Bisexual Erasure

I don’t think we should choose our Supreme Court Justices based on their sexual orientation. I admire Elena Kagan’s scholarship [UPDATE: link added], expect to disagree with many of her votes on legal issues, and hope that some of her votes will be ones that I will like, all without regard to her sexual orientation.

But it seems to me pretty odd to see assertions — such as in this Politico “Elena Kagan’s friends: She’s not gay” article, which has been pretty heavily cited — that she must be straight because she has dated men. (That’s all that the quote from one of the friends, Eliot Spitzer, amounts to. The quote from the other friend also says this but seems to go further as well.)

As I understand it, the great majority of women who are not purely heterosexual are actually to some degree bisexual. For instance, Laumann et al., The Social Organization of Sexuality 311 (1994), reports that 3.7% of all women report having had both male and female partners since age 18 and only 0.4% report having had only female partners since age 18. Even looking at just the last five years, 1.4% of women report both male and female partners, and only 0.8% report only female partners. When asked about current sexual attraction, 2.7% of all women report mostly opposite gender, 0.8% report both genders, 0.6% report mostly same gender, and only 0.3% report only same gender. And my sense is that many women quite sensibly call themselves “lesbian” or “gay” based on their current or recent partners, or currently or recently felt preferences, even though they have had male partners in the past as well. (Thus, when asked to report their sexual identity, 0.5% of all women in the Laumann report said bisexual, 0.9% said homosexual, and 98.6% said heterosexual.)

Now I stress again: Whether Elena Kagan is straight, lesbian, bisexual, or asexual doesn’t matter to me. Moreover, to the extent a number of her close friends, who are likely to know her recent love life, say that she’s straight rather than lesbian or bisexual — and that seems to be something that one of her friends quoted in the Politico article I linked to above is saying — that should be pretty reliable evidence for those who care about the subject. Among other things, if she understandably concludes that it’s beneath her dignity to discuss her love life in public, evidence from a number of friends is the most that can be provided: “[C]ontrast the ease of proving one is straight or gay in a world in which bisexuals are not acknowledged to exist with the difficulty of proving the same thing in a world in which bisexuals are recognized.”

But the sort of bisexual erasure that takes place when we say “X can’t be lesbian, she’s dated men” (or “X can’t be gay, he’s dated women”) strikes me as pretty unsound, and not fair to a group that makes up a pretty big chunk of the non-straight population.