Both Ends Against the Middle

How gays and straights make bisexuals invisible.

By Carole Bass

Yale Law professor Kenji Yoshino

Kenji Yoshino doesn't look like a revolutionary. Slender and unassuming in black jeans, a white dress shirt and tie, the soft-spoken 30-year-old Yale legal scholar could easily pass for one of his students. Law books, a computer, a remarkably clean desk -- nothing in his comfortable office hints at radical, boundary-busting ideas.

"The Epistemic Contract of Bisexual Erasure" doesn't exactly tell you what he's up to, either. That's the title of a 30,000-word article Yoshino has written for the Stanford Law Review, which will publish it next winter.

He's a bit of a whiz kid: educated at Harvard, Oxford and Yale Law School, clerking for federal appellate judge (and ex-Yale Law Dean) Guido Calabresi, then landing a tenure-track teaching job at Yale.Just three years out of school, he's already published in two other major law reviews. This summer, he'll speak in London at an international conference on same-sex marriage.

So forget the academic language. Here's Yoshino's point: Gays and straights have made an unspoken, unconscious deal to "erase" bisexuals -- to make them invisible, pretend they don't exist. The day after Yale's graduation last week, he took a breather to talk about some of his ideas.

The Unexplained Middle

Yoshino: I was teaching a course on sexual orientation and the law. In common parlance we generally think of people as dividing either into being gay or being straight. But one of the things I try to do with my students is to argue against the grain of that and to say, since the Kinsey studies in the late '40s, early '50s, we've had this understanding of sexuality and sexual orientation as arraying itself along a continuum from exclusive heterosexuality, which Kinsey called a Kinsey 0, to exclusive homosexuality, which Kinsey called a Kinsey 6. And there are all these way stations. Ever since then, this idea of the continuum has been a very powerful one. You do hear the words a lot. But we still keep falling back into the usages of straight and gay as being the two dominant categories, and erasing the middle category of bisexual.

If you look at the Kinsey scale, I think you could fairly say that Kinsey 0s and 1s are straight, and Kinsey 5s and 6s are gay. But that leaves the middle unexplained -- the Kinsey 2s, 3s and 4s, who have more than incidental desire for both genders.

I would make this argument, and the whole class would sort of nod along, and everyone would agree with this as if it were interesting, but completely unproblematic. But the minute that unit ended, and we started talking about law review articles or cases, students -- as well as myself -- would fall back into the binary again, talking about straights vs. gays. The bisexual category was completely erased.

This was really surprising to me, because it seemed so inconsistent with what had just preceded it. On the one hand, we all knew, when we were focusing on the term "bisexual," that bisexuals existed as a significant part of the population. But once we took our eye off of bisexuality for a minute, the category would immediately disappear.

So I started to talk to colleagues about it. When I talked about bisexuals as being erased, a lot of my colleagues would say, they may exist, but they exist in such small number that their invisibility doesn't look like erasure. It looks like nonexistence, or very small existence. That kept coming up again and again.

So I went back through all of the major sexuality studies. And I found something that was really startling, even to me, which was that all of these studies uniformly showed that bisexuals existed in comparable or greater numbers to homosexuals. I find this consensus to be really incredible. Because how do we think about the contrast between the fact that bisexuals exist in comparable numbers to gays, against the fact that, if you look at it politically and socially, gays are so much more visible than bisexuals in this society -- by orders of magnitude.

OK, so bisexuals are being erased. Why are they being erased? I basically came up with three ideas about why this might be the case.

Advocate: It's a conspiracy.

Yoshino: Yeah. My theory is that both gays and straights have agreed that, no matter what else they disagree on -- they disagree on a lot -- they'll both agree about this one thing, which is that bisexuals don't exist. Because they have different but overlapping interests in erasure.

If the realm of bisexual possibility exists, it becomes impossible to actually prove that you're straight or you're gay. If you're straight in a world where bisexuality doesn't exist, then you can prove you're straight simply by adducing cross-sex desire: like, "I have a wife, I have a girlfriend" -- if you're a man -- kind of thing. Right? Whereas, once you introduce a bisexual possibility, the fact that you have cross-sex desire does not [prove] that you don't have same-sex desire. Given that same-sex desire is stigmatized, people who want to identify as straight are going to have a lot invested in making sure that they can prove that they're straight. Because otherwise they'll lose heterosexual privilege.

Less intuitively, gays also have an investment because it's very hard, if you're trying to have pride around a stigmatized identity, to feel like there's constantly an out -- you know, that you could drift over into being straight or being bisexual if you wanted to.

The second investment has to do with the desire to keep gender as a really important distinguishing characteristic in society.

