This article has been written by Aishwarya Goldsmith, pursuing the Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.

Introduction

Last month was a pride month! As you know we are all celebrating this wonderful time knowing and understanding what the pride movement is. But thinking about it in depth makes me a little worried. There are still a lot of people who do not “validate”, quite frankly, they do not understand what the movement is all about, what other co-habitants of this amazing world are going through, and what they can change about themselves that can help. Well, thanks (no thanks) to the outbreak of COVID, we are all expected to stay in our homes and do nothing substantial but to think (rather overthink) about what’s going on in the world. Mere giving this movement a little thought, I felt sad as to how some people are struggling so much to explain themselves to those who are simply unaware (either by choice or otherwise). What disturbs me more is that the story is not only about being “straight” or “gay or lesbian” but even more intricate and the said unawareness is not only in the minds of people who consider themselves as “straight”; but surprisingly also with those who are considered “homosexuals”. Talking about unawareness, I got an opportunity to read about a lot of things like what bisexuality is and how we are erasing it or ignoring it mainly because we are not able to accommodate the truth.

When I was researching more on the subject of ‘bisexuality’, one term seemed to repeat itself a lot of times. The term is ‘sexual orientation’. What is this sexual orientation? If you are a person who likes reading about what goes around in the entertainment industry, you must have frequented yourselves with this term. But do you actually understand what it means? Well, up until I was researching, I thought I understood what it meant. To explain to me in an easier language, as per the Oxford Dictionary of English, ‘sexual orientation’ means “A person’s identity in relation to the gender or genders to which they are sexually attracted; the fact of being heterosexual, homosexual, etc.”. Let’s dissect this definition, shall we? 

1. Sexual Orientation is a person’s identity- an identity that determines or shows a pattern as to whom the person is sexually or otherwise (in the case of asexually or nowadays  ‘sapiosexual identified individuals) attracted to. 
2. This ‘identity is in relation to the ‘gender or genders’ to which they are attracted. Speaking of which, ‘gender’ is a very wide term. Depending on the context in which we are talking about this term, gender could range between it being simply defined in a biological sense like sex of a person, masculinity, and femininity or could be defined based on the social and cultural structure of the society in which a person exists.
3. ‘Fact of being heterosexual or homosexual etc.’- The orientation of a person cannot be just limited to being homosexual or heterosexual. There are other orientations that a person might identify themself as. For instance, a person can identify themself as homosexual, heterosexual, bisexual, asexual, and sometimes as pansexual or polysexual.

Now that we have discussed a key element of bisexuality, let’s discuss bisexuality a bit before moving on to the core of the topic. Bisexuality, simply put in words, means sexual attraction or sexual behavior towards more than one gender. Some people also link it to the term pansexuality, which is often considered as a branch of bisexuality and simply put means being sexually attracted to people irrespective of their gender. 

What is bisexual erasure?

Bisexual Erasure is often known as Bisexual Invisibility. As the name suggests, bisexual erasure means to falsify, ignore or negate the existence of bisexuality as a sexual orientation. Considering what bisexual means, many people think that bisexuality is just a phase and will soon pass whereby people who have “outed” themselves as bisexual will soon choose one side or in simpler terms start fitting within the four walls of homosexuality or heterosexuality. This in itself is an issue considering that common social belief associated with erasure creates immense pressure on people who have identified as bisexuals. 

So doesn’t it strike your curiosity as to why it is ok to be identified as heterosexual or homosexual but not as bisexual or pansexual etc.? One of the reasons could be that bisexuality is not only considered a stigma in the heterosexual community but also in homosexual or LGBT communities. This social stigma at such a mass level has given rise to a situation called biphobia. Biphobia can be defined as an aversion or ignorance towards bisexuality. This can range from denial of bisexuality to sheer intolerance or hatred towards the existence of bisexuals causing discrimination towards bisexuals.

Statistics show that in the year 2021, February, 5.6% of adults living in the United States identified themselves as lesbian, gay, bisexual, or transgender. Out of this percentage, more than half of them (54.6%) identify themselves as bisexuals. Meaning about 3.1% of all US adults identifies themselves as bisexuals. Let’s talk about India now- as per ‘LGBT+ PRIDE 2021 GLOBAL SURVEY’ conducted by a multinational company Ipsos with a sample of about 500 individuals, it was found that 9% of Indians (who have identified themselves) have identified themselves as bisexuals. Mind you that there are a lot of people who have misidentified themselves or have preferred to stay silent on the subject due to social stigma that any identity other than heterosexuality is not to be considered or if considered would face discrimination or public mockery.

