Essays and legal writing of Heron Greenesmith

Monday, January 13, 2014

why I say I'm bisexual

2:12 PM Posted by Heron Greenesmith , , , 1 comment
Originally published at Huffington Post Gay Voices. 
I say I'm bisexual because I am. Because when I move through the world, I see people and parts and hearts and eyes and hair, and I recognize the potential in myself to love all those things.
I say I'm bisexual because queer is in my heart, and for my friends and family, but queer can be slippery and unnamable. Queer can slide away around the corner before you pin it down, can turn into something else. Bisexual is in your face, demands attention, refuses to turn into anything else, stands on its own.
I say I'm bisexual because I can. Because I have privilege and safety and loving friends and family, and if someone needs to be an example, then make an example of me, because I can take it.
I say I'm bisexual so that others don't have to. So that those who disagree with labels have the safety of knowing they can call themselves (or not) whatever they wish. But also, so that they have the comfort of knowing that we are out there. Without us (the loud, the proud, the labeled bisexuals), it would be so easy to pretend we don't exist. That sexuality is binary (ironic, that). So I say I'm bisexual so that NO ONE can forget we exist. So that no one can forget we have higher risk for negative health consequences, domestic violence, poverty. So that when the counters count, they have to count me!
I say I'm bisexual so that Tom Daley and Maria Bello don't have to. I say I'm bisexual so that every time someone comes out as having a relationship with someone of the same gender after having relationships with people of a different gender (or vice versa), and the press rush to say that person is "gay," they remember me and take a step back.
I say I'm bisexual so that I can be googled. So that someone alone, someone far away, someone scared can look on the internet and find me. And see my life, and my pride, and my fear, and my love, and my label.
I say I'm bisexual so that I can never deny it. Because denying love is too hard. And once you've said it on the internet, it never goes away. And I never have to hide again. I never can hide again.
I say I'm bisexual so that someday I won't have to. So that when we get better at recognizing that sexual orientation is just another piece of a person; I can just be another person.

Thursday, January 9, 2014

offbeat home: from sci-fi and russian horror, to sherlock holmes fan fic and tear-jerkers: a lady writer reading list for the new year

2:18 PM Posted by Heron Greenesmith , , , , No comments
lady writer reading list
Darlings, as usual, my reading list for 2013 is a study in contradictions. Four Horsemen smut, to Man Booker Nominee. Magnum opi, to video game popular fiction. But as I review my Goodreads list, I see that 2013 was really the year of the ladieeeez. 

I'm late to the party for some of these authors, long-time follower of others, and excited to discover a few more…

Late to the party

Octavia Butler: The Xenogenesis Trilogy

I am super ashamed to have only jumped on the Butler bandwagon this late, but dear Gaia in heaven, this is the most gorgeous, heartbreaking hard scifi series I have ever read. Butler is a female writer of color and she writes with all of her being. Her futures are believable and terrifying because they are grounded in our present, in our complex cultural identity.
Housekeeping A Novel

Marilynne Robinson: Housekeeping

One of my friend's favorite books in the world, Housekeeping came into my life at an odd time. Robinson's writing is lush and claustrophobic, filling your brain with a world of melancholy and confusion. I read the climax of the book on the night of the Boston Marathon Bombings and lay in bed afterwards, not crying, simply letting my eyes rid themselves of the tears that had been building up all day. Housekeeping doesn't let you escape its influence. While some may enjoy the sensation of bathing in rich prose, I found it too emotionally enveloping.

Long-time reader

a casual vacancyJ.K. Rowling: A Casual Vacancy
With time, it will get easier to stop comparing everything Rowling writes to Harry Potter, but while reading A Casual Vacancy, I recognized her intricate voice, her well drawn and conspiratorial teenagers, her flawed and regretful adults, her fully-fleshed micro communities, her tightly woven plots. This was a sad book. Life is sad and death is inevitable and those that die are wiped of their sin. So were Harry's parents, so was Sirius, and so was Barry Fairbrother. And those of us who live struggle in the shadow of their reputation, torn between the false memory of their life and the horrible knowledge that we will never live up to it.
I've been reading the Mary Russell series for 15 years; it's my first Sherlock fanfic, when I really think about it. Mary is smart and funny and everything a 15-year old girl could imagine herself to be. Sherlock loves her for all her ugly quirks and together they trot around the globe in the 1920s solving mysteries.

