Queering children’s rights: a critical queer analysis of the UNCRC

ABSTRACT

While there is increasing attention for LGBTQIA+ concerns within human rights, the legal instruments and academic discussions regarding children’s rights remain largely silent on issues involving sexuality and gender. Due to pervasive protectionist narratives and heteronormative assumptions governing modern childhood, children’s rights implicitly limit the expression of (queer) children and lack the tools and guidance to navigate complex queer disputes. In this context, this paper explores the world’s leading document on children’s rights – the UN Convention on the Rights of the Child (UNCRC) – from a queer theoretical perspective, uncovering how children’s rights are interwoven with social constructs surrounding gender and sexuality. In doing so, this paper first explores the relevance of queering the UNCRC and sets out a queer theoretical framework within the human rights context. Through this lens, finally, the paper discusses three overarching areas of queer critique within the UNCRC: 1) the construction of childhood, 2) child sexuality and gender and 3) the normalising impacts of restrictions on child agency on queer children. It concludes that the UNCRC has great potential to catalyse the implementation of LGBTQIA-focused protections, but more work is needed to clarify and strengthen the legal position of the queer child within its ambit.

KEYWORDS:

• UN convention on the rights of the child
• children’s rights
• queer theory
• child autonomy
• LGBT

Introduction

While there is increasing attention for queer protections within human rights generally, the legal instruments and academic discussions surrounding children’s rights remain largely silent on issues involving sexuality and gender. While the infrastructure of the UN Convention on the Rights of the Child (UNCRC) shows significant potential to help further the recognition of LGBTQIA+ children,¹ its current conceptualisation presents several obstacles. Firstly, the current applications of children’s rights limit the expression of (queer) children by perpetuating gendered and heteronormative assumptions. Secondly, there is a lack of clear guidance by the Committee on the Rights of the Child and adjudicative bodies on how to navigate complex disputes concerning queer children. In this context, this paper seeks to explore UNCRC from a critical queer theoretical perspective, uncovering how children’s rights are interwoven with social constructs surrounding gender and sexuality. Engaging with children’s rights from this angle, the intention is to form a deeper understanding of how the child is characterised and understood in human rights law, and how the queer child is positioned within that paradigm.

In doing so, this paper first explores the relevance and suitability of queering the UNCRC. Second, it sets out a queer theoretical framework within the human rights context. Through this lens, finally, the paper discusses three overarching areas of queer critique within the UNCRC: 1) the construction of childhood, 2) child sexuality and gender and 3) how constraints on autonomy have normalising implications for queer children.

The UNCRC as an object of queer critique

In order to contextualise the substantive critical queer analysis of the UNCRC, it is essential to understand the relevance and necessity of queering this human rights document. By examining several specific challenges surrounding sexuality and gender in childhood and to the children’s rights infrastructure, this section demonstrates that the UNCRC is a particularly important and well-suited starting point for reconceptualising the role of gender and sexuality within legal narratives around childhood.

The first reason for focusing on the UNCRC is that the application and interpretation of children’s rights, as opposed to adult human rights documents, are uniquely silent on queer interests and challenges. While many prominent human rights documents, most notably the European Convention on Human Rights, have been interpreted to expand the scope of LGBTQIA+ rights by recognising the importance of equal treatment and self-determination, these developments have been significantly more difficult for children (Sandberg 2015). Although the discourse around children’s rights and UNCRC guidance has become more vocal about topics like LGBT access to healthcare, combatting discrimination and violence and increasing awareness, the suggestions remain somewhat superficial and peripheral (Gerber and Timoshanko 2021). In this vein, this paper argues that it is vital to explore this gap to ensure that children’s rights can serve as an equally empowering tool for marginalised queer children. Here, it is important to note that childhood is a highly complex social category that struggles with the balance between the autonomy of the child versus the guardianship of parents. As will be discussed throughout the paper, it is deeply ingrained with cultural assumptions and expectations that often conflict with questions of sexuality and/or gender. At the same time, the taboo surrounding child sexuality and gender variance can make childhood especially traumatic for queer children whose desires and expression are forcibly suppressed. Often, the lack of suitable responses and strategies in dealing with queerness in childhood is the root of many challenges facing LGBTQIA+ people as adults (Frödén and Quennerstedt 2020). In this regard, this paper posits that addressing heteronormative assumptions and demanding thoughtful consideration of queer interests within children’s rights could foster meaningful steps towards queer inclusion from a young age. Additionally, engaging more thoughtfully with complexities regarding gender, sexuality and autonomy is significant for children beyond the queer community in addressing some of the negative impacts of the protectionist and repressive approaches regarding sexuality and gender in law today.

