Hybrid. Ruth Colker

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      Constructively, I ask how the courts and society should respond to the historical mistreatment of people who cross gender or sexual barriers. Should individuals who “cross-dress” be considered victims of “gender” discrimination? Should we use the option of free-standing, unisex bathrooms, which has been developed in the disability context, to meet the needs of trans-gendered persons who often are not accepted in bathrooms for either biological sex?

      Race is another area where the courts and society have imposed a false set of distinctions, categorizing people as “white” or “colored.” Chapter 5 focuses on why such distinctions are of such importance to society despite the scientific bankruptcy of “whiteness” as a racial construct and the reality that most people have mixed racial histories. How can we devise fair and appropriate affirmative action and transracial adoption policies? Should individuals such as Hylton or Scales-Trent, who self-identify as African-American despite their multiracial background or light skin color, be eligible for affirmative action? Because racial identity is socially constructed, do race-based affirmative action programs perpetuate or ameliorate race-based subordination? Similarly, do race-specific labels in the adoption context perpetuate the subordination of minority groups? Again, how should racial categories be defined in that context?

      The newly developing area of “disability” law is a final area that helps reinforce society’s obsession with false categorization. Chapter 6 explores how society accords benefits and privileges based on whether one is “disabled” or “nondisabled” as if these are clear, bipolar categories. Whether individuals are considered “disabled” depends on what social policies are popular at the moment rather than on their needs as individuals. Nonetheless, disability nondiscrimination law is a novel model for redressing discrimination, in general. I therefore ask whether any of its innovations work well and should be exported to other areas of the law.

      The courts are struggling constructively to develop a definition of “disability” which will further the purposes of our antidiscrimination laws. Do we need to determine whether people fit a single definition of “disability” for anti-discrimination laws to operate properly? Would an approach that recognized the spectrum of disabilities that people experience better serve the purposes of our anti-discrimination laws?

      Chapter 7 moves the discussion to a broader theoretical plane. I inquire how the legal system is generally built upon a foundation of bipolar injustice and how such a perspective hinders our understanding of discrimination and subordination under federal anti-discrimination law. I argue that the courts have developed a narrow “sexualized harassment” doctrine that, in effect, provides justice for a very small portion of the victims of gender and race discrimination in our society.

      Finally, in chapter 8 I return to the U.S. Census to suggest how we can construct racial categories while being mindful of the existence of racial hybrids. Categories can be used constructively without insulting our human dignity.

      The central question of this book is: Why is law based on a bipolar framework in ways that denigrate hybrids and render them invisible? Why can’t we see the nondichotomous spectrum on which people experience gender, race, sexual orientation, and disability? Why does the law need to use the labels of “homosexual and heterosexual,” “male and female,” “black and white,” and “disabled and nondisabled” at all? The answer to that final question varies from chapter to chapter. In some cases, labels may be useful—for example, to help identify groups that have faced a history of subordination in our society. That usefulness, however, should not justify our attempts to misdefine humanity in order to achieve certain social policies. When categories are needed, a bi perspective allows us to develop a more pragmatic and humane jurisprudence, and thus a more complete and accurate worldview.

TWO A Bi Jurisprudence

      “Bisexuality: Not Gay. Not Straight. A New Sexual Identity Emerges” proclaims Newsweek on its cover. Shunned by heterosexuals and many gays and lesbians alike, bisexuals recently have been “discovered” by the popular media as well as conventional researchers. Nonetheless, the category of bisexuality remains elusive for most adults. Only about i percent of the adult population identifies as bisexual. Yet nearly 4 percent acknowledge that they are attracted to people of both sexes.¹

      Bisexual invisibility pigeonholes individuals into gay and straight boxes. A bisexual perspective allows us to ask ourselves who we find attractive and why, rather than to presume that sexual partners are chosen on the basis of gender. This perspective broadens to a “bi” perspective² as we reject conventional bipolar categories in the areas of gender, race, and disability in understanding our own lives, as well as in responding to others.³

       I. Harms that Flow from Categorization A. Invisibility to Ourselves and Others

      Martin S. Weinberg and his colleagues report that one-fourth of self-identified bisexuals are currently “confused” about their bisexuality, with more than half of the women and three-quarters of the men reporting previous confusion.⁴ People who do not self-identify as bisexuals, yet have sexual relations with people of both genders, report even more identity confusion: “Some people who behave bisexually are confused and think that they may be in the process of becoming homosexual. Others simply deny their same-sex feelings and behaviors in order to preserve their self-image as heterosexuals.”⁵

      The pressure to identify with a monosexual label of “gay” or “straight” leads to some odd results. Some women continue to identify with the label “heterosexual” despite the fact that they are intimately involved with a woman. Other women who have had prior intimate relationships with a woman continue to identify with the label “lesbian” even when intimately involved with a man. One of the best-known examples of this phenomenon was Holly Near, a very popular songwriter and singer among lesbians, who persisted in labeling herself as a lesbian despite her intimate relationship with a man.⁶ Alternatively, some women simply have felt immobilized by this need to fit into a category and have therefore chosen the “choose not to label” category.⁷

      A bisexual perspective facilitates picking the “choose not to label” category rather than the static and bipolar categories of homosexual and heterosexual. Ruth Gibian describes the problematic, bipolar structure of the dominant sexuality categories: “The definition of a static sexuality is based on binary opposition. . . . Indeed, our entire Western system of thought is based on binary opposition; we define by comparison, by what things are not.”⁸ Bipolar injustice is of epidemic proportions; it is not limited to the area of sexual orientation. Although it is unrealistic to think that we can dismantle an entire system that is built on binary opposition, we can take small steps in the area of life that touches us most personally—our self-identity.

      We should not allow our bisexuality to be invisible even to ourselves. When I ended an intimate relationship with a woman and began dating a man about fifteen years ago, I remember telling him, “It’s important that you recognize that I am a lesbian.” I insisted on the lesbian label because I did not want to acknowledge to myself the dynamic nature of my sexual orientation. I thought I had to choose between being gay and straight and was having trouble reconciling the gender of my current partner with those choices. Five years later, when I became involved with another man, again ending an intimate relationship with a woman, I told a friend that I was sure that I was now a “heterosexual.” My obsession with categorization precluded me from seeing СКАЧАТЬ