New Discoveries

Petrushevskaya has been writing and publishing in Russia for 30 years and this collection of her short stories became a NY Times Best Seller when it was published in the US in 2009. Reading like the Russian, grown-up version of Scary Stories to Tell In the Dark, these short ultra-creepy tales are everything good about Russian fairy tales, with terrifying modern twists. War, poverty, political dissent, jealousy, grief are contrasted with love and duty. To country, to family, to neighbors.
Astrid and VeronikaLinda Olsson: Astrid and Veronika
I read this right after Housekeeping, which probably wasn't great for my mood or my empathy for grieving white ladies. Astrid and Veronika is a gorgeous peek into one year of these women's lives. As they share and mourn together, we share and mourn with them. I found the style a little demonstrative — sometimes I felt as if Linda Olsson was telling, not showing me the story. But I came away knowing the characters and pondering Veronika's future, hoping for the best for her.

Bonus book by a dude

I wrote a law review article on the 10th anniversary of Yoshino's famous article on bisexual invisibility, but only this year got around to reading his seminal book. Covering is an argument for a new direction of civil rights advocacy: protecting individuals' ability to live their full selves in our society. Yoshino argues that as much as we should protect minority populations from facing discrimination because of the color of their skin or who they love, we should not require individuals to "cover" the characteristics that align them with their minority population — traditional African-American hairdos, for example, or lack of makeup for a less stereotypically feminine woman. Yoshino weaves his argument with threads from his own lived experience as a gay man and an Asian-American man. He describes his own journey from conversion (hoping and pretending to be straight), through passing (recognizing his own identity, but never sharing), to covering (being out, but acting as "straight" as he feels society requires him to act).
As a bisexual, less stereotypically feminine woman, I can identity all three phases in the journeys of many of my myriad identifies. But what I will take away from this book and treasure in my heart is Yoshino's unapologetic demand for justice. He quotes Justice Brennan's dissent to the Supreme Court in a death penalty case: when the majority spurned the use of studies showing racial bias in criminal sentencing for fear that it would lead to challenges to all dimensions of criminal sentencing, Brennan offered that this argument seemed "to suggest a fear of too much justice." Yoshino analogizes to civil rights, proposing that the same could be said about too much protection against discrimination.

My wish list

I am always super inspired by the Brain Pickings blog, for which I have to thank many books on my 2014 wishlist:
Got some classics on my list:
As well as some new hotness:

So how about you? What did y'all read in 2013 and what are you looking forward to in 2014? What should I add to my must-read list and what did I TOTALLY get wrong?

Tuesday, March 12, 2013

feministing

6:19 PM Posted by Heron Greenesmith , , , , No comments
These posts are from the feministing community. It's been interesting to reflect on past passions and face some deep flaws. 

shining, gleaming, steaming, flaxen, waxen (8.13.08)
Reading QFinder’s post, 100 Stereotypes is more like it, I began to think a little more deeply of my own current hair dilemna. I am a law student, going into my second year. August 18th marks the beginning of the dreaded "Fall Recruitment", 8 weeks of hell during which all the second-year students compete for spots at interviews with the law firms looking for summer associates.
health care, gay marriage, domestic partnerships, and millions of billions of dollars (8.14.08)
Beyond the debate of same-sex marriage lies the greater problem of true rights for all partnerships, and not just rights that exist, like my school’s health insurance, but rights that are realistically obtainable.
why do you hate wiw (women in wheelchairs)? (9.17.08)
This afternoon, during rush hour, I took a bus I don’t normally take – a bus that runs rarely and is often very crowded.  On this particular afternoon, as we pulled up to this particular bus stop, there were people standing on the bus, but we weren’t yet at the in-each-other’s-armpits stage yet.  So we pull up to the bus stop and there is a woman in a wheel chair waiting for the bus.  The driver opens the door…  
 casual dismissal and objectification of rape in quantum of solace (11.24.08)
This weekend I went to see Quantum of Solace, and thanks to my severely reduced expectations, rather enjoyed losing myself in the car, boat and plane chases.  One scene, however, snapped me from my suspended reality back to the misogynist world that Bond operates in.
double shot at love; or america’s crazy love affair with bisexualism (10.11.08)
The elephant in the room, of course, is the possibility that the twins will make out on national television, which brings me to the crux of the post.  America’s homophobia combines awkwardly with its misogyny to create an exception for women making out.  Essentially, while LGBT people are marginalized by society, women making out (I do not use the term lesbian or bisexual here for a reason) are tolerated for the supposed turn-on factor that they provide for some straight men.
the (mis)education of cathy young (3.20.09)
On Wednesday, May 18, the Washington College of Law Federalist Society hosted libertarian columnist Cathy Young to present a talk which she titled "Presumed Guilty? Rape, Feminism, and False Accusations."  
Ms. Young is not a lawyer.  She is a long-time columnist for The Boston Globe and Reason Magazine , libertarian publication extrodinare.  Ms. Young has written extensively on both feminism and false rape accusations:  here , here , here , here , HERE , here , etc.  Her general premise seems to be that First Wave Feminism was a boon to women, but now that we can all get jobs and stuff, shouldn’t we look out for the menz?  I realize I am oversimplifying her argument, but I will get to the substance of her speech in a moment.

