Legally Bi: Becoming a Bi Lawrrior Part 3

By Nancy Marcus

July 20, 2018


My frustrations had long been festering about the lack of bi inclusion in LGBT-rights discourse and litigation. I wasn't the only bi lawyer, it turns out, who was growing increasingly dismayed by the marginalization of the bi community, too often at the hands of the very members of the LGBTQ community for whom I had been advocating and volunteering over the years. 

The breaking point for some of us was the keynote speech five years ago by U.S. v. Windsor lawyer Robbie Kaplan at the National LGBT Bar Association's Lavender Law conference. Kaplan, renowned for her successful representation of the late, great Edie Windsor in the first marriage equality victory in the Supreme Court, received rapt attention of conference attendees as she spoke about the marriage litigation. Her tone was inspirational and celebratory - but then, shockingly insulting. As an aside, halfway through her keynote speech, she chastised those who use the phrase same-sex marriage. With no small amount of condescension, she demanded of the conference attendees, "Come on.  Let's be real. It's GAY marriage.Only GAYS enter into same-sex marriages. So let's call it what it is!" Cue facepalms by every bi+ person who has every married, or thought about marrying, a same-sex partner. 

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I, for one, was livid, to once again be subjected to the insulting erasure of my own existence, by one of the most prominent LGBT-rights lawyers in the country. It is hard to believe that Kaplan intellectually fails to grasp that bis also enter into same-sex marriages, which is one reason why same-sex marriage is more accurate and appropriately inclusive than gay marriage. But I shudder to think what, then -- if not lack of intellectual ability to understand that bis marry same-sex partners too -- prompted her to disparage those who do not agree with her that only gays enter into same-sex marriages. 

Kaplan's speech was just the latest iteration of the gays only articulation of LGBT-rights issues. Too many LGBT-rights advocates, for too long, have remained engrained in old habits of just talking about "gay rights" or "lesbian and gay rights" as umbrella descriptors of LGBT issues, and the media and courts have followed their lead. In recent years, the bi-erasing phrase gay and lesbian has been replaced by the less trans-erasing, but still bi-erasing, phrase gay and transgender. Bi erasure permeates LGBT-rights discourse, despite the fact that members of the bi+ community are also disproportionately affected by sexual orientation discrimination. So, no, it is not only gays who enter into same-sex marriages and who are victims of sexual orientation discrimination. That moment -- when the celebration of a historic moment in LGBT-rights progress was tainted by being told, in essence, by Edie Windsor's lawyer that, as a bi woman, I was not welcome to equally share in the marriage equality celebration -- was the moment when I hit my limit and refused to be erased by leaders in my own LGBT-rights community any longer. 

I didn't have to bite my tongue for long. Immediately after Kaplan's speech, the Executive Director of the National LGBT Bar Association began a dialogue among conference attendees about how to make the Lavender Law conference more diverse and inclusive in future years. My hand shot up, and I responded, be more BI inclusive!  Without calling out the bi erasure in Kaplan's keynote speech, I pointed out the lack of bi programming at Lavender Law, and requested that the conference -- the largest and most prominent gathering of LGBT-rights legal advocates across the country every year -- start being more bi-inclusive in tone and content. Afterward, I found myself flocked by a small group of other bi attendees who thanked me for saying what they'd been thinking as well. That was the moment that BiLaw, the first national organization of bi+ lawyers, law students, law professors, and our allies, came into being. In an organic burst of passionate organizing, our small group of BiLawrriors created BiLaw right there on the spot, on August 23, 2013. 

The first task of BiLaw was immediately to begin lobbying the LGBT Bar Association for bi content at Lavender Law. Although it took some persistent nudging, we were ultimately successful. The next year, with the support of both the National LGBT Bar Association and the San Francisco bay area's LGBT bar association BALIF, the annual BiLaw Caucus was added to the programming, and in each following year additional bi-themed panels were added to the conference programming as well. Another of BiLaw's earliest accomplishments was to submit an amicus brief to the Supreme Court in Obergefell v. Hodges, imploring the Court to be bi-inclusive in its next marriage equality decision (which, sadly, it wasn't. Not to say we aren't equally protected by the ruling, but merely that we are still not deemed worthy of explicit recognition).

