases the judge would simply assert that it was common sense that the childwould be influenced to be homosexual.233 Alternately, the judge would deflect away from theevidence by contending that whatever the children’s sexual identity, s/he would neverthelessbe ‘harmed’, ‘disturbed’ or ‘traumatised’ in some other, unspecified way, by the mother’s231These cases were, respectively, USA: Jacobson, 1981, Diehi, 1991; and Australia: P.C v P.R, 1979. Themother lost in all three cases.232See eg: USA: Re Jane B, 1976, SvS, 1980, Dailey, 1981. Julia Brophy argues that this practice is prevalentin the UK, see Brophy, 1992, 49 1-2.233See eg UK: B v B, 1991 (a militant lesbian would influence child’s sexual identity, at 10), USA: N.K.M vL.E.M, 1980, SvS, 1980, M.J.P v J.G.P, 1982, L v D, 1982, S.E.G v R.A.G, 1987, G.A v D.A (no evidenceadduced, but in explicit reliance upon three prior cases in the same jurisdiction holding that child would beinfluenced to become homosexual), Constant A v Paul C.A, 1985. This reliance on common sense’, amountingto judicial notice, did also occur when no evidence was adduced either way: eg UK: ReA, ‘morally damaging’ at10, Eveson, 1980 risks; USA: Wemeburg, 1980 (children unharmed so far, but this ignored because they werenot residing with their mother), Kallas, 1980, Black, 1988, Collins, 1988, Chicoine, 1992 (concurring), Pleasant,(but remanded for rehearing on this and other grounds of error) 1993; Australia: Cartwright, 1977 (to be guardedagainst by the mother’s secrecy.) In contrast there are two Australian cases where the judge took judicial notice ofthe nature of lesbian relationships in a positive manner, absent any evidence: in Schmidt, 1979 as diverse, at78,657 and Jarman v Lloyd, 1982 as sufficiently common to be noticed as producing children who are ‘apparentlyhappy and well balanced at 889.85lesbianism234 - a notion of the mother as horrific or monstrous to which I will return inChapter 5.A nexus test? the irrelevance of evidenceLike evidence about sexual identity, arguments that there must be a ‘nexus’ shown between themother’s lesbianism and harm to the child likewise often failed to persuade. In only two caseswhere there was no nexus between the mother’s lesbianism and the best interests of the child attrial and this issue was argued at appeal, did the appeal succeed on that basis.235On the one hand, judges can use the future focused welfare test to argue that they need not, infact, must not, wait until ‘the damage is done’ if there is the slightest possibility of harm to thechild.236 Thus, in family law matters using the ‘best interests of the child’ test, the judiciarymay sidestep the nexus test as a matter of law. Furthermore, even if the sexuality of thechildren was not in issue, the untested possibility of the child/ren being teased or stigmatisedby their peers at some time in the future was usually held to be sufficient evidence of harm.237Even courts in Canada and Australia, which have held unwaveringly that lesbianism per se isnot against the child’s best interests and a nexus must be shown, have utilised the untestedpossibility of lesbian/gay or stigmatised children to require various ‘protective’ measures of234eg Canada: Elliott, 1987; UK: C v C, 1991, USA, Wemeburg, 1980, Constant A v Paul C.A, 1985, S.E.G vR.A.G, 1987.235U5A: S.N.B v R.L.B, 1985, Bezio v Patenaude, 1980 (notably, in this case the father was not suing forcustody; rather it was a friend of the mother, whom it was also suggested was lesbian).2365ee eg Canada: Elliott, 1987, USA: Dailey, 1981. N.K.M v L.E.M, 1980, SvS, 1980, Collins, 1988, Whitev Thompson, 1990, Thigpen v Carpenter, 1987.237UK: Eveson, 1980, C v C, 1991; USA: M.J.P v J.G.P, 1982.86the mother as a condition of custody (such as not telling her children of her lesbianism, notshowing affection with a lover, not allowing lover to live in) 238In essence the nexus test, like expert evidence, relies upon the notion of a testable truth - aclaim generally made by science but one which is also aspired to by law.239 In any legal foruma judge is not bound to accept expert evidence and is capable of exercising discretion. Infamily law matters a judge is free to make numerous suppositions regarding the future, andindeed is required to do so. Evidence, like fact, is a very tenuous concept in such an arena, asfamily law judgments necessitate the subjective assessment of individual personalities and theultimate pronouncement of what is ‘best’ •240Within such a structure, arguments by counsel and commentators based on scientific ‘facts’and demanding a kind of evidentiary procedural fairness, have been, and arguably willcontinue to be, largely ignored.Equality andfreedom: the offensiveness of rightsRights based arguments, by way of contrast with nexus arguments, have not been met so muchwith indifference as outright hostility. The cases in which ‘rights arguments’ were raised areall American, reflecting perhaps the relative newness of the Canadian Charter and its exclusionfrom the ‘private’ arena of family law24’ and the absence of a bill of rights in the UK and238See Australia: 1977, Cartwright, 1977, Kitchener, 1977, Brooks, 1977, Schmidt, 1979, Canada:Bezaire, 1980. These restrictions will be discussed in greater detail in Chapter 5.2395ee Smart, supra n 29, Chp 1.2405ee eg, Bradley, supra n 52, 159; Sack, supra n 7, 293.24’Young v Young, (1994) 49 R.F.L 117 (S.C.C).87Australia. Rights based arguments arise frequently in lesbianandgay articles and case notes onfamily law.242In American case law, all at appellate level, constitutional arguments were raised in 14 casesbetween 1976 and 1992, and were either disregarded completely243 or dismissed afterdiscussion.244 In not one case did a constitutional argument, for equal protection, privacy orfreedom of association, succeed.245 In a small number of cases the court replied thatgovernment did have the right to regulate lesbian sexuality, or that lesbians had no right toprotection.246 A typical dismissal is the judgment in the US case Re Jane B, which closed areview of constitutional cases raised in the mother’s brief with,‘These cases do not, however extend the protection to innocent bystanders orchildren who may be affected physically and emotionally by close contact withhomosexual conduct of adults... This is not a matter of constitutional rights ofRespondent or [her lover] to be homosexuals or a violation of their freedom ofchoice of actions. The fundamental question is whether, in the sound discretion ofthe Court, this type of living environment is detrimental to the child and in her bestinterest’ (at 857, 858).242See eg Dooley, supra n 49; Notes, supra n 64; Fajer, supra n 49; Bateman, supra n 56; Leopold and King,supra n 68; Clemens, supra n 64; Brantner, supra n 49; Rosenbium, supra n 64; Dooley, supra n 49; Beargie,supra n 51; Gross, supra n 64.243USA: Ashling, 1979, DiStefano, 1978, M.P v S.P, 1979, Dailey, 1981, S.E.G v R.A.G, 1987, Mohrman,1989, Blew v Verta, 1992, Collins, 1988.244USA: Re Jane B, 1976, Schuster and Isaacson, 1978, L v D, 1982, Constant A v Paul C.A, 1985, Thigpen vCarpenter, 1987, Diehi, 1991.2451n a single case, an argument for freedom of speech made by the mother under the State constitution inquestion was successful in overturning a ‘gag order’ which had banned the parties from speaking to any person, inpublic or private, about the matter: see S.N.E v R.L.B, 1985.246eg USA: L v D, 1982, Constant A v Paul C.A, 1985, Thigpen v Carpenter, 1987.88The premise of the immutability of sexual orientation, which was central to gayandlesbianrights claims to equal protection under constitutional law247 backfired completely, as judgesresponded that while it ‘may indeed’ be beyond the mother’s control to be a lesbian, livingwith a lesbian lover and exposing one’s child to lesbianism was nonetheless a choice, and avery selfish one at that.248 A further point, delicately ignored in the judgments, was that thelived reality of the lesbian mother’s life directly contradicted a rights claim based uponimmutability. The sexuality of the lesbian mother before the court, or her sexual choices, hadclearly undergone enough of a transition to put her there in the first place - making an‘immutability’ argument look somewhat paradoxical.The general tone of response to right claims was that the welfare of the child, or children’srights, were always to be valued above parental claims. This approach is well illustrated by thedramatic response to a rights argument in the US case, Schuster and Isaacson, 1978,there is more involved than the rights of these two women. The lives of sixchildren are at stake’ (at 132).249Thus, the very act of claiming a right in this forum was seen to imply a lack of concern for thechild’s welfare. A Good Mother puts her child first, a claim to rights is a self-interested, and247See eg Dooley, supra n 49, 402, 406; Bateman, supra n 56. But contra Notes, supra n 64, at 621. This is notto say that constitutional rights claims must be based in essentialism, but rather that to date they mainly have beenrather than, for example taking the ‘disadvantage’ approach adopted in the Supreme Court of Canada decisionAndrews v Law Society of BC [1989] 1 SCR 143.248USA: Jacobson, 1981, Constant A v Paul C.A, 1985, Collins, 1988.249See also USA: S.E.G v R.A.G, 1987, at 167, Collins, 1988 at 22. Likewise in White v Thompson, 1990, anon-constitutional, case-law based ‘nexus’ argument against the trial decision was dismissed with the rejoinder,‘A parent’s chosen manner of living may not take precedence over the well-being of the children involved’ at1184.89therefore Un-motherly act.25° In only two of the 14 cases containing rights claims did themother win custody.251This chapter has aimed to highlight the extent to which lesbianism both focuses and delimitsthe inquiry when family law cases concern a lesbian mother. I have illustrated how the motherbecomes the focus of inquiry and how sexuality permeates the judgements to such an extentthat other factors become secondary. Rights and evidence are secondary to fears andperceptions of risk on the part of the judiciary. It is the origins and genesis of these fearswhich will be explored in the chapter to follow.250This theme is also present in UK cases, eg B v B, 1991, in the words of Callum, J, if parents are ‘sensible,‘nobody insists on their rights but always thinks of the children first (at 11).251USA: Schuster and Isaacson, 1978, M.P v S.P, 1979, both on other grounds. In Blew v Verta, 1992, themother’s access restrictions were removed, on other grounds, but custody remained with the father.90CHAPTER 4: The creation and representation of lesbians‘How a group is represented, presented over again in culturalforms, how an imageof a member of a group is taken as representative of that group, how that group isrepresented in the sense of spoken for and on behalf of (whether they represent,speakfor themselves or not), these all have to do with how members of a group seethemselves ... Equally, re-presentation, representativeness, representing have to doalso with how others see members of a group and their place and rights, otherswho have the power to affect that place and those rights. How we are seendetermines in part how we are treated; how we treat others is based on how we seethem; such seeing comes from representation.’ 252This chapter aims to situate my thesis on lesbian mothers in family law within a culturalcontext of representations of lesbianism and lesbian relationships. The previous two chaptershighlighted the ways in which ‘common knowledge’ about lesbians can be brought to bear infamily law cases. This chapter will explore where such ‘common knowledge’ may originate byexamining popular imagery of lesbians. This chapter will also examine how ‘disease models’and medicalised theories of the origins of lesbianism have been translated into popular culturalimages.This is not to say that images in popular culture have been formed by psychoanalytic andpsychiatric theories which have then proceeded to form what the public and the judiciary thinkabout lesbians and lesbian relationships. Nothing so linear has occurred, or could possiblyoccur. For one thing, such a progression would suggest that psychoanalysis began with a‘clean slate’, whereas it was itself an historically constituted ideology, full of the fears andfallibility of its proponents.253 Nor is mass culture simply a screen from which to read andanalyse the subconscious fears and anxieties of those who produce it - as culturalrepresentation involves both the conscious and unconscious of the many people who create it,252R. Dyer, The Matter of Images: Essays on Representation (London: Routledge, 1993) at 1.253See eg Kaplan, supra n 40, at 28, 45.91in addition to the views of the spectators who consume it. Both producers and consumers areconstituted by the dominant ideologies of the cultures of which they are a part, and both mayor may not resist these ideologies.Elizabeth Traube characterises the two approaches above, albeit somewhat reductively, as the‘socialist’ (mass culture inculcates inauthentic beliefs in audiences) and the ‘psychoanalytic’(mass culture is a faithful expression of collective beliefs), arguing that both offer partial andunnecessarily linear accounts. Rather, what Traube names ‘critical studies’ posits a circularrelation, whereby culture is both informed by and informs popular opinion/the unconscious.254It is this view, of a dialectic relation between the two, which I will be taking.The Western notion of lesbianism as a unified and overriding identity is often noted as a recenthistorical phenomenon, not really taking hold until the last century.255 The ‘creation’ of sexualidentity as a definitive identity, a way of conclusively classifying a person and therebyunderstanding their actions and motivations in every aspect of life, has been laid squarely atthe door of psychiatrists and sexologists.256 It is therefore important to review various medicalmodel accounts of lesbianism - its ‘causes’ and ‘manifestations’ - when discussing therepresentations of lesbianism in popular culture. The impact of psychiatric and psychoanalytictheories, however elite and ill-understood they may be, should not be underestimated. In thewords of Richard Dyer,254Traube, supra n 94, at 4.255See L. Faderman, Odd Girls and Twilight Lovers (New York: Columbia University Press, 1991), Chp 1. Itmust be emphasised, however, that the mere fact of the social construction of a category of identity does not makethe lived reality and effects of an identity, any less real - as those who enforce it continue to believe andemphasise its naturalness’ : see Costello, supra n 50, 124; Dyer, supra n 63, at 4.256See Faderman, supra n 255, Chp 1; M. Merck, Perversions: Deviant Reading (London: Virago, 1993), pp 3-29.92‘It is clear that no white person living in Europe, North America or Australasia inthe twentieth century is likely to be untouched by psychoanalytic notions - theywere designed to explain ourselves and have been successful. Popular and highculture alike are drenched in them. ‘257Interestingly, as will become clear in this chapter, almost every typology or ‘scientific’ theoryof lesbianism has found its way into popular culture, albeit in a simplified and oftenoverlapping or contradictory manner.258In discussing cultural representations, I will focus primarily on cinema, although I will alsonote other forms in relation to particular eras, for instance paperback novels in the l950s, andtelevision and magazines with regards to 90s ‘lesbian chic’. I have chosen to focus on cinema,rather than more widely consumed forms such as television, for a number of reasons. One isthat its rise has co-existed with that of lesbian identity.259 Cinema has also concerned itselfmore directly with the representation of sexuality than television, where matters such aslesbianism have been conspicuous only by their absence until very recently, and even then,usually going unnamed or unrepresented and existing by inference alone.260I have also chosen to focus primarily upon mainstream cinema from the USA - ‘Hollywoodmovies’ - even though the cases I discuss also come from the UK, Canada and Australia.There are a number of reasons for this choice. Pragmatism is one element, in that the sheerbulk of films emanating from Hollywood has ensured a cultural domination - they are seen and257R. Dyer, Only Entertainment (London: Routledge, 1992) at 4.258E. Ann Kaplan makes this point in regard to the representation of mothers in film, saying that there is aliteralizing and reducing of Freud: see Kaplan, supra n 40, at 110.259Andrea Weiss writes, Throughout the twentieth century - throughout the period in which the modem conceptof ‘lesbian identity has existed - the cinema has been one of the most pervasive cultural influences. Even in itsslow decline, it continues to reach vast numbers of people and strongly defme the ways in which we live.’ A.Weiss, Vampires and Violets: Lesbians in the Cinema (London: Jonathan Cape, 1992), at 163-4.260See Dyer, supra n 257, at 30; J. Milibank, “LA Kissing” (1991) (Sept) Australian Left Review 38.93distributed in the other countries in the study, whereas the reverse may not be true of, forexample, an English BBC or Film Four production in the US market. The volume andwidespread distribution of viewership means that such culture can truly be considered ‘mass’,along with television shows such as Roseanne, to be discussed later in this section.26’Alongsimilar lines, theorists and commentators on film and cultural studies tend to write primarily,if not exclusively about American movies, even if they are from elsewhere. Most writersregard popular American film as influential across national borders, constituting a major partof ‘Western culture’ •262 Moreover, some theorists argue that the representation of lesbians inother forms, such as European art house cinema, are different in style but not in theme, fromthose in major Hollywood movies.263 Even with the relative decline of cinema in recent years,the words of the English writer Angela Carter regarding the 50s and 60s, ‘...Hollywood hadcolonised the imagination of the entire world and was turning us all into Americans,’ still holdtrue to some extent.264It must be remembered that the production of film, to a greater extent than most other media,has been the almost exclusive terrain of white men, and the audience addressed has also oftenbeen assumed to either be such a group or to identify with their interests, although manyothers have nevertheless read films ‘against the grain’ •265 For this reason, Richard Dyer261Whereas a lesbian episode’ of an Australian soap opera such as GP raised barely a mention, on top rating USshows such as L.A Law and Roseanne, there is the impact not only on the millions of viewers of the show at thetime, but in media reportage of the event, both before and after it as well.262Two major writers upon whom I rely in this chapter, Richard Dyer and Barbara Creed are English andAustralian respectively, but nevertheless write largely about US films.263Seg Merck, supra n 256, at 76, 162-3; Weiss, supra n 259, at 109.264A. Carter, Expletives Deleted (London: Vintage, 1992) at 5.265 eg R. Dyer, Now You See it: Studies on Lesbian and Gay Film (London: Routledge, 1990) at 2; Weiss,supra n 259, at 50, 164.94remarks, ‘The representation of women and other oppressed groups was, and by and large stillis, a relentless parade of insults.’266 More particularly, Andrea Weiss claims:‘The few lesbian images offered by the cinema were created for heterosexual maleviewers, to appeal to male voyeurism about lesbians and to articulate and soothemale sexual anxieties about female autonomy or independence from men.’267These images have had a profound impact on how lesbians see themselves, as well as howothers view lesbianism, which in turn influences perceptions of lesbians in the courtroom. InTania Modleski’s words, ‘..we exist inside ideology.., we are all victims, down to the verydepths of our psyches, or political and cultural domination (although we are never onlyvictims). ‘268In addition, lesbians (and gays) more than many other groups have been subjected to‘typification’ by mainstream cinema, because lesbianism as an identity is not in itself visible inthe way that other categories of identity such as race and gender usually are. Also, until veryrecently, government-imposed and industry self-censorship meant that lesbians could not beshown engaged in that which defines them as such - sexual attraction to or activity with otherwomen.269 Nor could identifying words, such as ‘lesbian’, ‘queer’ or ‘that wayt be spoken.27°266Dyer, supra n 252, at 1.267Weiss, supra n 259, at 4.268Modleski, supra n 101, at 45.269There is much debate among lesbians as to how lesbianism is to be defined. See eg Adrienne Rich, arguing thatlesbianism is a continuum covering a range of experience which may not be genital in, “Compulsoryheterosexuality and lesbian existence” and Judith Butler arguing that lesbian as a category of identity is not ofitself a useful thing in”Imitation and gender insubordination” (both printed in H. Abelove, M. Barale and D.Halperin, The Lesbian and Gay Studies Reader (New York: Routledge, 1993) at 227 and 307 respectively).However, this chapter is not concerned with how lesbians see ourselves, but rather how lesbians are perceived inmass culture. I contend that in popular consciousness, lesbians are defined as primarily, perhaps exclusively assexual beings (see eg Fajer, supra n 49, at 514; Cain, supra n 2, at 213; Caroline Sheldon in Dyer, supra n 63, at23) and constituted through an understanding of lesbian sexuality as a distortion or deviation fromheterosexuality. Moreover, in the forthcoming section on lesbian chic, it becomes clear that some women may95In one of the most famous American films to be made about (false accusations of) lesbianism,The Children’s Hour (1962), the most explicit reference was to ‘it’. Thus lesbianism had to besignified by visual cues, such as being overweight or wearing masculine clothes (‘women incomfortable shoes’ being a euphemism for lesbians which has survived to this day) or by acharacter ‘type’, such as a frustrated older woman taking an inexplicable interest in theromantic life of a younger female character.27’Richard Dyer notes:‘Such a repertoire of signs, making visible the invisible, is the basis of anyrepresentation of gay people involving visual recognition, the requirement ofrecognisability in turn entailing that of typicality.’272In turn, the appearance of one lesbian character or film which represents lesbians, may beinterpreted as showing a ‘truth’ about lesbianism generally. For instance, Vito Russo notes thatthe howlingly stereotypical The Killing of Sister George (1968) was received with commentssuch that it was ‘true’ and ‘recreates the whole lesbian world’ upon its release.273 Moreover,representations of ‘types’ and typicalities may themselves be contradictory, and variousdisjunctive myths appear side by side.274have sexual relations with other women and yet not be viewed as lesbian in the common ken, suggesting that it isexclusive sexual relations with women which are necessary.270See eg V. Russo, The Celluloid Closet Rev ed (New York: Harper and Row, 1987) at 63, 102, 105, 136-142,158. The lengths to which censors were prepared to go should not be underestimated. Take for example athrowaway line in a 1951 film where a showgirl is asked whether she has a fairy godfather, and her reply, ‘No.But I have an Uncle in Chicago we’re not too sure about’ being deleted as obscene (at 43). Even after thegovernment codes were lifted in the USA, an industry code of self censorship with homosexual imagery persisted.2715ee Dyer, supra n 252, particularly in relation to film noir, at 31-68.272Dyer, supra n 252, at 19.273Russo, supra n 270, at 170. Likewise, Mandy Merck notes that a film both written and directed by aheterosexual man, Lianna in 1983 was received as ‘true’ and ‘realistic’ by reviewers: Merck, supra n 246, at 162.274lnterestingly, E. Ann Kaplan makes this same point with regard to representations of (heterosexual) mothersin mass culture: Kaplan, supra n 40, at 19.96Lesbians and lesbian relationships have been portrayed by many ‘types’ in film, often incombination, and have included the following:• Male-identified, masculine, ‘butch’• Manhating/Afraid of men, and/or rejected by men• Immature, childish, a schoolgirl phase• A mother/daughter mimicry• Narcissistic• An unequal/sadistic/vampiric relationEach of these types can also be found in psychiatric literature, and in family law judgments.This chapter will explore the occurrence in medical discourse and popular culture of each typein turn. As most of the sources on which I rely are current up until the early l990s, I willbriefly discuss the impact of the so-called ‘new lesbian chic’ on mass culture. The chapter tofollow will then explore their occurrence in family law judgments concerning lesbian mothers.I proceed from the assumption that none of these types are ‘true’, in the sense that while somelesbians may be accurately described by them, this would be no more so than women in anyother section of the population.275 The typologies discussed in this chapter pathologise lesbiansqua lesbians and ignore much clinical research showing that lesbian and non-lesbian womenare similar in their placement along the entire spectrum of mental health and self identity.276275The formulation of such types has consistently ignored the range and diversity of lesbian experience, discussedfor instance in G. Hanscombe and J. Forster, Rocking the Cradle: Lesbian Mothers, a Challenge in FamilyLiving (Boston: Alyson, 1982) and S. Pollack and J. Vaughan, Politics of the Heart: A Lesbian ParentingAnthology (New York: Firebrand, 1987). Ellen Lewin • s research on lesbian and heterosexual single mothers inthe USA concluded that they held more in common than they were different; see Lewin, supra n 30.276See eg N. O’Connor and J. Ryan, Wild Desires and Mistaken Identities: Lesbianism and Psychoanalysis(London: Virago, 1993).97I: We know your typeThe masculine, male identified or ‘butch’ lesbian, and by extension butch/femme pairsThe official typology of lesbians as masculine has its source in the late 19th century in thework of two men, from Austria and England respectively, Richard von Krafft-Ebing andHavelock Ellis. Although both men saw lesbianism as a form of masculinity, they tookdifferent views as to how lesbianism arose and manifested itself. Krafft-Ebing believed thathomosexuality was congenital, a form of gender ‘inversion’ such that gay men were afflictedwith femininity and lesbians with masculinity, to the extent that homosexuals formed anintermediate ‘third sex’. This inversion was fixed and visible in appearance.277The flaw in Ebing’s theory was that it took no account of lesbians who were ‘feminine’ inappearance. Ellis theorised two distinct conditions; sexual inversion, modelled on Ebing’sview, and also ‘female homosexuality’. Female homosexuality was an acquired trait, whichotherwise ‘normal’ women were lured into by real inverts. Thus Ellis accounted for theexistence of ‘femmes’, who were theorised as too unattractive to interest men, or else had beendeterred from doing so (thereby opening the door for later scientists to search for ‘causes’ ofthis repudiation of heterosexuality). Ellis also laid the blame for female homosexuality clearlyat the door of the ‘inverts’, who had caused these indeterminate women to become homosexualby seducing them into it. 278 Moreover, as Ellis’ work progressed he came to identify the threatof contagion with female education and feminism, lending credibility to the fear thatindependence from men and/or all-female environments would corrupt women irretrievably.279277 Merck, supra n 256, at 3; Weiss, supra n 259, at 7-8; Faderman, supra n 255, at 41-2 for lesbian-orientedcritiques of the work of both men.278See Weiss, supra n 259, 43; Merck, supra n 256, at 24.279See Faderman, supra n 255, at 45-6.98The typology developed by Ellis thereby laid the groundwork for popular conceptions oflesbian relationships as butch/femme, as arising in the boarding school, and also as vampiric -with the ‘real’ one trying to drag the innocent one down into ‘the life’. By 1910 his work wasin the mainstream press, in 1928 he wrote the introduction to the first edition of RadclyffeHall’s infamous Well ofLoneliness, (said to be the first lesbian novel in the English language,and immediately banned in England)28°and by the 1930s his views were clearly discernible infilms such as Pandora’s Box.281By way of contrast, Sigmund Freud actually wrote very little directly on the subject oflesbianism, and was far more circumspect when he did so. Although he resisted anyclassification of sexuality as congenital, Freud nevertheless characterised the two lesbianclients about whom he wrote as masculine in appearance or identification, and lesbianism itselfas a form of masculinity.282 Freud also made it clear in his one case study of lesbianism in1920 that the client’s express wish for a child had to be a substitute for some other real wish,as lesbianism was definitive evidence of masculine identification, and therefore could notgenuinely co-exist with the desire to be a mother - a ‘feminine’ identification.283280lnterestingly, Hall’s novel relied more heavily on Krafft-Ebing’ s views: see Merck, supra n 256, at 88.281See Weiss, supra n 259, at 9. The most blatant homage to Ellis was a 1939 docu-drama entitled Children ofLoneliness, which featured an onscreen psychiatrist discussing how to cure homosexuality. In the film, ‘Eleanor’is susceptible to advances from another woman because she was ‘frightened by a man in her infancy.’ The otherwoman, ‘Bobby’, is a congenital invert, the audience is told, as the doctor successfully encourages Eleanor tospurn her. This cinematic lesson was not shown in the USA until 1953, due to censorship regulations whichdeemed it obscene despite its obviously anti-homosexual educational intentions: see Russo, supra n 270, at 104-5.282See O’Connor and Ryan, supra n 276, at 37-41. Such a view has persisted in ‘scientific’ literature: see eg M.Saghir and E. Robins, Male and Female Homosexuality: A Comprehensive Investigation (Baltimore, Williams andWilkins, 1973).283See Merck, supra n 256, at 28-29. Carl Jung was similar to Freud in his slight attention to lesbians, andcharacterisation of lesbianism as primarily an identification with masculini see O’Connor and Ryan, supra n276, at 161.99Contemporary Freudians, such as Hanna Segal have taken these views even further, forinstance positing that lesbian couples both mimic and loathe the heterosexual couple, and byhaving children together seek to attack their own parents.284The importance of the characterisation of lesbianism as a form of masculinity cannot beoverstated in any work on lesbian motherhood, especially as it was yet further literalised by itsintroduction into popular culture: ie lesbians are mannish, therefore unwomanly, thereforeincapable of mothering.It took some years before these ideas ‘filtered down’ to the popular imagination. In VitoRusso’s opinion,‘Pop psychoanalysis was rampant in the Forties and Fifties, and gays wereincreasingly being defined in psychiatric jargon both onscreen and off.’285Throughout the l940s and l950s a masculine appearance and childlessness were two keyelements used to signify lesbian characters in film, particularly in film noir where homosexualcharacters were more common than other genres.286 In the 1960s lesbian relationships werecommonly configured as butch/femme with an aggressive ‘committed’ lesbian and a lesspowerful, feminine, easily influenced woman who was coded as indeterminate. A well knownexample of this is the UK film, The Killing of Sister George (1968) which focused on a lesbianrelationship (with dominating George in tweedy suits and passive Childie in little night284See O’Connor and Ryan, supra n 276, at 88-9.285Russo, supra n 270, at 99. The reasons for this were manifold. Among them was the desire to drive womenfrom the workforce and back into domestic ‘family’ life in the post-war years. Also in America conformity wasencouraged, with any deviation equated with communism and being anti-family. See Faderman, supra n 255, at130-141.286 Dyer, supra n 252, at 60-64.100gowns), although butch/femme signifiers were also present in a more subtle form in TheChildren’s Hour and The Fox (1968). At a slightly less literal level this butch/femmepatterning continued in a multitude of movies; for instance there are short haired/butch andlong haired/femme couples in films such as Personal Best (1982), Lianna (1983), Claire of theMoon (1992). Usually the short haired ‘butch’ is the ‘real’ lesbian, and the longer haired‘femme’ woman experiences lesbian desire only after encountering her (moreover, this desireoften turns out to be transitory, a point which will be discussed in a later section on narrativein Chapter 6).In smaller roles, lesbians appeared as masculine/butch in widely released commercial moviessuch as the James Bond films Goldfinger (1964) and From Russia with Love (1963) as well asto provide a plot twist or sight gag in numerous other mainstream movies of the 1960s.287 Inmany ways characterising lesbians as masculine continues as a frequent practice to date. As aquick gag or minor character lesbians are virtually always signified as butch, a sort of visualshort hand to let the viewer know that the woman is lesbian without needing to waste screentime in establishing it (see eg The Applegates, 1990, Chopper Chicks in Zombietown, 1990,Reform School Girls, 1988, Waiting, 1990). Moreover, since the 1960s, feminism has oftenbeen signified in a character by masculine appearance, and the similarity of coding in lesbianand feminist characters has suggested that the two are interchangeable (see eg Waiting, TheApplegates) 288A desire to masculinise lesbian characters and to express lesbianism as a form of masculinity isso strong that even stories taken from the lives of actual lesbians are often changed to fit into287See Russo, supra n 270, Frightening the horses chapter.288Sasha Torres argues that television also tends to use lesbianism and feminism as stand ins’ for one another(in Abelove, Barale and Halperm, supra 269, at 177).101such a structure. A stunning example of this is the 1990 television production of the story ofVita Sackville West’s relationship with Violet Trefusis in England in the l920s. Portrait of aMarriage was filmed by the BBC, long revered for its attention to historical accuracy.289 Facedwith the stereotype shattering fact that in life Vita, who was taller, and wore pants in an erawhere it was considered very unfeminine to do so, was not the lifelong lesbian, nor theinitiator of the relationship (highly feminine Violet was both), the writer reversed earlyincidents of pursuit, and added a completely fabricated rape scene, with Vita as the aggressoron all occasions, so that the couple were then readily identifiable as butch/femme.Implicit in butch/femme characterisations is an underlying sense in the dominant conception(or the ‘straight mind’ as Monique Wittig calls it) that all homosexual relationships must be amimicry of heterosexual relations - such that heterosexual relationships are the ‘original’ towhich homosexual relationships must be the ‘copy’ - a point which will be discussed in greaterdepth in Chapter 6.Manhating dykes, rejected andfearfulfemmesThe idea that lesbians feel active hostility towards men in addition to, or instead of identifyingwith them, is rooted in Freud’s 1920 case study. Freud theorised that lesbianism was areaction to a rejection by a man (such as the father) leading to a repudiation of mengenerally.290289The series credits the source as Nigel Nicholson’s 1975 book, Portrait of a Marriage, which is in fact partly afamily history and biography of his mother, Vita, written by him, and partly an autobiographical account of Vitaand Violet s relationship written by Vita at the time and discovered much later. Letters from Violet to Vita arealso utilised, but uncredited. All three sources show Violet as the persistent initiator of the relationship, and nonegive any suggestion of sexual violence between the women.2908ee O’Connor and Ryan, supra n 276, at 41-45.102Jacques Lacan claimed that this rejection was even more crucial than Freud had suggested andespoused a view of lesbianism as thwarted and disappointed in essence.29’Mandy Merck hascommented in relation to Freud, and Judith Butler with regard to Lacan, that the tone of theirwritings suggests that it is they, rather than the lesbians of whom they speak, who are carryingthe bitterness of disappointment.292Freud, in his explicit identification with the father in the1920 case study, treated his client’s lesbianism as a rejection of his fatherhood/therapeuticpower, and abruptly terminated the analysis, suggesting the client should see a womaninstead 293Freudian feminist Karen Homey accepted the rejection theory and took it further. In her view,the fact that lesbian relationships definitely arose from earlier damaging heterosexualexperiences necessitated that, in O’Connor and Ryan’s words, ‘the subsequent homosexualrelationship is likely to be extremely ambivalent, unstable and prone to violent eruption.’294This view is far from forgotten. In a feminist Freudian text on motherhood in 1988, EstellaWelidon referred to women aged in their 30s who are single and childless, ‘giving up hope fora mutually loving relationship with a man’ and thus allowing ‘the surfacing of lesbianimpulses.’295 Once again it is interesting that in constructions of lesbian identity, specificallythose seeking a ‘cause’, motherhood and lesbianism are construed as dichotomous opposites.2911bid at 146.292 Merck supra n 256, at 21. Butler writes, ‘Indeed, is this account not the consequence of a refusal thatdisappoints the observer, and whose disappointment, disavowed and projected, is made into the essential characterof the women who effectively refused him’ quoted in 0 Connor and Ryan, supra n 276, at 146.293Merck, supra ii 256, at 21.2940’Connor and Ryan, supra n 276, at 211.295E. Weildon, Mother, Madonna, Whore: The Idealization and Denigration of Motherhood (London: FreeAssociation Books, 1988) at 43-44.103Manhating and masculine identification are often portrayed as corresponding characteristics inpopular culture. Vito Russo says of the 1940s and 1950s cinema,‘Neurotic and cold, these steely gorgons hinted at a perverse sexuality that wasnever quite made specific. Their behaviour was often pathological; they were seenas women trying to be men while in reality needing a man; they were grown uptomboys made to look pathetic and incomplete in their quest for status.In 1950 Lauren Bacall’s sophisticated Amy North in Michael Curtiz’Young Man with a Horn, Anne Baxter’s cool and deadly Eve Harrington in JosephL. Mankiewicz’ All about Eve and Hope Emerson’s sadistic prison matron EvelynHarper in John Cromwell’s Caged all shared unstated lesbian feelings andmurderous impulses.’296These impulses became more explicit as time passed, for instance in the above mentioned1960s James Bond pictures, Goldfinger and From Russia with Love. Through the 1970s and1980s it became commonplace to present murderous women as lesbian in dramas297 as well asin the burgeoning horror genre.298 Recent films with lesbian undertones such as Single WhiteFemale (1992) and explicit lesbianism such as the blockbuster Basic Instinct (1993) continue toperpetuate this theme of manhating killer dykes.Rejected and disappointed women appear most often in the guise of the abused. Thus, both ofthe characters in the lesbian couple in The Hotel New Hampshire (1988), the daughter in TheApplegates and Celie in The Color Purple are raped and/or beaten by men in the course of thestory, before embarking briefly on a lesbian relationship. In the liberal film with a good heart,Lianna, the eponymous heroine’s otherwise incidental husband evinces much insensitivity and296Russo, supra n 270, at 100.297See ibid, at 154, 183.298See Weiss, supra n 259, at 84; B. Creed, The Monstrous Feminine: Film, Psychoanalysis, Feminism (London:Routledge, 1993) at 59-63.104many affairs before she leaves him for another woman. Likewise in the recent subliminallylesbian Fried Green Tomatoes, Ruth’s husband batters her for years before she allows her ‘bestfriend’ Idgie to rescue her, and the two women ‘settle down’ together.299Immature or childish lesbian, lesbianism as a schoolgirl phaseHavelock Ellis explicitly pathologised the schoolgirl ‘crush’ in an essay in 1897 as leading tolesbianism, and henceforth romantic feelings between girls and young women became anincreasing focus of sexology where before they had been regarded as healthy and evenencouraged.30°In his work in the 1920s and 30s, Freud posited that lesbianism arose in partfrom the failure of girls to transfer their affections from their mothers to their fathers. Thus, inFreud’s conception, lesbianism was a form of arrested development, immature; not fullyformed as a heterosexual love-choice would be.30’Later Freudians have taken this theme further, arguing that lesbianism is actually an infantilestate. Helene Deutsch for instance, emphasised that lesbian sex involved oral activity,characterised by her as sucking and therefore regressive and infantile and, as recently as 1989,London psychoanalyst Adam Limentani claimed that immaturity is a common personalityfeature of lesbians.302 From a phallocentric viewpoint, lesbian sex lacks something essential -299Adrienne Rich (in Abelove, Barale and Halperin, supra n 269, at 245) notes that in literature one of the mostfrequently quoted passages regarding lesbianism remains that from Collette’ s The Vagabond, which reads, in part,the melancholy and touching image of two weak creatures who have perhaps found shelter in each other sarms, there to sleep and weep, safe from man who is often cruel, and there to taste better than any pleasure, thebitterness of feeling themselves akin, frail and forgotten.’300See Dyer, supra n 265, 39; Faderman, supra n 255, Chp 1.301See Dyer, supra n 265, at 40; O’Connor and Ryan, supra n 276, at 33.302See O’Connor and Ryan, supra n 276, at 70-71, 87.105the phallus - and is therefore not ‘real’ sex.303 Lesbian sexual activity is viewed as that whichought to precede (heterosexual) intercourse, but instead is misused to merely play around onits own, an extended and unfulfilled ‘foreplay’. Lesbianism is thus characterised by this schoolof analysis as fundamentally a form of incompleteness. On this basis numerous Freudiananalysts, such as Donald Meltzer and Elaine Seigal, continue to view lesbians as immature, asdoes theorist Jacques Lacan.304 Once again, Carl Jung, although at loggerheads with Freudover so many things, was essentially in agreement with him here.305The genre of lesbian schoolgirl films began in the 1920s and 30s, with classics such asMadchen in Unforin (1931), Club de Femmes (1936) and The Wild Party (1929) and hascontinued to this day fairly much unabated, although with highs and lows at different times.306Modern soft porn films such as Bilitus (1979) portray young schoolgirls in lesbian situationsfor the voyeuristic pleasure of heterosexual male viewers.The depiction of lesbianism as an adolescent phase is prevalent even outside of the girls schoolsetting. Films as diverse as Personal Best (female athletes), The Color Purple (rural women)and Emmanuelle (promiscuous woman in soft porn) have made use of lesbianism as a rite-of-passage for the adult heroine before she goes on to more mature, clearly heterosexual,relationships. Alternatively, the character may remain a lesbian, fixed forever in her immaturestate. This theme is brought home heavily in The Killing of Sister George through a characternamed more clearly than a Street sign, ‘Childie’. As an infantile child-woman Childie is shown3030’ Connor and Ryan write, ‘Sex outside the phallic field appears to be inconceivable as ‘proper’ sex, and thisimpression is bourne out by an examination of contemporary psychoanalytic texts on the subject’ : ibid at 175.3045ee O’Connor and Ryan, supra n 276, at 90-91, 95-96, 146.3051bid, 164-5.306 Weiss, supra n 259, at 8-17.106as incapable of mothering because mothering is the terrain of mature femininity, thus she isreduced to flouncing around at the age of 30 with a collection of anthropomorphised dolls.A common variation of the schoolgirl story involves a girl/teacher infatuation orrelationship.307 Such a formulation highlights a mother-daughter relationship even morestrenuously, and thus will be discussed below.Mother/daughter mimicryThe link between lesbianism as arrested sexual development and lesbian relationships asmother fixation or a mother-daughter dyad is a very strong one, with roots in Freud’sconception of lesbianism as a failure to transfer from the mother to the father.308 A corollaryof viewing lesbian sexuality as infantile is to then characterise lesbian relationships asmother/child. The idea behind mother/child characterisations is that lesbianism is a‘regression’ or inability to engage in ‘mature’ (hetero) sexuality therefore points backwards toa longing for the mother. This view was present in the early work of feminist NancyChodorow and remains in a 1988 feminist psychoanalytic text by Estella Welldon.309 Suchreductionist functionalism is also at the core of Freudian Helene Deutch’ s work; her logicbeing that if one woman is a ‘baby’ for engaging in infantile lesbian sex such as sucking, theother must be a ‘mother’ for being sucked.31°307See Dyer, supra n 265, at 3 8-39.3081b1d, 40; O’Connor and Ryan, supra n 276, at 36.309Welldon, supra n 295, at 43-44.310See O’Connor and Ryan, supra n 276, at 70-71.107In film, the figure of the older ‘motherly’ woman preying in a sinister manner upon theinnocence of younger women arose in the late 20s and 30s. Interestingly, the figure of thesinister, obsessive Mrs Danvers in the Hitchcock classic Rebecca (1940), was seen byheterosexual feminist E. Ann Kaplan as an over involved/consuming mother to Rebecca,whereas leftist gay theorist Richard Dyer read the same text and visual codes as symbolising alesbian relation, suggesting that early codings for these two things were similar, or perhapseven deliberately conflated.312In recent times mother/daughter coding has continued at a subtextual level. In Lianna thestudent is an adult at university, and the woman whom she has a ‘crush’ on is a femaleprofessor (who is albeit, older, wiser, shorter haired and a ‘confirmed’ lesbian, as the sayinggoes). Another example is the character of ‘Dolly’ (once again a name highlightingchildishness) who is unrequitedly in love with Karen Silkwood in the film Silkwood (1982).She is consistently shown depending upon Karen emotionally and positioned as the child ofKaren and her male lover, most notably when her ‘first’ sexual experience is shown from theirviewpoint. Likewise, the older wiser Shug initiates the inexperienced Celie, alternately dotingon and patronising her in The Color Purple.313Vampire films as a genre blossoming in the 1960s and 1970s, frequently depictedmother/daughter dyads, with the older, experienced vampire preying upon younger women311See Weiss, supra n 259, at 11-12.312See eg Kaplan, supra n 40, at 117; Dyer, supra n 252, at 63.313See Weiss, supra n 259, at 60, 78; Merck, supra n 256, at 171-2. Art house cinema has also usedmother/daughter imagery in lesbian relationships, albeit perhaps more consciously. An overt example of this isthe French-Canadian film Anne Trister (1986) where the relationship is between a young artist, Anne, and anolder child psychologist, Alix. Scenes of the emotionally troubled Anne painting are intercut continually withthose of Alix at work with a young disturbed girl, who is also frequently painting. Revealingly, in Lianna, theolder woman is also a child psychologist.108and thus ‘creating’ others like her. This genre displays a visual breast fixation, and a great dealof sucking, often with blood being taken from the breast rather than the more traditional neckposition.314 Titles also literalistically point towards the symbolism to follow, for example,Daughters ofDarkness (1970). In The Hunger (1983) a modern and glamorous update on thetraditional tale, the vampire, played by Catherine Deneuve, is marked as a mother to those sheseduces and vampirises, notably as she ‘trains’ and ‘teaches’ Susan Sarandon how to feed.315In the print media, in the current throes of ‘lesbian chic’, mother-daughter imagery with itssuggestion of regressive pathology, is not entirely absent either. A notable example is providedby the cover of the September 1993 Interview magazine. The cover shows Raquel Welch in askin tight low cut velour pants suit and an apparently identical woman, wearing a bathing suitof the same fabric is standing straddling her thigh. Their hands are clasped together andbreasts are pressed tightly against each other in a sexualised tango pose. The bottom left cornerreveals that this woman is Raquel’ s daughter, Tahnee. The similarity of their hairstyles, thefabric of their clothes and the title ‘Lightning strikes twice’ suggests a narcissistic mirror-pairing.NarcissismTheories of lesbianism as a form of narcissism are closely linked to those of immaturity andmother fixation, again originating in the Freudian conception of pre-Oedipal and Oedipalpassage. In a similar manner, later Freudians such as Adam Limentani and Elaine Seigal havetaken these ideas further, and posited narcissism as an essential attribute of lesbians; the idea314See Weiss, ibid, 94.315SCreed, supra n 298 at, 67-70.109being that lesbians have relationships with other women because they cannot bear that which isdifferent, seeking out instead replicas of themselves.316The view of lesbianism as a form of narcissism also found its way into popular culture in the1940s and l950s, as medicalised discourse regarding sexuality took hold in Western countries.Narcissism is hinted at in voyeuristic ‘body pics’ such as Personal Best and Bilitus, as well asmore ‘serious’ films such as Entre Nous and Lianna, where both the women themselves andthe viewers spend much time gazing at the spectacle of female flesh. Moreover, in Entre Nous,the women discuss the attractions of each other’s bodies while ostensibly eying themselves in alarge mirror which they are both facing as they dress after a swim.317 In the vampire genrethese links are also made explicit through matched appearances. After beingseduced/vampirised, the victim appears increasingly similar to the vampire to the extent thatthey become narcissitically paired.318Narcissism has recently had a resurgence through the Hollywood ‘female psychotic’ genre, forinstance in the sub-textually lesbian Single White Female where the female psychopath‘cannibalizes her friend’s personality, appearance and mannerisms’ before escalating tomurder. Her psychopathology is eventually revealed as being caused by the death of her twinsister, no less.319316See OConnor and Ryan, supra n 276, at 33, 87, 95-96.317See Merck, supra n 256, at 173-4. Other European art house film has also shown lesbians engaged innarcissistic mirroring through identical or very similar clothing, such as The Bitter Tears of Petra von Kant(1972).318See Weiss, supra n 259, at 94.319Creed, supra n 298, at 122.110An unequal/sadistic/vampiric relationUnlike the earlier categories, the widespread view of lesbian relationships as inherentlyunequal or sadistic has no firm basis in psychiatric or psychoanalytic theory. Rather, it is apastiche of different views: one of which is that the female child’s failure to transfer to thefather, or her male identification in the family model, meant that she would have suppressedresentment and hostility towards the mother, and would thus enact aggression upon her lesbianpartners.32°In a similar manner, Karen Homey’s belief, mentioned earlier, that lesbianismarose from a disappointment in heterosexuality necessitated that lesbian relationships would beviolent and unsatisfactory (as they were poor substitutes for the real object choice). Thephallocentric characterisation of lesbian sexuality as essentially unfulfilled also forms the basisfor assumptions that lesbians are therefore frustrated and twisted and liable to vent thisfrustration through sadistic acts.32’ Alternatively, the belief that lesbian relationships followeda butch/femme configuration, mentioned earlier, laid the ground work for assumptions thatsuch relationships would be unequal, as the ‘butch’ would hold more power, just like men aremeant to.In a discussion of film noir, Richard Dyer notes that many of the lesbian relationships are inan employer/employee form in a working context, and says,‘This emphasis on lesbians as working women always carries strong elements oftyranny and violence, of servants towards mistresses. . . of madames to their girls.This tyranny then shades into the character’s feelings of attraction to the woman inquestion. The equation of lesbian love with tyranny is also the strongest impressionwe get from the scene between Irene and Georgia in the caravan in Tony Rome andbetween George and Childie in The Killing of Sister George (1969). The tyrannic320See O’Connor and Ryan, supra n 276, at 75.321 Dyer, supra n 252, at 68.111form of the employer/employee relationship which is established by the place of thelesbian relationship in film noir thus carries over into films where the lesbiancharacters are supposed to be each other’s social equal.’322Lesbian sadists also explicitly appear in Rome, Open City and From Russia with Love. Powerimbalances in lesbian relationships through age, class and wealth differentials are common,and heavily laboured in popular cultural representations.323 Women’s prisons have been apopular setting within which to depict sadistic lesbians. Within the hierarchical and closedenvironment, as guards or highly placed prisoners, they rape, trick or blackmail ‘innocent’(both in the sense that they are sexually inexperienced and did not commit the crime of whichthey were accused) female prisoners into non-consensual sex. The foremost examples of thisare Caged (1950), and Scrubbers (1978) both of which were paid homage to in Reform SchoolGirls (1988).324Another overt depiction of power imbalances and sadism in lesbian relationships is as a formof vampirism, an association that has been both far reaching and long lived, resonatingthrough mainstream drama in addition to the horror genre.325 Richard Dyer notes that inpublicity stills for numerous films with lesbian texts or subtexts, the ‘dyk& character appearsdangerous and threatening and is positioned behind the ‘sexually indeterminate’ woman. In thisposition she ‘appears to be trying to draw the indeterminate woman into her thrall, not by3221bjd, 63-4.323See Costello, supra n 50, at 135; Dyer, supra n 63, at 33-4.324Sadistic lesbianism is also a stock-rn-trade in television portrayals of women s prisons, for example thecharacters of The Freak and ‘Frankie in the long running Australian series Prisoner, which was shown in theUK under the title Prisoner Cell Block H and re-filmed with the same scripts in the USA as Dangerous Women. Inthe Spanish film High Heels (1992) a prison sequence likewise features sadistic lesbians, albeit without sexualviolence.325Weiss, supra n 259, at 88.112direct assault or honest seduction but by stealth’; an image of ‘malign lesbian power.’326 Thecharacter of the ‘predatory clyke’ is so common as to be a stock type in cinema.327Within the horror genre, Barbara Creed notes, ‘The combination of “lesbian” and “vampire” isa happy one since both figures are represented in popular culture as sexually aggressivewomen.’328 The genre itself is also an appropriate site to examine for these representations, asshe states further that horror films have been,‘more willing to explore male and female anxieties about the ‘other’, than filmtexts which belong to mainstream genres such as detective, suspense thriller,comedy and romance films.’329Within the vampire genre, even a consensual relationship is pathological because thepreservation of one party relies upon the destruction of the other and so, in the words ofAndrea Weiss, ‘sexuality and violence are visually coupled, as complementary qualitiesintrinsic to a lesbian relationship.’330 Vampires are also closely associated with the Westerncultural notion of woman as nature, and lesbian sexuality as therefore close to bestiality.Richard Dyer notes that cinematic representations of lesbians often link them with animals andanimality, both within the horror genre and without jt’ - a point which will be taken up inChapter 6 in a discussion of lesbian as ‘abject.’326Dyer, supra n 252, at 37-38.327SWeiss, supra n 259, at 1; Russo, supra n 270, at 102, 225; Dyer, supra n 63, at 115.328Creed, supra n 298, at 59.329Ibid 152.330Weiss supra n 259, at 94.331Dyer, supra n 63, at 31.113At present some claim that there has been a ‘revolution’ in the 1990s in the way lesbians areperceived and represented. The phrase ‘lesbian chic’ now appears to be in common usage inthe US, and is known of in the UK, Canada and Australia, the countries which are the focus ofmy study.332 It is therefore important to examine these claims before progressing to anexamination of linking themes in the characterisations, or lesbian ‘types’ discussed above.II: What and why is lesbian chic‘Lesbian chic’ is a term which is used to describe a trend or ‘wave’ of media portrayals oflesbianism which, it has been suggested, are so overwhelmingly favourable that it isfashionable, or ‘chic’ to be a dyke in the 1990s. Numerous newspapers and magazines claimedlesbian chic as one of the major ‘events’ of 1993. This view of the sudden desirability oflesbianism was expressed by one newspaper article headline in the somewhat tongue in cheekmanner, ‘Want to get ahead? Get a girlfriend.’334 The essence of claims of ‘the new lesbianchic’335 is that there has been a deluge of media coverage of lesbians, this coverage has beenunequivocally a positive thing for lesbians, and this coverage either reflects or has led togreater tolerance of lesbians by society at large. An example is an article in the newspaperUSA Today in July of 1993 which reads:332A search of the keywords ‘lesbian chic’ retrieved 85 entries from a LEXIS journalism database in April 1994.The articles were from the USA, Canada and England and all dated from late 1992, predominantly mid to late1993. Interestingly, the reference librarian who conducted the search, a middle aged Canadian man, had neverheard of the term, and asked more than once if I was sure there really was such a thing before proceeding.333See eg L. Hurst, “No matter who you are, (or used to be) it wasn’t your year” The Toronto Star December 26,1993, Al; New York Times “The year in Style ‘93 was anything but waifishly endowed with trends, trivialities”The Atlanta Journal and Constitution January 2, 1994, Section L, 3; US Magazine “The biggest stories of ‘93”January 1994 US Magazine 50 (ranking lesbian chic 10 out of 93 ‘events’).334K. Viner, and J. Hankins, “Want to get ahead? Get a girlfriend: Why lesbians are big news in the US” TheGuardian July 8, 1993, Features, 13.335• Rubin, “The new lesbian chic” San Fransisco Chronicle June 22, 1993, B3; M. Alderson, “The newlesbians” Cleo Magazine, October, 1993, 68.114‘Lesbians have long been society’s ‘invisible homosexuals’. But now, as if aspaceship from Planet Lesbos crash-landed on earth, they’re everywhere. From theHollywood sound stage to the Washington political arena; from the best seller liststo the top of the music charts; from fashion editorial spreads to top corporateadvertisements, lesbians are looking good.’336Underlying this kind of analysis is an implicit assumption of a fixed and linear historicalprogress (viz: once lesbians were frowned upon, now lesbians are smiled upon), a sense of selfsatisfied congratulation (the media created lesbian chic) and an unquestioning sense that ‘chic’is universally accepted, at least in the Western world, and has eliminated any oppression thatmight have lingered until now.I will argue in this section, that not only is lesbian chic a very limited, primarily Americanphenomenon, it is also a fashion ‘fad’ and in fact dresses up a great many of the ‘old’ lesbiantypes discussed earlier, in ‘new’ chic clothing, affirming the media’s sense of its ownmodernity but changing little in terms of underlying assumptions about lesbian identity.The collection of cultural representations, including both ‘real’ personalities as well as fictionalcharacters, which are said to constitute lesbian chic are as follows. Singer/actress/publisher,Madonna, is widely credited as one of the originators of lesbian chic, specifically through theproduction of her Sex book (1993) in addition to the Erotica (1993) and Justfy my Love (1991)video clips, all of which feature lesbian imagery. Originally as a lesbian ‘personality’ inconnection with Madonna, actress/singer/entertainer/author Sandra Bernhardt (rumoured tohave been her lover, and appearing in the Truth or Dare 1991 rockumentary of Madonna) wasthen linked romantically with actresses such as Amanda Donohoe (who played a bisexualcharacter on the 1991/2 seasons of L.A Law). Other lesbian ‘personalities’ include336E. Snead, “Lesbians in the limelight: Some chafe at media’s embrace” USA Today July 13, 1993, 1D.115singer/actress kd lang, athlete Martina Navratilova, singer Melissa Etheridge, and on theperiphery, an actress from the sit-com Married with Children, and comics such as KateClinton, and Lea Delaria. In 1994 both lang and Etheridge released video clips of songs whichcontain suggested lesbian imagery.337Sandra Bernhardt has recently played the fictional character ‘Nancy’ in the 1992-4 seasons ofTV sit-corn Roseanne. Nancy was originally heterosexual, then came out as a lesbian, having arelationship with ‘Marla’ (jlayed as a visual gag by Morgan Fairchild) in the 1993 season,before promptly recanting, playing with heterosexuality once more and then deciding uponbisexuality. In the 1994 season ‘Nancy’ was shown in a relationship with ‘Sharon’, played byMariel Hemrningway (another visual gag, as Hernmingway is perhaps best known for theathletic lesbian flick, Personal Best). Considerable attention focused upon the series when anepisode was aired in which Sharon kissed ‘Roseanne’ when Roseanne and her sister ‘Jackie’visited a gay bar with ‘Nancy’ 338Also on television in a single episode of the TV sit-corn