Journal of Bisexuality

ISSN: 1529-9716 (Print) 1529-9724 (Online) Journal homepage: http://www.tandfonline.com/loi/wjbi20

The Global Problem of Bisexual Erasure in

Litigation and Jurisprudence

Nancy C. Marcus

To cite this article: Nancy C. Marcus (2018) The Global Problem of Bisexual Erasure in Litigation
and Jurisprudence, Journal of Bisexuality, 18:1, 67-85, DOI: 10.1080/15299716.2017.1384423

To link to this article: https://doi.org/10.1080/15299716.2017.1384423

Published online: 01 Mar 2018.

Submit your article to this journal

Article views: 446

View related articles

View Crossmark data

Full Terms & Conditions of access and use can be found at

http://www.tandfonline.com/action/journalInformation?journalCode=wjbi20
JOURNAL OF BISEXUALITY
2018, VOL. 18, NO. 1, 67–85
https://doi.org/10.1080/15299716.2017.1384423

The Global Problem of Bisexual Erasure in Litigation

and Jurisprudence
Nancy C. Marcus
Lambda Legal Defense and Education Fund, Western Regional Office, Los Angeles, CA, USA

ABSTRACT KEYWORDS
As the rights of lesbians, gay men, bisexual people, and Bisexuality; law; immigration;
transgender people (“LGBT rights”) have received increasing same-sex marriage; LGBT-
protections across the globe in recent years, so-called gay rights; litigation;
marriage and other gay issues, and, more recently, transgender jurisprudence; bisexual
erasure; comparative law;
issues, have been prominent in recent legal discourse. In constitutional law; bisexual
contrast, bisexuality has too often been omitted from legal citizenship
rights discourse, with bisexual people who are barely
acknowledged in LGBT-rights litigation and discourse beyond
the minimal inclusion of the letter B in the acronym LGBT. This
article examines the problem of bisexual invisibility and erasure
within LGBT-rights litigation and legal discourse around the
world. Although exposing the problem of bisexual erasure in
the legal world, the article also addresses the question this issue
always seems to beg when it is raised: why bisexual erasure
even matters. The harms of bisexual erasure, including those
that can take tragic root in court decisions grounded in
misunderstandings about bisexuality, are manifold and are
addressed herein along with some potential solutions and next
steps toward improving bisexual inclusion in litigation and
jurisprudence.

I. Introduction
In recent years, lesbian, gay, bisexual, and transgender (LGBT) rights have been
increasingly recognized and protected across the globe, including judicial affirma-
tions of equal dignity and liberty protections for all, regardless of sexual orientation
or gender identity. However, in this exciting chapter of progress for LGBT rights,
the bisexual population, despite comprising the largest segment of the LGBT popu-
lation,1 remains, oddly, the least visibly represented group in LGBT-rights liti-
gation and jurisprudence.
The exclusion of bisexuality from LGBT-rights discourse is a significant
problem that LGBT-rights legal advocates and scholars are still in the beginning

CONTACT Nancy C. Marcus nmarcus@lambdalegal.org Lambda Legal, 4221 Wilshire Boulevard, Suite 280,
Los Angeles, CA 90010, USA.
© 2018 Taylor & Francis Group, LLC
68 N. C. MARCUS

stages of addressing, while too many in the broader legal community remain
unfortunately uninformed about the dangers of bisexual erasure.
Bisexual exclusion, or “erasure” (see Yoshino, 2000, coining the phrase “bisexual
erasure”) can result in significant harms to bisexual people in a number of respects,
and the issue of bisexual erasure is a multifaceted problem. This article does not
purport to be a comprehensive analysis of the broad roots and variations of bisex-
ual erasure, as compared to Yoshino’s more comprehensive epistemology. Rather,
this article focuses on just one aspect of bisexual erasure: its unfortunate penetra-
tion into and detrimental effects within LGBT-rights litigation and other legal con-
texts, in the United States and worldwide.
The lack of bisexual visibility in LGBT-rights litigation and jurisprudence is a
reflection of broader bisexual erasure within LGBT-rights discourse and a vehicle
through which bisexual erasure, however unwittingly, is further perpetuated and
aggravated. In addition to the harms of bisexual erasure in LGBT-rights discourse
and litigation detailed herein, it is important to emphasize the dual cause-and-
effect role of bisexual erasure within the legal system. To wit, bisexual invisibility
in LGBT-rights litigation is a disturbing by-product of broader bisexual erasure,
whereas the harms of bisexual erasure are manifested in the endorsement of dan-
gerous misconceptions about bisexuality and the real threat of resulting harms
when the erasure is perpetuated by the court system itself. When bisexual people
are not mentioned by name in LGBT-rights discourse other than as a single letter
in an acronym, while the lives of gay men, lesbians and transgender people are
addressed in comparative depth, the message perpetuated by such erasure is that
bisexual people do not have equal worth, do not have issues either substantially in
common with other LGBT community members or specific to bisexuality that are
worth mention or consideration in the development of legal protections for sexual
and gender minorities. Consequently, when the issues confronted by bisexual peo-
ple do culminate in litigation or other adjudication, the unfamiliarity of adjudica-
tors with bisexual people and bisexuality as a valid sexual orientation can have
damaging and dangerous repercussions.
Part II of this article describes the problem of bisexual erasure in American LGBT-
rights litigation, summarizing the findings previously documented in my more com-
prehensive article on bisexual erasure in litigation, Bridging Bisexual Erasure in
LGBT-Rights Discourse and Litigation (Marcus, 2015). In recent years, bisexual era-
sure in LGBT-rights litigation has been most visible in the marriage context, which
consequently was a primary focus of that study. This article extends that analysis
to court decisions in Europe and in South Africa (the only country in Africa, and
one of very few worldwide, to establish marriage equality for same-sex couples).
Part III addresses why bisexual erasure is a matter of serious concern in LGBT-
rights discourse and litigation beyond marriage cases. Why bisexual erasure mat-
ters may not be immediately obvious to some. After all, it may be assumed, to the
extent that bisexual people in same-sex relationships suffer the same harms as
other members of the LGBT community, they are necessarily the trickle-down
 JOURNAL OF BISEXUALITY 69

beneficiary as well of advances in “gay rights,” rendering it unnecessary to explic-

itly name them in legal discourse. This assumption, however, is a flawed one.
Although it is true that advances in “gay rights” have resulted in increased legal
protections for gay and bisexual people, there are nonetheless significant harms,
tangible and intangible, resulting from the omission of bisexual people from
LGBT-rights discourse. A number of those harms are addressed herein, including
the potentially dangerous repercussions that ignorance about bisexuality can have
in legal contexts beyond LGBT-rights cases, with a particular focus on the dangers
caused by immigration adjudicators’ misunderstandings about bisexuality in asy-
lum cases.
Finally, and in conclusion, Part IV proposes some possible steps toward alleviat-
ing the problem of bisexual erasure in LGBT-rights litigation and jurisprudence,
highlighting a few examples of positive developments reflecting improved bi-inclu-
sivity and competence by attorneys and at least a few courts, thanks to the efforts
of those committed to the hard work on fighting for improved inclusion of bisex-
uality and LGBT-rights discourse.

