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The Epistemic Contract of Bisexual Erasure Author(s): Kenji Yoshino Source: Stanford Law Review, Vol. 52, No. 2 (Jan., 2000), pp. 353-461 Published by: Stanford Law Review Stable URL: http://www.jstor.org/stable/1229482 Accessed: 22/03/2010 00:19
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of The EpistemicContract Bisexual Erasure
In this article,ProfessorKenjiYoshino seeks to explainwhy the category American political and legal of bisexualityhas been erased in contemporary relative to homodiscourse. He first argues that the invisibility bisexuality of in does not reflectthe incidencesof those orientations thepopulation. sexuality Definingbisexualityas thepossession of more than incidentaldesirefor both that shows thatthe majorsexualitystudiesdemonstrate the incisexes, Yoshino dence of bisexualityis in fact greater than or comparableto the incidenceof homosexuality. Yoshinoexplains the erasure of bisexualityby positing that have overlapbothself-identified heterosexuals self-identified and homosexuals interestsin the erasure of bisexualitythat lead them into an "epistemic ping contract"of bisexualerasure. Theseinterestsinclude: (1) the stabilizationof exclusivesexual orientation categories;(2) the retentionof sex as an important diacriticalaxis; and (3) the protectionof norms of monogamy. Noting that such contractstend to becomevisible only when they are challenged,Yoshino describes how bisexualshave increasinglycontestedtheir own erasure. Fiand visibilityin the nally, Yoshinoexaminesthe effectsof bisexualinvisibility legal realm,focusing on the sexual harassment jurisprudenceof recent decades.
* AssociateProfessor, Yale Law School. I thankAkhil Amar,Ian Ayres, JenniferGerarda RobertPost, Bill Rubenstein, Brown,ArielaDubler,Bill Eskridge,OrenIzenberg, Vicki Schultz, Reva Siegel, andAmanda in Law Tyler. I am also gratefulto participants workshopsat Columbia Law School, andYale Law School, as well as studentsin my Theorizing School, Fordham SexualLaw seminarat Harvard. Rick ity seminarat Yale and LarryLessig's AdvancedConstitutional Baker,RomanaMancini,RavennaMichalsen,ZacharyPotter,Rose Saxe, and Eric Sonnenschein assistance. suppliedexcellentresearch
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........................................................................................... 356 INTRODUCTION
I. .............................................................. OF THEERASURE BISEXUALS 363
A. Bisexual Invisibility....................................................................... 364 1. Bisexual invisibilitydefined.................................................... 364 . ............................ 368 2. Evidence of bisexual invisibility B. Bisexual Erasure ........................................................................... 370 1. Bisexualitydefined.................................................................. 370 2. Thestudies .............................................................................. 377 a. Kinsey (1948 & 1953) ...................................................... 380 b. Masters and Johnson (1979) ............................................ 382 c. Janus and Janus (1993).................................................... 383 d. Wellings(1994) ................................................................ 383 e. Laumann(1994) ............................................................... 385 f. Critiquesof the studies ..................................................... 386 C. Bisexual Erasureas a Cause of Bisexual Invisibility............... 388 OF II. THEEPISTEMIC ERASURE ...........................388 CONTRACT BISEXUAL A. DifferentExplanations........................................ ..... 389 B. TheEpistemic ContractDefined ................................................... 391 C. Strategies of Erasure......................................................... 395 1. Straightdeploymentsof the strategies . ................................... 395 2. Gay deploymentsof the strategies .......................................... 397 D. TheEpistemic Contractas a Cause of Bisexual Erasure.............. 399
IN III. MONOSEXUAL INVESTMENTS THEEPISTEMIC CONTRACT ........... 399
A. Stabilizationof Sexual Orientation............................................. 400 1. Shared investment ................................................................ 400 2. Straightinvestment.................................................................. 402 3. Gay investm ent........................................................................ 404 B. BisexualityDestabilizes the Primacy of Sex.................................. 410 1. Shared investment ................................................................... 411 a. Destabilization.................................................................. 4 12 b. The tension betweenpublic andprivate treatmentsofsex............................................................... 413 2. Straightinvestment.................................................................. 415 3. Gay investm ent........................................................................ 4 17
C. BisexualityDestabilizes Norms of Monogamy . ............................. 420 1. Shared investm ................................................................... 421 ent 2. Straightinvestm ent.................................................................. 423 3. Gay investm ent........................................................................ 426 D. OverlappingMonosexualInvestmentsas a Cause of the EpistemicContract.............................................................. 428
IV. SELF-IDENTIFIED BISEXUALS ANDTHEEPISTEMIC CONTRACT .......... 429
A. Bisexual Capitulationto the EpistemicContract .......................... 430 B. Bisexual Resistanceto the EpistemicContract . ............................ 431 C. TheDissolution of the EpistemicContract . ................................... 434
V. BISEXUALITY AND SEXUAL HARASSMENT LAW......... ......... ................434
A. A Summaryof the Developmentof the Sexual HarassmentJurisprudence ............................................................ 436 B. Bisexual Visibility-The Recognitionand Closing of the Bisexual HarassmentExemption ...................................................439 1. Therecognitionof the bisexual harassmentexemptionbisexual visibility .............................................. 440 2. (Incoherently)closing the bisexual harassment exemption-bisexual invisibility............................................. 442 3. (Coherently)closing the bisexual harassment exemption-bisexual visibility (again).................................... 444 C. Recognizingand Closing the HorseplayExemption .....................446 1. Understanding horseplaythe homosocial and the homoerotic........................................ 448 2. Recognizingthe horseplayexemptionbisexual invisibility................................................................. 450 3. Closing the horseplayexemptionbisexual visibility .................................................................... 451 D. Sexual Harassmentat a Crossroads . ............................................. 454 1. Thepost-Oncale status quo..................................................... 454 2. Bisexualityas goad ........................................ 457 E. OtherApplications......... ..................... ................ 458
CONCLUSION. .............................................................................................. 460
Teaching a seminar on Sexual Orientationand the Law, I faced an old inconsistency so frontallythat it became difficult to avoid giving it sustained attention. I began the course in what appearsto be a common way,l by posing basic questions about sexual orientation. I asked why contemporary American society2 organizes people accordingto their sexualities;3why we do so on the basis of sexual orientationin particular;4 why, when classiand sexual orientation,we insist on doing so with the binary system of fying by heterosexualand homosexual.5 In discussing the last question, I adducedthe
and 1. A leadingcasebookon sexualorientation the law, for example,beginswith such an inB. CASESANDMATERIALS SEXUAL ON ORIENTATION troductory unit. See WILLIAM RUBENSTEIN, AND THELAW1-40 (2d ed. 1997) (presenting materials background discussingsexual classifica-
tions). 2. These temporaland geographical restrictions applyto this entireanalysis. These restrictionspartially is recognizethatthe conceptof orientation culturally specific. See note 77 infraand text Latinbisexuality). Thatrecognition, be accompanying (describing however,will unfortunately insofaras it ignoresvariations withinmodemAmerican incomplete, society basedon, for example, culture,race, and class. See, e.g., Will Roscoe, How to Becomea Beardache:Towarda Unified
BEYONDSEXUALDIMORPHISM IN Analysis of Gender Diversity, in THIRDSEX, THIRDGENDER:
CULTURE HISTORY 330-49 (GilbertHerdted., 1994) (describingthe Native American AND 329, an that berdache, identitybasedon genderatypicality cuts acrossthe orientation categoriesconsideredhere,as an identitythatis moresocially salientin manyNative American societies thanthose orientation categories). 3. Resistanceto the classification personsaccording theirsexualitiescan be seen in that of to whichrefersto individuals who fall outsideof the realmof the "normal," usageof the word"queer" eitherbecauseof their sexualityor for some otherreason. See MichaelWarner, Introduction to ner ed., 1993). This usage's "aggressive id. impulseof generalization," at xxvi, resiststhe reification of sexualityas an axis of demarcation recastingthe conflictbetweensexual devianceand by sexualnormalcy one betweensocialdevianceandsocialnormalcy. as 4. Resistanceto the classificationof personsaccordingto their sexual orientations be can found in Eve Sedgwick's provocativelist of alternativeclassifications. See EVEKOSOFSKY to distinguishbetweenpeople based on their sexualities,many other axes besides sex of object choice are available. See id. at 25. For example,"[s]exuality makesup a large shareof the selfperceivedidentityof some people, a small shareof others"';"[s]omepeople spend a lot of time thinkingaboutsex, otherslittle";and"[s]omepeoplelike to have a lot of sex, otherslittleor none." Id. Indeed,Sedgwickcontendsthatthe rise of sex of objectchoice as the criticalaxis of definition was a contingentandpuzzlinghistoricaldevelopment of an era in which such otheraxes had out diacritical force. See id. at 8-9. analogous 5. Resistanceto the classification personsaccording a binarysystem of sexual orientaof to tioncanbe foundin AlfredKinsey'sclassic statement: Malesdo not represent discrete two heterosexual homosexual.Theworldis and populations,
OF 25-26 (1990). Sedgwick notes that even if we set out EPISTEMOLOGY THECLOSET SEDGWICK, FEAROFA QUEER PLANET: ANDSOCIAL POLITICS THEORY xxvi-xxviii (Michael WarQUEER vii,
not to be divided into sheep and goats. Not all things are black nor all things white. It is a fundamentalof taxonomy that nature rarely deals with discrete categories. Only the human mind invents categories and tries to force facts into separatedpigeon-holes. The living world is a continuumin each and every one of its aspects. The sooner we learn this concerning human sexual behaviorthe sooner we shall reacha sound understanding the realitiesof sex. of ALFRED KINSEY,WARDELL POMEROY CLYDEE. MARTIN,SEXUALBEHAVIOR THE C. B. & IN HUMAN MALE639 (1948) [hereinafter KINSEY AL., MALE]. ET
view-powerful in modem Americanculturefrom at least the publicationof the Kinsey studies6 onward-that sexual orientation arrays itself along a continuum from exclusive heterosexualityto exclusive homosexuality.7 I noted that this view encouragedus to think of the straight/gaybinary as defining the ends of a continuumthat could be stretched,accordion-like,to accommodate ever finer gradationsof cross-sex and same-sex desire. This meant recognizing a group-often called bisexuals-on the intermediate stretch of the continuum,as well as the possibility of a group-sometimes called asexuals-not representedon the continuumat all.8 Indeed, I argued
6. ALFREDC. KINSEY,WARDELL POMEROY, B. CLYDEE. MARTIN& PAUL GEBHARD, BEHAVIOR THEHUMAN IN FEMALE SEXUAL ET KINSEY (1953) [hereinafter KINSEY AL., FEMALE]; ETAL., MALE,supra note 5. 7. See Carol Queen, Sexual Diversity and Bisexual Identity, in BISEXUALPOLITICS: & THEORIES, QUERIES, VISIONS151, 152 (Naomi Tucker ed., 1995) (noting the importance of the
Kinseycontinuum). 8. It is with some regretthatI havedecidednot to attempt systematic a discussionof asexuals in this article,especiallysince asexualsare,if anything, morelikely thanbisexualsto be erasedin sexualitydiscourse. To concede thatthereare two formsof desire-cross-sex and same-sex desire-is to recognizethe analyticpossibilityof at least fourkindsof persons. These include: (1) those who harbor cross-sexbut not same-sexdesire;(2) those who harbor same-sexbut not crosssex desire;(3) those who harbor both formsof desire;and (4) those who harborneitherform of desire. Yet even those who acknowledge orientation that itself on a continuum the arrays spanning first threecategoriesoften ignorethe fact thatthe continuum fails to represent fourth. This is the somewhatsurprising, the number individuals this categoryis not insignificant.See Naomi as of in Mezey, Dismantlingthe Wall:Bisexualityand the Possibilitiesof Sexual IdentityClassification Based on Acts, 10 BERKELEY L.J. WOMEN'S 98, 106-07(1995) (citingthe Kinseyreport noting and thatthe number asexualsis "notnegligible").Kinsey,for example,foundthatasexualsincluded of 14 to 19 percentof unmarried womenbetweenthe ages of twentyand thirty-five. See KINSEYET AL., FEMALE, supra note 6, at 499. betweenbisexualandasexualerasure, mostnotaMy regretis madekeenby the convergences and eithercatebly the refusalby both self-identified straights self-identified gays to acknowledge gory. Thusasexuals,like bisexuals,areproneto beingaccusedof duplicityor false consciousness,
S. or, more specifically, of being closeted gays. See JEFFREY NEVID, LOISFICHNER-RATHUS & SPENCER RATHUS,HUMANSEXUALITY A WORLDOF DIVERSITY A. IN 302 (1995) (describing asexuals as a subset of homosexuals). See generally ALAN P. BELL & MARTINS. WEINBERG, A STUDYOFDIVERSITY HOMOSEXUALITIES: AMONG MEN ANDWOMEN(1978) (discussing asex-
uals throughout subsetsof maleandfemalehomosexuals). as The decisionto defer a discussionof asexualsfor another day, however,is supported the by undertheorized which suggest thatthe two topics divergencesbetweenbisexualityand asexuality, deserveseparateanalysis. While both doubledand absentdesireappearto threaten straightsand gays, they do so in quitedifferent ways. To takeone crudecut at thatdifference,considerthe disconflationof sexualityand sin ramifiesacrossbisexuality parateways in which the time-honored andasexuality. If this conflationleads some to view bisexualsas particularly culpablebecauseof their"promiscuous" desirefor bothsexes, see notes 353-393 infraand accompanying text, it leads some of the same people to view asexualsas particularly pure. See LucindaJ. Peach,From Spiritual Descriptions LegalPrescriptions: to as in ReligiousImageryof Woman "FetalContainer" the Law, 10 J.L. & RELIGION 76 (1994) (notingthatthe two templates the femininein the Chrisof 73, tiantradition Eve andMary,andthatMary,in contrast Eve, is portrayed pure,celibate,and are to as to asexual). But while suchpurityis often ascribed celibacy,see, e.g., Gabrielle Brown,TheCelibate LifeIs Fulfilling,in HUMANSEXUALITY 395 (BrunoLeoneet al. eds., 1985) (notingthat 393, it celibacy "canbe thoughtof as the desirefor somethingmore eternal,morepermanent"), is not obviouswhetherthatascription appliesequallyto the subsetof celibateswho areasexual. Celibacy
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thatsexualorientation classifications only used the two "monosexual" that terms9 "heterosexual" "homosexual" unstable naive. and were and As soon as the introductory was over, however,the inconsistency unit occurred.I foundmyselfandthe class fallingbackinto the very "unstable" usages I had workedhardto retire-specificallythe usages of the words "heterosexual" "homosexual" mutuallyexclusive,cumulatively and as exhaustiveterms.10While we sometimes ralliedby using the word "queer" insteadof "gay,"llor by addingthe rider"orbisexual" "gay,"12 to these effortsweretokenandfitful. In the face of legal discussionsl3 academic and that in commentary14 wererelentless reifyingthe straight/gay binary,it was difficultto hold the bisexualsteadilyvisible,even as a spectral possibility. And while this failureto resist what I had criticizedas a distortion was in with striking a classthatsoughtto treatthe issue of sexualorientation sophistication, it was simultaneouslyall too recognizable as an inconsistency that riddles more quotidiandiscourse. Many who would not deny that bisexuals exist when the subject of bisexuality arises can nonetheless revert to the straight/gaydichotomy when the topic shifts.15 I myself can speak at length about bisexuals at one moment and then, in the next, field a question
may be purebecauseit constitutesa conquestof the baserdesiresof the body, see id.; if so, the celibateasexual'sclaim to purityis attenuated becausehis licentiousdesire is not overcome,but rather absent. And even if described pure,the absenceof desiremay be viewed as a disquieting as in and purity,insofaras ourhedonicpleasure othersis viewedby some as a generative, fecundating, forceeven (or perhaps humanizing especially)whensublimated.See LeonR. Kass, The Wisdom of 32 Repugnance: WhyWeShouldBan the Cloningof Humans, VAL.U. L. REV. 679, 691-92 (1998) into ("Sexualdesire... is thussublimated eroticlongingfor wholeness... ."). Thus,while bisexuality and asexualitymay in some sensesbe viewed as simpleopposites(oversexedv. undersexed), in they sharenegativeconnotations.Buttheseconnotations, turn,aredifferently negative. 9. Technically,"monosexuality" denotesthe state of possessing one of the two traditional "sexes"(maleor female),as opposedto havingone of the two traditional "orientations" (heterosexual or homosexual). See 9 OXFORD ENGLISH DICTIONARY 1029, (2d ed. 1989) [hereinafter OED]. HYBRID:BISEXUALS, RUTHCOLKER, AND MULTIRACIALS, OTHERMISFITSUNDERAMERICAN
In this article,however,I follow the risingpracticeof using the termin the lattersense. See, e.g.,
LAW16 (1996) [hereinafter COLKER, HYBRID]. 10. See Mezey, supra note 8, at 98 (describing categoriesas exclusive and comprehenthe sive).
11. See MARJORIE VICEVERSA:BISEXUALITY THEEROTICISM EVERYDAY AND OF GARBER,
LIFE 62-66 (1995) (discussing"queer" a meansof includingbisexualswithina coalitionmoveas mentof sexualminorities). 12. See Liz A. Highleyman,Identityand Ideas: Strategiesfor Bisexuals, in BISEXUAL the of POLITICS, note 7, at 73, 83-86 (describing "lesbigay" supra strategy namingbisexualsalongside lesbiansandgay men). 13. See, e.g., notes 48-52 infraand accompanying text;notes 503-534 infraandaccompanying text. 14. See, e.g., notes60-62 infraandaccompanying text. 15. See Christopher The James,DenyingComplexity: DismissalandAppropriation Bisexuof A STUDIES: LESBIAN, AND ality in Queer,Lesbian,and Gay Theory,in QUEER GAY,BISEXUAL,
TRANSGENDER ANTHOLOGY 226 (Brett Beemyn & Mickey Eliason eds., 1996). 217,
suchas "IsX straight gay?" or without instinctively feelingas if an important possibility-the bisexual possibility-has beenelided. Whatis happening here? Whyis bisexuality invisible? If we interso as of occur? pretthatinvisibility the product erasure, why does thaterasure is bisexualitynow becomingsufficientlyvisible that commentators Why have begunto theorizeits invisibility the resultof erasure?How might as sexualorientation if contemporary politicsandlaw look different this trend toward visibilitycontinues?This articlewill occupyitself with these questions. the in issues. Oneof Framing questions thisway itselfraisesdefinitional the difficultthingsaboutwritingaboutsexualityis thatthereare too many distortions correctat once. Some of these distortions to mustbe accepted, neverwithout fearthattheywill infecttheresult. I address the two although suchdistortions theoutset. at The firstis a qualification the definition "bisexual." askingwhy of of In bisexualsareinvisibleand/or I assumethatthereis a category inof erased, dividuals who canusefullybe denominated bisexuals. I provisionally as define thatcategory below.16I emphasize, however,thatI do not presentthe of or as category bisexuals heterosexuals, (or homosexuals, asexuals) a natural kindawaiting detection.Whileindividuals both harboring cross-sexand same-sexdesireclearlyexist, it does not necessarily follow thatsuch individualsshouldbe classifiedtogether a group. Strictly as then,the speaking, real questionis not why bisexualsare erased: one cannoterasesomething thatdoes not have material existenceoutsideof one'swritingit, andwhich one hasneverwritten.Rather question whywe havedivided world the is the of orientation categories tendto suppress existenceof bisexual into that the desire. Evenbearing in mind,however, findit difficult discussthatsupthis I to withoutisolatingthe variousconstituencies have interestsin that pression or it. the of effectuating resisting Whilesociallyconstructed, constituencies heterosexual, homosexual, bisexual,andasexualhavepoliticalandmaterial their takesnothingawayfromtheir consequence.Underscoring contingency social importance heuristic or retainthe utility. I therefore self-consciously terms. The secondissue is the definition "sex." To possess "bi"-sexual of desireimpliesthe existenceof two sexes-male andfemale. Whilebisexuality is sometimes seen as erodingthe salienceof the sex binary,17 thusnomiit reifiesthepremise thereareonlytwo sexes. Thatpremise been that has nally contested the grounds a significant on that of is portion the population intersexedat birth, withgenitalia do not conform the two conventional that to sex
16. See text accompanying notes71-109 infra. 17. See text accompanying notes314-352infra.
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categories.18Yet a man who is attractedto women and intersexed individuals, but not to men, is not considered a bisexual, because the intersexed do not count as a sex for these purposes.19Bisexuality also suggests that these two sexes are defined biologically ratherthanculturally.20This is the classic division made between anatomicalsex and social gender.21 Thus a lesbian who is attractedto both "butch"and "femme"women will fail the classical definition of a bisexual, because even though she is attractedto two individuals who might be said to have different "genders,"both of them are of the same "sex." I will again leave both these premises-that there are two sexes (male and female) and that anatomical sex can be coherently distinguished from social gender-unchallenged for the purposesof this analysis. I wish to recognize these premises, however, as deeply contestable ones, and to gesture briefly towardthe costs of leaving them unassailed. First, the intersexedoccupy a place between the two conventionally ordained sexes (male and female) that the bisexual occupies between the two conventionally ordained orientations. Making bisexuality visible on the grounds that intermediate categories deserve social attentionwhile letting intersexualityremain invisible thus creates an ironic asymmetry. More importantly, elision of interthe to sexuality representsa missed opportunity interrogateorientation. Forjust as bisexuality challenges our conceptions of sex,22so too might intersexuality be used to challenge our conceptionsof orientation. To see this, think of the man who is attracted more to intersexedindividualsthan to eithermen or to women.23 What is this man's orientation? What if he is attractedonly to the intersexed? Is the bisexual, who is sometimes understoodto be "pansexual,"also understoodto be attracted the intersexed? to More familiarly,the distinctionbetween sex and gender has been under increasing fire in contemporaryqueer theory, such that its use requires de-
matethatthe "frequency intersexuality be as high as 2 percent live births"). of of may 19. See id. at 5 (arguing the popular that fascination with intersexed individuals may stem in or statusis not calledinto questionby attracpartfromthe fact thatone's heterosexual homosexual tion to an intersexed person). ATTRACTION: UNDERSTANDING BIXSEXUALITY 4 (1994) (definingbisexualityaccordingto sex rather thangender). 21. See Biddy Martin, Sexualities WithoutGenders and Other Queer Utopias, 24.2-3 DIACRITICS 104, 104 (1994). 22. See text accompanying notes314-352infra. 23. Thereis a notableamountof pornography depictsintersexed that individuals, leadingone to believe thatsome consumers attracted the intersexed.See KESSLER, to maybe particularly supra note 18, at 160 n.82 ("Theattraction intersexed to bodies is farmorecommonthanwhatwouldbe revealedin countingpartners the intersexed, is evidentin the abundant of as available pornography actorswith vaginasandstandard-sized featuring penises....").
20. See, e.g., MARTINS. WEINBERG, COLINJ. WILLIAMS DOUGLAS & W. PRYOR,DUAL
18. See SUZANNE KESSLER, J. LESSONS FROM THEINTERSEXED n.4 (1998) (noting esti135
fense.24 defenseis purely The are pragmatic-bisexuals simplynot currently understood peoplewho areattracted bothgenders, opposedto sexes. as to as Whilenot attempted that shouldbe theorized.This here,however, extension is becauseit is clearlytruethatpeoplehave genderorientations well as as sexualorientations-onecan be attracted to all men, but only to butch not men,or not to all women,butonly to femmewomen. Whyarecertain peoto withinone sex, while othple attracted bothkindsof gender performance ers limit themselves peoplewho perform to theirgenderonly in one way? The answeris doubtless linkedto the ways in whichthey perceiveand apsex. Indeed,it is the strength this link thathas led of preciate"biological" like theorists Judith Butlerto posit thatthereis no pre-discursive biological substrate sex thatcanbe distinguished of fromgender.25 thatas it may, Be thisarticleleavestheworkof theorizing gender the orientatation-bi- othor erwise-for another day. Thatsaid, I can now assailthe questionof why bisexualsare invisible and/orerasedin contemporary American culture. In PartI, I demonstrate thatbisexuality invisible is relative homosexuality thatthis invisibility to and is betterexplained bisexualerasure by bisexualnonexistence.After than by definingbisexualinvisibility,I show that bisexuals(underany plausible definition bisexuality) muchless sociallyandpoliticallyvisible than of are homosexuals. I acknowledge, in however,that this discrepancy visibility does not necessarily betokenbisexualerasure, it could simplymeanthat as thereare fewerbisexualsthanhomosexuals the population.Becausedein the a of termining meritof thisposition requires moreprecisedefinition "biI and definition bisexuality of as sexuality," generate defenda provisional the abilityto feel morethanincidental sexualdesirefor both sexes. Using this definition, look at whatthe majorsexuality I studiessay aboutthe incidence of bisexuality homosexuality the population.Two thingsare and in aboutsuchan investigation.First,to my knowledge, one has no surprising madesuch a systematic when such an inpreviously comparison.Second, to thenumber homosexuals. Thissuggeststhatbisexualinvisibility not is of a reflectionof the fact thatthereare fewerbisexualsthanthereare homosexualsin thepopulation, is rather product socialerasure. but a of demonstrated erasure PartI, I seek to explainit in PartII. I in Having sexual orientation suggest that erasureoccursbecausethe two dominant and self-identified groups-self-identifiedstraights gays-have sharedin24. See, e.g., JUDITHBUTLER,GENDERTROUBLE: FEMINISM AND THE SUBVERSION OF
vestigation is actually made, it reveals that each of the major sexuality studies demonstratesthat the numberof bisexuals is greater than or comparable
IDENTITY 7 (1990) (describing claim, centralto herwork,that"thisconstruct the called 'sex' is as as culturallyconstructed gender;indeed,perhapsit was always alreadygender,with the consebetweensex andgenderturnsout to be no distinction all"). at quencethatthe distinction 25. See id.
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vestmentsin that erasure. It is as if these two groups,despitetheirother virulent have disagreements, agreedthatbisexualswill be madeinvisible. I the call thisthe epistemic contract bisexualerasure.To support existence of I of such a contract, adduceevidencethatself-identified and straights selfidentifiedgays both deploy the same threestrategies bisexualerasure: of classerasure, individual and erasure, delegitimation. In PartIII, I describethe investments both self-identified that straights andself-identified havein bisexualerasure.Theseare: (1) an interest gays in stabilizing sexualorientation; an interest retaining as a dominant in sex (2) metricof differentiation; (3) an interest defending and in normsof monoginto each amy. I disaggregate interest its threecomponents: the compo(1) nent sharedby both straights gays; (2) the component and held only by and held straights; (3) thecomponent onlyby gays. The firstinvestment monosexuals havein bisexualerasure an interest is in stabilizing sexualorientation.The component thatinterestshared of by bothstraights gays is an interest knowing and in one's placein the socialorder: bothstraights gaysvaluethisknowledge and becauseit relievesthemof the anxietyof identity have a morespecificinterest interrogation. Straights in ensuring stability heterosexuality the of becausethatidentity privileged. is Less intuitively, also havea specificinterest guarding stability in the of gays insofaras they view that stabilityas the predicatefor the homosexuality, defense"or for effectivepoliticalmobilization.Bisexuality "immutability threatens of these interests all becauseit precludes both straights gays and from"proving" theyareeitherstraight gay. Thisis becausestraights that or evidenceof (for example)can only provethatthey are straight adducing by cross-sexdesire. (Theycannotadduceevidenceof the absenceof same-sex to desire,as it is impossible provea negative.) But this meansthatstraights canneverdefinitively in provethattheyarestraight a worldin whichbisexuals exist, as the individual who adducescross-sexdesire could be either or betweenthose straight bisexual,andthereis no definitive way to arbitrate two possibilities.Bisexuality thusthreatening all monosexuals is to because it makesit impossible provea monosexual to identity. The secondinterest monosexuals have in bisexualerasure an interest is in retainingthe importance sex as a distinguishing of trait in society. and investment thisbecauseto be straight in or Straights gays havea shared to be gay is to discriminate on have a erotically the basis of sex. Straights in the of specificinterest preserving importance sex becausesex normsare readthrough heterosexual a matrix: to be a man or a womanin currently American contemporary societyis in partdefinedby one's sexualattractiveness to the oppositesex. Gaysalso have a particular in interest sex distincis tions,as homosexuality oftenviewedas a way to engagein completesex that is, separatism-that as a meansof creating single-sexcommunities are bondedtogethereroticallyas well as socially and politically. Bisexuality
becauseit posits a worldin which sex need all endangers of these interests wantit to matter.Indeed, as not (orshould matter muchas monosexuals not) bisexualsand asexualsare the only sexualorientation groupsthathave at not on leastthe capacity to discriminate thebasisof sex in anyaspectof their lives. is erasure an interest havein bisexual Thefinalinterest monosexuals that and in defending normsof monogamy.Both straights gays sharethis interAmerican ethic of contemporary est, as the dominant society favorsdyadic in interest this insofaras the Straights may have a particular relationships. to has with formof nonmonogamy associated bisexuals beenconnected HIV if as a bridge(phantasmatically withbisexual"promiscuity" infection, acting and not actually)betweenthe "infected" population the "uninfected" gay in insointerest monogamy straight population.Gaysmayhavea particular threatfaras they seek to assimilate "mainstream" into society. Bisexuality are to ens all of theseinterests becausebisexuals oftenperceived be "intrinsically" nonmonogamous. have axes, both gays and straights Thus, along at least threedifferent interests thatare threatened the conceptof bidistinctbut overlapping by that sexuality.It is thusunsurprising bothof thesesexualorientation groups colludein bisexual erasure. In PartIV, I examine how self-identified bisexuals bothcapitulate and to contract.I firstshowhowthe contract retards degree the resistthe epistemic to which individuals articulate bisexualidentity. I then turnto the can a such an identityhave begunto disways in which individuals articulating solve the contract.I hypothesize this visibilitywill only increaseover that this time,andI endorse trend. InPartV, I lookathowbisexual and invisibility visibilityaffectpractical in outcomes the legalrealm. Taking case of same-sex the sexualharassment, I note thatbisexualshave remained invisiblein thatjurisprudence, largely area although aremorevisiblein thisdoctrinal thanin others.I thenask they if how that jurisprudence might be transformed bisexualswere rendered morevisible.
OF I. THEERASURE BISEXUALS
Thatbisexualsare being erasedwill appear self-evident many. Yet to numerous I conversations havehadon the subject bisexuality of havecalled into question nature the proposition the of underwhatdefinition biof (e.g., if not its veracity(e.g., undera particular is erasure sexuality occurring?), are thesequestions is definition, bisexuals reallybeingerased?).Answering not onlyto assuage doubts skeptics, alsoto ensure nonthe of but that useful, skepticsaretalkingaboutthe samethingwhenthey agreethatbisexualsare treat as beingerased. I therefore bisexualerasure a controversial proposition
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that must be proven ratherthan assumed. That proposition consists of two claims: first, that bisexuals are invisible; second, that this invisibility stems not fromnonexistence,but ratherfrom erasure. A. Bisexual Invisibility To show that bisexuals are invisible, I must specify and defend a definition of bisexual invisibility (as opposed to a definition of bisexuality),26 and then produceevidence that bisexuals are invisible underthis definition. Defining bisexual invisibility is somewhat difficult, as bisexuality exists at the intersection of many different kinds of social invisibility. Even when narrowly defined, however, bisexual invisibility is easy to prove. 1. Bisexual invisibilitydefined. There are at least three causes of bisexual invisibility, and it will be useful to speak of each as creating a differentkind of invisibility.27 The three invisibilities can be seen as nested within each other: the first affects straights,gays and bisexuals;the second affects only gays and bisexuals; and the third affects only bisexuals. In this article, I focus on the last kind of invisibility. The first kind of invisibility arises from a general urge to keep all sexualities invisible, which leads to the invisibility not only of bisexuals, but also of homosexuals, and even of heterosexuals. As David Halperin has noted, sexuality discoursehas always been hauntedby "the ancient and persistent specter of sexual despecification."28 Despite recent efforts to demys26. It may seem strange I define"bisexual that beforedefining"bisexuality." See invisibility" notes 71-109 infraandaccompanying text. Theorderarisesfromthe fact thatI believe thatbisexuals are invisibleunderany definitionof bisexuality,such thatI need not specify the definitionof bisexualinvisibility. bisexualityin demonstrating 27. In contrast the way I have used the wordsin previouswork,"invisibility" "visibilto and thancorporeal ity" in this articlereferto social rather (in)visibility. See KenjiYoshino,Assimilationist Bias in Equal Protection:The Visibility and Presumption the Case of "Don'tAsk, Don't Tell,"108 YALEL.J.485, 497-98 & n.44 (1998) (usingtheword"invisibility" to throughout referto of "corporeal invisibility").Corporeal visibilityrefersto "theperceptibility traitssuch as skin color thatmanifestthemselveson thephysicalbodyin a relatively and permanent recognizable way." Id. at 497. Socialvisibility,in contrast, the of traits."Id. Social "designates perceptibility nonphysical invisibletraitis made visibilityincludes"'declarative visibility,'which ariseswhen a corporeally visible through speech,"id. at 497 n.44; "[p]olitical visibility,[which]'ariseswhena personclaims as group membership a centraland constitutivefeatureof her identity,"'id. (quotingKathryn and Court,Visibility, the "Politics Presence,"50 VAND. REV. L. Abrams,TheSupreme 411, 414 of which"'arisesfromgroupmembers'effortsto connecttheir (1997));and"programmatic visibility," identitieswith a particular id. group-based politicalinterestor program,"' (quotingAbrams, supra, at 414). For the most part,the term"visibility" this articlewill referto the subsetof social visiin bility thatis politicalvisibility.
28. DAVIDM. HALPERIN, SAINT FOUCAULT: A TOWARDS GAYHAGIOGRAPHY (1995). 65
tify sex, "the erotic still arouses acute moral anxiety and confusion."29Thus it is still true that, as RichardPosner has noted, "[a]nyonein our society who wants to write about sex ... had betterexplain what the source of his interest in the subject is."30 In the law, squeamishnessabout sexuality causes even heterosexual sexual subjects to be shroudedin euphemism. For instance, a numberof state statutescriminalizingsodomy denote heterosexualas well as homosexual sodomy no more specifically than as a "crimeagainst nature."31 As one legal encyclopediaputs it, the terms of these statutes"reflectthe legislators' reluctanceto set out in detail the elements of sodomy because of its loathsome nature."32That these chronically vague provisions33have been upheld against void-for-vagueness challenges34suggests that the judiciary shares the legislative squeamishness about sexuality. Judicial reticence about naming deviant heterosexualsexual practices can also be seen in the contexts of obscenity regulation35 sexual harassment.36 and
sourceof moralpanic,arousing intimate questionsaboutpersonalidentity,and touchingon crucial social boundaries.... This is whatmakessex a particular of ethicalandpoliticalconcern-and site of fearandloathing.").
A. 30. RICHARD POSNER, SEXANDREASON (1992). 1
29. JEFFREY 1 AND ITS WEEKS,SEXUALITY (1986); see also JEFFREY WEEKS,SEXUALITY MYTHS& MODERN DISCONTENTS: 44 SEXUALITIES (1985) ("Sexuality is a fertile MEANINGS,
31. See, e.g., ARIZ. REV.STAT. 13-1411 (1999) ("A personwho knowinglyand without ? force commits the infamouscrime againstnaturewith an adult is guilty of a class 3 misdeIDAHO CODE 18-6605 (1999) ("Everypersonwho is guilty of the infamouscrime ? meanor."); committed with mankind with any animal,is punishable imprisonment the or in againstnature, by stateprisonnot less thanfive years."); GEN. MASS. LAWS ANN.ch. 272, ? 34 (West 1992) ("Whoever commitsthe abominable detestablecrime againstnature,eitherwith mankindor with a and in beast, shall be punishedby imprisonment the state prison for not more than twenty years."); MICH. ANN.? 750.158 (West 1999)("Anypersonwho shall committhe abominable COMP. LAWS and detestablecrime againstnatureeitherwith mankindor with any animalshall be guilty of a ANN.? 97-29-59 (1998) ("Every felony ...."); MISS.CODE personwho shall be convictedof the detestableand abominable crimeagainstnaturecommitted with mankind with a beast, shall be or in for N.C. GEN. punishedby imprisonment the penitentiary a termof not more thanten years."); STAT.? 14-177 (1999) ("If any personshall committhe crime againstnature,with mankindor STAT. ANN.tit. 21, ? 886 (West 1999) beast, he shall be punishedas a Class I felon.");OKLA. and crimeagainstnature, committed with ("Anypersonwho is guiltyof the detestable abominable mankind with a beast,shallbe guiltyof a felony."). Unlikeother"crimeagainstnature" or statutes, noneof the abovestatutes a goes on to definewhatconstitutes "crime againstnature." 32. 70A AM.JUR. Sodomy? 3 (1987) (authored LonnieE. Griffith, 2D by Jr.). 33. For a discussionof the vaguenessof these statutes,see RUTHANN LESBIAN ROBSON, SURVIVAL THE UNDER RULE LAW OF 47-57 (1992). (OUT)LAW: 34. See, e.g., Rose v. Locke,423 U.S. 48 (1975) (per curiam)(upholding Tennessee"crime statuteagainstvaguenesschallenge); v. againstnature" Wainwright Stone,414 U.S. 21 (1973) (per curiam)(same for Floridastatute);Hoganv. State,441 P.2d 620 (Nev. 1968) (same for Nevada Warer v. State,489 P.2d526 (Okla.Crim.App. 1971)(samefor Oklahoma statute); statute). 35. See A Book Named"John Cleland'sMemoirs a Womanof Pleasure" Massachusetts, of v. 383 U.S. 413, 441 (1966) (Clark,J., dissenting)(notingthat"quotations fromtypicalepisodes [of an allegedlyobscenebook]wouldso debaseourReports I will not follow thatcourse"). that 36. See Oncalev. Sundowner OffshoreServs.,Inc., 523 U.S. 75, 77 (1998) (omittinggraphic factsin sexualharassment in the "interest bothbrevityanddignity"). case of
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The secondkindof invisibility relatesspecifically same-sexdesire. It to of can be seen in the treatment same-sexdesireas unspeakable.As Eve termsfor same-sexdesirein the Christian Sedgwicknotes,the nonmedical "'thatsin whichshouldbe neither tradition included namednor committed,' the 'detestable abominable amongstChristians to be named,' and not sin,
... 'things fearful to name,' ... [and] 'the love that dare not speak its name .... "'37 In the law, the code of silence about same-sex desire can be
seen in so-called"nopromohomo"statutes,38 whichprohibit publiceducation likelyto promote It can also be seen in the military's homosexuality.39 "don'task, don'ttell"policy,in whicharticulations same-sexdecurrent of this sire are chilled.40Unlikethe firstkindof invisibility, invisibilitydoes not pertain cross-sexdesire. Thus,heterosexuality be promoted to unmay derthe "nopromohomo"statutes,41 articulated and under"don'task, don't tell."42In both cases, however,bisexualsare madeas invisibleas homosexuals. Thisis because"unspeakable" same-sex desireis also a component of bisexuality.Despitetheirname,the "nopromohomo"statutes proalso hibitthe promotion bisexuality, of eitherby explicitlyencompassing bisexu37. SEDGWICK, supranote4, at 202-03 (footnotes omitted). 38. See, e.g., Nan D. Hunter, Identity,Speech,and Equality,79 VA. L. REV.1695, 1702-06 the (1993) (describing genesisof thesestatutes). 39. See, e.g., ARIZ. REV.STAT. 15-716(c)(1998) ("Nodistrictshall includein its courseof ? which: (1) Promotesa homosexuallife-style. (2) Portrayshomosexuality a as study instruction positivealternative life-style. (3) Suggeststhatsome methodsof sex aresafe methodsof homosexual sex.");CONN. GEN.STATE. 46a-81r(1997) ("Nothing [the enumerated in ? sections]shall be deemedor construed... to authorize promotion homosexuality bisexualityin education the of or institutions ANN.?17-281(A)(3)(West 1999) ("No sex educationcourse ...."); LA. REV.STAT. offeredin the publicschools of the stateshall utilizeany sexuallyexplicitmaterials depictingmale or femalehomosexual MINN. STAT. 363.021 (1999) ("Nothing this chapter in shall be activity."); ? construedto ... authorize permitthe promotion homosexuality bisexualityin education or of or institutions requirethe teachingin education or institutions homosexuality bisexualityas an of or & CODE ANN.? 85.007(b) (West 1992) ("The acceptable lifestyle ...."); TEX.HEALTH SAFETY materialsin the education intendedfor personsyoungerthan 18 years of age must ... programs statethathomosexual conductis not an acceptable lifestyle...."). 40. See 10 U.S.C. ? 654(b)(2)(1998) (notingthat,in the absenceof further findings,a member stating"thathe or she is a homosexual bisexual"will be separated or fromthe armedforces). BecauseI alluderepeatedly the policy in this article,I brieflydescribeit here. The policy immeto "don'task, don't tell" containeda categoricalexclusionof homosexuals,noting diatelypredating that"[h]omosexuality with militaryservice." 32 C.F.R.pt. 41 app. A (1998) [was] incompatible Administrative Standards Procedures").After winninghis firstpresiand ("Enlisted Separations: dentialelection,then President-elect Clintonmaintained he would lift the ban on gays in Bill that the militaryandpermitgays to serveopenly. See JANET HALLEY, E. DON'T: READ-ER'S A GUIDE TOTHE 20 massiveresistance the part on MILITARY'S ANTI-GAY POLICY (1999). This engendered of the militaryestablishment.See id. at 21. The current policy, colloquiallyknownas "don'task, don't tell," was framedas a compromise. See WilliamN. Eskridge,Jr. & Philip P. Frickey,The 108 L. SupremeCourt,1993 Term-Foreword:Law as Equilibrium, HARV. REV.27, 92 (1994). Underthis policy, gays can serve in the military,but they may not serve openly withoutrisking separation.See 10 U.S.C. ? 654(b)(2)(1998). 41. See note 39 supra. 42. See note 40 supra.
or homosexual acts.43Andthe alitywithintheirinterdictions by prohibiting "don'task, don'ttell"policy explicitlymuzzlesbisexualsas well as homosexuals-the "statements" of assertsthatthe presumption portion the statute if has is of homosexual conduct triggered "themember statedthathe or she is a homosexual bisexual."44 or The final kind of invisibility only to bisexuality. Bisexualinpertains in itselfin thestudied omissionof bisexuality discussions manifests visibility of sexualorientation. Oneexample is an anthology essays of amongmany45 entitled on sexualorientation This Homosexuality/Heterosexuality.46 elision carriesoverinto the law, wherediscussions sexualorientation of almostinthe straight/gay Oneexample is variably binary. privilege amongmany47 the recentSupreme Courtopinionin Romerv. Evans.48In thatcase, the Court foundthatAmendment of Colorado's 2 stateconstitution violatedthe federal 2 Clause. Amendment statedthattherewouldbe "NoProEqualProtection tectedStatus Basedon Homosexual, Lesbian BisexualOrientation."49 or The Amendment tookthe class of bisexualsseriously, thus becausethe probably it ordinances overrode bisexuals.50 Court, The municipal explicitly protected bisexualsinto the homosexual however,subsumed category,notingthat it wouldreferto the "named class"protected theordinances homosexual "as by or gaysandlesbians."51 theonlyreferences bisexualsin the to Thus, persons of and opinionoccurin the quotedlanguage the ordinances Amendment 2; when the Courtspeaksfor itself, it speakssolely abouthomosexual persons.52 BecauseI wishto consider bisexuals bisexuals beingerased, how are qua I focuson the thirdkindof invisibility.Thus,bisexualinvisibility defined is for the purposes this articleas thatsocialinvisibility affectsonly biof that sexuals. In order determine significant invisibility I mustisoto how that is, late its effects fromthe effects of the otherkindsof invisibility. I can acthis the and complish isolation comparing relative by visibilityof bisexuality
43. See note 39 supra. 44. 10 U.S.C. ? 654(b)(2)(1998) (emphasis added). 45. Forotherexamples,see notes54-70 infraandaccompanying text. A. & Reinischeds., 1990). McWhirter, Stephanie Sanders JuneMachover 47. Forotherexamples,see text accompanying notes 503-534infra. 48. 517 U.S. 620 (1996). 49. Id. at 624 (quotingCOLO. art. CONST., II ? 306 (1992)).