Seinfeld in 1993, ‘Susan’ the exgirlfriend of ‘George’, turns out to have become a lesbian since she left him. This discoveryleads George to have a renewed sexual interest in Susan (he finds it ‘exotic’ and a ‘challenge).Within the 30 minute episode, Susan’s girlfriend has left her for a man, ‘Kramer’, althoughSusan herself ignores George’s attentions.337Being “Keep on movu” and “Yes I am” respectively. Notably, numerous other bands, not identified as lesbianin any way, have also released video clips with lesbian imagery in 1994, such as Angel Fish (‘Heartbreak tohate’), Aerosmith (‘Crazy’) and Lush (‘Nothing natural’).338j Freedland, “News in brief: Roseanne’s kiss reverberates around television world” The Guardian February16, 1994, Foreign Section, 10.116In the 1992 blockbuster film Basic Instinct, Sharon Stone played ‘Catherine’ a bisexual authorsuspected of a series of sex-killings of men. The other three female characters within the filmwere also shown as either bisexual or lesbian.In the print media, the 1993 August issue of Vanity Fair magazine featured a cover of kd langand model Cindy Crawford in a sexual pose. In that year both Newsweek (June) and New Yorkmagazine (May) featured cover stories on lesbianism/lesbian chic.339 Print advertisements,such as those for the clothing company Banana Republic, have also featured women in poseswhich suggest sexual relationships. The print media, primarily newspapers, but alsomagazines, have then commented upon all of the above (personalities, fictional characters andmagazine imagery and coverage of lesbians) as creating a new trend or unified phenomenon,lesbian chic.Firstly, this ‘explosion’ or ‘revolution’ has occurred over a very limited time period andprimarily in the USA. Moreover, it constitutes a comparatively small number of personalitiesand characters. Vito Russo has noted in the context of film, that a trickle of one or two gaythemed movies in a market where ‘gayness’ is continually exorcised is almost always noted bythe media as a deluge or ‘gay explosion’ •340 Journalists in the UK commentating on lesbian339Commentary upon lesbian chic does not generally mention media coverage in countries other than the USA. InAustralia the conservative national magazine The Bulletin had a ‘lesbian cover in October of 1992 and through1993 several women s magazines, such as Australian Women ‘s Forum (March), HQ (Winter), Cleo (October) andNew Woman (June) contained lengthy and generally positive articles about lesbianism.340Russo, supra n 270, at 267-7, 302. There also is a deceit in this ‘deluge’ claim as the most commonrepresentation of lesbianism remains total invisibility, as lesbian characters present in life or in written fiction areroutinely excised in the transition to mass culture such as film. For example lesbian relationships were toneddown, reduced or removed entirely in Waiting for the Moon, (1987) The Color Purple, (1985) Impromptu, (1990)The Hotel New Hampshire, (1986) My Brilliant Career, (1979) Fried Green Tomatoes, (1992) and Ghost (1990).Moreover, any attempts to depict lesbianism in a neutral or favourable light still receive considerable opposition.In the USA the National Endowment for the Arts banned funding to artists or groups producing works withhomoerotic or homosexual themes in 1992 (see J. Breslauer, “Theater: Hughes’s battles with national endowmentfor the arts are behind her now” Los Angeles Times August 22, 1993, Calender, 7) and in 1994 the episode of thesitcom Roseanne which featured a brief kiss between Roseanne and another woman was reportedly blocked fromairing by the network which screens the top rating series (see Freedland, supra n 338). In the UK, Clause 28 has117chic are quick to point out that while there is considerable interest in the US situation, no such‘wave’ appears to be occurring in the UK.34’ A wave of interest, or plethora of culturalrepresentations need not herald acceptance, either, as the multitude of ‘lesbian paperbacks’produced and widely circulated by major publishers in the USA in the repressive l950sattests.342 At the present time, bell hooks argues that,within today’s cannibalistic market economy the willingness to consumehomoerotic and/or homosexual images does not correspond to a culturalwillingness to stand against homophobia or challenge heterosexism.’343Much media coverage has treated lesbianism as a fad or fashion accessory. For example, anarticle in American Vogue unselfconsciously named lesbians ‘the Hula Hoop of the 90s.’344This attitude is also revealed by the placement of articles on lesbian chic, almost universally inthe fashion, style, arts or lifestyle section of the newspapers which have covered it. Theimplications of lesbianism as a fad or fashion are twofold. On the one hand, lesbianism istrivialised to a style, a mere appearance of exoticism - lesbian chic is about ‘looking good’345banned local councils from funding the presentation of homosexuality in a positive light since 1988 (see Hermanand Cooper, supra n 139, at 41). In Australia in 1994, screening of excerpts of footage from the Gay and LesbianMardis Gras on the ABC channel drew extensive political opposition. Also, a commercial network refused to saythe word ‘lesbian in relation to the Mardis Gras, which it covered in part - nevertheless a major advertiserwithdrew from the program (see B. Farrelly, “Hey hey, it’s a lesbian” Sydney Star Observer No 231 March 25,1994, 1).341See Viner and Hankins, supra n 334; A. Stuart, “A touch of taboo; portrayals of lesbians in movies” (1993)Vol 6 No 265 New Statesman anti Society 32 (August 13).342See Faderman, supra n 255, 146-7.343hooks in L. Frank, and P. Smith, (eds) Madonnarama: Essays on Sex and Popular Culture (Pittsburgh: CleisPress, 1993) at 70. Likewise, Danae Clark claims that capitalism ‘welcomes homosexuals as consuming subjectsbut not social subjects’ and argues that incorporating homosexuality into ‘style’ can diffuse its political edge (inAbelove, Barale and Halperin, 1993 at 195-6).344Cited in Snead, supra n 336.3455ee eg quote by Snead, supra n 336.118and lesbians are thereby reduced to consumable sexual objects. On the other hand as a fashionthat is ‘in’ one year, lesbianism may very well be ‘out’ the next.Lillian Faderman argues that this faddishness is in fact the case. Faderman claims that lesbianchic occurred in America for around a decade from the 1920s. The Harlem blues scene in the1920s, and the Greenwich Village intelligentsia in the l930s featured a number of high profilewomen who engaged in lesbian relationships in a milieu which came to regard heterosexualityas reactionary or stale.346 Moreover, Andrea Weiss marks the 1930s as a time where popularfilm toyed with lesbian imagery - with stars such as Marlene Deitrich, Greta Garbo andKatherine Hepburn all playing androgynous characters in stories with strong lesbianundertonesThis period of chic in the USA did not confer lesbians with acceptability or status for verylong; by the 1940s and 1950s lesbians were being purged from government and military, andpathologising imagery of homosexuality was dominant.348 It could further be argued that the‘personalities’ who were chic at that time were seen as somehow beyond the scope of‘ordinary’ moral standards and social expectations. They were singers and actresses and in the1920s especially, many of them were women of colour such as Bessie Smith and JosephineBaker. As such, these women were in some ways expected to behave and present themselvesas transgressive of cultural norms. The same could very well be said of the lesbian chicpersonalities today - who are overwhelmingly singers and actresses of considerable fortunes,some of whom, such as Madonna have made a career out of ‘shocng’the public.346See Faderman, supra n 255, Chp 3.347See Weiss, supra n 259, at 32-33, 36-39, 42-44.348See Faderman, supra n 255, at 130-146; Russo, supra n 270, at 100.119Furthermore, Lillian Faderman argues that it was actually bisexuality, rather than lesbianismwhich was truly in vogue in the 1920s and 1930s. Faderman notes considerable evidence thatwhile engaging in lesbianism was regarded as ‘interesting and provocative’ or ‘sexy’, virtuallyall women who did so, whether lesbian or bisexual, sought the public cover of bisexualitythrough real or pretended relationships with men. This was in part because lesbian sex was notregarded as ‘real’ or a threat to men, and so could be indulged, especially if it were a ‘phase’which women passed through; bisexuality preferably ending in heterosexuality.349There are very strong parallels with 1990s lesbian chic in this area, and many others. Itappears that in the same breath that the mass media has designated lesbianism sexy,fashionable and chic, it has decreed that it need not involve actually being a lesbian at all.Some print articles go to some lengths to highlight the bisexuality of women in lesbianrelationships, noting past or present marriages.350 Others go further than suggesting thatlesbianism and marriage can go hand in hand, arguing that lesbian relationships do not makewomen lesbian or even bisexual - one can be a happily married woman having lesbian sex andstill be unimpeachably heterosexual according to a recent article in the Globe and Mailnewspaper.35’ The end point of this reasoning is soon accessible, as the Daily Mirrornewspaper happily claimed that lesbian chic need not involve having sex with another womanat all, rather, it was a state of mind, a ‘more liberated attitude. ‘352 Thus lesbian chic is inreality bisexual chic, or an exotic same sex encounter indulged in by heterosexuals, or betterstill just heterosexuality with an open mind to enjoying homoerotic imagery - and the fullcircle is complete as heterosexuals voyeuristically consume lesbian imagery at the same time as349Faderman, supra n 255, at 75-6, 85.350See eg S. George, “The husband, his wife and her female lover” New Woman June 1993, 72.351B. Kemp, “Happily hetero, but hankering after a lesbian fling” Globe and Mail November 13, D5.352Noted in Stuart, supra n 341.120they distance themselves from it. The 1990’s element of modernity is that this occupation is nolonger smutty or pornographic, but seen as evincing a positive attitude to a heretoforeoppressed minority. A voyeuristic vice has become a positive virtue; has anything else reallychanged?A close examination of the extant imagery in 1990s lesbian chic reveals this process of theaffirmation of the centrality of heterosexuality. Madonna, for instance, has always proclaimedherself heterosexual - while acknowledging lesbian sexual experience.353 The imagery in herSex book, as well as her video clips continually code Madonna as a heterosexual experimenteror voyeur, distancing her from ‘real’ lesbianism, which is portrayed as involving large, shavenheaded, tattooed and multiply pierced women in Sex and Erotica, and cross dressers in theearlier Justify my love.354 These ‘real’ lesbians were referred to by Madonna as a ‘joke’ and bythe print media as ‘those lesbian skinhead freaks’. Moreover they were framed by otherimages of sado-masochism, bondage and exhibitionistic masturbation, among other things.Thus bell hooks argues that Madonna’s work,‘fits with a history of so-called sympathetic heterosexual framing of homosexualexperience in popular culture which represents it as deviant, subversive, wild, a‘horror’ that is both fascinating and fun but always a ‘horror.’355In this sense, Madonna’s contribution to lesbian chic has been to portray lesbianism along witha ‘catalogue of perversions’ ,356 as predatory, promiscuous, butch and above all, as an object ofvoyeuristic pleasure. Her work is arguably directed towards a specifically male voyeuristic3In both Truth or Dare and an interview with Carrie Fisher in a 1991 issue of Rolling Stone magazine.354See hooks in Frank and Smith, supra n 343, at 73 for an analysis of this.355hooks in Frank and Smith, supra n 343, at 71.356See Crimp and Warner in Frank and Smith, supra n 343, at 93-94 for a discussion of this.121pleasure, moreover, as men are present in all of the above works, ‘viewing’ lesbian sex, oftenas a prelude to ‘the real thing’ - sex with men.357Basic Instinct drew on the ground laid out by Madonna in many ways. It contained a blond,vampish ‘femme fatale’ with an insatiable sexual appetite, who was, moreover, sexuallyattractive to men. Basic Instinct also contained virtually every pathological lesbian typediscussed in the earlier section of this chapter, often disjunctively.358 For instance, it featuredlesbians as manhater/killers who nonetheless need sex with men. Murderousness andlesbianism were deliberately conflated as all four women were bisexual or lesbian and all ofthem were revealed as suspected or convicted killers.359 The film also portrayed lesbians asvampiric, sexually obsessed and bestial, thereby acting as a ‘crossover’ film allowingrepresentations of lesbians common to the minority horror and pornography genres intomainstream cinema. As Basic Instinct grossed US $385 million at the box office alone,360 thewidespread pervasiveness of its influence should not be underestimated.357See Lentz in Frank and Smith, supra n 343, 160. However, Andrew Ross contends that to the contrary, thatMadonna has done much to advance lesbian and gay interests. He argues, ‘Because she has come to occupy such alarge portion of public media attention, Madonna functions rather like what environmentalists call a charismaticmegafauna: a highly visible and lovable species, like the whale or spotted owl, in whose sympathetic name entireecosystems can be protected and safeguarded through public patronage’ (Ross in Frank and Smith, at 52).358Lesbianism as a form of carnality or animality is established through the central character of Catherine. Sheuses base language, and in her first encounter with the police asserts her pleasure in impersonal sex (which shecalls, to their honor, ‘fucking), she rakes her male sexual partners with her fmgernails and draws blood, and isshown in riding boots, surrounded by animal trophies after the first killing. Catherine also establishes lesbianismas intended for the explicit voyeuristic pleasure of heterosexual men in that she offers up her lesbian relationshipvisually, and also engineers displays of herself naked on numerous occasions. Butch/femme lesbianism isestablished by the character of Roxanne, Catherine’s girlfriend, who is known as Roxy, dresses frequently inblack leather, and is called ‘Rocky’ by Curren, who also addresses her ‘man to man’ and kills her (in a drivingduel, no less). Lesbianism as a type of narcissism is recurrent, both in the visual pairing of Catherine and Roxy insome scenes, and in the story of Elizabeth mirroring Catherine in appearance and mannerisms after they had asexual encounter years earlier. Mother/daughter lesbianism is suggested by a sexualised shot of Catherine and amiddle aged woman who was earlier shown as a ‘mother figure’ to her.359When Curren, the male detective, confronts Elizabeth and shoots her, his remark, ‘Do you still like girls?’actually stands as a simultaneous accusation of murder - lesbianism being her motive in allegedly killing herhusband.360Stuart, supra n 341.122Likewise, popularised ‘old’ pathological views of lesbianism are present in other ‘new’ lesbianchic images, albeit in a slightly less overt manner. As mentioned earlier, the InterviewMagazine cover of Raquel and Tahnee Welch suggested both mother/daughter lesbianism andnarcissistic lesbianism at a subtextual level. In the Vanity Fair spread, kd lang in suits andshaving lather is unequivocally the ‘butch’ to Cindy Crawford’s barbie doll bathing suit‘femme’, and in other photos in the magazine, lang is also shown in suits with a phalliclyplaced cello.In both Roseanne and Seinfeld in 1993 a lesbian character was swiftly placed in a heterosexualrelationship, thereby contradicting or undermining her claims to lesbian identity and suggestingthat lesbians are ‘really’ bisexual, or need only to have sex with a man to be ‘cured’ of theirphase. The place of heterosexual male voyeurism in such apparently unsexualised images isnot to be underestimated, and is best expressed in the words of one of the creators/writers ofSeinfeid, Larry Charles,‘[the lesbian episode] was purely our way of dealing with the straight male’sfascination with a taboo subject. . .We took the male point of view. Even thoughsome gay women find straight men horrifying, straight men find gay womenfascinating. We don’t care about their politics: lesbian chic is not about politics,it’s about style, fashion. Lesbians in sitcoms can look beautiful, be beautifullydressed... ‘361The episode of Roseanne in which Roseanne received a ‘lesbian kiss’, while superficially abouthomophobia, also enforced numerous stereotypes and offered itself up to male voyeuristicpleasure. Notably, the kiss was not consensual, and Roseanne was shown pulling a face ofdisgust after receiving it. Furthermore, Rosanne’s husband, ‘Dan’ was depicted as aroused by361Quoted in Rubin supra n 335.123the occurrence when told of it, and asked questions such as ‘What were you both wearing’ sohe could ‘picture it’ •362Lesbian chic affirms the centrality of heterosexuality, by emphasising continually the‘othemess’ of lesbianism. Plots revolve around the heterosexual character’s reaction tohomosexuality, not the homosexual character her or himself (eg in Roseanne and Seinfeld, itwas the heterosexual characters, their reaction, feelings and point of view which werecentred). In media discussion of lesbian chic there is often an implicit ‘us’ (the reader) and‘them’ (the lesbians). For example an article which noted lesbian chic as an ‘event’ of 1993was entitled, ‘No matter who you are (or used to be) it wasn’t your year’ - implying as it doesthat ‘you’ are not a lesbian.363 Moreover, by discussing only very beautiful, successful andwealthy young white characters/personalities in relation to lesbianism, and doing so,moreover, with a perpetual tone of surprise, lesbian chic places lesbianism in a location ofunreality - ‘other’ and odd, it is not a commonplace pastime of ordinary women, much less ofordinary wives and mothers.This section has aimed to show that lesbian chic, far from its claims to newness andtransformation, in fact reproduces many of the ‘old’ negative stereotypes of lesbianism. Also,the images provided by lesbian chic, even where they could be considered positive in some362The intensity of male voyeuristic pleasure at this episode is well conveyed by the bar-room setting in which Iviewed it. The bar was populated entirely by men, with the exception of myself and two female friends. The largescreen TV which heretofore I had only ever seen screening sports, was turned suddenly to Roseanne, because, inthe barman’s words tonight’s the big night’. During the 30 minute episode a complete silence fell in the bartwice, as Roseanne was kissed, and as Roseanne told Dan about it (greeted with hearty chuckles) - the rest of theepisode being almost entirely ignored by the crowd.363Hurst, supra n 333. Other examples are the ‘space ship’ metaphor in the earlier quotation by Elizabeth Sneadin USA Today, with its suggestion of lesbians as an alien life form: Snead, supra. Inset ‘glossary boxes appear inother articles with ‘translations’ of various lesbian types and expressions, such as ‘Dyke’, ‘Bar dyke, ‘Leatherdyke’: see D. Cornwall, ‘Girls just want to have fun” Sydney Morning Herald February 27, 1993, 41; E.Sathowtz, D. Glick and et al, “Pride and Prejudice: Lesbians Coming Out Strong” Newsweek June 211993 54.124ways, contraindicate the possibility of lesbian mothering. Lesbian chic concerns a lifestyle ofpromiscuity, notoriety and narcissism. The woman in lesbian chic is too preoccupied withherself to be capable in ideological terms, or motherhood - she is too busy looking good andbeing seen.364ifi: What do all of these lesbian types have in common?A linking theme in all of the images of lesbians discussed in this chapter is that ofchildlessness. As a rule, lesbians simply do not have children in films, even where they havebeen previously heterosexual, and certainly not with each other. The few exceptions proverather than disprove the rule, notably Lianna (1983) where the protagonist’s lesbianism meansthat she must relinquish her children, and the small role of the lesbian ex-wife in Manhattan(1979) where Woody Allen’s character taunts the mother’s partner (whom he had previouslytried to run down in a car), ‘You’ll never be the real father’.Even more notable than the fact that mothering is literally absent in the portrayal of lesbians,is that lesbians in film are defined in essence by their childlessness. The various ‘types’ are allmarked in some way as lacking or hostile to procreation and nuturance. They may becharacterised as anti-mother in the sense that their qualities and attributes are oppositional tothose defined as motherly in Western culture, qualities such as altruism, nurturing, and aservicing relation to men and ‘their’ children. Lesbians may also be characterised as unmother, in that while not openly hostile to mothering values, they are pictured as incapable ofsatisfying them. In the anti-mother league are male-identified lesbians, manhating lesbians andsadistic/vampiric lesbians. Un-mother encapsulates the other types; immature, mother/daughterand narcissistic.364Take, for example, the title of an article on lesbian lifestyles in a Sydney newspaper, “Girls just want to havefun’: Cornwall, supra n 363.125Anti-motherWithin the typology assigned to ‘male identified’ lesbians by popular culture, they areconstructed as fundamentally anti-mother because they are viewed as essentially un-womanly.Envisioned as ‘butch’ make-believe men, male identified lesbians do not contain the necessaryqualities for mothering, having repudiated femininity, and therefore all which that entails,including motherhood. The closest nurturing relationship envisaged for such unwomanlywomen is that of ‘father’, as shown by the quote from Manhattan above.365The ‘manhating lesbian’ type is similarly viewed as diametrically opposed to mothering, ashating men is often conflated with hating children and families, as these are in some culturalsense the accoutrements of men. This projected hostility is at its most colourful in the horrorgenre, where the lesbian vampire is shown repeatedly as attacking the nuclear family form aswell as stable society generally.366Moreover, the sadism of the sadistic/vampiric lesbian to herfemale partners could be viewed as a displacement of this antipathy to the family form, and iscertainly constructed as anti-mother in that it posits selfishness, perniciousness and cruelty asinherent features of lesbians. The vampire as a cultural emblem of lesbianism is particularlyrevealing. Whereas Mother is meant to give of herself (milk, time, love) to the young andvulnerable, Vampire takes to feed herself (blood, life, innocence) from the young andvulnerable. Selfish, hungry and ruthless, the Vampire is a lesson in the ideology of lesbian asanti-mother.365Furthermore, when a lesbian is characterised as masculine, her interest in children or nurturing relationshipswith them are then considered highly suspect and potentially indicative of sexual abuse: see US cases, Re Jane B,1976; N.K.M v L.E.M, 1980.366See Creed, supra n 298, at 61.126Un-motherWithin her culturally constructed typology, the ‘immature’, or ‘schoolgirl’ lesbian may wellcontain feminine qualities, but is depicted as incapable of mothering because her owndevelopment is not yet formed. Likewise the narcissistic lesbian type and the ‘daughter’ half ofthe mother/daughter dyad; their immaturity is expressed through their arrested development(lesbianism being the conclusive proof of impairment). Heterosexual relationships are markedas the completed passage to maturity, as is childbirth and rearing - ‘marriage and a family’being the ideal happy ending in both popular culture and psychiatric literature. Thus the childlike lesbian cannot yet attain the maturity needed to mother, and is more likely to seek a‘mother’ in her female partner.The ‘mothering’ lesbian in the dyad has her hands full already, with her partner playing therole of surrogate child, leaving no room left for a real one. Moreover, the relation of the‘mother’ half of the dyad to children is problematised by the equation of her sexual partnerswith symbolic ‘children’ and she may thus be suspected of a propensity towardspaedophilia.367This discussion of lesbian types in psychiatric and popular culture texts has aimed to show howpathologised the popular notion of lesbianism is, as well as how lesbian and mother have cometo be viewed as dichotomous opposites. Both of these elements, I will argue in Chapter 5,have a strong presence in family law judgments involving lesbian mothers.There is never, of course, a universal order and uniform results. Lesbian mothers, forexample, may sometimes win custody cases over the claims of heterosexual fathers. Exactly367See discussion and cases in the ‘Witch’ section of Chapter 5.127how lesbian mothers inspire horror in the judges, how this is expressed, and how lesbianmothers sometimes circumvent notions of monstrousness will be explored in the followingchapter.128CHAPTER 5: Goddess, Virgin, Witch: Archetype and the unconscious in judaments‘The mythic level.. . is linked to the level of the unconscious. Althusser ‘s concept ofideology takes this into account, “ideology “ for him being precisely that which insocial practices is assumed to be natural, the truth, unquestioned. ‘368In discussing the ways in which lesbian mothers are characterised in family law judgments, Iwill utilise a structure of mother archetypes to frame the manner in which mothers are judged.The three mother archetypes are Virgin, Goddess, and Witch; described by J.C Smith as ‘thesexually appealing young woman, the birth giving matron and the death-bringing old crone.’369The benefit of such a three-fold structure is that it provides a manner in which to discussmediated successes, where lesbian mothers may not be characterised as bad or un-mother(Witch), but neither are they viewed as ‘good’ mothers (Goddess).Archetype is used as a method of structuring analysis of the cases in an attempt to find themesbeneath the surface characterisations of mothers in the judgments. The use of archetypeprovides a path into the symbolic. It is important not only to describe features of the case law(such as disapproval of maternal sexuality), but to ask what do they symbolise, what fears andhorrors do they encapsulate? The purpose of this structure is to allow the possibility of linkswith the prior chapter regarding the representations of lesbians in popular culture, and witharguments to follow in the conclusion of this thesis where I explore links with the experienceof lesbian mothers and other marginalised mothers in law.368Kaplan, supra n 40, at 15.369JC. Smith, Psychoanalysis and the Roots of Patriarchy: the Neurotic Foundations of Social Order (NewYork: New York University Press, 1990), 186. The utilisation of three mother archetypes relies upon thereinterpretation of mythic figures and the work of Jung and Neumann for a psychoanalytic social theory. Smith,eg pp 122-3, 253. Kaplan also argues that a triptych of mother archetypes structures the unconscious, althoughshe believes that these have changed over time from Virgin, Mother, Whore to Career Woman, Mother, Tart’:Kaplan, supra n 40, at 182. This constellation is similar enough to my own that I believe they are compatible,‘Mother’ in her framework standing for perfect mother, or Goddess in my own.129In most family law cases involving a lesbian mother, the judge is faced with a mother who hasleft the father/family/phallus for lesbianism: an active choice between dualisms,37°a choicewhich is meant to be made the other way around.371 Female sexuality and male dispensabilityare foregrounded in this situation in such a way that Lesbian is often construed asfundamentally Witch (symbolising attributes discussed in Chapter 4 such as: aggressive,sexual, anti-male, dangerous, sterile, diseased). Lesbians are thus perceived through a prismwhich views them symbolically as agents of castration, dangerous to men, the family, andsociety as a whole.372If this were always the case, however, lesbian mothers would never be successful in thecourts, whereas experience shows that this is not universally so - even where discoursedisfavours lesbian mothers, decisions sometimes granted lesbians custody.373 In these cases, Icontend that the lesbian mother has been de-sexed/disempowered - she is rendered (by thejudge, her lawyer or herself) hyper-feminine and aligned with male interests such that she doesnot fit the witch archetype. In this case, she becomes Virgin, and can be viewed in somea Canadian divorce case, the judge referred to lesbianism as ‘the antithesis of marriage’ and a ‘repudiation’of it: 1982 at 16, 22.371A truism of popular cultural representations of lesbians is that she will either be killed or rescued by aheterosexual relationship with a man. The importance of these formulaic plots will be explored more fully inChapter 6.3721n her book The Monstrous Feminine, Barbara Creed argues for a complete re-reading of Freud’s theory ofcastration anxiety. Creed argues that men fundamentally fear women as castrating (not castrated as Freudsuggested) and that the image of woman as castrator exists in a widespread manner in popular culture and ancientmythology (eg Medusa): Creed, supra n 298.373My review of approximately 75 reported cases and unreported judgments available through Quicklaw andLexis, although arguably not a representative or ‘scientific’ group, broke down a lesbian mother’s chance ofwinning a litigated custody case roughly as follows: Australia 55%, Canada 50%, UK 45%, USA 25%. Thesefigures are unreliable for a number of reasons: they do not take account of the majority of unreported cases, a‘win’ on appeal may simply be the right to a rehearing, not necessarily to custody, and the possibility of laterappeals is unaccounted for. I excluded from this win/lose breakdown cases where both the mother and father wereinvolved in homosexual relationships, and cases where the mother denied being lesbian and was believed.130contexts as a ‘good’ Mother. This construction is not necessarily to the mother’s advantage,as the Virgin archetype brings its own constraints.All of the lesbian ‘types’ discussed in Chapter 4 appear in family law judgments regardinglesbian mothers and can be discussed within the framework of mother archetypes outlinedabove. When a lesbian mother is perceived as masculine, manhating, sadistic, narcissistic orthe ‘mother’ half of a mother/daughter dyad with her sexual partner, she is within the ambit ofthe Witch archetype. When a lesbian mother is perceived as feminine, afraid of men,immature or the ‘daughter’ half of a mother/daughter dyad with her sexual partner, she iswithin the ambit of the Virgin archetype. The presence of each of these archetypes within thejudgments will be discussed at length. I believe that lesbian mothers do not, at any stage, fallwithin the scope of the Goddess archetype, and this exclusion will be discussed first.I: Goddess?Not one lesbian culturally constructed ‘type’ discussed in Chapter 4 is capable of fitting withinthe Goddess archetype, because the Goddess is more than simply fertility/goodness/abundance,she is all of those things in connection to men.374 The ability to care for, nurture and properlysocialise children is seen as a corollary of a monogamous sexual relationship with an adultman. Barbara Tizard has argued that the intense and singular nurturant focus upon a childwhich is demanded of ‘good mothering’ is a reflection of the ideal of ‘monogamous love.’375Adrienne Rich cites a feminist paper on women, children and work in 1976 which read,374Adrienne Rich argues that the ideal of matriarchy, where the archetype of Goddess is revered, is nonetheless afundamentally heterosexual ideal: Rich in Abelove, Barale, Halperin, supra n 269.375B. Tizard, ‘Employed mothers and the care of young children’ in Phoenix, Wollett and Lloyd, supra n 90, at201.131‘Biologically men have only one innate orientation - a sexual one that draws themto women, - while women have two innate orientations, a sexual one toward menand reproductive toward their young.’376In the absence of one of these ‘innate drives’ - toward men - lesbians and their intentionstowards children become fundamentally suspect.Julia Brophy notes case law in the UK prior to the advent of no-fault divorce in 1969, inwhich judges were quick to point out that,‘One must remember that to be a good mother involves not only looking after thechildren but making and keeping a home for their father...’ per Lord Denning, ReL (infants) [1962] 3 All ER at 3377This view is echoed in a slightly more subtle manner by the remark that the lesbian mother inB v B (UK, 1991) was, ‘a blameless, faultless mother so far as care of her children isconcerned, except that she has left her husband’ (at 7).In the context of cultural representations, Barbara Creed argues that representations of womenwho reproduce without men are invariably monstrous, and their offspring mutant orhorrifically destructive.378 Likewise in relation to access to insemination (AT) in Britain, DidiHerman and Davina Cooper note that both lesbian and single heterosexual women who376Rich, in Abelove, Barale, Halperin, supra n 269, at 228.377Brophy argues that adulterous wives ‘effectively forfeited their claims to motherhood - not because they wereneglectful or ineffective mothers - but because the legal construction of motherhood included, by definition, aprior commitment to the sanctity of the family’: Brophy in Smart and Brophy, supra n 85, at 102. Brophycontends that while such an overt judgment has abated under the current child’s best interest test, the sexualidentity and behaviour of mothers is still very influential on child custody proceedings.3781n the context of science fiction, usually conception occurs through technological means. Creed, supra n 298,at 45.132expressed a desire to reproduce without input from men (sexual or otherwise) were construedby the medical/psychiatric professions as ill, and by the media as selfish and dangerous.379Single mothers and female headed households have been blamed for deviance and criminalityin children consistently since the 1940s.38° Such a view has persisted to this day,38’ and isexacerbated when the ‘single’ mother is lesbian, or worse still provides improper ‘modelling’for children by partnering with another woman.382 The lesbian mother in a family law disputemay be seen as having deprived her children of a father by choice, whereas a heterosexualmother in the same situation has the possibility of appearing blameless (especially ifabandoned), or procuring a ‘father substitute’ 383The closest to a Goddess characterisation of a lesbian mother in the case law is in the USmatter of ]ç, 1981, where the mother was described as follows:‘Although there was testimony that her relationship with the woman with whomshe lives is unorthodox, the testimony is that Jane Doe is an exceptionally well-educated, stable, responsible, and sensitive individual. Witnesses describe Jane in379Herman and Cooper, supra n 139, at 43-44, 56-7.380For a review of criminological theories and their tendency to mother-blame, as well as specific accounts ofcrime as a response to fatherlessness see generally N. Naffme, Female Crime: The Construction of Women inCriminology (Sydney: Allen and Unwin, 1987).3815ee eg a parliamentary speech made by Lord Ashbume in the UK in 1990, ‘If we get the family right, all thoseother things will come right as a spin off effect. Our prisons will not be bursting; our abortion rate will not behigher than anywhere else; marriages will not break down; and divorce will not be higher than anywhere else’(cited by Herman and Cooper, supra n 139, at 41).3821bjd, 57, 58.3831 do not mean to suggest that heterosexual divorcing mothers have easy or unproblematic access to the Goddessarchetype, merely that it is within the range of possibilities. In lesbian mother cases it is the figure of theheterosexual stepmother who is most often configured as Goddess. The stepmother is attached to the father, andher claim to the children is seen to be in service of him and an expression of her own altruism: see eg Canada:Elliott, 1987, the stepmother was ‘anxious and desirous of sharing with the father the responsibilities of givingloving care and affection to the children’ at 9; USA: Collins, 1988 where the stepmother was extolled as shewould love the child ‘as her own’ at 3, 7.133various ways but always in a highly complimentary manner. They referred to heras a conscientious and creative parent, friendly by nature, who instils in the boy alove for other people and of animals. It was testified that Jane’s love for Jack was anurturing love, and that she exercised a selfless wisdom in caring for him. JaneDoe has apparently earned the respect of her peers in Yellow Springs because ofher civic work and active interest in the community and her relationship with thepeople with whom she comes into contact’ (per Harrison J for the majority, at804).Ruthann Robson remarks of this quote, ‘The court’s opinion sounds like she is winning thecontest for Miss Congeniality rather than a custody appeal.’384 A key point is that Jane Doewas not winning a custody appeal, rather she won a case preventing her ex-husband and hisnew wife from adopting the child against her will (which would have severed her parentalrights and the limited access she had as a geographically distant non-custodial parent). For allher altruism and nuturance, Jane Doe still fits more properly within the Virgin archetype asher mothering role is so tightly circumscribed. She may well be a great little Mum, but she didnot have or win custody, her relationship was de-sexed385 and her offer to cease living with herpartner was noted in her favour (the judgment closing with the significant remark that she mayhave to ‘honor this commitment’ when her son was older (at 860)).A lesbian mother is not a Goddess, nor can she ever be. She has rejected Father as well asFathers more generally. Lesbian is constructed as Un-mother in some sense precisely becauseshe obliterates Father - stepping beyond the bounds of familial ideology into the terrain of theanti-social. This highlights the manner in which the ideology of motherhood intersects with,and depends upon, ideologies of the family, a point which will be explored in Chapter 6.384Robson, supra n 81, at 133.3851n that it was ‘sexual at times’ and more of a ‘friendship’ (at 802).134II: WitchIn the popular imagining, lesbians are attributed with numerous characteristics which renderthem Witch, or in Barbara Creed’s terms, ‘the monstrous feminine.’ Patricia Cain listsarchetypal images of lesbians which include, ‘lesbians are not mothers’, ‘lesbians are sick’,‘no one knows lesbians’ and ‘lesbians are sex.’386 Chapter 4 detailed at some length variouspopular representations of lesbians. It is worth restating that the overwhelming majority ofcinematic representations of lesbian appear in two guises - as horrific (most notably asvampires)387 and within (heterosexual) pornography.388 In the following discussion of caselaw, I argue that family law judgments where a lesbian mother is concerned reflect andreconstitute the above mentioned archetypes, and the influence of the horrific andpornographic notions of lesbianism can be found throughout.Masculine and Butch/femmeVarious cases in which the mother or her partner was characterised as masculine, or theirrelationship as butch/femme either explicitly, or implicitly through use of language have beendiscussed in Chapter 2, and so will not be repeated here.389 In those cases, judges activelystrove to find ‘role definition’ between the partners, and to masculinise one of them, forexample by finding that the woman who most often drove the car, or paid for meals was the‘dominant’ one. Imputed masculinity was also evidenced by judges referring to a lesbian bysurname alone, an appellation otherwise reserved exclusively for men.386Cain, supra n 2, at 213.387Weiss, supra n 259, Chp 4; Creed, supra n 298, Chp 5.388Dyer, supra n 63, 2; Hooks in Frank and Smith, supra n 343, at 71-72; Lentz in Frank and Smith, ibid, 160;MacKinnon, 1987 supra n 71, at 199.389See Chapter 2 ‘Power imbalances, role playing and abuse’ section.135Use of profane language,39°raised voices,391 suggested or actual physical violence392 or an‘aggressive’393 attitude on the part of either the mother or her partner were construed asevidence of masculine identification and from there butch/femme inferences about the couplewere often drawn.394 In the Australian case P.C and P.R (1979) the mother’s partner wascontinually configured as masculine to the extent that the judge interpreted her closeness withthe child as an attempt to ‘displace’ and ‘compete’ with the child’sfather.Another case which highlights just how closely a conception of lesbianism is conflated withmasculinity is a matter recently decided by the Family Court of Australia under its jurisdictionregarding the authorisation of certain medical procedures on minors. In Re A (1994), a 14year old girl was born with adrenal hyperplasia, a condition which results in an overproduction of androgens and consequent masculinisation of appearance. The girl wasdiagnosed at birth, surgery was performed to feminise her genitalia and a lifelong hormonetreatment prescribed. Negligence on the part of the parents and infrequent monitoring by thehospital meant that the girl was in fact given insufficient hormones, and she again began totake on a masculine appearance. At the age of 14 she requested a sex change (involving bothbilateral mastectomies and a hysterectomy in addition to the construction of male genitals).The court acceded to her request, in part because she experienced ‘painful erections in thepresence of women’ and ‘her sexual orientation is towards females’ (at 10). Implicit in thecourt’s reasoning is that she therefore is, or feels herself to be, or is comfortably to be viewed390See eg Canada: Bernhardt, 1980, Daller, 1988; USA: N.K.M v L.E.M, 1980391See eg USA: Re Jane B, 1976.392See eg Canada: Bernhardt, 1980, Australia: Kitchener, 1977.393See eg USA: Dailey, 1981, Pleasant (mother held to be ‘defiant’ and ‘hostile’ at trial) 1993.394See eg USA: Dailey, 1981, N.K.M v L.E.M, 1980; Australia: P.C and P.R, 1979.136as, a little boy - not a little dyke. The choice between these options is never countenanced, infact, as her attraction to girls is held as the final evidence of her masculinity and of thedesirability of allowing surgery.ManhatingA belief that lesbians hate men is evidenced in the judgments in multifarious ways. It ispossible that the oft-used epitaph ‘militant’395 in this context refers to a fear that lesbians hatemen and will try to turn their children against men. In the UK case B v B (1991), where themother was successful, the judge emphasised that this was because she was not ‘militant’. Asevidence of this ‘non-militancy’, the judge noted that both the mother and her partner hadpreviously had heterosexual relationships (marriage and engagement, respectively), whichsuggests that it is manhating which is the element to be most feared in ‘militancy’ (at 10).Likewise, in the Canadian case K v K (1975) the judge noted with approval that the non-militant mother expressed the view that she may return to heterosexual relationships at sometime in the future.In some cases the mother was questioned as to the number of men she knew, and whether ornot these men were homosexual.396 Ostensibly the issue was ‘male role models’ for thechildren, but an undercurrent persists that it was the mother’s own attitudes to men (as well asto heterosexuality) which were under investigation.If the child/ren in question were male, any anti-male sentiment could be readily interpreted asshowing that the mother’s care would not be in the child’s best interests. For example, in395See Milibank, supra n 11, for a note as to the frequency of words such as militant and crusading and theirimpact upon decisions.396See eg Australia 1977, P.C and P.R, 1979; USA: Collins.137Seseija (Canada, 1994) the mother’s reply that she ‘hated men’ when asked by a social workerwhether she was seeing any men was registered as being ‘strange’ when she was fighting forcustody of three boys. In Eveson (UK, 1980) the fact that both the mother and her partnerwere ‘assertive’ was used by the judge to suggest that the mother’s home was a damagingenvironment for the male child to grow up in (at 7). Within such a context the meaning of‘assertive’ slides into ‘aggressive’ and from there into ‘manhating’ with considerable ease.In cases where the child/ren were female, concern was expressed in the judgments that theywould be given a ‘balanced’ sex education.397 It was universally favourable to the mother ifshe expressed a desire for her daughter/s to be heterosexual or stated that she would encouragethem in that direction.398 Such a focus belies a fear that the mother would try to steer herdaughter/s away from men, as she herself had an ‘aversion’ to them.Hostility on the part of the father towards the mother and/or her partner is commonplace inlesbian mother cases.399 Yet animosity between the mother’s partner and the father wassometimes noted in the decisions in such a way as to lay the blame for this situation entirely onthe partner,40°again suggesting a subliminal theme of the manhating lesbian.SadisticRole playing and power imbalances are read into relationships by the judges such that theyconform to a vampire/victim model. As noted in Chapter 4, some of the most common397See eg Australia: L and L, 1983.398See eg USA: Barron, 1991.399See eg Chapter 3 Competing fathers: who cares: a Dad is a Dad is a Dad’ section, also see note 83 in Chapter1 regarding violence against lesbian mothers at the hands of ex-spouses.400See eg Australia: P.C and P.R, 1979; USA: Barron, 1991.138cultural representations of lesbians are as vampires, with the vampire/lesbian seducing‘innocent’ (less powerful) women away from men and turning them into replicas of herself.There is a literal parallel in the cases which come before the family courts - as the mother’spartner may often be her first lesbian relationship, and so her partner is perceived as having‘turned her into’ a lesbian.The characterisation of the mother/partner relationship as one of sexualised power abusefrequently parallels butch/femme visions of the women and occurs in the judgments at asubtextual level much of the time. Most commonly, the judges will not actually claim thatthere is role definition between the women,40’but will intimate that the partner is ‘dominant’or has led the mother into this way of life. The mother is positioned as ‘submissive’, passiveor immature; not really responsible for the relationship.402 On a few occasions thisvampire/victim characterisation is reversed, with the mother positioned as the abuser. 403The most overt example of characterising lesbianism as a form of sexual vampirism occurs inthe US case of Williams, 1990, where the judge stated:‘Here the evidence reveals that the mother exhibited gross character defects. Themother, while a nurse at Lifeway, actively recruited a patient who was a minor’[17 or 18 years of age, disputed, mother’s age not noted] ‘to engage in an illicitand criminal relationship. . .In doing so, the mother showed her propensity to feedher sexual appetite without regard to morals, ethics or law. As an employed nurseat this drug treatment program, Marian abused her position in order to takeadvantage of an underage drug addict whom she desired as a sexual partner’ (at1199).401A.ii exception is Australia, P.C v P.R, 1979 and in L and L, 1983 the judge looked for role definition butfound none.402See eg: Canada: Case, 1974 (implication that partner will be head of household), K v K, 1975 (mother’sfuture possibly heterosexual), USA: Dailey, 1981, N.K.M v L.E.M, 1980, Australia: P.C v P.R, 1979, G andG, 1988.403See eg, USA: Williams, 1990, Diehi, 1991.139Mother/daughter and therefore sexual abuserReferences in the judgments to one of the women in the lesbian relationship being in ‘controlt,in ‘charge’ or ‘leading’ and ‘dominating’ the other are frequently oblique, and have beenlargely discussed under the rubric of butch/femme and sadistic. In a small number of cases theage difference between the mother and her partner has been emphasised within the judgment tothe extent that the mother is positioned as though she is (or is old enough to be) her partner’smother. For example, in the US case D.H v J.H (1981), both of the witnesses who werebrought by the father to attest to the mother’s lesbianism (first hand, having allegedly sleptwith her) were referred to throughout the judgment as ‘young women’, ‘young ladies’ and‘girls’. The most overt example of a mother/daughter construction of a lesbian relationship isthe previously discussed case of Williams (USA, 1990). In that case, the mother was held bythe court to be responsible for her partner, and her partner’s youth and neediness washighlighted in such a way as to suggest that the mother would have her ‘hands full’ taking careof her partner, and therefore have no room for her ‘real’ child.Once the mother or her partner is configured as sadistic, the ‘butch’ half of a butch/femmepair or the ‘mother’ half of a mother/daughter pair, she may then be seen as having aninherent interest in sexual partners less powerful than herself. As her power in her relationshipwith her partner is often perceived and expressed in terms of age and ‘dominance’, it istherefore no large step to then characterise such a woman as having a propensity to sexuallyabuse children.References to the possibility of child sexual abuse are usually oblique, such as referring to the‘physical’ as well as ‘moral’ impact on a child of growing up in a lesbian household,404404eg USA: Re Jane B, 1976, SvS, 1980.140mention of unspecified ‘risks’ ,405 the possibility of ‘corruption’ ,406 emphasising the youth ofthe mother’ s lover/s,407 or questioning the mother about the safety of leaving the child/renalone with gay and lesbian friends.408 Moreover, the plethora of orders barring partners livingin the house with the mother and children, or from being present during (particularly)overnight access contain an undercurrent of fear of sexual abuse from the partner.409There were also a small number of direct references to the possibility of child sexual abuse atthe hands of the mother’s partner. In Williams, (USA, 1990) the mother’s partner’s statementthat too many victims of sexual abuse become abusers was taken by the court to mean that shehad a propensity to abuse herself. In Re Jane B (USA, 1976) the mother’s partner wassubjected to a series of questions as to whether she had ever had a ‘physical relationship’ withthe 11 year old daughter or ‘any other child’ (at 854) and the testimony of a psychiatrist thathomosexuals ‘sometimes switch affection to another partner’ was taken as evidence that thechild was at risk of sexual advances from her (at 854). In the IJS case of N.K.M v L.E.M,(1980) it was suggested by the judge that the daughter’s letters to the partner were too‘passionate’ and ‘adult’ to be healthy. Her close relationship with the daughter was thereforesuspect as it was suggested that she had exerted a ‘direct and baleful’ influence on the child (atl85).’°405eg UK: Eveson, 1980 at 5, 7.406eg UK: B v B, 1991 at 4, 10.407eg USA: D.H v J.H, 1981, Williams, 1990.408eg USA: Collins, 1988, Pleasant, 1993.409These orders will be discussed in detail in the section to follow. For a list of cases where such restrictiveorders were made see notes 413, 414.410 also allegations that the mother’s lesbian partner sexually abused her child, unsubstantiated in Canada:Bernhardt, 1980; Australia: G and G, 1988; UK: ReP, 1983 (‘corruption’).141Sexual, sick and troubledCommon to all of the above lesbian ‘types’ is the suggestion of excessive, aggressive oruncontrolled sexuality. Likewise, the undercurrent of pathology occurs throughout. These twothemes appear in the family law judgments with considerable regularity, unlinked to anyspecific characterisation of the mother in terms of the ‘types’ discussed above. Therefore Ishall discuss the occurrence of both ‘sexual’ and ‘diseased’ notions of lesbianism as separateelements of the Witch archetype.(i) Sex and altruism: one of these things is not like the otherLesbianism figures in the cases as synonymous with sex and selfishness. The mother isgenerally viewed as having ‘abandoned’ her role as wife-and-mother41’to pursue a life ofsensual delight, oblivious to the needs of her children. In an early US case, the very existenceof the mother’s lesbian relationship was held to prove ipso facto ‘clea[r] neglect’ of thechildren.412 In a more recent US case, Williams, (1990), the mother lost custody because thecourt held that the child took second place to the mother’s, ‘Propensity to feed her sexualappetite without regard to morals, ethics or law’ (at 1196).This dichotomy is so pronounced that the mother may be forced by the court to choosebetween her sexual identity and her children.413 In fact, awards of custody and access havefrequently required that the mother’s partner move from the house, or not be present when the411See eg Constant A v Paul C.A, 1985 at 9, Mohrman, 1989 at 1286.412Townend, 1975 at 2831.413eg USA: N.K.M v L.E.M, 1980, custody dependent on mother ending relationship, her failure to do soleading to custody award to the father; L v D, 1982, mother asked whether she would give up being homosexualfor children, replied in negative and lost custody, Pleasant, 1993 access suspended at first instance because motherwould not give up lesbian relationship.142children are, and breaches of these conditions have resulted in revocations of custody oraccess.414 These type of orders have diminished recently in Canada and Australia, but continueto be common in American decisions. Moreover, voluntary assurances that the mother willgive up her relationship with a partner have been viewed in a positive light. 415Any suggestion that the mother’s relationship is more important to her happiness is damningproof of her lack of ability to mother - for example in the above mentioned case of Townend,1975, where the mother’s diary entry to this effect was introduced into evidence and shesubsequently lost custody.In a Canadian decision, Case, 1975, the judge noted an incident whereby the father kidnappedthe child by force as an example of the mother’s selfishness, as she returned to her lover ratherthan chasing the (arguably dangerous) father (at 137). In the US case of S.E.G v R.A.G,414Cases where restrictions have been ordered are, Canada: Elliott, 1987, Bezaire, 1980 (both losing custodywhen condition breached); UK: SvS, 1978, ReP, 1983, USA: Re Jane B, 1976, Schuster and Isaacson, 1978,DiStefano, 1978, Ashling, 1979, M.P v S.P, 1979, Dailey, 1981, N.K.M v L.E.M, 1980, LvD, 1982,Anonymous, 1986 (restriction too broad, limited on appeal to homosexual contact or conduct), S.E.G v R.A.G,1987, Diehl, 1991, White v Thompson, 1990, Chicoine, 1992, Blew v Verta at trial, overturned on appeal(access only), 1992, Collins, 1988, Pleasant at trial, overturned eventually on appeal, (access only) 1993:Australia: 1977 at interim hearing, removed at trial, Kitchener, 1977, P.C and P.R at interim hearing,removed at trial, G and G, 1988 at interim, removed at trial. The period between interim hearing and trial wasusually around 1 year.Also, in the USA welfare case of Breisch, 1981 the mother refused to obey a condition that her partner leave thehome. This order was to ‘foster the close relationship between the mother and son’ without the ‘disruption’ of thepartner, and its breach resulted in the child being taken into care (at 819, 821).415eg Canada: Robertson v Geisinger, 1991, the judge expressed concern regarding the mother’s lesbianism (thefather was also gay) but was ‘comforted when Katherine made it clear that [the child] would always be her firstpriority’ at 264. USA: Doe, 1981 (adoption) the mother’s offer to move her lover from the house (so that her ownaccess-based parental relationship would not be severed by an adoption order to her ex-husband and his new wife)was looked on favourably as evidence of her being a good mother and putting the child ‘first’ at 802, 803. Thejudge concluded with the remark, ‘There may come a time when the welfare and best interest of her son requirethat she honour this commitment’ at 806. (Contra: Australia Cartwright, 1977 where the court denied thenecessity of this move). However, in the USA such assurances were not always sufficient: see USA: M.J.P vJ.G.P, 1982, Lundin, 1990.1431987, the mother’s openness about her lesbianism was selfish because it ‘imposes herpreference upon her children and community’ (at 167).416An example of charges of selfishness levelled at the mother in a more subtle manner is theCanadian case S v S, 1992. In this case, the mother and father had moved from a city to asmall town at the father’s behest, prior to the birth of the children. As, at the time of trial, themother had not had a lesbian relationship, it may at first seem a difficult task to construe heras selfishly imposing her sexuality upon her children. Not so. The mother’s plan to return tothe city, partially due to the unlikelihood of meeting a partner in the small town, served thesame purpose as a lover in this case. Despite numerous reasons for the move, and possiblebenefits to the children from moving, the judge referred continually to the likelihood of themother’s moving as being intended to search for lovers and as an ‘adventure’ (at 10, 39, 41,42, 43, 44, 47). The mother’s refusal to see the move as negative was because she wished to‘fulfil her own personal needs’ (at 41) and was ‘so intent on moving that she is blind to theneeds of her children’ (at 42).417 Whether the mother has a lover or not, lesbianism is aselfish, sexual choice.This theme is also present in cases which liken the mother’s sexuality to a vice, for exampleby comparing it to addictive behaviour such as drug use, or paralleling it with the father’ssubstance use. For example in the Canadian case of K v K, 1975 the mother’s lesbianism was‘no more of a bar’ to custody than the father’s drug use (at 64). In the American cases ofN.K.M v L.E.M, 1980, the presence of a lover in the house is equated with a ‘drug pusher’416Sec also USA: Black, 1988 the mother ‘subjecting’ children to her lesbianism at 7, 8; Pleasant, 1993 at trialthe mother ‘subjecting’ son to a gay pride rally he had requested to attend, at 5.417Likewise, Australia: 1977, ‘their passion for each other has blunted their perception’ of the children’sdifficulties (in this case, the suggestion of peer trauma) at 76,589.144(or other ‘criminal’ or ‘immoral’ influence, at 183) and in Collins, 1988 the concurringjudgment suggests that:‘Just as an alcoholic overcomes the habit and becomes a non drinker, so thismother should attempt to dissolve her ‘alternate lifestyle’ of homosexual living.Such is not too great a sacrifice to expect of a parent in order to gain or retain thecustody of his or her child’ (at 29).In the Australian case of O’Reilly, 1977, the metaphor is also present, as the wife’s refusal toforsake her relationship with her partner was seen as selfish and held on a par with the father’sdrinking binges (at 78,605). Moreover, in cases where the mother or her lover actually did useor abuse alcohol or drugs, this trait was commonly noted in the same sentence as lesbianism,so that the two became conflated: ie ‘homosexual drug abuser.’418These cases reveal that the focus upon lesbianism as sexual may be a symptom of somethingmore, as they highlight the notion of lesbianism as a secret, illicit pleasure; an indulgencewhich therefore negates altruism.The characterisations in the cases discussed in this section reveal that the ideology ofMotherhood primarily requires altruism. Asexuality may well be part of such altruism,especially for lesbians as lesbianism is sex - a theme common in popular culturalrepresentations as well as in male pornography, to be discussed in the next section.4185ee eg: Canada: Bernhardt, 1979 at 40, 41; Australia: Harvey and Creswell, 1988, allegations of mother’slesbianism and marijuana use in same sentence; USA: Kallas, 1980, 642 and on three occasions at 643, Breisch,1981 (welfare) sexual displays and marijuana use discussed in proximate paragraphs at 817, Williams, 1990 at289, 296, White v Thompson, 1990 marijuana use and immoral sex in same sentence at 1182.145(ii) Every little thing you do is sexual: the pornography of a lesbian lifeIt is not only the selfish act of choosing a female sexual partner which positions the lesbianmother as a Witch, it is her nature as a sexual being which now contorts everything she does.On reviewing the cases, it is quite astounding the range of behaviour which, when done by alesbian, constitutes a sexual display or is viewed as an actual sex act. Just as in the days ofwitchcraft persecutions, every thing a witch did was magic (being able to recite the Lord’sprayer, or not), in the cases at hand, everything the lesbian mother does is sex.Actual sexual activity was sometimes the subject of direct inquiry, usually when the motherdenied being lesbian, and the father then brought photos, alleged lesbian lovers, eyewitnesstestimony of sexual exchanges and letters into evidence, all of which were then pored over todetermine whether the mother was, in fact, lesbian.419 Even when the mother admitted thatthe relationship was lesbian, judges sometimes wanted to know just how lesbian, by assessinghow ‘much’ sex there was.42°A discussion of how often, how loudly and where the motherhad sex was also brought into evidence under the rubric of the child’s welfare - presumablybecause overhearing it would constitute ‘exposure’ of the child to lesbian sex and beharmful.42’At the furthest extreme are the American cases of Lundin, 1990, where there werelengthy discussions as to whether the mother had ever had (lesbian) sex while the two year oldchild was asleep in the house (at 1274, 1275, 1277) and Chicoine, 1992, which described with419eg Canada: Bernhardt, 1979, reports of sexual noises (‘kissing sounds’ no less) and conversations about‘fucking’ by a neighbour at 37, USA: N.K.M v L.E.M, 1980, description of kissing, transcript of tapedconversations, D .H v J.H, 1981, photos, love letters and