I. Bisexual erasure in lgbt-rights litigation

The problem of bisexual erasure in LGBT-rights litigation is an issue addressed at
length in “Bridging Bisexual Erasure in LGBT-Rights Discourse and Litigation” (Mar-
cus, 2015), which surveys the work of other bisexual erasure legal scholars and exam-
ines the erasure of bisexual people in LGBT-rights litigation, in the United States.
In particular, “Bridging Bisexual Erasure in LGBT-Rights Discourse and
Litigation” documents the pattern of bisexual erasure within key federal court
opinions in the United States pertaining to LGBT rights. The article reveals, in
part, that though there are almost no references to bisexual people in recent U. S.
Supreme Court opinions, the Supreme Court has not always been guilty of bisexual
erasure (Marcus, 2015). To the contrary, bisexual people were explicitly referenced
in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.
(1995). In that case, the plaintiff’s name and the litigants’ briefings were bisexual
inclusive, making it easy for the Supreme Court to be as well (see Marcus, 2015).
However, the Supreme Court’s bisexual inclusivity in LGBT-rights cases was
short-lived. A year later, in Romer v. Evans (1996)—a landmark decision for LGBT
rights involving a successful federal constitutional challenge to a state constitu-
tional amendment that explicitly singled out bisexual people along with gays and
lesbians for the denial of civil rights—the plaintiffs’ brief informed the Court that
“only gay people” should be considered affected by the discriminatory amendment,
the bisexual-inclusive language of the amendment’s text notwithstanding:
There can be no question that the plain language of Amendment 2 specifically targets gay
people: Amendment 2 deprives persons of any remedy for discrimination only to the
extent that government or others discriminate on “the basis of” “homosexual, lesbian, or
bisexual orientation, conduct, practices, or relationships.” Thus, Amendment 2
70 N. C. MARCUS

specifically bars only gay people from seeking a basic kind of “protection of the laws” that
any other group is free to seek and obtain…

In addition to Amendment 2’s facially discriminatory application to gay people alone, the
record of this case also shows that Amendment 2 was intended to render ineffective only
gay persons’ political efforts to seek protection against public and private discrimination.
(Brief for Plaintiff-Respondent, Romer v. Evans, 1996, p. 33, emphasis added)

By omitting ‘bisexual’ from the targeted class description in Romer, the LGBT-
rights advocates’ brief unfortunately signaled to the Supreme Court the acceptabil-
ity of bisexual erasure.
The Supreme Court followed that lead. In the years since Romer, a systemic era-
sure of bisexuality has persisted in briefs to the Supreme Court and in opinions by
the Court. Rather than acknowledge that bisexual people also suffer harms from
the denial of same-sex relationship protections, the Court has mirrored the lan-
guage of the litigants’ briefings, transitioning to “gay and lesbian” terminology
when LGBT-rights advocates’ briefs did so (see Marcus, 2015).
More recently, in the context of marriage cases in the United States, LGBT-
rights litigants’ briefings and court opinions have employed the more inclusive
“same-sex” vernacular in marriage cases, although still failing to explicitly refer-
ence bisexual people as also entering into same-sex marriages (Marcus, 2015).
Indeed, when Sandy Steir, one of the primary litigants in Perry v. Schwarzenneger
(2010), the Proposition 8 case challenging a marriage ban in California, was
revealed to have been married to a man prior to marrying her wife, her own lawyer,
Ted Olson, pointedly examined his client in a manner that required her to disown
her previous marriage:
On the stand, Olson subjected Steir to invasive questioning about her sexual orientation,
apparently to preemptively address questions the State might raise, demanding of his cli-
ent, “How convinced are you that you are gay? You’ve lived with a husband. You said
you loved him. Some people might say, Well, it’s this and then it’s that and it could be
this again. Answer that.” In response, Steir explained away her previous marriage by testi-
fying that the only time in her life she had fallen in love had been in her relationship with
Kris Perry. (Marcus, 2015, pp. 308–309)(citation omitted)

The troubling implication of this line of questioning was that if Steir were in fact
bisexual, that would make her somehow less worthy of full marriage equality
rights, and that the very existence of bisexuality seems to be a nuisance and obsta-
cle for LGBT-rights strategists, rather than an appropriately equal focus of their
advocacy.
The problem of bisexual erasure is not unique to the United States but is global
in breadth. Sean Rehaag has documented the invisibility of bisexuality in litigation
globally, including in LGBT-rights cases. He calculates that as of 2009:
the European Human Rights Reports list[ed] 68 cases that mentioned lesbians or homo-
sexuals, but only four that mentioned bisexuals. Similarly, the Canadian Human Rights
 JOURNAL OF BISEXUALITY 71

Tribunal referred to lesbians or homosexuals in 24 decisions, but to bisexuals in only two

decisions. (Rehaag, 2009, p. 1 (citations omitted)).

In a same-sex marriage decision from Africa, where, as with the United States,
same-sex marriage was established judicially,2 the South African Constitutional
Court, as had the U.S. Supreme Court in its two same-sex marriage opinions, Ober-
gefell and Windsor, failed to explicitly address bisexual individuals or bisexuality in
its opinion affirming marriage rights for same-sex couples (see Marcus, 2015). In
Minister of Home Affairs and Another v. Fourie (2005), those affected by marriage
inequality were described solely as lesbian or gay or “homosexual,” without any
recognition that same-sex marriage bans harm bisexual people in same-sex
relationships as well.
In Europe, the European Court of Human Rights (ECHR) has employed a
slightly improved degree of bisexual inclusivity in its LGBT-rights decisions, as
compared to those of the U.S. Supreme Court and the South African Constitu-
tional Court. Of particular relevance are three cases that came before the ECHR in
which same-sex couples sought marriage rights or the equivalent3: a 2010 case out
of Austria, Case of Schalk and Kopf v. Austria; a 2013 case out of Greece, Case of
Valliantos and Others v. Greece; and a 2015 case out of Italy, Case of Oliari and
Others v. Italy.
In Schalk, the ECHR ruled that the enforcement of Austrian case law precluding
marriage or similar legal protections for same-sex couples did not violate the Con-
vention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) (Schalk, 2010, pp. 24–25). The application from the two Austrian
nationals who filed the case had not mentioned bisexuality but was rather written
in terms of same-sex (Gleichgeschlechtlichkeit) partnership and homosexual
(“homosexuellen”) relationships (Schalk Application, 2004).
Mirroring that application, the court’s opinion is utterly devoid of any reference
to bisexual people. In addition to failing to mention bisexuality, the ECHR used
the terms ‘same-sex’ and ‘homosexual’ interchangeably, appearing to view the two
as synonymous rather than recognizing that same-sex relationships can also
involve bisexual people, not just homosexual people:
[T]he Court’s case-law has only accepted that the emotional and sexual relationship of a
same-sex couple constitutes “private life” but has not found that it constitutes “family
life”, even where a long-term relationship of cohabiting partners was at stake. In coming
to that conclusion, the Court observed that despite the growing tendency in a number of
European States towards the legal and judicial recognition of stable de facto partnerships
between homosexuals, given the existence of little common ground between the Contract-
ing States, this was an area in which they still enjoyed a wide margin of appreciation.
(p. 21 { 92, emphasis added)