46. HOMOSEXUALITY/HETEROSEXUALITY: CONCEPTS SEXUALORIENTATION OF (David P.
CODE 13-98(1977);BOULDER CODE 12-1-1to 12-1-11(1987)). REV. ? ?? 51. Id. 52. This does not indicatethatthe Courtwas intending excludebisexualsfrom its protecto the tions, but ratherthat the Courtpermitted homosexualcategoryto absorbbisexuals. Yet this of absorption, course,is itself an exampleof bisexualinvisibility.
50. See id. (citing DEN. REV. MUN. CODE,art. IV, ?? 28-91 to 28-116 (1991); ASPENMUN.
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To that is homosexuality.53 demonstrate bisexuality invisibleunder defimy I mustdemonstrate bisexuality less sociallyvisiblethanhomothat is nition, sexuality. 2. Evidence bisexual of invisibility. Such a demonstration easily made. On-linesearchesfor the words is and in "homosexuality" "bisexuality" mainstream newspapers, newsmagaziabstracts reveala striking in the incidence of nes, andacademic discrepancy the two terms. In the periodfromJanuary 1990 to November30, 1999, 1, theLosAngelesTimes 2790 documents had and mentioning "homosexuality" 121 documents USA had mentioning "bisexuality";54 Today 1768documents and documents mentioning"homosexuality" twenty-nine mentioning"biand The WallStreetJournalhad 396 documents sexuality";55 mentioning and In "homosexuality" nine documents mentioning "bisexuality."56 the same time period,Timemagazine 240 documents had "homomentioning and U.S. sexuality" fifteendocuments mentioning "bisexuality";57 News and WorldReporthad 120 documents and mentioning "homosexuality" three documentsmentioning"bisexuality";58 The New Republichad 144 and documentsmentioning"homosexuality" three documents and mentioning While I expectedmuch less of a discrepancy moving in "bisexuality."59 frompopular academicsources,this provednot to be the case. In the to sametimeperiod, SocialSciencesAbstract the Database WilsonWebhad on 1122 documents and documents mentioning "homosexuality" eighty-seven the had mentioning "bisexuality";60 GeneralSciencesAbstracts 221 documentsmentioning and "bisexu"homosexuality" six documents mentioning the Humanities Abstracts 962 documents had "homoality";61 mentioning and documents sexuality" twenty-six mentioning "bisexuality."62 The discrepancy betweenthe relative and visibilityof homosexuality bican as RobinOchs sexuality be described sociologically well as statistically.
53. A comparison bisexualityandheterosexuality of wouldnot isolatethis kindof invisibility becausebisexualitycould be moreinvisiblethanheterosexuality to the secondkind of invisidue bility. 54. Searchof WESTLAW, ALLNEWS LATFile (Mar.22, 1999). Library, 55. Searchof WESTLAW, ALLNEWS USATDFile (Mar.22, 1999). Library, 56. Searchof WESTLAW, ALLNEWS WSJFile (Mar.22, 1999). Library, 57. Searchof WESTLAW, ALLNEWS TIMEMAG (Mar.22, 1999). File Library, 58. Searchof WESTLAW, ALLNEWS USNWRFile (Mar.22, 1999). Library, 59. Searchof WESTLAW, ALLNEWS NEWREPUB (Mar.22, 1999). File Library, 60. Searchof GeneralScience AbstractsDatabase,Wilson Web (Mar. 18, 1999) <http:// wilsonweb2.hwwilson.com/cgi-bin/auto_login.cgi>. 61. Search of GeneralScience AbstractsDatabase,Wilson Web (Mar. 18, 1999) <http:// wilsonweb2.hwwilson.com/cgi-bin/auto_login.cgi>. 62. Search of Humanities Abstracts Database, Wilson Web (Mar. 18, 1999) <http:// wilsonweb2.hwwilson.com/cgi-bin/auto login.cgi>.
has argued bisexualsareinvisiblenot only relativeto straights, also that but relativeto gays.63She pointsout thatwhilewe sometimes the suspend general presumption all individuals straight, presumption rethat are the that it is thatall individuals withinthatcontextaregay.64Thus,"[i]nmost places members presumed be heterosexual; are to families,forexample, conversely, at a women'sbarall the womenpresent presumed are lesbians."65 Thereare few contexts,however,in whichan individual presumed is bisexual. In a similar Garber observed bisexuals has that havefew recognizvein,Marjorie able symbolsof theiridentity66-the andblue "biangle" one of the is pink few symbolsspecifically and denoting bisexuality67 is muchless culturally visiblethanthe gay symbols68 thepinktriangle69 the rainbow.70 of or Thus, even when the heterosexual thatall individuals straight are is presumption it is replaced the monosexual thatall individuals suspended, by presumption arestraight gay. or It is understandable theheterosexual that has presumption receivedmore theoretical attention thanthe monosexual The erosionof the presumption. that are was to presumption all individuals heterosexual obviously necessary the fallback thatall individuals heterosexual hoare or identify presumption mosexual. The evidenceabovedemonstrates, however,thatthe monosexual is and suchattention. presumption powerful, urgently requires I will therefore take it to be relativelyuncontroversial bisexuals, that howsoever in defined,areless sociallyvisiblethanhomosexuals contempoAmerican culture.Whatremains be explored the causeof this into is rary visibility.
63. See Robin Ochs, Biphobia: It Goes More than Two Ways, in BISEXUALITY: THE PSYCHOLOGY POLITICS AN INVISIBLE AND OF MINORITY 217, 225 (Beth A. Firestein ed., 1996)
INVISIBLE [hereinafter MINORITY]. 64. See id. 65. Id.
66. See GARBER, supra note 11, at 25.
67. See id. (notingthat"lavender blue 'biangles'seem to go unrecognized"). and 68. It is true that these "gay"symbolshave been appropriated multipleotherpurposes. for See id. ("Pinktriangles... have been takenover as 'the provinceof every liberal-leaning Clinton But supporter."'). the inaugural meaningsof these symbolsstill remainintactand widely ungay derstood. 69. See, e.g., GaysReviseNazi Symbol,S.F. CHRON., 29, 1992, at D5 (notinghigh visiJune bility of pink trianglesduringGay PrideMonth);Deb Price,Concentration Camps'Pink Triangle Recalledat HolocaustMuseum, STAR TRIB., May 5, 1993, at 3E (notingthat"[t]hepinktriangleis the sportedaround world... as a sign of gay pride"). 70. See, e.g., Thomas J. Brady, How Some Gays Choose to Show the Colors, PHILA. Nov. of INQUIRER, 19, 1997, at D1 (notingrisingpopularity rainbowas symbolof homosexuality); Deb Price,Rainbow Flag is Symbolof a UnitedGayPeople, STAR TRIB., Apr. 19, 1995, at 4E (describingutilityof rainbow symbolin recognizing homosexuals).
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B. Bisexual Erasure
In discussing project this withpeers,I was struck how manyof them by thatbisexualswereinvisiblerelativeto homosexuals withoutbelievagreed thatbisexualswere being erased. In theirview, the scantvisibilityof ing bisexualsrelativeto homosexuals not signifytheir"erasure," rather did but reflectedtheir smallerrelativenumbers. Call this the "relative accurately nonexistence thesis."The meritof this positiondependson the numbers of bisexuals homosexuals thepopulation. and in Thosenumbers turndepend in on the definitions "bisexual" "homosexual." thusprovideanddeof and I fenda provisional definition "bisexuality" by doingso, provideand of (and, defenddefinitions "homosexuality" "heterosexuality").then apply of and I this definition a number majorsexuality to of studiesto compare relative the incidences bisexuality homosexuality. of and
I discussthedefinition bisexuality of withsomecarebecausethe validity of my thesisdepends on thisdefinition.Whether bisexualinvisibility deup notes bisexualerasure turnson how expansively narrowly or is bisexuality defined. To adoptwhatever definition bisexuality of the convenundergirds tionalwisdomthat "'[e]veryone bisexual,"'71 example,is to demonis for strate bisexualerasure themoment definition.Similarly, adoptwhatat of to ever definitionof bisexualityundergirds countervailing the conventional wisdomthat"'[t]here no suchthingas bisexuality,"'72simultaneously is is to demonstrate bisexual nonerasure. Neitherdefinition particularly is The definisatisfactory. universalizing tion of bisexuality maximizesthe numberof personserased,but only by the of so to dropping threshold bisexual ascription low as arguably emptythe term of diacritical force.73The eradicating definitionof bisexuality miniBISEXUALITY AND THECHALLENGE LESBIAN TO POLITICS: AND REVOLUTION 1 SEX, LOYALTY,
71. GARBER, C. supranote 11, at 16 (quotingconventional wisdom);see also PAULA RUST,
view that"[e]veryone inherently is RUST, (1995) [hereinafter CHALLENGE] (quoting bisexual"). 72. GARBER, supra note 11, at 16 (quoting conventional wisdom); see also RUST, "doesnot exist"). CHALLENGE, note 71, at 1 (quotingview thatbisexuality supra 73. This can be seen in the intuitivedistancebetweenthe statement is "Everyone bisexual" and the statement am bisexual"-that is, in the abilityof individuals say the formerwithout "I to concedingthe latter. At the level of formallogic, this makesno sense. If I am partof "everyone," and "everyone bisexual," is then I, too, mustbe bisexual. At the level of praxis,however,it is inin telligiblebecausethe word"bisexual" the firstsentenceis seen to have a sufficientlydilutesignificance(preciselybecauseit is spread thinlyacrossthe massof humanity) to have no conseso as is quence. In the second sentence,the word "bisexual" seen to have a sufficientlypotentsignificance (preciselybecauseit refersto some, but not others,in the humanpopulation) to have serias ous ramifications.Put in Sedgwickian terms,this is the differencebetween a universalizing discourseof bisexuality(in whichbisexualityis a latenttraitin all of us) anda minoritizing discourse of bisexuality(in which bisexualityis a traitthatsome, but not others,possess). See SEDGWICK,
of erased onlyby raisingthethreshold defibut mizesthe number persons of thesetwo endpoints, nitionto dizzyingheights.74 however,still Eliminating of leavesa vastspectrum choice. In stakingout a definitional reposition,two issues mustbe defensibly will solved. The firstis the axis or axes alongwhichsexualorientation be to or defined. The secondis how expansively narrowly definea particular sexualorientation alongthechosenaxisor axes. Therearethreeaxesalongwhichsexualorientation conventionally is defined: desire,conduct,and self-identification.75 Definitionscan rely on a of of singleaxis, or on a combination the axes.76Thenumber bisexualswill to thepermutation used. Consider, example, for varydramatically according this taxonomy bisexualities of constructed a studyusinga pureconductby baseddefinition:
in  "DefenseBisexuality" (defendingagainsthomosexuality societies where it is stigmatized), "Latin (the  Bisexuality" insertiverole in certain"Mediterraneancultures" not regarded homosexual,so thatmen who participate is as in same-sex encountersmay considerthemselvesnonethelessheterosexual), "RitualBisexuality"(as with the Sambia of Papua-NewGuinea, in which youngermales fellateoldermen in orderto ingesttheir"masculinizing" semen, a practice is partof a riteof initiation, that may continuefor years,andis apparafter marriage), "Married Biently replacedby exclusive heterosexuality called "situational sexuality," "Secondary (morefrequently Homosexuality" in bisexuality"-sex with same-sexpartners prisonsor othersingle-sexinstitutions, in publicparksor toilets, or for money),  "EqualInterestin Male and Female Partners" (so-calledtrue bisexuality), "Experimental Bisexuality," and  "Technical who maybe dressedas members (withpartners Bisexuality" of the othersex, or have had some formof genderreassignment:transsexuals or members a "third of sex"in some cultures).77
note theseterms discussing definitions homosexuality heterosexuin the of and supra 4, at 1 (using ality). 74. Indeed, thereis a way in whichthe two positions in converge theirextremity.Cf note11,at 105(noting bisexual that can as GARBER, supra invisibility be "produced a startling byof For is then of must product omnipresence"). if "everyone bisexual" thedefinition bisexuality be so anemic to leaveopenthepossibility "nooneis bisexual" a less anemic as that in sense. Conif then of must as versely, "nooneis bisexual" thedefinition bisexuality be so robust to leaveopen thepossibility "everyone bisexual" somelessrobust that is in sense. SeeMichael Plessis, du Blain BISEXUALITIES 30 (DonaldE. QueerTheory, REPRESENTING tantlyBisexual;or, Unthinking 19,
Hall& Maria that is can eds., Pramaggiore 1996)(noting "[i]feveryone bisexual, 'bisexuality' no be or longer a specific pertinent feature").
75. See EDWARDO. LAUMANN,JOHN H. GAGNON,ROBERTT. MICHAEL& STUART OF SEXUALPRACTICES THEUNITED IN MICHAELS,THE SOCIALORGANIZATION SEXUALITY: STATES290 (1994) [hereinafter LAUMANNET AL.] (noting that "homosexuality" can refer to
or or of behavior,desire,self-definition, identification some combination these ele"same-gender ments"). 76. See id. 77. GARBER, supranote 11, at 30 (numbering added).
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individuals who wouldnot be characterized bisexualsundera conductas baseddefinition be included to undera desire-based definition.Thiswould all who unacted same-sex desires. encompass individuals nursed if to Similarly, we defined bisexuality alone, according self-identification "defense wouldprobably the only category was not seribe that bisexuality" "Latin bisexuals" withbothmen ouslydiminished. engagein sexualconduct andwomenbutself-identify heterosexual as rather thanas bisexual.82 a And same-sexconsignificantportionof the men who engage in extramarital or or duct,83 who view their same-sexconductas "experimental"84 "situarelikelyto self-identify straight. as ational,"85 Becausethe populations axes are so different, captured the different by the choiceof axis (or combination axes)is crucial. The choicecannotbe of madeacontextually, will depend the purpose whichthe definition but on for is used. Forexample, studythatgenerated taxonomy the the described above used a conduct-based definition becauseits purpose to examinethe role was
78. Cf id. at 31 (speculating aboutthe usefulness usingthe single term"bisexuality" deof to scribea similarlydiversearray activitiesandfantasies). of 79. See Ronald C. Fox, Bisexualityin Perspective:A Review of Theoryand Research,in
INVISIBLE MINORITY, supra note 63, at 3, 22-23.
bisexual sex worker81).At the same time, however, we might expect many
This arrayappearsso vertiginously diversethat it might fairly be asked whether theseindividuals shouldall be characterized the sameterm.78 In by however,this array actuality, gives an oversimplified pictureof bisexuality, insofar it onlyuses one axisof definition. as For if a different were used,manyof the individuals axis who fall into of the abovecategories wouldnot be characterized bisexuals,and as many vice versa. Thus,if we reliedon desirealone,no "defense bisexuals" would be considered bisexual,giventhattheyonlyprofesscross-sexdesireto mitisame-sex desire.79 Some"ritual bisexuals" and gatethe stigmaof possessing "situational bisexuals" also fall out of the desire-based This might category. is becausethese individuals couldbe engagedin same-sexconductfor reasonsotherthansexualdesire(suchas initiation adultstatus the case of into in the ritualbisexual80 financial or remuneration the case of the situationally in
80. See id. at 23. 81. See FRITZ THE OPTION (1978) ("Maleprostitutes 19 who allow themKLEIN, BISEXUAL selves to be fellatedfor moneyoftendo not considerthis a homosexual or considerthemselves act, bisexual."). 82. See Fox,supranote 79, at 23. 83. See JohnJ. Brownfain, Studyof theMarried A BisexualMale:Paradoxand Resolution, in who while simul(notingevidencethat"individuals choose to live withina conventional marriage taneouslyhaving significantlove-sex relationswith membersof theirown sex .... are not rare, only rarelyidentified"). 84. See KLEIN, supranote 81, at 18. 85. See id.
BISEXUALITIES: THEORY AND RESEARCH 173, 173 (Fritz Klein & Timothy J. Wolf eds., 1985)
of bisexuality in the transmissionof the Human Immunodeficiency Virus ("HIV").86 This definition makes obvious sense because HIV is spread through sexual conduct rather than through desire or self-identification.87 However, neitherthis nor any other axis of definition will be valid across all contexts. So which axis or combinationof axes is best suited for our purposes? I believe that the answer is a pure desire-baseddefinition. This may seem self-serving as the desire-baseddefinition is likely to yield more bisexuals thana conduct-basedor self-identification-based definition,88 therebymaking the claim of erasureeasier to sustain. But the purely desire-based definition of bisexuality can be defended against this criticism. One can frame that defense by (1) asking who is bisexual under a desire-baseddefinition who would not be bisexual under a conduct-based or self-identification-baseddefinition, and then (2) asking whether it is fair to call those individualsbisexual for the purposes of determining erasure. The analogy to homosexualityis useful. For when we ask those questions about homosexuality, the answers are that the desire-based definition includes those who have unacted same-sex desires and that it is clearly defensible to call those individualshomosexual. I assume that these individualsdo not act out their desires throughconduct or self-identification because of the stigma of homosexuality, and I assume that the inability to convert desire to conduct or self-identificationis consequentialto that individual (at least insofar as the desire is more than incidental).89I would call the individualwho possesses unexpressedsame-sex desire a closeted homosexual rather than a heterosexual. Indeed, I would view the exclusion of such individuals from the definition of homosexuals for the purposes of erasureto be ironic, as it would permit erasureto control that demonstrating to let erasureerase itself. And I would not expect much resistance definition, to these analyticmoves. I believe that these moves will be much more stronglyresisted when applied to bisexuality, but that they are nonetheless valid. The desire-based definition will include individualswho desire both sexes but who do not express that dual desire either throughconduct or through speech. The resistance arises when this suppressionis characterizedas consequential. It is harder to argue that bisexuals are giving up an importantaspect of their
86. See GARBER, supranote 11, at 30. 87. See JosephP. Stokes,KittiwutTaywaditep, PeterVanable& DanielJ. McKiran, Bisexual Men,SexualBehavior,andHIV/AIDS, INVISIBLE in MINORITY, note 63, at 149, 150-51. supra 88. See, e.g., COLKER, HYBRID, supranote 9, at 15 (notingthat"[o]nlyabout1 percentof the adultpopulationidentifiesas bisexual,"but that "nearly4 percentacknowledgethat they are attractedto people of both sexes")(citingTripGabriel, New Generation A SeemsReadyto GiveBiN.Y. TIMES, 12, 1995,at C10). June sexualitya Place in the Spectrum, 89. I discuss the restriction the desirebe more thanincidental that below. See notes 99-108 text. infraandaccompanying
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sexual identitysince they arenot being deniedall satisfactory interpersonal in (as expression a homosexual the same positionarguably but merely is) sexual expressionwith one sex.90 In fact, the stereotype bisexualsas of or "greedy" "promiscuous" impliesthatbisexualsare askingfor morethan theirdue, suchthattheyshouldbe forcedto give up sexualexpression with one of the two sexes.91 Yet for the purposesof erasure,the inquiryis whether rather whether shouldbe forthan theyare forgoing something they it. Andthe answer thatpositive,rather to thannormative, is going question affirmative. the extentthatbisexuals not permitted express To are to clearly theirdualdesires,they mightfairlycharacterize themselves harmed. To as excludethe individual who has unexpressed desiresagainpermitseradual sureto eraseitself. Forthatreason, believethata purelydesire-based I definitionof bisexuality themostappropriate. is Even afterdesireis justifiedas the pertinent axis, we must determine how expansively narrowly definebisexualsbasedon desire. At one or to extreme,there is Freud'sview that bisexualdesire is a universalcondithe versionof the "everyone bisexual" is tion92-perhaps most prestigious is or biposition. At the otherextreme the view thatonly "true" sex-blind sexuals-those who haveequaldesirefor men andwomen93-arebisexual, whichasymptotically the approaches view that"noone is bisexual" dependon how seriously takestherequirement equality.94 one of desire ing Isolating as the axis of definition still leavesthe full spectrum bisexualdefinithus of tion-from bisexual to nonexistence-available. universality bisexual
90. See Arthur Murphy JohnP. Ellington, A. & and Homosexuality the Law: Toleranceand Containment 97 DICK. REV. L. that II, 693, 709-10 (1993) (arguing existingsodomylaws shouldbe modifiedto exonerate "true homosexuals" not bisexuals,on the groundthatbisexualscan more but easily modifytheirbehavior). 91. See notes353-357 infraandaccompanying text. 92. See, e.g., SigmundFreud,AnalysisTerminable Interminable, 23 THE and in STANDARD Press 1973) (1937) [hereinafter WORKS SIGMUND OF Stracheytrans.,Hogarth ("Wehave FREUD] come to learn,however,thatevery humanbeing is bisexualin this case and thathis libido is distributed eitherin a manifestor latentfashion,over objectsof both sexes.");SigmundFreud,CivilizationandIts Discontents, 21 WORKS SIGMUND in OF FREUD, supra,at 57, 105 (1930) ("Manis an animalorganism... with an unmistakably bisexualdisposition."); SigmundFreud,The Psychoin in OF genesis of a Case of Homosexuality a Woman, 18 WORKS SIGMUND FREUD, supra at 145, 158 (1920) ("Inall of us, throughout the libido normallyoscillatesbetweenmale and female life, of objects ...."); id. at 157 (noting"theuniversal bisexuality human beings"). 93. Whatit meansto have "equal" desirefor men and women is of course a deeply fraught this question. Perhaps is why truebisexualityis framedas "sex-blind" bisexuality-implying that, if bisexualsdo not even "see"sex, they cannotdisbursetheirdesireunequally the basis of sex. on formulation "sex-blindness" somewhatmisleading,as But, as discussedbelow, the rhetorical of is bisexualscan in fact tell the difference betweenmen andwomen. And if the bisexualcan differenwill tiate,it seems unlikelythatthis differentiation not affecther desire asymmetrically, given the trait powerof sex as a diacritical in oursociety. See notes314-318 infraandaccompanying text. 94. See RUST, this CHALLENGE, supranote 71, at 48-49 (describing definitionof bisexuality andnotingits restrictiveness).
EDITION THECOMPLETE OF PSYCHOLOGICAL WORKSOF SIGMUND FREUD211, 243-44 (James
HereI choosea narrow view of bisexuality.I do not takethis position is becauseI rejectthe view thatbisexuality universal-I remainagnosticas to this point. Rather, adoptthis positionbecauseassuminguniversal I bitoo too sexualitywouldmakemy argument easy (andtherefore easy to dismiss). I placetwo restrictions my desire-based on definition bisexuality.The of firstrestriction to the nature desire. Desireis a classic floating of pertains signifier,thatis, a termwithouta clearreferent. Especiallyin postmoder has times, its ambiguity been resolvedin favorof an expansivedefinition. a sexualdesireshouldnot be distinguished Thus,under Foucaultian reading, fromotherpleasurable of the body.95And undera Sedgwickian uses readdesirecan incorporate putative its as in the theorythatthe hoing, opposite, mophobiaof "homosexual panic"is in actualityfueled by an occluded, desire.96 if the desire-based But definition bisexualof guilty,andsurprised the nonsexual we (andsexualdispleasure) feel in ity encompasses pleasure the company othermenandwomen,we areall indeed of bisexuals. To avoidsucha dilutionof the bisexualdefinition, restrict definiI the tion of desireto its moreeveryday of or I meaning "sexual appetite lust."97 thustakethe categories the "homosocial" the "homosexual" alterof and (or, and to distinct.98 natively,the"hostile" the"desirous") be analytically The secondrestriction to withwhichthe desireis pertains the frequency To be classifiedas a bisexualunder definition, individan experienced. my ual's sexualdesireforeachsex mustbe morethanincidental.To understand this restriction, is helpfulto examine analogous it the restrictions commonly on homosexuality. Kinseyis to be believed,in the middleof this If placed a was to an century, singlesame-sexsexualexperience sufficient brand individualas a homosexual.99 Thatcultural consensus,if it ever existed,has
95. See 1 MICHEL THE HISTORY SEXUALITY: INTRODUCTION OF AN 157-59 FOUCAULT,
the of (RobertHurleytrans.,VintageBooks 1990)(criticizing privileging sex over othereconomies of"bodies andpleasure"). 96. See SEDGWICK, note 4, at 20. Sedgwickcontendsthat"[j]udicially, 'homosexual a supra panic' defensefor a person(typicallya man)accusedof antigayviolenceimpliesthathis responsion bility for the crimewas diminished a pathological by condition,perhapsbrought psychological sexualadvancefromthe manwhomhe thenattacked."Id. at 19. Sedgwickgoes by an unwanted on to observethat"thereasonwhy this defenseborrowsthe nameof the (formerlyratherobscure and little-diagnosed) classification'homosexual psychiatric panic' is that it refersto the supposed abouthis own sexualidentityof theperpetrator ...." Id. at 20. Thus,the word"homouncertainty sexual"in "homosexual both the same-sexdesire in the panic"is aptly ambiguous, representing victim andthe same-sexdesirein the perpetrator. ambiguity The the represents transitivity (imaginedor real)of same-sexdesire,whichcouldbe described the realcauseof thepanic. as 97. 4 OED,supranote 9, at 522. 98. Thatthese distinctions made in manyquarters, in the case of sexual harassment, are as will be demonstrated below. See textaccompanying notes430-534 infra. 99. In 1948,Kinseystated: in to an if 'homosexual' he is Everywhere oursocietythereis a tendency consider individual knownto havehada singleexperience another with individual his own sex. Under law of the
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homosexual shiftedin certain forato one thatholdsthatadventitious desire, in is to even if manifested explicitsame-sexconduct, not sufficient stripan view is perhaps seen in the best of status.Thislatter individual heterosexual cultural in whichpublicinstitusite the preeminent legal system-probably made. Congrestional determinations sexual orientation currently of are sional support this view can be seen in the "don'task, don't tell" statfor The ute.100 statute makeshomosexual conductgrounds exclufor generally sion fromthe military.l01 it also containsan exemption Yet which through an individual hasengaged same-sex who in in sexualconduct remain the can if that To military he can demonstrate suchconductis unlikelyto recur.l02 the extentthatwe view Congress attempting weed out homosexuals, as to this so-called"queen-for-a-day" may exemption103 be seen as a self-imposed on labelingindividuals gay basedon isolatedsame-sexsexualconcheck as duct. Thejudiciary uses its interpretive also the facultyto restrict definition of "homosexual" this way. Judicial in can exemptions be "queen-for-a-day" seen in the contextsof the civil service,104 and marriage.106 adoption,105
an individual receivethesamepenalty a singlehomosexual for that may experience he would fora continuous record experiences. penalandmental In of a institutions maleis likelyto be rated'homosexual' he is discovered havehada singlecontact another if to with male. In sociout marital is ety at large,a malewhohasworked a highlysuccessful adjustment likelyto be if rated'homosexual' thecommunity about singlecontact he hashadwithanother a that learns male. KINSEY AL., MALE, ET supranote5, at 647, 650. 100. 10 U.S.C. ? 654 (1998). 101. The statuteassertsthat "[a] memberof the armedforces shall be separatedfrom the the has armedforces"if it is found"[t]hat member engagedin, attempted engagein, or solicited to another engagein a homosexual or acts ...." 10 U.S.C. ? 654(b)(l) (1998). to act 102. Even if a findingis madethata servicemember engagedin homosexual has conduct,the membercan evade separation he or she can show, interalia, that"suchconductis a departure if from the member'susualand customary behavior,"10 U.S.C. ? 654(b)(1)(A)(1998); "suchconis id. duct, underall the circumstances, unlikelyto recur," ? 654(b)(l)(B); and "thememberdoes not havea propensity intentto engagein homosexual or acts,"id. ? 654(b)(1)(E). 103. See HALLEY, supranote40, at 39-48. 104. In Dew v. Halaby,317 F.2d 582, 583 (D.C. Cir. 1963), for example,the courtaccepted thata veteranwas not homosexual even thoughhe hadhad fourhomosexual encounters an adoas lescent. Thecourtquotedthepsychiatric evaluation the appellant of WilliamDew: "I decidedly not believe[Dew]to havea homosexual do disorder.I believethat personality the several incidents whichhe gavea history havingengaged whileage 18 anda freshof in manin collegewereisolated incidents the primarily resultof his curiosity.I do not feel that isolated of behavior be considered can abnormal perverted, rather or but episodes homosexual a process normal of sexualinvestigation curiosity.There considerable and is in evidence the
thatthis allegationis true." psychiatricliterature
Id. at 583 n.3 (quotingtestimony psychiatrist). of 105. See In re Opinionof the Justices,530 A.2d 21, 24 (N.H. 1987) (excludingfromdefinition of homosexualin a proposedadoptionstatutethose personswho, for example,had had one homosexualexperienceduring adolescence,but who then engaged in exclusively heterosexual behavior). 106. See Freitagv. Freitag, N.Y.S.2d643, 644 (N.Y. Sup. Ct. 1963) (decidingthatman's 242 confessionof homosexual did priorto marriage not meanhe had "a truecase of homoexperiences sexuality").
Theseexemptions be readas precluding can aberrant of same-sexdesire acts fromtainting individual a homosexual an with identity. Since bisexualityis also a stigmatized identity,we would expect that isolatedhomoerotic conduct wouldnot earnan individual bisexualascripa tion. The evidencealreadyadduced as it suggeststhatindithis, supports vidualsmaintain heterosexual than or identities (rather bisexual homosexual) conduct.107 definitionof bisexuality thus despiteisolatedhomosexual My also excludesindividuals who only have incidental occasionalsame-sex or desire.108 the interestof symmetry, definition In further excludesindimy vidualswho only haveincidental occasional or cross-sexdesire. Thiseliminatesfromthe bisexualcategory thosewho, for example, with experimented homosexual but in activityin theiryoungadulthood thenengaged completely heterosexual activityfortherestof theiradultlives (orvice versa). To summarize, analysis desire-based definition of my adoptsa restricted I firstchoseanddefended desireas theaxis of definition.I then bisexuality. on definition:(1) I defineddesireas placedtwo restrictions the desire-based sexualappetite; (2) I required and morethanincidental desirefor bothsexes beforeclassifyingan individual bisexual. The definition not presented as is as perfect,even for thesepurposes, simplyas workable.109 but Havingdefinedbisexuality thisway,I now examine in whatthemajor studies sexuality in say aboutthe relativeincidenceof bisexualityand homosexuality the population.
How do the majorsexualitystudiesdescribe relativenumbers bithe of sexualsandhomosexuals the population? expected findmanyseconin I to this darysourcesthatset forththe answerto this question.To my surprise, not proved to be the case.l10Thismightbe explained a certain reluctance by to use the existingstudiesfor any purpose,given that they sufferfrom a number problems.Theseincludeproblems of withmethodology particuin lar studies,problemswith obtainingtruthfulaccountsin any study, and problemswith calibratingorientationeven assumingtruthfulaccounts.
107. See notes 100-106supraandaccompanying text. 108. I addressthe questionof whatconstitutes "incidental occasionaldesire"below. See or note 146 infraandaccompanying text. 109. The definition,for example,makesno attemptto calibrate"the erotic appealof transGARBER, gression," supranote 11, at 29; the intensityof desire,see generallyMichaelD. Storms, Theoriesof Sexual Orientation, J. PERSONALITY 38 & SOC.PSYCHOL. (1980); or the ways in 783 whichdesireis connected otheraspectsof an individual's to self-conception (suchas herpoliticsor see self-identification), SEDGWICK,supranote4, at 25-26. 110. The sourcethatcame closest to a systematic of comparison the relativeincidenceof biwas sexualityandhomosexuality Fox, supranote 79, at 16-17. Even this source,however,left out manyof the majorstudies.
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These are seriousissues thatanyonedeployingthe studiesshouldaddress, andI do so below.1ll The belief that these problemsare keepingpeople from utilizingthe incorrect.The famousten percentfigurefor studies,however,is probably for example,arisesfromthe Kinseystudies.12 This suggests homosexuals, thatit is not a generic of the studies, rather use but specificuses of them,that are being suppressed.The starkdiscrepancy betweenthe popularization of the Kinseyfindingson homosexuality the lack of popularization the and of Kinseyfindingson bisexuality1l3 suggeststhatbisexualinvisibility provides an alternative for the absenceof suchcomparisons.I therefore explanation
thought it useful to go through the major sexuality studies and to make a systematiccomparison.
In evaluating "studies purport tell aboutsex in America,"114 the that to RobertT. Michaelandhis colleaguesdiscussedsevenmajorstudies1ls:the
Kinsey study (which is actually comprisedof separatestudies for men16 and the the womenll7), the Playboy study,18 the Redbookstudy,119 Hite study,120 Mastersand Johnsonstudy,l12 the Janusand Janusstudy,122 the Laumann and study.123They also attested to the reliability of two unnamed studies from France and England,which are identifiablebased on their other work as the
111. See notes 177-186 infra and accompanying text. 112. See, e.g., BRUCE A AT THEGAY INDIVIDUAL AMERICAN IN BAWER, PLACE THETABLE: SOCIETY (1993) ("From the appearance of the Kinsey Reports in 1948 and 1953 until very re82 cently, it was a truism that about 10 percent of Americans are homosexual."); Jennifer Gerarda S. CAL. L. REV. 745, 776 (1995) ("Since 1948, when Alfred C. Kinsey and his associates released their path-breaking study, Sexual Behavior in the Human Male, the oft-cited statistic is that ten percent of the population is gay."). 113. See MARTINS. WEINBERG, COLIN J. WILLIAMS DOUGLASW. PRYOR, DUAL & ATTRACTION: UNDERSTANDING BISEXUALITY (1994) (noting that Kinsey's findings about bi4 sexuality "have been generally ignored"). 114. ROBERT MICHAEL, T. JOHNH. GAGNON, EDWARD LAUMANN GINA KOLATTA, O. & SEX IN AMERICA: DEFINITIVE A SURVEY15 (1994). It bears note that this is a companion volume to the Laumann study, see LAUMANN AL., supra note 75, written by the same researchers who ET conducted that study. 115. See MICHAEL AL., supra note 114, at 15-25. ET 116. KINSEY AL., MALE,supra note 5. ET 117. KINSEY AL., FEMALE, ET supra note 6. 118. The Michael study does not provide a citation for the Playboy study. As there are a number of Playboy studies to which it could refer, I do not attempt a citation here. 119. CAROLTAVRIS & SUSAN SADD, THE REDBOOK REPORTON FEMALESEXUALITY (1975). 120. SHEREHITE, THE HITE REPORT:A NATIONWIDE STUDY ON FEMALESEXUALITY (1976). 121. WILLIAM MASTERS VIRGINIA JOHNSON, H. & E. HOMOSEXUALITY PERSPECTIVE IN (1979). 122. SAMUEL JANUS& CYNTHIA JANUS,THEJANUSREPORT SEXUALBEHAVIOR S. L. ON (1993). 123. LAUMANN AL.,supra note 75. ET
Federalism theLegislative and Incentives Recognize to Same-Sex Brown,Competitive Marriage,68
and Othersourcescorroborate this that Spirastudy124 the Wellingsstudy.125 list is a fairlycomprehensive of studies.126 rendering themajor sexuality I narrowed list of nine studiesin two ways. First,I eliminated this the studies-the Redbook the and study,127 Hitestudy,128 the Spirastudyl29-that did not includedatasufficientto permita comparison the relativeinciof dencesof bisexuals homosexuals thepopulation. theneliminated and in I the I a Playboystudybecause thought magazine studywas likelyto be less accurateandless credible thantheotherstudies.130 left five studiesthatI felt This theincidences bisexuality homosexuality. of and usefullycompared The five studiesdefinedsexualorientation eachusing some differently, of the threeaxes of desire,conduct,and self-identification.131 permutation Where the usedby the studyto conform my to possible,I adjusted definition restricted desire-based definition bisexuality.As the studiesuseddifferent of definitions,and as even studiesusing the same definitionused different scales132 measures,133is not surprising the studiesdifferwidely in or it that
124. See ALFRED BAJOS& THEACSF GROUP,SEXUALBEHAVIOR SPIRA,NATHALIE AND
126. See, e.g., TamarLewin,Monogamy MorePrevalentthan Believed,SurveyFinds, L.A. DAILY Oct. 7, 1994,at N1 (notingpopularity Hite,Redbook, Playboystudies);Elizaof NEWS, and beth Valk Long, To OurReaders,TIME, Oct. 17, 1994, at 4, 4 (indicating the Hite, Laumann, that andMasters Johnson and werefeatured coverstoriesin Timemagazine). as reports 127. The Redbook surveyaskeda sampleof womenwhetherthey had had a "sexualexperience with another woman"since the age of 18, withoutaskingaboutwhetherthe womenwho had hadsuch experiences also hadsexualexperiences had with men. TAVRIS SADD, & supranote 119, at 163. 128. The Hite Reportaskeda sampleof womenthe question"Do you prefersex with men, women,yourself,or not at all?"HITE, and supranote 120, at 261. The reportnoted: "A hundred womenin this study(8 percent)said they preferred with women. Anotherseventyforty-four sex three identifiedthemselvesas 'bisexual,'and eighty-four more women had had experienceswith bothmen andwomenbut did not answeras to preference 9 (another percent)."Id. This statement could be read to mean that 8% of women could be characterized lesbian,while 9% could be as characterized bisexual. The question,however,is infelicitously as wordedfor my purposes,given thatpreferencefor women as sex partners mightnot be an exclusiveor even a strongpreference. Similarproblemsarise when one tries to characterize remaining as bisexual,given that it the 9% with only incidental probablyincludesindividuals experienceswith one sex (who are not consideredbisexualundermy definition).Thus,while theHite Report widelyknown,I do not rely on it is here. 129. The Spirastudydoes not clearlydistinguish betweenhomosexuals bisexuals,making and a comparison the incidenceof these two groupsimpossible. See generallySPIRA AL., of ET supra note 124. 130. Had I not alreadyeliminated the Redbook it, study would also have been excludedon this basis. 131. See notes 136-176infraandaccompanying text. to the criteria desireor behavior a seven-point of on ET scale),with WELLINGS AL.,supranote 125, at 179 (arraying individuals to of on according the criteria desireor behavior a five-pointscale).
