Hybrid

Bisexuals, Multiracials, and Other Misfits Under American Law

Ruth Colker

• Publisher: NYU Press
• Year: 1996
• ISBN:
  9780814723661
• Topic: Law
• Subtopic: Gender & The Law
• Index: Law

The United States, and the West in general, has always organized society along bipolar lines. We are either gay or straight, male or female, white or not, disabled or not.

In recent years, however, America seems increasingly aware of those who defy such easy categorization. Yet, rather than being welcomed for the challenges that they offer, people living the gap are often ostracized by all the communities to which they might belong. Bisexuals, for instance, are often blamed for spreading AIDS to the heterosexual community and are regarded with suspicion by gays and lesbians. Interracial couples are rendered invisible through monoracial recordkeeping that confronts them at school, at work, and on official documents. In Hybrid, Ruth Colker argues that our bipolar classification system obscures a genuine understanding of the very nature of subordination. Acknowledging that categorization is crucial and unavoidable in a world of practical problems and day-to-day conflicts, Ruth Colker shows how categories can and must be improved for the good of all.

ONE


Introduction:
Living the Gap

What I am—and have been for as long as I can remember—is someone whose sexuality and gender have never seemed to mesh with the available cultural categories.

—Sandra Lipsitz Bern, The Lenses of Gender

What is there about a continuum that is unsatisfying? frightening? Why must life—and we—be seen in either “black” or “white,” with no shades in between?

—Judy Scales-Trent, Commonalities

I. Living the Gap between Categories

Sandra Bern is biologically female and has been married to the same man for nearly three decades, yet disclaims the gender category of “female” and the sexual orientation category of “heterosexual.” She avoids such categories because they presume that she has ordered her gender and choice of sexual partners along the principle of biological sex.¹

Judy Scales-Trent describes herself as a “white black woman” to emphasize that she transgresses boundaries of race, while also identifying as “black.”² She finds that it makes people, including herself, feel uncomfortable when she moves among the static racial categories of “black” and “white.” Categories, she concludes, “make the world appear understandable and safe.”³ Challenging categories unsettles and frightens people.

Linda Alcoff describes herself as “negotiating” the “gap” between her various racial and ethnic identities and observes that she never fully occupied any one of these identities. She has parents from Caucasian, Latina, and African backgrounds.⁴ She remarks, “In white society I feel my Latinness, and in Latin society I feel my whiteness, as that which is left out, an invisible presence, sometimes as intrusive as an elephant in the room and sometimes more as a pulled thread that alters the design of my fabricated self.”⁵ Alcoff has discovered that “peace has come for me by living that gap, and no longer seeking some permanent home onshore.”⁶

I, too, have found gender and sexual orientation categories to be unsettling. Starting at an early age, I embarrassed my mother when store clerks identified me as a boy. As an adult, however, I feel comfortable wearing both a dress and hiking boots and can even laugh when store clerks politely suggest that I might want to buy a “padded bra.” Unlike Bern, however, I would acknowledge that my gender resistance is only partial. When I decided to have a child, for example, I am sure that some men became more attractive to me due to their ability to facilitate my pregnancy. When my husband and I discussed how to divide childrearing responsibilities after the birth of our child, my ability to lactate obviously affected our division of labor. On a less biological level, living in a married relationship with a man has a tangible effect on my sexual orientation because I am often treated as a heterosexual woman. And, as I raise a daughter, I realize that I often pass on gender rules to her.

Complete resistance to gender and sexual orientation socialization is impossible. Bern, as a woman who has been married to the same man for nearly three decades, has been constructed, at least in part, by dominant society’s view of her sexuality and gender. Nonetheless, such a label as “heterosexual woman” is an incomplete description of some women who are married to men.

The experience of living as a legal hybrid varies across gender, sexual orientation, and disability categories. Scales-Trent describes people responding to her hybrid existence with “fear.” As a bisexual, I have often found that the most common reaction is moral disdain rather than fear. My strabismus (cross-eyedness) which causes me to live between the categories of disabled and able-bodied sometimes makes people feel physically uncomfortable, which they express by avoiding eye contact. (Children and adults frequently cross their eyes to look scary.)

For any given individual, the experience of living within a hybrid category can also change in context. For example, Alcoff observes that her racial and ethnic identity changes depending upon the racial and ethnic identity of her community. At a primarily lesbian event, I acutely feel my status of being married to a man and at a heterosexual event, such as a traditional wedding, I feel uncomfortable as a bisexual.