Subsequently, in Vallianatos, the ECHR addressed challenges by three same-sex

couples to Greece’s civil union statute, which protected only different-sex, not
same-sex couples. In that case, after addressing relevant comparative European
72 N. C. MARCUS

and international law—including a review of the (vast majority of) member-states’

recognition of same-sex marriage or comparable protections; a report of the
National Human Rights Commission criticizing the Greek statute for omitting
same-sex couples from civil union protections; and Articles 8 and 14 of the
Convention – the ECHR ruled that Greece’s exclusion of same-sex couples from
civil union protections violated Article 8 of the Convention (Vallianatos, 2013).
Once again, however, the ECHR made no mention of bisexuality. Instead, as in
Schalk, the ECHR again used the terms ‘homosexual relationships’ and relation-
ships of ‘same-sex couples’” interchangeably (Vallianatos, 2013, p. 30 { 85), reflect-
ing a continued pattern of bisexual erasure. As before, the ECHR’s failure to
employ bisexual-inclusive language also mirrored the language of the applicants
who brought the case; the litigants’ application used the terms ‘gay relationship’
and ‘lesbian relationship’ interchangeably with ‘same-sex relationship,’ never
acknowledging that bisexual people also enter into same-sex partnerships
(Vallianatos application, 2013).
However, though the ECHR’s Vallianatos ruling was not formulated in a bisex-
ual-inclusive manner, the court’s analysis in the case did incorporate and acknowl-
edge comments received from the European Region of the International Lesbian,
Gay, Bisexual, Trans and Intersex Association (emphasis added), and also refer-
enced to the Council of Europe’s Committee of Ministers’ recommendation that
European Union member States “ensure that legislative and other measures are
adopted and effectively implemented to combat discrimination on grounds of
sexual orientation or gender identity, to ensure respect for the human rights of
lesbian, gay, bisexual and transgender persons and to promote tolerance towards
them ” (Vallianatos, 2013, p. 11 { 29, emphasis added).
Same-sex couples received the most explicitly acknowledged protections for
their relationships by the ECHR two years later in Oliari. In that decision, the
ECHR, though not recognizing the right to marry, nonetheless ruled that member-
states of the Council of Europe have an obligation to offer at least civil unions or
domestic partnerships to same-sex couples; and that Italy had failed to make avail-
able a legal framework for the recognition and protection of same-sex unions in
contravention of the Convention (Oliari, 2015). In its analysis, the ECHR took
note of the U.S. Supreme Court Obergefell decision, along with comparative and
European law, including various documents from the Council of Europe urging
legal recognition for same-sex couples and the European Union’s Charter of Fun-
damental Rights, which generally recognizes the right to marry and also prohibits
sex and sexual orientation discrimination (Oliari, 2015).
Most pertinent for this analysis, the Oliari opinion more explicitly recognizes
bisexual people than past opinions addressing the rights of same-sex couples.
Despite the applicants’ petition to the court being written in terms of rights of
“homosexuals” (Oliari, 2015, p. 30 {116),4 the Oliari opinion itself was more inclu-
sive of bisexual people, as reflected in three separate bi-inclusive passages of the
ECHR’s opinion.
 JOURNAL OF BISEXUALITY 73

First, as it had in Schalk, the ECHR quoted the Council of Europe’s Committee
of Minister’s recommendation that European Union member-states:
ensure that legislative and other measures [be] adopted and effectively implemented to
combat discrimination on grounds of sexual orientation or gender identity, to ensure
respect for the human rights of lesbian, gay, bisexual and transgender persons and to pro-
mote tolerance towards them …” (Oliari, 2015, p. 12 { 60, emphasis added)

Second, in citing a statistical survey from the Associazione Radicale Certi Diritti
(ARCD), the ECHR emphasized the statistic that:
40.3% of the one million homosexuals or bisexuals living in central Italy declared them-
selves to have been discriminated against; the 40.3% increases to 53.7% if discrimination
clearly based on homosexual or bisexual orientation is added in relation to [other con-
texts]” (Oliari, 2015, p. 44 { 144, emphasis added).

Not only did the ECHR in Oliari quote others’ explicit references to bisexual
people, the court’s own analysis also employed the most bisexual-inclusive lan-
guage to date in an ECHR opinion on same-sex relationship protections:
In the Court’s view an obligation to provide for the recognition and protection of same-
sex unions, and thus to allow for the law to reflect the realities of the applicants’ situa-
tions, would not amount to any particular burden on the Italian State be it legislative,
administrative, or other. Moreover, such legislation would serve an important social need
as observed by the ARCD, official national statistics show that there are around one mil-
lion homosexuals (or bisexuals), in central Italy alone.

In view of the above considerations, the Court considers that in the absence of marriage,
same-sex couples like the applicants have a particular interest in obtaining the option of
entering into a form of civil union or registered partnership. (Oliari, 2015, p. 153 {{
173–174, emphasis added).

In deliberately inserting the “or bisexuals” parenthetical, the ECHR in this pas-
sage of Oliari displays a clear awareness that same-sex couples may comprise
bisexual people, not just homosexual people.
What gave rise to the ECHR’s improved inclusivity toward bisexual people? The
court was not following the direct cues of the applicants themselves, after all, who
had framed their legal claims in terms of the rights of “homosexuals” (see Oliari,
2015, pp. 27–31 {{ 110–131). Nor was the ECHR even following the lead of the
LGBT-rights advocate third-party intervenors, whose written comments framed
the issue in terms of the rights of “gays and lesbians,” also leaving out bisexual peo-
ple in their description of those affected by same-sex marriage restrictions. The
opening passage of the intervenors’ comments began with a classic bit of bisexual
erasure:
Since 1989, national legislatures and courts in Council of Europe (CoE) member states
and other democratic societies have been accepting, at an ever faster rate, that lesbian
women and gay men have the same human capacity as heterosexual women and men to
fall in love with another person, establish a long-term emotional and sexual relationship,
74 N. C. MARCUS

set up a joint home and, if they wish, raise children with their partner. These national
institutions have understood that same-sex couples therefore have the same emotional
and practical needs as different-sex couples to have their relationships recognised by the
law, and that same-sex couples can justly claim access to the same rights and obligations
as different-sex couples. (Oliari intervenor comments p. 1 {2)