Just by having a look at the above numbers, I can comfortably say that the numbers are significant. So how come when so many individuals have identified themselves as bisexual are we facing the risk of bisexual erasure? One factor that often pops up is that many people (identified as heterosexual and homosexual) have an opinion that bisexuality is a self-proclaimed label that can be a result of an individual’s personal situation or state of mind. Well, this is just one of the many factors which are associated with the erasure of bisexuality. 

Factors of bisexual erasure: what is an epistemic contract of bisexual erasure?

Not going much into the legal jargon, we all know a contract is an agreement between two parties. What is a social contract then? A social contract is nothing but a social norm. Something that has been passed down from ages to us and we follow, sometimes even without realizing that we are following them. This “unsaid” contract governs a lot of our day to day activities. For instance, greeting someone when you meet them or making eye contact. These “unsaid” social contracts have become such an intricate part of our lives that when broken or not followed, we notice the change and find the behavior rather odd. Taking the previous example, if you do not get greeted by someone when you meet them, you feel the other person is rude, or in another scenario when someone avoids eye contact while talking to you, you feel that they might be hiding something. But is it conclusive proof of their behavior? No, right?

Similarly, for bisexual erasure, we have chosen the easier way. What you cannot understand, deny! For many of us, at different stages of life and in different situations, this is a ‘go-to move. So how did social contract play a role in denying the existence of bisexuality? What’s in it for homosexually and heterosexually oriented individuals and why deny or choose to misinterpret bisexuality? Let’s see below-

In an article published by a well-renowned legal scholar, Kenji Yoshino, there are three main factors or “investments” which have contributed immensely to bisexual erasure-

1. Defining sexual orientation
2. Maintaining supremacy of genders
3. Preserving ‘Monogamy’

Let’s dive deeper, shall we? 

The first factor which Kenji talks about is stabilizing or defining sexual orientation. During the more conservative times, people had an idea that humans are either males who are attracted to females or females who are attracted to males. The concept of homosexuality (let alone bisexuality) was a social stigma (and still is, in socially conservative societies). Now that there is at least some amount of awareness and acceptance in the society and growing percentages of individuals “outing” themselves, we are trying to evolve. However, still, for the majority of individuals, it is important that sexuality should be labeled in some way or the other. The sexual orientation of an individual should be well defined and bisexuality challenges this idea. 

The second factor is the maintenance of the supremacy of gender. As mentioned previously in this article, gender determines characteristics based on social, biological, etc. factors. Based on the orientation, it is often understood that heterosexuals will be sexually attracted to the opposite gender (male to female/female to male). Bisexuality challenges this. Similarly, homosexuals will be attracted towards the same gender (male to male/ female to female). Being attracted to the same gender is what makes them ‘homosexual’ in the first place. Bisexuality interferes with this too as bisexuals can be attracted to the same or different genders making a gender-based approach less valuable in determining one’s sexual orientation.

The third and final one is preserving monogamy. Bisexuality is frequently considered a threat to the concept of monogamy or ‘gender binary’. By nature of marriage or relationships, we understand that the bond is between two people. The idea of bisexuality, that an individual is attracted towards more than one gender, defies the concept of monogamy/ gender binary. This, however, does not necessarily mean that a bisexual individual would have a relationship with more than one partner at a time or would prefer one gender over another. However, the sheer characteristic of bisexuality gives rise to gender jealousy which has been resolved in an ‘unsaid’ manner by heterosexuality and homosexuality.

The factors mentioned above explain how bisexuality has been and is still being diluted or ignored. Thinking from the reader’s perspective (especially if you are a lawyer) I am curious about one question. What did the courts do? Let’s find out below.

Some evidence of dilution of bisexuality- What did the courts do?