alleged lovers’ testimony as to sexual acts, S .L.H vD.B.H, 1988, letters, testimony from ex-boyfriend; UK: S v 5, 1980 taped conversations; Australia: N and N,1977, private investigator’s report.4205ee eg Canada: Daller, 1980; UK: B v B, 1991; USA: Doe, 1981; Australia: P.C v P.R, 1979.4215ee eg note 427 regarding sexual displays, also: USA: Dailey, 1981, M.J.P v J.G.P, 1982 (at trial, dismissedas evidence of bias at appeal).146considerable disapproval the mother’s sexual behaviour in a nightclub as ‘publict, beforenoting that the children were absent (at 894).More frequently, the mother actually having sex took second place to a variety of otheractivities which were viewed as inherently sexual and monitored closely to register theirimpact. The mother sleeping in the same bed, or same room with her partner, for instance,was noted in numerous cases422 and described, universally, as a sexual display whichamounted to ‘subjecting’ the children to the relationship423 or ‘exposing children to sexualactivities’ 424 Not only the mother, but also the child425 were questioned extensively aboutsleeping arrangements, as though these had a momentous bearing on the case.Likewise, the mother and her lover spending time in the bedroom together during daylight, orwalking around the house with their dressing gowns on (or ‘partially clad’ as the judges put it)was treated as a sexual display.426 More commonly, holding hands, hugging or exchangingkisses of greeting and departure were scrutinised at length, always with the implicit or explicitunderstanding that such gestures were sexual conduct or a sexual display,427 which would, ofcourse, be inappropriate in front of children.422See, Canada: Barkely, 1980, Case, 1974, K v K, 1975; UK: Eveson, 1980, ReP, 1983, ReD, 1983, C v C,1991; USA: Townend, 1975, Re Jane B, 1976, Kallas, 1980, Dailey, 1981, Breisch, 1981, M.J.P v J.G.P, 1982,L v D, 1982, Peyton, 1984, Thipen v Carpenter, 1984, S.E.G v R.A.G, 1987, G.A. v D.A, 1987, Barron,1991, Black, 1988, Collins, 1988, Pleasant, 1993: Australia: ply, 1977, O’Reilly, 1977.423USA: Black, 1988 at 7.424eg USA: Thigpen v Carpenter, 1987 at 513, Breisch, 1981 ‘blatantly sexual’ at 817.425eg USA: Collins, 1988, Pleasant, 1993 at trial.426eg: Canada: Elliott, 1987; USA: L v D, 1982.4275ee eg USA: M.J.P v J.G.P, 1982, holding hands equals ‘lover’s caresses’ at 393, S.E.G v R.A.G, 1987 andG.A v D.A, 1987 hugging equals ‘sexual conduct’ at 728, Collins, 1988; Australia: 1977, Cartwright,1977, Brooks, 1977, Schmidt, 1979, the mother gained custody on the condition that she would not show ‘sexualaffection’ in front of the child. In only one case I have read did a judge disagree with the focus upon affection andthe presumption that it was sexual. In the US case Pleasant, 1993, the mother had lost custody and had her accessrestricted, supervised and on occasion denied over a four year period, based in part upon allegations that the147The lengths to which judges went to inquire in numerous cases as to whether affection wasshown, judges’ readiness to see anything as sexual (for example a shower curtain adorned withnaked female forms, presumably innocuous enough to be sold freely to the general public,discussed as though it were lesbian pornography in the US case L v D, 1982 at 244) and thelengths to which they were prepared to go to protect children from even a glimpse of theterrible sight of affectionate lesbians (usually banning the mother’s partner from the house, orfrom the children’s presence428)is so striking on reading the cases that I kept thinking theymust be seeing things. I contend that the judges saw and described what was to them amonstrous sight - aberrant and dangerous - as the mere view of it could harm childrenirreparably, like Medusa’ s head turning men into stone. Moreover, it was a monstrous visionfrom their own imaginings, as it was they who suggested and searched out what they felt to bethese sexual visions - visions which were arguably never perceived by either the mothers or thechildren in this way. An example of such projection occurs in the UK case of Eveson, 1980,where, despite the six year old boy being happy and well balanced, the trial judge continuallyreiterated that he would ‘instinctively’ feel his mother’s relationship to be ‘strange or unusual’(at 4) and ‘would learn more and more and it would fill him with dismay and would be veryworrying and upsetting for him’ (at 7).429Effectively, the judgments suggest that hugging and holding hands are sexual things to dobecause lesbians are doing them. Which is, I believe, the key. A primary source ofmother and her lover had once shared a bed while on holiday with the child and had shown affection in front ofthe child. The appellate judge overruled the restrictions saying, seeing two consenting adults hug and kiss in afriendly manner is not harmful’ at 27.428See notes 413, 414.429M example of projection in another context is the US case of Wemeburg, 1980, where the mother and herpartner identify as lesbian, but the judge decided that they must be confused about their sexual identities giventheir heterosexual or bisexual pasts - voicing in effect his own confusion at their choices.148representations of lesbianism is in pornography of every medium, aimed at heterosexual men.Even in popular films, lesbianism often exists as an erotic prelude, or ‘tease’ to the mainheterosexual romance. There is a substantial likelihood that these images have been a source,perhaps the only ones, by which the male judiciary is familiar with lesbianism. So not only arelesbians selfishly consumed by sex and defined by it, the mere sight of them is pornographic.Such an explanation is, of course, untestable, but I suggest that it goes some way towardsunderstanding why apparently well balanced and untroubled children are being so zealouslyprotected from the horror of the arguably everyday sight of two women hugging.The focus in judgments upon whether a mother is ‘discreet’ about her sexuality or ‘flaunts’ itis often taken by theorists to mean that mothers who approximate the heterosexual (middleclass, white) ideal as closely as possible will have a better chance of success.430 This was notalways true, as some very discreet and apolitical mothers nonetheless lost custody,43’and twoof the most outrageous ‘flaunters’ and ‘missionaries’ imaginable, the Mesdames Schuster andIsaacson, though ordered to live apart, retained custody of their children in 1970s despiteappearing regularly in print and on radio with their jointly raised children proclaiming thegreat benefits of lesbian families (USA, Schuster and Isaacson, 1978).A few exceptions do not, however, disprove the rule, as it was generally true that the motherstagged ‘discreet’ won, and mothers who ‘flaunted’ lost.432 However, I suggest that there ismore to the rule than meets the eye. Notably, ‘discretion’ was sometimes taken to mean with430See eg Milibank, supra n 11; Polikoff, supra n 227; Boyd, supra n 76; K. Amup, “We are Family: LesbianMothers in Canada” (1991) 20 (3/4) Resources for Feminist Research 101; Robson, supra n 81.431eg UK: Eveson, 1980, C v C, 1991; USA: Re Jane B, 1976, Jacobson, 1981, Barron, 1991.432The most blatant application of this standard is the UK case B v B, 1991, where the judge made it clear that themother won because she and her partner were ‘private persons’ and not ‘militant lesbians where the risks... maybe so much greater’ at 10. However, see contra UK Eveson, 1980, where discretion with the child meant ‘slynessand falsity’ - so in a Catch 22 situation, the discreet mother lost.149the world at large (the public), and sometimes taken to mean with the children (the private). Insome cases discretion in the ‘private’ realm was held to be of importance and, in other cases,it was ‘the public’ realm that mattered.Being openly lesbian and ‘indiscreet’, then, could mean selfishness or imposition in tworespects, which correlate with the previous two sections under discussion. One is that themother, in staying closeted, not joining organisations and not seeking community support isexpected to exercise self discipline (ostensibly to prevent peer trauma) and show herselfcapable of altruism.433 She is selfish in being a lesbian, but still capable of making sacrificesfor her child, thus proving herself to be a good mother. The second is that in remainingcloseted with the child/ren, the mother, in not ‘looking’ like a lesbian or leading a lesbian‘lifestyle’ removes the pornography of her life from the children’s view; kissing her lovergoodbye is no longer sexual because it is not, apparently, done by a lesbian. Her everydayactions are once again everyday, and no harm is done by viewing them.In essence, sexuality was synonymous in the cases with sex, and sex with selfishness, neglectand possible abuse. In cases where the mother’s relationship was referred to in sexual terms,with words such as ‘lover’, ‘sexual partner’, ‘affair’ and ‘paramour’, ‘active’ or ‘practicinghomosexual’, with very few exceptions, the mother lost.‘433For example in USA: G.A v D.A, 1987, the mother ‘didn’t advertise’ but this was insufficient as she ‘didn’tattempt to keep it a secret’ either, at 727, and lost.434eg UK: S v 5, 1978, Eveson, 1980; USA; Townend, 1975, DiStefano, 1979, Bezio v Patenaude (at trial,overturned on appeal, 1980), S v 5, 1980, Wemeburg, 1980, Breisch, 1981, M.J.P v J.G.P, 1982, Lv D, 1982,Thigpen v Carpenter, 1987, Lundin, 1990, Williams, 1990, White v Thompson, 1990, Black, 1988, Collins,1988. But contra, mother winning in Canada: Barkely, 1980 (sexual partner), UK: Re D, 1983, (practicinghomosexual); USA: M.P v S.P, 1979 (sexual nature). In a related manner, in cases where the mother or herpartner was identified as a survivor of childhood sexual abuse, and thus as a sexed subject (see Smart, 1989 rerape trials and the sexing of women who are complainants) she was also perceived of as un-motherly, incapable ofnurturing or pathologically sexual, and denied custody without exception. See Canada: Monk v Aitken(heterosexual mother), 1991, Children’s Aid Society, 1986, Re B (L.A), 1989; USA: Chicoine, 1992, Williams,1990.150Pathological lesbian mothersAligned with the idea of the lesbian mother as Witch due to her selfish sexuality, is the themeof lesbianism as a form of disease. Within Ellis’ model of lesbianism discussed in Chapter 4,lesbians are ill and abnormal, as well as contagious or converting. Many of the theories oflesbianism explored in that chapter proceed from the assumption that there must be somethingwrong with lesbians; something lacking, displaced or thwarted, because it is a sexual andemotional orientation from which men are excluded. This view persists in family lawjudgments also.Lesbians may be viewed as diseased, and thus within the Witch archetype because they engagein non phallic, or what the judges call instead ‘non procreative’ ,‘ sexuality. Carol Smartstates,‘Sexuality is comprehended as the pleasure of the Phallus, and by extension thepleasures of penetration and intercourse - for men. Although this does not disallowthe possibility of [male] homosexuality it undeniably renders lesbianismincomprehensible and pathological. Female pleasure is assumed either to coincidewith the male definition or to be beyond understanding.’436Paradoxically, this view of lesbian sexuality may also render the lesbian mother un-sexed, andallow her to be positioned as Virgin, an idea which will be discussed in the section to follow.The language used by the judiciary to describe the mother’s relationship frequently utilised adisease model and did, on occasion ring with a tone of such disapproving incomprehension as435See eg USA: Constant A v Paul C.A, 1985.436Smart, supra n 29, at 28.151to suggest a bizarre occult ritual. For instance in the US case of Re Jane B, 1976, there arereferences to the mother’s ‘abnormal’ and ‘deviant’ relationship and ‘clandestine deviateconduct’, ‘carried on at night in their bedroom’ (at 851, 852-4, 856). In a 1982 US case, Lv, the judge referred to the mother’s ‘deviate’ nature with ‘bewildered compassion’ (at 243),a’ la hunchback of Notre Dame. Words such as ‘deviate’, ‘deviant’, ‘unhealthy’ and‘abnormal’ are less common in recent Australian, English and Canadian judgments, butcontinue to appear in American cases.437Even seemingly minor deviations from generally acceptable conduct have been interpreted inthe case law as evidence of severe disturbance. For example in Re Jane B (1976), much wasmade of the fact that the mother’s partner was silent and spent a lot of time in a rocking chairwhen the father and other witnesses visited the apartment (eg at 851). In another US caseWerneburg (1980), the fact that the mother often moved housing was noted by the court astypifying her flightiness and emotional instability (‘she becomes dissatisfied with herneighbours’, at 2281) where she could well have been avoiding homophobia for her own andher children’s sakes.Emphasis upon houses which were ‘unclean’ or ‘chaotic’ (and in which profanity occurred)acted in some cases as a metaphor for a view of the mother herself as unclean, and herrelationships as unhealthy.438 It is possible that such concerns also reflected a view of437eg UK: Eveson, 1980, ‘strange’, ‘not right or natural’, ‘irregular’ at 4, ReP 1983, ‘devious conduct’, ‘sexualdeviance’ at 4, 6, ReD, 1983, ‘abnormal’ at 2; USA: Townend, 1975, ‘aberration’ at 2831, DiStefano, 1978,‘deviate’ at 637, M.P v S.P, 1979 (dissent) ‘sexual deviancy’ at 1269, Werneburg, 1980, ‘deviate’ at 2281, SvS, 1980, ‘deviate’ at 65, N.K.M v L.E.M, 1980, ‘unwholesome’, ‘unhealthy’ at 183, Doe, 1981, ‘unnatural’ at806, L v D, 1982, ‘deviate’ at 243, Constant A v Paul C.A, 1985, ‘deviate’ at 5, S.E.G v R.A.G, 1987,‘unhealthy’ at 166, 167, G.A v D.A, 1987 not ‘healthy’ at 728, and ‘deviate’ at 729 (in dissent supportive tomother), Collins, 1988 ‘deviate’ at 8, ‘errant’ at 23, 29, Chicoine, 1992 (concurring) ‘acts against nature andagainst God’ at 896, ‘life of perversion’ at 896: Australia: Cartwright, 1977 ‘something of an affliction’ at76,600.438 eg Canada: Elliott, 1987, Bernhardt, 1979; USA: D.H v J.H, 1981, Diehl, 1991, Breisch, 1981.152lesbianism as savage, or uncivilised, a point which will be explored in greater depth in Chapter6.In addition to the cases mentioned in Chapter 2, where any admitted emotional instability orinteraction with the mental health system on the part of the mother were conflated with herlesbianism in the judgments,439 in cases utilising language which reflected a disease model,such as ‘deviate’, ‘unhealthy’ or ‘unnatural’, the mother lost almost without exception.44°WarriorIn only one case was there any evidence that a lesbian or Witch archetype was in any wayperceived as being a positive, and indeed motherly attribute. I refer to the characterisation ofthe warrior, encapsulating as it does the lesbian/Witch qualities of aggressiveness, ferocity,and a certain measure of barbarity. The case in question is Re D (UK, 1983). In that case in aprotracted series of legal proceedings, the father had originally been granted custody, themother had appealed and won, and then the father appealed and lost. Although the judges atevery instance were in agreement that an ‘ordinary’ household was preferable to the mother’shome with her lesbian partner, it was held by Sir Roger Ormrod writing for the full Court ofAppeal,‘...the fact is that experience shows that this situation does happen quite frequently.A mother who is very determined to keep contact with her children, particularlywhen they are young, will often fight very hard for them, the result being thatneither the children nor anybody else can establish a stable way of life’ (at 12).439See Chapter 2 Lesbians are unstable’ section.440See cases in note 437. The one exception among all of those cases is 1983 - in that instance thealternative to the mother’s custody was state care, and so the mother narrowly won.153Therefore, the court decided it would be ‘less disruptive’ for the children to be in the custodyof their mother.The ferocity and determination of the mother in this case was viewed in a positive light (thejudge dismissed unfavourable adjectives such as ‘manipulative’ used by the social worker todescribe the mother, at 12) rather than as evidence of her aggressiveness or manhating - whichwould render her un-mother. I believe the reason is that in this case all four children wished tobe with their mother, and their wishes were made plain continually over the years of litigation,such that the mother could then be seen to be fighting for her children rather than over them.In this way, the mother, however warrior-like, could be viewed as fighting for her children’swelfare rather than her own rights. She was therefore motivated primarily by the good-motherquality of altruism, and her claims did not contradict the prevailing norm that the welfareprinciple should always overshadow right claims.I do not mean to suggest that this case is entirely unproblematic. It does, for example, reek oflesbian-as-beast or savage imagery, in the sense that mothers fighting fiercely for their youngis a ‘natural’ quality, often attributed to female animals. Assertiveness or aggression aretherefore only acceptable within an altruistic paradigm, and also reflect a certain baseness, alack of civilisation which is excusable because the primitive drive which causes it is perceivedas being outside the mother’s control.In this section, I have argued through an examination of the sexualising and pathologisingdiscourse used by judges that lesbian mothers are configured as Witch in child custodyjudgments. Once within the realm of Witch, lesbian mothers almost invariably lose custody oftheir children. Lesbian mothers within the Witch archetype are threats to the gender order and154the presumed indispensability of Father, thus they are viewed symbolically as castrating. Thereis not even the comfort of viewing the lesbian mother as somehow severable from ‘normal’women, because the lesbian mother in the court had achieved ‘fulfilment’ as a ‘normal’woman (or passed as one) and has since rejected/castrated it. She signifies lesbianism as acontinuum, or worse still, a choice. As long as lesbianism and castration are conflated, shesignifies the castrating possibilities of all women.The threat posed by the lesbian mother can be defended against in one of two ways. Either thejudge can react by removing her child/ren and so defeat and disempower her, or s/he can desex her and so remove the major element of threat. De-sexing may also take one of two forms.It may take a very real form - such as granting custody of or access to her child/ren only onthe condition that she end her relationship or bar her lover from the house, an option discussedearlier in this section. De-sexing may also be symbolic, positioning her as Virgin rather thanWitch, an idea which will be discussed in the section to follow.ifi: VirginLesbian mothers are not always placed within the Witch archetype, nor are they alwaysunsuccessful in child custody disputes. My contention is that when lesbian mothers aresuccessful, the discourse used most often reflects the Virgin archetype. Once within the Virginarchetype, the lesbian mother’s chances of success are greater than within the Witch archetypefor a number of reasons. Positioning the mother as Virgin means that the mother conformsmore closely to traditional expectations of femininity. She is no longer seen as anti-social oranti-family in the way Witch is. Virgin also quite literally suggests receptivity to later maleadvances. There is the possibility of re-conversion of the mother if she is seen as Virgin, asher sexuality has been (perhaps temporarily) led astray and is perceived as essentially premale rather than anti-male.155Not real sex, or not much of itA symbolic de-sexing of the lesbian mother is not as difficult a manoeuvre as it may at firstsound. The constancy with which the lesbian, and most particularly lesbian desire, is thwartedin cultural representations44’means that lesbians are symbolised paradoxically as all-sex andyet un-sex.442 As Carol Smart noted earlier, in a phallocentric culture, non-phallic sexualexpression is not really sex at all.443 Such a vision is reflected in judgments where, despite adetailed focus on sex and sexuality, the mother’s lesbian relationship is nevertheless discussedas a ‘friendship’ and seen as not quite real.De-sexing a relationship may be at the mother’s instigation, as a way of increasing her chancesof success, for instance by moving away from her lover prior to trial,444 or bringing witnessesto attest that her relationship did not appear sexual to the untrained eye.445 In this way,‘discretion’ can simply mean the mother pretending not to have sex, thus allowing others tothink of her in a non-sexual way.441See eg Weiss, supra n 259, Chp 3; Russo, supra n 270, Frightening the horses’. See also the section ‘A noteon ‘narrative and abjection’ in Chapter 6.442Thjs paradox is well expressed in a Canadian divorce case M v M (1972) 7 RFL 385 (PET SC) where theground petitioned for by the husband was the wife’s homosexual act. Nicholson J. delivered a judgement some 14pages in length trying to determine whether or not the wife and Mrs G. by ‘kissing and petting’ and ‘mutuallyfondling’ each other’s naked bodies had, in fact, engaged in a homosexual act. Considerable testimony as to theseacts was reiterated in an alternately lascivious or agonised process of trying to determine just what it was lesbiansdid together and whether or not that constituted a homosexual act (as it was not defmed in the Divorce Act). Theword ‘sex’ was never applied to the activity, although it was eventually settled that the women’s conduct didindeed constitute a homosexual act, on the basis of the wife’s testimony that their conduct ‘would result in each of[them] reaching climax or orgasm’ (at 391).443See note 436.444See eg USA: M.P v S.P, 1982.445See eg Canada: N v N, 1992.156More often the de-sexing in the cases occurred through the use of language which appeared toexpress the judges’ own feelings about the issue, rather than reflect the evidence brought bythe parties. Desexing did not always have positive results for the mother, however, and thedisadvantages of the Virgin archetype will be discussed in a subsequent section on ‘Virgindeadlock’. The impact of the remaining lesbian ‘types’ (immature, narcissistic, daughter andfemme/afraid of men) will be integrated throughout this section.Not really sexualWhere the mother and her relationship were discussed in non-sexual terms the mother was thenfirmly within the bounds of acceptable motherhood ideology. She could be viewed as asexualand moreover, her relationship was also acceptable as it was safely within the bounds offemale friendship, and the place of men/fathers was not usurped.The use of language in describing the mother’s relationship often revealed a desire to de-sex orobscure lesbianism. For instance the mother’s partner was frequently described as a ‘friend’,‘roomate’ or ‘companion’ •446 The mother’s relationship was often denoted as an ‘arrangement’or ‘association’ .‘‘ In these situations the mother had a substantial chance of succeeding.448446See eg: Canada: Daller, 1988 ‘companion’ at 57; USA: M.P v S.P, 1979 ‘companion’, ‘friend’ at 1258, 1259,1261, , 1981 (adoption) ‘friend’ at 801, Doe v Doe, 1983 ‘roomate’ at 295, 296, 298, Peyton, 1984,‘roomate’ at 322, 325, S.N.E v R.L.B, 1987 ‘companion’ at 877, G.A v D.A, 1987 ‘friend’ (in dissent insupport of mother) at 728: Australia: Schmidt, 1979 ‘friend’ at 78,655; UK: ReP, 1983 ‘companion’ at 2.447See eg Canada: Barkely, 1980, ‘atypical arrangement’; UK: ReD, 1983 ‘association’ at 3, B v B, 1991; USA:1981 (adoption) ‘spiritual relationship’ at 802; Peyton, 1984, ‘lesbian activities’ rather than ‘sex’ at 322,323, 324, Large, 1993 ‘significant other’ at 3, 7; Australia: Schmidt, 1979 ‘association’ at 78, 656, 78, 659.448See cases in notes 446, 447. The only cases where unsexual language was used and the mother lost were:Canada: Elliott, 1987 at 7, 22, UK: Eveson, 1980 at 2, 2, 6; USA: S v S, 1980 at 65, Constant A v Paul C.A,1985 at 5. This is a sharp contrast to the cases where sexualised language was used, and the mother was generallyunsuccessful, see note 434.157In characterisations of the relationship between the mother and her partner, if the judge foundthat there was not a great deal of sex in the relationship, the mother was capable of being seenas Virgin, and her chances of gaining custody improved.449 In other cases, if the motherdenied being lesbian, or denied that her current relationship was sexual and the judge believedher, the mother’s chances of success were good.45° Similarly, the possibility that the mothermay return to heterosexual relationships, or had previously enjoyed heterosexual relationshipsand had ‘nothing against’ them, was held in a favourable light.45’ All of the abovecharacterisations fall within the ‘immature’ or ‘schoolgirl’ conception of lesbianism.452Lesbianrelationships are viewed as friendships, not really sexual, and as something which is not fixedor exclusive - a stage which does not define and limit the mother’s identity because she maywell pass through it.Not really to blameLesbian relationships may also be conceptualised as a non-sexual haven to which the motherhas flown after abusive experiences with men, a view which accords with the ‘afraid of orrejected by men’ ‘femme’ lesbian type discussed in Chapter 4. In such instances, it isintimated that the mother can ‘hardly be blamed’ for choosing a female partner. Take, forexample, the words of Anttell, J.A.D writing for the majority in M.P v S.P (USA, 1979):449See eg Canada: Daller, 1980 (the judge weighed up admission against the fact that she and her partner had nothad sex for a year); UK: B v B, 1991 (the mother ‘did not put sex high on her list of activities and interests’ at 6);USA: Doe, 1981 (relationship sexual at times’ at 802); Australia: P.C and P.R, 1979 (judge decided not an‘unduly active relationship sexually at 78, 607). P.C and P.R was the only case in which the mother lost.4501n such cases the mother won in: Canada: Tomanec, 1993; UK: ReS, 1993, Re M, 1993; Australia: Harveyand Creswell, 1988 (ex-lesbian); USA: S.L.H v D.B.H, 1988. The mother lost in Australia: Shepherd, 1979 (exlesbian) and Canada: Seseija, 1994 (no fmding made).451See eg Canada: K v K, 1975; UK: B v B, 1991.452 also USA: Constant A v Paul C.A, 1985 where the dissenting judge in support of the mother referred toher partner as her ‘childhood friend’ at 13.158‘Nor may we disregard the appalling character of the sexual onslaughts carried outduring their marriage by the [father] upon [the mother] for which the divorce wasgranted. Without detailing his singular conduct or the variety of foreign objects heintroduced into her person, we acknowledge our willingness to understand howthese could well have stifled forever her initial efforts to enjoy heterosexual love ina conventional relationship’ (at 1262-3).A number of other cases note the father’s alcoholism (and consequent lack of financialprovision) as a factor in the ending of the marriage and intimate that the mother’s choices aretherefore not to be blamed as they otherwise might be.453 The mother’s relationship is againconstrued as non-sexual and the mother is largely successful — especially if the father’sabusiveness was extreme enough to be viewed as rendering him unfit to parent.454 In thissetting, the mother’s altruism in relation to her children also tends to be highlighted.455The ‘daughter’ half of the mother/daughter dyad is also present in matters where the judgeconstrues the mother’s partner as the ‘dominant’ one and the mother as passive or subservient.Within such a paradigm, it is also then possible to see the mother as Virgin. She is seen asdeprived of agency, having been led astray by someone more powerful, corrupt, sexual andless feminine than herself. Where the mother’s partner has had prior sexual relationships withwomen (and the mother has had none, or fewer), is less feminine in appearance or demeanouror has displayed aggressive or protective behaviour, such a characterisation is not453See eg: Australia: O’Reilly, 1977; USA: Doe, 1981, Barron, 1991, White v Thompson, 1991 (dissent insupport of mother).4545ee eg USA: M.P v S.P, 1979, at 1262-1263. This may also be evidence that it is possible to see the mother asunsexual because the father is so much more sexual - as in this case in addition to the father’s ‘perversions’, thefather’s house contained pornography of which the children were aware, including pornographic photos of thenew wife, and the new wife talked in an inappropriately sexual manner to the girls.455See eg USA: M.P v S.P, 1979, Doe, 1981.159uncommon.456 In this way, not every lesbian need be a Witch, if there is another lesbiannearby to take on this role, and the mother can continue to occupy a blameless and essentiallysexless position.Virgin deadlockA simple switch in archetype from Witch to Virgin poses numerous problems, both for lesbianmothers engaged in litigation and for feminist theory and engagement with family law. Evensupposing that lesbian mothers are capable of ‘fitting’ the Virgin image,457 there are numerouspossible exceptions to successful outcomes for the ‘Virgin’ mother.There is one strand of de-sexing which occurred in the judgments and was generally lesspositive to the mother than those discussed earlier. This strand occurred where the mother’srelationship was described in terms which suggested that it was not ‘real’. Once viewed asunreal, the mother’s relationship could readily be seen as transient, unstable, unhealthy or animitation, and the mother tended to lose. The most common way in which the mother’srelationship was rendered unreal was by the use of quotation marks and qualifiers, so forinstance the judgment would read, “the ‘relationship’.. .as it is termed” •458456Clear examples are Canada: K v K, 1975, USA: N.K.M v L.E.M, 1980; Australia: 1977, Schmidt,1979, P.C v P.R, 1979, G and G, 1988; UK: C v C, 1991.457Lesbians who are of masculine’ appearance or who work as prostitutes, for example, would be incapable ofusing the Virgin archetype to their own advantage, in the same way that the so-called ‘maternal preference’privileged only a limited class of mothers. See eg USA: Breisch, 1981, where social workers decided that themother had a ‘masculine appearance’, wore men’s clothes and had a ‘masculine oriented mental status’ (this lastappellation primarily on the grounds that she argued with them) at 817.458U A: N.K.M v L.E.M, 1980 at 183, likewise the trial judge in Bezio v Patenaude, 1980 at 1209, (overturnedon appeal) see also Chicoine, 1992 ‘lover’ in quotation marks, Australia: 1977 ‘de facto relationship’ inquotation marks at 76, 443. See also the Canadian divorce case of y, 1982 where the relationship is ‘akin tolovers’ at 13. In all of these cases the judge using the quotation marks delivered a decision unfavourable to themother.160In a small number of cases the mother and her partner had engaged in a commitment ceremonyof some kind.459 A commitment ceremony was in no instance seen as establishing theseriousness of the women’s intentions towards one another or the stability of their relationship.Rather, judges