Arguing that there is significant unexplored potential within children’s rights generally, the UNCRC is the most relevant subject of queer critique because it is the leading human rights document within child law and the most widely ratified human rights convention overall. In fact, it is ratified in all countries except for the United States. This near universality lays the groundwork for enabling far-reaching and consistent approaches across borders (Geary 2012). Notably, member states are increasingly integrating the UNCRC principles into domestic law, and progressively recognising the importance of child participation and self-determination (Lundy and Kilkelly 2012, p. 105). Additionally, the UNCRC has become more influential in the jurisprudence of regional human rights courts. A clear example is the increased consideration of UNCRC rights by the European Court of Human Rights (ECtHR) (Council of Europe 1950) when determining issues pertaining to respect for private and family life (Article 8), inhuman and degrading treatment (Article 3) and the right to a fair trial (Article 6) (European Union Agency for Fundamental Rights and Council of Europe 2022, p. 32). Similar developments are also apparent from the Inter-American Court of Human Rights, which specifies the importance of co-functioning with the UNCRC and its guiding principles (Inter-American Commission of Human Rights 2008). Furthermore, in Africa, the UNCRC has been influential in the development of the African Charter on the Rights and Welfare of the Child (Assembly of Heads of State and Government of the OAU 1999), where UNCRC principles and rights have been tailored to the specific demands of the African context (Lloyd 2008). This growing influence on regional human rights courts is significant because it reinforces the potential effect in domestic contexts too. For example, because the ECtHR has underscored the applicability of the UNCRC, its principles have become indirectly implemented in states which have only expressly incorporated the ECHR.

Furthermore, the procedural infrastructure of the UNCRC, which centralises feedback and progressive accountability, creates useful mechanisms for tangible queer reform. The enforcement of UNCRC rights is monitored through the Committee on the Rights of the Child (the Committee) and the mechanisms implemented by the Optional Protocol on a Communications Procedure. The Committee issues guidance and exercises oversight over states in two primary ways. The first mechanism is the Concluding Observations which are produced at the end of a reporting cycle, which make recommendations concerning the individual state’s compliance with the provisions of the Convention. In this way, Concluding Observations have the potential to be particularly useful because they can provide helpful insights into the evolving interpretations of the UNCRC regarding contemporary challenges. Here, it becomes apparent that the Committee treats the Convention as a living instrument that has a contextual relationship with the development of children’s rights (Geary 2012). Based on the progress made in each state, the Committee is able to tailor its observations to set out the most important obligations for the next few years. These evolving interpretations point towards a possibility for the gradual adoption of more nuanced and queer-sensitive interpretations of rights.

The second regulatory mechanism is the publication of General Comments (GCs). General Comments allow the Committee to clarify the meaning of specific Convention rights, how they should be implemented in specific situations, or how they affect specific groups (Kilkelly and Liefaard 2018, p. 22). Within the context of queer critique, GCs are also of particular interest as an avenue to reform. Because of their contemporary application, they allow for a more tailored interpretation of specific rights in relation to any social issue. For example, one of the most recent GCs was a joint statement with the Committee on the Elimination of Discrimination Against Women (CEDAW), emphasising the importance of a gender-sensitive reading of the Convention in the context of harmful practices affecting children (UN Committee on the Rights of the Child 2014). If enough attention is drawn to LGBTQIA+ interests and various political hurdles are overcome, a GC that is focused on the experiences of queer children and specifically investigates the relationship between rights and sexuality and gender, could be a powerful mechanism for creating more inclusive interpretations of children’s rights.

Additionally, the third Optional Protocol is salient to the scope of this paper, as mentioned earlier, because it establishes a communications procedure that increases the accountability of states (UNHRC, 2011). For states that have ratified it, the Protocol enables the submission of individual complaints to the Committee, inquiries instituted by any actor and interstate communication. Enabling the involvement of private citizens and non-state actors is an important development because it draws attention to issues that are pressing to the public at any given time. For example, in the context of queer recognition, a private complaint could force increased attention to the violation of LGBTQIA+ rights and demand Committee guidance.

This growing influence, combined with the procedures of the UNCRC, sets the stage for the relevance of this queer critique. On the one hand, it demonstrates how the current silence on LGBTQIA+ issues could result in harmful interpretations in international and domestic contexts. On the other hand, it highlights how more thought on this topic by the Committee could make a tangible impact on legal practices. In particular, as relevant courts become more attuned to the concept of the child as a rights holder, it becomes more important to contemplate how certain characterisations of childhood function to create or perpetuate power dynamics that prioritise the experiences of some children over others. Ensuring that the UNCRC has appropriate and well-reasoned approaches to queer child issues is especially relevant as more queer-centred disputes arise (Bell v Tavistock 2021 EWCA Civ 1363;, NHS Trust v A. B. C and A Local Authority 2014 EWHC 1445; Re Jamie 2013 FamCAFC 110). Here, thoughtful analysis of the potential and limitations of the current rights framework in these contexts can help build more inclusive protections that support child agency and authenticity. As a result, the current cultural and social developments regarding child sexuality and gender, as well as the infrastructure of the UNCRC, make it a particularly well-suited object for queer critique.

Queering human rights

In evaluating the gendered and heteronormative assumptions that underlie the UNCRC, this paper employs queer theory as the primary interpretive method. Queer theory, as a multifaceted deconstructionist body of work, lacks one clear definition. As a result, this section seeks to highlight some of the most relevant tenets of queer theory and explore its relationship to human rights discourse. Here, it delves into some of the tensions between queer theory and human rights, attempting to reconcile some of the theoretical underpinnings. Acknowledging this tension, it also seeks to briefly explore the benefits and limitations of queer methodology and engage with some of the challenges that inevitably arise in the human rights context.

At its core, queer theory is a radical deconstructionist politic that focuses its critique on the role of gender and sexuality in a particular context. For this paper, its value lies primarily in its ability to uncover and question implicit power structures and assumptions that centralise heteronormative experiences. By exploring how mainstream conceptions that guide the law are socially constructed, queer theory enables us to confront those ideas where they perpetuate harmful narratives or marginalise sexual and gender minorities.

