Bisexuals need not apply: A comparative appraisal of refugee law and policy in Canada, the United States, and Australia

International Journal of Human Rights

Volumn 13, Issue 2-3, 2009, Pages 415-436

  Rehaag, Sean ^a  

^a YORK UNIVERSITY   (Canada)

Author keywords

Asylum; Australia; Bisexuality; Canada; Credibility; Law; Refugee; Sexual orientation; United States

Indexed keywords

EID: 77950783654     PISSN: 13642987     EISSN: 1744053X     Source Type: Journal    
DOI: 10.1080/13642980902758226     Document Type: Article

References (165)

1. Alfred Kinsey, Wardell Pomeroy, and Clyde Martin, Sexual Behavior in the Human Male (Philadelphia: W.B. Saunders, 1948), 639.
2. Clare Hemmings, ‘What’s in a Name? Bisexuality, Transnational Sexuality Studies and Western Colonial Legacies’, International Journal of Human Rights 11 (2007): 13.
3. See also notes 112 - 29 and accompanying texts below.
4. These figures were obtained by searching for ‘homosexual or lesbian’ and ‘bisexual’, respectively, using Westlaw-Ecarswell’s electronic database entitled ‘EHR-RPTS’. The search was conducted on 20 May 2008.
5. These figures were obtained by searching for ‘homosexual or lesbian’ and ‘bisexual’, respectively, using Quicklaw’s electronic database entitled ‘Canadian Human Rights Tribunal Decisions’. The search was conducted on 20 May 2008.
6. International Gay and Lesbian Human Rights Commission, http://www.iglhrc.org.
7. International Gay and Lesbian Association, http://www.ilga.org.
8. National Gay and Lesbian Task Force, http://www.thetaskforce.org.
9. Gay and Lesbian Rights Lobby, http://www.glrl.org.au.
10. Lesbian and Gay Equality Project, http://www.equality.org.za.
11. Égalité pour les gais et les lesbiennes, http://www.egale.ca.
12. See notes 24 - 70 and accompanying texts below. In this paper I use the term ‘refugee claim’ to cover requests made for protection against deportation to face persecution (i.e. meaning that the refugee claimant is already present in the host state). The term thus covers, for example, what would be considered ‘refugee claims’ in Canada, as well as what are termed applications for ‘asylum’ or for ‘withholding of removal’ in the United States. The issue of requests for refugee protection or resettlement made from outside host states is beyond the scope of this paper.
13. Judith Butler, Bodies that Matter: On the Discursive Limits of ‘Sex’ (New York: Routledge, 1993), 223-42
14. Francisco Valdes, ‘Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex", "Gender" and "Sexual Orientation" in Euro-American Law and Society’, California Law Review 83 (1995): 1
15. Elivra Arriola, ‘Law and the Gendered Politics of Identity: Who Owns the Label "Lesbian"?’, Hastings Women’s Law Journal 8 (1997): 1
16. Sonia Katyal, ‘Exporting Identity’, Yale Journal of Law & Feminism 14 (2002): 97.
17. For an excellent overview of debates over these terms in sexual minority communities, see ‘Symposium on Linguistic Creativity in LGBT Discourse’, World Englishes 17 (2002): 187.
18. Terms that aim at broad inclusivity - including, for example, ‘queer’, MSM, and WSW – are frequently critiqued along these lines. See, e.g., Viviane Namaste, Sex Change, Social Change: Reflections on Identity, Institutions, and Imperialism (Toronto: Women’s Press, 2005), 21 (‘"Queer" is quite specific to Anglo-American locations’)
19. Rebecca Young and Ilan Meyer, ‘The Trouble with "MSM" and "WSW": Erasure of the Sexual-Minority Person in Public Heath Discourse’, American Journal of Public Health 95 (2004): 1144.
20. Valdes, ‘Queers, Sissies, Dykes, and Tomboys’, 161-212.
21. Nancy Knauer, ‘Gender Matters: Making the Case for Trans Inclusion’, Pierce Law Review 6 (2007): 1 (‘Lesbian and gay advocacy organizations officially began to incorporate transgender issues in the late 1990s, as signalled by the now ubiquitous "T" that appears at the end of the popular acronym "LGBT". However, the resulting alliance has been an uneasy one and the incorporation has been partial.’)