132. Compare KINSEY AL., MALE,supra note 5, at 639-41 (arraying individuals ET according
125. KAYEWELLINGS, JULIAFIELD,ANNE JOHNSON JANEWADSWORTH, & SEXUALBEHAVIOR BRITAIN: IN SURVEY SEXUAL OF THENATIONAL AND ATTITUDES LIFESTYLES (1994).
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to manyof theirresults. Forexample, according thesestudies,bisexualsare estimated comprise to from0.2 percent134 fifteenpercentl35 to of anywhere the totalpopulation.Whatis surprising, however,is thateach study found thatthe incidence bisexuality greaterthanor comparable the inciwas to of denceof homosexuality. a. Kinsey(1948& 1953). with studiesof Begin at the beginning,136 AlfredKinsey'sfoundational sexualbehavior the human in male137 female.138 bothstudies,Kinsey and In definedsexualorientation to of according a combination desire("psychosexualresponse"139) conduct and sexualexperience"140), without reliance ("overt on self-identification.141 Based on this definition,he createdthe famous continuum from scale,"whichlimneda sexualorientation "Kinsey spanning 0 to 6.142 numbers The denoted followingorientations: the
0-No homosexual contacts involving psychic or physical response; exclusive heterosexual contacts 1-Incidental homosexual contacts; frequentheterosexual contacts 2-More than incidental homosexual contacts; but more frequent heterosexual contacts 3-Equal homosexual and heterosexual contacts 4-More than incidental heterosexual contacts; but more frequent homosexual contacts 5-Incidental heterosexual contacts; frequent homosexual contacts 6-No heterosexual contacts; exclusive homosexual contacts143
133. Compare the definition of a Kinsey 1 in KINSEY AL., MALE,supra note 5, at 639-41, ET and KINSEY AL., FEMALE, ET & supra note 6, at 471, with the definition of a Kinsey 1 in MASTERS 134. WELLINGS AL.,supra note 125, at 183. ET 135. See KINSEY AL., MALE,supra note 5, at 650-51. ET
see JOHNSON, note 121, at 14-15. Formoreon this comparison, note 154 infra. supra
136. This analysismarchesthrough studieschronologically orderto providea sense of the in the timelineon whichthe studieswere conducted.It is probably worthpointingout, however,that the firsttwo studies,which were conducted before 1980, are fundamentally differentfromthe last in three,whichwere all conducted the 1990s. Forexample,it is somewhatsurprising the Kinthat in sey studiesremainthe most widely citedof the studies,despitethe fact thatthey were conducted an era wheresexual moreswere dramatically different. See Mezey, supra note 8, at 104 (noting thatKinsey'sworkis still the most"widelycitedresearch sexualityin the UnitedStates"). on
137. KINSEY AL., MALE,supra note 5. ET 138. KINSEY AL., FEMALE, ET supra note 6. 139. KINSEY ET AL., FEMALE, supra note 6, at 471; KINSEY ET AL., MALE, supra note 5, at 140. KINSEY ETAL., FEMALE, supra note 6, at 471; KINSEY ETAL., MALE, supra note 5, at
141. See KINSEY ET AL., FEMALE, supra note 6, at 471-72; KINSEY ET AL., MALE, supra note 5, at 639-41. 142. See KINSEY ET AL., FEMALE, supra note 6, at 471-72; KINSEY ET AL., MALE, supra note 5, at 639-41. 143. See KINSEY AL., FEMALE, ET ET supra note 6, at 471-72; KINSEY AL., MALE,supra note 5, at 639-41.
This scale has provedimmenselyinfluential, only in subsequent not studbut literature.145 ies,144 also in morepopular WhileKinseyresistedbreaking continuum the threecategories this into of heterosexual, it bisexual,andhomosexual,146will be usefulfor me to do so. I definedbisexuality earlier the abilityto experience as desirein a more thanincidental forbothmen andwomen. BecauseKinseyhimselfcreway ated categoriesof incidental same-sexdesireor behavior(Kinsey5s) and incidental cross-sexdesireor behavior his (KinseyIs), it is easy to restrict scaleto fit my definition.I therefore Osand Is as "heterocategorize Kinsey and sexual," Kinsey2s, 3s, and4s as "bisexual," Kinsey5s and6s as "homosexual."However, becauseKinseydidnot disaggregate desireandconduct, a completeadaptation his standard mine is impossible. To the extent of to that his definitioncaptured individuals who had sexual conductwith both sexeswithout desireforbothsexes,it will be overinclusive. Underthisdefinition, whatis theratioof bisexuals homosexuals the to in studies?Kinseyfoundthat"25percentof themalepopulation Kinsey ha[d] morethanincidental homosexual or experience reactions (i.e., rate[d]from centof the males[were]moreor less exclusively homosexual (i.e., rate[d]5 or 6) for at least threeyearsbetweenthe ages of 16 and 55."148Underhis time andage restrictions, Kinseythusfoundthatfifteenpercentof the male fell population withinthe bisexualrange(Kinsey2s, 3s, and4s) while only ten percent the malepopulation withinthe homosexual of fell range(Kinsey 5s and6s). Forwomen,an average ten percent unmarried of of femalesand 2.5 percentof married femalesratedfrom2 to 6 "in each of the yearsbewhile "10 per 2-6) for at least three years between the ages of 16 and 55,"147
fourpercentof unmarried femalesandless thanone percentof married femalesrated5 or 6 "ineachof theyearsbetweentwentyandthirty-five years
144. See, e.g., MASTERS JOHNSON, & of supranote 121, at 8 (notingits deployment the KinET of sey scale);WELLINGS AL.,supra note 125, at 179 (notingits deployment a modifiedKinsey scale). 145. See, e.g., VeronicaGroocock,AlfredC. Kinsey:A Public/Private Life, NEWSTATESNov. 21, 1997, at 49 (reviewing book aboutKinseyandhis reports); MAN, WilliamA. Henry,Born of Gay?,TIME, 26, 1993,at 36, 37 (notingKinsey'sestimate the incidenceof homosexuality July in the population); JohnLeland,Bisexuality,NEWSWEEK, 17, 1995, at 44, 47 (discussingKinJuly NEWREPUBLIC, 2, sey's findingson bisexuality);Jonathan Jan. Weiner,The Gay Science, THE and 1995, at 35, 36 (discussing methodology resultsof Kinseyreport). 146. See KINSEY AL., MALE,supra note 5, at 639 (notingthatsexual orientation better ET is describedas a continuum).Indeed,Kinseycautioned even his seven-pointscale was a distorthat tion of the continuum sexualorientation.Id. at 647 ("Finally, shouldbe emphasized of it againthat the realityis a continuum, with individuals the population in occupyingnot only the seven categobetweeneachof the categories, well."). Xieswhicharerecognized as here,but everygradation 147. Id. at 650. 148. Id. at 651.
149. KINSEY AL., FEMALE, ET supra note 6, at 473.
tween twenty and thirty-fiveyears of age."149 In contrast,only an average of
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of age."150Under these time and age restrictions,Kinsey thus found that six percent of unmarriedwomen and more than 1.5 percent of marriedwomen women and fell into the bisexual range, while only four percentof unmarried less than one percent of marriedwomen fell into the homosexual range. In the Kinsey studies, we see a remarkableconsistency of result, in which the percentageof bisexuals (Kinsey 2s, 3s, and 4s) is 1.5 times the percentageof homosexuals (Kinsey 5s and 6s) for both men and women. b. Masters andJohnson (1979). The Masters and Johnson study also deployed the Kinsey scale.151The study, however, involved only "homosexual"subjects-it admitted into its data pool only individualswhom the researchersdeemed to be Kinsey Is to Kinsey 6s.152 The limitationwas almost certainlytoo strictly enforced-for example, "[t]he Kinsey 1 representativeswere accepted into the program only if they could documentthat they were currentlyliving in a homosexual This implies that the rerelationshipof at least three months' duration."153 searchers were deploying the Kinsey scale in a different way than Kinsey himself did, for it is extremely doubtful that the Kinsey researcherswould have classified as a Kinsey 1 any individual who had been involved in a same-sex relationshipof that duration.154 Mastersand Johnson classifiThe cation would thus underreport numberof individuals who would be bithe sexual undermy definition. Despite this, however, the Mastersand Johnson study also found that the incidence of bisexualitywas greaterthan or comparable to the incidence of homosexuality. For men, the percentageof bisexuals (Kinsey 2s, 3s, and 4s) in the sample was 46.8 percent,while the percentFor age of homosexuals (Kinsey 5s and 6s) was 48.9 percent.155 women, the percentage of bisexuals was 59.8 percent, while the percentage of homosexuals was 36.6 percent.156Thus, while the ratio of bisexual men to gay men was lower thanthat in the Kinsey study, the study still found thatbisex150. Id. at 473-74.
151. MASTERS JOHNSON, & supra note 121, at 8.
152. See id. at 14. 153. Id. at 14-15.
154. See KINSEY AL., FEMALE, ET supra note 6, at 471 ("Individuals are rated as l's if their
of psychosexualresponsesand/orovertexperienceare directedalmostentirelytowardindividuals the oppositesex, although makepsychosexual they incidentally responsesto theirown sex, and/or have incidentalsexualcontactswith individuals theirown sex.... Suchpersons make of few if any deliberateattempts renewtheirhomosexual to KINSEY AL., MALE ET contacts.") (emphases added); are supra note 5, at 639 ("Individuals rated 1's if they have only incidentalhomosexualcontacts which have involvedphysicalor psychicresponse,or incidental psychicresponsewithoutphysical described Kinsey Is by Masters Johnsonseem highlyunlikelyto as and contact.").The individuals meet thesecriteria.
155. See MASTERS JOHNSON, & supra note 121, at 29.
156. See id. at 32.
numbers gay men. Andthe ratioof bisexto ual menexistedin comparable was than ualwomento lesbians greater thatfoundin theKinseystudy.
c. Janus and Janus (1993).
to The Janusstudyreliedon self-identification alone,askingsubjects laas or bel themselves heterosexual, It homosexual, bisexual.157 is thusimposhow in sibleto ascertain subjects the Janus pool wouldbe definedaccording definition. But it nonetheless bearsnote that desire-based to my restricted ratioof bisexuals homosexuals to for the studyreported roughly a one-to-one five percent selfboth men and women.158Among male respondents, identifiedas bisexualwhile four percentself-identified homosexual.159 as threepercentself-identified bisexual,while as femalerespondents, Among two percent self-identified homosexual.160 report as The also suggested that "In theremayhavebeensomeunder-reportingbisexuality: ourinterviews, of
we found ... respondentswho identified themselves as heterosexualand re-
relations[and]respondents identified who themportedhavinghomosexual and selves as homosexuals reported theyhave heterosexual that relations as
two sets of data.166 The five-point scale, to which I have assigned numbers, was as follows:
In a studyof sexualbehavior Britain,162 in researchers a five-point used scale (adapted fromthe seven-point to sexualatKinseyscale)163 ascertain traction sexualexperience and men andwomen. Attraction not was among further but sexualexperience definedas "anykindof contact was defined,164 with another felt or personthat[thesubject] was sexual," including "kissing or touching,or intercourse any otherform of sex."165 Unlike the Kinsey attraction experience, and study,the Wellingsstudydisaggregated yielding
157. See JANUS JANUS, & supranote 122,at 70. 158. See id. While the Janusreport obtained dataon same-sexexperiences, did not report it similardataon bisexualexperiences, of makinga comparison the two on this axis impossible. 159. See id. 160. See id. 161. Id. These individualscould, of course,be Kinsey Is and Kinsey 5s respectively,in whichcase it wouldnot be underreporting bisexuality of undermy definition.
162. WELLINGS AL., supra note 125. ET
163. See id. at 179. 164. See id. at 181. 165. Id. 166. See id.
LAW STANFORD REVIEW
attraction/experience Wellings0-only heterosexual attraction/experience Wellings 1-mostly heterosexual and 2-both heterosexual homosexual attraction/experience Wellings attraction/experience Wellings3-mostly homosexual attraction/experience167 Wellings4-only homosexual
The Wellings scale is both easier and harderto adaptto my definition of sexual orientationthan the Kinsey scale. It is easier in that the Wellings scale disaggregates desire and conduct, thereby permittingthe isolation of desire. It is harderin that the Wellings scale does not clearly distinguish between incidentaldesire (or conduct) and nonincidentaldesire (or conduct). To be consistentwith the Kinsey-basedbisexual category above, the bisexual category should include (1) all Wellings 2s; and (2) some but not all Wellings Is; and (3) some but not all Wellings 3s. I thereforeindicate the number of"bisexuals" as a range extending from a narrowunderinclusivedefinition (just Wellings 2s) to a broad overinclusive definition (Wellings Is, 2s, and 3s). By the same logic, I indicate the number of "homosexuals"as a range extending from a narrowdefinition (just Wellings 4s) to a broad definition (Wellings 3s and 4s). Insofaras attractionwas concerned,for men, 0.5 percent (narrowdefinito tion) to 5.0 percent(broaddefinition)were attracted both men and women, while 0.5 percent (narrowdefinition) to 1.0 percent (broad definition) were attracted(almost) exclusively to men.168 For women, 0.2 percent (narrow definition) to 4.2 percent (broad definition) were attractedto both men and women, while 0.3 percent (narrowdefinition) to 0.5 percent (broad definition) were attracted(almost) exclusively to women.169The Wellings study thus also found bisexuals to exist in numbersgreaterthan or comparableto the numberof homosexuals.170
167. See id. at 183. 168. See id. 169. See id. 170. The ratio of bisexualsto homosexualsaccordingto the behavior-based definitionwas similarto that generated underthe desire-based definition. In its behaviorinquiry,the Wellings sets studyaskedtwo different of questions.Thefirstset was similarto the attraction-based question describedabove. See id. at 182; note 165 supra and accompanying text. It determined that for had men, 0.3%(narrow definition)to 4.8%(broad definition) sexualexperiencewith bothmen and women,while 0.4% (narrow definition)to 1.0%(broaddefinition)had sexual experience(almost) ET exclusivelywith men. See WELLINGS AL.,supra note 125, at 183. For women,0.1% (narrow to had withbothmen andwomen,while 0.1% definition) 2.5%(broaddefinition) sexualexperience (narrowdefinition)to 0.3% (broaddefinition)had sexual experience(almost) exclusively with women. See id. The studyaskeda separate of questions set to pertaining the exclusivenessof same-sexexperience. Men and womenwere askedaboutthe sex of theirsexualpartners over differenttime periods-(1) ever;(2) in the last five years;(3) in the last two years;and(4) in the last year. Id. at 209. For men, the percentage those with bothmale and femalepartners opposedto the percentage of as of those with exclusivelymale partners these time periodswas as follows: (1) 3.4% v. 0.3% for ever;(2) 0.8%v. 0.6%in the last five years;(3) 0.5%v. 0.6%in the last two years;and(4) 0.4%v.
e. Laumann(1994). The Laumannstudy categorized sexual orientationseparatelyaccording to all three of the common indicia-desire, conduct, and selfidentification.171 Subjectswere asked to complete the phrase "In general are
you sexually attracted to .. ." with one of five responses: "(1) only men; (2)
mostly men; (3) both men and women; (4) mostly women; and (5) only women."172The scale for attractionis thus identical to the five-point Wellings scale; I thereforefinesse the difficulties of mapping this onto my definition in the same way as above.173For men, 0.6 percent (narrowdefinition) to 3.9 percent (broad definition) were attractedto both men and women, while 2.4 percent (narrow definition) to 3.1 percent (broad definition) reto ported attraction men only.174For women, 0.8 percent (narrowdefinition) to 4.1 percent(broaddefinition)reportedattraction both men and women, to while 0.3 percent (narrow definition) to 0.9 percent (broad definition) reported attractionto women only.175Taking the narrowand broad definitions as setting the endpoints of a range, the percentagesof "bisexuals"are again greaterthan or comparableto those of "homosexuals."176
0.7%in the last year. See id. Forwomen,the percentage thosewith both femaleandmale partof ners as opposedto the percentage those with exclusivelyfemalepartners these time periods of for was as follows-(1) 1.7%v. 0.1%ever;(2) 0.5%v. 0.2%in the last five years;(3) 0.2%v. 0.2%in the last two years;and(4) 0.2%v. 0.2%in the last year. See id. Underbothsets of questions,the of thanor comparable to percentage individuals havingsex withbothmen andwomenwas greater the percentage individuals of havingsex only with theirown sex. See id.
171. See LAUMANN AL.,supra note 75, at 311. ET
172. Id. at 658. 173. See note 168supraandaccompanying text. 174. See LAUMANN AL.,supranote 75, at 311. This statisticprovidesthe most support ET for the nonexistence thesis of any in the studiessurveyed. Underthe narrowdefinitionthereare four times morehomosexualsthantherearebisexuals. If one takes the midpointof each range,howis ever,theratioof bisexualsto homosexuals close to parity(2.25 : 2.75). 175. See id. 176. In studyingconduct,the Laumann studyagain asked a set of questionssimilarto that askedin the Wellingsstudy. Subjectswere askedaboutthe sex of theirsexualpartners over different time periods-(1) since puberty,(2) since age 18, (3) in the past five years,and (4) in the last of as year. Id. For men, the percentages those with bothmale and femalepartners opposedto the of for percentage thosewith exclusivelymalepartners thesetimeperiodswere as follows: (1) 5.8% v 0.6%since puberty; 4.0%v. 0.9%since age 18; (3) 2.1%v. 2.0%in the past five years;and (2) (4) 0.7%v. 2.0%in the pastyear. Id. Forwomen,the statisticswere as follows: (1) 3.3%v. 0.2% since puberty; 3.7%v. 0.4%since age 18; (3) 1.4%v. 0.8%in the past five years;and(4) 0.3% (2) v. 1.0%in thepastyear. Id. When asked to self-identify,2.0%of men self-identified "homosexual" 0.8% of men as and self-identified "bisexual."Id. 0.9%of womenself-identified lesbian,while 0.5%of women as as identifiedas bisexual. Id.
STANFORD WREVIEW LA Critiquesof the studies.
The five studies consideredabove all came to roughly the same conclusion about the relative incidence of bisexuality to homosexuality-namely, that the incidence of bisexuality was greaterthan or comparableto the incidence of homosexuality. While three problemswith these studies merit discussion, none ultimatelydamagesthe validity of this conclusion for my purposes. The first problem concerns the flawed methodology of some of the studies. The primarymethodologicalflaw concernedsamplingpractices. As the Laumannresearchersnoted, the Kinsey studies, the Mastersand Johnson study, and the Janusand Janusstudy all failed to engage in probabilitysampling.177 Of the studies canvassed above, only the Laumannstudy and the Anotherflaw relatedto the time variWellings study used such sampling.178 able. Again, all studies but the Laumannand Wellings studies failed to ask questions that adequatelynarrowedthe timeframein which individualsexperienced desire. This led these studies to some version of the "once a bisexual, always a bisexual"position, in which a woman who had more than incidental desire for a woman in her adulthoodbut who had subsequentlyexperienced only desire for men would still be consideredbisexual. The Laumann study and the Wellings study, however, did not suffer from either of these flaws. Both studies engaged in probability sampling, and both took the time variable into account.179And the findings of these two studies about the relative numbers of bisexuals and homosexuals were comparableto the findings of the other studies. Thus, even if we accept that the Kinsey, Masters and Johnson,and Janusand Janus studies were illegitimate, this only means that there are fewer studies to supportthe same conclusion. The second problemis one endemic to all sexuality studies, which is the problem of having to rely on subjective accounts to determinesexual orientation. Because desire and conduct were not calibrated directly by these studies, researcherswere forced to rely on individualaccounts of both.80 In this sense, distinguishing desire and conduct on the one hand from selfidentificationon the other is slightly misleading, since all of the data relied on some form of self-identification. The fact that all of the informationcol-
177. See LAUMANN AL., supra note 75, at 44, 46 (criticizingMastersand Johnsonstudy ET andJanusstudy);MICHAEL AL.,supranote 114, at 17 (criticizing ET Kinseystudies). 178. See LAUMANN AL.,supranote 75, at 46. ET 179. See notes 170, 176supra. 180. While attempts have been madeto ascertain arousal(which is takenas a proxy for desee BODIES LAW173-74(1997), the studiescanvassedheremadeno OF HYDE, sire) directly, ALAN such attempts.
accounts raisesthe concernthatindividuals lectedwas basedon subjective untruthful responses. gave the couldhave Formy purposes, most damaging in whichsubjects way wouldhavebeenforhomosexual dissembled to subjects havesaidtheywere bisexual. If these homosexual subjectshad engagedin such "defensebiof and sexuality,"there would have been underreporting homosexuality
overreportingof bisexuality in these studies.181The confidentiality assured in all of the studies,182however, diminishes the motive to dissemble in this
bisexuals haveincentives characterize also to themselves as way. Moreover, homosexual183 heterosexual,184we couldalso expectsome overreportor so and of ing of homosexuality underreportingbisexuality. The thirdandmost generalconcern thatno studywill everbe able to is tell us who is straight, is gay, andwho is bisexual. Thereareweakand who strongversionsof this concern. The weakversionis thateven if all indiThe studieswouldthenbe flawedbecausetheyreliedon some subjects with with surincomplete knowledge.Thiswill, of course,alwaysbe a problem thatthereis a truth be known,I thinkit is to vey data. Moreover, assuming reasonable assumethatthe studieswouldgive a closerapproximation to of the actualnumber bisexualsthanmore quotidian of formsof information. Thisis becausethe studies a self-reflective confidenand provided relatively tial forum whichindividuals in couldarticulate stigmatized a desire. Butthis doesnotmitigate strong the versionof theconcern, whichis thatexperiences of sexualorientation so different not to be commensurable. are as Evenasthe the sumingthis,however, studiesmightthenbe readnot to ascertain actualnumber bisexuals, rather underscore disjunction of but to a betweenacademicandpopular discourse.In otherwords,we mightask why academic aboutthe number homosexuals of trickled quicklyinto mainso knowledge
streamculture,186 while academic knowledge (producedin the same studies)
181. See notes77-79 supraandaccompanying text. 182. See JANUS JANUS, & supra note 122, at 5 (discussingconfidentialnatureof study);
viduals told the truthas they knew it, some may not have known the truth.185
at 49 (same);WELLINGSAL.,supranote 125,at 15, 20 (same). ET 183. For example,bisexualshave an incentiveto characterize themselvesas gay in orderto interact sociallywith othersexualorientation CHALLENGE, note 71, at 95groups. See RUST, supra 98 (notingthatsome lesbiansrefuseto interactwith or date openly bisexualwomen). They may also self-identifyas gay simply because this is the most readilyavailabletemplatefor same-sex desire. See text accompanying notes397-398,infra. 184. Bisexualshave an incentiveto characterize themselvesas straightto partakeof heterosexualprivilege. See Brownfain, married bisexualswho pass as supranote 83, at 173 (describing straight). 185. See, e.g., SEDGWICK, insupra note 4, at 26 (noting that Westernromancetradition, is on that cludingpsychoanalysis, predicated the assumption our sexual desiresare not transparent to ourselves). 186. See note 112supraandaccompanying text.
KINSEY AL., FEMALE, ET ET supra note 6, at 59 (same); KINSEY AL., MALE,supra note 5, at 44-45 ET & (same); LAUMANN AL., supra note 75, at 71-73 (same); MASTERS JOHNSON, supra note 121,
W STANFORD WREVIE LA
aboutthenumber bisexuals not. Thisin itselfis suggestive the eraof did of sureof the conceptual of bisexuality, even if thatcategoryhas no category stablereferent.
C. Bisexual Erasure as a Cause of Bisexual Invisibility
In thisPart,I madetwo claims. My firstclaimwas thatbisexuals inare visible. In making claim,I specified whilebisexuals affected that that are by at leastthreedifferent kindsof invisibility, of only one-the invisibility bisexualsquabisexuals-is the subject this analysis. I maintained the of that best way to isolatethe extentof this kindof invisibility to compare was the relativevisibilitiesof homosexuality bisexuality. I then adduced and both statistical sociological and evidenceto demonstrate bisexualinvisibility that is farmorepervasive its homosexual than counterpart. second claim was that this invisibilitybetokensbisexual erasure My rather bisexual than nonexistence. Thisrequired to be morepreciseabout me of and my definition bisexuality.I therefore adopted defendeda restricted desire-based definition. Applyingthis definition(wherepossible)to five that majorsexualitystudies,I foundthatthe studiesall demonstrated the incidenceof bisexuals greater is thanor comparable the incidence homoto of sexuals. thesetwo claimstogether, conclude bisexualsareinvisible I that Putting in moder Americansociety and that this invisibilityarises from erasure rather thanfromnonexistence. now turn thereasons thiserasure. I to for
II. THEEPISTEMIC CONTRACT BISEXUAL OF ERASURE
Thereareat leastthreedifferent for explanations why bisexualsarebeerasedin popular culture.WhileI describe three,I focuson only one all ing of them-the politicalexplanation. Thispoliticalexplanation positsthatbisexualsare being erasedbecausethe two most powerfulsexualorientation constituencies-self-identified and straights self-identified gays-have mutualinvestments the erasure bisexuals.187call this the epistemicconin of I tractof bisexualerasure.I thensupport existenceof suchmutualinterthe
187. This hypothesiscomports with NaomiMezey's insightfulaccountof bisexuality,which contendsthat"thosewho walk on eitherside of the boundary betweenheterosexuality homoand sexuality tirelessly repairand define" that boundaryto deny bisexuals any ontic ground. See Mezey, supra note 8, at 101. My analysis,however,extendsbeyondMezey's in positingthatthe investments thatstraights gays have in bisexualerasure and subsumemore thanthe desire to preservethe "ethics" heterosexuality homosexuality.Compare at 112-20(explaining of and id. bisexual erasure notingheterosexual homosexual and notes 258-394, by ethics),withtext accompanying in infra (explainingbisexualerasureby noting investments stabilizingorientation, preservingthe of normsof monogamy). importance sex as a distinguishing trait,andmaintaining
ests by demonstrating bothstraights gays use the samestrategies how and to erasebisexuals.
Underthis theory,the binaryopposition betweengay and straight such a is "real" andbisexuality erased is becauseit doesnot exist. binary,
sites as principles,Aristotlenoted that "'they give no reason for doing so, but are, as it were, compelled by the truthitself."'189A variety of modem thinkers have also maintainedthat binary classifications reflect "the twoness of or reality,"190 real oppositions in the world.191This is not necessarily to say that all aspects of reality are composed of opposed principles, merely that some-such as night/day, male/female, and life/death-seemingly are.192
Thereare threeexplanations why bisexuality invisiblerelativeto for is andheterosexuality. Theseexplanations-which call ontic, I homosexuality andpolitical-are generalexplanations why any intermediate for cognitive, categorythat straddlesa binaryoppositionmight be renderedinvisible. Whileall of these explanations deeplyintertwined, will arguethatthe are I is themostpowerful. politicalexplanation The onticexplanation thatwe see thingsas binaries is becausethey are In binaries.188 describing his philosophical how predecessors adopted oppo-
is fromthemale/female binary oftenseenas a simplebackformation binary, insofaras the sexualorientation individuals to binarycategorizes according the sex of theirobjectchoice.194 thereis no reasonto believe thatbeBut
cause there are only two sexes (assumingfor the sake of argumentthat this is
The ontic theory may be assailed on empirical and nonempirical grounds. The previous Partcontestedthis theoryby noting that studies have shown that the category of bisexuality is just as "real"as the category of homosexuality.193One could also make a nonempiricalcase for skepticism of the straight/gaybinarybased on its suspiciousconvenience. The straight/gay
TIONS PRIMITIVE OF THOUGHT (1979)). 234
are"anunevadable to responseof consciousness its environment"). 189. G.E.R.LLOYD, POLARITY ANALOGY & n.2 (1966) (quotingAristotle's AND 15 Physics). 190. David Maybury-Lewis, Questfor Harmony, THE The in ATTRACTIONOPPOSITES OF 1, 12 (David Maybury-Lewis Uri Almagoreds., 1989) (quotingC.R. HALLPIKE, FOUNDA& THE 191. See Maybury-Lewis, supranote 190, at 12 (citingHALLPIKE, note 190); ROBERT supra
188. See RODNEY COUNTERPOINTS (1987) (noting position that oppositions 35 NEEDHAM,
HERTZ,ThePre-Eminence the RightHand:A Studyin ReligiousPolarity, in DEATHAND THE of RIGHT HAND(1960); LLOYD, supra note 189.
192. Maybury-Lewis, supranote 190, at 12. 193. See text accompanying notes 110-186supra. 194. As I demonstrate be below, the male/female binarymay also (counterintuitively) seen as a backformation fromthe straight/gay text. binary. See notes 339-341infraandaccompanying
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will individuals themselves breakinto two discretecategories based true)195 on desirefor one sex or the other. If anything, is counterintuitive two it that sets of desired sets subobjectswouldleadto two corresponding of desiring Coffee andtea are jects (eachof whichonly desiredone set of objects).l96 two different breakdown objects,but we do not assumethatall individuals and intomutually exclusivesetsof coffeedrinkers tea drinkers. The cognitiveexplanation thatthereis a humantendencyto underis standthingsin termsof binaries.197 otherwords,even if the underlying In our as realityis not a set of binaries, limitedcognitive capacity human beings leads us to apprehend in termsof "[t]heextremesimcomplexphenomena which"link[s]the fewest termscapableof plicity of... binarystructure," a This of ansustaining relation."198 theory,whichis a hallmark structural is and act posits thropology,199 thatbinary thinking "aspontaneous necessary of the mind,suchthatit is to be foundin everytype of culture."200 Under this theory,bisexuality as becauseof a humanblinddisappears a category ness to all intermediate categories. The cognitivetheorycan also be contested empirical nonempirion and cal grounds.The empirical notesthatourcapture binaryepistecritique by mology is by no meanscomplete. The intensityof binarythinkingvaries acrossandwithincultures,201 that thereby demonstrating it is not an inescapable factof human cognition.The existenceof alternative cognitivemodels also substantiates point-think of the infinitesubdivision this model of the or the triadic modelof dialectical continuum,202 ("thesis-antithesisthinking This one. Bisynthesis").203 critiqueis supplemented a nonempirical by sexuality, after all, is not inimical to all binaries-consider the bisexual/monosexual mindhas a binary.Thus,even if we believethatthe human to binarize, does not explainwhy the straight/gay that tendency binaryprevailedoverthe bisexual/monosexual I binary. The answerto thatquestion, is contend, political.
195. As noted above,thereis a growingliterature challengingthe binarynatureof sex. See note 18 supraandaccompanying text. 196. See note 8 supra (discussinghow two formsof desirelead analytically at least four to of categories persons). 197. This view is perhaps mostprominently associated with ClaudeLevi-Strauss.See generTHE MIND217-44 (GeorgeWeidenfeld& Nicolson Ltd. LEVI-STRAUSS, SAVAGE ally CLAUDE that manifests itself acrossa diversearray societies). trans.,1966)(observing binarythinking of 198. NEEDHAM, note 188, at xi. supra supranote 190, at 19, 19.
199. See Uri Almagor, Dual Organization Reconsidered, in THEATTRACTION OPPOSITES, OF 200. NEEDHAM, supra note 188, at 1.
201. See Maybury-Lewis, supranote 190,at 12.
202. See NEEDHAM, supra note 188, at 230-31.
203. See MichaelH. Hoffheimer, L. Hegel's First Philosophyof Law, 62 TENN. REV.823, 839 (1995).
The politicalexplanation thatsomeintermediate is are categories harder to see becausethey arecaughtin the middleof a politicalstruggle. Bisexublindto intermediate alityis invisiblenotbecausewe areinnately categories, but becauseagonistic havebifurcated continuum wouldoththe we politics erwisesee.204 Underthis explanation, clashbetweenopposedforceshas the compelleda choosingof sides anda denialof intermediate ground. In the remainder this article, concern of I myselfsolely withthis politicalexplanation. In considering how politicalstrugglehas erasedbisexuals,I must first the relevantgroupsin that struggle. I believe that the relevant identify and groupsare still heterosexuals, homosexuals, bisexuals. But here a crucial shift in definition occurs. Whenthesegroupsdefinethemselves politidefine themselvesaccordingto self-identification ratherthan cally, they conductor desire. In speaking the straight, of through gay, or bisexualinvestments bisexualerasure, thusmeanthe investments self-identified in I of
straights,self-identifiedgays, and self-identifiedbisexuals.
My hypothesisis that bisexualsremaininvisible because both selfidentified and straights self-identified gays have overlapping politicalinterests in bisexualerasure.It is as if self-identified and straights self-identified that theirotherdisagreements, will agree gays haveconcluded whatever they thatbisexualsdo not exist. Put another the sexualorientation continway, uumthatrunsfromstraight bisexualto gay is a "loopified" in through one, whichstraights gays areactually and closerto eachotheron this issue than eithergroupis to bisexuals.205 Becauseof this, self-identified and straights self-identified enterintowhatI will call an epistemic contract bisexof gays ualerasure.
B. TheEpistemic ContractDefined
As I defineit, an epistemic contract a contract the sensethata social is in contract a contract.In otherwords,it is not a consciousarrangement is be204. See generallyGARBER, that supranote 11, at 80 (arguing politicalstruggleis definedby the oppositepoles whichsuppress middleground); Mezey,supranote 8, at 112-20(notingthe strict of of politicalenforcement rigidcategories sexualidentity). 205. Cf Akhil Reed Amar & Vik Amar,PresidentQuayle?,78 VA. L. REV.913, 934-35 (1992) (noting incentivesfor politicalpartiesat opposite ends of a political continuumto unite to againstthe middleof the continuum).The term"loopification" appears be DuncanKennedy's coinage. See DuncanKennedy,TheStagesof the Decline of the Public/Private Distinction,130 U. PA.L. REV.1349, 1354-57(1982) (describing in theoryof "loopification" whichthe ends of a continuumare closer to each otherthaneitheris to the middle). Otherscholarshave also noted this politicalphenomenon.See, e.g. Herbert and McClosky& Dennis Chong,Similarities Differences BetweenLeft-Wing Right-Wing and J. Radicals,15 BRIT. POL. SCI.329, 343 (1985) (notingthatthe differencesbetweenthe radicalleft and the radicalright frequently to obscure "programmatic act the characteristics areshared the two camps" that "intolerance ambiguity"). of by including
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a tween individuals, rather social normthatarisesunconsciously.206 but It contract for thatmatter, sothe mightbe fairlyaskedwhy the epistemic (or, cial contract) expressed a contract opposed a norm. My answer is as as to is thatI believe the contractual bettercaptures fact that the arthe language arisesbetweendistinctgroupswho enterit becauseof overlaprangement interests. Normsappear arise fromsociety as a to ping but not congruent seem to ariseout of the constituencies into whole, while "socialcontracts" which society is fractured."Don'task, don't tell," for example,is a contractual formulation the normof gay silencethatlays barethe interests of the constituencies) involved: will if (andimplicitly straights not inquire gays will not flaunt.207 choice,however,is ultimately The semantic-one could the of of easilyrephrase substance whatfollowsin thelanguage norms. The epistemiccontract epistemicinsofaras it relatesto the nature is of It is a social arrangement aboutwhatcan be acknowledged or knowledge. known. Thisarrangement arisesbetweengroups havedistinct overthat but interests thepromulgation repression certain in or of kindsof knowllapping edge. In this article,I focus on the latter-that is, on an epistemiccontract thatrelatesto whatcannot known. be The epistemiccontract a politicalmodelthatcouldbe profitably is apthe sexual orientation contextto otherintermediate plied beyond identity for can to categories.Multiracials, example, be readilyanalogized bisexuals in many regards.208 like defined Multiracials, bisexuals,are alternatively to universalizing definitions whichstatethatall (or almostall) inaccording dividualsare multiracial,209 according minoritizing or to definitions which statethata smallproportion thepopulation multiracial.210 of is Multiracials, like bisexuals,are usuallydefinedin the lattersense, and according an to variedset of terms.21l in the bisexualcontext,the tendency As analogously
206. See, e.g., JEAN-JACQUES THE SOCIALCONTRACT AND DISCOURSES 14 ROUSSEAU, (G.D.H. Cole trans., 1950) ("The clauses of this contract ... have perhaps never been formally set forth, [but] they are everywhere the same and everywhere tacitly admitted and recognized ....").
