Legal Conciousness against the Discriminatory Laws and Stereotypes

Legal consciousness examines the place of law in everyday life, and in the lives of ordinary people (Hull, 2016). Legal consciousness examines the role of law in everyday life, and focuses on how people use, think, and approach the law (Harding, 2006). Specifically, legal consciousness focuses in the way people understand and use the law, in different social locations, and situational contexts (Hull, 2016). Legal consciousness of LGBTQ people provides an understanding of their lived experience, and provides information to change legality around policies that marginalize, and stigmatize them (Knauer, 2012).

Legal consciousness focuses on three notions, "before", "with", and "against the law". This focuses on the idea that individuals have three different modes of consciousness when dealing with different problems and situations. "Before the law" refers to law as objective, autonomous, transcendent, that is apart from the rest of the social world, while "with the law" focuses on law as being a game (Hull, 2016)."With the law" uses rules and procedures in a manipulative matter for ones own gain (Hull, 2016). "Against the law" focuses on law as being dangerous, and to be avoided, and constrains individuals and encourages them engage in resisting, and evading its power (Hull, 2016). There has been little legal consciousness research, and literature that focuses on LGBTQ issues, and on their legal situation until recently. Legal consciousness is essential as it is important in the lives of LGBTQ people. Legal consciousness is concerned with LGBTQ people, and that many are subject to many legal disparities, and inequities (Knauer, 2012). Specifically, LGBTQ people face legal barriers, and encounters when dealing with parenthood, partnership, marriage, and family issues (Hull, 2016)

To begin with, legal consciousness is concerned with parenting, and parenthood. A legal consciousness study on second-parent adoption interviewed twenty parents who had petitioned the court successfully for second-parent adoption of their same-sex partner’s children. It was found that the adoption petitioners experienced the three types of legal consciousness. Those interviewed identified that their experience with legality focused on the official narratives of their personal situations, were at odds with their understanding of themselves and their families (Hull, 2016). Those interviewed experienced the before the law consciousness as they expressed the law’s power to determine recognition and security of their parenting, and relationships with their children (Hull, 2016). Those interviewed discussed before the law consciousness by having others speak previously on behalf of the LGBTQ communities. Lastly, those interviewed experienced a seal of approval of their relationships, and families once they were successful in the legal proceeding (Hull, 2016).

This recognized that many parents were not naive, and were aware of the processes of the legal system, used this to their advantage and that these parents openly resisted bias against them (Hull, 2016). This demonstrated that many same-sex parents had their own ideas of the law, and its legitimacy that were different from those used in the courtroom (Hull, 2016). This being said, many parents moved beyond the wrongful depictions of them and their families, and in fact resisted the typical heterosexist bias used against them (Hull, 2016). Legal consciousness studies of parenting showed that there was an alienation of same sex parents, and that many face stigmatization by judges, and social workers (Hull, 2016). The law in this sense determines whether they are able to create families, and has the power to define whether they will be good parents.

There have been some successes of court cases around parenthood such as the Obergefell v. Hodges case, which declared it unconstitutional for all state laws from barring gay and lesbian couples from marrying (Gash, Raiskin, 2018). But not all LGBTQ people have had the same successes as mentioned above. The Case of Michelle Conover provides a real image of the struggles that same sex parents face with the law. Michelle who is a lesbian mother was stripped of her parental status of her five-year-old son based on her marital status, rather then her parenting capabilities (Gash, Raiskin, 2018). As a result, according to the law Michelle was labelled a legal stranger to her own son (Gash, Raiskin, 2018). A big issue for same sex parents is based on how they are to use their rights within an environment of legal confusion. As mentioned throughout Michelle Conover’s case, at any time a gay or lesbian parent can be considered a legal parent or stranger to their children based on law (Gash, Raiskin, 2018). This is based on legal status ambiguity, which indicates that legal status can change because of changes in formal law. Legal status ambiguity can change for same-sex parents if the formal law is deemed controversial, or contested, if people are unsure or are not aware of the law (Gash, Raiskin, 2018).

Lastly, gatekeepers in institutions such as hospitals, and schools can deny deprive same-same sex couples of recognition (Gash, Raiskin, 2018). Legal consciousness studies find that the law misrepresents many LGBTQ parents, and that these legal, and institutional actors often validate parenthood (Gash, Raiskin, 2018). Therefore, legal status ambiguity can define same-sex parent’s lives by permitting, or accepting their choices and actions based on laws, and social norms (Gash, Raiskin, 2018). As a result, many same-sex parents have to prove their parenthood, in places that are most resistant to them and work with legal actors to achieve parenthood. Therefore, same-sex parents have figured out ways to deal with challenges of the law in their way by taking advantages they could get, and drawing a line when legality had created distortions of their reality (Hull, 2016).