22. Gilbert Herdt, ‘Bisexuality and the Causes of Homosexuality: The Case of the Sambia’, in Bisexualities: The Ideology and Practice of Sexual Conduct with Both Men and Women, ed. Erin Haeberle and Rolf Gindorf (New York: Continuum, 1998), 164 (‘Sambia do not have a noun category either for homosexual or for heterosexual. They do not recognize in their history or culture that someone can be exclusively homosexual in partner selection, or exclusively heterosexual’).
23. Sebastian Maguire, ‘The Human Rights of Sexual Minorities in Africa’, California Women’s International Law Journal 35 (2004): 1.
24. Throughout this paper I refer to ‘hetero-normative’ persecution. I choose this terminology, rather than the more common ‘homophobic’ persecution, as it emphasises that the persecution participates in enforcing compulsory heterosexuality, and is not merely a persecutory reaction to an unpopular minority. Also, ‘hetero-normative’ persecution is a general term that (partly) encompasses other more specific forms of persecution targeting particular sexual minorities, including homophobia, bi-phobia, trans-phobia, etc.
25. The term, thus, covers not only homosexual, lesbian, bisexual, transsexual, and intersexed individuals, but also others who may be mistreated on the basis of their sexual identity or sexual behaviour. For example, one could argue that the term includes (but is not limited to) sex workers, adulterers, swingers, polyamorists, and sado-masochists. For a discussion of the applicability of international refugee law to some of these sexual minorities, see, e.g., Kristen Walker, ‘New Uses of the Refugees Convention: Sexuality and Refugee Status’, in The Refugees Convention 50 Years On, ed. Susan Kneebone (Aldershot: Ashgate, 2003), 251, 273-7.
26. For an excellent review on debates over the term ‘bisexuality’ see Kenji Yoshino, ‘The Epistemic Contract of Bisexual Erasure’, Stanford Law Review 52 (2000): 370.
27. Katyal, ‘Exporting Identity’, 153.
28. In the literature on bisexuality, these individuals are sometimes referred to as ‘defence bisexuals’ : Yoshino, ‘The Epistemic Contract of Bisexual Erasure’, 371-2.
29. By phrasing my definition this way, I also hope to circumvent the unfortunate binary evoked by the term ‘bisexuality’, which problematically implies that all people fall into one of two (and only two) genders or sexes. For a critique of binary understandings of gender, see Kate Bornstein, Gender Outlaw: On Men, Women and the Rest of Us (New York: Vintage Books, 1994).
30. UNHCR, Guidelines on International Protection: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, UN Doc. HCR/GIP/02/01, 7 May 2002; reproduced in International Journal of Refugee Law 14 (2002): 457, paras 15 - 16.
31. James Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991), 163
32. Jenni Millbank, ‘Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia’, Melbourne University Law Review 26 (2002): 149.
33. 189 UNTS 150, entered into force on 22 April 1954.
34. Erik Ramanathan, ‘Queer Cases: A Comparative Analysis of Global Sexual Orientation-Based Asylum Jurisprudence’, Georgetown Immigration Law Journal 11 (1996): 26.
35. See, e.g., C.Y.T. (Re) [1998] CRDD No. 186.
36. Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd edn (Oxford: Oxford University Press, 2007), 87.
37. UNHCR, Guidelines on International Protection, para. 32. For a discussion arguing that gender norm non-compliance is often at the root of persecution experienced by sexual minorities, see Nicole LaViolette, ‘Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines’, International Journal of Refugee Law 19 (2007): 169.
38. Chris Kendall, ‘Lesbian and Gay Refugees in Australia: Now that "Acting Discreetly" is No Longer an Option, will Equality be Forthcoming?’, International Journal of Refugee Law 15 (2003): 718.
