There is still a significant amount of discrimination in the legal academy relating to many different issues, including race, gender, sex, sexuality, and class. The most overt discrimination that I have faced has been based on being bisexual. This has been exacerbated by the fact that some of my scholarship is about sexuality. In this short Article, I focus on discrimination in law school hiring based on bisexuality. The topic is important because discrimination against bisexuals in the legal academy (and elsewhere) is little understood and often invisible. Additionally, because it was the type of discrimination that was the most apparent to me in the hiring process, I have important insights to share about it. Furthermore, the invisibility and lack of understanding of bisexuality mean that even people who are broad-minded and committed to social justice may discriminate against bisexuals without realizing it. I firmly believe that most or all of the people in the examples that I discuss below did not intend any harm, and many of them are colleagues whom I respect and admire.
Before I begin to discuss the different forms of stereotyping and discrimination I have faced related to my sexuality, I want to address a threshold question that some readers may be curious about. When I first presented the initial results of an online survey about discrimination against bisexuals that I was conducting at the time, a more senior professor who had once herself identified as bisexual asked me paradoxically why anyone would want to identify as bisexual. What was the point? I got the sense that she had faced a great deal of push-back and confusion in response to her own brief self-identification as bisexual and had concluded it was a pointless undertaking. (She now identifies as lesbian.)
I did not fully respond then, but I do think it is an important question. The point of identifying as bisexual, for me at least, is to be true to myself. In most of my life, I could pass as straight, and, in few situations, I could pass as lesbian, but, when a person passes, something is lost. Indeed, "'[n]onrecognition or misrecognition ... can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being.'" (1) And, as Kenji Yoshino explains, passing causes discrete types of harm to the person who is passing, including alienation (from both the stigmatized group from which she dissociates and the non-stigmatized group that she appears to join), an exertion of constant effort to maintain the subterfuge, and the moral harm of repeatedly engaging in deception. (2)
Beyond the pain of being misperceived and the related harms of passing, there is also the fact that failing to challenge the status quo...