After a tumultuous summer break, during which an impeachment inquiry was officially launched against the President, the US Supreme Court sat for a new session. “Equal Justice Under Law,” reads the motto of the court, emblazoned across the facade in Washington, DC. On the second day of this session, Tuesday 8 October, the court heard two arguments regarding key cases for LGBT+ rights in America—perhaps the most important ruling since the US legalised same-sex marriage in 2015.
The first argument, which combined the cases of Bostock v. Clayton County and Altitude Express v. Zarda, examined whether or not an employee could be fired because of their sexuality. Donald Zarda, a skydiving instructor from New York City (who died in 2014 but is represented by his family), and Gerald Bostock, who worked in child welfare services in Georgia, both claim to have been fired because of their sexual orientation. The court also heard the case of Harris Funeral Homes v. the Equal Employment Opportunity Commission (EEOC), in which Aimee Stephens says she was fired by the Michigan-based funeral home for coming out as transgender.
The law in question is the Civil Rights Act of 1964, a landmark piece of civil rights legislation that “outlaws discrimination based on race, color, religion, sex, or national origin.” It was proposed by President Kennedy in 1963 but was initially opposed in the Senate. It wasn’t until after JFK’s assassination that it was passed through Congress and signed into law by President Johnson in July of 1964. It was one of JFK’s lasting legacies: “No memorial oration or eulogy could more eloquently honour President Kennedy’s memory than the earliest possible passage of the civil rights bill for which he fought so long,” Johnson appealed to Congress. Since then, the Act has been crucial in deciding various key cases of outright and institutionalised racism and sexism. But what about homophobia and transphobia?
All three cases have been through the various federal appeals courts, most of which have interpreted the law to exclude discrimination against LGBT+ people. However, two courts in New York City and Chicago recently ruled the other way. Conservative critics often frame these debates as sexuality and gender identity—decreed to be ‘a choice’—against religious freedoms, with discrimination based on religion protected by law.
The crux of these cases before the Supreme Court is to what extent, if any, does this law apply to matters of sexuality or gender identity. It all rests on the word ‘sex’, with all its sticky associations and divergent meanings. The courts are not there to make laws, but merely to interpret existing law. Any amendments or alterations to the law, such as the addition of sexuality as a basis for discrimination, must be passed by the legislative branch, i.e. Congress.
The attorneys involved thereby had to argue on the basis of sex. Pamela Karlan argued in the first case that “When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has discriminated against the man because he treats that man worse than women who want to do the same thing.”
Meanwhile, David Cole argued on behalf of Aimee Stephens, calling for a more modern understanding of the word ‘sex’, without complete revision, claiming that “none of these arguments ask this Court to redefine or update sex. They assume, arguendo, that sex means at a minimum sex assigned at birth based on visible anatomy or biological sex.”
Justice Sonia Sotomayor, one of the liberal judges on the bench, asked “at what point” a court could “continue to allow individual discrimination”. She continued, “We can’t deny that homosexuals are being fired just for who they are.”
Twenty-one states have passed laws that offer LGBT+ employees the necessary protections, but the Court’s eventual opinion will have huge implications for those who live in the other twenty-nine. Human Rights Council press secretary Charlotte Clymer told the BBC, “It’s not about religious freedom, it’s about pushing LGBT people out of the public square.” An affirmative ruling would immediately provide a precedent for necessary and widespread protections, whereas a verdict that fails to uphold the decision of the Chicago and New York courts might be seen to legitimise workplace discrimination, or worse.
Last week, Judy and Dennis Shepard, the parents of Matthew Shepard, who was beaten to death in 1998 in one of the most horrific homophobic attacks in recent history, harshly criticised the Trump administration’s stance on these issues. In a letter read aloud at a Justice Department ceremony marking the 10th anniversary of the law named in part for their son, they singled out Attorney General William Barr—who was absent at the event—in particular for failing to adequately protect transgender people in America.
“If you believe that employers should have the right to terminate transgender employees, just because they are transgender, then you believe they are lesser than and not worthy of protection,” they wrote. “Such blatant discrimination encourages bullying, vandalism and other acts of violence, encouraging close-minded people to push harder against those they consider ‘different’ because they don’t fit their preconceived notions of ‘same’,” they added. “Our son, Matt, was the result of that discrimination and violence when he was beaten brutally and left to die.” Many more are treated the same way, whether it is through emotional or physical abuse. Now, the decision to put an end to this lies in the Supreme Court’s hands.