Despite the LGBT-rights advocates in Oliari not themselves having been bisex-
ual inclusive in their briefing, the ECHR may nonetheless have been nudged
toward a path of improved bisexual inclusivity by at least the title of one of the
intervenors that explicitly references bisexual people in its name, ILGA-Europe:
European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex
Association. To some extent, just as the name of the “Irish-American Gay, Lesbian
and Bisexual Group of Boston” party in the last U.S. Supreme Court case to
acknowledge bisexual people may have played a part in the Court’s bisexual inclu-
sivity in its Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
so too may the name of an intervenor party in Oliari that includes bisexual people
have played a role in the ECHR’s greater inclusivity in that case.
Furthermore, although ILGA-Europe itself does not have a perfect track record
in its support of bisexual people—as evidenced not just by the language in the brief
but also by the long delay in ILGAs’ adding a bisexual secretariat to its leadership
(Bolivia, 2015)—at least the website of ILGA-Europe articulates a commitment to
bisexual inclusivity through its mission statement that commits, in part, to:
equality for lesbian, gay, bisexual, trans and intersex people and to ensure protection from
human rights violations, discrimination and violence based on sexual orientation, gender
identity and/or gender expression and intersex status in Europe by instigating legal, polit-
ical, institutional and social change. (ILGA, 2016).

There are other factors that may have contributed to the slightly improved
bisexual inclusivity of the EHCR as compared to courts in other countries. Beyond
a slightly more inclusive tone coming from umbrella LGBT organizations in
Europe, there are also a number of strong European bisexual-specific organiza-
tions, resources, and activists across the E.U. member-states (and the former mem-
ber State, United Kingdom)—for example, Bi Alliance Victoria, Inc. (Australia);
VisiBIlity Austria; Bisexual/Bisexuel – Belgique Belgium, Dubbel-zinnig, Ambigu,
and Ertussenin (Belgium); Bi-Sides (Brazil); Bi and Pansexuals Israel; Bigruppen
and Bipolitisk udvalg (Denmark); Bi-naiset, Bipan, and Bi-ryhm€a (Finland);
Bi’Cause Nice, Bi’Cause Paris, Cercle B at MAG Jeunes LGBT, Biloulou-ve-s, Bi
Visible, Le Biplan, and bisexualite.info (France); Bisexuelles Netzwerk (BiNe) e.V.,
Bi Berlin, Stammtisch Bi & Friends, Bisexualitaet, Liebe-Leben-Leute.de, and BiJou
– Bisexuelles Journal (Germany); Bi Sparkle (Greece); BiC Ireland Network and
Bisexual Visiblity in Ireland; Bisessualita e Bisessuali, Giornata Internazionale
dell’orgoglio e della visibilita bisessuale, bproud.it, Bisessuali pansessuali e queer
Italiani, Bisessuali e Pansessuali del Veneto, and blog Bisessuali Italiani, Bisessualita
e pansessualita Sardegna: gruppo di supporto e confronto (Italy); Landelijk
 JOURNAL OF BISEXUALITY 75

Netwerk Biseksualiteit, Bi Cafe Nijmegen, Het grote Bi-forum, and Bijou (Nether-
lands); Bifile i Norge and #biproud (Norway); Biszkopty (Poland); Actibistas –
Coletivo Pela Visibilidade Bissexual (Portugal); Biseksualke i Biseksualci Srbije
(Serbia); Bisexualne Centrum (Slovakia); KVartIR (Slovenia); Enrenou, Grupo Bi,

Area Bisexualidad, La Banda de Moebius, Tenerife – Area Bisexual, Bithopia
Comunidad Bisexual Canarias, STOP Bifobia, and COGAM (Spain); BiQuPan,
BiQuPans evenemang, Bi-gruppen, RFSL G€ oteborg, BiQuPan Malmo Lund, and
Bi, pan och multifika Uppsala (€ oppen grupp) Facebook group (Sweden); bi-net.ch,
Bisexuelle Basel – HABS, Homosexuelle Arbeitsgruppen Bern (HAB), Gespr€achs-
gruppe Bi-/Pan, Association 360 Groupe Bi, and Homosexuelle Arbeitsgruppen
Z€urich (HAZ) – HAZ Bi-Gruppe (Switzerland); The Bisexual Index (UK); Bi’s of
Color, Bi Community News, Biscuit, BiMedia.org, Bisexual Index, and BiCon Con-
tinuity Lrd. (UK).5 These groups have individually and collectively worked hard to
ensure the visibility of bisexual people across Europe, within organizations such as
ILGA-Europe and on a broader level, for example, hosting the EuroBiCon (Euro-
pean Bisexual Conference) attended by broad cross-section of international partici-
pants; recently successfully lobbying to add a bisexual secretariat to the
(worldwide) ILGA leadership (see Grupo Dimensi on Bi Activismo, 2016); and
engaging in bisexual visibility work in various other ways across Europe.
Perhaps the most significant impetus toward greater inclusion is the bisexually
inclusive tone of other persuasive authorities. For example, the bi-inclusive pas-
sages of Oliari indicate that ECHR was following the lead of the Council of
Europe’s Committee of Minister’s recommendation that European Union mem-
ber-states:
ensure that legislative and other measures are adopted and effectively implemented to
combat discrimination on grounds of sexual orientation or gender identity, to ensure
respect for the human rights of lesbian, gay, bisexual and transgender persons and to pro-
mote tolerance towards them. (Oliari, 2014, p. 12 { 60)

The ECHR may also have found guidance from the bi-inclusive language of the
Associazione Radicale Certi Diritti survey, which was also quoted in its Oliari
decision.
For whatever reasons, the ECHR has more explicitly included bisexual people in
the vernacular of its analyses of LGBT rights than the high constitutional courts in
South Africa and United States that have addressed the same LGBT-rights issues.
Even in the ECHR, however, as across the globe, much work remains to be done
toward improving bisexual inclusivity.

III. The harms of bisexual erasure in litigation and jurisprudence

The harms to bisexual people from their erasure in litigation and jurisprudence are
manifold. This section addresses those harms, in terms of what courts and adjudi-
cators are doing wrong as a result of misunderstandings about bisexuality rooted
76 N. C. MARCUS

in a broader history of bisexual erasure, as well as other harms caused by adjudica-

