The Global Problem of Bisexual Erasure in Litigation and Jurisprudence

ABSTRACT

As the rights of lesbians, gay men, bisexual people, and transgender people (“LGBT rights”) have received increasing protections across the globe in recent years, so-called gay marriage and other gay issues, and, more recently, transgender issues, have been prominent in recent legal discourse. In contrast, bisexuality has too often been omitted from legal rights discourse, with bisexual people who are barely acknowledged in LGBT-rights litigation and discourse beyond the minimal inclusion of the letter B in the acronym LGBT. This article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse around the world. Although exposing the problem of bisexual erasure in the legal world, the article also addresses the question this issue always seems to beg when it is raised: why bisexual erasure even matters. The harms of bisexual erasure, including those that can take tragic root in court decisions grounded in misunderstandings about bisexuality, are manifold and are addressed herein along with some potential solutions and next steps toward improving bisexual inclusion in litigation and jurisprudence.

KEYWORDS:

• Bisexuality
• law
• immigration
• same-sex marriage
• LGBT-rights
• litigation
• jurisprudence
• bisexual erasure
• comparative law
• constitutional law
• bisexual citizenship

Notes

1. A 2011 analysis found that among the total U.S. adult population, approximately 1.8% of the population were bisexual, 1.7% were gay or lesbian, and .6% were transgender at the time of the study (See Brown, 2017, citing Gates, 2011).

2. As opposed to those countries that have enacted marriage equality legislatively or by referendum, including Argentina, Belgium, Brazil, Canada, Denmark, Finland, France, Iceland, Ireland, Luxembourg, Malta, the Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Uruguay, and the United Kingdom (with the exception of Northern Ireland). The South African decision is addressed here rather than the same-sex marriage decision from the Columbia Constitutional Court, which has not been released in full as of the writing of this article, or that of the Mexican Supreme Court, which issued a jurisprudential thesis on 3 June, 2015, that fell short of mandating universal recognition of marriage rights across the country.

3. While there is no ECHR opinion establishing marriage equality, per se, an analogous comparison may be made by reference to the language of the ECHR decisions in same-sex marriage and partnership cases.

4. (“… particularly in the case of homosexuals, they went to show that they also have a right to live freely and to live their relationships on an equal basis…”).

5. More comprehensive lists of bisexual organizations and resources world-wide, along with internet links, are available through the Bisexual Resource Center, at http://www.biresource.net/bisexualgroups.shtml and through EuroBiCon, at https://www.eurobicon.org/bisexual-guide-to-europe/.

Additional information

Notes on contributors

Nancy C. Marcus

Nancy C. Marcus, LL.M., S.J.D., is law and policy senior attorney at Lambda Legal Defense and Education Fund, and is a cofounder of BiLaw, the first national organization of bisexual lawyers, law professors, law students, and our allies, in the United States. She was formerly the founding constitutional law professor at Indiana Tech Law School, and her scholarship on bisexual erasure and LGBT-rights, along with her scholarship on tort law, is widely cited.