UC Berkeley

Abstract: As we reach the end of this decade the current fight for orientation equality appears to be at a crossroads. Formal grants of orientation equality have been numerous over the last few decades, but inequality on the ground, de facto inequality, appears to linger. This dissertation fills holes in the existing scholarship by exploring real-world discrimination in the adjudication of custody disputes against parents labelled by the courts as gay, lesbian or homosexual.

I examine real-world, de facto bias against gay parents in custody adjudications through the use of three separate methodologies: semi-structured interviews of gay parents (and their attorneys), a textual analysis of judicial decisions available through Lexis and Westlaw, and a randomized, controlled experiment. I find that gay parents and their attorneys report significant anti-homosexual bias in the custody adjudication process and on the fringes of that process, a significant difference in bias across both parental gender and gender of the child at issue, and a belief that these biases are moderated by judicial religiosity and disgust sensitivity. Through a textual analysis of judicial decisions available on Westlaw and Lexis I find that gay parents have suffered a significant disadvantage in terms of custody outcomes when compared to their heterosexual peers, and continue to face a significant outcome disadvantage in terms of visitation restrictions. I further find that the evaluation of their parental fitness is routinely marred by judicially held homophobic stereotypes, the majority of which appear to violate legal side constraints, and that the intersectional impact of gender bias creates unique burdens across both parental gender and gender of the child at issue. Through experimental analysis, I find that individual disgust sensitivity predicts custody denial for gay male fathers, but not for lesbian mothers or heterosexual parent of either gender. Moreover, this finding remains even after controlling for normative beliefs that might also explain an orientation or gender bias: traditional gender role beliefs, moral traditionalism and sexual prejudice. I further find that political ideology moderates custody outcomes, but only for gay male fathers. Conservative political ideology interacted with sexual orientation to predict the imposition of visitation restrictions when the parental fitness of fathers was at issue, but this interaction did not produce significant results when the parental fitness of mothers was at issue.