tors’ own bisexual erasure.
There many potential indirect harms of bisexual erasure, such as its likely con-
tribution to disproportionately high suicide and bullying rates of bisexual people
as compared to gay and straight people (see Marcus, 2015). Social science data
reveal that bisexual people suffer disproportionately lower income but substantially
higher mental and physical health disparities, and increased levels of violence, as
compared not just to heterosexual people but also to gay men and lesbians (see
Movement Advancement Project, 2016). The marginalization of bisexual people
can have particularly acute health repercussions for bisexual youth (see Elia, 2014).
These dangers are compounded by the stigmatizing injuries of bisexual erasure,
which results in all bisexual people, including those who are most in need of being
acknowledged and assisted, rather than being rendered invisible within our justice
system and broader communities.
When courts and adjudicators are themselves complicit in the perpetuation of
bisexual invisibility in LGBT-rights jurisprudence, their failure to acknowledge the
existence of bisexuals necessarily results as well in a failure to address the serious
and potentially life-or-death problems bisexuals face at higher rates than even les-
bians and gays.
To begin with, the perpetuation of bisexual erasure in litigation and jurispru-
dence leads to inaccurate representations of the LGBT community (Marcus, 2015).
With legal systems participating in a depiction of the LGBT community in which
bisexuals are in effect rendered negligible in size and import, rather than accurately
depicted as constituting a majority of the LGBT community, then the resources
and efforts allocated to meeting the needs of members of the LGBT community
become redirected away from a substantial portion of that demographic, many of
whom are in the most need of resources, studies, and attention but instead are ren-
dered insignificant.
Furthermore, when the legal system itself perpetuates bisexual erasure, no mat-
ter how unwittingly, the judges, adjudicators, and even LGBT-rights attorneys end
up engaging in the very type of second-class stigmatization of members of a sexual
minority that LGBT advocates condemn (Marcus, 2015). In the context of LGBT-
rights litigation, in which LGBT-rights discourse has often emphasized the impor-
tance of dignity and freedom from stigma as critical aspects of human rights, there
is a certain irony in perpetuating stigmatizing injuries and dignitary harms
through bisexual erasure. For example, in the U. S. Supreme Court’s Lawrence v.
Texas (2013) decision, Justice Kennedy, writing for the majority, emphasized the
importance of constitutional protections for “‘the most intimate and personal
choices a person may make in a lifetime, choices central to personal dignity and
autonomy,”’ and “the right to demand respect for conduct protected by the sub-
stantive guarantee of liberty” (Marcus, 2015, pp. 574–75) (citation omitted). These
same principles of equal dignity and autonomy have been emphasized as well in
the Supreme Court’s other LGBT-rights decisions affirming the principle that
 JOURNAL OF BISEXUALITY 77

unequal treatment based on identity is an unconstitutional deprivation of rights

that causes deep dignitary harms (see Obergefell, 2015; Windsor, 2013). These
principles are also central to international human rights protections, as codified,
for example, in the opening preamble to the Universal Declaration of Human
Rights, which proclaims, “Whereas recognition of the inherent dignity and of the
equal and inalienable rights of all members of the human family is the foundation
of freedom, justice and peace in the world…,” which emphasizes that “the peoples
of the United Nations have in the Charter reaffirmed their faith in fundamental
human rights, in the dignity and worth of the human person and in the equal
rights of men and women,” and which mandates, “All human beings are born free
and equal in dignity and rights” (Universal Declaration of Human Rights, 1948).
It is thus in ironic contravention of these fundamental constitutional and
human rights principles that courts too often will affirmative accord respect and
dignitary rights to gay men and lesbians without any reference to bisexual people,
thereby relegating bisexual people to an unequal status.
Viewed through the lens of “sexual citizenship” doctrine—which explores the
relationship between sexuality, sexual rights, and the state—“bisexual citizenship”
is only fully accorded when society accords recognition of the bisexual identity (see
generally Maliepaard, 2015). An inclusive approach to cultural citizenship would
ideally entail “‘the right to be different,’ to re-value stigmatized identities, to
embrace openly and legitimately hitherto marginalized lifestyles and to propagate
them without hindrance” (Pakulski, as cited inMaliepaard, 2015, p. 384; see also
Richardson, 2000, p. 120 [the “right to re-value stigmatized identities”]). This is the
case because full citizenship necessarily entails protections of the right to be publi-
cally visible, and to have one’s intimate relationships recognized and validated, not
just to be granted negative privacy rights to be left alone (Richardson, 2000).
Under a “sexual citizenship” analysis, when bisexual people are omitted from
critical legal and policy documents, bisexuality is rendered invisible, “thus making
sexual citizenship for bisexuals even more difficult” (Maliepaard, 2015, p. 384).
Without public recognition and validation of sexual relationships, bisexual people
are denied critical aspects of citizenship, ranging from social legitimacy and vari-
ous forms of institutional support for their relationships (see Richardson, 2000).
In addition to intangible injuries related to stigmatization, the denial of related
rights and protections flowing from bisexual erasure also results in tangible inju-
ries, such as, for example, in custody and immigration cases, that is, legal contexts
beyond the LGBT-rights cases to which jurisprudential bisexual erasure may be
traced. In such contexts, bisexual people may risk losing their children or asylum
due to courts or immigration adjudicators not understanding the validity of bisex-
uality as a valid sexual orientation.
In custody cases, jurists who fail to appreciate the validity of bisexuality have at
times deemed bisexual parents too unstable to be granted custody (see Marcus,
2015). Although bisexuality is not generally explicitly referenced in such court
opinions, that may be in part because judges do not understand bisexuality well
78 N. C. MARCUS

enough to name it. Instead, judges without an adequate base of knowledge about
bisexuality as a valid sexual orientation conclude in some cases that a person with
a history of different-sex relationships and same-sex relationships is too unstable
to be a good parent.
In the immigration context, petitions from bisexual people seeking asylum from
countries with histories of anti-LGBT hostility, or from those seeking to emigrate
to be with their romantic partners, may be viewed with suspicion, due in some
cases to immigration adjudicators’ confusion about bisexual people who are in a
same-sex relationship at one point and a different-sex relationship at another
point. In such situations, the misinformed assumption by some adjudicators is
“that one of those relationships must be a sham relationship consequently threat-
ens the potential ability of bisexuals to immigrate or even be granted asylum from
countries hostile to LGBT individuals” (Marcus, 2015, p. 295).
In the United States, a federal court of appeals recently denied a request for
relief filed by a bisexual asylum applicant from an immigrant judge’s ruling that
his testimony about fearing persecution for his bisexuality in his home country
was “not worthy of belief” (Fuller, 2016, p. 867). Despite evidence about his past
same-sex relationships and physical abuse—even having his face slashed with a
knife and being shot during an attack from a homophobic mob—the immigration
judge denied his asylum request because, in part, of her doubt that he was actually
bisexual, due to the fact he had had relationships with women in the past. This fal-
lacious conclusion, with dangerous repercussions for the applicant, caused Judge
Posner, in dissent, to remark:

The weakest part of the immigration judge’s opinion is its conclusion that Fuller is not
bisexual, a conclusion premised on the fact that he’s had sexual relations with women
(including a marriage). Apparently the immigration judge does not know the meaning of
bisexual. The fact that she refused even to believe there is hostility to bisexuals in Jamaica
suggests a closed mind and gravely undermines her critical finding that Fuller is not
bisexual. (Fuller, 2016, p. 872 (Posner, J., dissenting).