39. LaViolette, ‘Gender-Related Refugee Claims’.
40. See, e.g., International Covenant on Civil and Political Rights, Art. 23(1): ‘The family is the natural and fundamental group union of society and is entitled to protection by society and the state.’ For a discussion of the heterosexual nature of the types of families recognised under international law, see Kristen Walker, ‘Capitalism, Gay Identity and International Human Rights Law’, Australasian Gay and Lesbian Law Journal 9 (2000): 58, 68-70.
41. Nicole LaViolette, ‘The Immutable Refugees: Sexual Orientation in Canada (A.G.) v. Ward’, University of Toronto Faculty of Law Review 55 (1997): 29
42. Kristen Walker, ‘Sexuality and Refugee Status in Australia’, International Journal of Refugee Law 12 (2000): 178
43. Ramanathan, ‘Queer Cases’, 26.
44. For a general discussion of the possibilities of framing hetero-normative violence as persecution on account of religion, see Jeffrey Redding, ‘Human Rights and Homo-sectuals: The International Politics of Sexuality, Religion, and Law’, Northwestern University Journal of International Human Rights 4 (2005): 436.
45. UNHCR, Guidelines on International Protection, para. 25 (emphasis added).
46. For a persuasive analysis that draws on the UNHCR Guidelines to argue that persecution on grounds of religion is an appropriate category through which to assess refugee claims involving repressive gender norms, regardless of the actual religious beliefs of refugee claimants, see Karen Musalo, ‘Claims for Protection Based on Religion or Belief’, International Journal of Refugee Law 16 (2004): 212.
47. LaViolette, ‘Gender-Related Refugee Claims’, 169-214.
48. The UNHCR Guidelines note, however, that in such states persecution targeting those who fail to conform to repressive religious norms may be taken as persecution on grounds of religion or as persecution on grounds of political opinion: UNHCR, Guidelines on International Protection, para. 26.
49. Arwen Swink, ‘Queer Refuge: A Review of the Role of Country Condition Analysis in Asylum Adjudications for Members of Sexual Minorities’, Hastings International and Comparative Law Review 29 (2006): 254
50. Walker, ‘Sexuality and Refugee Status in Australia’, 178 esp. n. 9.
51. Ward v. Canada [1993] 2 SCR 689.
52. Goodwin-Gill and McAdam, The Refugee in International Law, 10 (identifying Ward as ‘one of the leading "social group" cases’)
53. Walker, ‘New Uses of the Refugees Convention’, 265-6 (discussing the importance of Ward in the development of international refugee law).
54. Ward v. Canada, 739. Note that this definition was drawn in part from an earlier United States Board of Immigration Appeals decision, Matter of Acosta, 19 I & N Dec. 211 (BIA 1985), 233.
55. Hernandez-Montiel v. I.N.S., 225 F.3d 1084 (9th Cir., 2000), 1093; Islam v. Secretary of State for the Home Department Immigration Appeal Tribunal and Another [1999] UKHL 20.
56. UNHCR, Guidelines on International Protection: ‘Membership of a Particular Social Group’ within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/02/02, 7 May 2002, para. 6.
57. LaViolette, ‘The Immutable Refugees’
58. Walker, ‘Sexuality and Refugee Status in Australia’, 209.
59. Ward v. Canada, 739.
60. UNHCR, Guidelines on International Protection, para. 11.
61. See also European Union Council Directive 2004/83/ED of DATE April 2004, ch. 3, Art.10.1(d): ‘a group shall be considered to form a particular social group where in particular…membersofthatgroupshare…acharacteristicorbeliefthatissofundamentaltoidentity or conscience that a person should not be forced to renounce it’.
62. John Bailey, Michael Dunne, and Nicholas Martin, ‘Genetic and Environmental Influences on Sexual Orientation and its Correlates in an Australian Twin Sample’, Journal of Personality and Social Psychology 78 (2000): 524.
63. For a general review of literature in social sciences on the ‘causes’ of sexual orientation, see Simon LeVay, Queer Science: The Use and Abuse of Research into Homosexuality (Cambridge, MA: MIT Press, 1996).