The foundational ideas of queer theory are often credited to Michel Foucault and Judith Butler. Most importantly, Foucault posited that sexuality is not an innate biological reality, but rather a constructed cultural and social experience that is historically located (1990). He argues that, as part of the complex relationships that shape power dynamics, sexuality is mobilised as a form of control to maintain a specific social order. Moving away from the power exercised by the sovereign through the threat of death, newer forms of disciplinary measures called ‘biopower’, seek to control the population through the regulation of life and death (Foucault 1990, p. 137). Here, the body is the centre of a complex web of power relations, where the state has an increasing influence on the everyday actions of its workforce. Especially in the context of industrialisation, his work suggests that power was diffracted through governing institutions and aspects of social life to reassert the reproductive norm (Tamsin Spargo 2001). In practice, this may be realised through the monitoring of birth rates, life expectancy, or the involvement of state agencies in the reproductive process (Foucault 1990, p. 139).

Foucault also employs the poignant metaphor of the ‘panopticon’ to explain how surveillance plays a role in the self-regulation of social life. The panopticon structure of a prison, with a watchtower in the centre, means that inmates may or may not be watched at all times of day (Foucault 1991, p. 201). This possibility of constant surveillance, representative of all forms of state involvement, ensures that prisoners – or stripping away the metaphor, citizens – regulate their own behaviour out of fear of not being acceptable. In this way, social norms are created and perpetuated to further the objectives of a capitalist society. He relates these ideas to current conceptions of sexuality by arguing that states benefit from the creation of ‘acceptable’ and ‘unacceptable’ sexual categories. For him, then, homosexuality is not a modern discovery of an innate biological desire, but rather a recent socially constructed concept, along with heterosexuality. This binary between the homosexual and the heterosexual ‘others’ non-reproductive minorities to perpetuate the dominance of the heterosexual reproductive family form.

Building on, and reinterpreting Foucault’s ideas, Judith Butler’s work focuses primarily on the role of gender. In their revolutionary work Gender Trouble, Butler argues that gender (and sex), like sexuality, is socially constructed (2006). Rather than the manifestation of biological sex, gender is a repeated performative effect, perceived as natural. Their theory of performativity suggests that ‘gender is in no way a stable identity or locus of agency from which various acts proceed’ (Butler 1988, p. 519). According to them, it is an ‘identity tenuously constituted in time – an identity instituted through a stylised repetition of acts’ (p. 519). This stylisation happens through the body and ‘must be understood as the mundane way in which bodily gestures, movements, and enactments of various kinds constitute the illusion of an abiding gendered self’ (p. 519). Butler also ties this conception of gender to the idea of compulsory heterosexuality. As a socially constructed fiction, the narrative of ‘opposite’ genders is used to reassert the reproductive heterosexual norm, exclusively portraying the attraction between man and woman as a natural fact of life (2006, p. 141). By suggesting that gender is only ‘real’ by virtue of it being performed, Butler is also able to critique heterosexuality as a ‘natural’ consequence of those discrete genders.

From these key ideas of sexuality and gender as socially constructed and performative realities, queer theory has evolved as both a form of activism and academic pursuit. At its core, queer theory engages with the role and construction of sexuality and gender in various aspects of the social order and the lived experience within it (Tamsin Spargo 2001). Here, it naturally focuses on contexts where sexuality is blatant, such as sexual assault, bans on homosexuality, or a lack of access to trans health care. At the same time, much of its valuable contribution arises from its analysis of gender and sexuality in the context of seemingly non-sexual or gendered issues (Stein and Plummer 1994, p. 182). For instance, it may focus on more obscure facets of sexuality by exploring its more subtle influences in aspects of daily life. In the context of childhood, we may think about how gender and sexuality affect our understanding of play, media access and education. Moreover, and particularly relevant in the context of this paper, it also enables an exploration of the cultural narratives that actively work to exclude or suppress sexuality and gender. This is significant in the context of the UNCRC because it allows for an analysis that extends beyond the scope of specific LGBTQIA+ issues to rethink how gender and sexuality relate to the rights of every child.

When analysing the position of sexuality and gender, queer theory often seeks to deconstruct norms and potentially rework them. In this sense, the field of study is at times divided. On the one hand, queer methodology attempts to destabilise and break down institutions, laws and organising powers that produce and perpetuate the sexual social order (Cohen 1997). Building on Foucauldian notions of biopower, it rejects sites of sexual and gendered regulation (Foucault 2010). The implication of this stream of thought is also to resist the fight for increased recognition and tolerance through human rights, as an extension of this institutionalised regulatory practice. As part of this rejection of assimilation, even the development of the label ‘queer’ as a normalised identity or label goes against the grain of queerness. To many theorists, queerness must remain disruptive, challenging and unacceptable to the mainstream (Cohen 1997).

At the same time, queer theory also has a growing stream of utopian and innovative thought. According to Sedgwick, ‘queer’ is defined by ‘the open mesh of possibilities, gaps, overlaps, dissonances and resonances, lapses and excesses of meaning’ regarding gender and sexuality (Sedgwick 1994, p. 7). This perspective enables a methodology that looks towards the societal fringes and non-conformity as a starting point for critical thought. For example, it asks what the exclusion of one group of people exposes about the flaws in the system in general. Here, the very focus is using anti-normative approaches to rework cultural experiences and provide innovative ways forward. This approach is perhaps most consistent with the idea of ‘queering’ different aspects of social life by providing a queer perspective and the possibilities it offers.

