Opinions
Bostock’s bisexual erasure
From elation to disappointment

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).
Opinions
Pro-trans court ruling does little for Naval healthcare worker
Trump administration should support accomplished service members
Following the start of the Iran war, many Americans were worried for the first time in decades about a potential draft. When asked about the possibility, White House Press Secretary Karoline Leavitt noted that it was not part of the current plans but that, “The president wisely keeps his options on the table.”
While the Trump administration did not rule out the option to conscript unwilling young citizens, it had no problem alienating willing service members, removing high-ranking female or African-American officers, and banning transgender people from serving in the military, stating that “a history of gender dysphoria is incompatible with the high physical, surgical, and mental health standards required for military service.”
The decision to discharge thousands of service members who have already proven their dedication and efficacy in serving their country, simply because of their gender identity, seems counterintuitive for a nation that has just struggled through a war, a regression toward a long past of discrimination in our military, and a ruling that has been questioned in judicial systems.
On June 1, the U.S. Court of Appeals for the D.C. circuit issued a decision blocking the government from discharging 28 transgender plaintiffs from the military (Talbott vs. United States), calling the policy “animus” toward a politically unpopular group. News outlets reported it as a win for LGBTQ rights, but that hardly seems to matter for the close to 15,000 other transgender military service members who have either already been separated or constantly fear that they will soon be removed.
I interviewed a recently separated transgender Naval healthcare worker for this editorial, who used the initial S. for anonymity and who told me that hearing the news of the Talbott court decision was more bitter than sweet, remarking, “While the recent ruling in favor of trans service members offers fleeting hope, Department of Defense Secretary Pete Hegseth has already announced the decision to appeal to the Supreme Court, where we will likely expect the same outcome as before. Unfortunately, any definitive outcome in favor of trans service members will likely come long after the damage has been done.”
Studies by the RAND Corporation have found that transgender military service showed no significant impact on operational readiness, and according to the BBC, the Department of Defense spends eight to 10 times more on erectile dysfunction drugs than on gender-affirming care.
S. served a critical role in the Navy, as active-duty service members are far more likely to experience mental health challenges than the civilian population, and it doesn’t sound like his gender identity was a problem for any of his coworkers: “Everyone judged me by my ability, not my identity; most of them didn’t know that I was transgender until the separation process forced my public acknowledgement.”
Dedicating years of his life to serving his country, not only did S. lose that dream, but it also impacted his entire caseload of clients. “One by one, I had to meet with them and explain that I was abruptly leaving the clinic and ultimately separating from military service. It was death by a thousand cuts—having to tell people back-to-back, session after session, that I could no longer work with them. Many of them were in the midst of their own crises while I was quietly navigating mine. It was heartbreaking.”
He also spent 11 months in a state of limbo, waiting to be officially separated – having secured a job at another federal agency and beginning to treat new patients, the Department of Defense rescinded its approval, citing that you cannot work at two federal agencies at once, and effectively sidelined a critical health care worker until they could formally discharge S. from the Navy.
The irony of citing mental health standards to remove a Naval healthcare worker in good standing, at a time when many personnel are in dire need of clinical care is notable. To maximize operational readiness, the Trump administration should not turn its back on accomplished service members who hold critical roles in the military.
Tyler Kania is an independent journalist and 2025 IAN Book of the Year finalist.
Opinions
Supreme Court ruling on trans athletes is a public health story
Justices label an entire group as ‘lesser’
On June 30, the Supreme Court ruled, 6-3 that states may bar transgender girls and women from girls’ and women’s sports teams. Justice Brett Kavanaugh wrote that states may keep these teams for “biological females” and set eligibility by “biological sex.” The country will now spend days arguing about fairness on the field. We’ll debate race times, records, and who has earned a place on the roster.
I want to redirect this conversation, because I study something different and because the frame we’ve settled on misses the something important.
I’m a public health researcher. My work focuses on how the conditions people live under get into the body and influence health over a lifetime. I’m talking about conditions such as laws, policies, and the everyday climate of acceptance or rejection.
Two features of this ruling deserve more attention than the sports fight is giving them: the lifelong costs even a “narrow” decision sets in motion, and the question the Court declined to decide.
Start with how a ruling like this reaches the body, because that pathway is what makes this a public health story. My area of research has a name for what laws like this do: structural stigma. It’s the way statutes and court rulings can mark an entire group as lesser, and in doing so become a chronic stressor for every member of that group.
The overwhelming majority of transgender kids will never compete for a state title. They still learned, from the highest court in the country, that their belonging is conditional. The stress that follows from that lesson is associated with higher rates of depression, anxiety, and poorer health across LGBTQ populations. A consistent finding in this literature is that social acceptance can disrupt such harmful trajectories. But this ruling pushes the country the other way.
I want to emphasize that the question of fairness is important, and the girls and women who raise it deserve to be heard. But the ruling does not resolve this question. It flattens it.
The science on athletic performance and gender transition is truly complicated and individual. It varies by sport, by person, by age, and by life circumstance. The Court grounded its decision in biological sex and then declined to reckon with what biology shows. The West Virginia teenager at the center of the case has been on puberty blockers since before male puberty began. The advantage the law claims to police never developed in her. A rule that treats her like an adult athlete disregards biology.
Here is the part a policy-minded reader should pay attention to. For decades, the central legal question about transgender Americans has been this: When the government treats transgender people differently, how good does its reason have to be? Courts don’t judge all discrimination in the same way. If a law sorts people by race or sex, the state must provide a strong justification, and many such laws fail. But if a law tries to draw an ordinary distinction, like who qualifies for a license, judges tend to wave it through as long as there’s a reasonable purpose. Whether a law singling out transgender people gets the skeptical look (what lawyers call heightened scrutiny) or the easy pass has not been settled. And this ruling, despite its subject, still did not settle it.
