ILGA Oceania – Bisexuality from a Legal Perspective

Notes from the workshop hosted by Nathan Ross. The session was about bisexuality research from firstly a legal perspective. The big issue discussed was bisexuality erasure. If an identity is invisible – that is a passive process and often due to laziness. However, erasure is actively saying something doesn’t exist. Erasure creates a challenge, rather than something that sits there waiting to be challenged.

Th issue becomes when lawyers set up a case by referring to gay and lesbian, or a lesbian couple for example. The framing of the case makes up the language that is used for that case. Often sexuality and gender cases are framed incorrectly. In NZ’s legal system, courts makes law and interpret legislation – therefore it is important we get this right. An example of this going wrong is the judgement for same sex marriage in the US didn’t say bisexual once. The expression of “same-sex” is still exclusive.

Why don’t they use the word ‘bisexual’? Responses to this include because it makes it more palatable to judges. It also simplifies the message for the legal system to be able to deal with it. Both of these reasons are rubbish and do not justify this exclusion. Bisexuality needs to be part of the conversation: inclusive language in law is important.

In a informal NZ case study, bisexuality came up in 50 cases. 25 times it was irrelevant, 25 cases are criminal cases – in all of these the offender was male. Consent was involved in one case, where the mention was in the defense that the defendant did not “have bisexual or homosexual tendencies”. Cases mention if someone is homosexual but never if they are hetereosexual. It would be worth researching if these mentions are gratuitous.

Erasure can have real outcomes and implications. An example of this is Orashia Edwards. His story of being held in detention because of of perceived need to prove his sexuality. This emphasises the real need for work to be done in this area.

 

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