Legally Bi: Bi Erasure in LGBT-Rights Litigation

9/8/2018

istock/YinYang

Bi erasure is so pervasive that snapshots of its evolution over time are just that, snapshots, not a comprehensive history. In a previous column, I provided a snapshot of part of the history of bi erasure in LGBT political discourse. This one provides a snapshot of the evolution of bi erasure in LGBT-rights litigation—in other words, in the briefs and arguments by LGBT-rights lawyers, their choice of parties to be the face of their litigation, and the ultimate visibility and treatment of bi people in resulting court opinions.

LGBT rights has been a rapidly evolving area of law, at both the Supreme Court level and in lower courts, for the past few decades. The first major U.S. Supreme Court case to address the rights of queer people at any length was a nightmare of a decision, Bowers v. Hardwick. In that case, the Court’s opinion amounted to a convoluted twisting of legal doctrine and logic underlying the ultimate ruling upholding the prosecution of gay people, or “homosexuals,” as the Court referred to them in that opinion, under sodomy laws.  Ironically, the Bowers opinion engaged not just in bi erasure, but in heterosexual erasure as well: the Georgia sodomy law challenged as unconstitutional applied by its text not just to gay or bi people, but to anyone engaging in oral or anal sex. This fact was ignored by the Court, however, which never acknowledged that heterosexuals engage in sodomy too, while ruling there are no constitutional protections for those who engage in “homosexual sodomy.”

Years later, in 2003, the Supreme Court in Lawrence v. Texas overturned its Bowers opinion, ruling that the Bowers court had framed the liberty issue at stake too narrowly, because we all have a fundamental liberty interest in freedom from government interference with our adult, consensual, intimate conduct.

In both Bowers and Lawrence, bi erasure wasn’t really an issue. The Court’s mistake in the first case was to improperly limit its analysis to any particular sexual orientation, and the Court’s correction of that mistake in the second necessarily included recognizing the liberty interest in sexual privacy for people of all sexual orientations. Naming bi people would only have targeted them negatively in Bowers, and been contrary to the overall “it doesn’t matter what one’s sexual orientation” theme of Lawrence.

The Court’s other LGBT-rights opinions, however, rise to the level of literal bi erasure. The most clear illustration is Romer v. Evans, a case that preceded Lawrence by seven years.  Make no mistake, Romer was a huge a victory for gays, lesbians, and bisexuals as the first Supreme Court opinion to affirm constitutional protections against sexual orientation discrimination.  While a deservedly celebrated case, however, it was also one in which bi people were quite blatantly erased.

Here’s how the bi erasure played out. In Romer, the Court was reviewing the constitutionality of a Colorado state constitutional amendment ballot initiative, the text of which banned civil rights protections for lesbians, gays and bisexuals:

“Shall there be an amendment to Article II of the Colorado Constitution to prohibit the state of Colorado and any of its political subdivisions from adopting or enforcing any law or policy which provides that homosexual, lesbian, or bisexual orientation, conduct, or relationships constitutes or entitles a person to claim any minority or protected status, quota preferences, or discrimination?” (emphasis added)

Despite the discriminatory amendment clearly targeting bi people as well as gays and lesbians, the Court in Romer v. Evans stated at the beginning of its opinion that it would describe those in the case targeted by the amendment as only being “homosexuals or gays or lesbians.”

Why did the Court drop bi people from the discussion, when bi people were explicitly referenced by the ballot initiative at issue?  Sadly, because the Court was following the lead of the LGBT-rights lawyers themselves, who have historically chosen not just to exclude bi people as lead parties in their cases, but also to omit reference to bi people in their arguments to courts.

Romer is a deeply disappointing blatant example of this bi erasure. In their brief to the Court,* the lawyers betrayed bi people in (incorrectly) arguing to the Court “Amendment 2 prevents gay people – and only gay people – from bringing ‘any … claim of discrimination’ … for relief from discrimination based on ‘homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships.’”

Elsewhere in their brief, the LGBT-rights lawyers continued the bi erasure, writing that Amendment 2 “excludes only gay people from equal opportunity to participate in the political process,” that the Amendment “specifically targets gay people,” “specifically bars only gay people from seeking a basic kind of ‘protection of the laws’ that any other group is free to seek and obtain,” and that the Amendment “was intended to render ineffective only gay persons’ political efforts to seek protection against public and private discrimination” (emphasis added).