prometheus, vaginas, and the a-word. (hint: it’s abortion) (7.2.12)
Let’s return to Prometheus. I will give you three guesses what the “medically correct term” is for the removal of a fetus from a woman’s body. Abortion.  It’s abortion. However Noomi’s character was impregnated, whatever the reason for her needing to remove the fetus, she needed an abortion.

Friday, March 8, 2013

covering: the hidden assault on our civil rights, by kenji yoshino

2:04 PM Posted by Heron Greenesmith , , , No comments
Covering: The Hidden Assault on Our Civil RightsCovering: The Hidden Assault on Our Civil Rights by Kenji Yoshino
My rating: 5 of 5 stars

Covering is an argument for a new direction of civil rights advocacy: protecting individuals’ ability to live their full selves in our society. Yoshino argues that as much as we should protect minority populations from facing discrimination because of the color of their skin or who they love, we should not require individuals to “cover” the characteristics that align them with their minority population: traditional African-American hairdos, for example, or lack of makeup for a less stereotypically feminine woman. Yoshino weaves his argument with threads from his own lived experience as a gay man and an Asian-American man. He describes his own journey from conversion (hoping and pretending to be straight), through passing (recognizing his own identity, but never sharing), to covering (being out, but acting as “straight” as he feels society requires him to act).

As a bisexual, less stereotypically feminine woman, I can identity all three phases in the journeys of many of my myriad identifies. But what I will take away from this book and treasure in my heart is Yoshino’s unapologetic demand for justice. He quotes Justice Brennan’s dissent to the Supreme Court in a death penalty case: when the majority spurned the use of studies showing racial bias in criminal sentencing for fear that it would lead to challenges to al dimensions of criminal sentencing, Brennan offered that this argument seemed “to suggest a fear of too much justice.” Yoshino analogizes to civil rights, proposing that the same could be said about too much protection against discrimination.

Judicial efficacy and administration burdens aside, YES! We allow ourselves, as lawyers, to see the law as the blueprint, the walls of the house that we are allowed to decorate. Instead, we should see the law as the shelter we have built to protect ourselves, a shelter we can add to as our family grows larger. There is no restriction on the number of rooms. There is no such thing as "too much justice." Yoshino asked a mentor for advice as he stepped into the life of law professor. “He told me his only advice for the coming years was that I should be more myself, that instead of reasoning within the law as it existed, I should speak my truth and make the law shape itself around me.”


View all my reviews

Tuesday, March 5, 2013

pain

10:00 PM Posted by Heron Greenesmith , , , , No comments
My left hip aches and I can feel myself slipping into a limp, flinching away from the hurt. My jaw is tight, clenching in pain and in anticipation for the inevitable. 

“Are you ok?” 

“I’m good, just a little pain.”

“Did something happen?”

“Oh no, just the usual connective-tissue thing joint pain messed-up-ness.”Quizzical eyes. Or pitying eyes. Or glazed-over eyes. Or eyes reassessing my physical and mental fortitude.