One of the things that both straights and gays, according to their own accounts, feel [is] threatening about bisexuals is that bisexuals are seen to be gender-blind. I think there's sort of a stereotype that bisexuals sort of fall in love with the person, without regard for gender. And there may be some bisexuals who are that way -- although, given the strength of gender norms in our society, I would find that hard to believe. I think many more bisexuals would say they fall in love with men as men and with women as women. But bisexuals are not eliminating one gender from erotic consideration, in the way that what I call monosexuals -- gays and straights together -- do. So insofar as we want to think that gender is really important in our society, bisexuals subvert that.

I don't hold this position, but one of my colleagues holds this position, that bisexuals could actually be said to be morally superior to either straights or gays. Because they are the only people in society who at least have the potential not to discriminate on the basis of gender in any aspect of their lives.

Advocate: The premise of that theory, right, is that sexual desire has a moral basis, and that certain forms of desire are morally superior to others.

Yoshino: Exactly. And that's -- I mean, there are a number of ways ...

Advocate: That's pretty dangerous.

Yoshino: you can critique it. Right. Although, to be fair to him, his response would be that there are many immutable traits that we deem to be bad. He wants to separate out being able to say something is bad from penalizing people.

Anyway, a more fundamental objection to his argument is that, I think it's really dangerous to think of [recognizing] difference as always being bad. The word "discriminate," of course, in its root sense only means that you differentiate between things. If you have a discriminating palate, that means you can discriminate between different kinds of food. Just because you differentiate doesn't mean that you discriminate in the negative sense.

But I think the most powerful way of framing this argument is to say: Is it any surprise that sex discrimination is so hard to eradicate when differentiation on the basis of sex is not only permitted but expected in our erotic lives?

Advocate: What's the third reason that gays and straights want to erase bisexuals?

Yoshino: Many gays and many straights, for different reasons, espouse monogamy as a really important idea. And there's this idea that if you're bisexual, you're not going to be satisfied unless you're interacting erotically with both men and women. No one person is ever going to satisfy you because every person is only one gender.

Bisexuals respond to this by saying, "That's ridiculous. If I have desire for blue-eyed people and brown-eyed people, does that mean I have to be with both blue-eyed and brown-eyed people? No, it's just that I have the capacity to be attracted to blue-eyed people and brown-eyed people."

One Drop of Blood

Advocate: In your article, you say "sexuality is a powerful solvent of identity." What do you mean?

Yoshino: One of the things that's scary about desire is that it's invisible, it's complicated, it can change over time, it's subject to a lot of repression. Sexuality is something that surprises us and takes us places we didn't expect to go. Why else does psychoanalysis spend so much time delving into desire and sexual identity?

There's a true story of a man and a woman who met on the Internet and fell in love. When they met in person, the woman discovered that the person who'd been presenting himself as a man was actually a woman. This [first] woman had always thought of herself as straight, but now she's in love with another woman. She thought it would be superficial to reject the person she fell in love with just because of gender.

Or the case of a husband who gets a sex-change operation, and his wife stays with him, in what's now considered a lesbian relationship. Love has taught you something different.

Advocate: Often when we think about a continuum, we think about categories in the middle being more moderate, even more typical. But that's clearly not how we as a society think about bisexuality.

Yoshino: I put this out more as a puzzle, because I'm thinking through it now. Why is it that certain intermediate categories, like bisexuality, get erased, whereas in other contexts, intermediate categories don't get erased, and are seen as the dominant categories? The notion of the middle class is an intermediate class, between the upper class and the working class.

Advocate: It's practically taken over.

Yoshino: Right. It's completely swallowed both ends of the continuum. Why? If we look at multiracials, they are very similarly situated to bisexuals in terms of invisibility.

In the gender category, we haven't even come up with a -- well, we've come up with a name, what we used to call hermaphrodites, that we now called the intersexed, people who don't clearly belong to one gender. That group is even more deeply erased. People who have genitalia that are associated with both genders is something that we're not even conscious of. We're so comfortable with gender as being a binary that the fact that there even might be a third category is a shock to us.

Advocate: You've touched a couple of times on the racial analogy. When we talk about race in this society, we're basically talking about black and white, and leaving out not just people of mixed race, but the other races, too.

Yoshino: I think you can trace a really similar trajectory in how multiracials are treated. One regime is the one-drop-of-blood rule: that if you have one drop of "black" blood, you're black. Similarly, there were times in American history where one homosexual act could make you homosexual. A single thing could make you tainted, so you could no longer belong in the pure category.

Then people were worried that people who looked white and talked white and acted white in every respect were going to be tainted as being African-American. So we moved to where you needed a certain percentage of African-American descent before you'd be considered black. Similarly, the idea is that sort of incidental same-sex contact is not going to lead to a homosexual description, but you need more of a sustained pattern before we're going to call you gay.

Another regime -- and we kind of tack back and forth between these -- is that the intermediate category becomes robust enough that it starts asserting itself: It's not only that we're not black, if we have one grandfather who was black. It's also that we're not white. Similarly, we have people saying, "It's not only that I'm not gay, if I've had contact with both men and women. It's also that I'm not straight. I'm bisexual."