64. Julianne Serovich, Shonda Craft, Paula Toviessi, Rashmi Gangamma, Tiffany McDowell, and Erika Grafsky, ‘A Systematic Review of the Research Based on Sexual Reorientation Therapy’, Journal of Marital and Family Therapy 34 (2008): 227 (noting that conversion therapy aims ‘to "cure" homosexuals by transforming them into heterosexuals’).
65. For a discussion of conversion therapy, see Robert Spitzer, ‘Can Some Gay Men and Lesbians Change their Sexual Orientation? 200 Participants Reporting a Change from Homosexual to Heterosexual Orientation’, Archives of Sexual Behavior 32 (2003): 403
66. Kenneth Cohen and Ritch Savin-Williams, ‘Are Converts to be Believed? Assessing Sexual Orientation "Conversions"’, Archives of Sexual Behavior 32 (2003): 427
67. Gregory Herek, ‘Evaluating Interventions to Alter Sexual Orientation: Methodological and Ethical Considerations’, Archives of Sexual Behavior 32 (2003): 438.
68. Lee Beckstead, ‘Cures Versus Choices: Agendas in Sexual Reorientation Therapy’, Journal of Gay and Lesbian Psychotherapy 5 (2001): 88.
69. For an excellent review of ‘social constructivist’ scholarship challenging the view of sexual orientation as immutable, see Edward Stein, ed., Forms of Desire: Sexual Orientation and the Social Constructivist Controversy (New York: Routledge, 1992).
70. Michel Foucault, The History of Sexuality, Volume I: An Introduction (New York: Pantheon, 1978).
71. Janet Halley, ‘Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability’, Stanford Law Review 46 (1994): 503
72. Butler, Bodies that Matter ; Brenda Cossman, ‘Sexuality, Queer Theory, and "Feminism after": Reading and Rereading the Sexual Subject’, McGill Law Journal 49 (2004): 847.
73. Nancy Knauer, ‘Science, Identity, and the Construction of the Gay Political Narrative’, Law & Sexuality 12 (2003): 6.
74. Ward v. Canada, 739: ‘The meaning assigned to "particular social group" in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative.’
75. Yoshino, ‘The Epistemic Contract of Bisexual Erasure’, 405.
76. Adrienne Rich, ‘Compulsory Heterosexuality and Lesbian Existence’, Signs 5 (1980): 631.
77. For an argument that hetero-normative persecution is best understood as targeting non-compliance with gender norms, see Kendall, ‘Lesbian and Gay Refugees in Australia’.
78. Halley, ‘Sexual Orientation and the Politics of Biology’.
79. Hernandez-Montiel v. I.N.S.
80. In adopting the Canadian definition the court resolved a previous conflict in American refugee law over whether ‘particular social groups’ had to involve voluntary association (Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986), 1576) or immutable characteristics (Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), 233).
81. Hernandez-Montiel v. I.N.S., 1093.
82. See, e.g., A v. Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331; S395/2002 and S396/2002 v. Minister for Immigration and Multicultural Affairs (2003) ALR 112.
83. Refugee Appeal No. 1312/93 (30 August 1995); Refugee Appeal No. 74665/03 (7 July 2004).
84. Canada is an outlier in this regard. However, there is some support for a shift in this direction to be found in Canadian constitutional jurisprudence on sexual minority rights, particularly in decisions by Supreme Court Justice L’Heureux-Dubé. See, e.g., Egan v. Canada [1995] 2 SCR 513, per L’Heureux-Dubé J., dissenting (esp. para. 89); Vriend v. Alberta [1998] 1 SCR 493, per L’Heureux-Dubé J., concurring (esp. para. 186); Trinity Western University v. British Columbia College of Teachers [2001] 1 SCR 772, per L’Heureux-Dubé J., dissenting (esp. para. 69).
85. There are, in fact, other areas of sexual minority refugee law where rigid understandings of human sexuality continue to influence refugee jurisprudence notwithstanding the dominance of the fundamental human dignity approach. Jenni Millbank, for example, argues that the frequently criticised requirement in the refugee jurisprudence of some jurisdictions - including the United Kingdom - that sexual minorities must try to avoid persecution in violently hetero- normative societies by being ‘discreet’ is connected to a rigid understanding of human sexuality as a matter that is inherently or ‘naturally’ private: ‘A Preoccupation with Perversion: The British Response to Refugee Claims on the Basis of Sexual Orientation 1989- 2003’, Social & Legal Studies 14 (2005): 115.