Two individuals who share the same hybrid status, such as being multiracial, may also experience quite different reactions to that status. For example, law professor Maria O’Brien Hylton, of African-American, Hispanic, and Australian-Irish parentage, was caught in a public controversy concerning whether her appropriate racial category was black, Hispanic, or white when she sought a faculty position at Northwestern Law School in 1994. Hylton has checked off the “black” racial category on employment applications and belongs to black community organizations. Hylton is a political conservative who does not believe that her racial identity should be a consideration in the appointment process. She also identifies with the “law and economics” movement within jurisprudence.

The community at Northwestern Law School engaged in a vigorous debate about whether Hylton’s race should be a “plus” in the appointment process. One African-American member of the faculty concluded that Hylton should not be treated as “black” because of her racial background and political ideology. A Hispanic member of the student body concluded that Hylton should not be treated as “Hispanic” because that was not Hylton’s self-identity. Hylton refused to comment on her “proper” racial identity during this controversy, because she considered such inquiries to be “racist and impolite in the extreme.”⁷

The discussions of Hylton’s candidacy were racially polarized. She was either “black” or “Latina” and therefore deserving of affirmative action, or “white” and therefore undeserving. No one suggested that she might fit a middle category of “mixed race.” Nor did anyone probe whether individuals who fit into mixed-race categories should be beneficiaries of affirmative action.

Hylton and Scales-Trent share similar physical features (light skin and kinky hair), yet the responses to their ambiguous racial identity have differed radically. Hylton’s conservative politics combined with her refusal to comment on her racial identity evoked strong disapproval from some blacks and Hispanics. Scales-Trent, by contrast, is a law professor who writes books and articles discussing her categoryless racial identity and who strongly supports affirmative action. The difference in treatment accorded Scales-Trent and Hylton was not the result of a difference in multiracial heritage or appearance, but in identity and politics. Nonetheless, their racial ambiguity has clearly affected their treatment by society. Hylton’s background opened her up to political attacks concerning whether she was authentically “black,” whereas her darker-skinned husband (who also seems to share her conservative politics) was not exposed to such racial categorizing when he sought an appointment on the same faculty. His darker skin and family background immunized him from claims that he was not “black” enough to count as black for affirmative action purposes. Clearly, the implications of living between racial categories are complex, acute, and varied.

The experiences of Hylton and Scales-Trent also reveal that racial identity is not always apparent. Our legal system, however, has been built on the assumption that race, unlike sexual orientation, is visually identifiable. Consider the following statement made recently by a three-judge panel of the Sixth Circuit Court of Appeals to justify its failure to invalidate an anti-homosexual initiative: “Because homosexuals generally are not identifiable ‘on sight’ unless they elect to be so identifiable by conduct..., they cannot constitute a suspect class.”⁸ The three-judge panel (including one African-American female judge) seemed ignorant of the fact that the infamous test case Plessy v. Ferguson⁹ involved a plaintiff whose skin was so light that he had to be identified as “black” to the railroad conductor so that the lawsuit against segregation could be initiated. Racial civil rights litigation has been premised on the visual identifiability of “blacks”; homosexual civil rights litigation has been undermined by its inability to fit into that illusory visual-identification case law. Exposing the pervasive ambiguity of all categorization schemes, including racial ones, will help destroy some of the distinctions drawn between “genuine” racial civil rights claims and “inappropriate” homosexual civil rights claims. We need to understand that categorization schemes have been developed to pursue political and social policies ranging from the perpetuation of Jim Crow laws to the institutionalization of people with disabilities. No categorization scheme should be accepted as natural and inevitable.

Yet categorization schemes need not be eliminated altogether. Many feminist theorists, such as Bern, suggest that we abandon them because they perpetuate gender polarization and androcentrism (the power dynamic whereby men have more power in society than women). Similarly, law professor Neil Gotanda¹⁰ suggests that we abandon racial categories because they perpetuate subordination. Others, such as Scales-Trent, are more open to the use of categories. Although Scales-Trent is certainly aware that racial categories have been constructed to perpetuate subordination, she is also an “identity” theorist who struggles to redefine such existing categories as black (with which she identifies) or to create such new racial categories as “white black woman” (with which she also identifies), because these terms have important cultural and political meanings for her.

Unquestionably, the categories typically used to describe our sexual orientation, gender, race, and bodies have perpetuated subordination. Nonetheless, categories need not inevitably perpetuate subordination. Categories can, in fact, help us overcome subordination through the development of a positive self-identity as well as through ameliorative programs such as affirmative action. Therefore, this book has both a critical and constructive agenda. I will critique existing categorization schemes while also offering constructive schemes for the future.

