There has been a recent shift in the political and legal treatment of bisexuals. Since Ruth Colker, Naomi Mezey, and Kenji Yoshino began writing about the phenomenon of bisexual erasure and the resulting invisibility of the bisexual from sexual-orientation law and the LGBT rights movement, something strange has happened. Bisexuality is suddenly hypervisible. And not just on Glee or in The Girl with the Dragon Tattoo. Or even in the 2010 national sex survey reporting that of the seven percent of the population identifying as nonheterosexual, forty percent of the men and a large majority of the women identified as bisexual. Bisexuality is now also hypervisible in the law. Recent cases have arisen where plaintiffs have alleged discrimination on the basis of their bisexual orientations and where plaintiffs have been required to prove that they are “gay enough” to merit protection from discrimination. Yet despite this hypervisibility, the law has failed to address the harms that bisexuals face. The problem stems from the law’s current definition of “sexual orientation,” which provides the basis for an actionable discrimination claim. This definition includes only extreme orientations like homosexuality and heterosexuality but, for all practi- cal purposes, excludes bisexuality.
This Article offers an alternative definition by introducing the distinction between an individual’s General Orientation and Specific Orientation. An individual’s General Orientation is the sex toward which the individual is attracted the majority of the time. An individual’s Specific Orientation is the sex of the individual’s desired or actual partner(s). Whereas for many the two orientations are identical, for bisexuals the two orientations often differ. If adopted, this alternative definition would reorient the concept of sexual orientation under the law. It would offer to the LGBT rights movement, to legislatures, and to courts the opportunity to protect against discrimination on the basis of sexual orienta- tion as it is actually lived, rather than on the basis of sexual orientation as the law has until now imagined it to be. It could also offer to antidiscrimination law a model for the protection of living identities, with respect to sexual orientation but also with respect to other identity categories.
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