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Unpublished Paper
Drawing Bisexuality Back into the Picture: How Bisexuality Fits into LGBT Legal Strategy 10 Years after Bisexual Erasure
(2010)
  • Heron Greenesmith, American University, Washington College of Law
Abstract

In 2000, Kenji Yoshino published a paper exploring the social erasure of bisexuality. He introduces the paper by empirically proving that bisexuality was invisible through a quick survey of popular news sources that featured volumes more articles about homosexuality than bisexuality. Once he shows that bisexuality is invisible, he makes sure to distinguish between the incidental invisibility of bisexuality, perhaps because of the low number of bisexuals, and its deliberate erasure. Erasure is a deliberate act that involves the participation of people who seek to erase. Yoshino theorizes that monosexuals (heterosexuals and homosexuals) created an epistemic contract to erase bisexuality in social culture. He argues that monosexuals erase bisexuals in three ways (class erasure, individual erasure, and delegitimization) and proposes that monosexuals have three reasons for participating in and encouraging this erasure: “1) an interest in the stability of sexual orientation categories; 2) an interest in the primacy of sex as a diacritical characteristic; and 3) an interest in the preservation of monogamy.”

My article, written on the tenth anniversary of Yoshino's seminal piece, is not a update on whether bisexuality has gained social visibility in the last ten years or an examination of whether that invisibility is still maintained by a contract among monosexuals. Rather, I begin from the position that bisexuality is invisible in legal culture, like in Yoshino's social culture, and pose two hypotheses for this invisibility. First, I believe that while Yoshino's analysis retains viability when analogized to the legal context (which he explores within sexual harassment jurisprudence), I propose that bisexuality is inherently invisible to the law, beyond the reach of deliberate erasure. A plaintiff's bisexuality is only at issue in the law where there has been an affirmative outing. That is, in cases where sexuality is at issue, plaintiffs are presumed monosexual, and must either declare their own bisexuality or have it found for them. Second, I argue that where bisexuality is legally relevant it has been erased within the legal culture because it is complicated—because it muddles legal arguments that depend upon the binary of sexuality. Yoshino addresses this reliance on the binary as a fundamental part of homosexual investment in stabilizing sexual orientation by erasing bisexuality, but I argue that this factor is much more prominent in legal culture than Yoshino presents it in the social context. I use the suspect class analysis under Equal Protection to show how bisexuality complicates legal arguments, and propose two solutions through which bisexually can be introduced into the Equal Protection analysis without compromising sexual orientation's suspect classification.

Keywords
  • Sexuality,
  • Bisexuality,
  • Queer Theory
Publication Date
2010
Citation Information
Heron Greenesmith. "Drawing Bisexuality Back into the Picture: How Bisexuality Fits into LGBT Legal Strategy 10 Years after Bisexual Erasure" (2010)
Available at: http://works.bepress.com/heron_greenesmith/3/