July 10, 2020 at 11:28 am EDT | by Nancy Marcus
Bostock’s bisexual erasure
LGBTQ rights, gay news, Washington Blade
(Washington Blade file photo by Michael Key)

It’s happened again. The Supreme Court has, much to the surprise and relief of millions of LGBTQ people, affirmed LGBTQ rights again, this time in an employment context.

My initial response to the news was pure elation. But as I read the opinion, the joy was quickly tempered by the disappointing realization that, yet again, bisexuals have been erased from the latest historic Supreme Court LGBT-rights opinion.  

The blatant bi erasure begins in the opening paragraph of the Supreme Court’s opinion: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender,” and continues through the opinion’s final ruling: “An employer who fires an individual merely for being gay or transgender defies the law.”  

Gay or transgender? Homosexual or transgender! I’m sure there are some lesbians and gays who are less than thrilled about being lumped together under the antiquated term “homosexual,” but think about how we bisexuals feel, we who are excluded completely from this framing. Whatever happened to the “B” in LGBT? It is simply gone.

As an initial matter, the Supreme Court’s summary of the question it was asked to decide is simply inaccurate.

The original Bostock petition asked the question, “Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of . . . sex’ within the meaning of Title VII.”  

Furthermore, bisexuals and other sexual minorities can be assured that Bostock will apply to them for many reasons, including that its ruling affirmed the Second Circuit’s Zarda v. Altitiude Express decision, which recognized that sexual orientation discrimination, broadly speaking, is a form of sex discrimination, not just in cases involving gay people. Why does it matter that bisexuals were erased from the actual text of Bostock?

First, bisexual inclusion strengthens LGBT-rights arguments. As a bisexual woman, if I am dating a man, I am less likely to face discrimination at the workplace than when I am dating a woman. The only thing that has changed in the two scenarios is the sex of the person I am dating, not my sexual orientation, illustrating that sexual discrimination orientation is a form of sex-based discrimination prohibited under Title VII.

Second, bi erasure in LGBT-rights litigation has tangible, serious harms. As a legal matter, the failure of lawyers and courts to recognize bisexuality as a valid sexual orientation can have tragic, even life-or-death, repercussions.

Bisexuals already face severe disparities, disproportionately suffering from comparatively high rates of employment discrimination, mental and physical health disparities, and violence, for example. The cruelty of bi erasure in LGBT-rights discourse ripples through decades of litigation and legislation such as the “Gay and Trans Panic Defense Bans” that dishonor the lives of bi people who are killed for their sexual orientation too.

Bostock was brought to assert the rights of all LGBT people, not just the named plaintiffs.  But bi erasure has occurred in every LGBT-rights Supreme Court decision since the historic 1996 Romer v. Evans decision, which broadly affirmed “gay and lesbian” rights for the first time. Horribly, in Romer, it was the advocates who erased us. The actual text of the Colorado Amendment ultimately ruled unconstitutional had explicitly included bisexuals in those it was denying rights to.

But the parties challenging the Amendment dropped all references to bisexuals from their briefing, choosing to instead define the class of people harmed by the Amendment as solely “gays and lesbians.” The Supreme Court followed in kind, describing the class in that case as solely “homosexual persons or gays and lesbians.” From that point forward, bisexuals have been almost entirely erased from the face of Court opinions and LGBT-rights impact litigation.

It hurts to be erased by our own community and advocates.  But the harms when we are erased by courts themselves are even more devastating.  As a constitutional scholar and member of the LGBT community, I am, of course, thrilled for the broader victory for equal rights represented by decisions like Bostock. But until my existence as a bisexual woman is acknowledged alongside the lives and rights of the “G, L and T” members of the LGBT community, there will always be a sting accompanying the sweet honey a historic Court decision like this produces.

Nancy Marcus, LL.M., S.J.D., is an attorney, co-founder of BiLaw, former constitutional law professor and scholar, author of ‘Bridging Bisexual Erasure in LGBT Rights’ and Discourse (2015).

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