Within this context, the intention to queer a children’s rights document is somewhat paradoxical. While queer theory is anti-institutional, human rights are composed, ratified and enforced by institutions. The main problem, here, is that because queer theory positions institutions as self-perpetuating and self-sustaining systems of power, changing the system from within is not realistic (Cohen 1997). Rather, any forms of social progress pursued by these institutions are perceived as ways of expanding and protecting their legitimacy and influence. Most contributions of queer theory take issue with this institutional infrastructure as a way of monitoring and limiting the radical potential for queer reform. In particular, a queer critique is likely wary of the role of law in the context of LGBTQIA+ issues, because it gives power to lawmakers and courts to individually assess each case of queer experience and judge whether they do or do not deserve access to certain remedies or treatments. For example, in the context of children seeking gender-affirming medical intervention, using the law to regulate access to treatment gives a lot of power to institutions to interfere with the child’s gender expression. Within the context of this tension, it must be conceded that it is not possible to fully queer children’s rights. Any of the practical and theoretical suggestions are likely, by virtue of using the human rights infrastructure, to conflict with the fundamental institutional critiques of queer theory. However, this does not mean that the exercise is futile. Even if a fully ‘queered’ version of the UNCRC cannot exist, 1) there are relevant similarities between queer critique and human rights that are particularly important in finding ways to protect LGTBQIA+ people and 2) where they are dissimilar, queer analysis is able to draw attention to unnoticed problems and norms to enable more nuanced discussions about gender and sexuality within children’s rights.

Firstly, it should also be noted that there are significant ideological similarities between human rights and queer theory that enable potential for powerful insights when taken together. Most fundamentally, both queer theory and human rights seek to address the ways in which people may be overlooked, disregarded and affected by majoritarian societal structures. Similarly, although queer theories may not agree that humans have inherent rights, and rather perceive them as a social construct, the focus within human rights on freedom from imposed views and lifestyles is also essential to queer critique. It is this emphasis on the protection of marginalised groups that makes human rights particularly powerful in the context of the protection of LGBTQIA+ individuals. Here, queer theory can offer helpful insight that enables the exploration of the potential for using children’s rights to equally protect and emancipate the queer child. Through this analysis, the intention is to create a dialogue between human rights and queer theory that allows for the joined influence of imaginative thought and tangible legal outcomes.

Secondly, introducing queer thinking into a human rights framework from this perspective is highly beneficial because it pushes the limits of what the central tenets of human rights may require. Importantly, it allows for questions not just about the immediate choices of the individual, but also about the power structures that affect them and the likelihood of deviating from the norm. This intervention is particularly fruitful in the context of the UNCRC, due to the child’s constantly evolving relationship with personal freedom and the self. Perhaps, precisely because the challenges that arise from this complex balance of paternalism and autonomy are rather different from the adult-centred human rights context, queer theory may be particularly valuable in drawing attention to different power structures at play. Through this careful deconstructionist work, it offers the potential for an interpretation that more thoughtfully acknowledges the sexed, gendered and evolving child, and ultimately moves away from these social constructs. While the primary objective is to draw attention to the exclusion of children whose SOGI does not conform with dominant social norms, this approach also intends to provide wider insights into the ways in which all children may be impacted by sexual and gender power dynamics. As a result, in examining the UNCRC through a queer lens, this process accepts the deconstructive nature of queer theory as a useful starting point for careful consideration and progress, while acknowledging the boundaries of children’s rights.

Queer critiques of the UNCRC

Bringing this framework into the context of childhood, queer theory provides innovative perspectives and illuminating insights about the nexus between social constructs of sex and gender and childhood. These pertinent tenets of queer critique are highly relevant to how the child is constructed within the UNCRC, and how rights are distributed accordingly. In exploring these theoretical underpinnings of the Convention, this section highlights three areas of queer critique. Firstly, it questions the norms that underlie childhood and its effects on how the child is constructed within the UNCRC context. Secondly, it examines the UNCRC’s treatment of sexuality and gender. And, finally, it evaluates how the constraints on child agency disadvantage the queer child.

Childhood as a construct

The starting point for queer analysis of UNCRC centres around how the child is conceptualised within children’s rights. Whilst the Convention accepts childhood as a fixed category that is sufficiently distinct from adulthood to justify the enforcement of separate rights, queer theory may question the basis for this separation and its implications for the structure of rights. Firstly, following Foucauldian and Butlerian thought, childhood is a socially constructed category (Tamsin Spargo 2001, Butler 2006). Although there is some debate about the development of the child as a social group in history, many aspects of modern childhood are culturally determined and carry social and political weight. From a queer perspective, the way childhood is constructed, both inside and outside the remits of the UNCRC, is influenced by and productive of social norms related to the regulation of sexuality and gender.

Archard argues that childhood is a hybrid of biology and social fact (2015, p. 31). While childhood is a period in life that is marked by physical and emotional immaturity, it is also a phenomenon that is subject to different interpretations by different cultures over periods of time (2015). When interpreting childhood from this social constructionist perspective, it raises illuminating questions about how the UNCRC interacts with these social constructs. Working from this angle, the implication may be that the precise way in which the rights have been written and interpreted should not be taken for granted. Rather, the exact framings and their applications are a production of political negotiations and social perceptions of childhood at the time. As is discussed throughout this section, it becomes apparent that cultural expectations are deeply embedded within the Convention. When examining the construction of the child in the UNCRC, this paper highlights the relationship between children’s rights and 1) childhood innocence and vulnerability and 2) the child as a symbol of the future.