I have chronic pain. I didn’t rebel much in high school, but my body did. As we – my body and I – grew into our fuller selves, lengthening, strengthening, curving and straightening, my joints began to ache. My shoulders and hips. My knees and my lower back. My wrists and elbows.

I have lived fifteen years with pain, holding pain, making room for it in my body, cherishing it, almost. Never noticing its absence – pain is like that – and always noticing its return. One year ago, I was diagnosed with hypermobility and sent on a journey of recovery. After fourteen years of struggling without a name for my pain, wrestling with my body and with my doubt, it has been a revelation to explore what it means to be validated in this very solitary experience.

Diagnoses, like all labels, are privileges granted by the labeler.  Labels carry power and control. The fundamental difference between diagnoses and other labels is that one cannot officially diagnose oneself.  I can label my sexuality – and that is a privilege.  I can call myself bisexual and most people understand what I mean by that, even if I can’t precisely articulate the intricacies of my personal sexuality. Others can label my sexuality, if they so choose. And that gives them power. Others can call me straight, or gay, or bi, or whatever they choose. They may be right, they may be wrong, they may have different words for the same concept.  But that's their problem. A label's meaning rests in the person who gives the label.  When I label my own sexuality, I am reclaiming the power to define my existence and experience by my own terms.

Medical diagnoses are labels you can rarely reclaim for yourself. Societal norms and insurance regulations have created an infrastructure in which medical diagnoses are black and white: you have or you have not.  Our reliance on diagnoses makes it difficult for people without a “diagnosis” to legitimize their medical experiences – to get appropriate care, for example.  A lack of a diagnosis by a professional leads to assumptions that a medical condition isn’t real, it’s psychosomatic, it’s hysteria.

Receiving a diagnosis is the key to legitimacy. A diagnosis is the key to accessing appropriate and necessary care. A diagnosis is the key to gaining the understanding of one’s peers, all of whom speak the same language of medical labels and share the same reliance upon diagnoses.

A diagnosis is a privilege because not everyone can access appropriate diagnoses. Barriers are myriad: financial ability to access an appropriate professional; geographic proximity; ability to articulate one’s symptoms, whether because of a language barrier or because of the nature of the medical issues; trust that you will be shown the courtesy and respect you deserve; knowledge that you can access a diagnosis and thus appropriate care; sexism, racism, homophobia, transphobia, abelism.
When my pain first surfaced, my mother was one of the few who believed me. She took me to pediatric orthopedists and hematologists  across New England. At the orthopedist, I lay on the table in a thin hospital robe as the doctor squeezed my knees until I winced with pain. 

“Oh, does that hurt?”

“Yes.”

The bone scan showed nothing. The thyroid scan showed nothing. The blood tests showed nothing. The echocardiogram showed my aorta at the wide end of normal and thus the inklings of a potential diagnosis were scraped together from my various and disparate symptoms: mild potential connective tissue disorder, possibly Marfan’s Syndrome. Recommendation: pain killer for joint pain, yearly echocardiograms for heart.


I was young, I’m female, and my pain would ebb and grow and pierce and disappear without seeming reason. I lacked the authority of age, I lacked the medical vocabulary, and I lacked the concrete symptoms necessary for a typical diagnosis. Pressure is painful to my joints, but also along my ribcage and on my shoulders.  Inactivity causes pain in my hips but excessive activity can aggravate my lower back.  

Frustrated doctors listened to my words, looked at and inside my body, took the pieces of information they learned, and stuck together a story that fit. I was in pain, so I need pain killers. My aorta was larger than normal, so I should monitor my heart.  I was young, so perhaps I was exaggerating.  I was female, so perhaps I was exaggerating. I couldn’t articulate when or where or why it hurt, so perhaps I was exaggerating.

The doctors were not alone in their assumptions.  My first year with physical pain was also emotionally painful. I found it impossible to fully explain what I was feeling. My father, hoping to ease my discomfort, would massage my shoulders painfully. I would ask him to stop and I could see his confusion and his own frustration at not being able to help me. He insisted on massaging my shoulders; his one response to his daughter’s pain. My pain at seemingly normal physical interactions – lightly bumping my knee or hip, wrestling with my brother – was met by my family with light mockery, that infamous builder of character.