referred to their actions as a ‘mock wedding’ in tones of considerable outrage -as though the women were, in fact ‘mocking’ marriage or suffering under some kind ofdelusion as to what ‘real’ marriage jS.460The virgin archetype may be also used to such an extent that it infantilises the mother andrenders her incapable of mothering. Once viewed as immature or the daughter half of amother/daughter dyad, the lesbian mother may be pathologised such that she is judgedemotionally ‘unhealthy’, too immature or too unstable to be capable of nurturance and ‘goodmothering •461The essentially tenuous nature of the Virgin archetype is well illustrated by the Canadian caseof S v S (1992). In that case the mother literally was a lesbian virgin, having identified aslesbian and left the father, but not having had any lesbian relationship at the time of trial(whereas the father had promptly had an affair). In an incredible stretch of logic, the courtnevertheless managed to sexualise the mother rather than the father, as her present celibacywas reconfigured in such a manner as to display her future sexual availability. One of thereasons used in denying the mother custody was that the court was unable to determine thelater ‘influence’ the children would come under, as the mother began one or several lesbianrelationships. Effectively then, the mother’s ‘virginity’ in that case stood as proof of thepromiscuity to come.459See USA: SvS, 1980 at 65, Townend, 1975, Doe, 1981.4605ee eg: USA: SvS, 1980 at 65, Townend, 1975.461As was the case in Canada: SvS, 1992: USA: N.K.M v L.E.M, 1980 and Australia: 1977, P.C v P.R,1979.161For these reasons, the archetype of Virgin provides merely a problematic and temporarysource of refuge from the punishments which accrue to lesbian mothers positioned within theWitch archetype. The Virgin does not necessarily result in success, nor, in the longer term,does it transform, as its primary function in lesbian mother cases is to sanitise/disempower theMother and reduce her to a position whereby she no longer appears threatening.In this chapter I have utilised a structure of mother archetypes as a method of inquiry intomotherhood ideology in Family law. Mother archetypes provide a method to delve beneathwhat is occurring at a surface level in the judgments, of avoiding the deadlocks which occur in‘rights (and discrimination) talk’, such as those discussed in Chapter 3, and of tracing theoccurrence and impact of popular conceptions of lesbian ‘types’ throughout legal judgments.Due to the pathologising nature of the lesbian ‘types’ and the inexplicability of choices whichexclude men, lesbian mothers do not fall within the realm of the Goddess archetype. When themother is viewed through conceptions of lesbianism which figure her as sexual, selfish, anti-male or anti-social, she falls within the Witch archetype and stands little if any chance ofsuccess. If the mother is viewed as un-sexual, or deprived of agency in such a way as toappear blameless, she falls within the Virgin archetype. Once perceived as Virgin, the lesbianmother stands a better chance of success than she would have as Witch, but within a highlycircumscribed framework.Having drawn out in detail various ways in which lesbians are characterised and examined thepresence of such characterisations both in popular culture and legal judgments, it then becomespossible to determine the themes which link, and perpetuate, these ideas. I will refer to this as162the ideological ‘necessity’ of lesbian mothers in the family law system, and focus upon it inthe following chapter.163CHAPTER 6: The ideological necessity of lesbians in family law‘Analysis of the abject centres on the ways in which the ‘clean and proper self isconstructed. The abject is that which must be expelled or excluded in theconstruction of the self in order to enter the symbolic order, the subject must rejector repress all fonns of behaviour, speech and modes of being regarded asunacceptable, improper or unclean. ‘462The previous two chapters illustrated the presence, in culture and law, of formulaic lesbian‘types’ which are generally derogatory, universally anti-mother and very prevalent. Chapters 2and 3 illustrated how the ‘Witch’ vision of lesbians was often sought after and held onto byjudges, in the face of contradictory evidence. This chapter aims to draw together thecharacterisations of lesbians in law and culture to examine what the purpose and effect of sucha hegemonic vision of lesbianism could be. What value and meaning does the ‘Witch’ visionof lesbian hold in ideological terms?This chapter focuses upon the ideological process of drawing forth and casting out ‘thelesbian’. The first section briefly discusses the role of narrative in cultural representations anddraws parallels between formulaic narratives in culture and the ‘story’ told by judges in typicalfamily law cases involving lesbian mothers. The concept of ‘abjection’ is then introduced as amanner of interogating the meaning and purpose of such formulaic representations. Abjectionis the process of drawing forth and casting out ‘the other’. In Judith Butler’s words, abjectionis ‘the mode by which others become shit.’463 The second and third section of this chapterexplore the role of lesbian as ‘other’ and the what the process of abjection offers to traditionalfamilial and maternal ideologies.462Creed, supra n 298, at 37.463Butler, supran 114, at 134.164I: A note on narrative and abjectionChapter 4 examined the origins and depictions of various ‘types’ of lesbians in popular culture.The narrative function of the various lesbian images was not discussed because the plotstructure and narrative function of lesbians in film are remarkably consistent. This style cutsacross all the ‘types’ as well as various genres - being one of two things, the highlighting ofperversity, or the love triangle. Both of these formulaic plot types provide ‘closure’ by deathor heterosexualisation of the lesbian, and the restoration of the ‘natural order’.PerversityWithin film noir, Richard Dyer argues that characters coded as homosexual existed to add tothe catalogue of perversions (such as sado-masochism, prostitution) already present in theseamy underworld of the mis en scene; thus their function is simply to highlight perversity.464In the section on lesbian chic in Chapter 4, I made this claim of most of Madonna’s workwhich features lesbianism. The same claim could also be made of recent psychotic womanfilms, such as Poison I and Basic Instinct where lesbianism is featured along with an arrayof murders, seductions and exhibitionism carried out by a generally unhinged character.Within such an underworld, with its concomitant excessive violence, it is no surprise that thelesbian character usually meets with a nasty death.The purpose of a lesbian character in such a plot is fairly straightforward. She assists in theprocess of pathologising the ‘bad’ characters, and by way of contrast makes the ‘good’characters look all the more normal and wholesome.464Dyer, supra n 252, at 60.165Love triangleThe love triangle plot is far more pervasive. The bones of virtually every plot involving alesbian are thus: lesbian, indeterminate woman, and heterosexual man are the characters;lesbian and man tussle over woman, emotionally or physically, often (in more recent films)following a sexual relationship between lesbian and woman; woman ends up with man andlesbian is vanquished, often in death.465 The vampire film follows the plot structureunwaveringly, with the man usually doing physical battle and killing the lesbian vampirehimself, in order to ‘save’ the woman, both from lesbianism and vampirism, and therebyrestore the natural order.466 This structure is as prevalent in dramas, where it is usuallydescribed as a ‘bisexual love triangle.’467The essence of popular representation of lesbianism is thus that it must be killed or cured;whichever path is taken, lesbian desire and lesbian relationships are thwarted.468 This paradox465Dyer, supra n 252, at 22.466See Weiss, supra n 259, at 92, 101.467Examples of both Hollywood and art house triangle dramas include: Another Way (1984), Basic Instinct(1992), The Berlin Affair (1985), The Bostonians (1980), The Children’s Hour (1962), The Fox (1968), FriedGreen Tomatoes, (1991), The Getting of Wisdom, (1979), Henry and June, (1990), Lilith, (1964) Love andHuman remains, (1994), Moments, (1979), Night of the Iguana, (1964) Pandora’s Box, (1929) Personal Best,(1983), Portrait of a Marriage, (1990), Women on the Roof, (1989), Three of Hearts, (1993), and LakeConsequence, (1993). Vampire films which follow this structure include: The Vampire Lovers, (1970) Dracula’sDaughter, (1936), Lust for a Vampire, (1971) Twins of Evil, (1971), Blood and Roses, (1960), The Hunger(1983). In this regard the BBC television production of Portrait of a Marriage again rewrote historical facts. Inlife, Vita and her husband Harold were both homosexual throughout their adult lives and when Vita’s loverrelationship with Violet ended, the two women remained friends for decades. In stunning contrast, the series bothbegan and ended with emphatic scenes of ‘happily married life’, with Violet banished forever after Harold rescuedVita from her.468Weiss, supra n 259, at 54, 59, 83, 101-2; Dyer, supra n 252, at 68. The persistence with which lesbian andgay characters meet with death in the film medium led Vito Russo to include a morbidly funny ‘Necrology’ at theend of his influential book, listing film, character and cause of death in alphabetical tables.166at the heart of most mass media representation of lesbianism; lesbians are created anddisplayed to show that there really are no such things as lesbians.469The aforementioned narrative structure bears a stunning resemblance to the narrative threadpresent in family law cases involving a lesbian mother. In family law cases there is the man(father), sexually indeterminate woman (mother) and lesbian (mother’s lover). The mother ischaracterised as sexually indeterminate, regardless of her self-identification, because she hasbeen previously engaged in a heterosexual relationship and furthermore been ‘fulfilled’ bycreating a family, before ‘changing’ •470 The mother’s partner is characterised as the ‘real’lesbian, regardless of her past or self-identification, because she is both outside of the familystructure, and viewed as responsible for its rupture.47’This is particularly so if the partner hashad prior lesbian relationships, the mother has not, and the mother left the father for hercurrent partner.The characters present in the lesbian mother family law cases depart radically from thetraditional lesbian ‘story’ in one important area - in family law matters, as the parties appearbefore the court, the man has not triumphed but rather lost out, in quite a public way, to thelesbian. The natural order has not been restored, unlike in film, where there is a closure whichdestroys the lesbian and the viability of lesbianism. The judge is presented with an unfinishedstory, and it is up to her or him to provide the ‘ending’. For this reason I wish to discuss Julia469The above pattern was most explicitly put to this purpose in the pulp novels of the 1950s, which acted ascautionary tales and illustrations of the unfeasibility and likely tragedy of lesbian desire. See eg Priest, J PrivateSchool, (New York: Beacon, 1959), with a cover which exclaims in part ‘Behind the venerable facade of manyprivate schools lurks unutterable vice and wickedness. This novel affords a glimpse of conditions which cry forcorrection!. . . Obviously only experiences with virile men could rescue such girls from their own warpedpassions.’ Also see the 1992 Canadian documentary, Forbidden Love. The same point could be made ofpornography, where lesbian sex is a non-orgasmic prelude to the ‘real’ sex, with a man who is either watching allalong or who appears in time to break the couple up and proceed to have sex with them both.470See eg Chapter 5 ‘Not really to blame’ section.471See Chapter 2, ‘Lesbian relationships are unstable’ section.167Kristeva’s theory of the abject to draw out the ideological effect of such narratives. Why is thesame ‘story’ told over and again? What is the purpose of creating and destroying, themonstrous lesbian?AbjectionJulia Kristeva has theorised that, in the process of entering the symbolic order (of language,identity and rules, the ‘paternal law’) the child is taught about the exclusion of bodily waste,and through this process a sense of the ‘I’ and the ‘not I’ is learned. Kristeva, in her workPowers of Horror, discusses a notion of the abject present in religion and literature. Theabject is that which blurs the boundaries between the ‘I’ and the ‘not I’ and therefore threatensa sense of identity, both in terms of the individual self and in terms of the social order. Inreligion, Kristeva argues, the abject may take the form of prohibition of types of food,homosexuality, incest and bestiality; the thematic link being that all of the above blur aboundary of self and other, culture and nature or human and non human in a way whichthreatens the existing social order.472 The abject is that which ‘disturbs identity, system, order.What does not respect borders, positions, rules. The in-between, the ambiguous, thecomposite. The traitor...’473The abject can never be entirely expelled, but hovers around the edges of the subject, beingcontinually drawn forth and rejected so that the subject can create and maintain boundaries and472j. Kristeva, Powers of Horror. An Essay on Abjection (New York: Columbia University Press, 1982), 75,103.473Thid, 4.168identity.474 In this way, social and individual order is maintained by a process of expulsion anddelineation of the abject.475 In Kristeva’s words,‘For abjection, when all is said and done, is the other facet of religious, moral andideological codes on which rest the sleep of individuals and the breathing spells ofsocieties. ‘476Since the decline of religion, Kristeva argues that the process of abjection has been taken upby the arts.477 Barbara Creed takes this contention a step further, and specifically exploresabjection in horror films. Creed argues that the horror genre exists to draw forth thehorrific/monstrous/abject, purify it and thus redraw the boundaries between human and nonhuman, thereby stabilising the social order.478 Creed contends that the image of thefemale/lesbian vampire is a particularly explicit illustration of abjection in Western culturalthought. She writes,‘The female vampire is abject because she disturbs identity and order; driven byher lust for blood, she does not respect the dictates of law which set down the rulesof proper sexual conduct...Because she is not completely animal or human, because she has loverson the boundary between these two states she represents abjection.The lesbian is associated with a number of forms of abjection. Shesignifies sexual difference and the threat of castration, she causes women’s bloodto flow and she crosses gender boundaries.’479474E. Grosz, Sexual Subversions: Three French Feminists (Sydney: Allen and Unwm, 1989) 72, 78.475There are strong parallels here with Carrie Costello’s work on Race and Sexual Orientation as threats toAmerican ideologies of family. Costello discusses the order as a system of hegemonic ideological maintenancewhich defines the ‘other’ for different purposes at different times - and draws together similarities in the ways inwhich Black Americans and gays and lesbians have been characterised and excluded. For example, ‘The Orderexalts its position by defining itself against the Others who are definitionally debased. It interprets the intimaterelations of the Other as lascivious, promiscuous and sexually savage’ (Costello, supra n 50, at 85).476Kristeva, supra n 472, at 209.477Thid, 208.478Creed, supra n 298, at 14.479Thid, 6 1-2.169This accounts for the pattern in the honor genre of conjuring up the lesbian vampirespecifically to slay her and restore the ‘natural order’. As mentioned above, the formulaic plotinvolving the defeat of lesbians crosses all genres, not just horror, and lesbians are arguablyabject in many guises, not only as vampires. A close examination of the lesbian ‘types’discussed in chapter 4 shows many of them to be pathologised precisely because they are seenas crossing borders, for instance gender boundaries (the masculine lesbian), or boundariesbetween the natural and the unnatural (mother/daughter). Moreover, Richard Dyer argues thatthe association of lesbians with bestiality or animalism is commonplace in many film genres,suggesting the human/animal or culture/nature border is traversed by lesbianism.48°Thisargument is supported by the fact that lesbianism, as conduct constituting a ground for divorcein Canada and the UK in the past, and a crime in some states of the USA, is categorised alongwith bestiality, rather than as a form of adultery.481A strong argument can be made regarding abjection in relation to lesbian mothers in familylaw matters. The vast majority of these mothers are women who were (or appeared to all tobe) heterosexual, were encased in woman’s ‘natural destiny’ of marriage and child rearing,and then left the father and family structure to engage in a lesbian relationship (associated withall manner of bestiality and baseness), to which she wished to take her children also, and isprepared to fight in court for the chance to do so. Such a woman has not only broken theprohibition on homosexuality (and is thus suspected of wishing to break the one on incestalso), she has appeared ambiguous, or deceitful, and crossed boundaries of identity andbehaviour contrary to conventional wisdom (‘becoming’ lesbian, ‘rejecting’ men, rather thanrelinquishing lesbianism, embracing men). She is thus emblematic of the ‘perverse’, wily480Dyer, supra n 63, at 31.481See Divorce Act, R.S.C, 1967-68, c. 24, Divorce Act, R.S.C 1970, c. D-8 and Divorce Act, R.S.C, 1980, c.D-8; UK Matrimonial Causes Act in its 1956, 1960 and 1970 versions. See Collins, 1988 for an invocation of theTennessee Crimes Act in a family law case.170metamorphosis and the possibility of the collapse of order (heterosexuality/nuclear family)discussed by Kristeva as essential elements of the abject. 482 Kristeva posits that,‘An unshakeable adherence to Prohibition and Law is necessary if that perverseinterspace of abjection is to be hemmed in and thrust aside. Religion, Morality,Law. ‘483When the lesbian mother is before the court, the judge is presented with an unfinished story, astory to which s/he must write the end. While I do not believe that judges are the passiveaquisitors of the lesbian ‘types’ and formulaic plots extant in popular culture, their influence isnevertheless present in some form, however mitigated.Whatever the judge decides in terms of custody, the formulaic lesbian plot cannot be followed,as the father cannot ‘win’ the mother back and vanquish her partner, as in film. The man can‘win’ the children, however, and the judge can vanquish the lesbian from the family, and fromthe mother’s bed, if not from the mother herself. Utilising a theory of abjection allows for anexplanation both of judicial ‘horror’ at lesbian mothers, and expressions of disgust, and alsofor the heavy regulation of lesbian mothers through for example, supervision orders and bansupon the children’s contact with partners.II: The natural family“The family” is presented both in law and in popular culture as the basic unit insociety, a sacred, timeless and so natural an institution that its definition is selfevident. Its privacy is sought to be protected and its sanctity proclaimed. That it isthe fittest place to raise children is again self evident as to not merit question andthe hold of the family is strong despite the knowledge that large numbers ofindividuals live in households which bear no resemblance to the ideal family.’484482Kristeva, supra n 472, at 70, 207.4831b1d, 16.484Gavigan, supra n 31, at 293.171It has been made clear through the course of this thesis that lesbian mothers profoundlythreaten traditional ideologies of both motherhood and ‘the family’. Familial ideology becomesintegral to a discussion of lesbian mothers and motherhood ideology because of the ways inwhich lesbian mothers are seen as Bad Mothers precisely because of their (actual or imputed)rejection of The Father and the creation of intentionally fatherless families. Hence in thischapter the ideological necessity of lesbian mothers in family law will be framed in terms ofboth motherhood and familial ideology in an understanding that the two are often linked andare interdependent as belief systems.One factor which must be kept in mind during the course of this argument is the site of thecases under discussion - almost without exception the Family Court or the family division of acivil court. This site is one in which hundreds and thousands of heterosexual nuclear familiesare seen to rupture, and rupture in the most acrimonious manner - as only the most bitter andintransigent of opponents resort to a full scale legal battle, after private negotiation, organisedmediation/conciliation and extended legal negotiation have failed. The ‘family’ stands dividedinto ‘parties’ who are ‘versus’ one another485 and the time honoured qualities of altruism,sharing and life long romantic/companionate bonds are frequently nowhere to be found.The paradoxical import of such a situation should not be underestimated, the ‘Family’ Courtbeing the vantage point from which the most perilous vision of the family is afforded.Nowhere is this rupture between what law says and what law does in relation to the familymore delightfully displayed than in Australia in The Family Law Act 1975 (Cth) s 43(b), whichrecognises ‘the need to give the widest possible protection and assistance to the family as the485This is so however terminology may be juggled to try to obscure conflict, for example in Australia cases arereported as ‘X and X’ rather than versus, and various recommendations have suggested changing the terms ofcustody and access orders to be less combative and encourage the concept of ‘shared parenting’: see eg ALRC,supra n 14, at 96.172natural and fundamental unit of society.’ This statement is part of an Act which regulates thedivision of property and care of children as a result of unprecedented numbers of divorces, inpart possible due to the no-fault system it introduced. This highlights one of the centralarguments of this section, that rhetorical proclamations about ‘the family’ must be made andrepeated precisely because of the knowledge that they are not true.The role and necessity of lesbians in the face of such rupture in meaning is the focus of thischapter, as I contend that the ‘Other’ of the lesbian mother is used to define the normative‘Self’ of ‘the family’. In this way, the process of ‘abjection’ explored in part one of thischapter, will be placed within the context of ideology in this and the following section.Previous chapters have explored the ‘casting out’ of the other-figure of the lesbian mother.This chapter aims to explain the ‘drawing forth’ of the other-figure of the lesbian mother toexplore the importance of her role within the system as a whole.The originality and naturalness of ‘the (heterosexual) family’‘The prevailing form of family is seen as inevitable, as naturally given andbiologically determined. As such, however, it is imbued with a unique social andmoral force, since it is seen as the embodiment of general human values rather thanthe conventions of a particular society.’486Central to the mythic status of ‘the family’ is a notion of its originality as an ahistorical andacultural, static and universal entity. Within this framework, change and relativism cannot becountenanced without facing destruction. ‘The family’ is a building block of society, andmust, therefore be as solid and timeless as rock. Who better to express this argument thanPope John Paul II, who in a speech in June 1994 denounced ‘relativism’ and ‘doubts on theexistence of an objective truth’ saying that such ‘moral uncertainties’ threaten the human race.486M. Barrett and M. McIntosh, The Anti-social Family 2nd ed (London: Verso, 1991) at 27.173Further, he stated that the traditional family is ‘a natural right that unites all people and allcultures. . . The marriage, which is a stable union between a man and a woman that they open tothe future generations, not only is a Christian value but an original value. To lose this truth isnot just a problem for the faithful, but a danger for all humanity.’487In the face of the reality of events in the family law system - the revelation that the interests ofwomen, men and children within any given family may not be in unison (nor may they haveever been) and that families in large numbers are changing through divorce, remarriage,partnerships outside marriage and so on - the dominant conception of ‘the family’ as timelessand fundamental comes under considerable doubt. That is, if these families in the court roomare changing (or, in the more alarmist common parlance, ‘disintegrating’), then perhaps thefamily itself is a changeable thing, perhaps the family has not always been as it now is, andperhaps it will soon be different again. Such widespread change is attested to by a wealth ofsocial science data since the 1970s which show fewer and fewer people to be living inrelationships known as the ‘traditional’ or ‘ideal’ family structure.488 The very claim for thesuperiority and moral worth of ‘the family’, that it is the fundamental unit of society, is thusthrown into disarray if it is seen as a fluid entity changing according to social context.Continual repetition of the originality and naturalness of ‘the family’ thus becomes suspect.That water is the basis of all life is a fact rarely proclaimed by Western politicians, the self487Associated Press, ‘Pope insists traditional family universal right” June 19 1994, Quicklaw (ECNG databse).Nor is religious doctrine alone in asserting the originality of the family. The International Covenant on Civil andPolitical Rights, for instance, is comfortable asserting that ‘The family is the natural and fundamental unit ofsociety and is entitled to protection by society and the State’ (Art 23(1)).eg: Barrett and McIntosh supra n 486, at 32; L. Welsh, “Canadians prefer traditional family” June 12,1994 Quicklaw (ECNG database); K. Sweetman, “Year of the family” Ottawa Citizen February 20, 1994; L.Garner, “Don’t walk away from the chance to talk” Daily Telegraph December 7, 1993, Features, 17; J. Serjeant,reporting Shere Hite’ s fmdings, “Hite says traditional family repressive, outdated” February 18 1994 (QuicklawECNG databse).174evident nature of such an assertion rendering it redundant and also rather uninteresting. Yet thepolitical clamour from all sides to represent ‘the family’ and ‘family values’ because ‘thefamily’ is the fundamental unit of society is quite deafening.489 Judith Butler claims that,‘heterosexuality is an incessant and panicked imitation of its own naturalised idealisation’ and‘that heterosexuality is always in the act of elaborating itself is evidence that it is perpetually atrisk, that is, that it “knows” its own possibility of becoming undone.’49°The same argumentcould be made of the compulsive repetition of the natural state of ‘the family’ as evidence thatit must be claimed precisely because it is not so.It is here that the value of the ideological project of exhaustively characterising lesbians asimitative (eg lesbians, by virtue of their masculinity are not ‘real’ women, neither are theymen, lesbian relationships are butch/femme, and lesbian couples with children are ‘pretendedfamilies’) becomes apparent in reflecting a sense of originality back upon heterosexualrelations. It is worth quoting Judith Butler in full as she argues that,‘Compulsory heterosexuality sets itself up as being the original, the true, theauthentic; the norm that determines the real implies that ‘being’ lesbian is always akind of miming, a vain effort to participate in the phantasmic plenitude ofnaturalised heterosexuality which will always and only fail...Here ‘imitation’ carries the meaning of ‘derivative’ or ‘secondary’, a copy of anorigin which is itself the ground of all copies, but which is a copy of nothing.Logically, this notion of ‘origin’ is suspect, for how can something operate as anorigin if there are no secondary consequences which retrospectively confirm theoriginality of that origin? The origin requires its derivations in order to affirm itselfthat they are differentiated from that which they produce as derivatives. Hence, ifit were not for the notion of the homosexual as copy, there would be no constructof heterosexuality as origin. Heterosexuality here presupposes homosexuality.’49’eg Barrett and Mcintosh referring to this ‘unseemly spectacle’ in Britain in the 1980s: ibid, 12.490Butler, in Abelove, Barale and Harlepin, supra n 269, at 314.491Butler, in Abelove, Barale and Halperin, supra n 269, at 312-3.175Representations of lesbians in popular culture and the presence of a lesbian mother in familylaw judgments, with the implicit construction of her identity or relationship as derivative ofheterosexual relations thereby acts to affirm the original, natural and ahistorical primacy of theheterosexual family form in the face of all that threatens it.The superiority and goodness of ‘the (heterosexual) family’Inherent in an ahistorical claim of naturalness for the family as fundamental unit-of-society isthe unquestionable benefit and goodness of ‘the family’ (why, without it, none of us would behere now). ‘The family’ is the centre from which children are socialised into civilisation, thefamily is thus the centre of civilisation, the family is civilised. Concepts of goodness andcivility, like the concept of originality, are relative terms. Simply put, they require the ‘other’so that they can themselves be measured against it and proved superior - without the barbarian,the civilised content of civilisation loses its meaning.Peter Fitzpatrick has argued that the Western conception of social order (from which thejurisprudential basis of law as morally legitimate is drawn), relies upon a sense of theundesirability of the ‘state of nature’ which preceded social ordering to lay its claim toauthority. The so-called state of nature, Fitzpatrick eloquently argues, was in fact a conceptionby Europeans at the time of peoples in Non-European societies as ‘primitive’ and ‘savage’(notably native Americans). The essence of Fitzpatrick’s lengthy and complex argument is thatit is the unspoken presence of the mythic ‘savage’ which shapes law and defines itsmeaning 492492Fitzpatnck argues, ‘It is the savage which in ‘negative terms gives content to the ‘political’ and gives contentto law’: P. Fitzpatrick, The Mythology ofModern Law (London: Routledge, 1992) at 79.176‘... Enlightenment creates the very monsters against which it so assiduously setsitself. These monsters of race and nature mark the outer limits, the intractable‘other’ against which Enlightenment pits the vacuity of the universal and in thisopposition gives its own project a palpable content. Enlightenment being what theother is not. Modern law is created in this disjunction.’493In a similar manner, I argue that the ‘other’ of the lesbian mother, and the projection of allmanner of danger, chaos and pathology onto her allows for a fully rendered sense of ‘thefamily’ as a safe and stable haven despite all the evidence to the contrary.494 Take, forexample Fitzpatrick’s comment that,‘The primitive, to take a figure of the other, is uncontrolled, fickle, irresponsible,of nature, and so on. The European is disciplined, constant, self-responsible, ofculture and so on.’495If ‘primitive’ were replaced with ‘lesbian’ and ‘European’ with ‘family’ the sense of thisremark would still hold, and could readily be applied to the case law explored in Chapters 3and 5.Remembering Chapter 3, a rhetorical reification of ‘the family’ in abstracted terms in thejudgments was virtually always followed by a decision giving custody to the lesbian mother.496Such decisions did not necessarily undermine the rhetorical import of the value of the ‘ideal4931bid, 45.494Smce the 1960s a considerable body of work has explored abuse within families. Much of this work hashighlighted that the majority of women who experience physical or sexual assault do so at the hands of a malepartner or family member. See eg R. Dobash and R.E. Dobash, Violence against Wives (Somerset: Open Books,1980); J. Scutt, Even in the Best ofHomes: Violence in the Family (Melbourne: Penguin, 1983); D. Russell, TheSecret Trauma: Incest in the Lives of Girls and Women (New York: Basic Books, 1984).495Thid, 30.4965ee Chapter 3 ‘Competing families: stable is stable is stable section. Take for example the contradictioninherent in saying, ‘It goes without saying that the most desirable situation for the children of a marriage wouldbe for such children to be part of a household comprising both mother and father living together in a harmoniousrelationship’: LandL, 1983, 78,365.177family’, but rather marked out the general rule of the centrality of ‘the family’ as a healthyand happy home and proceeded to allow the individual mother to be an exception to thisrule.497 Perversely then, in such cases the lesbian mother’s success in a custody claim couldactually be seen as affirming ‘the family’. Likewise when the general dangers of lesbianmothers were explored (usually in terms of the sexual identity and/or orientation of thechildren) but the mother in question was found to be an exception (often due to her ‘discretion’with the children), such decisions actually affirmed that lesbian homes are by and large adanger to the healthy happy development of children.498 For example, the eight step test towhich the lesbian mother was subjected by the court in the Australian case of L and L (1983):‘1. Whether children raised by their homosexual parent may themselves becomehomosexual, or whether such an event is likely.2. Whether the child of a homosexual parent could be stigmatised by peer groups,particularly if the parent is known in the community as a homosexual.3. Whether a homosexual parent would show the same love and responsibility as aheterosexual parent.4. Whether homosexual parents will give a balanced sex education to their childrenand take a balanced approach to sexual matters.5. Whether or not children should be made aware of their parent’s sexualpreferences.6. Whether children need a parent of the same sex to model upon.7. Whether children need both a male and a female parent figure.8. The attitude of the homosexual parent to religion, particularly if the doctrines,tenets and beliefs of the parties’ church are opposed to homosexuality’ .