Importantly, the UNCRC generally reaffirms the common characterisation of the child as innocent and incomplete in order to justify increased intervention and protection. As posited by Kincaid childhood innocence and purity can be interpreted as negative inversions of adult characteristics such as guilt, shame and culpability (1998). Further, Archard suggests that childhood is defined ‘as that which lacks the capacities, skills and powers of adulthood’. He states that ‘[i]f childhood has virtues they are such only because of their very inappropriateness to adult life’ (Archard 2015, p. 43). In this way, these theorists point out how children are often conceptualised in terms of what they are not (yet). This characterisation of how childhood is socially constructed aligns well with how child development is reflected in the UNCRC, where the child increasingly gains the abilities and attributes of adulthood. For example, the preamble of the UNCRC often refers back to a statement in the Declaration of the Rights of the Child 1959 as a guiding foundation. It quotes that ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care’. Further, it assigns explicit authority over the child to relevant adults in Article 3, where parents and the state are held accountable for making decisions in the best interests of the child. While not necessarily taking issue with the need for a balance between the child as an agent versus a subject in need of external intervention, queer theory is concerned with how that balance is conceptualised. This relates to the discussion in section 4, which examines how children’s rights reflect the need for child self-determination against a backdrop of care and guidance, paying special attention to how this balance caters to non-normative life choices regarding queer children.

A second important narrative regarding child innocence that is reflected in the UNCRC is that children represent a better future. One of the most significant contributions to queer studies of childhood, made by Edelman, is the idea that children represent the possibility of an adult’s impossible continuity. Such reproductive futurism creates a political and social hyper-focus on doing acts in the name of our children (Edelman 2004b, p. 112). According to Edelman, this focus on procreation characterises non-reproductive sexual acts as ‘narcissistic enjoyments understood as inherently destructive of meaning’ (p. 13). Naturally, this leads to the devaluation of non-reproductive forms of kinship, often assigned to homosexual individuals. At the same time, this fantasy of a ‘better future’ for our children justifies displacing the importance of the present (Edelman 2004a, p. 31). Here, children become a symbol of an eternal tomorrow that is never actualised. Edelman’s suggestion to abandon this fixation on the better future, while perhaps offering an overly despairing outlook, is significant in the scope of this paper. In places, the UNCRC falls into the utopian traps of the political symbolic value of childhood. For example, as highlighted in the preamble, the Convention sees children’s rights as a mechanism in the realisation of ‘the full and harmonious development’ of the child, ensuring ‘an atmosphere of happiness, love and understanding’. It further expresses that the child should be ‘brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity’. While these statements seem noble, their abstract idealism feeds into exactly the kind of utopian conceptions of childhood, rooted in child innocence and futurity, that Edelman warns about. Ensuring tangible improvements to the rights of children calls for a careful disentanglement of the real experiences and expressions of childhood and the symbolic innocent image of the child. In particular, as will be explored in the next section, this symbolic and future-focused image of the child has an especially negative effect on the conceptualisation of the child as a person with a sexual and gender identity.

The gendered and sexed child

The second area in which queer critique is particularly important for how the child is constructed under the UNCRC relates to the sexed and gendered child. As a starting premise of queer critique, it is essential to question and analyse any sexual and gendered binaries: firstly, because it crafts a fixed gender identity that naturalises problematic cultural narratives, and secondly, because it actively excludes groups that do not fit within this binary conception. Bringing this into the children’s rights context, it becomes highly relevant to understand how children are assigned within the gender binary and conceptualised as gendered and sexed subjects.

First, it must be noted that the UNCRC is entirely written in binary gender terms. While ‘the child’ is referred to neutrally, the document consistently uses the gendered pronouns ‘him’ or ‘her’. This linguistic choice uncovers the assumption that the child is either male or female. Resultingly, as suggested by Frödén and Quennerstedt, the Convention fails to represent or even acknowledge the experiences of children who do not fit comfortably into this binary divide (2020). Even if purely on a technical level, it excludes non-binary individuals or any child who does not identify with a single gender. While this gendering could arguably be reduced to dated linguistic technicality, the binary conceptualisation of the child is not limited to the text of UNCRC and carries symbolic power. Here, the Committee continues to refer to children in binary terms, even in its more recent guidance. In addition to binary references, it is also clear that the Committee generally perceives the child through the lens of male or female. This conceptualisation affects the way rights are discussed and which issues are brought to the fore, emphasising specific issues affecting boys and girls.

One of the primary ways in which children are specifically gendered in the context of the UNCRC is through Concluding Observations and General Comments. As demonstrated in a comprehensive examination of the interpretative guidance by Frödén and Quennerstedt, references to gender-specific issues are common (2020). When addressing the specific experiences of girls, emphasis is placed on genital mutilation, sexual exploitation, access to education and gender-specific abuse related to child labour. For boys, the focus is on problems such as child conscription and school dropout.

