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Bostock’s bisexual erasure

From elation to disappointment

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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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In debate, Biden must stay on offense

President needs more lines like ‘I am running against a 6-year-old’

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President Joe Biden (Washington Blade file photo by Michael Key)

On June 27, President Joe Biden will debate the man he has called a six-year-old. A great line, and he needs a few more like that. Unless there is a clear stumble by either candidate, we know what they will say. Trump will call Biden ‘sleepy Joe,’ among other names. But the reality is, people are used to it. They are not as used to Biden returning the favor. And Biden, aside from referring to Trump as a convicted felon, needs some lines that will make headlines the next day. Something with a little humor in it, but still making a strong point. 

Trump is scary. The recent column in the Washington Post on how Russ Vought, the former president’s budget director, is laying the groundwork for a broad expansion of presidential powers, is truly frightening. Now if it were me, I would be able to use my usual litany of words when referring to Trump: racist, sexist, misogynist, homophobic pig, found liable for sexual assault, and convicted felon. I may even go as far as suggesting society replace the word felon with “Trump.” People at trials could be convicted of 34 “Trumps.” But Biden can’t really use that. Maybe Biden can do something like look him in the eye and say, “You can’t really believe all the BS you keep spouting!” Then add, “The world is a complicated place, and even most six-year-olds seem to have a better understanding and grasp of it than you do.” 

Then there is the focus on the very serious part of the debate. The discussion of issues including the economy, abortion, contraception, and foreign policy. Reminding people, it was Trump who killed the immigration bill in Congress, telling energy billionaires if they raise him a billion dollars, in essence bribe him, they can “drill baby drill.” The president needs to speak to African Americans, Latinos, women, and the young. He needs to tell each of those groups what will happen if the six-year-old he is running against, were to become president again. 

Then he needs to look directly into the camera and say to the audience at home, “It isn’t only Trump you need to fear, it is the people he will surround himself with. His sycophants and cult, who will let him get revenge on anyone who says a word against him.” You can count on the fact it will be much worse than the last time around when he tried to stage a coup, because no decent person will work for him.

The first debate will take place 18 weeks before the Nov. 5 election. So much can change between then and the election. Remember when we talked about an October surprise? In today’s world there could be July, August, and September surprises as well. Between now and election day we will be treated to an overload of polling, most of it wrong. We will read hundreds of headlines, many of them clickbait. If you watch TV you will get to listen to hundreds of talking heads, many knowing no more than you. The difference being, they are being paid to spout off on the election, giving not facts, but their opinions. 

It seems every four years we hear this could be the most important, the most crucial, election of our lifetime. Well, this time those who say it just may be telling the truth. One candidate, convicted of 34 “Trumps,” is telling you he will be a dictator, and using Hitler’s words. He has the likes of Russ Voight advising him, and openly says he will seek revenge. Nothing could be more frightening. He is telling the young he doesn’t care about climate change, and telling the poor their programs will be cut because he will cut taxes for the rich.  

He calls our soldiers, those who sacrificed their lives and died in wars, “suckers and losers.” He called John McCain “a war hero because he was captured,” saying, “I like people who weren’t captured.” This frightening, sick man, with the world view of a warped six-year-old, will lead the United States if we aren’t willing to stand up to him, and his MAGA cult. Yes, I am afraid! And you should be too! If you are a woman, a minority, a member of the LGBTQ community, or just poor, be scared, be very afraid! If Trump and his cult win, you will lose what little you think you now have.

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.

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Why you should celebrate pride with a musical about GenderCannibalism?

Rose: You Are What You Eat, through June 23 at Woolly Mammoth.

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Photo courtesy of Woolly Mammoth.

Because when I came out as trans my aunt told me it was because I ate my twin in the womb…and that’s what the show is about

Because…remember that time when you decided to dress like exactly like your older sister; or you stole your mothers’ makeup or your brother’s tie; or you decided to dress up like Katherine Hepburn for halloween when you were (i dunno) 10; or you started to look eerily like your lover…..that’s all gender cannibalism

Because because because because because….” because if you know that song this was made for you…and if you don’t…it’s okay, we’ll work on it

Because you can probably find a cute date at the show irl instead of just swiping in your phone…think of theater as an in person dating app without as much drunkenness as the bar

Because maybe that cute date is me

Because you can sing along to music written by a bunch of queers from Philly and D.C. 