Chronic pain becomes a solitary experience. My world would color at the edges with pain and yet I knew that no one’s world was tinged the same color. I found myself using my face to share my pain. Twisting the edge of my mouth. Gritting my teeth. Closing my eyes. Hoping someone would notice. Praying that no one would notice.

Pain also leads to mistrust. Mistrust of touch, touch that could be painful. I would end up apologizing for feeling pain at someone’s well-meaning touch, until it was just easier to avoid most physical contact. My flinches at unwanted contact said far more than I wanted them to and were far more effective than I dreamed. People don’t touch a flincher more than once.

I have health insurance now, another privilege.  And a primary care physician who listened to my medical history and offered me pain killers.  I said no.  She then recommended that I go to the Marfan’s clinic at Johns Hopkins University to test my long ago far away diagnosis.  I said yes, and I went, and I do not have Marfan’s Syndrome. Nor do I have any connective tissue disorder. I was oddly complacent. Fifteen years of internalized doubt, flinching, and mistrust of myself and others had prepared me for this moment: there is nothing wrong me and it’s all in my head. Those doctors were all correct. Back to my primary care physician. 

“I can prescribe you a pain killer.”

“No.”

“You probably have fibromyalgia.”

“I don’t think I have fibromyalgia.”

“Well, then you should see a rheumatologist.”

Sometimes, if I sit in one position for a long time, particularly if my legs are tucked under me, I struggle to unbend myself as I get up. My knees and hips won’t cooperate; it’s as if my joints are made of stiff but flexible plastic; they need to warm up before they can be manipulated.

I was afraid that taking medication for my pain would further blur the edges between what I knew I was experiencing and what my interactions with other people told me I was experiencing. I was terrified I would lose what little certainty I had – that my sharpness, physical and mental, would be rubbed away into muzzy nothingness.

As I aged, I became better at saying the words that people expected to hear. No one wants to hear “just the usual connective-tissue thing joint pain messed-up-ness.” “Old bones,” said with a wry smile, will comfort the worried. “Oh, just stiff,” said with an exaggerated wince, soothes the idly concerned.

I also improved at articulating my pain. It was an important process for my partner and I; he would become frustrated at my general aches and pains. I was forced to find the words for what I was feeling at the exact moment – both to help him find a solution to the pain, like sitting for a moment or icing a hip, and to help me listen more closely to my body. And by listening to my body and articulating precisely what I was feeling, I knew that the increasing pain in my hips meant that something had to happen, some final solution had to be found.

My rheumatologist is a small thin woman with very cold hands. She listened to me, without speaking, until I ran out of things to say. She then asked me questions about when my pain started and when it flared up. I struggled to remember, to articulate. With her prompting, I succeeded better than I ever have. She took off my shoes, looked at my feet. Stood me up, looked at my knees and my back. She gently bent my hips and asked me to push my arms against her palms.

She sat back.

“You have high arches and hypermobility and your joints have been struggling for fifteen years to hold your body together. All your muscles are tight from cramping around your joints to protect them. No more flip flops.  Arch support all the time. We’ll get you a physical therapist to work out those tight muscles and you should do some core strength training.  You’ll never be all better, but we’ll get you well on your way.”

Sometime later I was on the street, walking towards work. I called my mother. I started crying. Someone believed me. No. Someone believed my body. She could hear what my body was saying without me having to translate it into my too often inadequate language. She could hear what my body was saying and they believed it. She believed it and knew how to start making it better.

It’s been eight months since someone listened to my body, told me what it was saying, gave me the language to tell others, and helped me begin to fix myself. My pain has not disappeared – it never will. It has shifted, shrunk.  I have become infinitely better at listening to my own body. I have become stronger. I have changed my life: only closed-toe shoes now, with arch support inserts. No standing still for hours at a party.  No popping one hip out when I stand. No crossing my legs at the knee now, only at the ankle, demurely, or ankle over knee, brazenly.  

With a diagnosis, I feel more confident to assert my pain. I can let myself admit weakness. I can’t walk 5 miles anymore. I sometimes need to stand up during a meeting. I have a lumbar bolster on my chair at work. Before my diagnosis, I was afraid that I would have to explain myself in my own words, my own inadequate labels. Now I have my diagnosis to protect me, to privilege me. I also have the responsibility to protect myself by listening to my body and serving its needs. Now that I know what’s wrong, I cannot ignore it.

