It's Not Just Shopping, Urban Lofts, and the Lesbian Gay-By Boom: How Sexual Orientation Demographics Can Inform Family Courts

Abstract

Courts today are deeply involved in matters involving lesbian, gay, bisexual and transgendered persons. Same-sex marriage, custody disputes, conflict with religious claims and other, more routine family law cases all bring sexual orientation minorities into the judicial system as parties, witnesses, lawyers, or jurors. Like sexuality, gender and gender roles have traditionally and significantly influenced these issues. Nevertheless, judges and the legal system often have little factual information about the lesbians and gay men who appear in their courtrooms, instead relying on stereotypes of gay persons. Such reliance fails to see the real people currently present in family courts and likely to appear in the future. The paradigmatic image of the lesbian mother or the adopted child, both radically different from their heterosexual counterparts captures only a slice of lesbian and gay male families. This paper examines recent demographic studies on same-sex couples to explore how sexuality and gender statistics may be used to guide family law doctrine and case outcomes in the 21st century. Since sexual orientation is not uniformly apparent, but varies with individuals and over time and location, the article specifically explores how visibility of minority sexual orientation may affect the demographic data. For example, the movement of lesbians and gay men away from traditional urban enclaves into areas not usually envisioned as gay-friendly may provoke a shift in both population and domestic relations jurisprudence. By examining gender and sexuality empirical studies, family law courts and judges can better see the people and issues present before them - and family law may more accurately reflect the diversity of family structures in modern life.