Although the Court did not mention bisexuality, another federal court did notice and reference our brief in a later opinion and pointedly mentioned the importance of being bi-inclusive in addressing sexual orientation discrimination. Hopefully the judge that wrote that insightful, inclusive opinion, will be just the first of many to do so. Other work by BiLaw has included submitting public comments on regulatory actions affecting the bi+ community, giving conference presentations on bi issues, and creating a bi pipeline through which bi lawyers are mentors to bi law students, who in turn reach out to bi undergrad students and encourage them to go into law (this latest project is actually the brainchild of out bi TV actress and advocate Sara Ramirez, who is enthusiastic about BiLaw's work). Over time, BiLaw has remained an organic and informally structured, completely unfunded, volunteer organization that is evolving to bring to fruition whatever vision any given members may have. Our annual BiLaw Caucus is attended by between 50 and 100 bi+ and bi-allied legal professionals each year. Some years, the Caucus consists of a large roundtable discussion, and in others has split off into sub-groups focusing on specific issues that affect the bi legal community and our clients. 

Targeted discussions have addressed such issues as being out as bi in the legal community; bi legal issues; the need for increased resources for bi research and issues; and the intersectionalities between bi+ issues and transgender issues, racial equity, and other interrelated issues. One thing has been constant each year: the effusive outpouring of gratitude by attendees, many of whom had never been in a room filled with bi lawyers and law students before and had been hungry for such community. Aside from BiLaw, my BiLawrrior work in recent years has included, in addition to starting this Legally Bi column, attending two White House community briefings as a bi leader, authoring several articles on the importance of bi inclusion in LGBT-rights discourse and litigation, speaking at a number of conferences and events about bi legal issues, and working within the LGBTQ legal community to increase bi visibility and services to the bi+ community. As for my work within the LGBT-rights legal community,

I had even more of a voice the past two years as a Law and Policy Senior Attorney with Lambda Legal.  In that position, I was able to regularly remind movement lawyers to be more inclusive, to provide information about bi issues to them and to the broader community, and to be visible and encourage other bi legal eagles and LGBT-rights advocates to be more visible. For the most part, Lambda Legal and the broader movement was supporting of my bi advocacy. In my two years as a movement lawyer, I saw significant improvement in the bi-inclusive attitude of many attorneys in the movement. There is, of course, always room for improvement.  Without getting into other reasons I left Lambda Legal, I will say that despite the general support I received for my bi advocacy over the past two years, I was also told that my bi advocacy at Lavender Law was not priority enough for Lambda Legal to continue funding (even though I had committed to speak this year on two panels and to co-facilitate the BiLaw Caucus as a BiLaw Co-Founder and organizer). I was even discouraged from seeking funding for my attendance at the BiLaw Caucus and other bi advocacy events. On other occasions as well, although a wide range of other issue areas (some more tangential to LGBT issues than bisexuality) have been deemed priority issue areas, I was told that bi issues were simply not considered priority enough in comparison. 

Lambda Legal is not alone; I am not aware of any other LGBT-rights legal organization that has recognized the importance of bi issues and the needs of its vast bisexual constituency in allocating meaningful resources and staff to bi-focused priorities, projects, or departments.  Bi advocacy, overall, remains grossly under-resourced and under-funded. In describing the ongoing room for improvement within LGBT-rights organizations, I do not mean to disparage the overall attitudes of such organizations toward bi people. In the end, the warm farewells I received at Lambda Legal, including from some who had denied me bi advocacy resources, included appreciation for my being a voice for bi inclusion within the LGBT-rights legal community. In my farewell letter to my Lambda Legal colleagues, I thanked them for all the progress that HAS been made in bi inclusion, and implored them to continue that important work in the future.  And I am confident they will. As for BiLaw, as the organization enters its sixth year of existence,  I am in passing-the-torch mode now that I have left paid full-time LGBT-rights advocacy to rejoin the plaintiff's bar as a private practitioner, with one of the nation's best toxic torts litigation firms.  While I will stay active with BiLaw's pipeline project, as a BiLaw listserv moderator, and as author of this column, my attendance at Lavender Law conferences and the BiLaw Caucus will not be a regular occurrence for me. That said, I will always be a BiLawrrior at heart, and I encourage any other BiLawrriors out there to hook up with BiLaw, which you can do by sending a private message through BiLaw's Facebook page to join BiLaw's listserv. Together we can stand up for the B in LGBT.


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