‘497The somewhat squeamish reluctance of judges to outline the details of any allegations of the father’sabusiveness in these cases could also be read as an attempt to protect a vision of family life as stable andwholesome rather than as a source of unhappiness and inequality: see Chapter 3 Competing fathers: who cares?section.498The UK case of B v B, 1991, is one of many such cases, but a particularly shining example in that the judgeelaborates upon psychological testimony that the child will not be gay or experience gender confusion atconsiderable length and accepts the weight of this evidence as generally factual. Then at the very conclusion of thejudgment, almost as a postscript, the judge adds that if the mother had been a different kind of lesbian (a‘militant’ one) the risks for the son would have been very different - thereby implying that just because somelesbians don’t turn their boys into sissies and poofs, does not rule out the possibility that the rest still do.499At 78,363- 78,364. Overlooked completely by the Family Court in the subsequent case of G and G, 1988, butresurrected as ‘an extremely handy check-list’ of ‘matters which a court must take into account in arriving at itsdecision where a homosexual is seeking custody or access to children’ in a gay father case, Doyle, 1992 at 277.178In that case, the mother passed through all eight steps with relative success, aided as she wasby her feminine appearance, closeted lifestyle and determination to send the children toCatholic schools and raise them as practicing Catholics, strenuously indoctrinated in thematters of ‘normal heterosexual relations, marriage and the procreation of children’ (at78,366). Not only does this eight step test throw into question and thus explicitly problematisesuch matters as lesbian mothers’ capacity for love and responsibility (point 3), balance andobjectivity (point 4) it also encodes a privileging of heterosexual parents who are not subject tosuch a test. Apparently it can be taken for granted, such a test suggests, that heterosexualparents provide a loving, balanced, objective and asexual environment for children.The family facing extinctionA certain social Darwinism is at work in the invisible links between ‘the family’ being adominant social form, ‘the family’ creating society as we know it and ‘the family’ being amorally and socially superior force. That is, the prevalence of ‘the family’ proves it to be thefittest and most proper social institution, which thereby justifies social and political action toensure its continued dominance, and so on.500 The paradigm of Darwinism at play incontemporary familial ideology is evidenced by the frequent use of terms in connection withthe family, such as ‘extinction’ and ‘endangered species’, along with calls for its ‘protection’and ‘preservation’ 501500Peter Fitzpatrick traces how Darwms theories were used as a circular justification for colonialism; theEuropeans conquered, therefore they were naturally superior, therefore they had the moral right and duty toconquer to bring their superior and civilised society to the savages whose inferiority was the reason Europeansconquered. Fitzpatrick, supra n 492, Chp 4.501For recent examples in the press see: C. Wattie, Saskatchewan homosexuals” April 29, 1993, Quicklaw(ECNG database); Serjeant, supra n 488; Sweetman, supra n 488.179Hence, when changes in family forms are acknowledged (reluctantly), it is often to bemoanthe disintegration of civilised society. A European Parliament Working Paper on FamilyPolicy in the early 1980s stands as an illuminating example of this line of logic:‘It is striking that the widespread disintegration of the concept of the family as thenucleus of society, the increasing instability in family relationships reflected by thespread of cohabitation and divorce, the crisis in traditional moral values, the fallingbirth rate, which is now approaching or even falling below the rate required for thepopulation to renew itself, are trends common to all the countries of Europe, evenif they vary in intensity. Thus the future and the very survival of these countries isat risk. ‘502Here ‘the family made society as it is’ is neatly reversed, as a collapse of ‘the family’ willinevitably lead to a collapse of society. The thread of Darwinism which is left unexplored bysuch an agenda is the one which interests me the most. That is, if the dominance of ‘thefamily’ proved its unquestionable superiority as a social and moral institution (survival of thefittest), does the same logic not demand that a downturn in the prevalence of ‘the family’proves the end of its superiority, or more damning still, the temporary illusion of superiorityall along. (Was ‘the family’ the hula hoop of the l900s?) Within the Darwinian paradigm thatmade ‘the family’ great, a lessening of the prevalence of the heterosexual nuclear family formsuggests that ‘natural selection’ has found it no longer suited to its environment, and therebyprone to extinction.The possibility that ‘the family’ is disappearing as a consequence of its own lack ofadaptability or inherent limitations and inappropriateness503 is a particularly sticky one to thosewho have so great a stake in its timeless, static universalism. The method by which thecontemplation of such possibilities can be avoided is to look for the threat outside rather than502Cited in Barrett and McIntosh supra n 486, at 11-12.503An argument most prominently promoted by sociologist Shere Rite in her most recent work Growing up underPatriarchy (London: Bloomsbury, 1994).180inside ‘the family’. Maintaining the Darwinian paradigm, another answer offers itself to thequestion of extinction - an external environmental threat. There could be a toxic, pollutedenvironment, that is being contaminated with an unnatural substance, for example, which isthreatening the species. Or there could be some cultural interference with the environment,causing an unforseen and unnatural increase in predators of the species. Lesbians (and gaymen) enter the picture at this point - as a threat ‘both uncivilized and unnatural.’504Within the family law context, lesbianism can be viewed as the pollutant of the natural state ofmarriage, causing rupture and disintegration. Lesbianism is the threat from without, drawinginnocent women away from their natural and proper roles. This view is reflected in theAmerican judgments, noted in Chapter 3, of Schuster (1978)(dissent), M.J.P v J.G.P (1982)and Collins (1988) all of which posit that, ‘The most threatening aspect of homosexuality is itspotential to become a viable alternative to heterosexual intimacy. Cultural interference withthe natural environment is conceptualised as the state refusing to punish homosexualbehaviour, regarding it neutrally or even providing some recognition or protection ofhomosexual people. The State, by not acting to stamp out the predator, thus allows itsproliferation (by a form of vampirism, ‘converting’ otherwise heterosexual young folk) and‘the family’ becomes endangered. Thus, the judges in the three cases above continue,‘If homosexual behaviour is legalized, and thus partly legitimized, an adolescentmay question whether he or she should ‘choose’ heterosexuality.. .If societyaccords more legitimacy to expressions of homosexual attraction, attachment to theopposite sex might be postponed or diverted for some time, perhaps until after theestablishment of sexual patterns that would hamper development of traditionalheterosexual family relationships.’Such a position is reflected in the reasoning behind Clause 28 in the UK which prohibits LocalCouncils from ‘promoting homosexuality’ in a positive or morally neutral light or as a504Butler, supra n 114, at 132.181‘pretended family relationships’ and recent changes to education policy in that country whichmandates that homosexuality be ‘taught’ in schools as immoral and inferior to discouragepupils from jt.°5 The ‘natural’ role of Church and State is thus to intervene to punishhomosexuality in those that are and discourage it in all others - who, moreover are therebycharacterised as those who might well be homosexual given half a chance. Fantastically,familial ideology, by focusing on the threat out there, also manages to suggest the latenthomosexuality in everyone and the possibility that given an even political playing field itwould proliferate.In this way, I argue that lesbians and lesbian mothers in particular are not incidental to familialideology, but absolutely integral to it.506 They provide the mirror on which to project adistorted and evil vision of savage and sexual women who threaten to corrupt the young anddestroy marriage; thereby affirming the originality, goodness and stability of ‘the family’which, moreover, is never to blame for its own troubles.III: Natural MothersIn the same way that lesbians are integrated in familial ideology to naturalise and affirm ‘thefamily’, lesbian mothers are utilised by motherhood ideology to affirm and reinscribe variouselements ‘natural’ to motherhood. Chapter 5 illustrated the extent to which lesbians are viewedas bad mothers, or incapable of mothering at all, and the ways in which such presumptions areplayed out in the case law. This section aims to draw together the use of archetype in that505See eg T. Helm, and V. MacDonald, “Sex lessons shake-up ordered, Education must stress morals notmechanics, says Pattern” Sunday Telegraph December 2, 1993. See also hysterical reactions to proposed anti-discrimination legislation to protect lesbians and gay men and proposed legislation to recognise same sex couplesin Canada as undermining ‘the family’ moral values and corrupting the young: N. Oosterom, “MPs clash onfamily values” July 9 1994 Quicklaw (ECNG databse); Wattie, supra n 501.506TMs is further evidenced by the fact that the utterance of the term ‘family values’ by politicians, religiousorganisations and social scientists is never more than a breath away from mention of same sex couples: see egOosterom, ibid, Wattie, supra n 501, Helm and MacDonald, ibid ; Welsh, supra n 488.182chapter, and the insights of the earlier sections of this chapter regarding abjection and the‘other’ in constructing ideology. In essence, the casting out of the Witch/other is the processby which the Goddess/self knows itself, defining its own boundaries and inscribing itself withvirtue.The position of Virgin here offers an additional layer of complexity beyond the simple dualismof Good and Bad mother. The Virgin holds some possibility of being redeemed, in partbecause she is viewed as oppositional to Witch (eg passive and asexual rather than aggressiveand sexual), and in part because she is imbued with some of the qualities of Goddess (virtue,altruism). The Virgin archetype thereby acts as an intermediary between the two otherarchetypes while still being problematised as inferior.507 Tzvetan Todorov notes in relation tothe Spanish perceptions of native Americans, Edward Said in relation to European perceptionsof ‘the Oriental’, and Terry Goldie in literature representing indigenous peoples, that the racial‘other’ is viewed in a positive or reified manner only when perceived as reflecting values orattributes which the viewer posits as inherent to ‘his’ own culture (such as rationality) •508Deviation from the ‘norm’ of the viewer/self is immediately translated into inferiority anddenigrated. ‘What is denied is the existence of a human substance truly other, somethingcapable of being not merely an imperfect state of oneself’ 509 The Virgin archetype is thereforearguably as much a part of the process by which the Goddess/self is known as central anddefinitional of all around it as the other/Witch archetype is.507See Chapter 5 Virgin Deadlock’ section.508Todorov, supra n 26, at 42; T. Goldie, Fear and Temptation: The Image of the Indigene in Canadian,Australian and New Zealand Literatures (Montreal: McGill-Queens University Press, 1989), 11; E. Said,Orientalism (New York: Pantheon Books, 1978), eg at 60.509Todorov, supra n 26, at 42.183If such an argument begins to seem circular, this is not entirely accidental, as the process bywhich a dominant self/group comes to know itself through the creation of an ‘other’,‘shares with magic and with mythology the self containing, self reinforcingcharacters of a closed system, in which objects are what they are because they arewhat they are, for once, for all time, for ontological reasons that no empiricalmatter can either dislodge nor alter.’51°The tenacity with which the notion that lesbians are bad mothers (who must inevitably turntheir young into homosexuals, or confuse their gender identities or traumatise them in someother sexual but unspecified manner) is clung to in family law cases, and evidence to thecontrary regularly discarded, as Chapter 3 showed. That the lesbian mother is ‘bad’ inideological terms is unquestionable; she differs therefore she is inferior. Similarity is used totightly circumscribe her by making success conditional.What the process of characterising lesbian mothers as ‘bad’ shows about what it takes to be a‘good’ mother in ideological terms is the focus of the remainder of this chapter.Motherhood as asexualityThe rendering of lesbian mothers as Witch due to an (imputed or actual) active sexuality, avisible sexual identity (she says, or other people say, she’s a lesbian) and active sexual choices(she left the father) illustrates very clearly that sexuality is viewed as hostile to motherhood.Moreover the process of de-sexing by which the chances of a lesbian mother’s success wereincreased illustrates that motherhood is still perceived, by the judiciary at least, as primarily asasexual role. This insight is nothing very new, although the clarity with which this old maximwas visible in the case law was nonetheless surprising.510Said, supra n 508, at 70.184Sexuality, and the exercise of it, was emblematic of far more than this, however. The sexualrelationships of lesbian mothers in the case law, discussed in Chapter 5, stood for addiction,selfishness and the exercise of choice. Each of these things were viewed as inherentlyirrational: not just bad choices but inexplicable ones. Good motherhood was thusconceptualised (in its absence) as involving a denial of agency for mothers.Motherhood as a denial of agencyChapter 5 showed that the exercise of sexuality by lesbian mothers was perceived as a selfishand ‘bad’ thing in the case law. Denial of sexual identity was encouraged by the courts, orfalling that, repression of any outward expression of it. To be sexual is bad, to display it evenworse - an indulgence, a selfish imposition on innocent children and an alarmed community.An inherently selfish sexual identity could thus be neutralised by evidence of ‘discretion’,which entailed considerable sacrifice on the part of the mother, to the point of making herrelationship a complete facade.The discovery of selflessness and altruism as fundamental qualities to ‘good’ mothering, likethe requirement of asexuality are also nothing terribly new. What is interesting is the extent towhich choice itself is viewed as a bad thing for mothers to be engaged in. The mother, in‘becoming’ lesbian and leaving a heterosexual relationship - often contemporaneously - is seento exercise choice. Even where the mother claims always to have been lesbian as an innateidentity and only just ‘discovered’ it, she is still seen as making a ‘choice’ to act upon it,rather than continue to repress it (as the judge may suppose she is capable of doing, havingbeen married for however long). Her selfishness arises from her sexuality, but is expressed byway of choice and action which, often, are viewed as thereby rupturing ‘the family’. Her185knowledge of self and the fulfilment of her self entails the destruction of the collective entity -‘the family’.Good motherhood, if it is to be the ‘mirror image’ of such Bad motherhood, entails acommitment to the family first, a denial of the self and a lack of knowing and activity as anindividual self. It is not so much that the Good Mother chooses to put ‘the family’ ahead ofherself, as that there is never seen to be a conflict in the first place. To be part of a family (asopposed to leaving a family) is a passive activity, requiring non-action. The Good Mother isthe one who does not leave, does not act selfishly, does not, in fact, act as an individual at all.Motherhood in ideological terms is thus founded upon identity as a denial of agency.That individualism, a value intrinsic to Western liberalism (and legal liberalism in particular),is so strongly denied in the setting of ‘the family’ supports the idea that ‘the family’ isconstrued as a different realm - the Private - where very different standards apply.Motherhood as privateLesbian mothers, by exercising choice and free will and acting to fulfil their own needs andinterests are seen to be individualistic and therefore anti-family. In this way, lesbian mothershave somehow stepped out of the ‘private’ and emerged as fully ‘public’ beings in the sensethat individualism is meant to be a quality of the marketplace rather than the home.51’ Indeed,511Judith Williamson writes, ‘Women, the guardians of ‘personal life’, become a kind of dumping ground for allthe values society wants off its back but must be perceived to cherish: a function rather like a zoo, or naturereserve, whereby a culture can proudly proclaim its inclusion of precisely what it has excluded. It is as if WesternCapitalism can hold up the image of freedom and fulfilment and say ‘look, our system offers this!’ while in factthe reasons those values [caring, sharing, personal development] are squeezed into personal life (and a tightsqueeze it is, too) is that they are exactly what the economic system fundamentally negates, based as it is on thevalue of competition and profit, producing lack of control, lack of choice and alienation: in T. Modleski, (ed)Studies in Entertainment: Critical Approaches to Mass Culture (Bloomington: Indianna University Press, 1986) at106.186Richard Dyer claims that part of the reason for the hysteria over lesbian mothers is that theysymbolise an integration between opposing realms (sexuality and family).512Another example is the way in which lesbian mothers were scrutinised for ‘displays’ of theirsexuality, with the implicit assumption that ‘exposure’ to it would harm children. Thesexuality of the lesbian mother was thus conceived of as a very ‘public’ affair, as even sharinga bedroom constituted a display. Mothers who remained married, and increasingly motherswho have subsequent relationships with men after marriage are not conceptualised in this wayin the judgments.513What goes on in their bedrooms, or for that matter in the kitchen or at thefront door, is not the subject of inquiry. It is conceptualised as private, and thus children aresomehow immune from the knowledge that their heterosexual parents have a sexuality. Thisparadigm oddly suggests that it is not only motherhood, but by extension also marriage, that isasexual - which is a queer conclusion to come to with regards to the ‘fundamental unit ofsociety’.Motherhood as instinctLesbian mothers are conceptualised as ‘unnatural’ because they have exercised choice to denytheir destiny as wives and mothers. They choose a sexual and familial life unconnected to menand are thus pathologised by a patriarchal framework. Lesbian mothers are also conceptualisedas ‘uncivilised’ because they have brought the ‘public (or marketplace) values of individualismand free choice into the ‘private realm’ and shattered the collectivity of ‘the family’. They512Dyer, supra n 257, at 162. The same argument could be made of disapproval of ‘working mothers’, in thatthey have combined two oppositional worlds in one identity.513See Chapter 3 sections on Competing fathers’ and ‘Competing families’ for cases in which the father’srelationship with his new wife or girlfriend went unexamined. For example, the father’s new relationship was notperceived at any stage as subjecting the children to ‘displays of sexuality’ (with the exception of the extreme caseof M.P v S.P (USA, 1979) where the girls were exposed to pornography featuring the stepmother and wereregaled with sexual tales involving their father.)187have chosen their own needs (to be lesbian) at the expense of the continuity of the family.Lesbian mothers are therefore anti-social because they do violence to the civilising unit ofsociety and all of the values it holds dear. Their sexuality, I have argued at length, isperceived as rapacious, bestial and uncontrolled and the choices which they make to ‘satisfy’ itare therefore viewed as irrational.514The paradox of the lesbian mother as both unnatural and uncivilised gives rise to a certainambiguity about what the Good Mother is. If Bad mother occupies both halves of thenature/culture dualism at once, and Good Mother is a mirror of Bad Mother, where exactlydoes Good Mother stand in the dualism? Moreover, it suggests the possibility of commonground between Good and Bad Motherhood. This ambiguity was well highlighted by the UKcase of Re D (1983) discussed in Chapter 5. In that case the aggressive tenacity of the mother(in persistent litigation over custody to the children) was construed as evidence of her naturalinstincts as a mother in such a way that animality (usually associated with lesbians) and goodmothering were seen to coexist.By highlighting the animality of lesbian mothers, ostensibly to give content to the civilised, yetinstinctively, Good Mother, an uncomfortable similarity arises in that both Good and Badmothers are more closely associated with the body and nature than with the realm of the mindand the social. Good mothers will fight for their young as a matter of instinct. Good mothers,as argued above, stay with the father and form families also out of instinct (lack of agency).Good mothering is the heart of the civilising influence of the family. So Good mothers, then,must be both natural and civilised. Which leads to the question: in what manner are mothers —both good and bad - conceived of as of nature. If distanced from culture and the male/mind,are mothers animals?514See eg USA: Williams, 1990.188By way of example, a focus upon clean and tidy houses is clear in the judgments, as is theassumption that foul language is evidence of bad mothering. Such standards, although arguablyapplied more harshly with lesbian mothers, can be seen in many family law matters.515 Housesand language are taken as outward manifestations of the inner self of the mother. By keepingboth home and language clear and ordered, the mother shows that she is civilised and capableof instilling civilisation into her children. That she must distance herself from nature and provea claim to culture betrays a fear of motherhood as animality.516Motherhood needs Fatherhood?Possibly the clearest conclusion to be drawn from the foregoing analysis of popular culture andcase law is the extent to which, ideologically speaking, motherhood needs fatherhood. Withouta father, and with the imputation of anti-male, anti-family sentiment, the mothering of thelesbian mother becomes instantly suspect. Why does she want these children? Her offer of carewhich pre-lesbian was instinctual or altruistic, post-lesbian becomes evidence of selfishness, alack of balance, an inability to perceive reality - or worse still, her propensity to abuse.Good mothers are not subjected to such suspicions, although in the family law context they toooften embark upon ‘fatherless’ families in their contest for custody. Even in rupturingfamilies, Fatherhood persists as a separate-but-equal complement to Motherhood, a psychicalif not a physical necessity. There is the illusion of the ‘eternal biological family’517 with515Marlee Kline has shown the effect of clean and tidy homes in welfare apprehensions of First Nations children:see Kline, supra n 72.516Children are of nature in this framework also, and are thereby linked to their mothers in their need to havecivilisation put upon them. This supports Peter Fitzpatricks argument that women, children and the mad are oftenevaluated in the same terms and equated with ‘savages’: Fitzpatrick, supra n 492, at 132.517A phrase taken from Graycar in Smart and Sevenhuijsen, supra n 5, at 184.189‘parenting plans’ for the future or ‘joint custody’ to ensure input from both parents, or if thechildren are young enough, there is the possibility of the mother remarrying and providing areplacement ‘father figure’ in the future. In contrast, the lesbian mother is seen to severirrevocably her connection with the father518 and her relationship is viewed as an attempt tousurp Fatherhood (to replace not only the father but Fathers as a distinct and male class).The relentlessness with which lesbian mothers are viewed with suspicion, even wherejudgments are liberal or positive, or a decision is granted in favour of the mother519 illustratesa continued construction of lesbianism in active opposition to motherhood. Such continualopposition and reiteration of difference, a ‘panicked’ repetition betrays both a knowledge thatall is not as it is represented and a fear of what it could be if it is not as it is said to be.52°(i) All is not as it seemsThere is a subtextual knowledge present in the judgments, if not in popular culture, that all isnot as it seems. Categories of Good and Bad mothers have been laboriously pored over,heterosexuality and lesbianism have been rigidly opposed, the Good Self has been defined withprecision through the invocation and expulsion of the Bad Other and yet every category andboundary is known to be meaningless. The very purpose of categories and boundaries are to518There is a gram of truth here in that father’ s hostility to the lesbian mother may well make shared parentingimpossible in a number of cases. This is usually used to deny the mother custody (see eg Aust: P.C v P. R, 1979)but in one instance it was instrumental in a decision to deny a father s request for joint custody and order solecustody to the mother (see USA: Large, 1993).519ee Aust: L and L, 1983 and UK: B v B, 1991 respectively for examples of judgments which are liberal andsuccessful for the mother in question while nevertheless evincing much suspicion.520Judith Butler argues that The rules that govern intelligible identity, ie that restrict the intelligible assertion ofan ‘I’, rules that are partially structured along matrices of gender hierarchy and compulsory heterosexuality,operate through repetition. The subject is not determined by the rules through which it is generated becausesignification is not a founding act but rather a regulated process of repetition that both conceives itself andenforces its rules precisely through the production of substantialising effects’: Butler, supra n 114, at 145.190distinguish, to separate and therefore to ‘know’ the contents. Yet the participants in the familylaw disputes in question have blurred these categories and frankly crossed the boundaries —before the lesbian mother was a lesbian she was a mother, and now she is a lesbian andsomehow she is both. Such a catastrophic traversing of primal boundaries throws into disarraythe comforting purpose of having them at all. The response to such ‘knowing’ of the flimsinessof the construct upon which so much is invested is to reiterate it as truth and as essential.52’Todo otherwise would be to face the fear of what might be, if all is not as it seems.