Categories can serve at least two constructive purposes. First, categories have value as a form of self-identity. The gay, lesbian, and bisexual communities have developed a rich cultural community which is only possible through self-identity. Sandra Bern’s pervasive critical posture disavows the need for the label “bisexual.” This perspective is unsatisfying because it results only in a negative definition of sexual orientation. She has not selected her partners based on biological sex. One might therefore ask: What are her positive values? A label such as bisexual can allow oneself to be part of a positive cultural community. Living in a society which subordinates people based on their minority sexual orientation makes it imperative to have labels as a part of positive self-identity. Moreover, Bern’s description of her sexual orientation in negative terms leads her to conflate gender and sexual orientation, because she fails to identify the rationale for her choice of sexual partner. Sexual orientation takes on its own independent cultural meaning apart from gender when one attempts to develop a positive self-identity.

Second, categories are crucial for political, instrumental purposes. It is not enough for society to become nondiscriminatory, because not all groups in society currently operate on a level playing field. We need to develop and refine ameliorative programs, such as affirmative action, to achieve greater equality in society. Because law and society have imposed subordination on people due to their membership in group-based categories, we need to make reference to categories in order to develop fair and effective ameliorative programs. Categories used in ameliorative programs need not perfectly parallel the existing bipolar categories. Nonetheless, fair and effective ameliorative programs must make some reference to group-based categories. Interestingly, critical theorists rarely discuss ameliorative programs and therefore provide us with little insight as to whether and how group-based categories might be appropriate in ameliorative contexts.

II. Dilemmas of Categorization

The classification problems associated with hybrids are numerous, timely, and deeply perplexing. The U.S. Census Bureau is considering whether to add the category of “multiracial” to its survey instrument, because the current rules require that an individual mark only one racial designation.¹¹ Multiracial organizations have criticized these rules, and as a result they are under revision. Although the old rules are clearly problematic, it is not easy, as we will see, to develop appropriate rules that will work well in the future. Racial classification issues are also flaring up in adoption, tort litigation, and cases involving birth certificates. When adoption agencies decide to grant race-based preferences in adoption, how should multiracial children be classified?

Categorization problems also abound when we talk about gender, sexual orientation, and disability. Should transsexuals be considered victims of “gender” discrimination when they are discharged from employment for dressing in clothing that is considered not consistent with their anatomical gender? In proposing affirmative action plans on the basis of sexual orientation, some institutions are debating whether to provide affirmative action for bisexuals as well as gay men and lesbians.¹² In addition, many institutions are considering what criteria to establish for “domestic partners” who may wish to register for certain family-related employment benefits. Finally, the courts and society must decide who is sufficiently “disabled” to fall within the coverage of the Americans with Disabilities Act, Supplemental Social Security, or the Individuals with Disabilities Education Act.¹³

Each of these classification dilemmas challenges us to construct classification schemes that serve ameliorative rather than subordinating purposes. We must find ways to allow individuals to identify as multiracial, transgendered, bisexual, and bi-abled without the fear that moving off of one polar point on the traditional bipolar scheme will subject them to subordination and necessarily preclude them from taking advantage of ameliorative programs. Our current system of affirmative action often gives an incentive to mixed-race individuals to label themselves as a minority racial category.¹⁴ On the other hand, we need to make sure that programs that are designed primarily to assist individuals overcome a history of subordination are not used by individuals who largely have been shielded from that subordination through their presence in a hybrid category. Our current system of affirmative action often allows any member of a defined group to qualify for preferential treatment irrespective of how well affirmative action for that individual serves the purposes of the ameliorative program. Our awareness and recognition of hybrids should force us to be more individualized in understanding the structure of effective and fair ameliorative programs, while not forcing us to abandon group-based approaches entirely.

III. A Roadmap

This book responds to these perplexing legal and social problems through the application of a bi perspective. In chapter 2, I develop a bi jurisprudence, providing a broad overview of the differing implications of hybrid existence in the areas of sexual orientation, gender, race, and disability.

Chapter 3 applies a bi perspective to an examination of how courts and legislatures have attempted to create entitlements and benefits which flow from the categorization of persons as “homosexual” or “heterosexual.” In contrast to the theoretical approach in chapter 2, I concretely examine the definitions of “homosexual” that courts and legislature have created. These definitions often break down when applied to individuals who have experienced sexual relationships with persons of both sexes. How the law responds to such “bad fits” reveals a great deal about society’s determination to force people into neat “boxes,” especially the tidy category of heterosexuality. This coercive attempt to define people on the basis of sexual orientation reflects society’s discomfort with individuals who are “gay and proud” as well as with individuals who attempt to cross appropriate gender boundaries. Our sexual orientation policies are therefore inextricably connected to our gender policies.

Chapter 3 also asks how we can use the phrases “gay,” “lesbian,” or “bisexual” as part of ameliorative programs to overcome subordination. As society begins to permit partner registration systems irrespective of the gender of one’s partner, how should we use the labels o...