How did the Court avoid the question its own case raised? Following last year’s decision in Skrmetti (the gender-affirming care case), the Court described these laws as drawing lines by biological sex, not transgender status. Courts endorsed sex-separated teams long ago; separate teams are the reason girls’ sports exist. So a law framed as a “sex” line lands on ground the courts have already approved, while a “transgender” line would have forced the choice between the skeptical look and the easy pass. The Court chose the frame that let it stay silent.
That silence creates exposure for transgender people – and I mean that word the way my field of public health uses it, for a condition that puts a whole population at risk. The same unanswered question now hangs over health care, employment, identification documents, public accommodations, and every domain where the level of scrutiny is the whole ballgame. And the Court read Title IX, the federal law banning sex discrimination in schools, through the same lens: “biological sex,” full stop. Advocates are right to see protections far beyond sports as newly vulnerable.
This is where my own research makes me most uneasy. I study LGBTQ adults in their 60s, 70s, and 80s, who came of age in a far more hostile America. Their lives show that the cost of stigma accumulates. Chronic stress works its way under the skin and surfaces years and decades later. Researchers see these deleterious outcomes in mental health, in physical health, and in emerging research like my own that explores the aging brain. So we should understand this decision for what it is: a long-term health decision the country is making on behalf of a generation of children.
Practically, the ruling compels no state to do anything. It tells the more than two dozen states that have passed these bans that they stand on solid ground, and it sends the rest of the fight back to statehouses and school boards, where trans youth and their families often hold little power. The ruling arrives just over a year after the Court let states ban the medical care many of these same young people depend on. Each law is a single stressor. Together they are a dangerous environment.
We know what protects these children. Acceptance, inclusion, and the dignity of being treated as though they belong. The Court made all three harder to offer, and left open the question that determines how much harder it can get. It is the children who needed those protections who will bear the cost, this sports season and for the rest of their lives.
Harry Barbee, Ph.D., is an assistant professor at the Johns Hopkins Bloomberg School of Public Health where they study LGBTQ health, aging, and public policy.
Opinions
It’s good to see some justices standing up to Trump
But expanding the court is necessary to save our democracy
It was shocking to see some of the MAGA-loving majority on the Supreme Court actually voted against the felon in the White House a couple of times. Not surprisingly, Samuel Alito and Clarence Thomas were steadfast in their ultra-MAGA, outrageous views. They just want to help make Republican doctrine, which today means helping to make Project 2025 a reality, a success. They couldn’t care less about the Constitution. We can just imagine how they voted on the E. Jean Carroll case, where Trump has been trying to weasel out of his obligation to pay the woman he was convicted of committing sexual assault against. But we won’t know for sure since the Court simply denied hearing the case, so there was no recorded vote or dissent.
On what was a simple case, the constitutional principle of birthright citizenship, Chief Justice John Roberts, Amy Coney Barrett, and Brett Kavanaugh, actually voted to uphold the Constitution along with the three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. But even then, Kavanaugh was only halfway there. But as could have been predicted, Alito and Thomas voted the other way, and this time were joined by Neil Gorsuch. Then on the question of trans women playing sports on a women’s team, the vote was 6-3 against, and you can figure out who the three were who went against the felon, and supported the women.
Interestingly, in the case of Mississippi and mail-in ballots, allowing those mail-in ballots to be counted up to five days after the election if they were postmarked by Election Day, Roberts and Coney Barrett went with the liberals. Once again, you knew before the vote where Alito and Thomas were, and in this case, they were joined by Kavanaugh and Gorsuch, trying to help Republicans steal the next election.
I have no love for Roberts, but it seems every so often he is trying to save his own reputation since all this is the Roberts court, as he is the chief justice. I have never known what to make of Coney Barrett, who has occasionally sided with the more liberal justices, to the consternation of Trump, who believed when he nominated her, she would always be with him. She mostly has, and he can be thankful she voted with the other slime bags, and granted him total immunity as president in the 2024 decision. In essence, placing him above the law. In so many ways the felon has acted using that immunity. We now see a blatant case of this with the release of his new financials, and his $2 billion windfall with crypto.
Roberts nearly always votes with the Trump judges, but if there is a decision that is so obviously a gift to the felon, Roberts every once in a while could go with the liberal wing of the court. We need to remember he was appointed by George W. Bush. But again, this court will always be known as the Roberts court, the one that bowed down to the felon in the White House, and his fascist aids like Stephen Miller, and the author of Project 2025, Russell Vought, at OMB.
So, what can we do to change this, and to fight back? The first thing is to elect a Democratic Congress in 2026, and then a Democratic president in 2028. Then those we elect will have to decide how to proceed. One answer to that question is simple. Vote to add more justices to the Supreme Court. That simply requires a bill to pass with a majority in both houses of Congress, and the president’s signature. To the surprise of many it has been done seven times since the court was created in 1789. There is no number of justices for the court stipulated in the Constitution. Yet it has remained at nine since 1869. Although that fix may sound easy if Democrats take over Congress and the White House, we must remember, Franklin Roosevelt tried in 1937 to expand the court by six justices to protect his New Deal programs. After a fight that lasted 168 days, the bill to do this was defeated. I fear any proposal to expand the court today, may actually have the same fate. There will be those who say it will divide the nation even further, and there will be a constant tit-for-tat on everything. The only way to win such a vote will be if enough people are convinced the felon and his gang of thieves, have so destroyed our democracy, that changing the court is a necessity if we are to save our democracy for the next 250 years.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
