This article first appeared in the Cardozo Journal of Gender and the Law. in September 2010. For the full article, with citations, please visit that site.
In 2000, Kenji Yoshino published a paper exploring the social erasure of bisexuality. He introduced the paper by empirically proving that bisexuality was invisible through a quick survey of popular news sources that featured volumes more articles about homosexuality than bisexuality. Once he showed that bisexuality was invisible, he made sure to distinguish between the incidental invisibility of bisexuality, perhaps because of the low number of bisexuals, and its deliberate erasure. Yoshino theorized that monosexuals—individuals who are attracted to only one gender, such as heterosexuals and homosexuals—
created an epistemic contract to erase bisexuality in social culture.
He argues that monosexuals erase bisexuals in three ways—class erasure,6 individual erasure, and delegitimization—and proposes that monosexuals have three reasons for participating in and encouraging this erasure: “1) an interest in the stability of sexual orientation categories; 2) an interest in the primacy of sex as a diacritical characteristic; and 3) an interest in the preservation of monogamy.”
My article, written on the tenth anniversary of Yoshino’s seminal piece, is not an update on whether bisexuality has gained social visibility in the last ten years or an examination of whether invisibility is still maintained by a contract among monosexuals. Rather, I begin from the position that bisexuality is invisible in legal culture, like in Yoshino’s social culture, and pose two hypotheses for this invisibility.
First, I believe that while Yoshino’s analysis retains viability when analogized to the legal context—which he explores within sexual harassment jurisprudence—I propose that bisexuality is inherently invisible to the law, beyond the reach of deliberate erasure. A plaintiff’s bisexuality is only at issue in the law where there has been an affirmative outing. That is, in cases where sexuality is at issue, plaintiffs are presumed monosexual, and must either declare their own bisexuality or have it found for them. I explore this legal invisibility in two contexts in Part I of this article.
Second, I argue that where bisexuality is legally relevant it has been erased within the legal culture because it is complicated and muddles legal arguments that depend upon the binary of sexuality. Yoshino addresses this reliance on the binary of sexuality as a fundamental part of homosexual investment in stabilizing sexual orientation by erasing bisexuality, but I argue that this factor is much more prominent in legal culture than the social context. In Part II of this article, I use the suspect class analysis under the Equal Protection Clause to show how bisexuality complicates legal arguments, and propose two solutions through which bisexuality can be introduced into the Equal Protection analysis without compromising sexual orientation’s suspect classification.
The erasure of bisexuality, representative of all sexual identities between 100% homosexual and 100% heterosexual puts the fight recognition of sexual and gender minorities at a disadvantage. Not acknowledging sexualities along a continuum, weakens arguments for granting rights to and preventing discrimination against the lesbian, gay, bisexual, and transgender (LGBT) community. I conclude with the proposition that inclusion of bisexuality, and indeed of all non-binary identities, is crucial for the LGBT civil rights movement.
For the full article, with citations, please visit the Cardozo Journal of Gender and the Law.