My life stretches out in front of me, still filled with pain. But maybe not so alone. The process of learning to listen to myself has helped me listen to others. And helped me speak to others. My partner has been with me on this journey and has protected me when I needed comfort and pushed me when I was wallowing in pity.

There is no life lesson here, I don’t think. But there are community lessons. There are lessons that I fail consistently to learn: Believe others when they articulate a problem. Use their words, not your own. Validate others’ lived experience.

Friday, December 14, 2012

futile arguments

3:29 PM Posted by Heron Greenesmith , , No comments
exerpt from Futile Arguments:Lawrence v. Texas and the Supreme Court Bar, published in the Modern American


The current consensus in the literature and among Supreme Court litigators themselves is that hiring specialized appellate counsel is generally a good thing. Michelle Lore wrote an excellent article for The Minnesota Lawyer in 2007, detailing all the reasons a trial lawyer should hand off an appeal to an appellate specialist. Among other advantages, she points out the specialized skill set, familiarity with appellate judges, and the objectivity that new appellate counsel can bring to a case. She also notes the prestige that attaches to specialized counsel, recognizing that clients view appellate work as “a distinct service.”

These clients may be correct in their view. According to Kevin McGuire and Joseph Swanson, specialized appellate counsel achieve much higher rates of being granted certiorari (also
known as “cert,” or review on appeal) in the Supreme Court and possibly reach higher rates of winning cases. In his article, Repeat Players, Mr. McGuire examined the lawyers in all Supreme
Halls of CongressCourt cases between 1977 to 1982 to determine that “lawyers who litigate in the high court more frequently than their opponents will prevail substantially more often.” Kevin McGuire proposes that the more an attorney appears before the Court, the higher the likelihood of his success. Joseph Swanson takes a micro look at the certiorari process by examining three particular members of the Supreme Court bar in three particular cases, but arrives at a conclusion similar to Mr. McGuire’s: “One can only conclude that hiring experienced Supreme Court counsel to petition the Justices for review may improve one’s chances considerably.”

One consequence of the rise of the elite Supreme Court bar is that judges may expect something different, if not better, of the parties appearing before them than they have in the
past. According to Jennifer S. Carroll, appellate judges expect a different level of legal argumentation than trial judges. The “emotional pleas” considered the norm at the trial level, she says, would be “inappropriate at the appellate level.” In fact, she argues that “[a]pellate practice has evolved into a specialized area of the law, and justifiably so. The fundamentals of appellate advocacy—writing a simple persuasive brief, making an effective oral argument, and having a command of the appellate procedure—necessarily reflect effort, skill, and at the highest level, art.”

Even the Supreme Court agrees. The American Bar Association Journal interviewed Justice Antonin Scalia and Bryan A. Garner about their coauthored book Making Your Case: The Art of Persuading Judges. The book instructs appellate lawyers of at all levels on how best to write briefs, argue cases, and, ultimately, convince judges. When the Journal asked Justice Scalia his thoughts on the rise of the Supreme Court bar, the Justice said:

I think that there are a significantly larger number of lawyers who appear at least once a term and sometimes several times a term than when I first came on the court . . . . I think I can say that those who do it with great frequency and are paid a lot of money to do it because they are good at it are obviously going to be better—other things being equal—than a novice.


A litigator approaching her first argument in the Supreme Court may rightfully worry that this presumed level of competence creates an ethical duty to hire specialized appellate counsel.
Christine Macey compares the benefits of increased chances of being granted certiorari, more effective oral arguments, and the affordability of appellate specialists to the “novice lawyer’s”
obligations to educate her client and provide competent representation. Ms. Macey concludes that “although statistics show that experience matters at the High Court,” inexperienced attorneys may fulfill their ethical duties by comprehensively educating their clients and preparing adequately for trial. Moot courts, Supreme Court clinics, brief writing assistance, and online and print resources (including those coauthored by Justices themselves) are all resources attorneys may use to help them prepare.

Ms. Macey also discusses reasons that attorneys may prefer to not pass on their cases to appellate attorneys.