207. See Yoshino,supranote27, at 556. 208. RuthColker'sbook Hybridusefullyanalogizesthe problematic bipolarmodel of orientationwith those thatobtainin the contextsof race,gender,anddisability. See generallyCOLKER, HYBRID, supranote 9. 209. See JohnA. Powell, TheColorblind Multiracial Dilemma:Racial CategoriesReconsidered, 31 U.S.F. L. REV.789, 797-98 (1997) (notingthatif multiracial meansthatan individual has of races,then"virtually ancestry different everyoneis multiracial"). 210. See, e.g., Luther and WhoCares:ReconceptualJr., Wright, Who'sBlack, Who'sWhite, 48 L. izingthe UnitedStates'sDefinition RaceandRacialClassifications, VAND. REV. of 513, 55758 (1995) (notingthatbiracialpeople,definedas peoplewith parents different of races, recognized of compriseroughlythreepercent birthsin the UnitedStates). 211. Such shiftingdefinitions be seen in the UnitedStatesCensus'scategorization incan of dividualswith both white andblack ancestry. From 1790, when the Censusbegan to distinguish (based on third-party reports)betweenwhites and blacks, to 1850, no intermediate categorywas B. The recognized.See Christine Hickman, Devil and the OneDrop Rule:Racial Categories, African Americans, the U.S. Census,95 MICH. REV.1161, 1182 (1997). This is similarto modand L.
definitions racecan be tracedto anxietiesfelt of to adoptnarrow binarizing and self-identified by boththe dominant the subordinate Recently, groups.212 like to multiracials, self-identified bisexuals,have organized resist such biAnd these self-identified like selfmultiracials, narizingdefinitions.213 identified facethe dilemma whether of bisexuals, simplyto addthe intermediategroupas a thirdcategory to deployit to moredeeplyinterrogate or the of racialcategorization.214 principle At the sametime,however, political the modeladduced clearlydoes here not describe intermediate all Thecontemporary American middle categories. for example, bothan intermediate is (as class, category its namewouldsuggest) and much more visible thanany otherclass.215This shouldinspire cautionin applying modeltoo quicklyeven to groupsthatseem superfithe to be greatlyilluminated it.216 I therefore constrain cially by myself in this to thecontextof sexualorientation. analysis Theepistemic contract bisexual of erasure a particularly is one. powerful This can be seen by contrasting to the epistemiccontract homosexual it of erasure current "don't don'ttell"policy.217 ask, exemplified the military's by "Don'task,don'ttell"satisfiesbothcriteria an epistemic of contract.It is a
els of orientation fail to recognizethe bisexualpossibility. See notes 226-232, 238-242 infra that and accompanying text. From 1850 to 1910, the Censusrecognizedan intermediate categoryof
"mulattoes." See JOELWILLIAMSON, NEW PEOPLE: MISCEGENATION MULATTOES THE AND IN
UNITED 24 STATES (1995);Hickman, were supra,at 1185. Indeed,in the 1890census,enumerators asked to categorizethe intermediate span betweenblack and white accordingto a set of named fractions (octoroon, quadroon, mulatto).See WILLIAMSON, supra,at 112;Hickman, supra,at 1186. This partitioned continuum reminiscent the Kinseyscale. See note 143 supra and accompais of nying text. After the census of 1920, however,the CensusBureaumoved away from the named fractionsrule to the "onedroprule." See WILLIAMSON, at 114; Hickman, supra, supra, at 1187. This rule of hypodescent could be analogized the "oneact rule"in the orientation to context. See note 99 supraandaccompanying text. thatbothblacksandwhitessupport binarizing a "onedroprule"). 213. See Hickman, supranote 211, at 1164-65. 214. See id. at 1165("Onewing of this new multiracial movement arguesthata new 'multiracial box' should be made availablefor the growingnumberof childrenof interracial marriages. Another in wing of this movement, books andlaw reviewarticles,suggeststhatthe additionof this of of categoryshouldbe a partof a wholesaleredefinition theracialidentities mostAmericans."). 215. This discrepancy visibilitybetweenthe middleclass andotherintermediate in categories such as bisexualsandmulti-racials be due to the different incentivesfelt by theprivilegedclass may in each context. The "upper class"may feel pressure eraseitself in ways thatheterosexuals to and to learninghow to concealwealth,or at least minimizeits importance neveropenly referring it by for and ...."). I am indebtedto Bruce Ackerman raisingthe discrepancy, to ZacharyPotterfor for suggestingthis explanation it. 216. Multiracials and bisexuals, for example,can be easily distinguished a numberof on such as the factthatmulti-racial to while grounds, identityis oftenthought be geneticandheritable, bisexualidentityis often thought be behavioral not inherited. to and 217. 10 U.S.C. ? 654 (1998).
whites may not. See PETER COOKSON, & CAROLINE JR. W. HODGES PREPARING FOR PERSELL, POWER: ELITE BOARDING SCHOOLS (1985) ("Part of the socialization for power is 28 AMERICA'S 212. See F. JAMES DEFINITION (1991) (noting 137 DAVIS, WHOIS BLACK?ONE NATION'S
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the contract insofaras it articulates needs of two distinctconstituenciesand gays. As conventionally crudely,self-identified straights self-identified out told, each side gets something of the policy218-self-identified straights is securea militaryin which homosexuality repressed ("don'ttell");selfa military whichgays can ostensibly in servewithout identified gays gamer And "don't to or ("don'task").219 being subjected witchhunts harassment is insofar whatis reallyat issuein the contract as ask,don'ttell"is epistemic andself-identified a joint repression knowledge. Self-identified of straights but interests agree to theirdistinct overlapping gays have been led through in thatindividuals the militarydo not have to own what they know-that homosexuals existin theirranks. As I have argued the elsewhere, existenceof the "don'task, don'ttell" and bothcontinuity discontinuity priorsocialnorms. with 220 policy signifies It signifiescontinuity thatthe policy did not springfull-fledged in fromthe headof Congress, rather In but culture.221 other grewout of the underlying of silencethat words,"don't don'ttell"arisesoutof a pervasive ask, strategy has long affectedgays in publicculture-a strategy permits that gays to live At as equalcitizensif and only if they agreeto "pass" straight.222 the as sametime,however, "don't don'ttell"also signifiesa breakdown that of ask, culture,for if thatculturewere still extant,therewould be no underlying needto codifyit.223 In contrast "don'task, don'ttell,"bisexualerasure suchneedsno to as enforcement.This is becausebisexualerasureis still suffiexplicitlegal and natural, as homosexual cientlyrootedin socialculture thusappears just erasure natural when"don'task, don'ttell"was so rooted. What appeared the explains discrepancy? The answeris thatstraights gays arethe mostpowerfulconstituenand in bothof thesecontracts, thatgays feel differently cies and abouthomosexual erasure thanthey do aboutbisexualerasure.The epistemiccontract of "don'task, don't tell" is less a case of real interestconvergence between and The straights gaysthanit is a case of compromise. policy splitsthe dif218. See, e.g., Eskridge Frickey, & "don'task, don't tell"as a supranote40, at 92 (describing Diane H. Mazur,TheUnknown Soldier:A Critique "Gaysin the Military" Scholcompromise); of L. arship and Litigation,29 U.C. DAVIS REV.223, 227-28 (1996) (same); FranciscoValdes, the and Queers, Sissies, Dykes, and Tomboys: Deconstructing Conflationof "Sex," "Gender," " "Sexual Orientation in Euro-American andSociety,83 CAL. REV.1, 370 (1995) (same). Law L. 219. Thereis evidence that the witchhunts have persistedunderthe "don'task, don't tell"
M. SERVICEMEMBERS LEGALDEFENSE policy. See C. DIXONOSBURN& MICHELE BENECKE, CONDUCT UNBECOMING CONTINUES: THE FIRSTYEARUNDER"DON'TASK, DON'T NETWORK, TELL,DON'TPURSUE"11 (1995) (noting documentation of 15 actual or attempted witchhunts under "don't ask, don't tell").
220. See Yoshino,supranote27, at 556-57. 221. See id. at 556.
222. See id.
223. See id. at 556-57.
ferencebetweenthe self-identified interestin the removalof gays straight fromthe military the self-identified interest the abilityof gays to and in gay serve openly(although stronglyfavorsthe former).224 it This is why this contract so unstable-each side (andparticularly is the particular epistemic wantsmorethanthe statusquoprovides.225 contrast, episIn the gay side) temiccontract bisexualerasure at leastinsofar gaysandstraights of as are is, a and concerned, case of real interest convergence.Both straights gays, for differentreasons, want bisexuals to be invisible. Because these two constituengroups-which againare the most powerfulsexualorientation cies-want this invisibility, epistemic this contract muchmorestable. Inis as at deed,it is so stableas notto be perceived a contract all. C. Strategies Erasure of The existenceof a bilateral contract bisexualerasure supported of is by the factthatbothstraights gaysengagein the samestrategies bisexual and of erasure.Therearethreesuchstrategies: classerasure, individual era(1) (2) and(3) delegitimation. Thesestrategies the acceptance sucof sure, imply claimsaboutbisexualexistence-the first strategydoes cessively stronger not recognizethe categoryof "bisexuality"; second acknowledges the the but fromit; andthe thirdacceptsindividual category excludesan individual as but it. bisexuality a stableidentity stigmatizes 1. Straight deployments thestrategies. of Class erasure occurswhen straights denythe existenceof the entirebisexualcategory.Thiscanoccurexplicitly implicitly.A few decadesago, or to explicitdenialappears have been fairlycommoneven amongacademic someof whombelievedthatall self-identified bisexuals wereactutheorists, in Whilethe claimthat"there no suchthingas is ally homosexuals denial.226 remains of the common wisdomtoday,227 the bisexuality" part perhaps more formof denialis now the implicitone. Suchimplicitdenialoften prominent occursthrough use of the straight/gay the as meansof debinary a complete all As this was the strategy used scribing individuals.228 discussed above,229
224. See COLKER, HYBRID, supra note 9, at 64.
927 (4th Cir. 1996) (same). 226. See Fox, supra note 79, at 21. One theorist, for example, maintained that bisexuality was "a state that has no existence beyond the word itself," that is, "an out-and-out fraud." EDMUND HOMOSEXUALITY: DISEASE WAYOFLIFE80-89 (1956). OR BERGLER, 227. GARBER, supra note 11, at 16. 228. See notes 45-46 supra and accompanying text.
225. Gay dissatisfaction with the statusquo can be seen in the legal challengesto the policy. See, e.g., Able v. UnitedStates,155 F.3d628, 631 (2d Cir. 1998)(upholding "don'task, don't tell" againstconstitutional challenge);Philips v. Perry, 106 F.3d 1420, 1424 (9th Cir. 1997) (same); v. Richenberg Perry,97 F.3d 256, 260 (8th Cir. 1996) (same);Thomassonv. Perry,80 F.3d 915,
of is by the RomerCourt. A moresubtlestrategy implicitclass erasure the chic"in themainstream thuspreof as (and description bisexuality "bisexual sumptivelystraight) press.230As the phrasesuggests,bisexualityis here is withits or madevisibleas a phase,fashion, fad-its appearance inscribed evanescence be the preimminent Indeed, may impending disappearance.231 for condition visibility.232 exist as a class,but contests that Individual erasure recognizes bisexuals often is individual bisexual. Such challenges straights thata particular by or of is arisewhena self-identified bisexual accused beinga duplicitous nasIn is cent homosexual.233 eithercase, the bisexualself-ascription seen as a Such erasure will fromwhichan individual ultimately emerge.234 "phase" the of paradigm bisexualchic at the level of the individreplicates "phase" here recapitulates bisexualityis ual-ontogeny phylogeny. Self-described but thusseen not as a stableindividual identity a place fromwhicha stable is or monosexual identity acknowledged chosen. the occurswhenstraights acknowledge existence Finally,delegitimation but to of individual bisexuals attach stigma bisexuality.It mayseemoddto a of as characterize delegitimation a strategy bisexualinvisibility, giventhatit morevisible. But becauseit chills the expression biof makesbisexuality it sexuality portraying onlyin a negative by way,I includeit here. Common as of themas promiscuous, duplicitous, straight stereotypes bisexuals portray as as closeted,andespecially bridgesfor HIVinfectionfromthe "highrisk" to gaypopulation the"lowrisk"straight population.235
229. See notes47-52 supraandaccompanying text. 230. See, e.g., BisexualChic:AnyoneGoes,NEWSWEEK, 27, 1974, at 90, 90 (notingthat May since "his-and-her inevitable," clothes,hairstyles and role assignments bisexuality"wasprobably blurred line betweenthe sexes untiltheyoverlapped, only thingleft to swapwas sex itself'); the the TheNew Bisexuals,TIME, of see May 13, 1974, at 79 (describing fashionability bisexuality); also bisexualchic). GARBER, supranote 11, at 18-24(describing 231. See GARBER, bisexualchic turnsbisexuality into "a supranote 11, at 20 (askingwhether fashion-like platformshoes, bell-bottomed suits-that appearsand trousers,or double-breasted thendisappears, goes underground, to be 'revived'with a difference?"). only 232. An analogymay be madeto Leo Bersani'shypothesisthatAIDS has made gays more visible in partbecauseit promisestheirultimate disappearance-gayvisibilityis mademost palatable at the momentits transience underscored.LEO 21 is HOMOS (1995). While obviBERSANI, ously less sinister,the conceptof bisexualchic may operatein the same way, reassuring straight culturethatit is safe to look at bisexualsby characterizing as a passingfancy. them
233. See GARBER, supra note 11, at 145.
234. The instability bisexuals,which is framedhere in temporal termsas a "phase" of arguof ment, can also be framedin spatialterms,as in descriptions bisexualsas being "on the fence." LesbianFeminist See, e.g., Amber Ault, HegemonicDiscourse in an OppositionalCommunity: in STUDIES, Stigmatization BisexualWomen, QUEER of supranote 15, at 204, 206. 235. See Ochs,supranote 63, at 227.
2. Gay deploymentsof the strategies.
ums of gay "lists," such as The Gay Book of Days240 and The Gay/Lesbian list only gays (as theirtitles would suggest),but into Almanac,241 purport
Thatgays andlesbians wouldcolludewith straights the erasure biin of sexualsis superficially As sexualminorities who have themsurprising.236 selves been rendered invisible,one would expect that gays and lesbians wouldbe loathto assumethe role of oppressor relativeto othersexualminorities.237 gays deployall of the strategies bisexualerasure Yet of usedby This supports thesis thatbisexualinvisibility the mustbe understraights. stoodnot as the unilateral erasure bisexuals straights, the bilateral of but by erasure bisexuals bothstraights gays. of and by Self-identified deployall threestrategies bisexualerasure-class of gays individual and delegitimation.Speaking class erasure, of erasure, erasure, the Jameslaments phenomenon whicha queer,gay, or lesbian in Christopher theorist "excludes as of and bisexuality a relevant category sexualidentity," then"claims bisexual or behaviorally peopleortextswithbisexualcharacters content 'queer,''gay,' or 'lesbian."'238 as Jamesgoes on to give examples of texts thatelide the bisexualcategory unself-consciously and catescholarly whomhe believeswouldbe moreappropriately deemed gorizeindividuals bisexualas queer,gay, or lesbian.239 This practice elision, of course,is of not limitedto the academy. As Marjorie Garber notes, popular compendi-
cludemanybisexuals theirpages.242 in Even when gays formallyrecognizebisexualsas a category,they can evacuate individuals A fromthatcategory.243 classic example peremptorily
words"queer," "gay,"and"lesbian" mightbe thoughtto encompass bisexuality. Id. at 228-29. (I thinkthis is most truefor the term"queer"-bisexuals,for example,wouldseem to fit comfortably within the usage of the word "queer" denote all those who fall outsideof the regimes of the to see "normal," supra note 3.) But Jamespointsout thatbecausethese wordssignify exclusivehomosexualityfor many others,theoristswho use the termsexpansivelyshould declareandjustify suchusage. James,supranote 15, at 229.
239. See id. at 229 (criticizing DAVID BERGMAN,GAIETYTRANSFIGURED: GAY SELFREPRESENTATION AMERICAN IN LITERATURE (1991) for appropriating Herman Melville, Henry JAY & JOANNE LESBIAN TEXTSAND CONTEXTS: RADICAL REVISIONS GLASKOW, (1990) for appropriating Emily Dickinson, Virginia Woolf, H.D., and Djuna Barnes as lesbians).
240. MARTIN GREIF, THE GAY BOOK OF DAYS: AN EVOCATIVELY ILLUSTRATIVE WHO'S
236. See WEINBERG AL., supra note 113, at 8 (noting with surprise that bisexuals reported ET homosexuals to be just as negative as heterosexuals about bisexuality). 237. See id. at 117 (noting that bisexuals, when confronted with hostility from gays, may be dismayed because they view themselves victimized by the same kind of prejudice as gays). 238. James, supra note 15, at 228. To his credit, James acknowledges that some usages of the
DavidThoreau, HenryJamesas gay men);James,supranote 15, at 229-30 (criticizingKARLA and
WHOOFWHO IS, WAS, MAY HAVEBEEN,PROBABLY CERTAINLY SEEMS TO WAS, ANDALMOST HAVEBEENGAYDURING THEPAST5,000 YEARS(1982). 241. JONATHAN KATZ,THEGAY/LESBIAN NED A ALMANAC: NEWDOCUMENTARY (1983). 242. See GARBER, supra note 11, at 49-50. 243. See Ault, supra note 234, at 208.
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of such individual can of erasure be foundin the beginning lesbiantheorist Lesbian.244 Castlethereinvokesthe figure TerryCastle'sTheApparitional the of GretaGarbo,whom she views as exemplifying book's thesis-that frontof them."245 socialmyopiaseemsto extendto bisexualsas well, This even Garboas a "lesbian actress"246 afterobbecauseCastlecharacterizes withmenas well as women."247 had servingthatGarbo "occasionally affairs as concession Garbo that couldbe characterized a bisexCastle'ssubsequent reBut ual exonerates fromthe chargeof classerasure.248 her summary her her erasure-Castle implicates in individual jection of thatcharacterization because to as believes it "moremeaningful referto [Garbo] a lesbian"249 makelove to makeslove to men, she wouldrather "whileGarbosometimes womento men? And, women."250 how do we knowthatGarbo But prefers womento men, even assuming we knowthatGarbosexuallypreferred that why doesthismakehera lesbian? Like straights, by gays can oftenengagein this kindof erasure characa who as individuals self-describe bisexualas goingthrough "phase" terizing thatwill end in monosexuality.251 belief thatbisexualsareprotohomoThe one The forcewith sexualsis a particularly prevalent amonggays.252 greater in exwhich this belief is expressed the gay community may be partially Like straights, have observed "biskepticism. gays plainedby experiential sexuals"subsequently come out as gay.253 But presumably unlike selfhave gone through phase this identifiedstraights, some self-identified gays themselves.254 experience leadthemto be suspicious thosewho This of may claimbisexuality a stableidentity. The claimthatbisexualsareprotohoas mosexuals held in the gay community, may also be moreintensely perhaps
LESBIAN: 244. TERRYCASTLE,THE APPARITIONAL FEMALE AND HOMOSEXUALITY MODERNCULTURE (1993).
"[w]hen it comes to lesbians ... many people have trouble seeing what's in
245. Id. at 2. 246. Id. 247. Id. at 15. 248. See id. 249. See id. 250. Id. ET 251. See WEINBERG AL.,supra note 113, at 117. This characterization particularly is that ironicgiven thatgays themselvesareoften told by straights theirhomosexuality just a phase is MinorDisregard:TheLegal Construction on theirway to heterosexuality. TeemuRuskola, See of Do J.L. theFantasythatGayandLesbianYouth Not Exist,8 YALE & FEMINISM 280 (1996). 269, 252. See, e.g., PaulaC. Rust,SexualIdentityand BisexualIdentities:The Struggle Selffor SexualLandscape, QUEER in STUDIES, Descriptionin a Changing supranote 15, at 64, 65. how Boy George,David Geffen, and 253. See GARBER, supra note 11, at 145 (describing as before"coming out"as gay). EltonJohnall self-identified "bisexual" 254. See, e.g., RUST, CHALLENGE, note 71, at 44 ("Bisexualidentityis often considsupra ereda steppingstoneon the way to comingout as a lesbian. Slightlymorethanhalf of [thelesbians in the study] called themselvesbisexual before they came out as lesbians; in hindsight,these womenmightwell see theirearlier bisexualidentityas a transitional stage.").
because gays have more to lose than straightswhen bisexuals abandon homosexuals them.255 Politicized may be particularly proneto holdingthis
in bisexuals two ways. Again,the moreobviFinally,gays delegitimate lesbianand gay community ous way is simple denigration-"the abounds with negativeimagesof bisexualsas fence-sitters, traitors, cop-outs,closet cases,peoplewhoseprimary in life is to retain'heterosexual goal privilege,' seducerswho use and discardtheir same-sex lovers [or] power-hungry "257 Less intuitively, ... bisexualsby impersongays can also delegitimate them. Somemightcontend such "defense that increases, bisexuality" ating rather thandecreases, bisexualvisibility,as gays who say they arebisexual swell the ranksof the bisexualcategory. But the transience the quality and of the visibilitymustalso be considered-suchgays may laterrevealthemselvesto be gay, thereby fromthe credibility thosewho experiof detracting encetheirbisexuality a stableidentity. as
D. TheEpistemic Contractas a Cause of Bisexual Erasure
While the erasure the bisexualcategorycan be explained of a through the is varietyof hypotheses, politicalhypothesis the mostplausible. I therefore focus on thatexplanation, that and maintaining self-identified straights self-identified have sharedpoliticalintereststhat lead them into an gays of is epistemiccontract bisexualerasure.The existenceof such a contract demonstrated the factthatbothstraights gays use the samestrategies and by to erasebisexuals. This suggeststhatthe erasure beingdrivennotjust by is butalsoby gay interests.I now explorethenature those of interests, straight interests.
III. MONOSEXUAL INVESTMENTSIN THE EPISTEMICCONTRACT
In this Part,I hypothesize bisexuals erasedbecausetheirvisibilthat are is threatening threeinterests bothstraights gays possess: (1) to that and ity an interest the stability sexualorientation in of in (2) categories; an interest the primacyof sex as a diacritical and (3) an interestin the characteristic; of in preservation monogamy.Whiletheseinterests overlap someways,they are also distinctin others. I thusdisaggregate each interestinto threeportions: (1) theportion the interest is shared bothstraights gays; of that and by
255. See Mezey,supranote 8, at 118 ("Asan oppressed homosexual communities subculture, rely on an ethic of homosexualidentityto maintainstrengthand coherenceagainstthe constant of attacks...."). onslaught virulent
256. See WEINBERG AL., supra note 113, at 117. ET
257. Lisa Orlando, NAME: BISEXUAL PEOPLE Loving WhomWeChoose,in BI ANYOTHER SPEAK 223, 224 (Loraine OUT & Hutchins LaniKaahumanu 1991). eds.,
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(2) the portionof the interestthat is distinctively straight;and (3) the portion of the interestthat is distinctivelygay. It will be useful to enter two qualifications before embarking on this viewanalysis. First, I am mindfulthat separatingthe partiesand attributing to them in the way that I have risks essentializing the opinions that points membersof each categoryhave aboutthe others. After some thought,I have overriddenthis weighty objection. I do so because I believe that certain opinions are more likely to be held by one group than another,although it will not be held by all members or only members of that group.258Thus, when I speak of the "investmentof self-identifiedgays in bisexual erasure,"I do not mean that all gays or only gays have this investment. Rather,I indicate the investmentin bisexual erasurethat is more likely to be held by selfidentifiedgays thanby any othergroup. Second, I wish to stress the importance of distinguishing between stereotypesof bisexuality and the realities underlyingthose stereotypes. The following analysis will sometimes identify a viewpoint as a stereotype but nonetheless give it weight in the analysis. That weight, however, arises only from the fact that the investments of self-identified straights and selfidentified gays will often be driven by perceptionsratherthan by realities. Indeed, I will argue that the stereotypesthat bisexuals are (1) politically unreliable, (2) completely sex-blind, or (3) intrinsicallypromiscuous, are extremely powerful in shapingstraightand gay attitudesaboutbisexuals. Such of argumentation, course, should not be taken as accession to the validity of those stereotypes. A. Stabilizationof Sexual Orientation Bisexuality destabilizes sexual orientationby making it logically impossible to prove that one has a monosexual identity. Both straightsand gays have shared investments in stabilizing their identities, as members of all groups are likely to drawsome comfortfrom rigid social orderings. Straights and gay, however, also have distinctiveinvestmentsin stabilizing orientation categories. For straights,it is an investmentin the retentionof heterosexual privilege; for gays, it is an investment in the retention of the immutability defense and one in the ability to form an effective political movement. 1. Shared investment. Bisexuality calls into question the sexual orientationof the self. To see this, contrastthe ease of proving one is straightor gay in a world in which
258. Compare, e.g., COLKER, HYBRID,supra note 9, at 21-24 (notingthat many gays have with,e.g., id. at 24 (notingthatsome gays were moretolerant negativeopinionsaboutbisexuality), of Colker'sfluidsexualitythanshe herselfwas).
to bisexualsare not acknowledged exist with the difficultyof provingthe samethingin a worldin whichbisexuals recognized.In a worldthatdeare nies bisexualexistence,cross-sexdesireand same-sexdesireare mutually This exclusive.259 meansthatthepresence cross-sexdesireipso factoneof the presenceof same-sexdesire,andvice versa. Thus,demonstrating gates to cross-sexdesireis sufficient provethatone is heterosexual not homoand sexual. Thatwe live in this world-and underthis analytic regime-is demonstrated how sexualorientation provedhere. As I will show in some is by in contexthave adduced exdetail,allegedharassers the sexualharassment desireas dispositive theirheterosexuality.260 of actlysuchclaimsof cross-sex individuals homosexual a have Similarly, legalinstitutions assigning identity thatany individual who has manifested same-sexdesire(andnot presumed the is deployed queen-for-a-day exception) homosexual.261 In a worldthatrecognizes a heterosexual mustshow bisexuals, would-be thathe is not gay and(2) thathe is not bisexual. (WhileI takehetero(1) as it be is sexuality my example, should clearthatthis analysis equallyapplicable to homosexuality.)The firsthe can do by showingcross-sexdesire. The secondhe can only do by provingthe absenceof same-sexdesire. But this is impossible do, as it is impossible provea negative. Thus,after to to the bisexualpossibilityis acknowledged, is not only harder, logically it but to proveone's heterosexuality. Evidenceof cross-sexdesireis impossible, to that same-sex nonresponsive the charge one harbors desire,forno amount of loving attention a man gives to his wife can provethathe does not that lust in his heartfor men. In orderto safeguard regimein which"straighta ness"(or "gayness") be proved,all monosexuals can mustrepressbisexual existence. Both straights and gays have a sharedinvestment stabilizingtheir in as members all groupstakecomfortin knowingtheirplace in of identities, the socialorder. Thisinterest for may seemless intuitive gays, who occupy a disfavored in thatorder.Butas MaryMcIntosh noted,rigidcatehas place be comforting to thosestigmatized even withinit, because"it gorization may to forecloseon the possibilityof drifting back into normality and appears
259. This analysisassumes,withoutendorsing, erasure asexualityas an analyticpossithe of bility. See note 8 supra. 260. See notes 520-534infraandaccompanying text. See, e.g., N.H. REV. STAT. ANN.? 170B:2 (1992) (defininganyonewho engagesin same-sexoral or anal sex as a homosexual); Woodward v. United States, 871 F.2d 1068, 1069 n.l (Fed. Cir. 1989) (quotingSecretary the Navy of Instruction 1900.9A)(describing Navy's pre-1993policy defininganyonewith same-sexdesire as a homosexual). 261. See COLKER, HYBRID, supra note 9, at 45-56 (discussingthe legal definitionof homoand sexualityin adoption military contexts).
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thusremovesthe elementof anxiouschoice."262 RobinOchsprovides anecdotalsupport thishypothesis: for
WhenI have askedgay men to explaintheirfearsaboutbisexualityand bisexual people, one themehas repeatedly arisen. As one gay man put it, "Coming out as gay was the hardestandmost painfulthingI have ever done in my life. Now I'm finally at a place whereI have a solid identity,a community, place a to call home. Bisexualsmakeme uncomfortable becausetheirexistenceraises for me the possibilitythat I might be bisexualmyself. And coming to terms with my identity was so hard for me the first time around,I cringe at the thoughtof having to go throughsuch a long, hard,painfulprocess a second
Thus gays, along with straights, sharean interestin identitystabilization, since suchstabilization rootsthemin a community relievesthemof the and workof identity anxious interrogation. 2. Straight investment. As members the privileged of orientation have a distincclass, straights tive interestin maintaining theiridentity. Thatidentitymustbe assuredat boththeindividual at thecollectivelevels. and At the individual threatens heterosexuals themanner in level,bisexuality described it for to above,by making impossible themdefinitively provetheir The in theirorientations the indiat heterosexuality. investment stabilizing vidual level leads self-identified to take differentstancestoward straights homosexualsand bisexuals. Ironically,the investmentin heterosexual can to the Prior to privilege leadstraights increase visibilityof homosexuals. the introduction the conceptof homosexuality, suchincentiveexisted, of no as the conceptof heterosexuality so universal to be itself invisible.264 was as Sincethe introduction the conceptof homosexuality,265 of however,heterohas on to as sexuality'sstability been predicated opposition homosexuality,
262. Mary McIntosh,TheHomosexualRole, in FORMSOF DESIRE:SEXUALORIENTATION AND SOCIAL THE CONSTRUCTIONIST CONTROVERSY (Edward Steined., 1990). 25, 28 263. Ochs,supranote 63, at 232. America, where "the existence of lesbians and gay men was inconceivable," the term remained since it was literallythe only way of life");GARBER, undefined, "'[h]eterosexuality' supra note 11, at 40 (assertingthat"[b]efore people began to speak of 'homosexuals'as a kind of person,a social species, therewas no need for a termlike 'heterosexual"').The fact thatthe term
264. See JOHND'EMILIO,SEXUALPOLITICS, SEXUALCOMMUNITIES: MAKINGOF A THE HOMOSEXUAL MINORITY THEUNITEDSTATES1940-70, at 10 (1983) (noting that in colonial IN
heterosexuality is a conceptual back formation from the term homosexuality is reflected linguistically in the fact that the word "heterosexual" post-dated the word "homosexual." See GARBER, ONE HUNDRED YEARSOF HOMOSEXUALITY n.1 supra note 11, at 40; DAVIDM. HALPERIN, 155 (1989). 265. See, e.g., 1 FOUCAULT, supra note 95, at 42-43 (dating creation of concept of the homosexual to the late nineteenth century).
"the denotationof any term is always dependenton what is exteriorto it."266
in Thatopposition turnis onlypossibleif homosexuals visibleenoughto are be distinguished to beaway. Thus,even attempts exorcisehomosexuality
yond the pale of discourse do so only by naming it.267It is in this sense that
D.A. Millerclaimsthatheterosexuals need" homosexuals.268 "unabashedly Whilestraights need gays,they do not needbisexuals. To the contrary, the very systemin whichstraights need homosexuals undergirded biis by sexualnonexistence. Thisis becausestraights needgaysto exorcisethepossibilityof same-sexdesirefromthemselves.But this exorcismcan only occurin a worldwherebisexuals notexist. do Two linkedobjections mightbe raised. The first is thatmost heterosexualsactuallydo not spendmuchtime worrying aboutwhetherthey are in in straight.Like whiteness the racecontext,269 heterosexuality the orientation context is sufficientlyprivilegedas to achieve a kind of transparthat cannotbe repressing biency.270It mightthusbe contended straights since they do not feel sexualityout of any need to provetheirstraightness this need. This contention, however,has grown harderto make, as the degreater visibilityof sexualminorities (indicatively gays) has somewhat naturalized More to the point, the fact that straights can heterosexuality. leave theirsexualorientations undertheorized shoulditself be seen as a precious entitlement.271 Even straights who do not feel as if they mustprove their sexual orientation may have an interestin not havingto thinkabout theirsexualorientation. Andbisexuality, morethanhomosexuality, requires themto do precisely this. A related is we matter, assessorientation objection that,as a practical by rather thanby analytic A womanmightnot be able gestaltintuitions proof. to "prove" her husband straight, she may believe she can comthat is but inferthis fromanynumber smallgestures makestowards of he her fortably andotherwomenandmen. Andif no analytic it proofis required, arguably does not matter no suchproofexists. But this is debatable-beingtold that thatthereis no logical way to proveone is straight could plausiblyaffect
Fussed., 1991). 267. "Don'task, don't tell"is a good instanceof this dynamicas it makeshomosexuality unspeakable namingit forthe firsttimein the UnitedStatesCode. See 10 U.S.C. ? 654 (1994). by 268. D.A. Miller,AnalRape,in INSIDE/OUT: LESBIAN GAY THEORIES, THEORIES, note supra 266, at 135. 269. See Barbara Flagg, "WasBlind,But Now I See ": White J. Race Consciousness the and most strikingcharacteristic whites'consciousness whitenessis thatmost of the time we don't of of have any. I call this the transparency phenomenon: the tendencyof whites not to think about or that whiteness,or aboutnorms,behaviors, experiences, perspectives arewhite-specific."Id.
270. See, e.g., JANIS AND ORIENTATION 31-34 (1996). BOHAN,PSYCHOLOGY SEXUAL Requirement of Discriminatory Intent, 91 MICH.L. REV. 953, 957 (1993). As Flagg notes: "The 266. Diana Fuss, Inside/Out, in INSIDE/OUT: LESBIAN GAY THEORIES 1 (Diana THEORIES, 1,
271. See EVE KOSOFSKY SEDGWICK, Privilege of Unknowing:Diderot's The Nun, in TENDENCIES 23 (1993) (discussing "privilege unknowing"). this of 23,
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the orientation even one's informal Indeed, popular ascriptions. press,when with AIDS, oftensoughtto affectorientation ascriptions linkingbisexuality in exactlythis way, suggesting womencouldnot know for certainthat that theirhusbands were straight.272 closerto the rigorous Moreover, something in contexts.As I will show,273 this formof proofmaybe required specialized have includesthe legal realm,a contextin whichorientation determinations someof theirmostserious consequences. at the of Bisexuality challenges integrity heterosexuality the collectiveas wish to stabilizethe level. Individual well as at the individual straights binarybecausethey wish to locatethemselvesas belongingto straight/gay in the heterosexual group. Whatmembership thatgroupmeans,however,is level. As Naomi at thanat the individual determined the collectiverather to preserve "heterosexual a has argued, collectivelyattempt Mezey straights has thatis, an ethicthatheterosexuality the monopolyon sexualvirethic," with tue.274 orderfor the heterosexual In ethicto present itself as congruent as with ethicmustbe presented congruent virtue,however,the homosexual ethicis thusdependent a binary on vice.275 survival the heterosexual The of worldview of "right wrong,of healthandsickness,of heterosexual and and
the rhetoric homophobia arising of this of as out Mezeydescribes martial She notesthatthe realenemyto the heterosexdependence.277 thenastutely ual ethicis not thenamedenemyof homosexuality, the unnamed but enemy of bisexuality.278 deconstructing straight/gay the reBy binary,bisexuality be with veals thatit cannot isomorphic the virtue/vice binary. It thusthreatens the heterosexual ethic at the collectivelevel as well as threatening heterosexual at theindividual level. identity
3. Gay investment.
have distinctiveinvestments stabilizing in Gays, as well as straights, theirsexualorientation. theirinterest suchstabilization less inin is Again, I earliernotedthat gays, like straights, tuitive. have a genericinterestin theirplace"in the socialorder, even if thatplaceis a stigsimply"knowing matizedone. But gays also haveinterests identitystabilization arise in that
272. See, e.g., Richard Knox,BisexualsPut Women Risk,StudiesSay, BOSTON A. at GLOBE, June20, 1990, at 57 (describing man difficultyof knowingwhethera "straight" is actuallybisexual); Jon Nordheimer, AIDS Specterfor Women: The Bisexual Man, N.Y. TIMES, Apr. 3, 1987, at 1 (similar).
273. 274. 275. 276.
See notes503-534 infraandaccompanying text. Mezey,supranote 8, at 112-21. See id. at 116. Id. at 115.
277. See id. 278. See id.
not in spite of, but because of, their stigmatized status. Insofar as these investments are related to stigma, they will be held by gays but not by straights. These interestsmay also be broken into individual an'dcollective interests. The individualgay interestin identity stabilizationarises out of a desire to retain the immutabilitydefense. Gays often defend their homosexuality by characterizingit as an immutabletrait.279This defense can sometimes mitigate the stigma associated with homosexuality, both in the eyes of others280 and in the eyes of gays themselves.281Immutabilityhas exonerative force because of the widely held belief that it is abhorrentto penalize individuals for mattersbeyond their control.282 Thatbelief has found widespread in Americananti-discrimination expression jurisprudence.283 Bisexuals threatenthe immutabilitydefense. The reasoning here is not immediatelyobvious. Formally,bisexuality and immutabilityare not necessarily inconsistent. There could, after all, be four immutable categoriesimmutable heterosexuality,immutablehomosexuality, immutable bisexuality, and immutableasexuality.284Indeed, there might be an infinite number of categories on (and off) the sex-of-object choice spectrum,all of which are immutable. But as a practical matter,the introductionof bisexuals complicates the immutabilitydefense through a two-step process. First, once the bisexual possibility is introduced,it becomes impossible for the self-identified gay to prove he is gay, in precisely the same way it becomes impossible for the selfidentified straightto prove he is straight.285 Even assuming discrete immutable categories,it will be unclearwhetherthe individualmanifestingsame-sex desire who says he is immutablygay is immutablygay, or whether he is in truthimmutablybisexual. Second, to the extent that an individual is immu279. See JanetE. Halley,SexualOrientation the Politics of Biology:A Critique theArand of 46 L. gumentfrom 503, 507 (1994) [hereinafter Immutability, STAN. REV. Halley,Biology]. 280. See id. at 567 (notingpotency of immutability to argument persuadenon-gaysof the humanityof gays); see also id. at 518 n.62 (citing studiesshowingthatpeople who thinkhomoare of sexualityis immutable morelikely to disapprove discrimination againsthomosexuals). 281. See id. at 535 (describing researcher's elationat discoveringan allegedbiologicalbasis for homosexuality, becausethe researcher "'alwaysfelt that[he] was borngay"'). had betweenmoralresponsibility freewill). and says describing relationship 283. See, e.g., Frontiero Richardson, U.S. 677, 686 (1973) (plurality v. 411 opinion)(quoting Weberv. AetnaCas. & Sur.Co., 406 U.S. 164, 175 (1972)) (notingthatlegallyburdening immutable characteristics violates "thebasic conceptof our system that legal burdensshouldbear some to The Supreme Courthas called this relianceon immutarelationship individual responsibility"). dictum. See City of Clebure v. Clebure Living Ctr.,473 U.S. bility into questionin subsequent 432, 442-43 n.10 (1985). 284. Cf. WEINBERG AL.,supranote 113, at 4 (asking"[i]f homosexuality heterosexuET and does ality aregeneticallypredetermined, thatmeanwe needto look for a bisexualgene as well?"). 285. See notes259-273supraandaccompanying text.
282. See, e.g., ESSAYS MORAL IN RESPONSIBILITY M. Fischer ed., 1986) (collecting es(John
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him. not will tablybisexual,his immutability generally workto exonerate offers absolutionby implying a lack of This is because immutability to bisexualis perceived havea choice-he But choice.286 evenan immutable of matrixby selectinga partner the can chooseto fit into the heterosexual thus arise in in sex.287The gay investment bisexualerasure may opposite defense. the partbecauseit problematizes immutability as on couldbe challenged normative Such an investment grounds, imdefense has mutability thevices of its virtues.Thevirtueof theimmutability In of the is thatit forecloses question validity.288 so doing,however,it conthe debatethatcouldestablish identity'svalidstantlydefersthe normative plicit concessionof the identity'sinvalidity-for if an identitywere truly Just perceivedto be valid,manywouldnot ask if it was immutable.290 as moots the questionof validity,so too does validitymoot the immutability of question immutability. some theoristsare privileging As the gay rightsmovement progresses, that over the validityargument the immutability contending being argument, it This of is validregardless whether is chosen.291 mayin partbe fueled gay
286. See Halley,Biology,supranote 279, at 518-19 (notingthatimmutability operatesas an exoneration becauseit eliminates choice). strategy 287. See id. at 528 (notingthatthe immutability theory"doesnot explainwhy bisexuals-by hypothesiscapable of satisfactorysexual encounterswith membersof the so-called 'opposite' or sex-should not be encouraged forcedto do so"). To be sure,one could say thathomosexuals to also have this choice. But a social distinctionappears be drawnbetweenthe bisexual and the homosexualbased on the perceivedsacrificeeach mustmake to choose to live as a heterosexual. is The immutable homosexual, not giving up all sexualpleasurein bisexual,unlikethe immutable but normsof conduct, merelygivingup sexualpleasurewith one of two to conforming heterosexual text. sexes. See notes 90-91 supraandaccompanying of A similarkindof logic canbe seen in judicialtreatments bilingualindividuals.In Garciav. a Gloor,618 F.2d 264 (5th Cir. 1980), for example,the FifthCircuitconsidered Title VII employclaim broughtby a bilingualMexican-American ment discrimination employee to challengehis on formeremployer'sprohibition speakingSpanishon thejob. The courtnotedthat"[t]oa person who speaks only one tongue ... languagemight well be an immutablecharacteristic skin like color." Id. at 270. It then went on to note, however,that "thelanguagea personwho is multiof a time added). lingualelectsto speakat a particular is by definition matter choice." Id. (emphasis on Thus,the courtreasonedthatwhile peoplewho do not possess a favoredtraitmay be protected traitwill neverbe so of grounds immutability, peoplewho possessboth a favoredanda disfavored becausetheymayalwayschooseto manifestonly the favoredtrait. protected,
BY 288. See VERAWHISMAN, 11-13 (1996). QUEER CHOICE
ity.289Indeed, avid use of the immutabilityargumentmay be read as an im-
289. See id. at 6 ("Ifwe argueagainstonly the 'possibleto change' assertion,we leave unthat or challengedthe moreinsidiousassumption it is desirable necessaryto do so. And to the extent thathomosexuality acceptable is only if it is not chosen it remainsstigmatized,illegitimate, deviant."). 290. Cf BERSANI, supra note 232, at 57 ("[T]hevery questionof 'how we got that way' would in manyquarters be askedif it were not assumedthatwe endedup the wrongway, the not purposebehindthe questionhas generallybeen to learnhow we mightbest go back and rightthe wrong.").