86. BDK (Re) [2000] CRDD No. 72.
87. Sean Rehaag, ‘Patrolling the Borders of Sexual Orientation: Bisexual Refugee Claims in Canada’, McGill Law Journal 53 (2008): 59-76.
88. Millbank, ‘Imagining Otherness’, 149.
89. RSC, 1985, c. A-1.
90. Immigration and Refugee Protection Act, SC 2001, c. 27, s. 170(b).
91. The full data are available online: Sean Rehaag, ‘New Refugee Claim Data & IRB Member Grant Rates’, http://www.ccrweb.ca/documents/rehaagdata.htm (accessed 1 November 2008).
92. For a description of the methodology used to acquire and compile the data, as well as for a description of the limits to the data set, see Sean Rehaag, ‘Troubling Patterns in Canadian Refugee Adjudication’, Ottawa Law Review 39 (2008): 335.
93. In addition to cases involving gay men, lesbians, and bisexuals, there were nine sexual minority decisions that the Immigration and Refugee Board placed in a category labeled ‘Other’. The grant rate in these cases was 56%.
94. Rehaag, ‘Patrolling the Borders of Sexual Orientation’, 70-1.
95. Hernandez-Montiel v. I.N.S., 1093.
96. Jin Park, ‘Pink Asylum: Political Asylum Eligibility of Gay Men and Lesbians under U.S. Immigration Policy’, UCLA Law Review 42 (1995): 1115, n. 5: ‘asylum claims based on bisexuality do not appear to be common’.
97. Ford v. Bureau of Immigration and Customs Enforcement’s Interim Field Office Dir. for Det. and Removal, 294 F. Supp. 2d 655 (3d Cir. Pa., 2005), 656 - 7: ‘Petitioner describes himself as bi-sexual with a greater homosexual inclination.’
98. In Re: Jesus-Jimenez Rodriguez, 2007 WL 1676897 (BIA, 24 April 2007), No. A71922463.
99. For general information about asylum grant rates in the United States, see Jaya Ramji-Nogales, Andrew Schoenholtz, and Philip Schrag, ‘Refugee Roulette: Disparities in Asylum Adjudication’, Stanford Law Review 60 (2007): 295.
100. As of the time of writing, the Asylum Documentation Program is no longer part of the International Gay and Lesbian Human Rights Commission. The Program has now joined the Heartland Alliance (National Immigration Justice Center).
101. The data were produced using a search through the Program database performed by the author at the Program office in San Francisco on 24 September 2007. It should be noted that in addition to the figures presented, the Program also assisted a significant number of refugee claimants (i.e. applicants for asylum or withholding of removal) whose cases raised issues related to transgender oppression or persecution targeting HIV-positive individuals.
102. Dusty Araujo, Asylum Documentation Coordinator, ADP, personal correspondence dated 24 January 2008 (on file with author).
103. A v. Minister for Immigration and Ethnic Affairs, 390.
104. S395/2002 and S396/2002, 126.
105. VRAW and VRAX v. Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1133, para. 1.
106. Jenni Millbank, ‘Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual Orientation’, Georgetown Immigration Law Journal 18 (2003): 71.
107. Catherine Dauvergne and Jenni Millbank, ‘Burdened by Proof: How the Australian Refugee Review Tribunal Has Failed Lesbian and Gay Asylum Seekers’, Federal Law Review 31 (2003): 299.
108. Millbank, ‘Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual Orientation’, 73, n. 11.
109. RRT Reference: N95/07313 [1997] RRTA 2438 (27 June 1997); RRT Reference: N97/15882 [1997] RRTA 3396 (5 September 1997).
110. Millbank, ‘Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual Orientation’, 93, n. 98.
111. RRT Reference: V97/06483 [1998] RRTA 27 (5 January 1998).
112. RRT Reference: V98/09111 [1999] RRTA 418 (22 February 1999).
113. Millbank, ‘Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual Orientation’, 73, n. 14.
114. See, e.g., RRT Reference: V02/14641 [2004] RRTA 351 (7 May 2004); RRT Reference: 061020474 [2007] RRTA 25 (7 February 2007).