A lawyer may want to keep [a] case for legitimate reasons, such as client trust or superior knowledge of the facts. Alternatively, a lawyer may wish to keep [a] case for self-interested reasons. A Supreme Court argument is a once-in-a-lifetime opportunity for most attorneys. It could lead to television or newspaper coverage, as well as future business. Supreme Court advocacy is associated with prestige. . . . Legal fees may also motivate to keep the case to herself.

Some of these reasons may also be related to a lawyer’s connection with and passion for the particular cause implicated in the case. The lawyers involved in Lawrence v. Texas exemplify the way in which the rise of the Supreme Court bar can affect who argues which cases. To explore the rise of the Supreme Court bar, and specifically the role of Lawrence v. Texas
and impact litigation, in the lesbian, gay, bisexual, and transgender (LGBT) movement, I interviewed Paul Smith and Mitchell Katine and corresponded briefly with Suzanne Goldberg over email.

Thursday, November 29, 2012

drawing bisexuality back into the picture

1:21 PM Posted by Heron Greenesmith , , No comments
excerpt from Drawing Bisexuality Back into the Picture: How Bisexuality Fits into LGBT Legal Structure Ten Years After Bisexual Erasure, published in the Cardozo Journal of Law & Gender.

[I]f I am not free and if I am not entitled equal to heterosexuals and homosexuals then homosexual men and women have joined with the dominant heterosexual culture in the tyrannical pursuit of E Pluribus Unum and I a bisexual woman committed to cultural pluralism and, therefore to sexual pluralism, can only say, you better watch your back!
- June Jordan, On Bisexuality and Cultural Pluralism, in Affirmative Acts


INTRODUCTION

In 2000, Kenji Yoshino published a paper exploring the social erasure of bisexuality. He introduced the paper by empirically proving that bisexuality was invisible through a quick survey of popular news sources that featured volumes more articles about homosexuality than bisexuality. Once he showed that bisexuality was invisible, he made sure to distinguish between the incidental invisibility of bisexuality, perhaps because of the low number of bisexuals, and its deliberate erasure. Yoshino theorized that monosexuals—individuals who are
attracted to only one gender, such as heterosexuals and homosexuals—created an epistemic contract to erase bisexuality in social culture. He argues that monosexuals erase bisexuals in three ways—class erasure, individual erasure, and delegitimization—and proposes that monosexuals have three reasons for participating in and encouraging this erasure: “1) an interest in the stability of sexual orientation categories; 2) an interest in the primacy of sex as a diacritical characteristic; and 3) an interest in the preservation of monogamy.”

My article, written on the tenth anniversary of Yoshino’s seminal piece, is not an update on whether bisexuality has gained social visibility in the last ten years or an examination of whether invisibility is still maintained by a contract among monosexuals. Rather, I begin from the position that bisexuality is invisible in legal culture, like in Yoshino’s social culture, and pose two hypotheses for this invisibility. First, I believe that while Yoshino’s analysis retains viability when
analogized to the legal context—which he explores within sexual harassment jurisprudence—I propose that bisexuality is inherently invisible to the law, beyond the reach of deliberate erasure. A plaintiff’s bisexuality is only at issue in the law where there has been an affirmative outing. That is, in cases where sexuality is at issue, plaintiffs are presumed monosexual, and must either declare their own bisexuality or have it found for them. I explore this legal invisibility in two contexts in Part I of this article.


Second, I argue that where bisexuality is legally relevant it has been erased within the legal culture because it is complicated and muddles legal arguments that depend upon the binary of sexuality. Yoshino addresses this reliance on the binary of sexuality as a fundamental part of homosexual investment in stabilizing sexual orientation by erasing bisexuality, but I argue that this factor is much more prominent in legal culture than the social context. In Part II of this article, I use the suspect class analysis under the Equal Protection Clause to show how bisexuality
complicates legal arguments, and propose two solutions through which bisexuality can be introduced into the Equal Protection analysis without compromising sexual orientation’s suspect classification.

The erasure of bisexuality, representative of all sexual identities between 100% homosexual and 100% heterosexual puts the fight recognition of sexual and gender minorities at a disadvantage. Not acknowledging sexualities along a continuum, weakens arguments for granting rights to and preventing discrimination against the lesbian, gay, bisexual, and transgender (LGBT) community. I conclude with the proposition that inclusion of bisexuality, and indeed of all non-binary identities, is crucial for the LGBT civil rights movement.