In a case decided by a different federal appellate court in the United States, the
court remanded a bisexual asylum claimant’s application that had been denied by
an immigration judge. The appellate court noted bias on the part of the immigra-
tion judge, indicated in part by the judge’s “permit[ing] the government to engage
in a line of cross-examination asking [the applicant] irrelevant, demeaning ques-
tions about, among other things, his genitalia and sexual performance” (Brown,
2016, p. 21).
Across the Atlantic, a case out of the United Kingdom further illustrates the
dangers of asylum boards failing to understand bisexuality: the case of Orashia
Edwards, a bisexual man seeking asylum from Jamaica. He was originally denied
asylum after a finding of “dishonest sexuality,” when the British Home Office indi-
cated that it viewed his two-year relationship with another man as a sham relation-
ship, since Edwards had previously been married to a woman (Senzee, 2015). In a
 JOURNAL OF BISEXUALITY 79

move of degrading desperation, Edwards, who feared being killed for his same-sex
relationship if forced to return to Jamaica, “took the drastic step of sending photos
of himself having sex with his male partner to the British Home Office, as a last
resort in trying to prove his bisexuality is not dishonest sexuality, but is in fact his
true sexual orientation” (Senzee, 2015, p.). After taking such an extreme measure
to prove his bisexuality as a valid sexual orientation warranting asylum, his immi-
gration request was finally granted (Duffy, 2016). Had he been gay, it is doubtful
he would have had to resort to such harrowing and humiliating measures to prove
his sexual orientation.
Sean Rehaag’s “Bisexuals Need Not Apply: A Comparative Appraisal of Ref-
ugee Law and Policy in Canada, the United States, and Australia” (2009),
details other instances of bisexual erasure revealing a comparative lack of asy-
lum protections for bisexual people. From information gathered through an
Access to Information request, Rehaag deduced in the article that in Canada,
for instance, though gay men and lesbians had a 60% success rate for sexual
minority refugee claims, bisexual people had only a 39% success rate (Rehaag,
2009). From statistics obtained through the International Gay and Lesbian
Human Rights Commission’s Asylum Documentation Program’s internal data-
base, Rehaag found that “bisexual cases represented less than 1% of the cases
involving sexual minority refugee claimants in the United States that were
reported to the ADP from 1994 to 2007,” and “the grant rate for bisexuals
(5%) was significantly lower than the rate for gay men and lesbians (17%) in
cases where the final outcomes were reported” (Rehaag, 2009, pp. 8–9).
Rehaag (2009) also noted the dearth of case law from the United States
involving bisexual refugee applicants. Finally, Rehaag (2009) recounted a study
of sexual minority refugee determinations that took place in Australia between
1994 and 2000 in which only two of 204 cases involved self-identified bisexual
people, and in the four cases involving those who identified as or were behav-
iorally bisexual, none were granted refugee status.
Rehaag (2009) attributes the poor success rate of bisexual asylees’ applications to
bisexual invisibility and to troubling views by refugee claims adjudicators about
bisexuality. The article highlights several particularly troubling cases, for example,
the case of a bisexual refugee claimant from China denied relief from an Australian
adjudicator who wrote that:

by stressing at the hearing that he is bisexual, the Applicant has not satisfied the Tribunal
that he is reconciled to homosexual activity, lifestyle or even social association, or that he
has any kind of preternatural homosexual identity or tendencies. It seems to the Tribunal
that if this case were about political opinion, it would be as if the Applicant were saying
that, at heart, he was a little bit disposed towards democracy towards democracy but also
eager to support authoritarianism; if it were about religion, it would be as if the Applicant,
at heart, were a little bit Christian and a little bit atheist. There is significant equivocation
in the Applicant’s evidence and it goes against him. (Rehaag, 2009, p. 13 (Quoting RRT
Reference: N95/07313 (1997).
80 N. C. MARCUS

Similarly, in a series of Canada cases, Rehaag (2009) details how:

 In one case, an adjudicator denied the application of a claimant whom the
adjudicator doubted was actually bisexual because at the time she applied for
refugee status she described herself as celibate (which the adjudicator deemed
inconsistent with bisexuality)
 In another, an adjudicator doubted a bisexual claimant’s sexual identity
because she was currently in a relationship with a man
 In another, an adjudicator doubted a bisexual claimant’s sexual identity
because of evidence the claimant had been living with her boyfriend.
Finally, in a pair of Australian refugee cases, Rehaag (2009) cites one adjudica-
tors’ dismissive statement, “I do not accept that the Applicant is in fact bisexual,”
which accompanied his rejection of a claimant’s sexual minority identity status
based on the fact the claimant’s same-sex relationship was with another male
immigrant detainee (p. 15)(citations omitted). This, in the adjudicator’s mind, was
“simply the product of the situation where only partners of the same sex are avail-
able and says nothing about his sexual orientation” (Rehaag, 2009, p. 15)(citations
omitted). In the second case, the adjudicator rejected the validity of a claimant’s
described sexual orientation, shrugging it off as nothing “but a transient, youthful
phase” (Rehaag, 2009, p. 15)(citations omitted).
The invisibility of bisexual people and misapprehensions about the validity of
bisexuality in custody and immigration cases may be at least in part a result of the
more blatant erasure of bisexual people in LGBT-rights litigation specifically. As
Rehaag (2009) concludes, the invisibility of bisexual people in human rights dis-
course results in such dangerous and disturbing misapprehensions about bisexual-
ity by immigration adjudicators with “the lack of attention to bisexual refugee
claimants in both reported decisions and in refugee law scholarship” relating back
to the broader social phenomenon of bisexual invisibility or active erasure in soci-
ety (p. 10).

IV. Conclusion: Moving forward

So what steps can be taken by the legal and bisexual communities to address the
problem of bisexual erasure in litigation and jurisprudence?
To begin with, courts across the world would do well to improve their compe-
tence around bisexuality and strive for improved bisexual inclusivity, as, for exam-
ple, the ECHR began to do in Oliari (though more explicit recognition of bisexual
people would be ideal; after all, one small parenthetical in an opinion does not a
“best practices” model make). An even better model may be found in the concur-
ring opinion of Judge Marsha Berzon in the U.S. Ninth Circuit Court of Appeals
same-sex marriage case Latta v. Otter (2014). In her concurrence, Berzon
explained that bisexual people in same-sex relationships are victims of marriage
bans, just as gays and lesbians:
 JOURNAL OF BISEXUALITY 81

the same-sex marriage prohibitions obviously operate to the disadvantage of the people
likely to wish to marry someone of the same gender–i.e. lesbians, gay men, bisexuals, and
otherwise-identified persons with same-sex attraction–the individuals’ actual orientation
is irrelevant to the application of the laws. (Latta, 2014, p. 482 n.5)

