, 39 tweets, 10 min read Read on Twitter
FYI @spriggfrc and @FRCdc published a paper in March on sexual fluidity.

You: oooooh what? Sexual fluidity is such an awesome and important feature of humanity!


This is what I call an Important Thing.™️

@FRCdc is trying to claim that the evidence of human sexual fluidity means that sexual orientation is mutable (changeable) and that therefore sexual orientation isn't a protected class under civil rights law.
Now, a government can PASS a law about whatever, but courts will decide if said law is LEGAL.

US jurisprudence (how case law interprets statutes) has created a system of criteria that are required in order to decide if a law that targets a specific group of people is LEGAL.
(This is all loosey goosey, b/c laws are a construct that is as malleable as any other societal construct and case law is subject to the whims of judicial officials often appointed for life regardless of skill or ideology.)
THAT ALL BEING SAID, the list of criteria to say that you are part of a specific class of people for whom a government must be VERY CAREFUL about making laws about contains the following elements:
1⃣ Has the group faced discrimination based on a defining characteristic?
2⃣ Is the group politically powerless?
3⃣ Is the group's defining characteristic unchangeable?
4⃣ Does this defining characteristic still permit the group from contributing meaningfully to society?
So, the anti-LGBT Right often argues about LGBT folks' relative political powerlessness (because the evidence of the discrimination we face is pretty sound at this point), but Peter Sprigg and @FRC are arguing here that sexuality itself is a CHANGEABLE characteristic.
And whom are they using to make that point?

Well, they're using nonmonosexual people. Bisexual people. Fluid people.

There is a LOT of history here that I won't go into right now deeply, but suffice it to say that the pro-LGBT jurisprudence that has been built in this country is not SUPER robust on fitting sexually fluid folks into the narrative.
In fact, I might even say that the pro-LGBT jurisprudence in this country has spent the last 40-50 years pretending that bisexual and sexually fluid people don't exist and that everyone's sexual orientation is totally fixed, but some people just come out later.
The fact is (and has been) that WAY MORE PEOPLE ARE BI / PAN / FLUID than are gay or lesbian. But bias on both sides of the debate (from gay+lesbian folks and from straight lawmakers and judges) has created some pretty uncomfortable moments in legal time.
Moments that Peter Sprigg and @FRCdc are capitalizing on.

Here's a great one: DYK that for a long time, it was totally ok and not at all sex discrimination under federal law if a boss sexually harassed people of "BOTH" sexes? Because it /couldn't/ be on the basis of sex!!
Here's a summary of the Equal Opportunity Harasser doctrine.


Here's another one: during the great push for marriage equality, on day 1 of the Prop 8 case in California, Ted Olson questioned Sandy Stier, who had been married to her husband before she met her partner, then wife, Kris Perry.
In order to establish that Stier had a CONSTITUTIONAL RIGHT to marry Perry, Olson decided it was important to establish that Stier never loved before she met Perry.

NOW, THIS MAY BE TRUE. But Olson and the American Foundation for Equal Rights made is LEGALLY RELEVANT.
Q: How convinced are you that you are gay? You've lived with a husband. You said you loved him. Some people might say, Well, it's this and then it's that and it could be this again. Answer that.

