Hybrid. Ruth Colker
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my perspective as a bisexual. The answer, I believe, depends upon the difference between the constructions of our sexual orientation and our race. One of the first components of our identity is race: are we African-American? Caucasian? Asian-American? We consider it to be a given, an immutable fact. The significance of that racial identity may differ but it is something we “know” like most of us “know” our gender. Our sexual orientation is something that we discover as we grow older. In particular, people who have come to identify with a minority sexual identity have had to grapple with the recognition that they have moved away from the expected category, heterosexuality, to another category such as homosexuality or bisexuality. Intracategorical movement is therefore a typical experience for people who are members of a minority sexual-orientation category but is not a typical experience for people who are members of a minority racial category.
Nonetheless, a bi perspective needs to investigate racial categories because they are, in fact, as socially constructed as sexual orientation categories. Anthropologists, for example, believe that there is insufficient difference between supposed human racial categories to constitute genuine racial categories. In addition, anthropologists agree that the vast majority of people who are labeled as “African-American” have a multiracial background. The fact that most of us do not investigate our race to question whether we belong in a monoracial category reflects the power of socialization rather than any biological reality. Thus, although multiracial existence may be quite different from bisexual or transgender existence, it is worth examining closely, as it reveals the social construction of bipolar racial categories. A bi perspective may therefore enhance our understanding of race by encouraging us to make an intracategorical investigation of racial categories. It is essential that a bi perspective investigate sexual orientation, gender, race, and disability to provide us with a comprehensive understanding of the construction of bipolar injustice in our society.
THREE Sexual Orientation
In a 1981 decision, the South Dakota Supreme Court thought it reasonable to ask Sandra Jacobson to forego a sexual relationship with a person of the same sex. “Concerned parents,” the Court wrote, “in many, many instances have made sacrifices of varying degrees for their children.”1 The law of sexual orientation routinely gives bisexuals the “choice” of avoiding the negative consequences of the legal system (i.e., loss of custody of children, discharge from the military, imprisonment for sexual conduct) if they will disavow their attraction to people of the same sex and flaunt their attraction to people of the opposite sex. But as one Ninth Circuit judge asked: “Would heterosexuals living in a city that passed an ordinance banning those who engaged in or desired to engage in sex with persons of the opposite sex find it easy not only to abstain from heterosexual activity but also to shift the object of their sexual desires to persons of the same sex?”2 Because bisexuals find some people of both biological sexes attractive, society considers it especially appropriate to visit upon them coercion that would be unthinkable for heterosexuals.
The blatantly coercive history of sexual-orientation policies should make us wary of developing any sexual-orientation categories under the law. Yet, some categories are necessary to develop ameliorative policies. Should the definitions that are used for ameliorative purposes parallel the definitions that have been used for subordinating purposes? Is it possible for society to create privileges and benefits for the gay, lesbian and bisexual communities without perpetuating negative stereotypes about these communities? We need to consider carefully which policies we are trying to promote as we construct these new categories in order to avoid importing destructive values and policies into the gay, lesbian, and bisexual communities.
I. Homosexual Policies That Cause Harm
A. Cincinnati: “Homosexuals Are Not Identifiable”
Many grass-roots attempts to restrict the rights of gay and lesbian people through voter referenda have occurred in the last decade.3 Oregon and Colorado received considerable national publicity overshadowing a lesser-known attempt in Cincinnati, Ohio, which has produced the most peculiar case law relating to the definition of “homosexual.”
In November 1992, the city of Cincinnati passed a Human Rights Ordinance prohibiting discrimination based on race, gender, age, color, religion, disability status, sexual orientation, marital status, or ethnic, national, or Appalachian regional origin in employment, housing, and public accommodations.4 The passage of this ordinance caused an immediate backlash. An organization called Equal Rights Not Special Rights (ERNSR) was formed to eliminate special legal protection that was accorded to individuals because they were gay men, lesbian, or bisexual.
ERNSR’s strategy was to get the voters to pass a ballot initiative which would invalidate the Human Rights Ordinance as it applied to individuals who are “homosexual, lesbian, or bisexual.”5 (Presumably, it did not invalidate the Human Rights Ordinance insofar as it protected heterosexuals from sexual-orientation nondiscrimination.) The initiative passed by a popular vote of approximately 62 percent in favor and 38 percent opposed and became Amendment XII to the Cincinnati City Charter.
Six days later, a lawsuit was filed challenging the implementation of the initiative. Plaintiffs prevailed in the trial court and the case was appealed to the Court of Appeals. The lower court found that the initiative penalized gay, lesbian, and bisexual people based on their status as persons oriented toward a particular sexual attraction or lifestyle. In reaching this conclusion, the trial court noted that having the status of being gay, lesbian, or bisexual does not require an individual to engage in any particular conduct. (One can be, after all, a celibate homosexual.) Instead, homosexual status requires an individual to have an “innate and involuntary state of being and set of drives.”6 This conduct/status distinction was needed to distinguish the initiative from the sodomy statute unsuccessfully challenged in Bowers v. Hardwick.7 In Bowers, the U.S. Supreme Court had ruled that states could constitutionally proscribe homosexual sexual conduct. In order to conclude that the Cincinnati initiative was unconstitutional, the trial court had to be able to conclude that the initiative regulated status rather than conduct.
The Court of Appeals rejected the trial court’s analysis that the initiative regulated status rather than conduct. It concluded that the initiative could not be discriminating on the basis of status because we have no way to identify gay, lesbian, or bisexual people except by their conduct:
The reality remains that no law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such as innate desires, drives, and thoughts. Those persons having a homosexual “orientation” simply do not, as such, comprise an identifiable class. Many homosexuals successfully conceal their orientation. Because homosexuals generally are not identifiable “on sight” unless they elect to be so identifiable by conduct (such as public displays of homosexual affection or self-proclamation of homosexual tendencies), they cannot constitute a suspect class....
Those persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them as homosexual, bisexual, or heterosexual. . . . for purposes of these proceedings, it is virtually impossible to distinguish or separate individuals of a particular orientation which predisposes them toward a particular sexual conduct from those who actually engage in that particular type of sexual conduct.8
The Sixth Circuit’s logic is difficult to comprehend. It suggests that all individuals who are affected by the Cincinnati initiative are currently engaging in sexual conduct with people of the same biological sex. Because Bowers allows a state to regulate such conduct, it concludes that the Cincinnati initiative must be constitutional.
The Cincinnati initiative, however, never mentions sexual conduct so the court makes a big leap from the initiative language to its conduct conclusion. It makes that leap by broadly defining the word