291. See WHISMAN, supra note 288, at 30-32.
defenseis not available gayswho do not for by the factthatthe immutability theirorientation immutable.292 conventionally lesbias told, (As experience ans aremorelikelythangay men to fall into this groupbecauseof lesbianTo ism's nexusto feminism.)293 the extentthatthe immutability it strategy becomesless important, bisexual threatens will becomemorepalatvisibility able. Indeed, thosewishingto hasten movefromimmutability the arguments bisexualvisibility. Thisis becausebito validityarguments mightembrace or will to sexuals,in contrast homosexuals heterosexuals, alwaysbe seen as a choice.294 such,they literallyembodythe fact thatindividuals As having same-sex sexuality. mightchoose(andchooseto acknowledge) As a positivematter, however,the day whengays (or at least gay men) renouncethe immutability defense appearsdistant. Even commentary criticalof the use of immutability the courtsrecognizesthatimin deeply remains potentargument thepoliticalforum.295 immutaa in The mutability is for to bility argument oftenthe only effectivestrategy gays "seeking persuadetheirparents, and that coworkers, neighbors they can love someoneof the same sex and remainfully human."296 Continued relianceon the gay lead to continued relianceon bisexualeraimmutability argument may gay sure. Theothergay interest stabilizing identity a collectiveinterest in is in gay effectivepoliticalmobilization.Even(or perhaps who beespecially)gays lieve that all individuals somewhatbisexualmay feel that bisexuals are shouldnonetheless themselves with gays in orderto combathomophoally bia. This is in partbecausebisexualsare seen as flightrisks-individuals who couldat any time abandon gay community lead straight the to lives.297 And even if they do not actually bisexualsmaybe seen as less comleave, mittedto fighting heterosexual becauseof theirabilityto partake of privilege
292. See Halley,Biology,supranote 279, at 520. 293. See RUST, CHALLENGE, note 71, at 163 (notingthatsome feministssee a connecsupra tion between lesbianismand feminism,relying on the assumption that "lesbianism a possible is choice for all women"). 294. Whether is actuallythe case is opento question. In the Weinberg this study,a groupof bisexualswereasked: "Isit possiblethatsomedayyou couldbehaveeitherexclusivelyhomosexual or exclusivelyheterosexual?" WEINBERG AL., supra note 113, at 33. Approximately ET eighteen percentof bisexualssaid "no." Id. at app.A at 317 tbl. 3.2. This does not necessarily,but might, reflectthe factthatsome bisexualsdo not experience themselves beingableto restrict as themselves to one sex, such thatthey do not experience themselvesas havinga "choice"betweensexes. Anotherway of puttingthis is thatsome bisexualsmay actuallyfit the stereotypical view of bisexuals whichholdsthatbisexualsfeel intrinsically in with only one sex. incomplete sexualrelations 295. See Halley,Biology,supra note 279, at 567-68 (criticizingrelianceon immutability in legal context,butnot in extra-legal politicalcontext). 296. Id. at 567. 297. See Ochs,supra note 63, at 228-29 (notingthat"[m]anylesbiansand gay men believe thatbisexualshave less commitment 'the community,' thatwhatevera lesbianor gay man to and will benemighthave to offer to their[sic] bisexualpartner not be enoughto outweighthe external fits offeredto thosewho arein heterosexual relationships").
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it. Moreover, even if bisexualsappear be deeplycommitted fighting to to can be seen as inherently insofaras solidarity heterosexism, traitorous, they not a requires just supporting groupbut also fighting(as opposedto conenemies.298 with)the group's sorting This interestin bisexualerasure thus an interestin ensuring is thatthe line of battleis clearlydrawn. The conflictbetweensexualminorities and those who oppressthemis framed isomorphic as with the conflictbetween gays and straights,thus making the battle line the virgule in the becausegays view themselves a beleaas binary.299 "straight/gay" Precisely theirtolerance thosewho mightsap theirpoliticalsolifor gueredminority, that darity blurring battlelineis limited.300 by Thisinterest for thanfor gay men. This maybe morepowerful lesbians as may seem counterintuitive, I earlierimpliedthatbecauselesbiansmay in haveless invested theimmutability defensethangay men,bisexuals might not be as threatening themalongtheaxisof immutability.301 it maybe to But are as exactlybecauselesbians morelikelyto view theirorientation fluidthat bisexuals to maybe moredeeplythreatening lesbianson the axis of political mobilization.If biology is believednot to providea substrate lesbian for then the fear that any given lesbianmight become bisexualand identity, the abandon lesbian loomslarger.302 thereby community Likethe investment immutability, investment politicalstability in in this can be challenged. Destabilization actuallyhas fourpro-gaydeployments, whichI speculatively order herefromleastto mostradical. First,the bisexual possibilitysuggeststhatthe straight is or category not as monolithic secureas it may originally seem. To the extentthatbisexualsare waverers, than bisexuals who arelivingas straights. gays shouldcourt,rather suppress, Thisis especially if we accepttheresultsof the sexuality true studiesconsidered above,303 which indicatethat the additionof bisexualscould significantlyswell theranksof homosexuals.Second,gays coulddeploybisexualto in ity's tendencyto destabilize heterosexuality enlist straights the fight
298. See id. at 230 (describing lesbianhostilityto bisexuals,andnotingthatpartof the objection was that some lesbians"'believedthat only lesbianshad an antipatriarchal sexuality,which meantthatonly lesbianswereworkingagainstsexism ... [and]conflated sexualpracticeandpolitical actionandbelievedthatwhatone did in bed, andwith whom,haddirectconsequences supfor a portingor dismantling patriarchal powerstructure"' (citation omitted)). 299. See Mezey,supranote 8, at 115 (notingthat"in a discourseof militanthetero-andhothe mosexuality divisionsareclear;one knowswho the enemyis andhenceone knowsoneself'). 300. See id. at 118 (notingthat"[a]san oppressed homosexualcommunities subculture, rely on an ethic of homosexualidentityto maintainstrengthand coherenceagainstthe constantonslaughtof virulent[homophobic] attacks"). 301. See note 293 supraandaccompanying text. 302. Anotherway in which lesbiansmay be morethreatened bisexualson the axis of poby litical mobilization concernsthe interestlesbianshave in combatting patriarchy. I considerthis interest below. See notes345-352infraandaccompanying text. 303. See notes 110-176supraandaccompanying text.
conduct.Straights be less likelyto the of may against regulation homoerotic if suchminorities theyareworried aboutdrifting the stigmatized into burden bisexualscouldbe seen as performing mea themselves.304 Third, category office. If bisexualsarebeing erasedin orderto prediatingor conciliatory serve the binarylogic of agonisticconflict,it seems intuitivethatbisexual the of Finally,bisexuvisibilitymightchallenge paradigm conflictitself.305 als couldbe deployednotjust as a thirdpartyalongsidegays and straights, that but as a category permits cateany gays to challenge sexualorientation in akinto this insightis neatlycaptured the bisexual gorization.Something fenceis sittingon me."306 retort beingcalleda fencesitter-namely, to "your In this formulation, is not fencesitting, the fence, thatis the problem; it but andit is not bisexuality, the line establishing that but binarycategorization, needsto be erased. The last possibility meritsfurther discussion. A utopian versionof the woulduse bisexuality a meansof retiring sexualorientation as all argument classifications.307 argument theprevailing The that orientation classifications shouldbe retired one shouldbe a familiar to gays, as it is an argument they evenbeforethe patterned of bisexuality.308 the beginAt espoused visibility the of ning of the 1970s,gay liberationists "prophesied disappearance both 'thehomosexual' 'theheterosexual' and the of through abolition constraining 309 to ulticategories." One theoryof why this movement retirecategories didnot reachfruition thatit was difficultto createa politicsout of is mately it.310Activistswere facedwiththe perennial problem-how does one resist a categorization withoutorganizing around oppressed the And category?311
304. Cf. JOHN HARTELY, DEMOCRACY DISTRUST (1980) (describing age as a cateAND 160
is that understand they will gory on which discrimination less likely to occurbecauseindividuals "drift" the stigmatized into categoryof old age). 305. See Highleyman, bisexualsobjectin principle supranote 12, at 90 (notingthat"[m]any to the gay andlesbianmovement's'us' versus'them'paradigm"). 306. Rebecca Kaplan, YourFence Is Sittingon Me: The Hazards of Binary Thinking, in
BISEXUAL POLITICS, supra note 7, at 267, 267.
307. See Mezey,supranote 8, at 99. 308. See AmandaUdis-Kessler,Identity/Politics: History of the Bisexual Movement,in A BISEXUAL POLITICS, supra note 7, at 17, 19 (noting that "[t]he word 'bisexual' existed before Stonewall,andtherewere people who lived as bisexuals,even famousones at times"but that"the focus on bisexualityas a core aspectof one's identitydoes not seem to have arisenin any patterned way untilafterStonewall"). 309. Steven Epstein,Gay Politics, EthnicIdentity:TheLimitsof Social Constructionism, in
FORMSOF DESIRE:SEXUALORIENTATION THESOCIAL AND CONSTRUCTIONIST CONTROVERSY
activismwas a de239, 252 (EdwardStein ed., 1990). Accordingto Epstein,this post-Stonewall fromhomosexualpolitics in the precedingdecades,which stressedthe goal of integration parture withoutchallenging straight/gay the dichotomy.See id. 310. See id. at 253-54. 311. See id. at 254 ("Thisis a familiar dilemma,andone thatis by no meanspeculiarto the around gay movement:How do you protesta sociallyimposedcategorization, exceptby organizing the category?Justas blackscannotfightthe arbitrariness racialclassification of withoutorganizing
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how can one organize around category the without reifyingthe very categorization seeksto retire? one It is worthrevisiting these questions, bisexuality as providesan ingenious answerto them. This is becausebisexuality may be "notjust another sexualorientation [also]a sexualitythatundoessexualorientation a but as Oneparadox answered another-thegeneral is that category."312 by paradox one can only challengea classification classes thatreify it is anthrough sweredby the specificparadox bisexuality a class thatchallenges that is the that no very classification createsit. Preciselybecausebisexuality sooner assertsitselfas a category thanit questions ownboundaries, its is bisexuality thepost-Stonewall activist's dream.313 arguably Again,however,these normative objections may not sway many gays who hold this particular in investment bisexualerasure. Gays face significantpoliticaloppression under prevailing the paradigm.Given straight/gay of shouldbe devotedto this,manygays feel thatthe energies the movement thanagainst, paradigm.This is particularly that true within,rather arguing since gays haveusedthatparadigm createan effectivepoliticsof opposito tion.
B. BisexualityDestabilizes the Primacy of Sex
Thesecondinvestment and is straights gayshavein bisexualerasure that bisexualsare seen to destabilize primacyof sex as a diacritical the axis. andgays have a shared investment the primacyof sex because in Straights theirorientation identities on it. Straights havea peculiar investment in rely the primacyof sex because sex identitiesare currently determined a by matrix.Andgayshavea peculiar investment becausehomosexuality straight is sometimes as whichbothreflectsand deployed a meansof sex separatism, reinforces primacy sex. the of
as blacks,so gays could not advocatethe overthrow the sexualorderwithoutmakingtheirgayof ness the verybasisof theirclaims."). 312. GARBER as supranote 11, at 65; see also Mezey,supranote 8, at 99 ("Bisexuality a critique of the hetero/homo paradigm actuallyfacilitates[a] moreradicalanalysis,which concludes, ironically,thatbisexualityworksno betterthanthe othertwo categoriesin accurately describing concretesexual behavior,andthata new conceptualization sexual identities,such as one based of on acts, is needed."). 313. Oris it? One couldcontendthatthe conundrum not so easily solved, for bisexuality's is which preventsit fromreifyingthe categorization, arguably also makesit a politically instability, ineffective category. Underthis view, bisexualityoffers the worst ratherthan the best of both worlds,being too inchoateto be an effective class and too rigid trulyto contestthe reificationof orientation categories.
1. Shared investment.
trait. Onedisquiof the Bisexuality disrupts primacy sex as a diacritical that of thebisexualis thatsherefusesto require an objectof deetingaspect sirebelongto a particular In the stereotypical sex. view, this is becausethe bisexual is sex-blind,314 refusingto distinguishat all between men and
the women in her erotic life.315Under this characterization, world the bisex-
in ual sees is like Foucault's "world which grinsh[a]ngaboutwithoutthe
cat."316 In this world, sexual pleasurebecomes a (literally) floating signifier,
a sexlesssmileleft by a fading body. of view appears misdescribe majority bisexuals. the The stereotypical to claimto be sex-blind the sensethattheyfall in love witha in Somebisexuals
person ratherthan with a sex.317But most appearto desire men as men and
of to desirewomenas women. Thusin the Weinberg study,overfour-fifths thebisexuals interviewed between distinguished beingsexualwitha manand differbeing sexualwith a woman,citingbehavioral, bodily,andemotional ences.318 Thatfindingcomports common with are sense-sex distinctions so in contemporary American pervasive societythatit is hardto believe that bisexuals couldevadesuchdistinctions.
314. By "sex-blind," I mean that a person does not take sex into account in choosing erotic partners. Following Neil Gotanda's analysis of colorblindness, I distinguish between literal and figurative forms of sex-blindness. See Neil Gotaida, A Critique of "Our Constitution Is ColorBlind," 44 STAN. L. REV. 1, 18-19 (1991). The literal form posits that the person does not even register other people's sexes. Literal sex-blindness is like medical color-blindness-just as the person who has red-green colorblindness cannot tell the difference between the two colors, so too does the person who has literal sex-blindness find it impossible to tell the difference between the sexes. Cf id. The figurative form, in contrast, notes that the person registers other people's sexes, but attaches no consequence to that perception. Figurative sex-blindness is like juridical colorblindness. Just as those who espouse the colorblindness ideal say that they recognize differences in colors but attach no salience to those differences, so too do those espousing figurative sex-blindness say that they recognize differences between sexes but attach no salience to those differences. In my review of the literature on bisexuality, I have not come across any instances of individuals who claim that they are literally sex-blind. By "sex-blindness" I therefore mean figurative sexblindness. 315. This is the view that underlies the fears surrounding the "bisexual harassment exemption" discussed below. See notes 464-474 infra and accompanying text. 316. Michel Foucault, Introduction to HERCULINE BARBIN, BEING THE RECENTLY DISCOVERED MEMOIRS A NINETEENTH-CENTURY OF FRENCH HERMAPHRODITE xiii (Michel vii, Foucault ed., Richard McDougall trans., 1980). Foucault describes this world as the world seen by the hermaphrodite,but it seems more aptly the (stereotypical) view of the bisexual's world. 317. See COLKER, HYBRID, supra note 9, at 27 (describing bisexuals who state "'that when & they fell in love it was with a person rather than a gender"') (quoting BETTYFAIRCHILD NANCY HAYWARD,NOW THAT YOU KNOW: WHAT EVERYPARENTSHOULDKNOW ABOUT HOMOSEXUALITY (1989)); Paula C. Rust, Who Are We and WhereDo We Go from Here? Conceptual75 TO BISEXUALITY FEMINISM & 281,298 (Elizabeth Reba Weise izing Bisexuality, in CLOSER HOME: ed., 1992) (describing attitudes of lesbian women toward bisexuality ranging from "bisexuals are indiscriminate" to "bisexuals fall in love with a person, not a gender"). 318. See WEINBERG AL., supra note 113, at 50-53. ET
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bisexualsmay compriseonly a small Despitethe fact that "sex-blind" of all bisexuals, stillpresents deepthreat sex norms. a to minority bisexuality Even if bisexualsare not completelysex-blind,they still do not presumpone tivelyeliminate sex fromtheirfieldsof eroticpossibility.Forall bisexusex-blind not,sex matters or less.319 als, whether to of to Whyis a challenge thepriority sex so threatening monosexuals? Thereappear be two answers-challenging primacy sex destabilizes to the of monosexual a identityand underscores tensionbetweenpublicand private attitudes toward sex.
the of not idenChallenging primacy sex destabilizes only monosexual Butler American tity,buthuman identity.Judith positsthatin contemporary we untilwe havea sex, that"themoment in culture, arenotviewedas human which an infantbecomeshumanized when the question,'is it a boy or is girl?' is answered."320 Thus,"[t]hose bodilyfigureswho do not fit into eithergenderfall outsidethe human, the indeed,constitute domainof the dehumanized the abjectagainstwhichthe humanitself is constituted."321 and SuzanneKessler's study of the intersexed corroborates Butler's claim.322 Kesslerdescribes themedical how the existingbinary at profession preserves all coststhrough "reconstruction" surgical shortlyafterthe birthof the interthe sexual323-literally doctoring datato fit the binarysex hypothesis.Even in situations wherethe intersexed infantis healthy,324 surgery castas a the is "neonatal medicalemergency,"325 the psychosexual supporting claimthatthe infant'sstatusas a human beingis endangered the merefactof intersexuby not alityitself. In sucha culture, to possessa sex is notto be human.
319. Marjorie Garber recounts storyof a woman,"Elizabeth," fell in love with somethe who one on the interet who was purported be a man. See GARBER, to supranote 11, at 33-34. When revealedherselfto be a woman,Elizabeth overcameher initialrethey finallymet andthe "man" sistanceover the courseof the hour'sconversation thenmadelove to her. See id. at 34. Garber and notes thatElizabethdoes not self-identityas a bisexual,id., and she certainlywould not seem to bisexual. Yet in herrefusalto permitsex of objectchoice to be "theoverqualifyas a "sex-blind" the id., ridingconsideration," she perhaps represents anxietyof thebisexualpossibility. 320. BUTLER, for supranote 24, at 111. Linguistic support this claimcan be foundin the fact that the infantwho is not a "he"or a "she"must be an "it,"a pronounreservedfor nonhuman subjects. 321. Id.
322. See generally KESSLER, supra note 18.
323. See id. at 12-32. 324. Kesslerdistinguishes betweenthreekindsof genitalsurgery--() thatwhich is lifesaving; (2) thatwhich improvesthe qualityof life; and(3) thatwhich is aesthetic. See id. at 34. By I the "healthy" meana childwho does not require firsttwo kindsof surgery. 325. Id.
whichstereotypically not pass does But if this is true,does bisexuality, humanidentity?Muchmorewould the desirethrough lens of sex, threaten in need to be saidbeforeanswering the affirmative.Evenwithoutthatdislike cussion,however,it can be notedthatbisexuality, intersexuality, sugthatthe question"Is it a boy or a girl?"is the wrongquestionto be gests that our it asking. And if this is the question determines humanity, should the that of to comeas no surprise the capacity bisexuals undermine sex cateis deeplythreatening individuals all categories.326 to of gory sex But while the bisexual'sabilityto undermine categoriesis generiin American for all individuals contemporary society, it is cally troubling for distinctively troubling monosexuals.Thisis becausemonosexarguably identitiesaccordingto that uals, unlikebisexuals,define their orientation to distinction-thatis, by theirattraction menbutnot women,or vice versa. not An individual's orientation be affected onlyby challenging fixity can the the of his orientation, also by challenging fixity of the sex of his object but choice. Withouta clear and privilegeddistinctionbetween "man"and thereis no clearandprivileged distinction between"straight" and "woman," In the previousanalysis,we saw thatbisexuality directlychallenged "gay." sexualorientation them.327 Herewe see thatbicategories destabilizing by sexualorientation destabilizing sex. sexuality indirectly challenges by
b. The tension betweenpublic andprivate treatmentsof sex.
Thereis a secondreasonwhymonosexuals disturbed mightbe peculiarly of by the abilityof bisexualsto call the primacy sex into question. Thisrelatesto a tensionin how sex is treated the eroticandnonerotic in realms. It is not quitetrue,as I saidbefore,thatit is alwaysthreatening suggestthat to the "Isit a boy or a girl?"question the wrongquestion. In the nonerotic is is as antidisrealm,this question widelymarked immoral.Thus,American crimination prohibits stateandmanyemployers law the fromattaching conto the answer thisquestion.328 someextentthesenormscarry to To sequence overintothenondesirous realm-those who discriminate thebasis on private of sex in theirprivateaffiliations increasingly are to moral,if not subjected But legal, censure.329 whenwe enterthe eroticrealm,the normsshift dra326. Thatbisexualsmay also be threatened bisexuality's sex by capacityto undermine categories may be seen in the insistenceof manybisexuals,as notedabove,thatthey are attracted men to as men andwomenas women. See note 318 supraandaccompanying text. 327. See notes 259-313supraandaccompanying text. S. Kay & Martha West eds., 4th ed. 1996). 329. See, e.g., HarvardWoman Sues Male 'Flies,' S.F. CHRON., Mar. 3, 1988, at B6 (describinglegal challengeto all-malestudentclubs);AndreaEstes & ErinN. O'Leary,Judge Orders Clubto Put Women Par withMen,BOSTON on Dec. courtorder HERALD, 2, 1998, at 4 (describing of at mandatingsex integration tournaments Massachusetts golf club); PatriciaWen, Single-Sex
328. See generally CASESAND MATERIALS SEX-BASEDDISCRIMINATION ON (Herma Hill
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in suchthatsex distinctions not only perare matically the otherdirection, on discriminate thebasisof sex but mitted, expected.Monosexuals routinely in choosingtheir eroticpartners; them as indeed,thatpracticeconstitutes monosexuals. tensionin the treatment sex in the nondeThereis thusa fundamental of sirousanddesirous realms. If I discriminate betweenmale andfemaleemI to for ployeesin the workplace, can expectin manyquarters be criticized betweenmale and femalepartpoliticalinsensitivity.But if I discriminate I nersin my eroticattachments,am muchless likelyto encounter suchcriticism. Indeed,to the extentthatI discriminate favorof a same-sexerotic in it to for partner, is my criticwho canexpect(in somequarters) be criticized politicalinsensitivity. This tensionrequires not justification, only becauseof its facialinconsistency,but also becauseof its deepconsequentiality. Specifically, acceptanceof discrimination thedesirous in realmmayrender impossible it private to fullyrejectdiscrimination the publicrealm. In the law, this problem in is best seen in the judicialrefusalto mandate that legal distinctions perhaps between the sexes be completelyabolished. Thus, while the Supreme Court'sequalprotection race-based to classifications jurisprudence subjects strictscrutiny,330 subjectssex-basedclassifications it to intermediate only Even as the actualnatureof intermediate scrutiny.331 scrutinyhas tacked closerto strictscrutiny,332 Supreme the Court retained rhetorical has the distinctionbetweenrace-based sex-based and classifications.333 have thus We not beenableto pushjurisprudential normsagainstsex discrimination far as as we havepushed norms racediscrimination. against While commentators have justified this distinctionin a numberof the justification most pertinent this analysisrelatesto desire. to ways,334 the associated with sex by GeorgeRutherglen explains lowertierof scrutiny are "classifications valuedfortheirown sakewithinan notingthatsex-based
Health Clubs Get Protection,BOSTON GLOBE,Feb. 7, 1998, at B1 (notingNOW's oppositionto bill legalizingsingle-sexhealthfacilities). 330. See, e.g., Bush v. Vera,517 U.S. 952, 952 (1996); Adarand Inc. Constructors, v. Pena, 515 U.S. 200, 201 (1995). 331. See, e.g., UnitedStatesv. Virginia,518 U.S. 515, 515 (1996); J.E.B.v. Alabamaex rel. T.B., 511 U.S. 127, 127 (1994). 332. See Cass R. Sunstein,TheSupremeCourt,1995 Term-Foreword:LeavingThingsUnL. "didnot merelyrestate decided,110 HARV. REV. 75 (1996) (notingthatthe Courtin Virginia 4, the intermediate test scrutiny butpressedit closerto strictscrutiny"). 333. Cf Virginia, U.S. 515. 518 334. For example,they have noted thatwomen,unlikeblacks, are not a minority,see JOHN HARTELY, DEMOCRACY DISTRUST (1980); thatwomen,unlikeblacks,have historically AND 164 been integrated with the dominantgroup,see id.; and that women, unlike blacks, exhibit "real" that themfromthe groupto which they have been historically subphysicaldifferences distinguish see Sex 132 ordinated, Sylvia A. Law, Rethinking and the Constitution, U. PA. L. REV.955, 1007 (1984).
whereas racialclassifiarea life, important of human namelysexualconduct, life."335 Sex cationsareneitherso widelynor so openlyvaluedin everyday but as fromraceinsofar we not onlypermit, expect,individuals to is different one sex. toward havedesiresvectored only in The extentto whichthe monosexual presumption the desirousrealm realmshouldnot to blocksan advance a sex-blind regimein thenondesirous afterall, are often viewed as Our be underestimated. eroticrelationships, and our emotional atsimultaneously constituting reflecting most important structure thesecrucial tachments.If we routinely discrimirelationships by that natingon the basisof sex, it shouldcomeas no surprise we (andourjua dicialinstitutions) experience failureof nervewhenaskedto categorically distinctions. abolishall sex-based betweenpublicsex-blindness Monosexuals coulddefendthe distinction of I andprivate in sex-consciousness a variety ways.336 do not seekto evaluate theserationales here,as my pointis simplythatbisexualsmay occasion that anxietybecausetheyholdoutthe conceptual possibility theserationales arenot dispositive.Bisexuality thatsex neednot be as important in implies ourdesirous lives as we havemadeit.337 Bisexualsandasexuals thusthe are who at least have the capacitynot to discriminate the on only individuals basisof sex in anyaspectof theirlives.338 such,theyhavethepotential As to evade the public/private tensionwith regardto sex in which monosexuals findthemselves. 2. Straight investment. havea distinctive investment bisexualerasure in to Straights relating the of sex. This is becausesex is currently understood a hetprimacy through erosexual that havea monopoly sex norms. Andbion matrix; is, straights unlikehomosexuality, thepotential disrupt monopoly. has to that sexuality,
335. GeorgeRutherglen, SexualEqualityin Fringe-Benefit Plans, 65 VA. L. REV.199, 209 (1979). 336. First,theycouldpointto the factthatthey experience theirorientations be immutable, to such thatthe desireis beyondtheircontrol. Second,they couldrely on autonomyarguments relatin ing to theirrightto discriminate an immenselyintimateand consequential sphereof theirlife. Third,they could contendthattheirprivatenormsof sex-discrimination on "realdifferences" rely betweenmen andwomen,which are recognizedas permissible even by public anti-discrimination norms. Fourth,they could contendthat differentiation between the sexes for desirouspurposes shouldnot be considered "discrimination" becauseit does not have subordinating effects. Thereare doubtlessmanyotherpossiblerationales. 337. See COLKER, HYBRID the supra note 9, at 30 (notingthat "embracing categoryof bisexualitywouldhelp societyrecognizethatone can find an organizing principleotherthanbiological sex to definesexualattractiveness"). 338. I thankIanAyresforthispoint.
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To see this, begin with the increasingly accepted view that we all perform our sex to some degree.339Sex, no less than any other performance,is always shaped by its audience. When we performour sexes, for whom are we performing? The answer is at least partiallythat we are performingfor those who might potentiallydesire us, and that the performanceis an attempt to convert that potentiality into an actuality. The performanceof sex will thus always be affected by prevailing codes of desire. When (as now) heterosexuality is the prevailing code of desire, women will be encouragedto performtheir sex in a way that is attractiveto men (and vice versa, although the symmetryis not complete). To be a "woman"is to be attractiveto men, to be a "man"is to be attractiveto women.340 It is thereforean errorto accede to the conventionalwisdom that sex is a stable, prediscursivesubstratefrom which heterosexualityis a simple back formation.341 While heterosexualityis a back formationfrom sex, it is also true that sex is a back formationfrom heterosexuality. Current paradoxically norms of sex and currentnorms of heterosexualityare thus implicated in a feedbackloop in which each shoresup the other. Homosexuality does not present much of a challenge to prevailing sex norms in this regard. Even if men begin to look with desire at other men, this may not significantly change sex performance,as that desirous look is read as the familiar look of the heterosexual woman now displaced in a man's body. This is the modem vestige of the older trope of the homosexual as "invert"-a "womantrappedinside a man's body" or vice versa.342The logic of the invert is the means throughwhich homosexuality is read back into a straightparadigm.343
339. See, e.g., BUTLER, thansex supranote 24, at 24-25. WhileButlerrefersto genderrather in this quotation, elsewherehypothesizes she thatthereis no real distinction between genderand sex. See id. at 7 (describing distinction "nodistinction all"). the as at 340. See DUNCAN SEXY ETC. KENNEDY, DRESSING, 161 (1993) ("So long as I am a straight man,a partof my being is hostageto women: I wantthemto exist as women,not men, as bearers of thepossibilityof my own sexualexcitement."). 341. See note 194supraandaccompanying text. 342. See Tim Edwards, and BeyondSex and Gender: Masculinity, Homosexuality Social TheMASCULINITIES & SOCIAL THEORY 112 (JeffHear & DavidMorganeds., 1990) ory, in MEN, 110, of as soul in a (notingcharacterization malehomosexuals thosewho sufferfromhavinga "feminine malebody"). 343. As Bersaninotes, sometimesthe inflictionof the malegaze on a male performer read is back into the heterosexual matrixby invertingthe sex of the performer ratherthanthatof the observer: TheNew York Times on instructor chosenot to fly who reported April3, 1993,thata radar with an openlygay sailor,KeithMeinhold, feared Meinhold's that in "presence the cockpit woulddistract from responsibilities." instructor him his The his "compared 'shock'at learning therewas a gay sailorin his midstto a woman 'a discovering manin the ladies'restroom."' Notethecurious in transsexualism ourradar instructor's us hopemomentary) scatological (let identification his cockpit of witha ladies'restroom. thisstrange In the scenario, potential gay attacker becomesthe male intruder femaleprivacy,and the "original" on man is straight
The bisexual,on the otherhand,deeplydestabilizes normsbecause sex her desirouslook cannotbe as easily collapsedinto a straightparadigm. How does a manmakea bisexualdesirehim? Not by adopting aspectsthat have traditionally been described "masculine" the bisexualis also poas as to tentiallyattracted the "feminine."The logic of inversionis insufficient here to protecttraditional normsfrombisexuality sex becausebisexuality does not simplyinvertcross-sexdesire,butrather it supplements with samesex desire. Bisexuality, current on then,contests heterosexuality's monopoly sex performance a waythathomosexuality in cannot.
3. Gay investment.
haveinvestments preserving primacy in the of Gays,as well as straights, sex as a diacritical trait. Unlikestraights, can deploytheirhomosexugays that ality to engagein a sex separatism is not only social, but also erotic. Bisexualsthreaten sex separatism creating bridgeto the opposite this a by
All gays canengagein a moretotalformof sex separatism is possithan ble for noncelibate heterosexuals.Gayshave at leastthe capacityto live a full erotic(as well as a socialanda political) in a community life fromwhich the othersex is completely excluded.Thus,at leastalongthe axis of separato tism, lesbiansandgay men arejust as, if not more,likely thanstraights theimportance sex as a diacritical of trait.344 privilege The best exampleof gay sex separatism whenwomen'spoliticalsoliis is hypothesized be connected theirsame-sexerotic to to darity(feminism) attachment in is (lesbianism).As articulated the old slogan"Feminism the is the of theory,lesbianism the practice,"345 view is thatthe authenticity a
another man'simagined sexualattention, theoffended, into metamorphosed, through harassed, orevenviolated woman. BERSANI, supranote 232, at 16-17(citations omitted). 344. Thisinsightmaybe somewhat is counterintuitive, given thathomosexuality often seen as the of is undermining importance sex. It is of coursetruethathomosexuality often seen as subdeem gay men to be less masculineand vertingsex expectations, given thatmanystereotypically lesbiansto be less femininethantheirstraight It can counterparts. is also truethathomosexuality be seen as diminishing certainformsof hierarchy betweenthe sexes to the extent,for example,that lesbianismcan be seen as empowering feminism. But diminishing sex-basedhierarchy diminand ishing sex-basedconsciousnessare two differentthings, and I would contendthathomosexuality can do the former in spiteof, butbecauseof, the factthatit does not do the latter. not 345. The slogan "Feminism the theory,lesbianismis the practice," usuallyattributed is is to Ti-GraceAtkinson. See, e.g., Nancy Chater& Lilith Finkler,"Traversing WideTerritories": A DESIRES: WRITING BISEXUAL Journeyfrom Lesbianismto Bisexuality,in PLURAL WOMEN'S REALITIES 15 (LeelaAcharya, DionneFalconer, SharonLewis, LeannaMcLen14, NancyChater, nan & SusanNosov eds., 1995) (attribution quotation Atkinson Finkler). As Nancy Chater of to by notes,however,the originalquotewas actually"Feminism a theory,lesbianismis a practice." is Id. at 36 n.1; see also GARBER, supranote 11, at 44 (quotingAtkinsoncorrectlyas saying"Feminism is a theory,lesbianismis a practice"). As Chaternotes, the alteration the slogan is "subtlebut in
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politics is determinedby how it plays out in erotic practice. While this is an extreme position, one way of readingit is to note that, as AdrienneRich has famously argued, this distinction between political and erotic same-sex attachments may itself falsely binarize a continuum of practices in which women identify with otherwomen.346 Like lesbians, gay men can also create communitiesthat are totally sex segregated. Indeed, given the dominanceof men in almost every sphere of public life (perhapsmost pertinentlyemployment)it is likely to be easier for a gay man than for a lesbian to live a life that entirely excludes those of the other sex. But while gay men have more opportunityto engage in sex separatism, they may have less motive to do so. For if "Masculinismis the theory, gay maleness is the practice,"does not trip off the tongue, it must be in Lesbians may draw part because men as a group are not disempowered.347 connections between their disempowered status as women and synergistic their disempoweredstatus as homosexuals. In contrast,the gay man's privileged status as a man can be experiencedas conflicting with his stigmatized status as a homosexual. Patriarchymakes the social meaning of lesbian separatismdifferentfrom the social meaning of gay male separatism. This difference in turnmay make bisexuals more threateningto lesbians than they are to gay men. If homosexuality permits a dream of a social world without the other sex, bisexuality disrupts that dream by constantly holding out the possibility of cross-sex attachment. But the awakeningmay be ruder for lesbians than for gay men, precisely because cross-sex attachment may signify captureby patriarchy. One way of understanding is to consider so-called lesbian pornograthis that is, the "[p]ortrayals allegedly lesbian 'scenes"' that "area staple of phy, of heterosexual porography."348 It might be asked why the straightmale consumers of this pornographyfind the scene so titillating, as it could actually signify an erotic world in which there is no need for men.349 Many of the possible answers cluster aroundthe power of the male gaze to override
crucial,"Chater, betweenfemisupra at 36 n.1, arguably shadingan ostensiblyneutraldistinction nism andlesbianism a hierarchical into formulation the favoring latter. 346. See Adrienne and Rich, Compulsory OF Heterosexuality LesbianExistence,in POWERS son eds., 1983). Thisbreakdown the distinction of betweenthe politicalandthe personalmay paras tially explainwhy lesbiansare less likely thangay men to deploy immutability an etiological for it chosenor not, lesbiansmay feel as if explanation theirhomosexuality.Whether is in actuality their same-sex attachments more constructed are than essential,given that such attachments are politicalas well as erotic.
347. See SEDGWICK, supra note 4, at 36 (describing this position). & LIBERTIES WOMEN, VIOLENCE, CIVIL 145, 155 (Catherine Itzin ed., 1992). DESIRE: THEPOLITICS SEXUALITY OF 177-205 (Ann Snitow, Christine Stansell & Sharon Thomp-
348. JohnStoltenberg, and in Pornography, Homophobia Male Supremacy, PORNOGRAPHY:
349. See Rich, supranote 346, at 187 (describing male fearthat"womencould be indifthe ferentto themaltogether, men couldbe allowedsexual and emotional-thereforeeconomicthat accessto womenonly on women'sterms").
to that men.350 for exIf, any intimation the womenareunavailable straight believesthatthe womenarebothavailable him, to ample,the malespectator enlivensratherthan excludes: He sees two odalisques their numerosity to rather thanone couple. The sameinability imaginea womanwho does not desiremen may leadto the belief thatthe absenceof men in the sexual of scene signifiesthathe himselfis thatman,thatthe invisibility men in the of mise en scene is the invisibility subject position. Yet again,the spectator may believe thatthe scene depictswomenout of controlof theirsexuality, attention such thata man's entrywouldlead themto directgreater toward is that him. Undergirding of the aboveinterpretationsthe assumption the all male gaze is so powerful thereis no femalebody thatis not ultimately that for arrayed maledelectation.Andthis in turnmeansthatthereis no woman who doesnot careaboutthe malegaze;thereis no womanwho does not desiremen. One might thereforethink that the male gaze reads all women into of women. But the denomination the scene as "lesbian" straight pornograas well as the scene's surfacedepictionof a woman's desire for a phy, this. I thinkwe mustentertain possibilthe woman,wouldseemto undercut ity thatpartof the appealof these scenes lies in the male gaze's abilityto override desirethatwomenhave for each other. In otherwords,even the whenwomenareacknowledged desireeachother,thatdesireis nonetheto less only thereto be trumped the desirethatmen have for them. In the by contextof "lesbian" the pornography, malegazemaybe an opticwheresexism andheterosexism powerfully are fused-men sexuallyconquer women at the same time as heterosexuality Underthis conquershomosexuality. over both reading,the chargeof the scene derivesfromthe man'striumph feminismand lesbianism, sexual conquestis politicalconquest. For that be as on chargeto exist,then,thewomencannot straight, the chargedepends an overridden same-sex desire. But thismeansthatthe "lesbians" the pornography beingreadnot in are as straight but as "bisexuals."351 in women, Straights this contextmay thus be using preciselythe set of analyticmoves described earlier,in whichbithe abilityof monosexuals provethatthey are monoto sexualitydestroys sexual.352 matter No how ardently womenexpresstheirdesirefor each the areunableto exorcisethe possibility raisedby the male gaze, in other,they whichthatdesirenot only coexistswith, but is superseded a desirefor by,
tribute malepower:the male is not in the room, as to scribing"lesbian" pornography "theultimate yet the womenarethereforhis pleasure"). 351. This mightbe seen as an anomalous males makebisexualsmore, way in which straight ratherthanless, visible. Whatis curious,however,is that they do not make bisexualsvisible as such-recall thatthe pornography still viewed as "lesbian" is ratherthanas "bisexpornography, ual"pornography. 352. See notes 259-263supraandaccompanying text.
350. See ANDREADWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN47 (1989) (de-
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lesbiansas the trope men. Bisexualityin this formulation may threaten whichwomen'sattachments womenare imaginatively to through destroyed andfalsified. Indeed, I amright,the destruction falsification what if and are in partstimulate maledesire. The analysismay be generalized beyondpornography-bisexuals may be threatening lesbiansas a cultural to for thephantasmatic subversion trope of theirsame-sex desireby straight men. Patriarchy, especially male here the thusmakebisexualsmorethreatening this axis to lesbians gaze, may along thanto gaymen.
