Bridging Bisexual Erasure in LGBT-Rights Discourse and Litigation

Michigan Journal of Gender and Law, Vol. 22, 2015

54 Pages Posted: 2 Jan 2015 Last revised: 26 Jan 2016

See all articles by Nancy C. Marcus

Nancy C. Marcus

California Western School of Law

Date Written: December 30, 2014

Abstract

LGBT rights are at the forefront of current legal news, with "gay marriage" and other "gay" issues visible beyond dispute in social and legal discourse in the 21st Century. Less visible are the bisexuals who are supposedly encompassed by the umbrella phrase "LGBT" and by LGBT-rights litigation, but who are often left out of LGBT-right discourse entirely. This article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse. The article surveys the bisexual erasure legal discourse to date, and examines the causes of bisexual erasure and its harmful consequences for bisexuals, the broader LGBT community, and jurisprudential integrity as a whole. This article contributes to the bisexual erasure discourse through a unique examination of bisexual erasure through a survey of relevant terminology in LGBT-rights cases, including and beyond recent same-sex marriage litigation. The study documents an almost complete systemic erasure of bisexuals in briefings and opinions, including an absence of any mention of bisexuals by majority opinions in cases where the briefings have set a tone of bi erasure by arguing alternatively for "gay and lesbian" rights, "gay marriage," or "same-sex marriage," while completely omitting reference to bisexuals. In addition to documenting the absence of bisexuals in litigation documents (despite the actual presence of bisexuals as litigants), this article compiles anecdotal evidence of bisexual erasure by attorneys, courts, and the media.

The time is overdue for more widespread inclusion of bisexuality in LGBT-rights discourse and litigation. Increased bisexual inclusion can provide a bridge toward more meaningful, holistic, and accurate discourse on the rights of disenfranchised sexual minorities in this country. The tide may finally be turning toward increased bisexual inclusion, however, as some courts and LGBT organizations have employed more inclusive terminology, and one federal judge has explicitly recognized for the first time that bisexuals, like gays, are harmed by same-sex marriage bans. Bisexuality, the last sexual orientation that dare not speak its name, is finally claiming its seat at the table of equal liberty, dignity and respect under law and in the eyes of the LGBT-community itself. The legal community should join this move toward more honest and holistic discourse that acknowledges the equal validity of bisexuality along with other sexual orientations. This article is one of many steps that must be taken for more meaningful and inclusive LGBT-rights discourse.

Keywords: LGBT, Bisexual, Bisexuality, Bisexual Erasure, Gay Rights, Same-Sex Marriage, Sexuality

Suggested Citation

Marcus, Nancy C., Bridging Bisexual Erasure in LGBT-Rights Discourse and Litigation (December 30, 2014). Michigan Journal of Gender and Law, Vol. 22, 2015, Available at SSRN: https://ssrn.com/abstract=2544009

Nancy C. Marcus (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
86
Abstract Views
1,022
Rank
583,910
PlumX Metrics