On the one hand, this increasing awareness for the role of traditional understandings of gender and the Committee’s attempts to address underlying norms is a positive development that shows promise for the acknowledgement of similar heteronormative narratives at play. For example, in GC 20, there is explicit attention for the impact of gender violence on boys, raising the issue of the imposition of violence, extremism, and sexual abuse (UN Committee on the Rights of the Child 2016). The Committee even urges states to ‘challenge negative perceptions of boys, promote positive masculinities, overcome cultural values based on machismo and promote greater recognition of the gender dimension of the abuses they experience’ (p. 9). Similarly, the Committee genders the UNCRC through the joint General Comment with the Committee on the Elimination of Discrimination against Women (CEDAW). Here, the Committees actively seek to draw attention to gender-specific issues within childhood by melding the two rights frameworks. This gender-specific treatment is a crucial step towards recognising the different dynamics that affect the realisation of meaningful children’s rights. At the same time, however, there are concerns about how the role of gender is portrayed, at times presenting a fairly reductive image. For example, through its selective treatment of issues such as FGM and Polygamy, the Joint General Comment with CEDAW, at times essentialises girlhood to fit a highly specific narrative of victimhood and vulnerability often assigned to non-Western cultures. Girlhood, in this sense, has a constructed symbolism that is used to villainise certain practices and justify protective measures. While a more in-depth discussion on girlhood and boyhood is beyond the scope of this paper, facets of this discourse highlight how the UNCRC’s engagement with gender is culturally and politically located.

Additionally, from a queer perspective, the binary divide that is pervasive throughout UNCRC guidance is pertinent because it immediately places children in a gendered matrix by which their experiences are understood and represented. While these narratives are normalising for all children, it is particularly harmful for those whose gender experiences do not comfortably fit into that binary or the constructed distinctions associated with it. Here, it must be recognised that children’s rights discourse is not socially or culturally neutral and plays an active role in shaping how the child is conceptualised as a gendered rights holder.

Further, this gendered construction of childhood also interacts with the UNCRC’s conception of sexuality. Interestingly, unlike gender, sexual orientation is not a protected characteristic under the Convention. In Article 2, where a host of social denominators are listed, there is no mention of sexual orientation as a ground for potential discrimination. Again, as with the binary language regarding gender, this lack of acknowledgement seems to be a mere indicator of the social context of the time of ratification. This may be evidenced by the fact that anti-discrimination provisions in most human rights documents leading up to the 2000s did not include a mention of sexual orientation: only in more recent documents, such as the EU Charter of Fundamental Rights (European Parliament 2012), is there an explicit reference to this criterion. However, irrespective of whether it was an intentional or contextual omission, it signifies a general lack of appreciation for the impact and role of sexuality in the life of the child. The only context where child sexuality is mentioned explicitly is in Articles 19 and 34, where it is framed in a negative light. In Article 19, sexuality is referred to in the context of the prevention of violence, listing it as one of the potential forms of abuse. Article 34, dealing more directly with sexual abuse, states that children must be protected from illegal sexual coercion, exploitation and pornography.

From a queer perspective, this omission feeds into a more general discomfort with the idea of child sexuality. In Kincaid’s critique of ‘erotic innocence’, he argues that a child, typically non-reproductive and underdeveloped, is necessarily deemed unfit for sexual desires and acts (Kincaid 1998). For example, it is generally believed that children should not be prematurely exposed to sexually explicit content or sexual education because it might infringe on this sexual innocence (Archard 2015, p. 53). Resultingly, children are generally characterised as asexual, yet simultaneously transitioning into heterosexuality (Stockton 2009, p. 37). As part of this asexual conception of the child, queerness is considered an impossibility: if the child’s non-normative sexual desires are recognised, this acknowledges the awareness of sexuality in a context where it ‘should not’ exist. As part of this ‘cult of the child’ – as Edelman puts it – queerness is actively denied because it ‘is understood as bringing children and childhood to an end’ (2004a, p. 19). As will be discussed further in the next section, this dismissal of non-conformist sexual and gender desires is strongly related to the law’s treatment of child self-determination in the realm of sexuality and gender.

Mitigating the lack of attention for sexual identity in the Convention itself, the Committee is starting to address this topic in General Comments. Firstly, several General Comments include sexual orientation and gender identity within the relevant grounds of discrimination. For example, GC 3 states that ‘discrimination based on sexual orientation’ (UN Committee on the Rights of the Child 2003, para. 8) is also of concern and GC 2 emphasises discrimination based on sexual orientation or health status (UN Committee on the Rights of the Child 2002, para. 24). Finally, GC 25 intentionally includes ‘lesbian, gay, bisexual, transgender and intersex’ within a list of relevant grounds (UN Committee on the Rights of the Child, 2021, para. 11). Furthermore, in GC 20, on the implementation of the rights of the child during adolescence, the Committee makes several references to the importance of sexual awareness and the exploration of sexuality (UN Committee on the Rights of the Child 2016). From a queer perspective, this development is a positive step towards recognising the significance of sexual identity and the role of a child’s own participation in making decisions in this respect. Additionally, GC 20 also addresses some of the unique persecution experienced by LGBTQIA+ children. Here the Committee ‘emphasises the rights of all adolescents to freedom of expression and respect for their physical and psychological integrity, gender identity and emerging autonomy’ and urges states to ban conversion therapies or invasive treatments (p. 9). Again, this is a highly significant step in the queering of the interpretation of the UNCRC. Yet, in addition to the fact that the treatment of LGBTQIA+ concerns is far too brief – consisting of two paragraphs – it also only explicitly relates to adolescents. By expressly confining ideas of sexual awareness and identity to teenagers, it reaffirms the assumption of the asexual child and does little to recognise the experiences of younger queer children.