C. BisexualityDestabilizes Norms of Monogamy
Evenin its nomenclature, is as bisexuality framed excess. To be "bi"is to be doubled,353 be "mono" to be one.354 defamiliarize to is To these forwe to of originary bisexualmulations, mightreturn theFreudian conception which framesbisexuality an prelapsarian as wholenessfromwhich we ity, fall away.355 Ratherthandenominating monosexual whole and the the as bisexualas surfeit, mightdenominate bisexualas wholeandthe monwe the osexualas fragment.Viewedin this light,the flawmightbe seen not as the bisexual'sexcess,butrather monosexual's the lack.356 Thatwe do not view thingsin this lightcanbe seennot only in the way we namebisexuals, also in the way thatwe otherwise but them. Biportray sexualdesireis seen not as a completion, rather an excess. This is but as mostclearlyseenin the stereotype bisexuals promiscuous.357 of as perhaps It shouldtherefore surprise the final investment not that and straights have in bisexualerasurestems fromtheirperception bisexuality that gays threatens norms of monogamy. The investment that norm sharedby in
353. See 2 OED,supranote 9, at 165. 354. See 9 id. at 1008-09. 355. See note 92 supraandaccompanying text. 356. A similarparadigm shift was madein TheSymposium with regardto sex. See PLATO, SYMPOSIUM (Benjamin 41-45 Jowetttrans.,HaydenPelliciarev., 1996). ThereAristophanes recountsthe storyof how eachmanandwomanwas originallyconjoinedat the back to another man or woman. As punishment arrogance, for eachmanandwomanwas cut away fromhis or her other half. This is why men andwomennow go aboutsearching othermen andwomen,in the hopes for thatby findingtheirlost otherhalves, they can regaintheirprelapsarian wholeness. Again, this challengesour view that individualmen and women are whole units and that paired men and women are doubledunits. It insteadencourages to view the couple as the unit and individual us men and women as incompletehalves of that unit. Thatview, of course,has more credencein Americanculture(thinkof descriptions couples as "unions"or descriptions of of contemporary a spousesas "better halves")thanthe view thatbisexualsrepresent desiredwholeness. 357. See WEINBERG AL., supra note 113, at 69. The self-conceptionof some bisexual ET the D.C. Bi-Women's(and groups demonstrates strengthsof this stereotype. The Washington, oriented into monogamous bis or Men's)Network,for example,was formedfor "moretraditionally A duogamous relationships only." See PoliticalActivism: BriefHistory,in BI ANYOTHER NAME, supranote 257, at 359, 361.
and gays is the sexualjealousy both groupsexperiencein nonstraights relationships.The distinc(or nonmonogamous) monogamous potentially that investment relatesto the perception bisexualnonmonogtively straight to of leadsto thetransmission HIVfromthe gay community the straight amy relatesto the desireof some The distinctively investment community. gay of gaysto evadetheportrayal gaysas promiscuous.
1. Shared investment.
can For both straights gays, bisexuality raisedeep issues of sexual and or its thatmayultimately require denigration disavowal. I takethe jealousy involvedwith a bisexualwomanas my man who is romantically straight it paradigm example. However, shouldbe clearthatthe anxietiesdiscussed or arenot specificto his orientation sex. man At themostbasiclevel, the straight is threatened his femalepartby not becausehe mustcompete onlywithothermen,but also ner'sbisexuality with otherwomen. Onemightsay he is madeto understand WoodyAllen's famousquipthatbisexuality doublesone's chancesof gettinga date on a from purelyquantitaSaturday night358 the otherside. Thisfear,understood it seems illogical. As a preliminary matter, is basedon bad mathtively, womandoes womanto being a "bisexual" shiftingfrombeing a "straight" men not necessarily "double" dating your pool,as manystraight andlesbians will not dateavowedbisexuals.359 it Moreimportantly, seemsunlikelythata can by significant partof thejealousyengendered bisexuality be explained a the anxietyof entering largerdatingpool. Does it makea difference by thantwo-and-a-half withfive billionpeoplerather whether is competing one billionpeople? Orevenfiftyrather twenty-five than people? Thesequestions of is rather suggestthatthethreat bisexuality qualitative thanquantitative. is not thatone'sbisexual It canleaveyou fortwice partner as manypeople,but thatshe can leave you for a different kindof person. The anxietyis aroused by rivalswho mightalso offerwhatyou possess, not butby rivalswhomightofferwhatyou do notpossess. Whilethis qualitative concern moreintelligible, is not beyondcritiis it cism. Thisis becausethe qualitative concern basedin parton the assumpis tion thatif one desiresboth sexes, one must consummate desirewith that bothsexes. As PaulaRusthasnoted,"thebisexual'sabilityto formrelationof as shipswith members both sexes is interpreted a need for relationships
358. See JosephP. Kahn,TheNew Bookon Bisexuality, BOSTON GLOBE, Sept. 6, 1995, at 75 doublesyourchancesfor a dateon Saturday ("Tobe bisexual,WoodyAllenonce said,immediately night."). 359. See, e.g., RUST, of CHALLENGE, note 71, at 101 (notingreluctance lesbiansto assupra sociatewithbisexuals).
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of Rust withmembers bothsexes."360 thencriticizes logic, askingreadthis that ersto "imagine concluding a personwho findsbothblueandbrowneyes two attractive wouldrequire lovers,one witheacheye color,insteadof concludingthatthispersonwouldbe happywitheithera blue-eyedor a browneyed lover."361
Evenif one retires assumption thosewho desirebothsexes must the that consummate theirdesiresfor both sexes, the qualitative concernstill surmanmaybe certain his bisexualpartof vives. This is becausethe straight ner's fidelity,butmay still be concerned becauseof herstatedbisexualthat all of ity, he is not satisfying of her desires. Herarticulation her desirefor womenis readas an articulation his eroticinadequacy. of But even this refineddefenseseems inadequate.As one commentator has noted, it would be incredibly hubristic believe that any individual to couldever satisfyall of another individual's eroticor othdesires,whether of healthynote of realismaboutthe incompleteness all humanrelation.363 one couldarguethatto be foundinadequate becauseof one's sex Moreover, would be less threatening than to be found inadequate some other on as in one sex.365 ground,364 all of us areinadequate possessing only A finalresponse be thatthereis a difference betweeninarticulate might andarticulate To return the earlier to bisexuality. example,one mightsee a difference betweena womanwho mentions herbrown-eyed to husband that she is also particularly attracted men with blue eyes and a womanwho to this The betweensayingthatyou keepsreiterating to herhusband. difference areattracted others to onceandsayingit repeatedly the difference is between realismand sadism; firstcomports the withnormsof courteous monogamy while the seconddoes not. Evenif the womancontinues be attracted to to men withblue eyes, she is not only supposed refrain to fromactingon that but fromrepeatedly it. oneself attraction, alsoto refrain articulating Carrying as a bisexualmustbe readagainstthisnormof courtesy. A manmightacto becausehis partner cept that it is irrational feel particularly inadequate
BISEXUALITY: THE PSYCHOLOGY POLITICS AN INVISIBLE AND OF MINORITY 127, 128 (Beth A.
erwise.362 In emphasizing this limitation, bisexuality could thus sound a
360. Paula C. Rust, Monogamyand Polyamory:RelationshipIssues for Bisexuals, in
Firestein 1996). ed., 361. Id. One responseto this is thatan individual's is so much moreimportant sex thanan individual'seye color thatthe analogyis inapt. As discussedabove, however,bisexualsmay not hold the view thatan individual's is moreimportant sex thaneye color. See notes 314necessarily 319 supraandaccompanying text. 362. See GARBER, interview with BrianFord). supranote 11, at 451-52 (quoting 363. Id. at 451. 364. See WEINBERGAL.,supranote 113, at 108 (notingthatbisexualswho datedbisexuals ET were morejealous of "outside" of partners theirown sex because "a person of the same sex as themselvescould meet similarneeds andthusreplacethem."); also GARBER, see supra note 11, at 449-50 (discussing study). 365. I assumeherethatintersexuals possessone, rather also thantwo, sexes.
stated himoncethatshe was attracted women. He might,however,find to to it rational feel inadequate his partner reminding of this. to if him kept Therubhereis thatthe manis interpreting partner's his herself carrying as a bisexualto be sucha reminder.But this is not necessarily case, at the leastin the sensethathis partner herselfas a bisexualforreasons mightcarry otherthanto occasion jealousy. As ever, thereare normative rebuttals each of the potential to reasons rebuttals why bisexualsmightoccasion jealousy. As ever,these normative do notmeanthatthejealousies diminish.To theextentthattheyendure, will will actas an incentive bisexual for erasure. they 2. Straight investment. Underthemonogamy the investment biin heading, distinctively straight sexualerasure relatesto AIDS. Bisexuality beenprominently has portrayed as a bridgethattransmits fromthe gay community the so-calledgenHIV to eralpopulation.366 themindsof manyheterosexual "In bisexualAmericans, has come to be stronglyidentifiedwith images of married, ity dishonest, closetedmen sneakingout on theirunsuspecting AIDS wives, contracting unsafesex with othermen, theninfectingtheirinnocent wives and through children."367 the late 1980s and early 90s, the mainstream In press ran a of storiesconcerning AIDS threat the bisexualsposed to heterosexuflurry
I earlier showedthatbisexuals wereviewedas an avenuethrough which was calledinto question.369 Bisexualsarethusperceived to heterosexuality be a bridgealongwhichtwo undesirable traits-same-sexdesireandHIVto pass froma gay minority a straight majority. In the sexualorientation is as and context,the majority characterized straight HIV-negative, whilethe is characterized gay andHIV-positive.The bisexualchallenges as minority bothcharacterizations-the epistemologically, secondepidemiologifirst the of into cally. His mereexistencecallstheheterosexuality the majority question. Andhis sexualpractices its HIV-negative call statusintoquestion. Alongsidethis convergence, however,is an important divergence. We saw thatcharacterizing bisexualas a carrier same-sexdesireplunged the of the bisexualinto obscurity.In contrast, characterization the bisexual the of as a carrier HIVloftedthebisexual temporary of into visibility. Thediscrep366. See Ochs,supranote 63, at 227. 367. Id. 368. See, e.g., David Gelman,A PerilousDoubleLoveLife:In the AIDS Era, BisexualsAre Pariahs, NEWSWEEK, 13, 1987, at 44; Knox, supra note 272, at 57; Becomingthe Ultimate July KatieLeishman, Heterosexuals AIDS,ATLANTIC and Feb. MONTHLY, 1987, at 39, 48; Nordheimer, supranote 272, at 1. 369. See notes264-278supraandaccompanying text.
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role ancycan be explained the perceived of socialvisibilityin perpetuatby each. Homosexuality generally is to its ing regarded be spread through visimere utterance the "contagious of word"of same-sexdesireis bility-the spread throughits invisibility-making HIV more visible, figuratively or is education,371 literallythrough through tattooing,372 viewed to be prowho wish to controlboth homosexuality HIV are and phylactic. Straights thus in a doublebind vis a vis bisexualvisibility. To the extentthatthey wish to safeguard theirown heterosexuality, will wish to erasebisexuthey for als, as the existenceof the bisexualmakesit impossible themto conclutheirheterosexuality. the extentthattheywish to safeguard To sively prove theirHIV-negative status,however, theywill seek to keep the bisexualvisiHIVhas forcedstraights confessthebisexual to ble.373 theywouldotherwise
thought to perpetuateit.370 HIV, on the other hand, is generally seen as
370. See JUDITH A SPEECH: POLITICS THE OF EXCITABLE PERFORMATIVE BUTLER, 103-26 (1997). 371. See CINDY INVENTING 52 (1990) ("Inprivateconversations, public AIDS in PATTON, healthcampaigns, in the scientificandpara-scientific and as literature, 'knowledge'is promoted the essentialingredient the effortto slow the transmission HIV. To the fearfulcitizen,knowledge in of meansinformation whichprovesthatshe/hewill not developAIDS."). 372. See LARRY CONTESTED CLOSETS (1993) (notingWilliamF. Buckley, Jr.'s 59 GROSS, that be proposal menwho test HIV-positive tattooed). 373. Thisdoublebindcinchesparticularly tightlybecauseone way in whichboth homosexube as can ality and HIV mightproperly described infectiousis thatone individual affect an entire of in community. Leo Bersanisays thatthe number homosexuals a population may be irrelevant insofaras homophobia fueledby the "fearful is excitementat the prospectof becomingwhat one alreadyis." BERSANI, supra note 232, at 28. "Onegay man ... deep in a distantprovinceof a nationotherwisetotallysuccessfulin its genocidalcampaign againstgays wouldbe enoughto hold and the in up, for his appalled expectant countrymen, mirror whichthey couldnot escaperecognizing their alreadyrecruitedselves." Id. (I am assumingthat this analysis would applyjust as stronglyto bisexuals). Similarly,it has been said that"'[i]t also takesonly one bisexualto introduce the AIDS virus[sic] intothe heterosexual AIDS:Keywords, in community."'JanZitaGrover, while simultaneously single bisexualentersthe culturalimagination ensuringthatevery single bisexualremains visible. 374. No similardoublebind occursrelativeto homosexual visibility,where a genericinvisiinsofaras the straight bilityrulehas worked. Thismay seem counterintuitive, goal wouldstill be to cabin the two "diseases" homosexuality HIV, and insofaras the two "diseases" of and have opto withhomosexuality posedrelationships discourse, discourseandHIVbeing beingspread through spreadby a lack of it. The significantdifferencebetweenthe bisexualand the homosexual,however, is thathomosexualsare not perceivedas spreading HIV into the straightcommunity. Thus one strategyto evade the doublebindhas been to spreadHIV discourseonly insofaras it does not pertainto same-sexsexual conduct. See PATTON, supra note 371, at 55-56 (describingstate and federalfundingrestrictions AIDS education forbidfundingof projectsthat"promote on that homowhile decreasingthe spreadof homosexuality, sexuality"). This cabinsHIV amongstraights not discourseabouthomosexuality, also by leavinghomosexualsmoreat but only through dampening riskfor HIV.
AIDS: CULTURAL ANALYSIS/CULTURAL ACTIVISM 21 (Douglas Crimp ed., 1988) (quoting 17, ART ULENE,SAFESEX IN A DANGEROUS WORLD(1987)). Thus, straights must ensure that not a
of as of It may seemironicto list the visibility bisexuals carriers AIDSin of themainstream pressas a symptom bisexualerasure.Butthatcase canbe has AIDSthreat the on defended two grounds.First,visibilityabout bisexual in a straight investment repressing not been sustained, perhapssuggesting to straightvulnerability AIDS.375In otherwords,bisexualitymay be rethat pressednot in spiteof, butbecauseof, the perception it is an epidemiological bridge. Suchdenialaboutrisk can be seen in many othercontexts, such as the minoritizing discourseof AIDS as a diseasethat only affects certainsociallymarginal Second,to the extentthatthe bisexual groups.376 has beenmadevisibleas an AIDSthreat, visibilityhas been so narrow that andso negativeas to be entirely And delegitimating.377 suchdelegitimation,
375. An alternative for of explanation why the role of bisexualsin the transmission HIV has not achievedsustained has that visibilityis thatresearch demonstrated this threatis not significant. This explanation seems weak, as the studieson the role of bisexualityin cross-sexHIV transmission havebeen indeterminate. Some studiesminimizethe importance bisexuality'srole in such transmission.See, e.g., of MariaL. Ekstrand, ThomasJ. Coates,JosephR. Guydish, WalterW. Hauck,LindaCollette& SteMen in San Franciscoa CommonVectorforSpreading phen B. Hulley,Are BisexuallyIdentified HIV Infectionto Women?, AM. J. PUB.HEALTH 919 (1994) (concluding"thatsingle, 84 915, men in SanFrancisco not appear be a commonvectorfor spreading do to HIV bisexuallyidentified disease to women");JamesG. Kahn,Jill Gurvey,Lance M. Pollack,Diane Binson & JosephA. HowManyHIVInfections CrosstheBisexualBridge?AnEstimate from the UnitedStates, Catania, 11 AIDS 1031, 1031 (1997) (concluding"that[cross-sex]transmission bisexualityis a relavia of HIVinfectionsin the USA"). 40,000 annual tively minorcomponent the estimated Otherstudies,however,contendthatbisexuality'srole in cross-sextransmission HIV has of been underestimated. Pat See, e.g., TheresaDiaz, SusanY. Chu, Margaret Frederick, Hermann, Anna Levy, Eve Mokotff,Bruce Whyte,Mary Herr,PatriciaJ. Ehecko, CornelisA. Rietmeijer, FrankSorvillo & QaiserMukhtar, and Sociodemographics HIV RiskBehaviorsof BisexualMen withAIDS:Results Interview from a Multistate Project,7 AIDS 1227, 1231 (1993) (documenting risk behaviorsthatmay be morecommonamongbehaviorally bisexualmen");Thomas "multiple Lerner& MaryAnn Chiasson, VirusType1 and SexSeroprevalence HumanImmunodeficiency of ual Behaviorsin BisexualAfrican-American HispanicMen Visitinga Sexually Transmitted and Disease Clinic in New YorkCity, 147 AM.J. EPIDEMIOLOGY271 (1998) (notingthat "[i]t is 269, conceivablethatHIVtransmission frombisexualmento theirfemalesexualpartners plays a greater role in heterosexual transmission African-American Hispaniccommunities in and thanwas previously recognized"). I makeno attempt weigh the meritsof thesestudies. I simplyregisterthe conflictbetween to themas an indication therehas neverbeen a scientificconsensusthatbisexuality a minimal that has role in cross-sexHIV transmission.Indeed,studiesreviewingthe existing literature note thatnot enough researchhas been done to supportany such view. See, e.g., LyndaS. Doll & Carolyn Beeker,Male SexualBehaviorandHIVRiskin the UnitedStates:Synthesis ResearchwithImpliof cationsfor BehavioralInterventions, AIDS EDUC. PREVENTION 219-220 (1996) (review 8 & 205, of existingresearch whichnotesthatthe role of bisexualsin HIV transmission be significant in may certaincontexts,but that "[f]urther researchis urgentlyneeded to epidemiologicand behavioral morefully describesthe[se]contexts"). 376. See PaulaA. Treichler, and AIDS,Homophobia, Biomedical Discourse:An Epidemic of
ANALYSIS/CULTURAL Signification, in AIDS: CULTURAL ACTIVISM, supra note 373, at 31, 65-67.
377. This particular genre of visibility shouldnot be taken as solicitude for bisexuals,but ratheras solicitudefor the way in which bisexualscan infect the straightpopulation. In this, the bisexualoccupiesa parallelpositionto the prostitute.As Sedgwickhas recognized,"[i]t has been notable... thatmediacoverageof prostitutes with AIDS has shownno interestin the womenthem-
as noted above,378 contributesto bisexual erasureby chilling bisexuals from their identities. expressing 3. Gay investment. The distinctively gay investment in bisexual erasurepertaining to monogamy has two elements. First, many gays and lesbians wish to retire the stereotypeof gays as promiscuous. Second, some lesbians view bisexuals as carryingHIV into the relativelyunaffectedlesbian community. Self-identified gays, of course, do not speak univocally against promiscuity. Some in the gay community view monogamy as an oppressive cultural institution of the heterosexual establishment.379 But over time, those to disestablish the stereotype (and any underlying reality beneath seeking
it)380have increased in number.381 One potential explanation for this shift is
the AIDS epidemic, which has made many gays reconsider their nonmonogamous sexual practices.382Another is that the growing acceptability of homosexualityhas made assimilationmore of a possibility.
EPISTEMOLOGY THECLOSET, OF selves, but only in their potential for infecting men." SEDGWICK,
CULTURE AMERICA: IN ESSAYSFROM THEFIELD165, 166 (Gilbert Herdt ed., 1992) (noting that
mediacoverageof bisexualswith HIVhas shownlittle interestin supranote 4, at 5 n.8. Similarly, the bisexualsthemselves, only in theirpotential infectingstraights.See GARBER, but for supranote 11, at 93-96. 378. See note 235 supraandaccompanying text. 379. See, e.g., Pat Califia,UnMonogamy: and SEX: Lovers,in PUBLIC LovingTricks Tricking THE CULTURE RADICAL 199, 199-204(1994) (criticizing OF SEX as monogamy utopianandrepressive); Douglas Crimp, How to Have Promiscuity in an Epidemic, in AIDS: CULTURAL ANALYSIS/CULTURAL shouldbe ACTIVISM, supra note 373, at 237, 272 ("Gaymale promiscuity seen ... as a positivemodelof how sexualpleasures to mightbe pursued andgranted everyone by if those pleasureswere not confined within the narrowlimits of institutionalized sexuality."); DOUGLAS SEX MEN: HISTORY THE OF SEXLIVES GAY SADOWNICK, BETWEEN AN INTIMATE OF MEN POSTWAR PRESENT (1996) (notingarguments TO 86 madeby gay activists againstmonogamy in the 1960s). 380. Thisstereotype findsmoresupport the gay male community in thanin the lesbiancomIs June munity. See DonnaBinder, Monogamy: It For Us?, THE ADVOCATE, 23, 1998,at 29, 30. 381. See, e.g., BruceBawer,Sex-Negative in BEYOND CHALLENGING LEFT GAY Me, QUEER: ORTHODOXY 172 (BruceBawer ed., 1996) [hereinafter BEYOND 171, ("To suggest that QUEER] is in gays are more definedby their libidos [thanstraights] to collaborate the widespread, dehueven bestial,while straight is manizingview thatgay sex is invariably sex mechanical, impersonal, an integralpart of the complex web of humanfeeling, connectedness, and commitment before LIFE THE REPORT GAYMEN:SEX, ON God.");MICHELANGELO SIGNORILE, OUTSIDE: SIGNORILE AND PASSAGES LIFE OF 208-65 (1997) (discussingthe prevalenceof moDRUGS, MUSCLES, THE in nogamousrelationships the gay malecommunity). 382. See, e.g., JohnW. Berresford, GayRightAgenda,in BEYOND A QUEER, supra note 381, at 105, 108 (notingthat"[i]na curiousway, AIDS itself may be helping[gay men] find social acsince it "hasbroughtto a screechinghalt"the gay male promiscuity the 1970s and of ceptance," R. 1980s);Frederick Lynch,NonghettoGays:An Ethnography Suburban in Homosexuals, GAY of
"the adventof AIDS must have had some degreeof adverseeffect on the lure of the 'swinging
single' life-style for homosexuals and heterosexuals alike"). Others-most prominently represented in the Sex Panic movement-have argued that AIDS should not push gays toward monogamy, but
overpromiscuity the marriage The classicsitusof the gay debate is conis to text. Marriage seen as deeplyconnected monogamy, insofaras it is the state's sanctionof an ostensiblylife-longand eroticallyexclusiverelationWhile this nexus remainsimperfectin ship betweentwo individuals.383 the fictionof the marriage bothreflectingand reinforcing as mopractice, remainsstrong.384 nogamouscommitment Many gays have rejectedmaras riage in the sameway thatthey have rejected monogamy, exemplifying heterosexist Here as elsewhere, (and sexist) norms.385 however,thereis a assimilationist factionin the gay community seeks the entitlethat growing mentof marriage.Members this factionexpressdisdainfor promiscuity of in generalandpolygamyin particular (sincethe latteris often viewed as a of sanctioning same-sex potential consequence marriage).386 To the extentthatbisexualsareviewedas intrinsically aspromiscuous, will be loathto recognize similationist themas politicalallies, as such gays an affiliation rather thanrebut,the stereotype gays as of mightcorroborate, promiscuous. Bisexualsmay thus pose the gay rights movementwith a milderversionof the question or On posedby pedophiles387 polygamists.388 the one hand, solidaritywith other sexual minoritiessuggests that they shouldbe included withinthe movement; the other,realismsuggeststhat on thelegitimacy themovement be undermined suchaffiliations. of may by An additional concern voicedby lesbiansagainstthe ostensible promisof bisexualsis thatbisexuals HIVintothe lesbiancommucuity mightcarry as nity. Despitethe factthatHIVis oftencharacterized a "gay" disease,lesbiansare less at risk for sexualtransmission HIV thaneithergay men or of
rather towardthepracticeof safe sex. See, e.g., JosephSonnabend Richard & Berkowitz, Safer-Sex that Panic, in SEXPANIC! 14 (1997) (arguing "it is the call for sexualrestraint monogamy and 13, with its inherent of the hazard the healthof gay to deemphasis safersex thatnow constitutes greater men");JimEigo, TheMonogamy Code,in SEX PANIC!, supra,at 15, 16 (arguing againstthe "attack on safersex" andthepromotion of"globalgay malemonogamy"). 384. See id. at 1. 385. See, e.g., PaulaEttelbrick, Since When Marriagea Path to Liberation?, SAME-SEX Is in
383. See WILLIAM ESKRIDGE, THECASEFORSAME-SEX N. 1 MARRIAGE (1996). JR.,
MARRIAGE: ANDCON:A READER PRO (Andrew Sullivan ed., 1997).
386. See AndrewSullivan,Three'sa Crowd,in SAME-SEX MARRIAGE, supra note 385, at 278-79. 387. See, e.g., DuncanOsborne, Trouble The withNAMBLA, ADVOCATE, 14, 1993, THE Dec. at 40 (reporting International the Lesbianand Gay Association'srequestthatthe NorthAmerican Man-BoyLove Associationresignfromthe organization); JoycePrice,PedophilesResistingExpulWASH. Nov. sionfrom Gay Umbrella TIMES, 27, 1993,at A4 (similar). Organization, 388. See, e.g., David L. Chambers, L. Polygamyand Same-Sex Marriage,26 HOFSTRA REV. 53, 53 (1997) ("Duringthe hearingsand debatesthat led to the Defense of Marriage Act, many membersof Congressand many witnesses drew comparisons between polygamy and same-sex Sullivan,supra note 386 (arguingthat polygamyand same-sex marriageare easily marriage."); distinguishable).
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It that like straights.389 is thusunsurprising somelesbians, someheterosexufearthe potentialof bisexualsto serve as an epidemiological als,390 bridge froma "high-risk" a "low-risk" to community.One bisexualcommentator notesthat"gaywomenarehesitant becomeinvolvedwithbi-the-way-girls to becauseWE SPREAD AIDSor will leavethemfor a man,"391 while another thatshe is perceived an "AIDS-carrying as on suggests high-risk parasite the movement."392 propinquity the chargeof HIV transmission the The of to to eitherindividually the ultias chargeor capitulation patriarchy (framed materejection a womanfor a manor politically the inability the biof as of sexualparasite rejectheterosexual to be purelycoincidental. privilege)may It may, however,suggestthatjust as the straight community occasionally to of so appears makeHIVstandforthe "disease" homosexuality,393too does the lesbiancommunity makeHIV standfor the "diseases" patriarchy of and to heterosexual capitulation privilege.
D. OverlappingMonosexualInvestmentsas a Cause of the Epistemic Contract
This Parthas suggestedthat straights gays have enteredinto the and contract bisexualerasure of becauseof threedifferent epistemic investments: in sexualorientation; an investment rein (1) an investment stabilizing (2) the of in normsof motaining primacy sex;and(3) an investment preserving nogamy. and in sexualorientation Straights gays have an investment stabilizing The shared of this investment the security all indiis that categories. aspect vidualsdrawfromrigid social orderings.The distinctively investstraight ment is the retention heterosexual of And the distinctively privilege. gay investment relatesto the perception bisexuality that the endangers immutamobilization. bilitydefenseandeffectivepolitical Bothstraights gaysmayalsowishto erasebisexuals and becausebisexuhas disturbing for sex ality consequences the current regime. All monosexuals arecreated a through regimethatprivilegessex, andthey thushave an investmentin bisexual erasurethat relates to their own constitution. have a specificinvestment bisexualerasure in becausebisexuality Straights the powerheterosexuality to determine performance. has sex disrupts And
389. See William N. Eskridge,Jr., MultivocalPrejudicesand Homo Equity,74 IND. L.J. 1085, 1118 (1998) (notingthatwhile gays areoftencharacterized carrying as HIV, "thedatamakes it clearthat... lesbiansseem to havethe lowestratesof AIDS ... of any of the groupings"). 390. See notes366-368supra. 391. Karenand Miranda ... Augustine,WhatSome Call Community OthersCall Clicks, in PLURAL DESIRES, supranote 345, at 37, 37. 392. MichelleSpring-Moore, in DESIRES, Queergirl, PLURAL supranote 345, at 226, 243. the of and (1993) (describing conflation homosexuality AIDS as pathological diseases).
393. JUDITHBUTLER,BODIESTHATMATTER: ON THE DISCURSIVE LIMITSOF "SEX" 64
becausebisexuality interferes with complete gays havea specificinvestment sex separatism. and Finally,bothstraights gays aredisquieted bisexualsinsofaras biby sexualsare thought represent to and nonmonogamy.Straights gays have a sharedinvestment decreasing in sexualjealousy. Straights peculiarly are threatened insofaras they believe thatbisexualnonmonogamy bridgesthe and gap betweenthe HIV-infected population the uninfectedstraight gay Andgaysaredistinctively threatened bisexual population. by nonmonogamy to the extentthatthey wish to retirethe stereotype gays as nonmonogaof mous. Thesemultipleandoverlapping investments bisexualerasure in explain the longevityof the epistemiccontract. But they are not insurmountable. Theveryfactthatbisexualerasure beenrecognized has indicates this,forthe of statushierarchy thatthe oppressed is musthave some paradox category as But powerto be recognized such.394 thismeansthateven as thereareinvestments bisexualinvisibility, in therearesimultaneous countervailing and in investments bisexual visibility. The groupwith the most powerfulinvestment bisexualvisibilityis in of self-identified bisexuals.In thenextPart,I look at howbisexucomposed als haveresponded the epistemic to contract.Thatnarrative one of both is and of capitulation resistance, testifyingto both the strength the epistemic contract thepossibility its gradual and of dissolution.
IV. SELF-IDENTIFIED BISEXUALS ANDTHEEPISTEMIC CONTRACT
The longevityof the epistemiccontract be explainedin two ways. can The firstis thatbisexualsarenot harmed the contract, morestrongly, by or, thatbisexuals benefitfromtheirown erasure suchthatthe contract couldbe characterized trilateral as rather bilateral.The secondis thatdespitethe than factthatbisexuals harmed the contract, is so powerful bisexuals are it that by areprevented fromfully conceivingof themselves bisexuals,or fromefas even if they do. The two explanations are fectivelydissolvingthatcontract not mutuallyexclusive,insofaras bisexualsare not a monolithicgroup. Somebisexualsfit the stereotype thosewho takeadvantage heterosexof of ual privilegewhile engagingin clandestine homosexual Others activity.395 bisexualerasure a harmandmilitatefor bisexualvisibility.396 as experience
394. Cf MarthaMinow, The SupremeCourt,1986 Term-Foreword:Justice Engendered, 101 HARV. REV.10, 68 (1987) ("Poweris at its peak when it is least visible, when it shapes L. preferences, arranges agendas,and excludesseriouschallengesfrom discussionor even imagination."). 395. See notes 83-85 supraandaccompanying text. 396. See notes402429 infraandaccompanying text.
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Which explanation we view as dominant, however, has significant consequences for how serious we view the problemof bisexual erasureto be. between the two explanations,I will arWhile it is difficult to arbitrate gue in this Partthat we should seriously entertainthe viability of the second one. I begin this argumentby observingthat the epistemic contractprevents the articulationof bisexual identity at every phase of bisexual development, impedingthe formationof a bisexual subjectthat could meaningfullyconsent to its own erasure. I then note that despite the demandsof the contract,an increasingly visible bisexual movement has articulatedits desire for visibility. A. Bisexual Capitulationto the EpistemicContract The epistemic contractobstructsevery phase of bisexual development. I consider three phases here: (1) pre-comingout as bisexual; (2) post-coming out to some others;and (3) post-comingout to "all"others. The process of coming out as a bisexual may be retardedby the fact that no robusttemplate of bisexual identity exists. Even in a time where there is an increasinglyavailablemodel of gay identity,there is no equivalentone for bisexual identity. Many individualswho might otherwise identify as bisexual may refrain from doing so only because they cannot imagine that identity.397 Possible supportfor this hypothesis can be found in a recent study showing that bisexuals come out as bisexual relatively later than homosexuals come out as homosexual.398 Even after a bisexual comes out to some others, she encounters enormous pressureto presentherself to the rest of the world as straight. A study of the relative degrees of "outness"in the workplaceamong (1) gays, (2) bisexuals, and (3) straightswith unorthodoxsexual practices found that gays were most likely to be out, followed by bisexuals, followed by heterosexuals It with unorthodoxsexual practices.399 is surely no accident that this exactly tracks the ascending degree to which these identities can be hidden within a heterosexual matrix. Moreover, even after a bisexual comes out to some others, she will be underpressureto be selectively closeted. This is perhaps most true in the dating context, where bisexuals find that both straightsand gays can often be reluctantto date bisexuals. Finally, even a bisexual who is out to "all" others will have a difficult time communicating this. The monosexual presumptionmeans that if a
of 397. See GARBER, supranote 11, at 48-49 (givingaccounts bisexualswho were introduced ET to the bisexualcategoryrelativelylate);WEINBERG AL., supranote 113, at 121 (notingthatbisexuals generally"comeout" later thanhomosexuals"becausethereis a less clear identitywith whichto 'come out"'). ET 398. See WEINBERG AL.,supranote 113,at 121. 399. See id. at 188-89.
womanwalks down the streetholdinghandswith a man, we are likely to thinkof her as straight; she does the same thingwith a woman,we are if This leadsus to code indilikely to thinkof her as lesbian.400 presumption vidualsas monosexual unlesstheyevidence concurrent bisexuality. This synchronicapproach orientation to assignationcan obtain even when a diachronic accountof the individual's eroticlife is available. Ruth Colkersupports pointby notingthe reflexiveuse of the term"hasbian" this to describewomenwho shift froma sustained same-sexrelationship a to sustained cross-sexrelationship.401 a shift couldequallybe described Such as sequential of is and bisexuality-thepattern conduct thusoverdetermined resolution. Thatthis ambiguity resolvedbefore is requiresnarratological to attribution: being recognized suggestsa synchronic approach orientation The "hasbian" classification readsthe current conductas the "true" and one the past conductas the repudiated rather thanreadingthemboth as an one, embrace sequential of will bisexuality.Sucha synchronic approach tendto eliminate butconcurrent all bisexuals fromthebisexual category.
B. Bisexual Resistance to the EpistemicContract
The argument bisexualscapitulate bisexualerasure that to becausethey are not harmedby it is also undercut an increasingly visible bisexual by movement.Themovement's can dividedintothree development be crudely decade. phasesby The bisexualmovementdid not begin in a patterned way until after Stonewall.402 coulddo worsethandateits inauguration the formation One to of the NationalBisexualLiberation (NBL) groupin New YorkCity in the withthe firstbooksandmainstream sion, in 1975,roughlycoinciding press about bisexuality.404The magazine provided an antidote to the deof treatments "bisexual chic" in the popularpress (including legitimating Time405 Newsweek406) suggested and that thatbisexuality the perquisite was
early 1970s.403 The NBL began publicationof a magazine,Bisexual Expres-
400. See Ochs,supranote 63, at 225. 401. See RuthColker,A BisexualJurisprudence, LAW SEXUALITY 3 & 127, 129-30 (1993) BisexualJurisprudence]. [hereinafter Colker, 402. San Francisco's SexualFreedom League,foundedin 1967, mightbe seen as a precursor to the bisexualmovementin thatit encouraged with experimentation both sexes. It was not, however,explicitlya bisexualorganization. 403. See StephenDonaldson,TheBisexualMovement's Beginningsin the 70s: A Personal in Retrospective, BISEXUAL POLITICS, note 7, at 31, 42-43. supra 404. See Donaldson, supranote403, at 43. 405. See TheNew Bisexuals,supranote 230, at 79. 406. See BisexualChic,supranote 230, at 90.
of androgynous rock stars such as David Bowie or Elton John.407 The NBL's
meetings consisted of monthly social events and consciousness-raisingexercises.408In its social cast, the organizationwas similarto many that followed in that decade 409 such as New York City's Bisexual Forum (founded in
1975),410 San Francisco's Bisexual Center (founded in 1976),411 and Chi-
cago's Bi-Ways (foundedin 1978).412Bisexual activists were also occasionally prominentin early gay-identifiedendeavors. For example, Alan Rockway, a "gay-identifiedbisexual,"co-authoredthe well-known Dade County, Florida ordinancethat became the first ordinanceto protect gay rights, and which spawnedthe nationalanti-gay"Save OurChildren" crusade.413 In the 1980s, the bisexual movement shifted toward claims for greater with activists attemptingto distinrecognition as a political movement,414 guish bisexuality from sexual swinging. BiPOL, the first bisexual political of the national bisexual movement to the second March on Washington for Lesbian and Gay Rights in 1987, where a national bisexual network, later known as BiNET USA was formed.416The shift might have been expected as a simple byproductof the increasedmaturityand self-consciousness of the bisexual movement, with increasingnumbersof bisexual organizationsproaction group, formed in San Francisco in 1983.415 And many date the birth
TimeandNewsweek supranote 11, at 18-19(describing Donaldson, articles); supranote 403, at 35 becamepopularized describebisexualpeople. to (same). It was at this time thatthe term"AC/DC" See GARBER, supranote 11, at 38. 408. See Donaldson, supranote403, at 42-43. 409. See Udis-Kessler, supranote308, at 22-23. 410. See ChuckMishaan,TheBisexualScenein New YorkCity,11 J. HOMOSEXUALITY 223, 224 (1985). Theorganization foldedin 1983. See id. 411. See DanielleRaymond Liz A. Highleyman, & Brief Timeline BisexualActivismin the of UnitedStates,in BISEXUAL POLITICS,supranote 7, at 333, 334. The BisexualCenterof San Francisco held its firstpressconference June30, 1977. Speakers on includedDr. BenjaminSpock,Dr. Phyllis Lyon and RuthFalk. Manyof these speakers challengedAnitaBryant'seffortsto barhomosexualsfromemployment school teachersanddiscussedothercivil rightsissues. See Maggi as Rubenstein& CynthiaAnn Slater, A Profile of the San Francisco Bisexuality Center, 11 J.
HOMOSEXUALITY 228-30 (1985). 227,
407. See Jay P. Paul, San Francisco's Bisexual Center and the Emergence of a Bisexual THE AND PRACTICE SEXUALCONTACT Movement, in BISEXUALITIES: IDEOLOGY OF WITHBOTH MEN AND WOMEN130, 132 (ErwinJ. Haeberle & Rolf Gindorf eds., 1998); see also GARBER,
412. See GeorgeBarr,ChicagoBi-Ways: Informal An History,11 J. HOMOSEXUALITY 231, 232-34 (1985). In the early 1980s,ActionBi-Womenwas formedin the Chicagoareato developa feminist-oriented bisexualgroup. See id. at 234.
363. 413. See Political Activism: A Brief History, in BI ANY OTHER NAME,supra note 257, at 359,
414. See Udis-Kessler, supranote 308, at 26 (discussingincreasing politicalactivityof bisexual movement). 415. See id.; Raymond Highleyman, & supranote411, at 334. 416. See Paul,supranote407, at 137;PoliticalActivism, & supranote 413, at 364; Raymond Highleyman, supranote 411, at 335.
liferating across the country.417But the shift can also be attributedto the AIDS crisis, which came into public visibility in the early years of the decade. In 1987, Time4l8 Newsweek419 and would again publish articles touching but this time not about "bisexualchic," but about bisexualupon bisexuality, ity and AIDS.420 Bisexuality had now acquireda serious edge: Newsweek called bisexuals the "ultimatepariahs"of the AIDS crisis.421 In the 1990s, bisexual politics has risen to greaternational and international prominence. The FirstNational Bisexual Conferenceconvened in San Franciscoin 1990, with Bisexual PrideDay proclaimedby the San Francisco Board of Supervisors.422 following years saw the First International The Bisexual Conference held in Amsterdam,423 publication of two major bithe sexual anthologies,424 and the inaugurationof a national bisexual magazine.425 By 1993, the March on Washington for Lesbian and Gay Civil Rights had become the Marchon Washingtonfor Lesbian, Gay and Bi Equal Whetherto name or not to name bisexuals alongRights and Liberation.426 side gays and lesbians has become an explicit issue of debate.427 That debate has also trickledinto the law. As evidenced by Colorado's Amendment2428 and the military's "don't ask, don't tell" policy,429 bisexuals are increasingly even if politically repressed. nominally visible,
417. Theseincludedthe BostonBisexualWomen'sNetworkin 1983, the EastCoastBisexual Networkin 1985, the SeattleWomen'sBisexualNetworkin 1985, and the Washington D.C. BiWomen's(andMen's)Networkin 1989. See PoliticalActivism, supranote413, at 360-61. 418. See Martha & The Smiglis,ScottBrown,Dave Morrow Leslie Whitaker, Big Chill:Fear Feb. 16, 1998,at 50, 52. of AIDS,TIME, 419. See Gelman, supranote 368. 420. See Paul,supranote407, at 137-39(describing articles). 421. Gelman, supranote368, at44;see also GARBER, note 11, at 93 (describing supra article). 422. See Raymond Highleyman, & supranote 411, at 335-36. The conferencewas attended statesand five countries. See Paul,supra note 407, by over fourhundred people fromtwenty-two at 137. 423. See KLEIN, bisexualconfersupra note 81, at 169. The second and thirdinternational ences occurred LondonandNew Yorkin themid-1990s. See id. in FEMINISM RebeaWeise ed., 1992). (Elizabeth 425. The Bay AreaBisexualNetwork the ThatMovesin beganpublishing magazine Anything 1991. See GARBER, January, supranote 11, at 54. 426. See Raymond Highleyman, & supranote411, at 337. 427. See, e.g., GARBER, note 11, at 80-81 (describing over removalof word supra controversy "bisexual" from Northampton, Massachusetts Lesbianand Gay Pride Marchin 1990); id. at 53 (describingcontroversyover inclusion of word "bisexual"in mastheadof San Francisco Bay & of Times,which then read,"TheGay/Lesbian/Bisexual Newspaper Calendar Eventsfor the Bay Area"). 428. See Romer v. Evans, 517 U.S. 620, 624 (1996) (quotingColorado'sAmendment2, whichprohibits of notes48-52 supraandaccompanying text. protection bisexualstatus); 429. See 10 U.S.C. ? 654(b)(2) (1994) (making unrebutted statementsof bisexual selfidentification fromservice);supranote 44 andaccompanying text. groundsforseparation
424. See BI ANY OTHERNAME, supra note 257; CLOSER HOME: BISEXUALITY TO AND
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The bisexualmovement's aims are diverse,and both convergeand diwiththoseof thegay rightsmovement.Thus,bisexuals, gays,can like verge be seen deploying bothas a meansof retiring sexualorientaall bisexuality tion categorizations as a meansof contesting and placementwithin those categorizations.On the otherhand,bisexualsalso have interestsin their that combatbiphobia visibilitythat are specificto them: thatis, interests rather homophobia. than Theseinterests include retirement stereotypithe of cal views aboutbisexuality, suchas the perceptions they areindecisive, that and duplicitous, promiscuous.
