12 October 2012


'Response: The Death of the Bisexual Saboteur' by Naomi Mezey in 100 Georgetown Law Journal (2012) 1093-1104 offers a critique of Elizabeth Glazer's 'Sexual Reorientation' [PDF] in 100 Georgetown Law Journal (2012) 997-1054.

Glazer argued that -
There has been a recent shift in the political and legal treatment of bisexuals. Since Ruth Colker, Naomi Mezey, and Kenji Yoshino began writing about the phenomenon of bisexual erasure and the resulting invisibility of the bisexual from sexual-orientation law and the LGBT rights movement, something strange has happened. Bisexuality is suddenly hypervisible. And not just on Glee or in The Girl with the Dragon Tattoo. Or even in the 2010 national sex survey reporting that of the seven percent of the population identifying as nonheterosexual, forty percent of the men and a large majority of the women identified as bisexual. Bisexuality is now also hypervisible in the law. Recent cases have arisen where plaintiffs have alleged discrimination on the basis of their bisexual orientations and where plaintiffs have been required to prove that they are “gay enough” to merit protection from discrimination. Yet despite this hypervisibility, the law has failed to address the harms that bisexuals face. The problem stems from the law’s current definition of “sexual orientation,” which provides the basis for an actionable discrimination claim. This definition includes only extreme orientations like homosexuality and heterosexuality but, for all practical purposes, excludes bisexuality. 
This Article offers an alternative definition by introducing the distinction between an individual’s General Orientation and Specific Orientation. An individual’s General Orientation is the sex toward which the individual is attracted the majority of the time. An individual’s Specific Orientation is the sex of the individual’s desired or actual partner(s). Whereas for many the two orientations are identical, for bisexuals the two orientations often differ. If adopted, this alternative definition would reorient the concept of sexual orientation under the law. It would offer to the LGBT rights movement, to legislatures, and to courts the opportunity to protect against discrimination on the basis of sexual orienta- tion as it is actually lived, rather than on the basis of sexual orientation as the law has until now imagined it to be. It could also offer to antidiscrimination law a model for the protection of living identities, with respect to sexual orientation but also with respect to other identity categories.
Mezey's critique comments that
Professor Glazer offers us, in Sexual Reorientation, an appealing and intuitive way to deal with the difficulty of bisexual identity, an identity that has always fit uneasily and sometimes quite unhappily in the LGBT rights movement. If the principal problem of bisexuality is its very temporal changeability, its tendency to dissolve into heterosexuality or homosexuality depending on the gender of one's sexual partner, then Glazer's solution is elegant. She proposes that we bifurcate (so to speak) sexual orientation into two subcategories and acknowledge for everyone both a general and a specific orientation. General orientation "is the sex toward which the individual is attracted as a general matter," while specific orientation is determined by the sex of the individual's current partner. Thus, for bisexuals and anyone whose specific coupling does not fall in line with how they generally understand their sexual identity, Glazer's sexual reorientation offers a neat way to own both a general and a specific identity. 
Glazer elaborates on her new categories by analogizing to two deep tensions in the theorizing on sexual identity: the distinctions between status and conduct and between individual and group rights. Glazer suggests that one's sexual identity has a general characteristic -- a "type," as she puts it, such as someone who is normally attracted to women -- that may or may not align with the gender of one's partner at any given time. This general orientation, or type, is analogous to one's sexual "status," whereas one's specific orientation recognizes the act or "conduct" of partnering with a specific person. Moreover, according to Glazer, one's general orientation belongs to each person as an individual while one's specific orientation is necessarily more relational, as it "describes one's sexual orientation once coupled." The result for Glazer is a reorientation of sexual identity that would not only overcome some of the problems presented by the status/conduct distinction and accommodate both individual and relational conceptions of identity, but would also provide the law with the ability to protect "living identities."
 In discussing identity she states that -
One of the refrains throughout Glazer's article is that her reconceptualization of sexual orientation will provide a way to protect "the lived experience of human sexuality," or "living identities.'m I admit an admiration for the elegance and lucidity of her model and acknowledge that it allows for more dynamism than currently exists in our sexual-identity categories by asserting the possibility of an identity not fully defined by the gender of one's current partner. But allowing for more dynamism than currently exists in our sexual-identity categories is a very low hurdle indeed. Along with my admiration is sorrow at how impoverished our collective understandings of sexual identity and desire are that this variation on the standard sexual-orientation scheme could be seen as even beginning to capture lived identity. Not only are our sexual-identity choices sadly limited, but how, when, and why we choose them is complex and partially constrained. Taking into account lived identity requires consideration of the complexities of identity choice; I briefly address that complexity by looking at the processes of socialization, external identification, and interpellation. 
Glazer uses a New York Magazine story about the "Cuddle Puddle" at Stuyvesant High School - teens who pet boys and girls alike and shun labels - to suggest that a post-gay generation that calls their sexual orientation "just, whatever" is insufficient to the legal and human need for categories. Are our lived identities so circumscribed and oppressed by sexual-orientation categories that a group of teenagers getting off with each other irrespective of gender and identity seems outside the bounds of the law and the human? Can any new recombination of old sexual-orientation categories really get anywhere close to our lived experience, which I fervently hope and believe far surpasses the paucity of categories around which we continue to organize our self- conceptions, social judgments, laws, and politics? 