Resultingly, a closer exploration of how the narrative of childhood is mobilised, especially regarding the dichotomy between sexuality and innocence, is an important strategy for evaluating the construction of the UNCRC. In this regard, the queer theoretical underpinning enables a thorough analysis of which children the UNCRC seeks to protect and what happens to those who do not fit the narratives enshrined in the characterisations of rights and their interpretations.

The normalising implications of protectionism

In addition to sexing and gendering the child in a restrictive way, the UNCRC also conceptualises the child by way of their constant evolution into adulthood. Drawing on the analysis that the child is often characterised as an incomplete human, unable to make important life decisions, this section seeks to examine more closely the tensions between the Convention’s call for protection versus the need for self-determination. The main concern is that the criteria for increased decision-making and autonomy are based on subjective ideas influenced by social norms. Rooted in cisgender heterosexual expectations, these norms tend to put queer children at a disadvantage when seeking to participate in decision-making or having their best interests considered (eg. Articles 3 and 12).

The UNCRC, as an international instrument resulting from negotiation and compromise, finds its underpinning in multiple different conceptualisations of childhood and children’s rights. As highlighted by Archard, there is a particularly salient tension between the notion that children should be cared for and the notion that they should be liberated (2015). The caretaker’s view finds that children cannot have self-determination because they do not have the competence and sufficient knowledge about the world around them to make informed decisions. As a proponent of this view, Purdy suggests that children lack the maturity to make choices that will benefit them, and the same rights as such will harm their own development (Purdy 1992). The liberation view, on the other hand, suggests that treating children as unable to make important decisions is paternalistic and oppressive (Veerman 1992). To them, the distinction between childhood and adulthood is somewhat arbitrary, and biological differences do not necessarily justify the difference in rights distribution (Archard 2015, p. 66). This tension can be found in the makeup of the UNCRC, where liberal rights are constrained by protectionist clauses and interests. For example, while the Convention enshrines the child’s right to have their views taken into consideration (Article 12), this right is limited ‘in accordance with the age and maturity of the child’. Similarly, the right to freedom of thought, conscience and religion (Article 14) is restricted by the fact that it must be read in a way that is consistent with the ‘evolving capacities of the child’. At the same time, there are rights which inherently represent more protectionist sentiments. Most importantly, Article 3, which holds that the best interests of the child must be a primary consideration, assigns authority figures ures with the task of establishing an ‘objective’ and external perspective of what is in the child’s interests over the child’s own perceptions. Here, as Veerman has argued, the outcomes of decisions are generally more important than the ability to make those decisions – a fundamentally different type of right protection than for adults (Veerman 1992).

From a queer perspective, these restrictions on agency are particularly important due to their consequences regarding sexuality and gender. First, any constraints on decision-making and agency are particularly relevant for the queer child, because deviating from norms often requires more freedom than following expectations. For example, if we examine a school context, while a cisgender heterosexual child may be fairly comfortable following rules and guidelines, trans children may need to take active steps to renegotiate uniforms, changing rooms, pronouns, and sports. As a result, it requires active decision-making even just to access the basic tenets of their identity. Second, and what will be the main focus of this section, is that the tests and concepts which guide the child’s ability to make decisions are often deeply rooted in heteronormative expectations of childhood that disadvantage LGBTQIA+ children from exercising their rights fully.

In queering child agency within the UNCRC, it must be noted that significant aspects of the children’s rights framework rest on subjective and discretionary terms that naturally reaffirm the norm. In particular, without sufficient guidance, the open-endedness of these legal concepts suppresses queerness, because it allows situations to be judged through a heteronormative lens. For example, when it comes to Article 3, the use of ‘best interests’ creates the illusion that there is an objective ‘best’ that can be determined from an external perspective. Yet, as suggested by Mnookin, the best interests of a child are indeterminate, leaving open the question of which factors should be prioritised (1975, p. 260). He asks, for example, whether the judge should be concerned with the child’s short-term or long-term happiness, economic productivity, religious training, warm loving relationships or discipline (p. 260). The Committee tries to counter this subjectivity by suggesting that courts and policymakers should consider the other Convention rights as factors in this assessment (UN Committee on the Rights of the Child 2013, paras. 52–84). For example, they should consider the child’s opinion, health, religion and identity. While this guidance helps to understand the purpose and application of the principle, it does not remove the contextual subjectivity. Rather, it encourages it. In fact, where the ‘best interests’ conflict with other rights, the Committee suggests that a balance should be struck, leaving considerable discretion to the decision-maker.