Legal status ambiguity is important for same-sex parents who want legal recognition. Same sex parents who have been marginalized from legal protections still view the laws as legitimate. They use legal protections as a tool for their issue, and use the law to frame their actions (Gash, Raiskin, 2018). Legal consciousness is present in same-sex parenthood as the legal climate for gay and lesbian parents is incomplete, and it is up to a judge’s discretion to decide on it (Gash, Raiskin, 2018). Legal consciousness studies are greatly focused on partnership and marriage for LGBTQ people. Legal consciousness indicates that for LGBTQ people full legal marriage should be available for all (Hull, 2016). For them it often involves legality because of the central role the law plays in LGBTQ lives (Knauer, 2012). For LGBTQ people partnership, and marriage recognition is based on the law, and court decisions. Although recently, local governments have recognized same-sex couples, it has been shown that there are limited rights available to them (Knauer, 2012). Legal consciousness is used to argue that lesbian and gay commitment ceremonies are attempts to enact legality in the absence of ‘official’ law (Kent, 2006). LGBTQ people used public commitment rituals to create legality for their relationships in the absence of official law (Hull, 2016).

LGBTQ couples use public rituals as a way for public witnessing of their commitment, and to give their commitments a reality. This being said, having their rituals done in a religious setting provided for a source of legality, instead of in a legal setting (Hull, 2016). It was found that many LGBTQ couples require the legal recognition for their relationships. This being said, they wanted their marriage recognized as a important political goal, and therefore found anything less such as a civil union, or domestic partnership as not being fully recognized (Hull, 2016). Legal consciousness through marriage and partnership is seen through the three modes of legal consciousness. LGBTQ people expressed a before-the-law consciousness in stating that the state had power to determine whether their commitments and rights were equal to heterosexual married people (Hull, 2016). Many did not want to be treated as second-class citizens because of their marriage by settling for a domestic partnership (Hull, 2016). There is a with-the-law consciousness as there interest with using the law is to have equal benefits and protections in their marriages (Hull, 2016). Lastly, there is an against the law consciousness in their rejection of their exclusion from the legal status of marriage (Hull, 2016).

They want state recognition of same-sex relationships; specifically legal marriage to prove that there relationship was legitimate (Hull, 2016). It was found that after same-sex couples married, that there were changes in how others viewed, and treated them. This is based on LGBTQ individual’s access to legality. Therefore it changed their legal consciousness of their relationship rights, and shifts in their legal and political environment (Hull, 2016). Same-sex partners believed that marriage ceremonies reinforced their commitments to the relationship, and that it was needed a public commitment of marriage to create legality (Hull, 2016). On the other hand, some found that marriage ceremonies were unnecessary and achieved little in the eyes of the law.

Legal consciousness indicates that every LGBTQ person experiences and deals with the law differently (Beall, 2018). This being said, views of same-sex marriage differentiate depending on state, and location (Beall, 2018). LGBTQ people come to understand legality around same-sex marriage differently LGBTQ people live in a way that can be at odds with legal struggles. Therefore, they come to understand the law based on how the community shapes their perspectives and understanding on same-sex marriage (Beall, 2018). LGBT individuals have differential ideas, conceptions, and understandings of marriage and how marriage should be for them (Hull 2006). Therefore, same- sex marriage is seen as overly simplified and does not provide a reflection of LGBTQ communities and identities (Beall, 2018).

LGBTQ people understand legal recognition of same-sex marriage through support for formal legal equality, sameness for heterosexual couples and same-sex relationships, and discourses of citizenship (Harding, 2006). There is a discussion about legal and social change, rejection of alternative legal relationships such as domestic partnerships, and civil partnerships a not enough (Harding, 2006). Legal consciousness studies demonstrate that most same-sex partners understand the need for formal equality in shaping the LGBTQ peoples view and attitudes towards legal recognition (Harding, 2006). Harding’s findings on discussion of relationship recognition indicate that formal equality is prioritized and reified for LGBTQ people (Harding, 2006). LGBTQ people are aware of the reality of legal disadvantage, and challenge this disadvantage through the courts (Harding, 2006). A continuous struggle for LGBTQ people is the law of heteronormativity. Heteronormativity is reflected is in the official law, and is a source of LGBT oppression in formal law.

In conclusion, this paper has aimed to explain what legal consciousness is. Specifically, this paper has explained what legal consciousness is in terms of LGBTQ issues. It has focused on the role of legal consciousness in the lives of LGBTQ people. Legal consciousness plays an enormous role in parenting, partnership, and marriage in the lives of LGBTQ people. This being said, legal consciousness is essential to understanding the experiences of socio-legal marginalization of LGBTQ people. There has be a "gap" between law on the books and law in action, and this is seen throughout the experiences of LGBTQ people in Canada.