Because we are all so hungry and so so thirsty 

Because I guarantee you will leave feeling fed

Because cannibalism puns are tasty

Because it’s a comedy

Because there are pay-what-you-can tickets

Because it plays all of June

Because we are consuming gender all the time but rarely watching what and how we eat it 

Because it’s an anti-assimilationist endeavor: the corporations can’t co-opt “gender cannibalism” for pride month (but there is merchandise available at the show…)

Because it’s only 75 minutes

Because I dance around in tighty whities with socks on my hands

Because there is a free clothing swap and treats in the gallery next to the show

Because why not?

Because you will be cast as my Mother, and that’s the role of a lifetime (or at least my lifetime)

Because you won’t know what will happen; you can’t pause or rewind the show; you will be taking a risk; you will find it’s more than just entertainment; you will feel me talking right to you

Because I’ve been writing this show for 34 years and am finally ready to share it with you

Because I’ll be in the lobby afterwards to say hi, and receive hugs, stories, and phone numbers 

Because I made this piece for you, my dear deviants, trans folx, genderful ones and for the people that care for us. It is a good laugh and a good cry and meant as a gift, a way to end your day feeling loved, nourished and worthy

Because don’t you want to be nourished and reminded that you are loved and worthy? 

And frankly because art needs you to survive and you need art to thrive

Because I took the time to write this letter to you and you took the time to read it, and neither you nor I want to waste that investment

Because you won’t want to miss it

Get tickets to Rose: You Are What You Eat, playing through June 23rd.

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Elon Musk is a danger to society

X has become a warped platform that spews anti-trans hate

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Elon Musk (Photo by shganti777/Bigstock)

Elon Musk is officially a danger to society. As of mid May of 2024, X.com, the platform formerly known as Twitter, has started banning accounts that use the word “cisgender” or “cis,” deriding it as a slur. For those who don’t know, “cisgender” refers to any person whose gender aligns with the genitalia they were assigned at birth. Erasing the word “cisgender” from tweets, or X.com remarks, ensures that gender nonconforming people can’t articulate the bigotry they feel in this world. 

Musk has been notorious for his transphobia. It didn’t just start in mid-May of this year. In June of 2023, during Pride month, Musk liked a bunch of transphobic tweets. For instance, he promoted the Matt Walsh documentary, “What is a Woman?”, which was a film in transmisogyny. 

Moreover, in July of 2022, Musk’s transgender teenage daughter sought separation from her father because he was hateful toward her and bullied her because of her gender identity. In December 2022, Musk tweeted “My pronouns are Prosecute/Fauci,” mocking the words that transgender people need to enunciate who we are. This wasn’t the first time that Musk mocked pronouns. 

Musk is becoming increasingly dangerous toward trans people, especially as X.com takes on a new dimension — turning into a warped platform that spews conspiracy views, including right-wing thoughts that trans people shouldn’t exist, and other ultraconservative opinions. 

What adds heavy weight to the danger that Musk poses is the relative success of his companies and the wealth, measured in dollars, that he carries on his shoulders. SpaceX is valued at around $180 billion, and Tesla is worth approximately $571 billion. The more wealth Musk accumulates, the more power is attached to his transphobia. Already, he is consciously allowing employees within his companies to mock transgender people. Having a CEO who openly teases a marginalized population is a recipe for that company to tease said population as well. 

As a former small business owner, I’m actually a huge fan of Musk’s work. The billionaire is brilliant beyond belief, and, after being bullied in school in South Africa, earned degrees in physics and economics from the University of Pennsylvania. At one point, he was working so hard on one of his first startups that he often slept in the office and showered at a local YMCA. In interviews, it is clear that Musk borders, if not embodies, genius. His intellectual prowess is second to none. 

Additionally, the mogul has been open about his diagnosis of Asperger’s syndrome and bipolar disorder. It’s impressive, to say the least, that Musk has racked up all of these accomplishments despite having these diseases of the mind and body. He has vocalized his use of ketamine therapy, for instance, in treating his bipolar, which is a ballsy move to make as CEO. 

Unfortunately, though, Musk just won’t stop with his transphobia. He is making X.com a non-democratic place for sponsored conspiratorial speech, and banning words is the farthest thing from freedom, which is a virtue he claims to embody. 

Many scholars of Elon have noted that he lives in a distorted reality, and I have to agree with that sentiment. Banning “cisgender” from X.com is certainly a distorted thing to do, and should be looked upon as a danger to society. 

Isaac Amend is a writer based in the D.C. area. With two poetry books out, he writes for the Blade and the Yale Daily News. He is a transgender man and was featured in National Geographic’s “Gender Revolution” documentary. He serves on the board of the LGBT Democrats of Virginia. Contact him at [email protected] or on Instagram at: @literatipapi

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