115. See, e.g., VRAW and VRAX v. Minister for Immigration and Multicultural and Indigenous Affairs; SZAKD v. Minister for Immigration [2004] FMCA 78.
116. For examples of negative Australian decisions involving bisexuals, see, e.g., SZJSL v. Minister for Immigration and Multicultural Affairs and Another [2007] FMCA 313 (19 February 2007); SZGNJ v. Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] FMCA 91 (24 February 2006); SZEHT v. Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1468 (7 October 2005); SZENG and Another v. Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] FMCA 1435 (29 September 2005); SZEOE v. Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 694 (31 May 2005); RRT Reference: N03/45936 [2003] RRTA 709 (31 July 2003); RRT Reference: N01/37929 [2003] RRTA 567 (20 June 2003); RRT Reference: N01/38642 [2003] RRTA 285 (31 March 2003); RRT Reference: N01/36734 [2002] RRTA 898 (8 October 2002).
117. For an example of a refugee law scholar who has addressed bisexuality in some detail, see Walker, ‘Sexuality and Refugee Status in Australia’, 187-8.
118. LaViolette, ‘Gender-Related Refugee Claims’; Victoria Nelson, ‘Homosexual or Female? Applying Gender-Based Asylum Jurisprudence to Lesbian Asylum Claims’, Stanford Law and Policy Review 16 (2005): 417
119. Swink, ‘Queer Refuge’
120. Millbank, ‘Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual Orientation’
121. Dauvergne and Millbank, ‘Burdened by Proof’.
122. Millbank, ‘Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual Orientation’.
123. Clare Hemmings, Bisexual Spaces: A Geography of Sexuality and Gender (New York: Routledge, 2002), 82-90
124. Robyn Ochs, ‘Biphobia: It Goes More than Two Ways’, in Bisexuality: The Psychology and Politics of an Invisible Minority, ed. Beth Firestein (Thousand Oaks, CA: Sage, 1996), 225
125. Ruth Colker, Hybrid: Bisexuals, Multiracials and Other Misfits under American Law (New York: New York University Press, 1996), 15-21
126. Naomi Mezey, ‘Dismantling the Wall: Bisexuality and the Possibilities of Sexual Identity Classification Based on Acts’, Berkeley Women’s Law Journal 10 (1995): 98.
127. Yoshino, ‘The Epistemic Contract of Bisexual Erasure’
128. Halley, ‘Sexual Orientation and the Politics of Biology’.
129. ‘The Epistemic Contract of Bisexual Erasure’, 402-4.
130. John Gagnon, Cathy Greenblat, and Michael Kimmel, ‘Bisexuality: A Sociological Perspective’, in Bisexualities: The Ideology and Practice of Sexual Conduct with Both Men and Women, ed. Erin Haeberle and Rolf Gindorf (New York: Continuum, 1998), 88.
131. Yoshino, ‘The Epistemic Contract of Bisexual Erasure’, 404-10.
132. For an example of an essentialist approach to constitutional sexual minority rights jurisprudence in Canada, see e.g., Egan v. Canada, 528 (holding that sexual orientation is a constitutionally prohibited ground of discrimination because sexual orientation ‘is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs’).
133. For a persuasive critique of this aspect of Egan, see Robert Leckey, ‘Chosen Discrimination’, Supreme Court Law Review (2d) 18 (2002): 445.
134. For a discussion of the role of essentialist arguments in United States constitutional equality jurisprudence involving sexual minorities, see Halley, ‘Sexual Orientation and the Politics of Biology’
135. Kari Balog, ‘Equal Protection for Homosexuals: Why the Immutability Argument is Necessary and How it is Met’, Cleveland State Law Review 53 (2006): 545
136. Yoshino, ‘The Epistemic Contract of Bisexual Erasure’, 405.
137. Michael Kirby, ‘Sexuality and Australian Law’, Journal of Homosexuality 48, nos 3-4 (2005): 31-33.
138. See also note 93 and accompanying text above.
139. Yoshino, ‘The Epistemic Contract of Bisexual Erasure’, 401-2.
140. Joan, ‘This Is Me’, in Bisexual Horizon, ed. Sharon Rose and Cris Stevens (London: Lawrence & Wishart, 1996), 142: ‘[Bisexuality] is obviously a part of me, how nature made me, and there’s no use in trying to fight against it.’
