I agree wholeheartedly with Eugene Volokh on this:
Whether Elena Kagan is straight, lesbian, bisexual, or asexual doesn’t matter to me. Moreover, to the extent a number of her close friends, who are likely to know her recent love life, say that she’s straight rather than lesbian or bisexual — and that seems to be something that one of her friends quoted in the Politico article I linked to above is saying — that should be pretty reliable evidence for those who care about the subject. Among other things, if she understandably concludes that it’s beneath her dignity to discuss her love life in public, evidence from a number of friends is the most that can be provided: “[C]ontrast the ease of proving one is straight or gay in a world in which bisexuals are not acknowledged to exist with the difficulty of proving the same thing in a world in which bisexuals are recognized.”
But the sort of bisexual erasure that takes place when we say “X can’t be lesbian, she’s dated men” (or “X can’t be gay, he’s dated women”) strikes me as pretty unsound, and not fair to a group that makes up a pretty big chunk of the non-straight population.
One has to wonder why a Supreme Court nominee's sex life ought to matter in the United States in America and realize sadly that it does because America loves categories. For it, categories especially when they are sexual and racial clarify issues of identity, which are key to its politics and to its society. People are obsessed with Elena Kagan's sexuality because they assume that it will them everything that they need to know about her views for after all, America still believes that the sex that one defines who you are and informs society about one's values. More importantly, Americans get easily confused by complexity when it comes to race and sex because they are pillars of its societal establishment. This fact explains why it is difficult to be 'bisexual' or 'biracial' and not to be marginalized in the good old USA.
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