at the University of Pittsburgh School of Law, as well as the students in my classes on constitutional law, feminist theory, and disability discrimination, have engaged in many lively conversations with me regarding these ideas as they developed. In particular, I benefited enormously from two faculty work-in-progress sessions at the School of Law and a symposium held at Yale Law School. Individual faculty members at the University of Pittsburgh also talked extensively with me about many of these ideas, including Jody Armour, Lisa Brush, Martha Chamallas, and Jules Lobel.
My research assistants were tireless in helping me discover wide-ranging material from the social sciences and law. Namita Luthra, Sharon Noble, Debra Sherman, and Colleen Zak have helped with nearly every idea contained in each chapter. In addition, my colleague, Bernie Hibbitts assisted me in finding valuable historical material on the U.S. Census. The word-processing staff at the School of Law, under the supervision of LuAnn Driscoll, did a marvelous job of polishing the typing, as well as proofreading a lengthy manuscript. Finally, the School of Law generously funded this research through summer writing grants and extra provision of research assistants in a time of fiscal austerity. I am very grateful.
As for careful reading of numerous drafts, no one deserves higher praise than my editor at New York University Press, Niko Pfund. Niko’s gracious edits, sensitivity to the ideas underlying my project, and positive feedback enriched this project enormously. I cannot imagine a smoother and more helpful editing process than the one offered to me by New York University Press.
And, of course, my family deserves enormous thanks for putting up with the time commitments of this project. To my four-year-old daughter, Cara Colker-Eybel, I thank you for your patience while mommy spent so much time writing “that book.” And to Edward Eybel, my husband, I thank you for all the hours you kept Cara away from my computer so that I could write without too much distraction. I should have more time to devote to the family now, that is, until I undertake the next big project.
Preface
Bisexuals are blamed for spreading AIDS to the heterosexual community,1 transsexuals for destroying America’s moral fabric, interracial couples for having children who will not fit into American society, and the somewhat disabled for diverting resources away from the “truly disabled.”2 These hybrids are castigated and despised yet, in the eyes of the law, do not really exist. The 1990 U.S. Census rendered them invisible with marital categories that recognized only heterosexual unions, sexual categories that included only males and females, racial categories that were monoracial, and a disability category that counted only those unable to work. This book brings hybrids to the forefront.
The term “hybrid” usually refers to the offspring of two plants or animals of different races, breeds, varieties, species, or genera.3 We do not usually mention “human hybrids” because we consider the differences between humans to be less significant than the differences in the plant and animal kingdom. The term “hybrid,” however, is an apt description of people who lie between bipolar legal categories—bisexuals, transsexuals, multiracials, and the somewhat disabled. Their lives often constitute a unique set of traits and experiences not found at either end of the bipolar spectrum. Sometimes, they are considered exotic; other times, they are considered abhorrent; and yet other times, they are virtually invisible.
Human hybrids, however, are not produced by artificial technology or genetic mixing, but by law and society. When the law creates such bipolar categories as homosexual and heterosexual, white and black, able-bodied and disabled, it leaves a gap between categories. These hybrids befuddle courts, because the existing categories do not fit them. The time has come to incorporate human hybrids into the legal world.
Hybrids are beginning to come to the forefront in popular culture. Marjorie Garber writes six hundred pages on bisexuals,4 Gregory Howard Williams shares a compelling story about his life on the “color line,”5 Newsweek displays bisexuals6 and multiracials7 on their covers, the New Yorker features female-to-male transsexuals,8 and talk shows overflow with personal accounts of transsexuality, bisexuality, and multiracial existence. But even Garber’s comprehensive treatment of bisexuals pays little or no attention to the role of law in perpetuating the castigation and invisibility of hybrids. This book fills in that gap.
Although this study is an academic investigation, it also reflects my personal experiences with questions of identity. As I write these words, I can still hear my mother’s voice saying to me as a four-year-old: “Ruth, you must wear a shirt if you are going to play outside!” And, much later, I remember being asked by my friends when I was going to decide whether I was “straight or gay.” These questions haunted me until I learned that I could live between the gaps—that I could be neither male nor female, gay nor straight. People who are multiracial or somewhat disabled also have often confronted these questions of identity. Multiracial organizations are insisting that the United States Census add a category to reflect their existence. Some people with disabilities speak of the “temporarily able-bodied” to emphasize the transient nature of our disability status.
The invisibility of hybrids reflects the false belief that we can visually identify who is female, gay or lesbian, African-American, or disabled. But the National Women’s Music Festival, for example, has discovered how difficult it is to exclude men from its annual music festival through visual identification alone, because people seek admission who have had sex-change operations or have very androgynous physiques. The U.S. military has struggled for decades to figure out how to identify and exclude the “true homosexual.” Judy Scales-Trent’s self-description as a “white black woman” 9 reveals that visual clues about race can be misleading. And the large numbers of people with “hidden disabilities” make unidimensional definitions of disability impossible.
Categorization under the law, however, is inevitable. Despite Garber’s postmodern critique of sexual orientation categories, we can be sure that categories will always be the basis of our legal system. We don’t live in the world of high theory; we live in the world of practical problems, day-to-day conflicts, pragmatism, and logistical concerns. My legal perspective therefore causes me to make an additional inquiry that is foreign to the perspective of Garber and others who have examined hybrids. Recognizing that categories are indispensable, we should consider how categories can be improved so as not to play a role in the destruction of human identity.
I therefore embark upon this project with both excitement and trepidation. It is particularly exciting to write this book now, with a four-year-old girl by my keyboard, who rejoices in taking off all her clothes when she plays outside. I write with trepidation because of the enormous scope of this study. This book could easily have been eight volumes instead of eight chapters, but I hope its general survey will inspire others who like myself want to learn better how to live between categories, and tolerate others who choose to do so.
ONE Introduction: Living the Gap
What I am—and have been for as long as I can remember—is someone whose sexuality and gender have never seemed to mesh with the available cultural categories.
—Sandra Lipsitz Bern, The Lenses of Gender
What is there about a continuum that is unsatisfying? frightening? Why must life—and we—be seen in either “black” or “white,” with no shades in between?
—Judy Scales-Trent, Commonalities
I. Living the Gap between Categories
Sandra Bern is biologically female and has been married to the same man