(page 167) afer.org/wp-content/upl…
A. Well, I'm convinced, because at 47 years old I have fallen in love one time and it's with Kris. And our love is--it's a blend of many things. It's physical attraction. It's romantic attraction. It's a strong commitment. It's intellectual bonding and emotional bonding . . .
. . . For me, it just isn't love. I really, quite frankly, don't know what that would be for adults. I don't know what else to say about it.
Again, it is POSSIBLE and even PROBABLY that Sandy Steir has only ever loved Kris Perry, but rather than presenting a world in which Sandy should be able to marry Kris WHETHER OR NOT she loved her husband, Olson and AFER presented a world in which Sandy was NEVER in love with him
Finally, LGBT-family jurisprudence has struggled with bisexuality for decades, with both pro-and anti-LGBT lawyers and judges trying to erase bi+ people in order to show that present relationships (same- or different-gender) were the ONLY type of relationship the parent wanted.
Anti-LGBT family law advocates relied for ages on the "bad bio mom" trope of the mom who co-parented with another mom, only to leave her for a male partner, arguing that the same-sex relationship wasn't real, because the state didn't recognize their relationship.
Those are just three examples of the overt erasure of bi / pan / fluid people from LGBT jurisprudence across the decades. But the covert erasure of bisexuality+ is just as prevalent and perhaps far more insidious and impactful.
PLEASE read @kenji_yoshino's incredible article "The Epistemic Contract of Bisexual Erasure," in which he argues that the erasure of bisexuality is necessary to mitigate the "threat" that bisexuality poses to straight, gay, and lesbian people.

The interests that straight, gay, and lesbian people are entering a "contract" to protect are: "(1) the stabilization of exclusive sexual orientation categories; (2) the retention of sex as an important diacritical axis; and (3) the protection of norms of monogamy."
See also my far less sophisticated follow up to that incredible paper: "Drawing Bisexuality Back into the Picture: How Bisexuality Fits into LGBT Legal Structure Ten Years After Bisexual Erasure."

"I use the suspect class analysis . . . to show how bisexuality complicates legal arguments, and propose two solutions through which bisexuality can be introduced into the Equal Protection analysis without compromising sexual orientation’s suspect classification."
"Not acknowledging sexualities along a continuum weakens arguments for granting rights to and preventing discrimination against the LGBT community. . . . The inclusion of bisexuality, and indeed of all non-binary identities, is crucial for the LGBT civil rights movement."
(I've literally been talking about this for a decade. A DECADE!!!!! AND IT'S BEEN A TWENTY YEARS SINCE YOSHINO'S ARTICLE. Damn. And we're still out here waiting.)
I also want to point you to @NancyCMarcus's article on how federal courts have erased bisexuality from global jurisprudence:


Also follow her Legally Bi column: bisexual.org/people/nancy-m…
Ok so here we are in present day, when the Equality Act is being introduced in Congress and @FRCdc is claiming that sexual fluidity and bisexuality are EVIDENCE that sexual orientation isn't a protected class.

So we look around. What do we have to counter that claim?
Well, we have a LOT of years of showing that sexual orientation does deserve SOME level of protected status.

But the Supreme Court still hasn't REALLY stated unequivocally that sexual orientation is a suspect class that deserves FULL strict scrutiny under Equal Protection.
And we also have LOTS of years of cases that erase sexual fluidity and bisexuality from case law, or explain it away.
Here's the thing tho, as I argue in my article from a decade ago, and as @NancyCMarcus and others in BiLaw (facebook.com/BiLawOfficial/) have argued: BISEXUALITY AND SEXUAL FLUIDITY ARE THE STRONGEST ARGUMENTS PROVIDE THE *STRONGEST* PROOF OF DISCRIMINATION ON THE BASIS OF SEX!!!
If I can marry my current partner (who is male) and I can't marry my girlfriend THAT IS DISCRIMINATION BASED ON SEX.

If I can rent an apartment with my current partner, but not with my nb beax, THAT IS DISCRIMINATION BASED ON SEX.
The Equality Act (rightly in my current opinion) will update current civil rights laws to define sex as "sex (including sexual orientation and gender identity)."
Bisexual and sexual fluidity are the clearest possible examples that discrimination based on sexual orientation IS discrimination based on sex.
And yet (and this is my final point), while the @FRCdc is weaponizing nonmonosexual identities against LGBT advocacy and the broader LGBT community, the mainstream LGBT advocacy orgs are SILENT about how the Equality Act would protect bisexual, pansexual, and fluid people TOO!
Our community silence is providing our opposition with a weak point that they are exploiting.

I refuse to be used as a wedge by the Right. I am a member of the LGBT community and not only do I deserve protections, I am a living example of their legality.
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