141. Gagnon et al., ‘Bisexuality’, 99
142. Simon Scott, ‘Politically Bi’, in Rose and Stevens, Bisexual Horizon, 236.
143. Liz Highleyman, ‘Thoughts of a Bisexual Anarchist’, in Rose and Stevens, Bisexual Horizon, 271.
144. Marie King, ‘It Could Be Either’, in Rose and Stevens, Bisexual Horizon, 105.
145. Dave Matteson, ‘Bisexual Feminist Man’, in Bi Any Other Name: Bisexual People Speak Out, ed. Loraine Hutchins and Lani Kaahumanu (Boston, Alyson, 1991), 47.
146. Starhawk, ‘The Sacredness of Pleasure’, in Bisexual Politics: Theories, Queries & Visions, ed. Naomi Tucker (New York: Hawthorne Press, 1995), 327.
147. Yoshino, ‘The Epistemic Contract of Bisexual Erasure’, 428-9.
148. This phenomenon goes some distance towards explaining the infrequent references to bisexuality by the human rights tribunals and organisations noted at the beginning of the paper. See notes 2 - 10 above and accompanying text.
149. RRT Reference: N95/07313.
150. Alternor v. Canada, 2008 FC 570, [2008] FCJ No. 731.
151. RPD File No. TA6-12910 (18 July 2007) (on file with author), overturned by Alternor v. Canada (emphasis added). The author would like to thank Richard Odeleye for providing a copy of the decision.
152. Elias Farajajé-Jones, ‘Fluid Desire: Race, HIV/AIDS and Bisexual Politics’, in Bisexual Politics: Theories, Queries & Visions, ed. Naomi Tucker (New York: Hawthorne Press, 1995), 119-20.
153. Kirsten McLean, ‘Negotiating (Non)Monogamy: Bisexuality and Intimate Relationships’, in Current Research on Bisexuality, ed. Ronald Fox (Binghamton, NY: Harrington Park Press, 2004), 85
154. Amanda Udis-Kessler, ‘Challenging the Stereotypes’, in Bisexual Horizon, ed. Sharon Rose and Cris Stevens (London: Lawrence & Wishart, 1996), 45-57 esp. 50.
155. K.O.C. (Re) [2003] RPDD No. 420, 11.
156. Gyorgyjakab v. Canada (Minister of Citizenship and Immigration) [2004] RPDD No. 698, 43.
157. Colker, Hybrid, 28.
158. William Burleson, Bi America: Myths, Truths and Struggles of an Invisible Community (New York: Harrington Park Press, 2005), 45.
159. Felicity Cade, ‘Marriage and Bisexuality’, in Bisexual Horizon, ed. Sharon Rose and Cris Stevens (London: Lawrence & Wishart, 1996), 114: ‘I am a happily married bisexual feminist with other lovers of both genders, and playmates whose gender I would not dare to predict.’ 143.
160. Annie Murray, ‘Forsaking All Others: A Bifeminist Discussion of Compulsory Monogamy’, in Bisexual Politics: Theories, Queries & Visions, ed. Naomi Tucker (New York: Hawthorne Press, 1995), 293
161. Burleson, Bi America, 119-23.
162. Rifka Reichler, ‘A Question of Invisibility’, in Bi Any Other Name: Bisexual People Speak Out, ed. Loraine Hutchins and Lani Kaahumanu (Boston, Alyson, 1991), 77.
163. This case was upheld on judicial review: SZJSL v. Minister for Immigration and Multicultural Affairs and Another.
164. RRT Reference: N05/50659 [2005] RRTA 207 (17 May 2005) (emphasis added).
165. Millbank, ‘Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual Orientation’, 93.