The Science of Rights: Medical Authority in Lesbian Mother Custody Cases

For many Americans in the 1970s, the phrase “lesbian mother” was a contradiction in terms. However, with the American Psychiatric Association’s (APA) 1973 declassification of homosexuality as a mental illness, lesbians who had children from heterosexual marriages began asserting their custody rights in court. The declassification eliminated a powerful weapon that fathers had wielded against their ex-wives and made courts increasingly willing to consider lesbian custody claims.  

This paper analyzes lesbian custody cases litigated between 1973 and 1998, examining how the APA’s declassification decision simultaneously made these claims possible, while raising a new set of questions about the impact of a parent’s homosexuality on the psychological development of children. While courts initially focused on whether lesbians were inherently unfit or likely to sexually abuse their children, their scope of inquiry quickly shifted to the likelihood that children raised in lesbian households would become homosexual or that they would harmed by social stigma. As courts raised these objections, psychiatrists, psychologists, and social workers focused their research to address these questions, reflecting the dialectical relationship between mental health and law.

The courts’ demands for medical expertise spurred scientific studies which would later prove crucial in other battles for gay and lesbian rights, including anti-discrimination ordinances, the rights of teachers, military regulations, and immigration. This paper thus identifies courts as a driving force for scientific knowledge on gay families, demonstrating the continuing connection between gay rights and mental health theories after the APA’s declassification. It argues that, rather than eliminating the role of mental health in gay rights adjudication, the declassification resulted in continuing attention to and ongoing debates about psychology, psychiatry, and psychosexual development. Lesbian mother custody cases were crucial to this development, both instigating research and providing a locus for mental health debates.