Despite the fact that bisexuals comprise the single largest group within the LGBTQ community, they are nonetheless among the most invisible and marginalised of the bunch. What is a potentially incredible identity to embody—one of freedom and diversity and agency—is, unfortunately, too often associated with immense discrimination, as both the heterosexual and queer communities shun bi+ individuals.
Last week’s Bi Visibility Day called attention to the ongoing struggle for self-determination and visibility of the bi+ community, which still fails to gain recognition by their queer peers and society in general, and hardly ever has its specific needs met.
Although the past few decades saw a steady improvement in the overall treatment of the LGBTQ community, it is mostly cisgender gay and lesbian folks who got to reap the benefits. Until this day, individuals identifying as bisexual face high levels of discrimination and alienation. Many, both queer and straight, view bisexuals with great scepticism; some refuse to believe they even exist. Regarding bisexuality as a ‘phase’ or a ‘layover’ on the way to being gay has become the social norm. And while the number of individuals (particularly youths) identifying as bisexual is rising, lingering fears of rejection, retaliation by loved ones, or the dissolution of their relationships discourage many bisexualis from embracing their identity.
Bisexual writer and speaker Zachary Zane says that despite being out as bi for several years, people in the community still label him as gay and often invalidate his identity. “Even if people accept it, you don’t necessarily feel like part of the community, and I think that’s something I struggle with,” Zane told Screen Shot. “Even my gay friends who know and love that I’m bi… it’s like they’re fine with me being bi until I bring up having dated a woman or being attracted to a woman, and that makes me feel like I’m not equally part of this queer community, even though I 100 percent am.”
Similarly to other queer individuals, many bisexuals suffer from deep-rooted shame associated with their sexual orientation, often spend years concealing their identity (a 2013 study estimated that only 12 percent of bisexual men are officially out), and feel pressured to adhere to heteronormative conventions of their gender. Unlike gays and lesbians, however, bisexuals often face phobia and erasure from within the LGBTQ community itself.
This compounded discrimination experienced by so many bi individuals contributes to heightened rates of mental and physical issues within the bi+ community. “I think the biggest issue that we face now is health disparities,” said Zane. In his work, Zane cites studies indicating that bisexual people are prone to significantly higher rates of anxiety, depression, and suicidality compared to their lesbian and gay counterparts. “Bi women are twice as likely as straight women to experience sexual assault, [and are] also more likely to have opioid addiction issues,” Zane said, reiterating that the prevalent discrimination against the bi community “has actual mental and physical health ramifications.”
Many bi activists argue that in order to dispel myths and stigmas around bisexuals, there has to be a greater collective effort to present a positive image of bisexuality in the media and popular culture, while pushing for systemic change by advocating for policies that acknowledge the unique needs of bi+ people.
A growing portion of the bi community also calls to ensure that healthcare providers are familiar with the specific needs of bisexuals, and that discussions with patients are conducted sensitively and in a manner that fosters a sense of security and trust. This is not the case at the moment, as doctors often shame bisexual patients, invalidate their identity, and fail to provide them with the appropriate treatment.
Finally, as bi people often feel excluded from both straight and gay or lesbian spaces, which exacerbates their isolation and distress, it is important to create more spaces where they could socialise, engage with one another freely, and feel supported and validated.
Zane points out, however, that while there is a need for more physical bi spaces, the community is already thriving online. “So often people don’t come out as bi because they think there’s no one else that’s bi. I know that’s why I didn’t come out as bi—I didn’t even think it was real for so long. And I think one thing that is clear via Twitter is just how many people are bisexual and how many people support one another.”
With increased visibility come recognition and solidarity. A more widespread and positive representation of bi individuals in public spaces and media platforms would educate the public about the complex and nuanced truths about bisexuality; it would obliterate rife misconceptions, such as that in order to be bi one has to be exclusively attracted to cis men and women to the same degree at all times.
Hopefully, with myths being shattered and a greater presence achieved, more bi folks would feel encouraged to come out proudly and take part in building this ever-expanding community.