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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 at the moment rather than on their needs as individuals. Nonetheless, disability nondiscrimination law is a novel model for redressing discrimination, in general. I therefore ask whether any of its innovations work well and should be exported to other areas of the law.

The courts are struggling constructively to develop a definition of “disability” which will further the purposes of our antidiscrimination laws. Do we need to determine whether people fit a single definition of “disability” for anti-discrimination laws to operate properly? Would an approach that recognized the spectrum of disabilities that people experience better serve the purposes of our anti-discrimination laws?

Chapter 7 moves the discussion to a broader theoretical plane. I inquire how the legal system is generally built upon a foundation of bipolar injustice and how such a perspective hinders our understanding of discrimination and subordination under federal anti-discrimination law. I argue that the courts have developed a narrow “sexualized harassment” doctrine that, in effect, provides justice for a very small portion of the victims of gender and race discrimination in our society.

Finally, in chapter 8 I return to the U.S. Census to suggest how we can construct racial categories while being mindful of the existence of racial hybrids. Categories can be used constructively without insulting our human dignity.

The central question of this book is: Why is law based on a bipolar framework in ways that denigrate hybrids and render them invisible? Why can’t we see the nondichotomous spectrum on which people experience gender, race, sexual orientation, and disability? Why does the law need to use the labels of “homosexual and heterosexual,” “male and female,” “black and white,” and “disabled and nondisabled” at all? The answer to that final question varies from chapter to chapter. In some cases, labels may be useful—for example, to help identify groups that have faced a history of subordination in our society. That usefulness, however, should not justify our attempts to misdefine humanity in order to achieve certain social policies. When categories are needed, a bi perspective allows us to develop a more pragmatic and humane jurisprudence, and thus a more complete and accurate worldview.