Often while referring to people of sexual orientations other than heterosexual, bisexual gets conveniently missed out. Even in some of the most iconic judgments, which were deeply in favor of the LGBT community, the term bisexual is not often expressly mentioned. Starting from One, Inc. v. Olesen in 1958, which created a base for successful litigations on anti-discrimination for the LGBT community, needless to say, Courts have been busy giving out judgments to stop discriminations based on the sexual orientation of an individual. However, bisexual erasure has found its way in them as well. 

In Bostock v. Clayton County, one of the landmark cases to curtail discrimination based on sexual orientation at the workplace, the Supreme Court of United States referred to the terms “gay”, “homosexuals” or “transgenders” in their judgment. The fact that courts themselves fail to include the term ‘bisexual’ in the judgments poses a genuine concern for individuals coming out as bisexuals. One of the risks associated with Bostock’s judgment was that since there was no mention of the term bisexual, we can only assume that courts intended to extend its branches to all sexual orientations and not just “gays” or “transgenders’ ‘. Having said that, there might be a need to not interpret the judgment verbatim. We can take comfort from the fact that one of the cases, which was consolidated with Bostock, Zarda v. Altitude Express, Inc., Second Circuit’s ruling did not define any particular term in their judgment and rather mentioned the term ‘sexual orientation’. Logically, the Zarda case was consolidated with the Bostock case when the Supreme Court of the United States provided their ruling, thereby (kind of) confirming that their intent was to extend the scope of their judgment to bisexually identified individuals.

A similar situation happened in Romer v. Evans. While the judgment was a huge hit but it can be considered as an example of bisexual erasure where courts specifically mentioned only “homosexuals or gays or lesbians”. These case laws are a few examples to show how bisexual erasure has crept through the cracks of the legal process. 

Bisexual Erasure in India

LGBT rights have been evolving in India. However, the stigma attached to the topic is still widely prevalent. While more and more people are accepting their sexual orientation, there is still a considerable amount of the population who is either unaware or in conscious denial. The issue of unawareness is often coupled with mockery which makes the situation much worse.

Like a massive roller coaster ride starting from Naz Foundation v. Govt. of NCT of Delhi in 2009 to Suresh Kumar Koushal v. Naz Foundation and finally ending on Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, India has seen a lot of perceptions and interpretations of courts when it came to Section 377 of the Indian Penal Code. Where in the first case in 2009, the Hon’ble High Court established that ‘consensual sex between two legal age adults of the same gender does not violate Section 377 and is a part of fundamental rights in the Constitution of India. This decision was overturned by the Hon’ble Supreme Court in 2013 while deciding on Suresh Kumar Koushal v. Naz Foundation. Finally, people saw a ray of hope when in 2018, when the Hon’ble Supreme Court of India finally decriminalized consensual intercourse among legal age adults in Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice. While we have progressed a lot when it comes to case laws, we still lag substantially when it comes to acceptance of other sexual orientations apart from heterosexuality. 

As observed in these Indian cases, there is still a hint of bisexual erasure. We can only assume that the decisions apply equally to all sexual orientations. The reason being that the court determined that Section 377 of the Indian Penal Code only decriminalized same-sex intercourse. 

Conclusion

It’s funny how societies evolve! While humans are at the top of the food chain what makes us different is the use of rationale- the ability to analyze, reason, and reach conclusions. But this is not the only thing that makes us human. Some of the biggest contributing factors are compassion, emotion, the ability to understand one’s problems, and empathy. When I think of bisexual erasure, it feels we are actually missing out on something essential which makes us humans- compassionate. There are a lot of people who are currently a victim of this blatant neglect that is being forced upon them either consciously or due to sheer lack of understanding. 

Bisexuality is not a “confusion”. It is not a “phase” or a “transition”. It is as real as it gets. Earlier in the Article, I mentioned the statistics, the actual percentages of bisexuals. Mind you these are still just the ones who are amazingly brave and have come forward to accept themselves even when they have been through the wrath of social stigma. 

Bisexual erasure or Bi-erasure causes a lot of mental health issues among people. There have been a plethora of mental health issues associated with conscious neglect of one’s sexual orientation. People have been suffering from depression, anxiety, and other behavioral disorders due to increasing neglect or sheer disregard for bisexuality.

Sexuality is something personal, something that in a way helps define a person. Then why not let people define themselves, the way they want, whenever they want? Let’s give it a thought and encourage others to come forward and end this social stigma; end bi-erasure and hope for a better tomorrow!

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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