(ii) The fearfactorJust as the lesbian mother throws boundaries into doubt by her very presence in the family lawsystem, she signifies the possibility that other mothers could do the same. If this particularmother can ‘become’ lesbian and leave the father, perhaps any or all other mothers can dolikewise - leaving Fatherhood behind. Such a signification is especially frightening for anumber of reasons, highlighting as it does male dispensability in female sexual satisfaction,and in child rearing as well as positing a fluidity of identity categories and familial forms. Toreturn to Pope John Paul II, such relativism, by threatening the categories upon which familialideology is built, is seen to threaten the whole human race.This chapter has aimed to illustrate the manner in which lesbian mothers are integral tofamilial and motherhood ideology. By their very marginalisation, lesbian mothers create a‘centre’ for the dominant conceptions of motherhood and family. This chapter has argued thatthe figure of ‘the lesbian’ (Witch) is essential in both culture and law. She is drawn forth and521Butler, in Abelove, Barale and Harlepin, supra n 269, at 314.191cast out as part of a process by which social order is established, and by the projection of allmanner of ‘badness’ upon her, content is given to the ‘goodness’ of the establishedheterosexual nuclear family form and Good motherhood within it.What the ‘badness’ of lesbian mothers reveals about ‘good’ motherhood within dominantideologies of motherhood is somewhat more complex. Good motherhood is shown to requireasexuality, a denial of agency, the perpetuation of ‘private’ values such as altruism andnurturance, and a constant striving for ‘culture’ (tidy houses, civilising children).Good motherhood, is however, sometimes paradoxical, for example combining nurturance (anactive task) with a denial of agency (passive) and rendering the privacy of marriage asexual.The construction of Good Motherhood at the site of lesbian mother’s contests in law is shownto be a particularly perilous enterprise. Good motherhood threatens at some points to spill overinto shared territory with the Bad lesbian mother, as both must prove their claims tocivilisation. The stable edifice of Good motherhood is also close to becoming undone whenconfronted with the lesbian mother - herself the potential for change made flesh. If Badmotherhood exhibits fluidity and contradiction, and Good motherhood is opposition to Badmotherhood - perhaps Good motherhood is likewise fluid and contradictory, varying accordingto context. Perhaps the most tangible insight this chapter has to offer about dominantideologies of motherhood is that Good Motherhood is most clearly defined, most knowable asan entity, when there is a contrast available - a worse mother.192ConclusionThis conclusion will summarise the methods and findings of this thesis, and discuss the relativemerits and disadvantages of the approaches taken to the question. It will then progress to anexploration of the similarities which my conclusions may have with other feminist theoristswriting about motherhood ideology.I: Methods, meanings and theoretical insightsThis thesis has used a variety of methodologies to examine child custody cases concerninglesbian mothers in an attempt to discuss ideologies of motherhood more generally. My initialpremise was that lesbian mothers, as ‘marginal’ mothers, could be used successfully as a focuspoint to illuminate the ‘centre’ of dominant ideologies of motherhood. Chapter 6 highlightedthe strengths and weaknesses of this premise. Lesbian mothers can be seen as both a veryparticular threat to familial and maternal ideologies (eg lesbians as child abusers), and also asemblematic of wider fears and concerns (eg mothers don’t really need fathers, the family isobsolete). In this way, I believe the ‘bottom up’ or ‘marginal’ approach has been and can besuccessful only if the specificity of the experience of those on the margins is not overlooked inan attempt to draw conclusive generalisations. For this reason, the discussion of similarities inthe conceptualisation of lesbians and other marginal mothers explored in the latter part of thisconclusion is very tentative.The two other methodologies used in this thesis were the examination of popular culture andthe use of archetype as a manner of structuring the characterisations of mothers in thejudgments. These methods were used in an attempt to draw thematic connections and examinethe ways in which lesbian mothers were ‘seen’ by the judiciary. My premise was that theextent of ‘horror’ at lesbian mothers present in the judgments and the pervasiveness of193‘common sense’ assumptions amounting to judicial notice betrayed a sense that the judges were‘looking’ for something. This insight indicated the possibility of fears and beliefs aboutlesbians which were not evoked by the specific mother herself but existed as part of commoncultural thought in Western society. The discussion of popular culture in Chapter 4 illustratedthe extent to which perceptions of lesbians are typified, and Chapter 5 showed that suchtypologies are very much present in legal judgments. Lesbian mothers are thus viewed througha prism which reflects as much or more about those engaged in the viewing than about themothers themselves. This process of ‘projection’ thereby reveals widespread fears andfantasies both about lesbianism and motherhood. Kristeva’s theory of ‘abjection’ was utilisedto inquire into the wider meaning and importance of drawing forth and casting out fearfullesbians. It was then possible to examine negative imagery of lesbian mothers as an integralpart of dominant ideologies of motherhood and the family.Some issues, such as maternal selfishness, were readily identifiable in the judgments. Others,such as maternal animality and pathologised sexuality existed at a more subtextual level. Theuse of an archetypal framework in Chapter 5 was designed to draw out some of these lessexplicit themes from the judgments and order them in an accessible manner. The use of motherarchetypes was helpful in highlighting the mythic level of ‘mother’ in addition to the mythiclevel of ‘lesbian’ which had been illustrated in Chapter 4. The three fold structure of thearchetype was useful in drawing out and explaining the mediated success of some lesbianmothers. The ‘Virgin’ stood as an intermediary between ‘Good’ (Goddess) and ‘Bad’ (Witch)motherhood in a way that explained how lesbian mothers could win cases while theirmothering roles were tightly circumscribed.The failing of this structure, as with any structure, is that in seeking to make informationintelligible, complexity is lost. A three fold structure disallows the possibility of other ‘types’,for example that of the ‘Warrior’, which does not fit properly within it. Because it originates194from a conception of the unconscious, an archetypal analysis is also at risk of being divorcedfrom the material conditions which create and perpetuate such archetypes - thus denying thepossibility of changing them.Despite these limitations, I believe that the use of archetype has been integral in laying thegroundwork from which to make connections which traverse different ‘types’ of mother anddifferent mothering contexts (eg custody proceedings and access to assisted conception) bydelving beneath the surface discourse of judgments to touch upon deeper fears and fantasiesregarding the ‘othert. The final section of this conclusion will explore thematic links betweenthe insights of this work and the work of other feminist theorists on motherhood ideology,although I do not propose to re-order the work of other theorists to fit an archetypalframework.II: The other mothersThe first chapter of this thesis laid the charge that much feminist work on motherhood hasgeneralised about the situation of ‘different mothers’ (working mothers, black mothers, lesbianmothers, promiscuous mothers) as disadvantaged by the dominant ideologies of motherhoodwithout detailed consideration of what such groups would have in common, and the ways inwhich they may also differ. While Chapter One outlined some of the ways in which the legaltreatment of lesbians may differ from other mothers, this section of the conclusion aims todraw together some of the issues which have arisen in this thesis and show where tentativesimilarities have appeared.Noting the work of feminist theorists writing on differing aspects of the ideology ofmotherhood, in addition to feminist writing on familial ideology, this conclusion will highlight195thematic links between lesbian mothers and other ‘bad mothers’ through the themes ofselfishness, agency, ‘threat to the family’, animality, otherness and sexuality.SelfishnessIn her work on child welfare law and First Nation women in Canada, Marlee Kline notes thatthe theme of selfishness arises frequently.521 When mothers tend to their own needs (eg byescaping from violent partners or relocating in order to get work) they are viewed as neglectfulof children, rather than as establishing the grounding from which they as mothers may be ableto raise children capably and happily. Susan Boyd has explored the ways in which workingmothers are perceived in family law matters as taking away from their child/ren’ s welfarewhen engaged in paid employment (whereas fathers in the same situation are seen ascontributing to it).522There are parallels with both of the above works and this thesis in that lesbian mothers wholeave marriages are characterised as shattering families in order to indulge themselves insensual delights, and are therefore seen as capricious and neglectful. Within the framework oflegal judgments it is never countenanced that a lesbian mother remaining in a marriage wouldbe unhappy and that children of an unhappy mother might well suffer themselves.In short, the application of the ‘best interests of the child’ test in both welfare proceedingsregarding First Nations mothers and family law proceedings involving employed and lesbianmothers is predicated on the unstated premise that while what is good for children is good formothers (if they care about their kids), what is good for mothers is not good for children521Kline, supra n 72, eg at 323, 330.522Boyd, supra n 72.196(children must come first). In such a light the motherly requirement of altruism begins to looka little like masochism. It is possible that mother’s and children’s needs are conceptualised in akind of inverse relation.523The theme of denial of agency raised in Chapter 6 again arises here, as the mother’s choicesare instantly suspect as originating from selfish motives, suggesting that decisions must bemade by someone else (someone ‘objective’) to genuinely reflect the child’s best interests.This idea finds a strong parallel in feminist work on women’s choices to have abortion andwomen’s choices to utilise reproductive services to assist conception. With assisted conception,the decision must be a legislative or medical decision as to who needs, and who shouldproperly be given, access to such services. Herman and Cooper524 and Mary Anne Coffey525have argued that ‘single’ and lesbian women who sidestep decision makers and conceivechildren without men and without authoritative approval are viewed as selfish and irrational.Strict scrutiny of who is permitted access to sperm supplies implies that it is doctors andparliamentarians who are the fittest and most objective persons to make such a decision.Likewise, Shelley Gavigan notes in her work on abortion that access to abortion, even inliberal jurisdictions, is premised upon a doctor’s opinion that it is a necessary step for themother rather than the mother’s own decision that her circumstances are not optimal for birthand child rearing.526523Wifijj my study, the US case of Breisch (1980) is the best example of this, see note 414. An even more overtexpression of such a concept is found in ‘oft quoted dicta’ by Freedman, CJM in a Canadian welfare caseChildren’s Aid Society of Winnipeg v Lambert (Unreported, Man CA, Jan 24 1979), ‘Tn our view another chancefor the mother is one less chance for the child; and it is the child’s welfare that must be our paramount concern’.Quoted with approval in Winnipeg South Child and Family Services Ltd v CW (1990) 69 Man. R (2d) 78 (Man.Q.B).524Supra n 139.525M.A. Coffey, “Of Father Born: A Lesbian Feminist Critique of the Ontario Law Reform CommissionRecommendations on Artificial Insemination” (1986) 24 (1) Canadian Journal ofWomen and the Law 425.526S. Gavigan, “Beyond Morganteler: The Legal Regulation of Reproduction” in Brodie, J, Gavigan, S andJenson, J, The Politics ofAbortion (Toronto: Oxford University Press, 1992).197While the connections between lesbian mothers in family law and such works on motherhoodand the medical establishment are not immediately apparent, strong thematic links appear at asubtextual level. Women seeking abortion and access to assisted conception (as an alternativeto intercourse with men or outside of a ‘stable heterosexual union’) although seeking verydifferent goals are conceived of through a prism of motherhood ideology that characterisesthem both as unnatural. Because they are acting in a manner perceived as unnatural, theirchoices must be supervised and their agency as rational decision makers denied.527 Likewise,lesbian mothers were characterised in the case law explored in Chapters 2 and 5 as unnaturalmothers, to be regarded with suspicion and Chapter 6 argued that lesbian mothers’ exercise ofagency removed them yet further from the bounds of good motherhood.The familyFrom the perspective of familial ideology, just as abortion denies (potential) fathers theirchildren, ‘single’ and lesbian women who avail themselves of assisted conception denychildren their fathers, mothers who leave marriages for lesbian relationships and claim custodyseek to deny children a (live in) father. All are therefore framed as selfish; anti-family andthus anti-mother for actively denying the importance and centrality of fatherhood.Katherine Arnup528 and Susan Boyd529 have both examined the extent to which hostilitytowards lesbian mothers, in Canadian and English family law decisions respectively, is527Whereas having children within a marriage is so natural and unremarkable an event that it requires nosupervision from the state unless the children are severely harmed or endangered.528Arnup, supra n 66.529Boyd, supra n 51.198predicated upon fears of a challenge to the ‘traditional’ family form. Carrie Costello drawsexplicit parallels with the denigration of gay and lesbian families and Black families inAmerica, positing that both threaten the racial ‘purity’ of dominant white heterosexual cultureepitomised in the nuclear family form.53°Chapter 6 of this work argued that the denigration oflesbians as imitative, inferior, contagious and dangerous is an integral part of familialideology, necessary to assure the symbolic position of ‘the family’ as central, stable, universaland good. This argument finds a parallel with Costello’s that, ‘The Good Society knows andorganises itself by rejecting and controlling the Deviants’ although I go further insuggesting that the ‘Good Society’ actually draws forth the ‘Deviants’ in addition to expellingthem.Of nature, bestialAnother similarity in Kline’s above mentioned work on First Nation mothers and this thesis onlesbian mothers is the judicial concern shown over ‘clean and tidy homes’ and how a failure tomeet these standards is used as evidence of ‘bad mothering’. This suggests that both lesbianmothers and First Nations mothers are conceived of as ‘of nature’ in dominant ideology, andmust prove their claim to ‘culture’.Carrie Costello has argued that a dominant ideology is capable of creating an ‘other’ which itviews as debased and bestial on any number of grounds of difference - most particularly on thegrounds of sexuality and race. Once debased, both the ‘other’, and by extension their intimaterelations, become ‘lascivious, promiscuous, and sexually savage’ •532 Costello argues that once530Costello, supra n 50.5311bid, 81.5321bjd 85.199conceived of as essentially savage, attacks upon or threats to civilisation can be imputed to the‘other’ (black men as rapists and thieves, lesbians and gays as child abusers), therebyjustifying a continuation of oppression and denial of personhood. This argument finds aparallel in this thesis whereby the difference of lesbian mothering was translated to inferiority,inferiority equated with animality, and animality viewed as requiring repression.The OtherMarlee Kline demonstrates how First Nation cultures are frequently viewed as an homogenisedwhole, such that judges in Canadian welfare decisions would place a child with a First Nationfamily or parent who was from a culture entirely different from her/his own while believingthat this was sufficient to ensure cultural continuity.533 This suggests a commonality with thisthesis in the sense that both First Nation and lesbian mothers are viewed as ‘other’ to theextent that each group occupies a place as a symbolic whole rather than individuals being seenas differentiated and complex, (although the effects of this homogenisation are, of course,different for both groups). Lesbian mothers in the cases under study were frequently discussedin the general, as a class unquestionably similar who would of necessity have this or that effectupon children. This conception of lesbians as a class was evidenced both by ‘common sense’presumptions against lesbian mothers and of expert and documentary evidence positive tolesbian mothers.534The interplay between an homogenised view of ‘the other’ and the focus upon the welfare ofthe individual child also occurred in both lesbian mother and First Nations cases in such a way533M. Kline, “Child Welfare Law, •Best Interests of the Child, Ideology, and First Nations’ (1992) 30(2)Osgoode Hall Law Journal 375.534See latter parts of Chapter 2 and Chapter 5.200as to obfuscate consideration of structural inequality. A focus upon the child’s ‘best interest’meant that judges did not need to take into account the discriminatory effects of theirjudgments. Thus the devastation of Native communities by the removal of children need not beconsidered if the child at hand is seen to be ‘better off’ in a non-Native family, and thepossibility of stigmatisation of the children of a lesbian mother is sufficient reason to grantcustody to a non-lesbian parent, thus re-enacting and re-encoding such stigmatisation. The‘other’ thus can be seen as a whole, at the same time that the effects upon them as a collectivegroup or community can be disregarded.SexualJulia Brophy has argued that the welfare principle has been applied in child custody matters insuch a manner that it is the mother’s sexual behaviour which becomes a primary focus ofjudicial inquiry, the experience of lesbian mothers providing the paradigmatic example.535Some feminist theorists have expressed the opinion that the same kind of scrutiny extends toboth ‘promiscuous’ or ‘adulterous’ heterosexual mothers and lesbian mothers, sometimesconceding that the scrutiny of lesbian mothers is more severe.536While I believe that the cases in my study did reveal judicial disapproval of active sexualityand a conception of motherhood as an asexual role, I argue that lesbian sexuality wasemblematic of far more. It was not just sexuality, but a pathologised sexuality, viewed as bothuncontrolled and diseased, which was the subject of concern. While extramarital heterosexualsexuality was at one time viewed as inherently pathological, such a conception has lessenedover time, particularly with the increase of cohabiting heterosexual couples in Western society535Brophy, supra n 85.536 eg Frug, supra n 123, at 340.201and increased recognition of such couples.537 Thus, I believe that the closest current parallelsto the construction of lesbian mothers may be found in the legal treatment of mothers who areregarded in a manner both sexed and pathological - for example mothers who are identified asprostitutes or as survivors of child sexual abuse. The treatment of these two groups in legaldiscourse have a further similarity in that their identity is regarded as transferable to theirchildren, or ‘contagious’ in the same way that lesbian mothers’ lesbianism is.There is not, to the extent of my reading, a body of work available on mothers who have beensexually abused as children and their interactions with either the welfare or family lawsystems. However, based on the few cases which arose in my study,538 and comparisons with asmall number of Canadian cases found searching the Quicklaw database,539 tentative commonthreads arose. When mothers were identified within judgments as having survived childhoodsexual abuse, it was to suggest one or more of the following possibilities: that the mother wasa potential perpetrator of abuse, that the mother could not adequately protect her child/renfrom sexual abuse, that the mother was ‘obsessed’ with sexual abuse and would instil fear or afalse complaint of abuse in the child/ren, or that the mother was chronically immature.54°Linking all of the various characterisations was the sense that a mother who had been abused537L. Girdner, “Child Custody Determination: Ideological Dimensions of a Social Problem” in Seidman, E andRappaport, J, Redefining Social Problems (London: Plenum Press, 1986) at 169.538ee Canada: Monk v Aitken (heterosexual mother), 1991, Children’s Aid Society, 1986, Re B (L.A), 1989;USA: Chicoine, 1992, Williams, 1990.539ee welfare decisions: New Brunswick (Minister of Health and Community Services) v (C) S (Unreportedjudgment, NB QB, October 1, 1990); Re (J) M (Unreported judgement, Alt. Prov. Ct. September 9, 1988);Children’s Aid Society of Halifax v YL (Unreported judgment, NS Fam. Ct, October 29, 1991); Alberta(Director of Child Welfare) v (T) R (1990) 70 DLR (4th) 306; Winnipeg South Child and Family ServicesAgency v (D.D) S (Unreported judgment, Man. QB, January 23, 1990); child custody decisions: (HB) M v (JE)(Unreported judgment, BCSC, June 21, 1989); VAL v JFL (Unreported judgment, Ont Ct Justice, March 21,1994).540This is not to suggest that all of these things were impossibly untrue in the cases to hand, but rather thatinferences were being drawn and presumptions made as psychologists and judges interpreted the mother’s historyin a particular manner as necessarily causal.202was incapable of providing safety and nuturance, was psychologically ‘at risk’ and would, byher actions or lack of them, somehow ‘infect’ her child/ren with her own experience.Although a significant body of writing from a feminist perspective exists on prostitution andsex workers, legal work in this area tends to focus largely upon criminalisation of prostitutionand inadequate legal protection of sex workers from crimes such as sexual assault.54’ CarolSmart has noted the ways in which legislators and Magistrates in the UK characteriseprostitutes as ‘promiscuous’ and as a fundamental threat to ‘the family and the nation’542 - acharacterisation which finds strong similarities in dominant views of lesbians discussed inChapters 5 and 6 of this thesis. Mothers who are prostitutes may also be scrutinised as liable to‘pass on’ this aspect of their identities to their child/ren in the same way that lesbian mothersand sexually abused mothers are presumed to.543This conclusion in conjunction with the preceding chapter suggests that the legal conception oflesbian mothers has much in common with the ways in which ‘other mothers’, particularlyNative Canadians and African Americans, are conceived by dominant discourse. Analogiesbetween race and sexuality have been drawn too often and too hastily (especially by whitepeople wishing to make a political ‘point’) to be free from suspicion. Therefore it must bestressed that the suggestion of some elements of commonality is a tentative one drawn from a54mSee eg S. Edwards, ‘Prostitution: Ponces and Punters, Policing and Prosecution” (1985) New Law Journal928; M. Baldwin, “Split at the Root: Prostitution and Feminist Discourse on Law Reform (1992) 5 Yale Journalof Law and Feminism 47; B. Cooper, “Prostitution: a Feminist Analysis” (1989) 11 Women’s Rights LawReporter 99.542 Smart, “Legal subjects and sexual objects: ideology, law and female sexuality’ in Smart and Brophy, supran 5, at 50, 52-55.543ee eg the remark of Robson, Prov. Ct. J ‘The mother was admittedly a prostitute for many years and I can seethese daughters going the same way’ (of two girls of 13 and 11) without any evidence in support. Children’s AidSociety of the Regional Municipality of Waterloo v (BA) R (Unreported judgment, Ont. Prov. Ct, May 7, 1987)at 22.203limited number of works, and that the commonality I posit is one of an ‘otherness’ created byracism and homophobia, while acknowledging that the actual experience of racism andhomophobia may differ radically.Unfitness and non-idealness are generally held as a common link between various groups ofmothers in feminist work on motherhood ideology, but the origins of such a link have beenscarcely touched upon. I hope that this thesis has contributed to a body of work which focusesupon the margins and from which it is possible to begin to ask where and how connectionsbetween differing groups of women in relation to the ideology of motherhood arise.I would like to stress in conclusion that the ‘subjects’ of this intellectual inquiry, the lesbianmothers who fought lengthy court battles, have been, and continue to be, bullied and deridedby the legal and mental health systems in all of the countries of the study - particularly in somestates of the USA where restrictive orders regarding mothers and their partners continue to beaccepted as valid judicial action to ‘protect’ children. No matter how stylised and removedfrom ‘reality’ reported cases become, it is still clear on reading them that they have exacted aheavy toll on the women involved.Whether lesbianism is currently chic or not, Adrienne Rich’s words still hold true today:‘Two women sleepingtogether have more than their sleep to defend’544Adrienne Rich, ‘The images” in A Wild Patience Has Taken Me This Far: Poems 1978-81 (New York, Nortonand Co, 1981).204It is a tribute to lesbian courage that in the face of the depressing tirade of homophobia whichavailable case law largely constitutes, women have fought and keep on fighting.205Table of Cases:AustraliaRe A (1993) FLC 92-402Brook and Brook (1977) FLC 90-325Cartwright and Cartwright (1977) FLC 90-302In the marriage of Doyle (1992) 15 Fam LR 274G and G (1988) FLC 9 1-939Harvey and Creswell (1988) (unreported judgment, No ACT G2, Federal Court of ACT,December 23, 1988, before Davies, Kelly and Neaves, JJ)Jarman v Lloyd and Ors (1982) 8 Fam LR 878 (Supreme Court of NSW - Equity Div.)Kitchener and Kitchener (1978) FLC 90-436L. and L (1983) FLC 9 1-353N. and N. (1977) FLC 90-208O’Reilly and O’Reilly (1977) FLC 90-300P.C and P.R (1979) FLC 90-676Schmidt and Schmidt (1979) FLC 90-685Shepherd and Shepherd (1979) FLC 90-729Spry and Spry (1977) FLC 90-271CanadaAdams v Woodbury [1986] B.C.J No 2725 (Unreported judgment, Quicidaw, BritishColumbia Supreme Court, Vernon, Lamperson L.J.S.C. June 26 1986)Re (L.A) B. [19891 B.C.J No 2431 (Unreported judgment, Quicldaw, British ColumbiaProvincial Court, Auxier Prov. Ct. J. December 14 1989)Re Barkely and Barkely (1980) 108 D.L.R (3d) 613 (Ont.)Bezaire v Bezaire (1980) 20 R.F.L (2d) 358 (Ont.C.A)Bernhardt v Bernhardt (1979) 10 R.F.L (2d) 32 (Man. Q.B.).Case v Case (1974) 18 R.F.L 132 (Sask. Q.B.)Children’s Aid Society of Halifax v A.(M.) [1986] N.S.J No 423 (Unreported judgment,Quicklaw, Nova Scotia Family Court, Neidermayer J.F.C. November 25 1986)Monk v Doan and Aitken (1991) 94 Sask. R. 315 (Sask. Q.B.)Daller v Daller (1988) 18 R.F.L (3d) 53 (Ont. H.C)Elliott v Elliott [1987] B.C.J No 43 (Unreported judgment, Quicklaw, British ColumbiaSupreme Court, Vancouver, MacKinnon J. January 15 1987)Guy v Guy (1982) 35 O.R (2d) 584.K v K (1975) 23 R.F.L 58 (Alta.).N v N [1992] B.C.J No 1507 (Unreported judgment, Quicklaw, British Columbia SupremeCourt, Vancouver, Warren J. July 2 1992)Robertson v Geisinger (1991) 36 R.F.L (3d) 261 (Sask. Q.B.).206S v S [1992] B.C.J No 1579 (Unreported judgment, Quicklaw, British Columbia SupremeCourt, Cranbrook, Melnick J. November 30 1992)Seseija v Seselja [1994] O.J No 639 ((Unreported judgment, Quicklaw, Ontario Court ofJustice, Provincial Division, Brampton, Karswick Prov. Div. J. March 9, 1994.)Steers v Monk [1992] O.J No 2701 (Unreported judgment, Quicidaw, Ontario Court ofJustice, Provincial Division, Brampton, Wolder Prov. Div. J. December 11992.)Tomanek v Tomanek [1993] O.J No 1371 (Unreported judgment, Quicidaw, Ontario Court ofJustice, General Division, Sault Ste Marie, Noble J. June 10 1993)United Kingdom(Although some citations are to FLR, page references in the text of this work refer todocuments retrievedfrom LEXIS and printed via a wordprocessor, due to the unavailability ofthe UKFLR in Canada).Re A (Wardship: Children in care) (1979) 1 FLR 100B v B (Custody, care and control) [1991] 1 FLR 402C v C (Custody: Appeal) [1991] 1 Fam LR 223 (C.A).Re D and D (Unreported judgment, Court of Appeal, Eveleigh, U and Ormrod, Sir R,February 16, 1983)Re E (Unreported judgment, Court of Appeal, Gibson, U and Braewell, J, July 1, 1993)Eveson v Eveson (Unreported judgment, Court of Appeal, Arnold, Sir J and Lane, Dame E,November 27, 1980)Holder v Holder (Unreported judgment, Court of Appeal, O’Connor, CJ and Lately, J,December 12, 1985)Re M (Judicial continuity) [1993] 1 FLR 903 (C.A)Re P (1983) 4 FLR 401 (C.A)Re S (Unreported judgment, Court of Appeal, Glidewell, U and Cazelet, J, July 22, 1993)S v S (1978) 1 FLR 143 (C.A)Walker v Walker No 79 D 519 (Unreported judgment, Court of Appeal, Ormrod and BrandonJJ, June 17, 1980)United StatesAshling v Ashling 599 P. 2d 475 (Or. App. 1979)Anonymous v Anonymous 503 N.Y.S 466 (A.D 4 Dept. 1986)Barron v Barron 594 A. 2d 682 (Pa. Super. 1991)Bennett v O’Rourke (1985) (Unreported slip opinion, LEXIS, Court of Appeals of Tennessee,November 5, 1985)Bezio v Patenaude 410 N.E 2d 1207 (Mass. 1980)Black v Black 1988 Tenn. App. LEXIS 167 (Tenn. App. March 10 1988)Blew v Verta 617 A. 2d 31 (Pa. Super. 1992)In re Breisch 434 A. 2d 815 (Pa. Super 1981)Chicoine v Chicoine 479 N.W 2d 891 (S.D 1992)Collins v Collins No. 87-238-Il, 1988 Tenn. App. LEXIS 123 (Tenn. App. March 30 1988)Constant A. v Paul C.A 496 A. 2d 1 (Pa. Super. 1985)207D.H v J.H 418 N.E 2d 286 (md. App. 1981)Dailey v Dailey 635 S.W 2d 391 (Tenn. App. 1981)In re Marriage of Diehi 582 N.E 2d 281 (Iii. App. 2 Dist. 1991)DiStefano v DiStefano 401 N.Y.S 2d 636 (N.Y. App. 1978)Doe v Doe (Adoption) 284 S.E 2d 799 (Va. 1981)Doe v Doe 452 N.E 2d 293 (Mass. App. 1983)G.A v D.A 745 S.W 2d 726 (Mo. App. 1987)Jacobson v Jacobson 314 N.W 2d 78 (N.D 1981)In Re Jane B. an infant 380 N.Y.S 2d 848 (N.Y 1976)Kallas v Kallas 614 P. 2d 641 (Utah 1980)Lv D 630 S.W 2d 240 (Mo. App. 1982)Large v Large No. 93AP-735, 1993 Ohio App. LEXIS 5810 (Ohio App. 10 Dist. December 21993)Lundin v Lundin 563 So. 2d 1273 (La. App. 1 Cir. 1990)M.J.P v J.G.P 640 P. 2d 966 (Old, 1982)M.P v S.P 404 A. 2d 1256 (N.J App. 1979)Mohrman v Mohrman 565 N.E 2d 1283 (Ohio App. 1989)N.K.M v L.E.M 606 S.W 2d. 179 (Mo. App. 1980)Peyton v Peyton 457 So. 2d 321 (La. App. 2 Cir. 1984)In re Marriage of Pleasant No. 1-91-3835, 1993 Ill. App. LEXIS 1810 (Iii. App. 1 Dist.December 8 1993)S v S 608 S.W 2d 64 (Ky. App. 1980)S.E.G v R.A.G 735 S.W 2d 164 (Mo. App. 1987)S.L.H v D.B.H 745 S.W 2d 848 (Mo. App 1988)S.N.E v R.L.B 699 P. 2d 875 (Alaska 1985)Schuster v Schuster (Joined with Isaacson v Isaacson) 585 P. 2d 130 (Wash. 1978)Thigpen v Carpenter 730 S.W 2d 510 (Ark. 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