Berzon’s opinion sets a strong standard for the explicit recognition that bisexual
people, and indeed, all those with same-sex attraction, are affected by anti-LGBT
discrimination and restrictions on same-sex couples’ rights. In contrast, the more
limiting “gay and lesbian” nomenclature too often found in other legal writings is
inaccurate and harmful.
Just as the ECHR’s improved inclusion of bisexuality within its LGBT-rights
decisions may be attributed to the efforts of the many bisexual activist organiza-
tions across the EU working toward greater bisexual competence and inclusion,
the work of bisexual activists and their allies in the United States have helped
awaken judges beyond Judge Berzon to the importance of bisexual inclusion as
well. For example, I was active several years ago in creating the first ever national
organization in the United States for bisexual lawyers, law professors, law students
and our allies, called “BiLaw.” One of our first projects was to submit an amicus
brief with the Supreme Court in the same-sex marriage Obergefell case seeking bi-
inclusion by the Court (BiLaw, 2015). Although BiLaw’s brief did not result in
such bi-inclusivity in the text of the final Obergefell opinion, the brief did capture
the notice and appreciation of at last one other federal judge, who, in an employ-
ment discrimination decision involving the case of a lesbian employee,
acknowledged
BiLaw’s plea for greater inclusivity of bisexuals, ending his string citation of LGBT-rights
progress in the Court with the addendum: “But see Brief of BiLaw as Amicus Curiae in
Support of Petitioners at 5, Obergefell … (“In litigation affecting gay and bisexual individ-
uals, there has been an unfortunate trend of bisexual exclusion from briefings and court
opinions.”). The bisexual inclusivity continued in the next paragraph; after citing a num-
ber of sources in a detailed description of ongoing discrimination faced by LGBT individ-
uals, Weinstein again quoted BiLaw’s amicus brief to add the acknowledgement that,
“Bisexuals … face consistent prejudice and exclusion from both the heterosexual and gay
communities, and lack the same protective sense of community when faced with bias and
discrimination.” Not only did Weinstein go out of his way to include these passages from
BiLaw’s Obergefell amicus brief but, even more critically, he employed language through
his comprehensive LGBT-rights opinion in Roberts that is, as BiLaw has implored from
courts, bisexual-inclusive. As compared to the almost complete lack of references to
bisexuals as compared to lesbians and gays (in other court opinions( detailed in the
appendix of this Article, Judge Weinstein’s Roberts opinion mentions bisexuals a whop-
ping 23 times, a much-appreciated gesture of inclusiveness in a case when the plaintiff
was not even identified as bisexual.

- Marcus, 339–40, citing BiLaw, 2015 and Roberts, 2015 (other citations
omitted).
In all legal contexts and in every legal corner, it is imperative to strive for
improved bisexual inclusivity. Toward that end, LGBT-rights advocates and courts
82 N. C. MARCUS

could make greater efforts to be mindful of bisexual inclusivity, and advocates

could also more mindfully endeavor to bring forward more cases by bisexual liti-
gants. One such example of critical outreach on that front is a pending report,
“Memorandum on Bisexuality in Asylum Law” (forthcoming ) authored by White
& Case, LLP on behalf of National Queer Asian Pacific Islander Alliance (NQA-
PIA). The report will contain comprehensive findings and guidance to help attor-
neys who are representing bisexual clients attain asylum. Along with the report
will be issued a shorter advocacy piece that will be disseminated across the United
States to educate immigration judges and asylum officers, as well as immigration
attorneys, about the findings and to assist them in the processing and determina-
tion of bisexual asylum cases. This report could go a long way toward remedying
the bisexual asylum problems described herein, as they occur in the United States.
Social scientists as well have a role to play in legal discourse, having the ability to
collect and report disaggregated data capturing the needs and issues of the bisexual
community, and to help legal advocates and courts to incorporate such findings
into legal discourse, litigation, and jurisprudence. And in other legal contexts
beyond litigation, greater efforts toward bisexual inclusivity should also be made.
For example, government policies should, as Maliepaard recommends, acknowl-
edge sexual identities “beyond the heterosexual/homosexual binary.” The represen-
tation of bisexuality in policy documents, he explains, could “foster sexual
citizenship rights for self-expression and self-realization and provide a means for
sexual citizens to self-identify as bisexual within private and public domains” (pp.
387–388).
Many of these steps can only meaningfully commence through more represen-
tation and deliberate visibility by bisexual people ourselves (including those of us
working within legal communities and within LGBT-rights movements), and
through efforts to improve education and awareness about bisexuality.
In the meantime, the continued erasure and exclusion of bisexual people can
have serious repercussions, from potential life-or-death consequences in asylum
cases to the disproportionately high depression and suicide rates among bisexual
people, which are likely aggravated when the stigma of bisexuality is perpetuated
by our own governments and advocates’ exclusion of us in LGBT-rights discourse.
All members of the legal community who are committed to human rights protec-
tions have an obligation to set a greater tone of inclusivity to help pave the path
toward equal dignity and rights for bisexual people.

Notes
1. A 2011 analysis found that among the total U.S. adult population, approximately 1.8% of
the population were bisexual, 1.7% were gay or lesbian, and .6% were transgender at the
time of the study (See Brown, 2017, citing Gates, 2011).
2. As opposed to those countries that have enacted marriage equality legislatively or by refer-
endum, including Argentina, Belgium, Brazil, Canada, Denmark, Finland, France, Iceland,
Ireland, Luxembourg, Malta, the Netherlands, New Zealand, Norway, Portugal, Spain,
 JOURNAL OF BISEXUALITY 83

Sweden, Uruguay, and the United Kingdom (with the exception of Northern Ireland). The
South African decision is addressed here rather than the same-sex marriage decision from
the Columbia Constitutional Court, which has not been released in full as of the writing of
this article, or that of the Mexican Supreme Court, which issued a jurisprudential thesis on
3 June, 2015, that fell short of mandating universal recognition of marriage rights across
the country.
3. While there is no ECHR opinion establishing marriage equality, per se, an analogous com-
parison may be made by reference to the language of the ECHR decisions in same-sex mar-
riage and partnership cases.
4. (“… particularly in the case of homosexuals, they went to show that they also have a right
to live freely and to live their relationships on an equal basis…”).
5. More comprehensive lists of bisexual organizations and resources world-wide, along with
internet links, are available through the Bisexual Resource Center, at http://www.bire
source.net/bisexualgroups.shtml and through EuroBiCon, at https://www.eurobicon.org/
bisexual-guide-to-europe/.

Notes on contributor
Nancy C. Marcus, LL.M., S.J.D., is law and policy senior attorney at Lambda Legal Defense and
Education Fund, and is a cofounder of BiLaw, the first national organization of bisexual lawyers,
law professors, law students, and our allies, in the United States. She was formerly the founding
constitutional law professor at Indiana Tech Law School, and her scholarship on bisexual era-
sure and LGBT-rights, along with her scholarship on tort law, is widely cited.