The main concern, as argued by Mnookin and Reece, is that the indeterminate and subjective nature of ‘best interests’ is likely to steer policy and judgements towards mainstream beliefs and avoid more radical departures from ‘normalcy’ (Reece 1996). This is particularly relevant to a queer perspective because this outcome likely disadvantages LGBTQIA+ children and prevents the encouragement of choices that defy gendered and sexual norms. Firstly, the decision-makers responsible for these assessments are generally disconnected from queer interests and experiences because the LGBTQIA+ community is grossly underrepresented in governmental bodies and courts (Moran 2013, Reynolds 2013). Secondly, the ‘best interests’ principle also tends to encourage risk aversion. When weighing different factors that are difficult to quantify against each other, with substantial discretion, authority figures ures are more likely to avoid decisions that diverge from the norm, which may be perceived as presenting risks or harms. From a queer critical lens, this is dangerous, because it is likely to prevent children from accessing newer and more anti-normative choices and services. For example, with regards to gender-affirming surgery, if a judge or policymaker has never experienced body dysmorphia, the contribution of medical intervention to the welfare of the child may be less intuitive than the perceived risks and harms. This sentiment is evidenced by the immediate hesitancy (if not resistance) towards trans medical care in childhood in courts and political debates alike (Press 2019). Rather, what is ‘best’ for the child is likely to be interpreted based on the hetero- and cisnormative lens of what makes a happy or healthy childhood.

Similar issues arise concerning other autonomy-based rights that regard the ‘evolving capacities’ and ‘maturity’ of the child. For example, Article 5 expects legally responsible adults to provide ‘appropriate direction’, ‘in a manner consistent with the evolving capacities of the child’ (UN General Assembly, 1989). Further, Article 12 specifies that the ‘child who is capable of forming his or her own views [has] the right to express those views freely in all matters affecting the child’, giving ‘due weight in accordance with the age and maturity of the child’. In both these articles, significant emphasis is placed on the development of the child and their transition from a person whose views should not be considered to one whose views are determinative. Like with best interests, maturity is highly a subjective concept and relies on a norm-based assessment of whether the child has made an ‘acceptable’ decision.

The problem is that maturity is inherently associated with certain markers of growth (Stockton 2009). Often, these milestones are rooted in expectations for the linear progression towards heteronormative adulthood. Here, the more non-conformist the child’s decision or behaviour is, the greater the battle to prove maturity. For example, being an adult is associated with marriage, child-rearing, financial stability and the loss of adolescence. By contrast, immaturity and childhood are associated with play, performance, impulsivity, indecisiveness and a lack of rationality. One of the most prominent queer critiques in the area challenges this linear conception of growing up and investigates queer temporalities (Jaffe 2018). In this arena, Halberstam suggests that queerness is ‘an outcome of strange temporalities, imaginative life schedules, and eccentric economic practices’. What Halberstam means here, is that for queer individuals, the progression from child to adult may look entirely different. Rather than the continuous development towards normative milestones, there are disruptive and timeline-altering experiences such as coming out, transitioning, and tragedies associated with a lack of acceptance. In this way, the use of maturity as a constraint on child agency is more likely to limit queer children, whose actions do not satisfy the conformist expectations of an ‘acceptable’ choice.

From a queer perspective, then, the issue with the UNCRC framework is not necessarily the acknowledgement of evolving capacities and best interests, but rather its implicit enabling of bias. Here, the greatest concern is the lack of appreciation for the potential influence of discriminatory or heteronormative influences in the Committee guidance. Rather than creating a strong foothold for the protection of queer youth in contexts where they are particularly vulnerable to being dismissed, this conceptualisation of rights confirms ordinary notions of development. Resultingly, the queer child that disrupts this linear understanding of growing up, is not yet adequately represented or protected.

Conclusion

The queer child, as of yet, occupies an ambivalent space in the context of children’s rights. Attempting to clarify and evaluate children’s rights engagement with gender and sexuality, this paper examined some of the overarching foundational problems with the UNCRC through the lens of queer theory.

Although consideration for LGBTQIA+ children is expanding within the scope of the UNCRC, the current state of children’s rights remains heteronormative. This heteronormativity is manifested on two levels. Firstly, on the surface, there is a disregard for the experiences and identities of queer children: for example, the UNCRC uses binary pronouns and is silent on sexuality and its discriminatory implications. Secondly, drawing from a more holistic analysis, the UNCRC perpetuates heteronormative conceptions of childhood through adherence to socially constructed narratives surrounding gender, sex and normative child development. Here, although the Convention does not explicitly exclude the queer child, it does feed into notions of child immaturity and innocence. On the one hand, this further enables the narrative that child sexuality and queerness are a threat to child innocence. On the other hand, it does little to question the idea of children as unable to make individual choices about their bodies and gender expression. Moreover, where a balance is struck, assessments of capacity are often measured through the lens of normality and gendered expectations.

This paper is only the first step in untangling these heteronormative and gendered constructs that guide the structure and interpretation of children’s rights. It aimed to serve as a starting point for re-evaluating the Convention and deconstructing the dominant norms to ensure that queer children can be fully integrated into the fabric of the children’s rights framework. Going forward, it will be essential to carefully contemplate a balance between the flexibility of children’s rights and their susceptibility to cisgender heteronormative interpretation. It entails creating LGBTQIA±centred guidance that integrates queer experiences into the more empowering UNCRC rights, to increase the autonomy of and recognition for queer children, while generally providing a more nuanced discussion on gender and sexuality within childhood.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. The term LGBTQIA+ is an acronym used to refer to individuals who identify as lesbian, gay, bisexual, transgender, queer/questioning, intersex, asexual and other sexual or gender minorities. While acknowledging that the needs and experiences of the child will depend upon their specific sexual orientation, gender identity/expression and sex characteristics, this paper intentionally uses the broad umbrella term to reflect the systemic ways in which heteronormativity and gender expectations affect all children and especially exclude those with non-conformist sexual and gender identities.