Second, categories are crucial for political, instrumental purposes. It is not enough for society to become nondiscriminatory, because not all groups in society currently operate on a level playing field. We need to develop and refine ameliorative programs, such as affirmative action, to achieve greater equality in society. Because law and society have imposed subordination on people due to their membership in group-based categories, we need to make reference to categories in order to develop fair and effective ameliorative programs. Categories used in ameliorative programs need not perfectly parallel the existing bipolar categories. Nonetheless, fair and effective ameliorative programs must make some reference to group-based categories. Interestingly, critical theorists rarely discuss ameliorative programs and therefore provide us with little insight as to whether and how group-based categories might be appropriate in ameliorative contexts.
II. Dilemmas of Categorization
The classification problems associated with hybrids are numerous, timely, and deeply perplexing. The U.S. Census Bureau is considering whether to add the category of “multiracial” to its survey instrument, because the current rules require that an individual mark only one racial designation.11 Multiracial organizations have criticized these rules, and as a result they are under revision. Although the old rules are clearly problematic, it is not easy, as we will see, to develop appropriate rules that will work well in the future. Racial classification issues are also flaring up in adoption, tort litigation, and cases involving birth certificates. When adoption agencies decide to grant race-based preferences in adoption, how should multiracial children be classified?
Categorization problems also abound when we talk about gender, sexual orientation, and disability. Should transsexuals be considered victims of “gender” discrimination when they are discharged from employment for dressing in clothing that is considered not consistent with their anatomical gender? In proposing affirmative action plans on the basis of sexual orientation, some institutions are debating whether to provide affirmative action for bisexuals as well as gay men and lesbians.12 In addition, many institutions are considering what criteria to establish for “domestic partners” who may wish to register for certain family-related employment benefits. Finally, the courts and society must decide who is sufficiently “disabled” to fall within the coverage of the Americans with Disabilities Act, Supplemental Social Security, or the Individuals with Disabilities Education Act.13
Each of these classification dilemmas challenges us to construct classification schemes that serve ameliorative rather than subordinating purposes. We must find ways to allow individuals to identify as multiracial, transgendered, bisexual, and bi-abled without the fear that moving off of one polar point on the traditional bipolar scheme will subject them to subordination and necessarily preclude them from taking advantage of ameliorative programs. Our current system of affirmative action often gives an incentive to mixed-race individuals to label themselves as a minority racial category.14 On the other hand, we need to make sure that programs that are designed primarily to assist individuals overcome a history of subordination are not used by individuals who largely have been shielded from that subordination through their presence in a hybrid category. Our current system of affirmative action often allows any member of a defined group to qualify for preferential treatment irrespective of how well affirmative action for that individual serves the purposes of the ameliorative program. Our awareness and recognition of hybrids should force us to be more individualized in understanding the structure of effective and fair ameliorative programs, while not forcing us to abandon group-based approaches entirely.
III. A Roadmap
This book responds to these perplexing legal and social problems through the application of a bi perspective. In chapter 2, I develop a bi jurisprudence, providing a broad overview of the differing implications of hybrid existence in the areas of sexual orientation, gender, race, and disability.
Chapter 3 applies a bi perspective to an examination of how courts and legislatures have attempted to create entitlements and benefits which flow from the categorization of persons as “homosexual” or “heterosexual.” In contrast to the theoretical approach in chapter 2, I concretely examine the definitions of “homosexual” that courts and legislature have created. These definitions often break down when applied to individuals who have experienced sexual relationships with persons of both sexes. How the law responds to such “bad fits” reveals a great deal about society’s determination to force people into neat “boxes,” especially the tidy category of heterosexuality. This coercive attempt to define people on the basis of sexual orientation reflects society’s discomfort with individuals who are “gay and proud” as well as with individuals who attempt to cross appropriate gender boundaries. Our sexual orientation policies are therefore inextricably connected to our gender policies.
Chapter 3 also asks how we can use the phrases “gay,” “lesbian,” or “bisexual” as part of ameliorative programs to overcome subordination. As society begins to permit partner registration systems irrespective of the gender of one’s partner, how should we use the labels of gay, lesbian and bisexual? Do these attempts to allow people to self-identify as part of a committed partnership employ appropriate definitional categories? Because gay and lesbian people, unlike racial minorities, do not grow up in distinctive economically deprived communities, I also probe whether arguments for affirmative action are appropriate in this context and, if so, who should be considered entitled to affirmative treatment.
Chapter 4 explores how courts and legislatures attempt to use the terms “male” and “female” to fit individuals into gendered categories. Although we linguistically refer to the “opposite sexes” and consider biological sex to be an immutable characteristic, neither assumption is valid. Cases in which people cross gender boundaries through cross-dressing or sex-change operations baffle the courts and society enormously. Courts respond to these cases by maintaining the myth of the innateness and immutability of both gender and biological sex.
Constructively, I ask how the courts and society should respond to the historical mistreatment of people who cross gender or sexual barriers. Should individuals who “cross-dress” be considered victims of “gender” discrimination? Should we use the option of free-standing, unisex bathrooms, which has been developed in the disability context, to meet the needs of trans-gendered persons who often are not accepted in bathrooms for either biological sex?
Race is another area where the courts and society have imposed a false set of distinctions, categorizing people as “white” or “colored.” Chapter 5 focuses on why such distinctions are of such importance to society despite the scientific bankruptcy of “whiteness” as a racial construct and the reality that most people have mixed racial histories. How can we devise fair and appropriate affirmative action and transracial adoption policies? Should individuals such as Hylton or Scales-Trent, who self-identify as African-American despite their multiracial background or light skin color, be eligible for affirmative action? Because racial identity is socially constructed, do race-based affirmative action programs perpetuate or ameliorate race-based subordination? Similarly, do race-specific labels in the adoption context perpetuate the subordination of minority groups? Again, how should racial categories be defined in that context?
The newly developing area of “disability” law is a final area that helps reinforce society’s obsession with false categorization. Chapter 6 explores how society accords benefits and privileges based on whether one is “disabled” or “nondisabled” as if these are clear, bipolar categories. Whether individuals are considered “disabled” depends on what social policies are popular