No clear explanation of why LGBT movement lawyers engaged in such blatant erasure has ever been publicly given.  But least some of the bi erasure appears to be part of a deliberate strategy to frame litigation only in terms of 100% “gold star” lesbian or gay narratives.  That litmus test, in turn, sends the harmful message that only those who fall on an extreme end of the Kinsey scale deserve to have their constitutional rights protected. Case in point: the cringe-inducing direct examination, during the California “Proposition 8” trial, of Sandy Steir, who had previously been married to a man.  Sandy and her wife Kris Perry were among the couples challenging California’s same-sex marriage ban. Their attorney Ted Olson clearly considered Sandy’s bisexual behavior to be a problem that needed explaining away, as he subjected his own client to insulting questioning on the stand, demanding of her, “How convinced are you that you are gay? You’ve lived with a husband.  You said you loved him?  Some might say, well, it’s this and then it’s that and it could be this again. Answer that.”

Such questioning that treats bisexuality as an invalid sexual orientation is stigmatizing of bi people.  It is also downright dangerous for LGBT-rights lawyers themselves to signal to the courts that it is ok, or even necessary, to erase bisexuality.  Because when the lawyers send such signals to the court, the courts have followed their lead and perpetuated the systemic erasure of bisexuality in our legal system.

And yet, bi people have not always been omitted from Supreme Court opinions and briefs. We were explicitly included in another Supreme Court case, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., decided in 1995 (in a decision allowing the exclusion of LGBT people from Boston’s St. Patrick’s Day parade). Granted, it would be pretty hard to erase us from a case in which the very name of a party (and, consequently, the case) is bi-inclusive. Nonetheless, the Hurley case illustrates that it is possible for LGBT-rights lawyers and the Supreme Court to be bi-inclusive; they were bi-inclusive not so long ago.

But since Romer, LGBT-rights briefs to the Supreme Court and, as a result, Supreme Court opinions themselves, have continued to omit bi people from discussions of sexual orientation discrimination, implying (or outright stating) that the only ones affected by such discrimination are gays and lesbians. In a 2015 study, I conducted a comprehensive survey of the LGBT terminology used in Supreme Court LGBT-rights cases, both in briefs and court opinions.  The disturbing results of the survey revealed that the word “bisexual” (let alone “bi people”) cannot be found anywhere in the vast majority of LGBT rights court opinions and briefs, in contrast with the customary references by lawyers and judges alike to just “gay,” “lesbian,” and “homosexual” people.

In the three years since that study, I’m pleased to say that more LGBT-rights lawyers seem to be becoming bi-inclusive in their briefing.  Briefs to courts are increasingly using umbrella phrases like “LGBT” and “same-sex couples” more often than the exclusive and inaccurate phrase “lesbians and gays” (or, when referring to both sexual orientation and gender identity, “gay and transgender”). Lawyers and courts are beginning to explicitly affirm that bi people too are affected by discrimination on the basis of sexual orientation.

Unfortunately, having followed the lawyers’ lead in erasing bi people for over two decades, most courts, including the Supreme Court, are still using inaccurate bi-erasive terminology.  In the same-sex marriage case Obergefell v. Hodges, BiLaw filed an amicus “friend of the court” brief urging the Supreme Court not to forget the bis. But when the opinion came out, bi people were, once again, omitted.

And while the ACLU. was bi-inclusive in its amicus brief to the Supreme Court in the more recent Masterpiece Cakeshop v. Mullins case, the government lawyers challenging the Cakeshop’s claimed right to discriminate against a same-sex couple seeking a cake for their wedding reception were not similarly bi-inclusive in their main brief. Following their lead, neither, in the end, was the Supreme Court, which throughout its opinion referred to “gays” and “gay couples” rather than recognizing that same-sex couples harmed by the denial of public accommodations can include bi people as well.

It will take more time, and more consistent efforts by those lawyers arguing against LGBT discrimination to be bi-inclusive, before the damage of decades’ of bi erasure to the courts will be remedied and the courts will become bi-inclusive as well.   It is my hope that LGBT-rights lawyers across the country will continue to improve their track record on this front and do right by bi people in their future litigation.

*Note: the brief submitted to the Court is not available in an easily accessible public domain document that can be linked to through a single URL.  However, the full quotes and other information in this article are available on pages 306 to 315 of my article Bridging Bisexual Erasure in LGBT-Rights Discourse and Litigation, Mich. J. of Gender and Law (2015), available here.

 

Nancy Marcus
Nancy Marcus is an out bi lawyer and LGBT rights activist. She is a co-founder of BiLaw, the national organization for bi lawyers, law professors, law students, and their allies, and is the author of "Bridging Bisexual Erasure in LGBT-Rights Discourse and Litigation," published by the University of Michigan Law School's Journal of Gender and Law.