C. TheDissolution of the Epistemic Contract
Therise of thebisexual movement probably mainfactorleadingto is the the dissolution the epistemiccontract bisexualerasure.But as I have of of shown in critiquing investments both straights gays in bisexual the of and monosexuals haveundertheorized also investments bisexualvisiin erasure, in easierto seebility. The gay investments bisexualvisibilityareperhaps for can as for the bisexuality, example, operate a usefulheuristic evaluating as well as a meansof erodingheterosexual defense, immutability privilege the itself. Straights, by problematizing conceptof heterosexuality however, have investments bisexualvisibility as well, such as challengingsexin in or conventional normsof moseparatism the gay community defending nogamy. Giventhe rise of the bisexuality it movement, seemssafe to say thatbisexualswill only growmorevisiblein the future.It is therefore timeto considerhow a worldin whichthe epistemic contract longerobtained no might look. In the nextPart,I consider how a particular world-the legal worldbisexual mightbe transformed enhanced by visibility.
V. BISEXUALITY AND SEXUAL HARASSMENT LAW
determinations sexualorientation made,the legal systemis complicit of are in cultural aboutsexuality.430 shouldtherefore be surprising It not ignorance thatbisexualsare for the mostpartas invisiblein the law as they are in our in alityis farmoreundertheorized the legalrealmthanit is in the social science realm. In 1993,RuthColker A beganan essay entitled BisexualJurisgeneral culture. Indeed, if academic commentaryis any indication, bisexu-
Despite the fact that it is one of the main public sites in which formal
prudence with the statement: "A bisexualjurisprudence? Until I decided to write this essay, there was no such thing as a bisexual jurisprudence."431 A
430. Cf. POSNER, supra note 30, at 1 (notingthat "judgesknow next to nothingabout the subject[of humansexuality]beyondtheirown personal experience"). 431. Colker, BisexualJurisprudence, supranote401, at 127.
that searchof law reviewarticles dealwiththe subject bisexualof computer articles takebisexuality the law in ity bearsoutherclaim: Onlya half-dozen as theirprimary subject.432 bisexualvisibilityaffectthe law? To beginthinkHow mightincreased law. I do so for I aboutthis question, takethe case of sexualharassment ing are bisexuals morevisiblein this areaof jurisprudence threereasons. First, This thanin others.433 visibilityarisesbecauseliabilityunderTitleVII only of... sex." Underone interoccurs"because lies if the sexualharassment bisexuals evadeliabilitywhen to formulation thisdoctrinal permits pretation, harass bothmenandwomen,becauseno victimcan claimthat theysexually occurred "because the victim's"sex." Bisexualsarethus of' the harassment but and fromheterosexuals homosexuals, arerhetorinot only distinguished aboveboth. callyprivileged matter. has As we shall see, this exemption been closed as a practical the But bothin recognizing in closingthe exemption, courtshavehadto and in with the realityof bisexuality a way thatthey have not hadto in grapple is otherareas. Thus,while the bisexualharassment exemption unimportant as a practical it has madebisexualsuniquely visible in antidiscrimimatter, nationdoctrine. of Second,bisexualvisibilityhas the normative consequence narrowing anotherperniciousexemptionin the sexual harassment jurisprudence.434 This exemption, which I call the "horseplay ariseswhen selfexemption," identified defendagainst of same-sexsexualharassment straights charges by harassment was in fact heterosexual statingthat the alleged homosexual horseplay. Because sexual harassment (at jurisprudence least in the past has directed muchmore solicitude towardsexualharmsthannondecade) sexualharms, allegedharasser is deemedto have engagedin heteroan who sexualhorseplay muchmorelikelyto be exempted is fromliabilitythanone who is deemedto have engagedin homosexual harassment. Thishorseplay is pernicious becauseit makesliabilityturnon statusrather than exemption on conduct-more specifically, the sexualorientation the actorsrather on of
432. I foundthreearticles,two essays, andone student note thattook the role of the bisexual in the law as theirmain subject. See RuthColker,Bi: Race, SexualOrientation, Genderand DisST. ability, 56 OHIO L.J. 1 (1995) (article);Ruth Colker,An EmbodiedBisexual Perspective,7 YALE & HUMAN. (1995) (article);Mezey, supra note 8 (article);Colker,BisexualJurisJ.L. 163 and the Equal Opportunity prudence,supra note 401 (reviewessay); DouglasS. Miller,Rumpole Harasser (or Judge Bork's Revenge),20 J. LEGAL PROF. (1996) (essay); Robin Applebaum, 165 The "Undifferentiating Libido". A Needfor FederalLegislationto ProhibitSexualHarassment by a BisexualSexualHarasser, 14 HOFSTRA L.J. 601 (1997) (note). As this list shows, Ruth LAB. Colkerhas done the most writingin this area;her articleentitledBi: Race, Sexual Orientation, into book. See COLKER, Gender,andDisabilityhas also been expanded a prescient HYBRID, supra note 9. 433. I omit further citationin thisparagraph well as the ones thatfollow as the pointsmade as hereareexploredmoredeeplywith citations below. See text accompanying notes464-502 infra. 434. See text accompanying notes503-534infra.
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ual harassment is jurisprudence at a cross-roads.It can eithercontinueto privilegesexual harmover nonsexualharmor breakwith that practiceto treatsexualandnonsexual harm equally. Bisexualvisibilitymightact as a goadto forcecourtsdownthe correct leaves manyputative pathafterOncale. Closingthe horseplay exemption more at risk of earning ascriptions homoeroticism harthe of and straights assment. Bisexualvisibilitymightthusencourage as straights, well as gays, to resista regimein whichliability turnssolely on desire. Callthis the radical critique. Afterbrieflysummarizing development sexualharassment the of juristhis each of thesereasonsfor considering bisexual prudence, Partconsiders law. the visibilityin sexualharassment It thenbrieflyconsiders implications bisexual haveoutside sexualharassment the context. visibilitymight
A. A Summaryof the Developmentof the SexualHarassmentJurisprudence
cent decision in Oncale v. SundownerOffshoreServices437 suggests that sex-
thanon the natureof the allegedlyharassing acts. And unlikethe bisexual harassment thehorseplay is exemption, exemption wideopen. ForreasonsI will describe morefully,thehorseplay as exemption it curon rentlystandsis predicated bisexualinvisibility. Bisexualvisibilitythus has the salutary of this consequence significantly narrowing exemption.And becausethe courts havealready madebisexuality visiblein the contextof the bisexualharassment this has exemption, argument a certainelegantforce. While the courtshave soughtto keep the bisexualharassment exemption closed and the horseplayexemptionopen, this statusquo is inconsistent. the Narrowing bisexualharassment exemptionthroughbisexualvisibility courtsto significantly narrowthe horseplayexemption. logically compels Callthisthe conservative critique. has Finally,closingthe horseplay exemption its own spillovereffectson the degreeto which the sexual harassment will jurisprudence continueto fetishizedesireas determinative liability.435 conservative of The is critique in conservative the sensethatit accepts,rather thancontests,the aforementionedpremisethatsexualharmis moreseriousthannonsexual harm. As Vicki Schultzhasrecently persuasively and this however, premiseis argued, Her is Court'sredeeplyproblematic.436 argument timely,as the Supreme
TitleVII of the CivilRightsAct of 1964makesit "anunlawful employmentpractice an employer to discriminate for ... with against individual any to his compensation, or privilegesof employment, respect terms,conditions,
435. See text accompanying notes535-554infra. 436. See Vicki Schultz,Reconceptualizing SexualHarassment, YALE 1683 (1998). 107 L.J. 437. 523 U.S. 75 (1998).
because of such individual's . .. sex."438 This language has been interpreted
to prohibit sexual harassmentin the workplace. As Katherine Franke has noted, however, courts have long been unclearabout why sexual harassment is sex discriminationprohibitedby Title VII, and have generated at least three different theories.439The first is that sexual harassmentis actionable insofar as it would not have occurredbut for the victim's sex; that is, insofar as it occurred"becauseof... sex" underthe language of the statute.440 The second is that it is actionablebecause it is sexual in nature.441The third is that sexual harassmentis actionablebecause it enacts one sex's subordination of another.442 The first two theories have been the most dominant. The struggle between them can be characterized passing throughfour conceptualphases. as In the first phase, the "becauseof... sex" theory was the ascendanttheory. Indeed,the desire-basedtheorywas not even acknowledged-early claims of desire-basedharassmentwere rejected as not raising a cognizable claim under Title VII. Thus, in Come v. Bausch & Lomb,Inc.,443the judge dismissed allegations of desire-basedharassmentby reasoning that no Title VII claim could lie when the alleged harasser was merely "satisfying a personal as urge,"444 opposed to acting pursuantto a companypolicy.445And in Tomkins v. Public Service Electric and Gas Co.,446the district court refused to recognize desire-basedclaims underTitle VII because otherwise "[a]n invitation to dinnercould become an invitationto a federal lawsuit."447 Characthe sexual conduct as idiosyncratic, or as raising slippery slope terizing problems,the courts essentially sidesteppedthe question of whetherthis was
discrimination "because of... sex."448
438. 42 U.S.C. ? 2000e-2(a)(1994). 439. See Katherine Franke,What'sWrong M. with SexualHarassment?, STAN. REV. 49 L. 691, 692-93 (1997). 440. See, e.g., Rabidue OsceolaRefiningCo., 805 F.2d611, 620 (6th Cir. 1986);Bundyv. v. Jackson,641 F.2d 934, 942 n.7 (D.C. Cir. 1981);Barnesv. Costle,561 F.2d 983, 989 n.49 (D.C. Cir. 1977);see also Franke, supranote439, at 705-14. 441. See, e.g., Yearyv. GoodwillIndus.-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997); v. Mattern Eastman KodakCo., 104 F.3d 702, 706 (5th Cir. 1997);Fullerv. City of Oakland, 47 F.3d 1522, 1527(9th Cir. 1995);see also Franke, supranote439, at 714-25. 442. See Vandeventer WabashNat'l Corp.,887 F. Supp. 1178, 1181 (N.D. Ind. 1995); v. Goluszekv. Smith,697 F. Supp. 1452, 1456 (N.D. Ill. 1988);see also Franke, supra note 439, at 725-29. 443. 390 F. Supp.161 (D. Ariz. 1975),vacated,562 F.2d55 (9thCir. 1977). 444. Id. at 163. 445. For similarreasoning, Millerv. Bankof America,418 F. Supp.233, 235-36 (N.D. see Cal. 1976) (findingthatno Title VII claimcould lie for the isolatedand unauthorized misconsex ductof one employeeto another), 'd,600 F.2d211 (9th Cir. 1979). rev 446. 422 F. Supp.553 (D.N.J. 1976),rev'd,568 F.2d 1044(3d Cir. 1977). 447. Id. at 557. 448. See Franke,supra note 439, at 700 (notingjudicial concernover the slippery slope problem).
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[Vol. 52:353 sex." The im-
In the secondphase,courts this rejected evasionas illogical,findingthat
desire-based harassmenttypically occurred"because of...
petusfor this belief camefromfeministactivistssuchas KerriWeisel,who contended desire-based that harassment sex-basedharassment was because an individual desireonlyat one sex ortheother. 449 usuallydirects Thefirstcourtto adopt theorywas theD.C. Circuit, the 1977case this in of Barnesv. Costle.450 districtcourtin Barneshad granted The summary to becauseit foundthatPaulette Barnes"'wasdisjudgment the defendant criminated not but to against, becauseshe was a woman, becauseshe refused A engagein a sexualaffairwithher supervisor."'451panelof the D.C. Circuit reversed, noting that desire-based claims and "because of ... sex"
claimscouldnotbe dissociated thisway. It stated: in
her in hood, fromaughtthatappears, participation sexual activitywould never have been solicited.... [Bares] becamethe targetof her superior'ssexual desires because she was a woman,and was askedto bow to his demandsas the pricefor holdingherjob. The circumstance imparting high visibilityto the role of genderin the affairis thatno male employeewas susceptibleto such an approachby appellant'ssupervisor. Thus gendercannotbe eliminatedfrom the formulation which appellant advancesa prima advocates,and thatformulation facie case of sex discrimination withinthe purviewof TitleVII.452
Wecannot this of .... womanaccept analysis thesituation Butfor[Barnes's]
a becauseof the subordinate's supervisor sex, sexuallyharasses subordinate thatsupervisor on thebasisof sex."455 'discriminate[s]' In the thirdphase,as Schultzhas shown,a chiasmus occurred between thetwo theories.456 desire-based The whichhadbeenthe subordinate theory, the of... sex"theory,which theory,becamethe dominant theory; "because had been the dominant becamethe subordinate theory, theory. Desirewas now often framed eithera precondition an important as or of component a successful TitleVII sexualharassment claim. Theascendancy the desireof based theorymanifested itself in a numberof ways, perhapsmost promi449. See Schultz,supra note 436, at 1702 (citing KerriWeisel, Title VII:Legal Protection 53 L. AgainstSexualHarassment, WASH. REV.123, 133-35(1977)). 450. 561 F.2d983 (D.C. Cir. 1977). 451. Id. at 986 (quotingBarnesv. Train,Civ. No. 1828-73, slip op. at 3 (D.D.C. Aug. 9, 1974)). 452. Barnes,561 F.2dat 990. 453. See, e.g., Millerv. Bankof America,600 F.2d 211 (9th Cir. 1979); Tomkinsv. Public Serv.Elec. & Gas.Co., 568 F.2d 1044(3d Cir. 1977). 454. 477 U.S. 57 (1986). 455. Id. at 64. 456. See Schultz,supra note 436, at 1690 ("Ironically, courtsthatonce refusedto recognize that sexual advancesmay occurbecauseof sex now insist on such advancesand fail to perceive that womenworkers sex-based."). as manyotherproblems confront
Other circuits soon adoptedthis theory.453And in 1986, in Meritor Savings Bankv. Vinson,454 Supreme the Court notedthat:"Without whena question,
of nently in the denomination the cause of actionas "sexualharassment" rather thanas "sex-based" "gender-based" or harassment.457couldalso be It seen in the EEOCguidelines, whichadvanced desire-based a theoryof harassment.458 That ascendancy could also be seen in the case law. Some courtshelddesireto be a prerequisite a successful for TitleVII claim,459 and even courtsthatconsidered bothsexualandnonsexual claimsoften ignored or subordinated latter.460 the The Supreme Court's recentopinionin Oncalecanbe seenas potentially in Courthad to ascertain ushering a fourth phase. In Oncale,the Supreme whethersame-sexsexualharassment actionable was underTitle VII, and if whatrestrictions. so doing,it hadto choosea theoryfroma set In so, under that includedthe desire-based and theory461 the "becauseof ... sex" theory.462
The Supreme Courtembraced "because the of... sex" theory.463 This has obviousimplications all of sexualharassment for holding jurisprudence, insofaras it rejectedthe view thatdesireis a requirement a successful for Title VII suit. As I demonstrate Oncalecan truly below,however,whether be seenas breaking fromthethird remains be seen. to phase B. BisexualVisibility-The and Recognition Closingof theBisexual Harassment Exemption Sexualharassment is in jurisprudence distinctive thatit not only names but treatsit differently more favorably) than (and rhetorically bisexuality eitherheterosexuality homosexuality. wouldbe a mistake, or It however,to
457. See id. at 1692. 458. See id. at 1704 & nn.95 & 97 (notingthatthatEEOCguidelinescould be andwere read to privilegesexualharm)(citingEEOCGuidelines Discrimination on Becauseof Sex, 62 Fed. Reg. 63,622 (1980) (codifiedat 29 C.F.R.? 1604.11(1997))). 459. See Schultz,supra note 436, at 1718 & n.167 (citing,inter alia, Yeary v. GoodwillInv. dus.-Knoxville, KodakCo., 104 F.3d Inc., 107 F.3d 443, 445 (6th Cir. 1997);Mattern Eastman 47 702, 706 (5th Cir. 1997);Fullerv. Cityof Oakland, F.3d 1522, 1527 (9th Cir. 1995)). 460. See Schultz,supra note 436, at 1710-29(citing, inter alia, Harrisv. ForkliftSys., Inc. 510 U.S. 17 (1993); King v. Boardof Regents,898 F.2d 533 (7th Cir. 1990);Scott v. Sears,Roebuck& Co., 798 F.2d210 (7thCir. 1986);Reynoldsv. AtlanticCityConvention Ctr.,53 FairEmpl. Prac. Cas. (BNA) 1852 (D.N.J. 1990), affd, 925 F.2d 419 (3d Cir. 1991); Raley v. Boardof St. v. Mary'sComm'rs,752 F. Supp.1272,1280-81 (D. Md. 1990);Graham American Airlines,731 F. Supp. 1494, 1500-01 (N.D. Okla. 1989);Ross v. DoubleDiamond,Inc., 672 F. Supp.261 (N.D. Tex. 1987);Sappv. Cityof Warner Robins,655 F. Supp.1043, 1049-50(M.D. Ga. 1987)). 461. CompareMcWilliamsv. FairfaxCountyBd. Of Supervisors, F.3d 1191, 1195 (4th 72 Cir. 1996)(rulingthatsame-sexsexualharassment claimwas not actionable wheredefendants were cert. denied,519 U.S. 819 (1996), withWrightson PizzaHut,99 F.3d 138, 143-44 v. heterosexual), claim was actionablewhere defendants (4th Cir. 1996) (ruling that same-sex sexual harassment werehomosexual). 462. See Quickv. Donaldson Co., Inc.,90 F.3d 1372, 1377 (8th Cir. 1996). 463. See Oncalev. Sundowner OffshoreServs.,Inc.,523 U.S. 75, 78 (1998).
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takethe court'srecognition thebisexualharassment of as exemption an indicationof bisexualprivilege. As a practical the bisexualharassment matter, has in exemption beenclosed. Nonetheless, orderto close the bisexualharassmentexemption a coherent in way, courtshavebeen forcedinto theorizwith some sophistication. ing bisexuality Thus,despitethe fact thatthe exis notjurisprudentially it a ademption important, has compelled significant missionabout bisexual existence.
1. Therecognition of the bisexual harassmentexemptionbisexual visibility.
alike."466 This left the Barnes theoryvulnerableto attack,as could be seen in a subsequentcase in the circuit adopting that theory. In dissenting from a denial of rehearing in Vinson v. Taylor,467 then-judges Scalia, Bork, and
Bisexualswerefirstmadevisiblein the sexualharassment jurisprudence when the shift fromthe firstphaseto the secondphasewas being contemthe to plated. In Corne,464 courtstatedthatit wouldbe "ludicrous" call desire-based harassment discrimination, sex "because do so wouldmeanthat to if the conduct of on complained [malesexualadvances females]was directed The equallyto malestherewouldbe no basisfor suit."465 bisexualpossibilwas thusadduced problematize extension TitleVII'scoverage to the of to ity desire-based claims. Whileit madethe shift fromthe firstphaseto the secondphasedespite this problem, D.C. Circuitin Barneswas not able to solve it. Barnes the the issuein a footnote, simplyburied unresolved notingthat"[i]nthe case of the bisexualsuperior, insistence the sexualfavorswouldnot constitute upon becauseit wouldapplyto maleandfemaleemployees genderdiscrimination
Starr as argued follows:
court twicestated TitleVIIdoesnotprohibit has that sexual harassment [T]his a "bisexual the would... by superior [because] insistence uponsexualfavors to alike." Barnes Costle,561 F.2d v. apply maleandfemale employees [citing v. 641 983,990n.55(D.C.Cir.1977); Bundy Jackson, F.2d934,942n.7 (D.C. Cir. 1981)).] Thus,this courtholdsthatonly the differentiating libidoruns afoulof TitleVII,andbisexual however blatant however and ofharassment, fensiveanddisturbing, legallypermissible. is HadCongress beenaimingat sexualharassment, seemsunlikely a woman it that wouldbe protected from unwelcome heterosexual lesbian or advances leftunprotected a bisexbut when ualattacks. That bizarre result that was of suggests Congress notthinking individual harassment all butof discriminationconditions employment at in of becauseof gender.If it is proper classify to harassment discrimination Title as for
464. 390 F. Supp.161 (D. Ariz. 1975).
465. Id. at 163.
466. Bares v. Costle,561 F.2d983, 990 n.55 (D.C. Cir. 1977). 467. 760 F.2d 1330(D.C. Cir. 1985)(dissenting fromdenialof rehearing banc). en
in VII purposes,that decision at least demandsadjustments subsidiarydoctrines.468 These judges thus contended that Title VII could not have been intended to reach desire-based discrimination because doing so would permit bisexuals to evade liability. The embarrassment that bisexuality causes sexual harassment jurisprudence is clear. An individual who would be liable for engaging in certain conduct can evade liability for that conduct by engaging in more of the conduct directed at the opposite sex. I call this the "double for nothing" problem-by doubling the proscribed conduct, the harasser lowers his liability to nothing.469 This result is so counterintuitive that commentators who usually seem far apart on the political spectrum-such as Robert Bork and Catharine MacKinnon-can agree that this result is anomalous.470 The problem of the bisexual harasser demonstrates the manner in which bisexuality destabilizes norms that privilege sex-based distinctions. Title VII privileges sex as a diacritical axis-only discrimination that occurs on this axis (or on another enumerated axis) is actionable. As such, the statute cannot encompass bisexuals who are truly sex-blind within its prohibitions. I earlier noted that the sex-blind bisexual (or asexual) might be celebrated as the only type of individual who could credibly say that she never discriminated on the basis of gender.471 But the sex-blind bisexual may express hostility to others indiscriminately as well. And when she does so, our norms against sex discrimination will be insufficient to hold her liable. The fact that bisexuals have garnered this "advantage" over both heterosexuals and homosexuals explains their relative visibility in the sexual harassment jurisprudence. In areas of the law where differential treatment of the sexes is not required, bisexuals are neither privileged nor visible. A bisexual
468. Id. at 1333n.7. 469. It bearsnote thatthis "doublefor nothing" problemis notjust a problemin the desirebased harassment who harassed both men and women in nonsexual context,insofaras a harasser of of... sex" test. The biways would also evadeliabilityundera strictapplication the "because sexualharassment is harassment exemption thusa subsetof an "equal opportunity" exemption. The fact that"doublefor nothing"is not specific to the desire-based contextshouldnot be surprising, becausethe problemarisesfromthe asymmetrical treatment sex required the "because of of... by sex" languagein the statute, thananything rather specificto desire. But this meansthatthe minatory statements made about"doublefor nothing"in Vinsonlack to subtlety. Thesejudges arguedthatTitleVII couldnot havebeen intended reachthe desire-based context because of "doublefor nothing." But the fact that the problemis not specific to desire meansthatit cannot-without further that argument-be used by courtsto sustainthe proposition Title VII coversnondesire-based harms not desire-based but harms. 470. CompareVinson,760 F.2d at 1333 n.7 (noting that a bisexual harassment exemption would entail a "bizarre A. at result"),with Brief amicuscuriaeof Catharine MacKinnon, 22 n.6, Oncalev. Sundowner OffshoreServs.,Inc., 523 U.S. 75 (1998) (No. 96-568) (stating,in the course of a description thebisexualharasser, "equal of that discrimination a clearoxymoron"). is 471. See text accompanying 338 supra. note
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couldnot defendagainsta same-sexsodomychargeby sayingthathe had also engagedin cross-sexsodomy. Thismeansthatthereis no incentivefor to commentators makebisexualsvisiblein the sodomycontext-there is no whichcriticsmustinveigh. privilegeagainst The visibilityof bisexualsin sexualharassment also jurisprudence sugin someinstances morevisiblein the law thanin thatbisexuals be may gests notedthe bisexual in possibility the late 1970s,472 societyin general. Courts of This surwell in advance a national bisexualmovement.473 is somewhat behindsocialknowlas legal knowledge sexuality of prising, lags generally The to rule,however,maybe exedge of sexuality.474 exception the general
plained by the formalismof the law. The logic of the "because of... sex"
formulation forcedcourtsto hypothetically envisionthe bisexualharasser before he ever made an actualappearance.Logic thus opened up long imaginative spacesof possibilitybeforesuch spaceswere politicallyoccuin anyrobust pied way.
2. (Incoherently)closing the bisexual harassmentexemptionbisexual invisibility.
One strategy dealingwiththe bisexualharassment for exemption-class erasure-couldhavebeenpredicted fromthe previous discussion bisexuof When Vinson madeits way to the Supreme ality. Court,the Court finally statedthatdesire-based harassment cognizable was underTitleVII.475 so In made by then-judges stating,the Courtimplicitlyrejectedthe argument Bork,Scalia,and Starrin thatcase. The basis for thatrejection, however, was not clear;the Courtevadedgivingone by simplyignoring bisexuals.476 Andwhenthe OncaleCourt reaffirmed sexualharassment cognizathat was ble insofaras it was discrimination "because of... sex,"477 once again it the sidestepped problemof the bisexualharasser erasingbisexuality.478 by The invisibilityof bisexuality Oncalewas particularly in ironic,given that JusticeScalia-who as a circuitjudge had insistedon the visibilityof bisexuality-wrotethe opinionfortheCourt.479
472. See, e.g., Barnes,561 F.2dat 990 n.55. 473. See note 416 supra and accompanying (datinginauguration nationalbisexual text of movement late 1980s). to 474. See notes431-432supraandaccompanying text. 475. Meritor SavingsBankv. Vinson,477 U.S. 57, 64 (1986). 476. See id. (making mention thebisexualharassment no of exemption). 477. Oncalev. Sundowner OffshoreServs.,Inc.,523 U.S. 75, 78-80 (1998). 478. See id. (makingno mentionof thebisexualharassment exemption). 479. CompareVinson v. Taylor,760 F.2d 1330, 1333 n.7 (D.C. Cir. 1985) (Bork, Scalia, StarrJJ.,dissentingfromdenialof reh'g en banc)(raisingthe possibilityof the bisexualharasser), withOncale,523 U.S. 75 (ignoring possibilityof bisexualharasser). the
As the contrast betweenJusticeScalia'spositionsin Oncaleandin Vinson illustrates, elisionis not a particularly in strategy this areaof persuasive as confessedthe existenceof bisexujurisprudence, courtsthathave already in ality in one case cannotlogicallydenyit in another.Perhaps recognition of this, othercircuitcourtshave engagedin milderformsof class erasure, denialof the exisengagingnot in elisionbut in explicit(andincomplete) tenceof theclass. Thus,in Hensonv. Cityof Dundee,480 Eleventh the Circuit statedthat"[e]xcept the exceedingly in atypicalcase of a bisexualsuperviis based on sor, it shouldbe clear that sexual harassment discrimination sex."481 That1982opinion'slanguage aboutthe "exceedingly atypicalcase of a bisexualsupervisor" becomea boilerplate has phrasein sexualharassmentcases.482 neither Hensoncourtnor any othercourtemploying But the its phrase everexplains bisexual is why supervision so rare. In fairnessto these courts,actualdefendants who deploy the bisexual harassment defensearerare. Suchdefendants moreoftenin fiction483 appear or hypotheticals484 actuallitigation485; defensehas been raisedin than the
only two cases and has been rejectedin both.486Defendantsmay understand that the "double for nothing"reasoning underlyingthe defense violates equitable intuitions,487 may fear that courts will privilege that intuition and above the exemption. Alternatively,bisexual harasserswho self-identify as straightmay fear coming out as bisexual more than they fear potential liability. Such harasserscould rationallyassume that the potentialstigma of being
480. 682 F.2d897 (11thCir. 1982). 481. Id. at 905n.11. 482. See, e.g., Doe v. Cityof Belleville, 119 F.3d563, 576 (7th Cir. 1997) (quotingHensonv. v. City of Dundee,682 F.2d 897, 905 n.l (11th Cir. 1982));Fredette BVP Management Assocs., 112 F.3d 1503, 1506 n.5 (11thCir. 1997)(same);Jonesv. Flagship Int'l,793 F.2d 714, 720 n.5 (5th Cir. 1986) (same);McCoyv. Johnson Controls WorldServs.,Inc., 878 F. Supp.229, 232 (S.D. Ga. 1995) (same);Demele v. Belle of Orleans,L.L.C., 1997 WL 411558 at *7 n.7 (E.D. La. July 21, 1997) (same). 483. See Miller,supranote432, at 165. 484. See, e.g., Applebaum, supranote432, at 601-02 & n.1. 485. See AmicusBriefof Catharine MacKinnon, supranote 470, at 21-22 ("Theso-calledbisexual harasser,eluding equalitysnaresby indiscriminately sexually harassingmen and women alike, stalksthejudicialimagination, cuttingquitea figurein legal hypotheticals." (footnotesomitted)). 486. Thebisexualharasser defensehasbeenraised,butnot accepted, two cases. See Raney in v. Districtof Columbia, F. Supp.283, 287-88 (D.D.C. 1995);Ryczekv. GuestServs.,Inc., 877 892 F. Supp.754, 762 (D.D.C. 1995) (granting on summary judgmentto defendant othergrounds). A similar"equalopportunity harasser" defense has been raisedto no avail in two othercases. See Steinerv. ShowboatOperating 25 F.3d 1459, 1464 (9th Cir. 1994);Chiapuzio BLT Operatv. Co., have failed to ing Corp.,826 F. Supp. 1334, 1336-38(D. Wyo. 1993). In othercases, defendants raise the bisexualharasser defensewhereit mighthave been expected. See, e.g., Griswoldv. Fresenius USA, Inc., 978 F. Supp.718, 723 (N.D. Ohio 1997) (involvingmarried man who allegedly othermen andfailedto raisebisexualharasser sexuallyharassed exemption); Hopkinsv. Baltimore Gas & Elec. Co., 871 F. Supp.822, 824 n.2, 835 (D. Md. 1994)(same). 487. Cf. Saulpaugh MonroeCommunity v. Hosp.,4 F.3d 134, 144 (2d Cir. 1993) (noting,in ? 1983 context,thatit wouldtake"audacity" a defendant raisea bisexualharassment for to defense).
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labeledharassers less thanthe definitestigmaof self-identifying biwas as sexuals.488 The fortuity not manybisexuals that havepressedthe defense,however, avoidsrather thananswersthe problem the bisexualharassment of exemption. It also does not sufficein thosesituations whichthe defenseis actuin in to a ally raised. Perhaps response bothpoints,somecourtshaveproffered differentway of dealingwith the problemof the bisexualharassment exwhichis ultimately morecoherent, tradeson bisexemption.Thisapproach, ual visibility, rather invisibility. than 3. (Coherently) harassment closingthebisexual exemptionbisexual visibility (again). A morecoherent of closing(or at leastsignificantly the way narrowing) bisexualharassment notes thatwhile bisexualsmay desireboth exemption men and women,they will not necessarily manifestthat desire in a sexneutral for way. Thispremisesignificantly mitigatesthe "double nothing" for if bisexualstreatmen and womenin sex-differentiated problem, ways, a of... sex"test. Thecourts, albeitin theywill stillbe liableunder "because a haphazard undertheorized havehypothesized number waysin and a of way, whichbisexualdesiremay havesex-differentiated In manifestations. so dohave significantly narrowed bisexualharassment the ing, they exemption by the than more,rather less, visible. making bisexual will First,some courtshave statedthata bisexualharasser not evadelimembers one sex. In otherwords,the harasser of abilityif he only harasses cannotescapeliabilitysimplyby desiring both sexes, he mustalso express thatdesirein harassing toward bothsexes. Thisrequirement actual of ways harassment bothsexesdistinguishes bisexualharasser of the from exemption the bisexualharassment the exemption.In Raneyv. Districtof Columbia,489 district courtnotedthatBarnesv. Costle490 be readas providing the could for former whilethesubsequent of Bundy Jackson491 be case v. could exemption, readas providing the latter.TheRaneycourtitselfreadBundyas a clarifor ficationof Barnes,andthusrequired actualharassment both sexes.492 of It notedthatwhilethe defendant thatcasehadraisedthe defensethathe was in bisexual,he was allegedto have only harassed men, andthe courttherefore his defense. rejected
488. This is particularly given that, as Colkerhas pointedout, an employeewho selftrue identifiesas bisexualcan be terminated thatbasis withoutincurring on Title VII liability for the employer.See Colker, BisexualJurisprudence, supranote401, at 135-36. 489. 892 F. Supp.283, 287-88 (D.D.C. 1995). 490. 561 F.2d983, 990 n.55 (D.C. Cir. 1977). 491. 641 F.2d 934, 942 n.7 (D.C.Cir. 1981). 492. See Raney,892 F. Supp.at 288.
bisexualcannot Second,one courthas statedin dictathata sequential the exemption even if he harasses bothmen andwomen. In Tietgen deploy
v. Brown's Westminster the Motors,Inc.,493 courtnoted that the bisexual har-
assmentexemption sexualharassment a bisexualhar"maynot prohibit by asser" insofar one assumes he or she "chooses as that whomto solicitfor sex to otherthangender."494 went on, however,to It according some criteria contestthis assumption, notingthat"itmaybe thata bisexualsolicitsa person for sex basedon the person'sgender, whichgenderthe bisexualprefers at thatmoment."495 courtthusraisedthe possibility for example,an The of, individual who directshis sexualattention solely to womenfor a periodof his time,thenswitchesoverto directing attention solely to men for a period could still arguethatat the time he was harassing individual any man, no womanwas in danger,and vice versa. If one acceptedthis argument, his harassment wouldhaveoccurred "because of... sex."497 that had sexFinally,courtshaveimplied evenif the harasser concurrent ual desireforbothmenandwomenandharassed themboth,he couldstill be liableif he expressed desirein different that v. ways. In Chiapuzio BLTOpa courtnotedthatthe defendant's eratingCorp.,498 district claimthatits embothmen andwomen"raised specterof the the ployee EddieBell harassed 'bisexualharasser."'499 courtexorcisedthatpossibilityby contending The thatalthough Bell harassed bothmen andwomen,he harassed themin differentways; specifically, makingremarks aboutsex acts he wantedto by
of time.496Even if he harassedthe same numbersof men and women, one
493. 921 F. Supp. 1495(E.D. Va. 1996). 494. Id. at 1501n.10. 495. Id. 496. The Weinbergstudydocumented existenceof bisexualswho were attracted one the to sex or the otherdepending their"mood" a given time. See WEINBERGAL.,supra note 113, on at ET at 55. One such bisexualstated: "I don'tthinkit has muchto do with pittinga good-lookingman againsta good-lookingwoman. I thinkit has more to do with my own feelings of whetherI'm attracted menor womenmoreat a particular to point."Id. 497. As Garbernotes, the distinctionbetweensequentialand concurrent bisexualityis less thanclear: Clinicians thesedaystendto characterize as or bisexuality either"sequential" "concurrent," the depending uponwhether same-sex/opposite-sex are relationships going on at the same time. Butalthough will at firstseemusefulin making this it grossdistinctions, is finallyless clearthanit appears.Forone thing,what,precisely, "thesametime"? Alternate is nights? Thesamenight?Thesamebed? GARBER, supra note 11, at 147. If one collapsesthe distinction betweensequential concurrent and bisexualityin this way, one can completelyclose the bisexual harassment exemption,but only, at perhaps, the cost of absurdity. 498. 826 F. Supp.1334(D. Wyo. 1993). 499. Id. at 1336.
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with womenbut not with men.500 the Therefore, courtconcluded, perform occurred "because Bell's harassment of... sex."501 is liable Chiapuzio not reallyan exampleof a courtfindinga defendant bothsexes in a desire-based sex-differentiated for concurrently but harassing that of way. This is becausethe courtdetermined while Bell's harassment of womenwas sexual,his harassment menwas not. The courtthusdeemed thatBell was not a bisexualharasser, rather "equal but an haropportunity" asser-that is, someone whoharassed menandwomen,butwho didnot both harassbothin sexualways. Indeed,the factthatBell harassed sex but one not the otherin a sexualway provided sex-based the distinction neededfor TitleVIIliability. The logic of Chiapuzio,however,may be easily extendedto sexdifferentiated desire-based harassment both sexes. To see this, consider of thatthe courtcouldhavereasonably readBell's comments towards men as and beingsexualin nature, couldstill havefoundBell liable. Bell's conduct is entirelyconsistentwith what a man who had desire for both men and womenmight do in a societythat stigmatized same-sexbut not cross-sex desire-that is, expresshis desirefor womenopenly,but findmorecloseted his ways of expressing desireformen. Evenif the courthadfoundthisto be the case, however,Bell would still have been liable. If desire(even sexneutral itselfin a systematically sex-differentiated that desire)manifests way, is logicallysufficient meetthe "because to of... sex"requirement. These analyticmoves do not completely close the bisexualharassment who was genuinely"sexexemption-theremight be a bisexualharasser blind"suchthatthe sex of the victimhadno salienceto him.502 such a In the bisexualharassment would still obtain. Nonetheless, case, exemption the morevisiblehastheeffectof significantly the making bisexual narrowing bisexualharassment a of thebisexual, exemption. painting subtler By picture we see thatnot all bisexualsare"sex-blind," to the extentthatthey are and a for" not,theywill be liableevenunder "but test.
C. Recognizingand Closing the HorseplayExemption
Bisexualvisibilitydoes not havemuchnormative in the contextof bite the bisexualharassment The exemption already has been closed exemption. as a practical bisexualvisibilityonlyprovides morecoherent a matter; justificationfor thatclosure. In contrast, bisexualvisibilityhas significant nor-
500. See id. at 1337-38. 501. See id. at 1338. 502. As notedabove,however,I am dubiousaboutthe robustness the "sex-blind" of bisexual text. category. See notes 317-319supraandaccompanying
mativeconsequences another for in exemption the sexualharassment juristhehorseplay prudence: exemption. The horseplayexemptionoccurs in the same-sex sexual harassment context. The exemption ariseswhenharassers (almostinvariably males)defendagainstaccusations homosexual of harassment recasting conduct the by as heterosexual horseplay. Becausethe jurisprudence emphasizessexual overnonsexual this of if harm,503 re-characterizationthe conduct, successful, oftenabsolvestheharassers liability. of Unlike the bisexualharassment the is exemption, horseplay exemption wide open as a matter practice.504 discrepancy be explained of This can by the relationship eachexemption to judicialintuitions that has aboutfairness. The bisexualharassment exemptionwas closed because the "doublefor it of nothing" problem raisedviolateda judicialintuition equity. The horsein is withsucha judicialintuition.Speplay exemption, contrast, consistent reflectsthe intuitionthat the homosocialand the cifically, the exemption homoerotic sufficiently are intertwined ambiguity that shouldbe resolvedin favor of the former,lest heterosexuals mistakenly be re-characterized as The nonheterosexuals.sos statusquo in whichthe bisexualharassment exremainsopen thus is soemptionis closed while the horseplay exemption ciologically intelligible. Thatstatusquo,however, also defieslogic. Thisis becausethe recognition and closureof the bisexualharassment relied on bisexual exemption as it now stands, visibility. Thehorseplay exemption however,relies on bisexualinvisibility.Closingthebisexual harassment thus exemption logically at the requires leastsignificantly narrowing horseplay exemption. In makingthis argument, firstexaminethe nature thejudicialintuiI of tionthatkeepsthehorseplay moves exemption open. I thennotethe analytic the courtsmaketo protectthe horseplay out thatthese exemption, pointing moves rely on bisexualinvisibility. Finally,I considerhow the enhanced wouldforeclosethesemoves,requiring significant visibilityof bisexuality a of narrowing the exemption.