While I deeply appreciate Glazer for momentarily retrieving my work from the dustbin of legal scholarship, less evident in her account of my bisexuality article is the way in which it fought against the relegitimation of sexual- orientation categories and proposed a classification based on acts not as a revision of sexual orientation, but as a way to smoke out the many different forms of bisexual and even non-gender-based sexual activities and preferences as they are actually lived and experienced. Inspired by the queer interventions of Eve Kosofsky Sedgwick, I thought that perhaps talking about acts rather than identity would help unsettle the discursive hegemony of the hetero/homo regime. I would have thought after all this time that the legacy of Sedgwick specifically and queer studies generally would have delivered us into a fuller understanding of sexuality as it is, and could still be, lived. 
Even if we were content to continue to organize our sexual understandings in the traditional ways, allowing for the reorientation Glazer suggests, what ex- actly does it mean to claim a general and specific orientation? What does it mean to identify the "the sex toward which [one] is attracted the majority of the time"? How do we know what we are and when we are it? For example, I am in a long-term monogamous relationship with a man, and whatever else it may say about my own lack of imagination, what does that mean for my general orientation? Is it a way to describe my actual psychic or fantasy life? Is it a hypothetical category of whom I would consider having sex with if I were to have sex with other people? Is it a history of the gender choices I made in my past couplings? Nor is specific orientation self-evident. What, for example, is the specific orientation of a cisgendered woman who couples with a transgendered man when both wish to have a queer relationship? 
And even if we think we can identify our specific or general orientations, what does it mean to choose them: for whom does it matter or make a difference? And when? Not only is there an enormous amount of variety, change, and unknowability that is rendered static by the term "general orienta- tion," but self-identification seems an unnecessarily simplistic way to think through how we understand our desires, preferences, and sexual choices, and it ignores the powerful effects of how others perceive us. Identities are not just lived and understood through our self~narrations, but through socialization, external identification, and interpellation. Ruth Colker's response to Glazer engages the issue of sexual socialization, and the way the sexual acts and identities we choose (and don't choose) are always partly the product of legal, cultural, and familial socialization. The facts of socialization or any external influences on our identity choices may feel oppressive and limiting, but that doesn't mean they don't exist and that they don't render some identities more available and more likely than others. 
In addition, identities are also experienced and negotiated through the perceptions of others. Along some axes and in some circumstances, it may make perfect sense for me to identify as bisexual, but absent a cardboard sign, a scarlet letter, or an interrogation by the NAGAAA, I am also rightly perceived and treated as straight-by my extended family, by my children's friends and teachers, by doctors, waiters, colleagues, and students, and even by my own friends who know otherwise. It would feel absurd to continue to insist in each of these quotidian encounters that I am not what I seem, that despite my social existence and social privilege as a perceived straight person that my general orientation is "actually bi." What does it mean to be "actually bi" anyway, and on what basis should I insist on it? I don't want to deny my queerness, but neither do I want to insist on it despite the substantial evidence to the contrary. Neither feels right and nothing about a sexual reorientation offers an "out." 
Lastly, self-identification, socialization, and external identification are related to each other through interpellation, which complicates the very distinction between specific and general orientation. Louis Althusser used the concept of interpellation to explain the process by which ideology renders the abstract individual into an intelligible subject. To wildly oversimplify, there is no self-understanding independent from socialization and external identification. All of our "individual" desires, preferences, and beliefs are partly the product of a complex process of ideological inculcation on the part of what Althusser inelegantly called "Ideological State Apparatuses," things like the media, family, law, education, religion, etc. When we are "hailed" by another, we are made recognizable to ourselves; it "guarantee[s] for us that we are indeed concrete, individual, distinguishable and (naturally) irreplaceable subjects." To analogize interpellation to the processes by which we are made specifically into sexual subjects, our sexual self-identification is always the product of both the categories available and the way we are hailed by others to fit within those categories. Therefore, we cannot entirely understand our general sexual orientation apart from our specific orientation. Our specific orientation influences the way we are hailed and constructed as sexual subjects by others, and the way we account for that sexual subjectivity is limited and influenced by the categories and social narratives available. For example, how can Sandy Stier account for her general orientation? The fact that she is in a long-term (presumably monogamous) relationship with Kris Perry means that she is consistently interpellated as gay in much the same way that I am consistently interpellated as straight. It influences one's self-conception and "general" sexual identity to go through the world being recognized, reflected, and narrated in a particular way by friends and strangers alike. The default social script for Sandy Stier is indeed the one offered by her lawyers and prepackaged by the gay rights movement: she discovered her "true" and "authentic" sexual identity by falling in love with Kris Perry. In this way, even if she were inclined to claim a general orientation as a bisexual, such a choice is complicated by the social and political reality of her specific relationship and the way in which it interpellates her as gay. By not accounting for the complications of sexual-identity choice and the subtle processes of socialization, external identification, and interpellation, Glazer's sexual reorientation can't begin to capture the complexities of lived identity and identification.