References
Bolivia, M. (2015). Why is necessary a bisexual secretariat in ILG. Retrieved from http://es.slide
share.net/ManodiversaBolivia/bisexual-secretariat-eng.
Brown, A. (2017). 5 key findings about LGBT Americans. Retrieved from http://www.pewre
search.org/fact-tank/2017/06/13/5-key-findings-about-lgbt-americans/.
Brown v. Lynch., 665 F. App’x. 19. (2016, 2d). (unpublished). Retrieved from Westlaw database.
Case of Oliari and Others v. Italy. Application Nos. 18766/11 and 36030/11. (ECHR 2015).
Retrieved from ECHR database.
Case of Oliari and Others v. Italy. Comments of Intervenors FIDH, ILGA-Europe, UFTDU and
LIDU. (ECHR 2015). Retrieved from http://ilga-europe.org/sites/default/files/Attachments/
oliari_and_others_orlandi_and_others_v_italy_-_written_comments_2014-03-27_final.pdf.
Case of Schalk and Kopf v. Austria. Application No. 31041/04 (ECHR 2010). Retrieved from
ECHR database.
Case of Schalk and Kopf v. Austria. Application No. F-67075 (ECHR 2004). Retrieved from
ECHR database.
Case of Vallianatos and Others v. Greece. Application Nos. 29381/09 and 32684/09. (ECHR
2013). Retrieved from ECHR database.
Colker, R. (1993). A bisexual jurisprudence. Law & Sexuality, 3, 127–137. Retrieved from West-
law database.
Duffy, O. (2016). Bisexual asylum seeker wins Home Office fight to remain in UK. The Guard-
ian. Retrieved from https://www.theguardian.com/world/2016/jan/23/bisexual-asylum-
seeker-orashia-edwards-wins-home-office-uk-jamaica.
Elia, J. P. (2014). Bisexuality and schooling: Erasure and Implications for Health, 14(1), 36–52,
doi:10.1080/15299716.2014.872461
84 N. C. MARCUS

European Bisexual Conference. European Bisexual Conference homepage. Retrieved from

https://www.eurobicon.org/
Fuller v. Lynch, 833 F.3d 866. (2016, 7th). Retrieved from Westlaw database.
Gate, G. J. (2011). How many people are lesbian, gay, bisexual and transgender? Retrieved from
http://williamsinstitute.law.ucla.edu/wp-content/uploads/Gates-How-Many-People-LGBT-
Apr-2011.pdf.
Grupo Dimension Bi Activismo. ILGA: Creacion en ILGA de una secretaria bisexual/creation of
a secretariat bisexual. Retrieved from https://www.change.org/p/ilga-creaci%C3%B3n-en-
ilga-de-una-secretar%C3%ADa-bisexual-creation-of-a-secretariat-bisexual
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 446.
(1995). Retrieved from Westlaw database.
ILGA-Europe. (2014). Oliaria, written comments of FIDH, Aire Centre, ILGA-Europe, ECSOL,
UFTDU, and LIDU. Retrieved from http://ilga-europe.org/sites/default/files/Attachments/
oliari_and_others_orlandi_and_others_v_italy_-_written_comments_2014-03-27_final.pdf.
ILGA-Europe. Vision, mission, core, values. Retrieved from http://www.ilga-europe.org/who-
we-are/what-ilga-europe/vision-mission-core-values.
Latta v. Otter, 177 F.3d 456. (2014, 9th). (Berzon, J., concurring). Retrieved from Westlaw
database.
Lawrence v. Texas, 539 U.S. 558. (2013). Retrieved from Westlaw database.
Maliepaard, E. (2015). Bisexual citizenship in the Netherlands: On homo-emancipation and
bisexual representations in national emancipation policies. Sexualities, 18(4), 377–393.
doi:10.1177/1363460714550906
Marcus, N. (2015). Bridging bisexual erasure in LGBT-rights discourse and litigation. Michigan
Journal of Gender and Law, 22(2), 291–344. Retrieved from Westlaw database.
Mexico Supreme Court.. (2015). Corte consticional comunicado []. Retrieved from https://web.
archive.org/web/20160413021039/http://www.corteconstitucional.gov.co/inicio/COMUNICADO
%207%20DE%20ABRIL%20DE%202016.pdf
Minister of Home Affairs and Another v. Fourie. CCT 60/04 ZACC 19. (). Retrieved from
http://www.saflii.org.za/za/cases/ZACC/2005/19.html
Morgan, J. (2015). Mother of bisexual asylum seeker will sue Britain if they send her son home to
die. GAY STAR NEWS. Retrieved from http://www.gaystarnews.com/article/mother-bisex
ual-asylum-seeker-will-sue-britain-if-they-send-her-son-home-die240415/.
Movement Advancement Project.. (2016). Invisible majority: The disparities facing bisexual peo-
ple and how to remedy them. Retrieved from https://www.lgbtmap.org/file/invisible-major
ity.pdf
Obergefell v. Hodges, 135 S. Ct. 2584. (2015). Retrieved from Westlaw database.
Obergefell v. Hodges. Brief of Amicus Curiae BiLaw in Support of Petitioners. (2015). Retrieved
from http://www.supremecourt.gov/ObergefellHodges/AmicusBriefs/14-556_BiLaw.pdf
Registered Partnership Act of Austria. Federal Law Gazette (Bundesgesetzblatt), vol. I, no. 135/
2009.
Rehaag, S. (2009). Bisexuals need not apply: A comparative appraisal of refugee law and policy
in Canada, the United States, and Australia. International Journal of Human Rights, 13(2/3),
415–436. Retrieved from https://yorkspace.library.yorku.ca/xmlui/handle/10315/8022
Richardson, D. (2000). Constructing sexual citizenship: Theorizing sexual rights. Critical Social
Policy, 20(1), 105–135. doi:10.1177/026101830002000105
Roberts v. United Parcel Serv., Inc., No. 13–CV–6161. (2015). WL 4509994 (E. District N.Y. July
27, 2015). Retrieved from Westlaw database.
Romer v. Evans, 517 U.S. 620. (1996). Retrieved from Westlaw database.
Romer v. Evans. Brief for Plaintiff-Respondent. (1995). WL 17008447 (1996). Retrieved from
Westlaw database.
 JOURNAL OF BISEXUALITY 85

Senzee, T. (2015). Bisexual seeking asylum resorts to photos when asked to prove it. ADVOCATE.
Retrieved from http://www.advocate.com/world/2015/05/10/bisexual-asylum-seeker-humili
ated-trying-prove-sexuality-uk-officials-0
United States v. Windsor, 133 S. Ct. 2675. (2013). Retrieved from Westlaw database.
Universal Declaration of Human Rights. (1948). (United Nations General Assembly). Retrieved
from http://www.un.org/en/universal-declaration-human-rights/
White & Case, LLP. (forthcoming). Memorandum on bisexuality in asylum law. Draft on file
with author.
Yoshino, K. (2000). The epistemic contract of bisexual erasure. Stanford Law Review, 52, 353–
461. Retrieved from Westlaw database. Retrieved from http://www.jstor.org/stable/1229482