503. Some may questionwhetherthis is still the case after Oncale v. Sundowner Offshore Servs.,Inc., 523 U.S. 75 (1998). I addressthis questionbelow. See notes 535-549 infra and actext. companying 504. See, e.g., McWilliamsv. FairfaxCountyBd. Of Supervisors, F.3d 1191 72 (4th Cir. 1996); Martinv. Norfolk S. Ry. Co., 926 F. Supp. 1044 (N.D. Ala. 1996); Tietgen v. Brown's Westminster Motors,Inc.,921 F. Supp.1495(E.D. Va. 1996). 505. This intuitionis probably impetusbehindthe various"queen-for-a-day" the exemptions describedabove,in which adventitious homosexual conductis not seen as damagingan otherwise heterosexual status. See notes 100-106supraandaccompanying text.
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1. Understanding horseplay-the homosocial and the homoerotic. Intimate actions among men are ambiguous-they can be either homosocial or homoerotic. This ambiguityis peculiar insofar as the two ways in which it can be resolved are diametricalopposites. Usually when an ambiguity must be resolved, the two ways of resolving it are quite similar to each other; indeed, it is their similaritythat leads to the confusion. Intimateacts among men, however, are not ambiguous in this way; the social meanings and consequences of homosociality are squarelyopposed to those of homoeroticism. One way of construingthe oppositionis to understand homosociality as a means of making men, and homoeroticismas a means of unmaking them. Homosociality is a means of making men insofar as the men who can take (and dish out) hazing, razzing, or horseplay are constituted as "real"men, while those who cannot(or who choose to opt out) are constitutedas "failed" men. These rites are often explicitly formulated as initiations where the manhood of those hazed is tested and the manhood of those hazing is reaffirmed.506Even when they are not so formulated,homosocial behaviors often performthat function. Over a course of homosocial conduct-however inchoate-a verdict is reached as to whether the new worker is "one of the guys" or not.507 Homoeroticism, in sharp contrast,is a means of unmakingmen.508 As can be seen in the earliest formulationsof homosexual men as "inverts"that is, as women trappedinside men's bodies509-a homosexual male was a man who would reveal himself to be a woman (and thus a failed man). That of gay men are viewed as failed men can also be seen in the characterization failed men as gay men.510 In case after case, the workplace outcast is cast
506. See HANKNUWER,THE DEADLYRITEOF HAZING204-06 (1990) (describing highly sexualizedhazingritualthrough whichCoastGuard initiatesareinducted-or not-into the group). 507. See MichaelS. Kimmel,Masculinity Homophobia: as Fear, Shame,and Silence in the Construction GenderIdentity,in THEORIZING MASCULINITIES 128-29 (HarryBrod & Miof 119, chael Kaufman men watchus, rankus, grantour acceptance eds., 1994) ("Other into the realmof manhood.... Masculinity a homosocial is enactment.We test ourselves,perform heroicfeats,take enormous risks,all becausewe wantothermen to grantus ourmanhood."). 508. This is, of course,a culturally claim. In otherculturalcontexts,homoeroticontingent cism could be seen as a meansof initiatingyouths into manhood. See, e.g., EVACANTARELLA, BISEXUALITY THEANCIENT IN WORLD6-8 (Cormac O Cuilleanain trans., 1992) (describing such initiations ancientGreeksociety). in 509. See Edwards, supranote 342, at 112. 510. See GaryKinsman,Men LovingMen: The Challengeof Gay Liberation,in BEYOND
ed., 1987) ("'Real'men are intrinsically are heterosexual; men, therefore, not real men.");Jogay OtherMen,and Society:A Men'sMovement seph H. Pleck,Men'sPowerwith Women, Analysis,in THE AMERICAN 417, 424 (Elizabeth Pleck & JosephH. Pleck eds., 1980) ("Oursociety MAN H. uses the male heterosexual-homosexual of dichotomyas a centralsymbolfor all the rankings masculinity, for the division on any groundsbetween men who are 'real men' and have power and
PATRIARCHY: ESSAYSBY MENONPLEASURE, ANDCHANGE POWER, 103, 104 (Michael Kaufman
as "out" a homosexual, of thereis evidencethathe maniregardless whether festedanysame-sex desire.511 in The factthatintimate intra-male can be interpreted diametrically acts A act opposed fraught.512 misreading waysmakesthatinterpretive extremely of will as of homosociality homoeroticism havethe devastating consequence a real manas a failedman. In resolvingthatambiguity, riskthe branding will aversedecisionmaker erron the side of heterosexuality. Thistendency couldbe defended thegrounds we believethe majority the populaon of that tion to be straight.Thatdefense,however,may be insufficient, thatthe in courtsarenot dealingwiththe general butwiththe subsetof that population,
populationwhose same-sex conducthas given rise to a claim of harassment. This suggests thatthe premise here may be less statisticalthan equitable; courts may believe that where any ambiguity exists, it is better to let the guilty homosexual go free than to convict the innocent heterosexual. That equitable premise, however, will create problems of its own when the costs
males who are not. Any kind of powerlessness refusalto competebecomes imbuedwith the or imageryof homosexuality."). 511. See, e.g., Johnson Hondo,Inc., 125 F.3d408, 410 (7th Cir. 1997) (worker'smasculinv. of ity impugned allegations homosexuality, by despitelackof evidenceof same-sexdesire);Doe v. and City of Belleville, 119 F.3d 563, 566-67 (7th Cir. 1997) (workerwith earringcalled "queer" "fag"despitelackof evidenceof same-sexdesire). 512. One might ask if it is just an unfortunate coincidencefor real men that the modality themselvesand otherreal men looks awfully like the modality throughwhich real men constitute which failed men constitute themselvesand otherfailed men. I believe thatit is no accithrough dent. To see this, imaginea worldin which same-sexhorseplaydid not exist-where men constitutedthemselvesandothersas real men by otherexistingmethods-by workperformance, or say, by salary. Real men never touchor engagein sexualbanter. Thus,whenevera man touchesanothermanor attempts sexualbanterwith him, the importis unambiguous-thatman is gay. What do realmen lose whentheyenterthis imaginary world? At least two things. First,theylose the abilityto appropriate signifierof the "private the parts" to show how close they are to each other. Even if we assumethe absenceof desire,it still makes sense thatmanyhomosocialhazingactivitiesinvolve male genitalia. This is becausethe genitalia are being deployedhere as signifiersof the private,ratherthanas signifiersof sex (althoughof course theirsignificationas the "private" stems in partfrom theiruse in sex). When someone's genitaliaare used in a hazing ritual,the message is that the hazed man's most privateparts are availableto the men who haze him. Suchhazingcan be interpreted a formof domination-of as forcingthehazedmanto admitthathe is powerlessto keepthe hazersfromviolatinganypartof his body. Orit can be seen as a formof community-of forcingthe hazedmanto admitthatthe group is so tightthatthereis no realmof the "private" he can withholdfromthe group. In eithercase, that the hazedman's constitution a "real" as manwill dependon his abilityto demonstrate he can that survivethis incidentof powerlessness. Second,they lose the abilityto provethatthey are so powerfulthatthey can engagein taboo activitieswithoutsufferingthe consequences thattaboo. Straight of men may be most able to constitutethemselvesas straightmen when they engage in homosocialactivity,because this permits them to demonstrate even when they skate very close to the edge of homosexualascription, that they never fall over it. Anotherway of thinkingaboutthis is to considerhow the closeted homosexual might be most afraidof engagingin "parodic" demonstrations homosexuality, that of lest ostensibleparodybe recognized revealing underlying as his homosexuality.
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of lettinga bisexualor a homosexual free as a heterosexual includethe go unredressed he harms hasvisitedon others.Thisis thepreciseissueraisedin the sexualharassment context.
2. Recognizing the horseplayexemption-bisexual invisibility.
the Fairfax County Board of Supervisors,513 court noted that the harassers
In the same-sexsexualharassment context,courtsare often confronted with male-on-male intimateconductand askedto determine whetherthat conduct homosocial homoerotic.Thepriority desire-based is or of claimsin the sexualharassment meansthatthe harasser will be much jurisprudence morelikelyto be liableif theconduct deemed is sexual. Thus,thetaskof the courtsis doublyfraught; are not only determining sexual orientation, they butalso liability. To decidethatthe harassser heterosexual oftensimulis is to is taneously decidethathe is not liable;to decidethatthe harasser homosexualis oftensimultaneously decidethathe is liable. to The courts'reluctance interpret to conductas homoerotic ambiguous rather as homosocial oftencarried extremes; long as theharasser than is to so has not openlyadmitted homosexuality bisexuality, his or courtsworkfuriv. ously to assignhim a heterosexual identity. Forexample,in McWilliams engagedin the followingconduct:
On at least threeoccasions,coworkers McWilliams'handstogether,blindtied foldedhim, andforcedhim to his knees. On one of these occasions,a coworker mouthto simulatean oral sexual act. During placedhis fingerin McWilliams' anotherof these incidents,a coworker,Doug Witsman,and anotherplaced a broomstick McWilliams'anuswhile a thirdexposedhis genitalsto McWilto liams. On yet anotheroccasion, Witsmanenteredthe bus on which McWilliamswas workingandfondledhim.514
duct in this case as "razzing hazing"517 "merelockerroom antics, and or joking,or horseplay."5s8
This conduct skates close to violating prohibitionson sodomy (a quintessentially sexual category) in some jurisdictions.515 Nonetheless, McWilliams's coworkers characterizedit as "horseplay."516 While the McWilliams court did not itself use this characterization, other courts have described the con-
513. 72 F.3d 1191(4th Cir. 1996). 514. Id. at 1193. 515. Texas's sodomy statute,for example,prohibitssame-sex "deviatesexual intercourse," TEX.PENAL CODE ANN.? 21.06(a) (West 1994), and defines "deviatesexual intercourse" into clude"thepenetration of... the anusof another CODE ANN.? personwith an object." TEX.PENAL 21.01(1)(B)(West 1994). 516. McWilliams Fairfax v. 72 CountyBd. of Supervisors, F.3d 1191, 1194 (4th Cir. 1996). 517. Fredette BVP Management v. Assocs., 112 F.3d 1503, 1507 (11thCir. 1997). 518. Tietgenv. Brown'sWestminster Motors, Inc., 921 F. Supp.1495, 1501 (E.D. Va. 1996).
the Courts rationalize resolution ambiguity favorof heterosexuality of in in two ways. First,courtsreasonfromthe premisethat the harasser has manifested cross-sexdesireto the conclusionthathe therefore harbors no same-sexdesire. Second, statethattheywill notimputesexualdesireto they a harasser the same-sexcontextunlessthe plaintiffhas actuallyproven in thatthe harasser homosexual.519 say thatthe courtsdo not mention is To bimoves does not seem to be saysexualityin makingeitherof theseanalytic that coulddo to thesemovesis nonobviing much. The damage bisexuality ous. But whenwe examinethesemovesmoreclosely, we see thatbothof themcanbe deeplyproblematized bisexual by visibility.
3. Closing the horseplayexemption-bisexual visibility.
Bisexual visibility significantly narrowsthe horseplayexemptionby the movesmadeto keepit open. Bisexualvisibility challenging two analytic the of statusas pre-emptive disrupts firstmove-the assertion heterosexual of homoerotic conduct-because it makesthis statusimpossibleto prove is conclusively. Whenthe harasser claimingheterosexual status,all he is is cross-sexdesire-that he has a reallyadducing evidencethathe manifests as etc. Whentheplaintiff is wife, thathe is perceived straight colleagues, by thathomoerotic conductoccurred, is imputing he same-sexdesire claiming to the harasser.In findingthese allegations be in tension,the courtsare to of of reallysayingthatallegations cross-sexdesireandallegations same-sex desireconflict. But as noted above,520 premisethatbisexualityexists the meansthatthe harasser's of allegations cross-sexdesireand the plaintiffs of in allegations same-sexdesirearenot necessarily tension. If boththe harasser'sallegations cross-sexdesireandthe plaintiffs allegations sameof of sex desireareplausible, factfinder the shouldnot assumethateitheris lying or mistaken,but rathershouldentertain possibilitythat they are both the and thatthe harasser therefore is bisexual. This of coursemakesit right, more likely that courtswill deem the conductto be sexual,which in turn makesit morelikelythattheywill deemit to be a TitleVIIviolation. One exampleof the first analyticmove can be found in Johnsonv. and in Hondo,Inc.521 Johnson Hicksworked an all-male environment the for Coca-Cola Johnson's Company.522 complaint allegedthatHicks subjected him to "homosexual statements such as "I'mgoing advances,"523 including
519. A thirdstrategythatthe courtsuse is simply to denominate conductin questionas the horseplayby repressingthe homoerotic possibility. This strategyrelies on fiat ratherthan argument-the difficult interpretive problemof whetherthe defendantis engaged in homosocialor homosexual behavior wishedawayrather is thanconfronted.I do not addressit further here. 520. See notes 259-313supraandaccompanying text. 521. 125 F.3d408 (7th Cir. 1997). 522. See id. at 410. 523. Id. at 413.
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to makeyou suckmy dick,""comedownto the carwash suckmy dick," and "comeacrossthe streetand suck my dick,"and actionssuch as simulated masturbation.524 The courtfoundthattherehadbeenno harassment becauseit foundthat Johnson'stestimonybelied his belief thatHicks had made a "homosexual
advance"on him.525The courtmaintained:
Forexample,Johnson testifiedthaton one occasion,Hicks approached and him said: "I'm going to get my dick sucked,"and then, apparently referringto Johnson'sgirlfriend, Hicks said "I thinkshe's probably TV now. I'll watching go by andhave thatbitch suck my dick." Hicks also said, "thatbitch oughtto be gettingin the showerrightnow .... [T]hatredhead bitchgot a nice ass too. I oughtto go get my dick sucked."It is extremelydifficultto reconcileremarks such as these with Johnson'sstrained contention Hickswas making"homothat
sexual advances" toward him.526
termining whether Johnson has a desire-basedclaim. Notwithstandingthis problem,however, the logic of Johnson has been used in othercases.527
sex desirearguably that negatethe inference Hicksis homosexual, they do not negatethe inference he engagedin "homosexual that advances."And it is the latter,rather thanthe former, whichis relevant the purpose defor of
The court thus used Hicks's expressions of cross-sex desire as negating the possibility that he harboredsame-sex desire. This is logical only if the bisexual possibility is elided. If the bisexual possibility is recognized, the allegations of cross-sex desire are irrelevant. For while the allegations of cross-
524. Id. at410 n.1. 525. Id. at 413. 526. Id. 527. In Bolt v. NorfolkS. Corp.,22 F. Supp.2d512 (E.D. Va. 1997),the courtdenieda samesex sexual harassment claim because"therecordprovidesno basis for an inferencethatWilliams was homosexualotherthanhis harassing conduct." Id. at 518. Evidencedrawn [the defendant] fromthe recordforthe oppositeconclusionincluded:(1) "Williams married was duringmost of the time in question"; "Bolt [the plaintiff]saw Williamsout with a woman socially";(3) "Bolt (2) never saw Williamson a date with a man";(4) "Williamsdenie[d]that he is a homosexualand that for aver[red] he has neverheld any sexual attraction Bolt";(5) "Boltsaid he did not know if Williamswas homosexual, how to tell if someonewas homosexual, admitted he did not or and that know whetherWilliamssubjectively intendedto joke, engagein horseplay was serious." Id. at or 518-19. The courtthennotedthat"[t]heonly evidenceotherthanthe harassing conductitself is a who aversthathe was told by co-workers swornaffidavitby a co-worker shortlyafterjoining Norfolk Southern Williamswas homosexual, that despitethe fact he was married."Id. at 519. It then noted that"[t]hisstatement, at however,wouldbe inadmissible trialto prove Williamsactuallyis homosexual."Id. Inc., 930 F. Supp. 1107 (M.D.N.C.1996), the courtrejecteda Similarly,in Gibsonv. Tanks same-sex sexual harassment claim in partdue to the absenceof evidence that the defendant was homosexual,noting that "[i]n fact, [the plaintiffs] depositionindicatesthat [the defendant]was married occurred." at 1109. Id. duringthe timethe allegedsexualharassment And in Eastonv. Crossland 905 F. Supp. 1368 (C.D. Cal. 1995), rev'd and MortgageCorp., remanded othergrounds,114 F.3d979 (9th Cir. 1997),the courtfoundno sexualharassment on of the female plaintiffsby their female supervisors, noting the absenceof "evidencethat the defendantsare lesbians," pointingout that"[i]nfact, the recorddemonstrates the opposite." Id. and just
A second strategythe courtsuse to characterize conduct as horseplay the relies on the fact that the plaintiff has not proven that the harasseris homosexual. Thus, in McWilliamsv. Fairfax CountyBoard of Supervisors,528 the court dismissed McWilliams's suit because "no claim is made that any [of the harassers]was homosexual."529 Other courts have approvedits requirement that a plaintiff must generallyplead and prove the homosexualityof the harasserin orderto prevail in a same-sex harassmentsuit.530 Even assuming a straight/gaybinary,making liability turn on one's sexual orientationis a potentialnightmare,raising issues of privacy and propriety.531And once the bisexual possibility is introduced,the inquirybecomes even more complicated. In a simple straight/gayregime, the plaintiffs attempt to prove same-sex desire would be blocked by credible evidence of the harasser'scross-sex desire. But again, once the bisexual possibility is introduced, such evidence of cross-sex desire representsalmost no obstacle to the plaintiff tryingto make out a claim of same-sex desire. The plaintiff seeking to prove that the harasserharboredsame-sex desire would thus be entitled to continue digging for that evidence no matterhow much evidence of crosssex desire the harasseradduced. To my knowledge, only one court has attachedconsequences to its own acknowledgementof the bisexual possibility. In that case, Griswold v. Fresenius USA, Inc.,s32 court observed that an alleged harasserwho had adthe duced evidence of cross-sex desire could still have engaged in homoerotic conduct.533Based on this observation,the court permitted the plaintiff to continue searchingfor evidence of the alleged harasser'sbisexuality.534 When the bisexual harassmentexemption is read against the horseplay exemption, it becomes clear that we cannot close the first without significantly narrowingthe second. Once courtsadmitin one context thatbisexuals exist, they cannot then turn around in another context and presume that cross-sex desire ipso facto negates the existence of same-sex desire. If the
at 1380. Examplesdrawnfromthe recordincluded(1) "thekindsof decorations chosen for [one "flirtatious supervisor's] birthday party"; one supervisor's (2) questioningof the outside services discussions[the supervisors] in employee";(3) "numerous participated concerningtheirown and otheremployees'heterosexual sexualexperiences"; the plaintiffs'admissionthat "theydo not (4) know if [the supervisors] were even interested havingsex with the plaintiffs,with each other,or in if they were lesbians"; (5) the factthatbothsupervisors and "weremarried duringthe relevanttime period."Id. at 1374, 1380. 528. 72 F.3d 1191 (4thCir. 1995). 529. Id. at 1195. 530. See, e.g., Tietgenv. Brown'sWestminster Motors,Inc., 921 F. Supp. 1495, 1502 (E.D. Va. 1996)(notingbutwaivingrequirement). 531. See McWilliams, F.3d at 1198 (Michael,J., dissenting)(describingpursuitof har72 asser's"'true'sexualorientation" "complicated, as and far-ranging elusive"). 532. 978 F. Supp.718 (N.D. Ohio 1997). 533. See id. at 727-28, 730. 534. See id. at 730.
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wereto be madeconsistent with the portrait the biof exemption horseplay sexualpaintedin the contextof the bisexualharassment many exemption, would be liable. Whether conductwas nonsexual more putativestraights wouldbe an issueof fact. Andin theresoluor horseplay sexualharassment wouldno longerbe permitted tion of thatissue of fact, allegedharassers to conduct of simplyby making categorically negatethepossibility homoerotic of desire. plausible protestations cross-sex
D. Sexual Harassmentat a Crossroads
I havedemonstrated closingthe bisexualharassment that has exemption for the horseplay the horseplay implications exemption.Closing exemption in turnhas implications therestof sexualharassment for The jurisprudence. at is wherecourtsmustchoosewhether jurisprudence currently a crossroads to continueprivileging desireor to breakfromthattradition embracea to
route clearlymakesbettersense, it is uncleareven after Oncale that the courtswill takeit. Becauseit problematizes regulation desire,bisexuthe of the to ality could act as a goad thatprompts jurisprudence departfrom its historical fetishization desire. of
1. Thepost-Oncale status quo.
sex" standard that stops privileging desire. While the latter
In her article,Schultztrenchantly status arguesagainstthe pre-Oncale in which desire-based claimswere seen as morevalid thannondesire quo, basedclaims.535 The crux of her argument thatTitle VII prohibits is discrimination thebasisof sex;thatsex discrimination manyformsthat on takes havenothing do withdesire; therefore interpretations TitleVII to and that of thatfetishizedesirewill be underinclusive.536 a maleweldersabotages When a femalewelder'sequipment becausehe believesthatwomenshouldnot be it is even welders,forexample, seemsclearthatsex discrimination occurring thoughsexualdesireis not obviouslyat issue. Schultzproposesthatsexual harassment shouldreturn the statutory to and jurisprudence language protect discrimination-sexual otherwise-that occurs "becauseof or againstany
This proposal important has for consequences same-sexsexualharassment. In that context,a rule privileging desirehas the perniciousconsesanctions the same conductbasedon the for quenceof assigningdifferent sexualorientation the harasser.In considering horseplay of the I exemption, demonstrated the sameconduct that couldbe characterized eitheras hetero535. See Schultz,supranote 436. 536. See id. at 1796-1805. 537. See id.
sexual horseplay or homosexual harassment, and that courts made that determination based on the sexual orientation of the harasser. We also saw that, under a desire-based paradigm, an individual was much more likely to be liable for so-called homosexual harassment than for so-called heterosexual horseplay. But this effectively means that the sexual orientation of the parties can be determinative of liability; a straight person and a gay person could do the same thing and be punished differently.538 Schutlz's proposal forecloses this inequitable result, encouraging courts to redirect their attention to conduct rather than simply relying on desire-based status. As Schultz's article was going to press,539 the Supreme Court handed down its decision in Oncale.540 The Oncale Court's holding is completely consistent with Schultz's proposal. The Court not only stated that the plaintiff must "always prove that the conduct at issue ... constituted 'discrimina[tion] ... because of... sex,"'541 but also clarified that "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex."542 Thus the Court held that sexual harassment subsumed all (sufficiently severe and pervasive) discrimination that occurs "because of... sex," including, but not limited to, desire-based harassment. It would be naive, however, to celebrate Oncale's holding too quickly as implementing Schultz's proposal. Prior courts have adopted rules analogous
538. It mightfairlybe askedwhether sameactionsundertaken a nonheterosexual a the and by heterosexual trulythe "same" are conduct. Afterall, desirecouldbe characterized as a status, not but as an intent. And thereare multiplecircumstances which the same actionis treatedas two in differentformsof conductbasedon intent. If two men shoot theirneighbors, one does so inbut and the tentionally the otherdoes not, the firstis deemedto have committed murder, second manlaw definitionof 'murder' 'the killingof a humanbeing with maliceaforethought.'Manslaughis ter is 'an unlawfulkilling of a humanbeing withoutmalice aforethought."').The same actconducts-murder and shooting a human being-is deemed to be two legally distinguishable on that mind. manslaughter-based something is entirelywithinthe individual This distinctionis arguably in deployedin the Court'shypothetical Oncale,where the Court between the coach smackingthe buttocksof a male footballplayer on the football distinguishes field and smackingthe buttocksof a male secretary back in the office. See Oncalev. Sundowner OffshoreServs., Inc., 523 U.S. 75, 81-82 (1998). The smacksare the same act, but are treatedas two legallydistinctformsof conduct. Thefirst,in the Court'sview, is clearlyhorseplay, second the is just as clearlyharassment.See id. at 81. The distinction betweenthem,the Courtsays, is context. See id. at 81-82. But contexthere is shorthand desire-in the firstinstancethe conductis for readas not desirous,in the secondit is readas the opposite. The flaw in the analogyis thatdesireshouldnot be equatedwith bad intentfor at least two reasons. First,desiremay not alwaysbe withinindividual control. Second,desirecan be seen as having manypositive aspects,such that addingdesire to an otherwiseacceptableact does not in itself makeit worse. 539. See Schultz,supranote436, at 1683n.t. 540. 523 U.S. 75 (1998). 541. Id. at 81. 542. Id. at 80.
UNDERSTANDING CRIMINAL LAW ? 31.02 (1995) ("The common DRESSLER, slaughter. JOSHUA
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to Oncale'sholdingonly to have themignoredor undermined practice. in As Schultznotes,543 D.C. Circuit held in the 1985 case of McKinney the v. Dole544 harassment that couldbe cognizable under TitleVII even if it didnot tones."545 McKinney The courtfoundthat"anyharassment otherunequal or or an ployeesmay, if sufficiently patterned pervasive, comprise illegal conditionof employment underTitleVII."546 Sevenothercircuitsadopted anaof this rule,547 whichsoundsremarkably the ruleadopted Onlike in logues
cale. treatment... that would not occur but for the sex of the employee or eminvolve "sexual advances or ... other incidents with clearly sexual over-
The McKinney Some subserule, however,has had little influence.548 it quentcourtshave outright ignoredit. Othercourtshave undermined by both sexualharmand nonsexualharm,but by privilegingthe recognizing overthe latter.In otherwords,whiletherulearticulated McKinney former in madeit clearthatbothnonsexual sexualharmswere cognizable, left and it the question the relativeemphasis of courtsshouldplace on eachkind open of harm. Courts werethusnot constrained the McKinney fromconrule by to desire. tinuing privilege the of Courtmakesit unlikelythatthe Although authority the Supreme Oncaleholdingwill be ignored, couldbe undermined exactlythe way it in thatthe McKinney was undermined.Indeed,the normsarticulated rule by the OncaleCourtseem almostto invite a continued fetishization desire. of This can be seen in its discussions the two requirements a successful of for sexualharassment claim:the "because of... sex"requirement the "seand andpervasiveness" verity requirement. In enunciating "because its of... sex"requirement, Courtbeganby the and statingthat"[c]ourts jurieshave foundthe inferenceof discrimination sexualharassment becausethe easy to drawin mostmale-female situations, conduct involvesexplicitor implicit of challenged typically proposals sexual it is reasonable assumethose proposalswould not have been to activity; madeto someoneof the samesex."549 Court The hereprivileged desirethe basedrouteto provingsex discrimination (1) characterizing desire-based by: conductas the "typical" form of male-female harassment (withoutnoting thatit maybe typicalonlybecauseof the historical fetishization sexuality of and of is by the courts); (2) notingthatthe inference discrimination "easyto draw" contexts in wheredesireis present.
543. 544. 545. 546. 547. 548. 549. See Schultz,supranote436, at 1733. 765 F.2d 1129(D.C. Cir. 1985). Id. at 1138. Id. See Schultz,supranote436, at 1733n.250. See id. at 1732-38. Oncalev. Sundowner OffshoreServs.,Inc.,523 U.S. 75, 80 (1998).
TheCourt appeared privilege also to desire-based claimsin its discussion of the "severity pervasiveness" and It noted: "A professional requirement. football environment not severelyor pervasively is abusive player'sworking
... if the coach smacks him on the buttocksas he heads onto the field-even
if the same behaviorwould reasonably experienced abusiveby the be as coach'ssecretary or female)backat theoffice."550 if the smackof But (male a football'splayer'sbuttockssoundsdifferent fromthe smackof a secrebecause former the smacks of sexuality, suggeststhat less this tary'sbuttocks conductis more likely to be deemedsevere and pervasiveif it is desirebased. Courtexplicitlyheld that both desire-based Thus, while the Supreme harmsandnondesire-based harmsshouldbe cognizable, arguably it continued to privilegedesire-based harmsover nondesire-based ones. Whatwill stoplowercourtsfromdoingthe same?
2. Bisexualityas goad.
to Bisexuality maybe deployed helpthe courtsdownthe rightpathafter Oncale. I earliernotedthatthe tendencyof bisexuality confusesexual to orientation had was categories pro-gaydeployments.One suchdeployment that bisexualitycould threaten with falling into the stigmatized straights of The was were category bisexuality.551 theory thatthemorelikelystraights to be threatened homoerotic with the less likelythey wouldbe to ascription, assignliabilityto thatascription. Oneway to see how thisworksis to askwhythe Court so surethatthe is coachsmacking footballplayeron the buttocks he headsout ontothe the as field is engagedin horseplay.The answerseemsto be thatthis is football; thatsome homosocial are so transparently acts homosocial they cannot that be readanyotherway. Butthis,as we havealready seen,is simplyuntruethe homosocialand the homosexual inextricably are intertwined.Anyone who thinksthatfootballis alwayshomosocial needsto reviewhis Tennessee Williams.552 bisexualpossibility The powerfully exposesthe illogic of this defense. conclusory When that defenseis stripped away, it becomesclear that the reason footballcannot homoerotic thatsomehomosocial areso valuedthat be is acts withhomosexuality.553 even if ambithey cannotaffordto be tainted Thus,
550. Id. at 81. 551. See notes303-304supraandaccompanying text. the homoerotic undertones of"homosocial" interactions betweenfootballplayers). 553. Anotherexampleof this dynamicmightbe the NationalOrganization Women'shosof
552. See generally TENNESSEE CATONA HOTTIN ROOF(1955) (play turning on WILLIAMS,
tility toward lesbians in the 1970s. See BARRYD. ADAM, THE RISE OF A GAY AND LESBIAN MOVEMENT (rev. ed. 1995) (noting then-President Betty Friedan's description of lesbians as a 97
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is and at guitybetweenthehomosocial thehomosexual recognized one level, it mustbe repressed another. on But this answer-thatwhilethe homosocial/homosexual binaryis intrinsically unstable,straights desperately to preserveits stability-should try serveas a clue for thosearguing the of against regulation desire. Forif that can be shown to be so unstablethat self-identified heterosexuals binary themselves becomethreatened potential with homoerotic ascription, too they will havean investment nothavingliability on orientation.554 in turn This is bisexuality's final and most tentative critiqueof sexualharassment law. By destabilizing homosocial/homoerotic the binary,bisexuality revealsthatsexualityis so fluidthatheterosexuality impossible prove. is to the reaction the bisexualthreathas been repression, bito but Historically, sexual visibilityhas become sufficiently has greatthat this repression becomemoredifficult.Increased bisexual of visibilitymakesthe deployment a desire-based more risky for straights, who will encounter chalparadigm but lengesnot only to theirconduct(horseplay) also to theirstatus(heteroTo the extent that self-identified in sexual). straightshave investments immured fromscrutiny, different a formof repression keepingthosestatuses is in order. It is now not thebisexual, desireitself,thatmustbe abjured. but In sexualharassment this meansthatthe courtsmay wish to jurisprudence, leave the paththey have been on, shiftingfroma desire-based of paradigm sexualharassment a broader to "because of... sex"paradigm.
bisexualsaremostvisiblein sexualharassment Although jurisprudence, to in is bisexuality's potential effectchanges doctrine not limitedto thatarea. I do no morethantouchon two otherareasin whichit mightmakea difference-the "don't don'ttell"policyandsame-sex ask, marriage. The "don'task, don'ttell"policyraisesissuesanalogous thosein the to sexualharassment contextin thatindividual liabilityturnson sexualorientation. An individual deemedhomosexual be evictedfromthe military will if he engagesin homosexual An conduct,such as same-sexsodomy.555 individualdeemedheterosexual, can however, engagein theexactsameconduct,
"lavender menace" to the feminist movement); ROSALIND DIVIDEDLIVES:AMERROSENBERG, ICANWOMENIN THETWENTIETH CENTURY 208 (1992) (describing Friedan's view that "NOW
couldnot survive... if feminismwas identified withlesbianism"). 554. While this strategyis admittedly speculative,it has parallelsin the race context in the ante-bellum era. As Ariela Grossobserves,abolitionists fugitive slaves writingin the North and used cases in which individuals who appeared "white" were enslavedto bringhome the horror of 108 L.J. slaveryto whiteaudiences.See ArielaGross,LitigatingWhiteness, YALE 109, 127 (1998). Such accountswere meantto encourage "whitereaders imaginethemselvesin the enslaved[perto son's] shoes." Id. 555. See 10 U.S.C.A.? 654(b)(1)(West 1994).
andnot be so evictedunderthe "queen a day"exemption.556 for Here,the heterosexual an evenmorepowerful becauseit prorole ascription performs tectsindividuals even fromthe consequences theirconcededly of homoerotic thanhomosocial) acts. No one is arguing thatsame-sexsodomyis (rather but for simplyheterosexual horseplay, sodomywill not have consequences the individual canprovethathe is "heterosexual." who sexualorienAgain, tationstatusdefines liability. Again, there is no reasonwhy bisexuality couldnot destabilize thosestatuses sucha way as to forcestraights inin to sucha desire-based terrogate paradigm. At this point,a bisexualactivistmightcomment the factthatthe two on I havethusfaradduced-sexualharassment "don'task, don't and examples tell"-link increased bisexualvisibilityto increased bisexualliability. How shouldbisexualsfeel aboutthe factthattheyarebeingrendered morevisible Is of simplyto be heldmoreaccountable? this deployment bisexualvisibilOr Insofaras these ity trulypro-bisexual? is it pro-gayandanti-bisexual? areconcerned, wouldcertainly it seemthatbisexualsarebeingdeexamples as them ployedeitherto out self-identified straights bisexualsor to threaten with beingouted. Of course,as canbe seen fromthe gay context,outingis not necessarily the of is against interests the groupintowhichthe individual outed: even whencostlyto the individuals involved,it has been viewedby at It manyas beneficialto the community large.557 mightbe helpful,howin ever,to thinkof a legal instance whichbisexualvisibilitymightactually redound thebenefitof theindividual to bisexual litigant. be suchan example. Both gays andbisexualscan argue Marriage may thatthe cross-sex of violatessex discrimination norms requirement marriage becauseit permitsone sex but not the otherfrommarrying membersof a harm. This given sex. The bisexual,however, mightexpressan additional harmis thatthe stateis contributing sex-consciousness societyby disto in in menandwomen. Forthe sex-blind tinguishing thiswaybetween bisexual, this consciousness in itself a harm,becauseit impedesher from seeing is sex Becausethe "through" to othertraitsthatshe may findmoreimportant. does to homosexual, as muchas theheterosexual, not purport be blindto just sex in thisway,thisis nota harm he will adduce.558 that The claim thatthe stateharmsthe bisexualby forcingher to view the worldthrough lens of sex is, of course,a rather the one. This is esutopian
556. See 10 U.S.C.A. ? 654(b)(1)(A)-(E) (West 1994). 557. See, e.g., WARRENJOHANSSON WILLIAM PERCY,OUTING:SHATTERING & A. THE CONSPIRACY SILENCE (1994) (noting that while outing impinges on an individual's privacy, OF 229 its net effects can be beneficial for the group). 558. There is another distinction between sexual harassment and "don't ask, don't tell" on the one hand and marriage on the other. While sexual harassment and "don't ask, don't tell" primarily implicate bisexuality's influence on norms of sexual orientation, the marriage context primarily implicates bisexuality's influence on norms of sex. This is because the marriage context is one that technically discriminates on the basis of sex ratherthan on sexual orientation.
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doubtas to whether bisexualtrulyis peciallytruegiven my expressed any Yet sex-blind.559 a bisexualcouldrespond notingthateven if she is not by she the sex-blind, hasa rightto aspireto lowering salienceof sex completely in her life. She could also attempt analogyto race,notingthatthe Suan not premeCourthas ownedthe American judiciary's obligation to increase in race-consciousness society.560
"We have not yet reacheda point,"Garber notes, "though nothingis at hetero-and homo-,bandtogetherto unimaginable, whichmonosexuals, staveoff the advancement bisexuals."561 articlehas arguedthatwe of This have actuallynever left that point. It has maintained bisexualityis that erasedbecauseself-identified and straights self-identified gays have entered intoan epistemic contract bisexualerasure.And it has suggested the of that for rising visibilityof bisexuality mighthave transformative consequences how we thinkaboutsexualorientation andlaw. politics The strength this hypothesis dependin parton its abilityto exof will of in plainthe erasure bisexuality dailylife. I thusend whereI began,with the anecdote my own erasure bisexuals my seminar sexualorienof of in on tation. Do the explanations provideintuitively I explainwhy that erasure occurred?In one sense,the answer mustbe no. I do not thinkthatI erased bisexualsbecauseof a fearof not beingableto provemy orientation, out or of a fearof failingto retainsex as an important diacritical axis, or out of a fearof nonmonogamy. can Rather, erasure be most easilyexplained my by the factthatbisexuality notpartof ourcultural semantic is or stock: it is difficultconstantly readcases,articles, popular to or accounts erasebisexuthat als without the fromthe indifollowingsuit. Butthisjust displaces question viduallevel to the cultural not simlevel, for it is ultimately thatinteresting to pointout thatindividuals erasebisexuals becausethey belongto culply turesthatdo. And when the questionarisesof what cultural investments
559. See notes317-318supraandaccompanying text. 560. See, e.g., Adarand Inc. Constructors, v. Pena,515 U.S. 200, 228-29 (1995) (approving actionprogram delaying"'thetime when race will befor prioropinionthatcriticizedaffirmative come a trulyirrelevant, at least insignificant, or factor"') (quotingFullilovev. Klutznik,448 U.S. Shaw v. Reno, 509 U.S. 630, 657 (1993) (warningthat 448, 545 (1980) (Stevens,J., dissenting)); even for remedialpurposes... threatens carryus furtherfrom the "[r]adical to gerrymandering, goal of a politicalsystemin whichraceno longermatters-a goal thatthe Fourteenth Fifteenth and Amendments embody,and to which the Nation continuesto aspire"); City of Richmondv. J.A. CrosonCo., 488 U.S. 469, 495 (1989) (criticizing"[t]hedissent'swatered-down versionof equal protectionreview"for ensuring"thatrace will always be relevantin Americanlife, and that the ultimategoal of eliminat[ing] such irrelevant entirelyfromgovernmental factor's decisionmaking as a human being's race,will neverbe achieved" (citation omitted)). 561. GARBER, supranote 11, at 80.
of I mightlead to the erasure bisexuals,I believethe investments have dein plausibility. scribed gain The degreeto whichthe hypothesis this articleis held accountable of to lived experience deservesmoreglobalcomment. Colleagueshave repeatedly noted this article'sobsessionwith logic-its insistenceon analyzing in terms. Thatobservation oftenbeen achas bisexuality strictlyCartesian the exhortation give less to the reader'sheadandmoreto to companied by herexperience.Theimplication the exhortation thatthe logicalaccount of is of bisexuality leavessomething about unconsidered. important bisexuality Thisis doubtless true. Thelogicalapproach the article of maybe readas for termsin whichdebates about compensation the oftenparlously imprecise in general bisexuality particular conducted.Yet the fact and in are sexuality thatit may also be readas overcompensation important.Sexualidentity is has alwaysstruck as a kindof illogic,giventhatsexuality sucha powme is erfulsolventof identity,a modality expands consciousness that the through shockandsurprise.If this is right,thenbisexuality be the sexualidenmay nature all sexualidentity, of insofaras tity thatbest reflectsthe oxymoronic a too, bisexuality, is a contradiction,classandits own dissolution.Thismay of that within explainwhy explanations bisexuality seek to tamebisexuality thebounds Cartesian of reason alwaysfeel anxiously will incomplete. But this has consequences the law, which is often a projectthat for privilegessuch reason. It may mean that if we are concernedaboutthe of "logical" regulation sexualityas failingto respectsexuality'sfluid and narrative we nature, mightdo worsethanto beginby lookingat the sexual that identity-bisexuality-that best represents nature. Properly harnessed, forcemaybe a powerful meansof contesting that bisexuality's destabilizing regulation.
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