Advocate: There are cultures where race just isn't a big deal at all. Are there cultures that look at sexual orientation in a similar way, where the categories aren't that important?

Yoshino: That's a really complicated question. People could still think that sexuality was important without using the categories that we use. An example of that would be what's referred to as "Latin bisexuality." In Latin America, the conventional wisdom goes that if two men are having sex, the penetrating man is not considered to be homosexual, because he's taking the quote-unquote masculine role.

I don't think that's what you're getting at. I think the closest thing I've seen is the role of the berdache in Native American society. The berdache is -- putting it unbelievably crudely -- the effeminate man or the virile woman. That's not necessarily denigrated. The berdache are actually revered in many Native American societies as having more direct access to spirituality. They can be straight or they can be gay, or whatever. But that's not deemed to be the most important part of their gender. Orientation kind of falls out of the picture. Whereas here, if someone is gender-atypical, they're immediately called "faggot" or deemed to be gay.

The queer theorist Eve Sedgwick said something really smart. She said that there are so many ways of distinguishing between people on the basis of their sexuality. We could choose to distinguish people on the basis of whether they think about sex a lot or a little, or whether they have sex a lot or a little, or whether their sex parts are connected to their emotional parts or not, or what proportion of their sex lives is fantasy and what proportion has to be acted out. So it's something of a puzzle as to why the gender you choose to sleep with has become so important.

Bisexuals could do two things politically. They could just explode all these sexual orientation categories and make us think of ourselves less as people who are defined by our sexuality. But another way they could go is they could say, "Sexuality is still really important in distinguishing us. We just want to add a third category." So the question is: Twenty years from now, are we going to see gays, straights, bisexuals as three different groups? Or are we going to see a kind of lowering of the importance of what sexual orientation means in society?

Some people have this really utopian vision of bisexuality: Twenty years from now, we're all just going to wake up and realize that we're all bisexual. [But] think about, if somebody is a gay rights activist or a bisexual rights activist, whether or not they should even aspire to that. One of the classic problems with identity politics is that you can't resist a categorization without organizing around one of the categories. If I don't think that people should be classified by their orientation, the best way for me to do that is to be a gay rights advocate or a bisexual rights advocate.

One example of this might be in the same-sex marriage debate. It's much more intuitive when a gay person says, I want to marry somebody of my own sex, and I'm being prevented from doing that. Whereas a bisexual could make a different claim: That the state is making me think about gender at all. I want to be gender-blind in my erotic life, and I want to fall in love with whoever I fall in love with, without thinking about whether I can marry them. It's a much subtler claim.

Advocate: Could that be a legal claim, or just a political one?

Yoshino: It would not be a winner as a legal claim. Put it that way. It would be easy to argue. But it would also be easy to get laughed at.

Advocate: Are there analogous legal claims, in which the complaint is that you're making me think about something I don't want to think about? That really stops me.

Yoshino: If you take Justice Scalia's and Justice Thomas' position about color-blindness, their idea is that the state never can take a person's race into account. And part of the reasoning is that we don't want the state participating in making people more racially conscious.

Boys Will Be Boys?

Advocate: Your article talks about the "horseplay" defense to same-sex harassment charges -- when a man is accused of harassing another man, and he says, "No, we were just goofing around. I don't want to have sex with him -- I'm straight." It's an intriguing double whammy. You're either guilty of being gay and guilty of harassment, or you're completely off the hook, because you're judged to be straight and therefore it wasn't harassment.

Yoshino: We have a deep cultural assumption that even if you don't do anything, just the status of being straight is more innocent than the status of being gay. It's quite intuitive for people to say, well, if this person was doing something straight, then he wasn't guilty, whereas if he was doing something gay, he should be liable.

Advocate: Where do you see the law headed on that issue right now?

Yoshino: This past year the Supreme Court handed down a decision called Oncale vs. Sundowner Offshore Services, which basically said, if a man harasses a man because of his sex in a sufficiently severe and pervasive manner, there's nothing that prevents anyone from [suing].

One of my colleagues, Vicki Schultz, wrote a brilliant article on how, as the term "sexual harassment" would imply, the [ability to sue for] harassment has increasingly relied upon a requirement that it be sexual in nature, or desire-based. There's nothing in the underlying statute that requires that. One of the things that seemed hopeful about this Oncale case is that it seemed to be taking away the emphasis from desire. That seemed good and sensible.

But what's been disturbing since then is that the cases that have been coming up have taken that language and still seem to have emphasized desire. If a male welder sabotages a woman welder's equipment because he doesn't think women should be welders, and there's no sex involved, then that's seen to be less viable [as a harassment claim].

Let's say two men harass a man in highly sexualized ways. And one [harasser] can prove that he's straight, while the other man says he's gay. If we are saying that desire is a requirement here, then the first person is going to be much more likely to get off than the second person, because he can say it's just horseplay.

Related story:
Bi Out: Not-at-all-guilty confessions from the bisexual center.

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